Bohannon, J. v. Quans, J. ( 2015 )


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  • J-A28010-15
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    JOSETTE BOHANNON                                IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellant
    v.
    JAMES M. QUAN AND QUAN’S
    CONSTRUCTION
    Appellees                   No. 344 EDA 2015
    Appeal from the Judgment Entered April 10, 2015
    In the Court of Common Pleas of Philadelphia County
    Civil Division at No(s): 00721 March Term, 2013
    BEFORE: GANTMAN, P.J., PANELLA, J., and SHOGAN, J.
    MEMORANDUM BY GANTMAN, P.J.:                    FILED DECEMBER 11, 2015
    Appellant, Josette Bohannon, appeals from the judgment entered in
    the Philadelphia County Court of Common Pleas in favor of Appellees, James
    M. Quan and Quan’s Construction, in this personal injury action. We affirm.
    On March 30, 2011, Appellee’s truck struck Appellant’s van in a motor
    vehicle accident. Appellant filed a complaint for damages on March 6, 2013,
    claiming she suffered severe injuries to her neck and back as a result of the
    accident. Appellee admitted full responsibility for the accident, so negligence
    was not a question at trial. On July 25, 2014, Appellant filed a motion in
    limine to preclude Appellee from introducing at trial evidence of Appellant’s
    pre-existing health conditions.      Appellant claimed in her motion that
    evidence of her pre-existing health conditions was irrelevant and unfairly
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    prejudicial to her case. Appellant had an existing diagnosis of endometriosis
    and interstitial cystitis, which caused her to take 360 milligrams daily of
    Oxycodone to treat her conditions. The court heard oral arguments on the
    motion in limine prior to the start of trial on October 27, 2014. At that time,
    the court denied Appellant’s motion on the merits, stating evidence of
    Appellant’s pre-existing conditions and the medication she took was relevant
    to damages. The case then proceeded to a jury trial. Following trial, the
    jury rendered a verdict in favor of Appellee on October 28, 2014.
    Appellant timely filed a motion for post-trial relief on November 5,
    2014, in which she sought a new trial or, in the alternative, judgment
    notwithstanding the verdict (“JNOV”) and a trial on damages.        The court
    denied Appellant’s motion on January 21, 2015. Appellant filed a notice of
    appeal on January 23, 2015.1 The court did not order a concise statement of
    errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant
    ____________________________________________
    1
    A final judgment entered during the pendency of an appeal is sufficient to
    perfect appellate jurisdiction. Drum v. Shaull Equipment and Supply,
    Co., 
    787 A.2d 1050
     (Pa.Super. 2001), appeal denied, 
    569 Pa. 693
    , 
    803 A.2d 735
     (2002). Here, the court denied Appellant’s post-trial motion by order
    entered (with Rule 236 notice ) on January 21, 2015. Appellant filed her
    notice of appeal on January 23, 2015, prior to entry of a final judgment. At
    this Court’s direction, Appellant filed a praecipe to enter final judgment,
    which was entered on April 10, 2015. Although Appellant’s notice of appeal
    was actually premature when filed, it related forward to April 10, 2015, the
    date final judgment was entered. See Pa.R.A.P. 905(a) (stating notice of
    appeal filed after court’s determination but before entry of appealable order
    shall be treated as filed after such entry and on day of entry). Hence, there
    are no jurisdictional impediments to our review.
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    filed none.
    Appellant raises the following issues for our review:
    WHETHER THE TRIAL COURT ERRED IN DENYING
    APPELLANT’S MOTION FOR POST-TRIAL RELIEF?
    WHETHER EVIDENCE OF APPELLANT’S PRIOR UNRELATED
    INJURIES AND NARCOTIC USE WAS IRRELEVANT AND
    UNFAIRLY PREJUDICIAL AND MISLED THE JURY?
    WHETHER APPELLANT IS ENTITLED TO [JNOV] AND A
    TRIAL ON DAMAGES?
    (Appellant’s Brief at 5).
    In her issues combined, Appellant argues her prior injuries and
    narcotic pain medication use are unrelated to the injuries she suffered in the
    car accident. Appellant asserts she did not intend to introduce evidence of
    her prior pain medication use associated with her pre-accident health
    conditions of endometriosis and interstitial cystitis.    Appellant contends
    Appellee introduced evidence of Appellant’s prior injuries and heavy
    medication usage merely to harm Appellant’s case.             Appellant avers
    evidence of these injuries and medication usage was unduly prejudicial and
    should have been excluded under Pa.R.E. 403.         Appellant maintains she
    raised this claim in her pre-trial motion in limine and preserved it for
    appellate review. Appellant also asserts Appellee’s defense expert witness
    admitted Appellant’s heavy narcotics usage made her more susceptible to
    pain from new injuries.     Appellant claims the defense expert’s testimony
    irrefutably supported her own argument that she was an “eggshell skull”
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    plaintiff and Appellee was responsible for even the unforeseeable damage he
    caused her.     Appellant avers she was entitled to JNOV, because no
    reasonable jury could have found in favor of Appellee. Appellant concludes
    the trial court erred when it denied her request for a new trial without this
    evidence or, in the alternative, enter JNOV in her favor, with a new trial on
    damages. We disagree.
    Initially, “[T]o preserve an issue for appellate review, a party must
    make a timely and specific objection at the appropriate stage of the
    proceedings…”   Thompson v. Thompson, 
    963 A.2d 474
    , 475 (Pa.Super.
    2008). Significantly:
    In this jurisdiction…one         must object to         errors,
    improprieties or irregularities at the earliest possible stage
    of the adjudicatory process to afford the jurist hearing the
    case the first occasion to remedy the wrong and possibly
    avoid an unnecessary appeal to complain of the matter.
    
    Id. at 476
    . See generally Pa.R.A.P. 302 (providing: “Issues not raised in
    the lower court are waived and cannot be raised for the first time on
    appeal”).
    Issue preservation and presentation requirements are
    enforced in our system of justice for principled reasons, …,
    as they facilitate the open, deliberate, and consistent
    application of governing substantive legal principles from
    the foundation of a case through its conclusion on
    appellate review. Loose shifting of positions after the entry
    of judgments by those challenging them disrupts the
    stability and predictability of the process, fostering the
    potential for unfairness. As well, there are substantial
    interests at stake on both sides of medical malpractice
    actions.
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    Moreover, the professional handling of civil actions is
    essential to the administration of justice. … Similarly, we
    would be remiss to disregard requirements of issue
    preservation and presentation to alleviate consequences
    which may flow from attorneys’ failure to remain abreast
    of the areas of law in which they practice.
    Anderson v. McAfoos, 
    618 Pa. 478
    , 492-93, 
    57 A.3d 1141
    , 1149-50
    (2012).
    Rule 103 addresses waiver of issues raised in pre-trial motions as
    follows:
    Rule 103. Rulings on Evidence
    (a)       Preserving a Claim of Error. A party may claim
    error in a ruling to admit or exclude evidence only:
    (1)    if the ruling admits evidence, a party, on the
    record:
    (A) makes a timely objection, motion to strike, or
    motion in limine; and
    (B) states the specific         ground,   unless   it   was
    apparent from the context
    *     *     *
    (b)      Not Needing to Renew an Objection or Offer
    of Proof. Once the court rules definitively on the record—
    either before or at trial—a party need not renew an
    objection or offer of proof to preserve a claim of error for
    appeal.
    Pa.R.E. 103.      “A motion in limine may preserve an objection for appeal
    without any need to renew the objection at trial, but only if the trial court
    clearly and definitively rules on the motion.” Blumer v. Ford Motor Co.,
    
    20 A.3d 1222
    , 1232 (Pa.Super. 2011), appeal denied, 
    616 Pa. 649
    , 49 A.3d
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    441 (2012).
    “[A] court’s decision to grant or deny a motion in limine is subject to
    an evidentiary abuse of discretion standard of review.” Commonwealth v.
    Reese, 
    31 A.3d 708
    , 715 (Pa.Super. 2011) (en banc). Likewise, “[W]hether
    evidence is admissible is a determination that rests within the sound
    discretion of the trial court and will not be reversed on appeal absent a
    showing that the court clearly abused its discretion.” Fisher v. Central Cab
    Co., 
    945 A.2d 215
    , 218 (Pa.Super. 2008).
    The term discretion imports the exercise of judgment,
    wisdom and skill so as to reach a dispassionate conclusion,
    within the framework of the law, and is not exercised for
    the purpose of giving effect to the will of the judge.
    Discretion must be exercised on the foundation of reason,
    as opposed to prejudice, personal motivations, caprice or
    arbitrary actions. Discretion is abused when the course
    pursued represents not merely an error of judgment, but
    where the judgment is manifestly unreasonable or where
    the law is not applied or where the record shows that the
    action is a result of partiality, prejudice, bias or ill will.
    Schmalz v. Manufacturers & Traders Trust Co., 
    67 A.3d 800
    , 802-03
    (Pa.Super. 2013).
    Where the discretion exercised by the trial court is
    challenged on appeal, the party bringing the challenge
    bears a heavy burden.
    When the court has come to a conclusion by the
    exercise of its discretion, the party complaining of it
    on appeal has a heavy burden; it is not sufficient to
    persuade the appellate court that it might have
    reached a different conclusion if, in the first place,
    charged with the duty imposed on the court below; it
    is necessary to go further and show an abuse of the
    discretionary power. …
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    *    *    *
    We emphasize that an abuse of discretion may not be
    found merely because the appellate court might have
    reached a different conclusion, but requires a showing of
    manifest unreasonableness….
    Paden v. Baker Concrete Const., Inc., 
    540 Pa. 409
    , 412, 
    658 A.2d 341
    ,
    343 (1995) (internal citations and quotation marks omitted). “[A] trial court
    has broad discretion with regard to the admissibility of evidence, and is not
    required to exclude all evidence that may be detrimental to a party’s case.”
    Schuenemann v. Dreemz, LLC 
    34 A.3d 94
    , 102 (Pa.Super. 2011).              “To
    constitute reversible error, an evidentiary ruling must not only be erroneous,
    but also harmful or [unduly] prejudicial to the complaining party.” Ettinger
    v. Triangle-Pacific Corp., 
    799 A.2d 95
    , 110 (Pa.Super. 2002), appeal
    denied, 
    572 Pa. 742
    , 
    815 A.2d 1042
     (2003).       As to questions of law that
    arise in the context of evidentiary admissibility, however, our standard of
    review is de novo and our scope of review is plenary. Weaver v. Lancaster
    Newspapers, Inc., 
    592 Pa. 458
    , 465, 
    926 A.2d 899
    , 903 (2007).
    Relevant evidence is evidence having any tendency to make the
    existence of any fact that is of consequence to the determination of the
    action more or less probable than it would be without the evidence. Pa.R.E.
    401. Generally, all relevant evidence is admissible. Pa.R.E. 402. Evidence
    that might otherwise be relevant to an issue in a particular case, however,
    can still be incompetent and inadmissible because one or more established
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    rules of evidence preclude its admission. 
    Id.
     See also Commonwealth v.
    Paddy, 
    569 Pa. 47
    , 70-71, 
    800 A.2d 294
    , 308 (2002) (stating: “Evidence
    that is relevant may nevertheless be inadmissible if it violates a rule of
    competency, such as the hearsay rule”).        An example of a proposed
    admission violating a rule of competency is found in Rule 403, which limits
    the admission of relevant evidence in the following manner:
    Rule 403.    Excluding   Relevant   Evidence   for
    Prejudice, Confusion, Waste of Time, or Other
    Reasons
    The court may exclude relevant evidence if its probative
    value is outweighed by a danger of one or more of the
    following: unfair prejudice, confusing the issues,
    misleading the jury, undue delay, wasting time, or
    needlessly presenting cumulative evidence.
    Comment: Pa.R.E. 403 differs from F.R.E. 403. The
    Federal Rule provides that relevant evidence may be
    excluded if its probative value is “substantially
    outweighed.”        Pa.R.E. 403 eliminates the word
    “substantially” to conform the text of the rule more closely
    to Pennsylvania law. See Commonwealth v. Boyle, 
    498 Pa. 486
    , 
    447 A.2d 250
     (1982).
    “Unfair prejudice” means a tendency to suggest decision
    on an improper basis or to divert the jury's attention away
    from its duty of weighing the evidence impartially.
    Pa.R.E. 403. In this balancing test of probative value and undue prejudicial
    effect, the question is whether the provocative or potentially misleading
    nature of the challenged evidence outweighs its probative value. Mahan v.
    Am-Gard, Inc., 
    841 A.2d 1052
    , 1057 (Pa.Super. 2003), appeal denied, 
    579 Pa. 712
    , 
    858 A.2d 110
     (2004).        Generally, for purposes of this test,
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    “prejudice means an undue tendency to suggest a decision on an improper
    basis.      The erroneous admission of harmful or prejudicial evidence
    constitutes reversible error.”    Braun v. Target Corp., 
    983 A.2d 752
    , 760
    (Pa.Super. 2009), appeal denied, 
    604 Pa. 701
    , 
    987 A.2d 158
     (2009). See
    also Smith v. Morrison, 
    47 A.3d 131
    , 137 (Pa.Super. 2012), appeal
    denied, 
    618 Pa. 690
    , 
    57 A.3d 71
     (2012) (reiterating: “Unfair prejudice
    supporting exclusion of relevant evidence means a tendency to suggest
    decision on an improper basis or divert the jury’s attention away from its
    duty of weighing the evidence impartially”).
    Our standard of review of a trial court’s denial of a motion for JNOV is
    as follows:
    Whether, when reading the record in the light most
    favorable to the verdict winner and granting that party
    every favorable inference therefrom, there was sufficient
    competent evidence to sustain the verdict. Questions of
    credibility and conflicts in the evidence are for the trial
    court to resolve and the reviewing court should not
    reweigh the evidence. Absent an abuse of discretion, the
    trial court’s determination will not be disturbed.
    Holt v. Navarro, 
    932 A.2d 915
    , 919 (Pa.Super. 2007), appeal denied, 
    597 Pa. 717
    , 
    951 A.2d 1164
     (2008). Furthermore:
    A JNOV can be entered upon two bases: (1) where the
    movant is entitled to judgment as a matter of law; and/or,
    (2) the evidence was such that no two reasonable minds
    could disagree that the verdict should have been rendered
    for the movant. When reviewing a trial court’s denial of a
    motion for JNOV, we must consider all of the evidence
    admitted to decide if there was sufficient competent
    evidence to sustain the verdict….         Concerning any
    questions of law, our scope of review is plenary.
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    Concerning questions of credibility and weight accorded
    the evidence at trial, we will not substitute our judgment
    for that of the finder of fact…. A JNOV should be entered
    only in a clear case.
    Braun, supra at 759.
    When considering a challenge to denial of a new trial:
    Our review of the trial court’s denial of a new trial is
    limited to determining whether the trial court acted
    capriciously, abused its discretion, or committed an error
    of law that controlled the outcome of the case. In making
    this determination, we must consider whether, viewing the
    evidence in the light most favorable to the verdict winner,
    a new trial would produce a different verdict.
    Consequently, if there is any support in the record for the
    trial court’s decision to deny a new trial, that decision must
    be affirmed.
    J.W.S. Delavau, Inc. v. Eastern America Transport & Warehousing,
    Inc., 
    810 A.2d 672
    , 680 (Pa.Super. 2002), appeal denied, 
    573 Pa. 704
    , 
    827 A.2d 430
     (2003).     A new trial is granted only where the verdict is so
    contrary to the evidence as to shock one’s sense of justice, not where the
    evidence is conflicting or where the court might have reached a different
    conclusion on the same facts. Lombardo v. DeLeon, 
    828 A.2d 372
    , 374
    (Pa.Super. 2003), appeal denied, 
    579 Pa. 704
    , 
    857 A.2d 679
     (2004).
    In the instant case, Appellant objected to the introduction at trial of
    her pre-existing conditions and narcotic pain medication use in her pre-trial
    motion in limine.   The trial court definitively denied the motion on the
    merits. At trial, Appellee introduced evidence about Appellant’s pre-existing
    health conditions, and Appellant did not object. Evidentiary Rule 103(b) did
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    not require Appellant to re-raise the issue at trial to preserve it for appeal,
    once the court had definitively ruled on her pre-trial motion. See Blumer,
    
    supra;
     Thompson, 
    supra.
     Thus, the trial court erred in finding Appellant
    had waived her evidentiary claim for purposes of appeal. Instead, Appellant
    properly preserved the issue for appellate review.
    With respect to the merits of the issue concerning the admission at
    trial of Appellant’s prior health conditions and medication use, the court
    reasoned as follows:
    The evidence of Appellant’s prior medication use, although
    prejudicial, was not unfairly prejudicial.      Appellant’s
    condition immediately preceding the accident in question
    was that she was taking large amounts of narcotic pain
    medication for constant daily pain to her abdomen and
    pelvis which rendered her totally unable to work for more
    than a decade and limited certain daily activities.
    Appellant’s medical records, as well as her own testimony,
    show that she was taking on average 360 mgs of
    Oxycodone per day in the days, weeks, and months before
    the accident, and that the dosages remained unchanged
    after the accident. This testimony is critical, and it is
    unrebutted. If the jury were only permitted to hear that
    Appellant was taking roughly 360 mgs of pain medication
    post-accident, without knowing that she was already
    taking the same amount pre-accident for a chronic
    condition, the jury could reach the improper conclusion
    that Appellant was taking said medication due solely to her
    alleged spinal injury caused by the accident, when in fact,
    she was already taking the same dosages previously.
    Surely, such testimony would be misleading at best and
    disingenuous at worst. In other words, Appellant’s use of
    pain medication was relevant to show that she was indeed
    pr[e]scribed the same amount of medication both before
    and after the accident and that her current medication
    usage was ongoing rather than a result of the underlying
    accident. This information would allow the jury to focus on
    the medical testimony regarding Appellant’s alleged
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    injuries and other relevant factors as the basis for its
    decision rather than simply drawing an improper inference
    that the accident solely caused Appellant’s present use of
    pain medication.
    With this legal framework in mind, the admission of
    Appellant’s prior medication use was not unfairly
    prejudicial insofar as it was relevant to Appellant’s
    condition both prior to and following the accident.
    (Trial Court Opinion, filed 4/10/15, at 6-7). We agree. The introduction of
    this evidence concerning Appellant’s prior health conditions and narcotic pain
    medication use was not so prejudicial to Appellant’s case that it would
    warrant exclusion and, therefore, a new trial.    Appellant’s contention that
    she is an “eggshell skull” plaintiff does not mean Appellee must pay for pre-
    accident conditions. Accordingly, Appellee was entitled to introduce at trial
    evidence of Appellant’s prior ailments and use of pain medications for the
    purpose stated. See Smith, 
    supra;
     Braun, 
    supra;
     Mahan, supra. Due to
    this disposition, we conclude the trial court properly denied Appellant’s post-
    verdict request for a new trial without this evidence. See J.W.S. Delavau,
    Inc., supra.
    With respect to Appellant’s challenge to the denial of JNOV, the court
    reasoned:
    Under Rule 227.1(b), post-trial relief may not be granted
    unless the basis for such relief was raised at trial by some
    appropriate method, and the post-trial motion expressly
    identifies “how the grounds were asserted in pre-trial
    proceedings or at trial.”
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    In the case sub judice, Appellant’s counsel waived his right
    to move for [JNOV] when he failed to move for a directed
    verdict or object to the verdict at the close of trial.
    *     *      *
    In the case at bar, Appellant importunes this [c]ourt to
    grant the Motion for [JNOV] because evidence of
    Appellant’s previous chronic pain and medication use was
    highly prejudicial. This [c]ourt need not further explicate
    its unabashed rejection of Appellant’s Motion for Post-Trial
    Relief and subsequent brief because, after a meticulous
    reading of Appellant’s motion and supporting documents,
    this [c]ourt finds absolutely no evidence that the issues
    Appellant’s counsel presents in his Motion were preserved
    at trial.
    (Trial Court Opinion at 4-5) (internal citations omitted). We agree Appellant
    waived her JNOV claim. Here, Appellant made no request for a binding jury
    charge or a directed verdict at the appropriate time at trial’s end; and her
    belated request for JNOV in post-verdict motions was untimely. Thus, the
    court properly refused to grant Appellant’s request for JNOV and a new trial
    on damages.     See Haan v. Wells, 
    103 A.3d 60
    , 67 (Pa.Super. 2014)
    (explaining to preserve right to request JNOV post-trial, party must first
    request binding charge to jury or move for directed verdict at trial).
    Accordingly, we affirm.
    Judgment affirmed.
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    J-A28010-15
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 12/11/2015
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