Kloss, D. v. Colaiacovo, L. ( 2021 )

J-A18023-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DAVID M. KLOSS : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
LYNN A. COLAIACOVO, M.D. AND : No. 1360 WDA 2020
LYNN A. COLAIACOVO, M.D., P.C. :
D/B/A HERMITAGE DERMATOLOGY :
Appeal from the Judgment Entered December 21, 2020
In the Court of Common Pleas of Mercer County Civil Division at No(s):
No. 2017-3589
BEFORE: OLSON, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY NICHOLS, J.: FILED: SEPTEMBER 27, 2021
Appellant David M. Kloss appeals from the judgment entered in favor of
Appellees Lynn A. Colaiacovo, M.D. (Dr. Colaiacovo) and Lynn A. Colaiacovo,
M.D., P.C. d/b/a Hermitage Dermatology, following the denial of his post-trial
motion for a new trial. Appellant contends that trial court erred in denying a
new trial because the trial court abused its discretion when it refused to permit
the jury to have physical copies of digital photographic exhibits during
deliberations. We affirm.
By way of background, Appellant testified that he began treating with
Dr. Colaiacovo in January of 2011. N.T., 11/18/20, at 47. During a follow-up
visit in March of 2011, Appellant asked Dr. Colaiacovo about a red bump that
Appellant had on his nose, and Dr. Colaiacovo prescribed Retin-A, a topical
ointment. Id. at 49-50. Dr. Colaiacovo examined Appellant again in August
J-A18023-21
of 2011, and Appellant testified that Dr. Colaiacovo was not concerned about
the bump. Id. at 51. In April of 2013, Appellant believed that the bump had
not improved, and he returned to see Dr. Colaiacovo. Id. at 53-54. Appellant
testified that Dr. Colaiacovo was not worried about the red bump. Id.
Appellant stated that four years later, in April of 2017, he opted to visit
another dermatologist, Dr. Jennifer Zahniser. Id. at 56. Dr. Zahniser took a
biopsy from Appellant’s nose. Id. at 57. The biopsy revealed a form of cancer,
basal cell carcinoma. Id. at 63. Appellant then treated with Dr. David Cowan,
who performed several surgeries and removed the cancerous portions of
Appellant’s nostril and facial tissue. Id. at 64-69.
Appellant subsequently filed a complaint against Appellees on December
7, 2017. Complaint, 12/7/17. In his complaint, Appellant alleged that Dr.
Colaiacovo breached the standard of care by failing to perform a biopsy on the
red bump on Appellant’s nose, which was later determined to be the cancerous
lesion and removed by Dr. Cowan, and Appellant had suffered damages as a
result of Appellees’ negligence. Id. at ¶¶ 9-29. The trial court summarized
the relevant procedural history of this matter as follows:
A jury trial in this matter was held from November 17, 2020 until
November 20, 2020. The jury was selected on November 17th,
the trial began on November 18th, and the trial concluded on
November 20th after which the jury deliberated and eventually
returned a verdict in favor of Appellees. The verdict slip dated
November 20th was filed on November 23, 2020. On November
30, 2020, Appellant filed a motion for post-trial relief requesting
a new trial because of this court’s alleged error in failing to send
an exhibit consisting of hardcopies of photographs out with the
jury during its deliberations. The court had instead allowed the
-2-
J-A18023-21
jury to review digital images matching the photographs, which
digital images were likewise shown during trial, on a screen in
open court during a break from jury deliberations. The motion for
post-trial relief was denied by an order dated and filed on
December 2, 2020. A praecipe to enter judgment against
Appellant on the verdict was filed by Appellees on December 21,
2020. Appellant filed a notice of appeal to the Superior Court on
December 23, 2020. On the same date, this court ordered
Appellant to file a concise statement of errors complained of on
appeal, which was filed on January 11, 2021. A post-appeal
conference was held on January 15, 2021.
Trial Ct. Op., 1/28/21, at 1-2 (some formatting altered).
On appeal, Appellant raises the following issue:
Is [Appellant] entitled to a new trial where, over objection, the
trial court did not provide the jury during its deliberations with an
exhibit consisting of several photographs that had been entered
into evidence without objection and was specifically requested by
the jury?
Appellant’s Brief at 4.
Appellant argues that “a heavily contested issue at trial was whether the
red cyst-like bump that Dr. Colaiacovo noted in March 2011 was the same one
diagnosed as cancerous by Dr. Zahniser in 2017.” Id. at 19. Appellant
contends that there was no reason for the trial court’s refusal to allow the jury
to review physical copies of the photos. Id. at 20. Additionally, Appellant
states that the trial court did not mention the COVID-19 pandemic as an
explanation for refusing to allow the jury to review hardcopies until the trial
court drafted its Rule 1925(a) opinion. Id. Appellant asserts that if the jury
had hardcopies to review, it would have been able to determine that the red
bump noted by Dr. Colaiacovo in March 2011 remained on Appellant’s nose
-3-
J-A18023-21
and was the same spot later diagnosed as cancerous in 2017. Id. at 24.
Accordingly, Appellant argues that a new trial is warranted. Id.
Appellees counter that the trial court did not commit an error of law or
an abuse of discretion and notes that the jury was permitted to view the
photos. Appellees’ Brief at 4. Specifically, upon request during its
deliberations, the jury was permitted to view the same digital images that it
viewed during the trial. Id. Appellees also point out that the jury foreperson
indicated, on the record, that the jury was satisfied with the method and
manner in which it viewed the photographs. Id. (citing N.T., 11/20/20, at
88-93). Appellees emphasize that the trial court never denied the jury’s
request to view the photographs. Id. at 7. Further, Appellees dispute
Appellant’s assertion that the trial court did not mention the COVID-19
pandemic until the court filed its Rule 1925(a) opinion. Id. Appellees point
out that the trial court specifically spoke about COVID-19, masks, and social
distancing when it instructed the jury on the manner in which it would review
the photographs. Id. (citing N.T., 11/20/20, at 86-87). Therefore, Appellees
conclude that Appellants are not entitled to relief.
Our standard of review in considering a trial court order denying a
motion for a new trial is as follows:
When assessing the trial court’s denial of a motion for new trial,
we apply a deferential standard of review. The decision whether
to grant or deny a new trial is one that lies within the discretion
of the trial court. We will not overturn such a decision unless the
trial court grossly abused its discretion or committed an error of
law that controlled the outcome of the case. Upon review, the
test is not whether this Court would have reached the same result
-4-
J-A18023-21
on the evidence presented, but, rather, after due consideration of
the evidence found credible by the trial court, and viewing the
evidence in the light most favorable to the verdict winner, whether
the court could reasonably have reached its conclusion.
B & L Asphalt Industries, Inc. v. Fusco, 753 A.2d 264, 267 (Pa. Super.
2000) (internal citations and quotation marks omitted). “An abuse of
discretion exists when the trial court has rendered a judgment that is
manifestly unreasonable, arbitrary, or capricious, has failed to apply the law,
or was motivated by partiality, prejudice, bias or ill-will.” Burton-Lister v.
Siegel, Sivitz & Lebed Assocs., 798 A.2d 231, 238 (Pa. Super. 2002)
(citation omitted). We note that “[t]he general rule in Pennsylvania is that
exhibits properly admitted into evidence, with the exception of depositions
and transcripts of testimony, may, within the discretion of the trial court, be
sent out with the jury.” Kearns v. Clark, 493 A.2d 1358, 1362 (Pa. Super.
1985) (citation omitted); see also Pa.R.C.P. 223.1(d)(3) (stating that the
court may make exhibits available to the jury during deliberations).
Here, the trial court addressed Appellant’s claim as follows:
The two published cases cited by Appellant in his concise
statement of errors complained of on appeal are distinguishable
from the instant case. Chitwood v. Philadelphia R.R.Co., 109
A. 645, 646 (Pa. 1920) involved an action for injuries sustained
by a passenger while boarding a train, and our Supreme Court
held that the trial court’s refusal of a request to let the jury take
a plan and photographs exhibiting the place of the accident was
prejudicial and a new trial was ordered. Id. The Supreme Court
did state that “[t]here might be a case where a refusal to send
exhibits out with the jury would be justified, but there must be [a]
special reason to warrant it.” Id. In the instant case, the jury
was allowed to review the photographs in question on a screen in
the courtroom during a break from its deliberations to the extent
-5-
J-A18023-21
that it agreed, through its foreperson, that it was satisfied. [The
record reflects the following exchange:]
The Court: All right. Madam Foreperson, does that answer
your question about the pictures?
The Foreperson: Yes.
[N.T., 11/20/20, at 93-94].
There was a special reason for not sending the hardcopies of the
photographs out with the jury and that was the [COVID]-19
pandemic and the fact that the jury had not seen hardcopies of
the photographs at any point during the presentation of evidence.
Noreika v. Pennsylvania Indemnity Corp., 5 A.2d 619 (Pa.
Super. 1939) involved an action by an insured against an
automobile insurer, and the Superior Court held that if files from
a previous lawsuit by injured parties against the insured and the
insurance policy were specifically requested by the jury then the
request should have been granted unless there were special
reasons for refusing. The materiality of the files or the policy was
not questioned when offered into evidence. Id. The Superior
Court explained that the trial court has discretion over whether
properly admitted documents shall be sent out with a jury but
ordered a new trial under the circumstances. Id. In the instant
case, the court granted the jury’s request insofar as it was allowed
to see the photographs in question during a break from its
deliberations on a screen in the courtroom to the extent that it
was satisfied. See N.T., 11/20/20, at 93-94. Again, the [COVID]-
19 pandemic was a special reason for not sending the hardcopies
of the photographs out with the jury.
Appellant also cites the unpublished opinion of Schrader v.
Ameron Int’l Corp., 2609 EDA 2018, 2020 WL 1460697 (Pa.
Super., filed Mar. 24, 2020) (unpublished mem.) in his concise
statement of errors complained of on appeal. Although this court
is mindful of the Superior Court’s rules about citing unpublished
opinions,[1] the court will address the case for the sake of
thoroughness because it was raised by Appellant. The Superior
Court considered whether the trial court had committed a
____________________________________________
1 See 210 Pa. Code. § 65.37 (providing that non-precedential decisions filed
after May 1, 2019, may be cited for their persuasive value). See also
Pa.R.A.P. 126(b).
-6-
J-A18023-21
prejudicial error or abused its discretion by refusing to provide the
jury with a copy of a properly admitted exhibit when the jury
specifically requested to see the exhibit during its deliberations.
Id. The Schrader Court held that the trial court abused its
discretion in denying the jury’s specific request to view a certain
piece of evidence without conducting any analysis of its import or
offering any reasonable basis for its ruling. Id. The mere reliance
upon the trial court’s preference that jurors depend upon their
memories and the defendant’s speculation that jury deliberations
may have been prolonged by giving the jury the evidence was
unreasonable under the circumstances. Id. Finding that the
verdict may have been affected, the Superior Court held that the
trial court’s ruling was reversible error warranting a new trial. Id.
As above, the Schrader case is distinguishable from the instant
case in that this court allowed the jury to review the photographs
in question during a break from its deliberations, and the court
submits that the [COVID]-19 pandemic is a reasonable basis for
not giving the jury the hardcopies. Another distinction is that any
prejudice in the instant case would result from the manner that
the jury viewed the photographs rather than an inability to view
the photographs. The Court submits that any prejudice would
thus be speculative and refuted by the foreperson’s statement to
the effect that the jury was satisfied after viewing the photographs
on a screen in the courtroom.
The court was careful to follow the best practices for mitigating
the spread of [COVID]-19 during the trial. For example, the jury
deliberated in another courtroom as opposed to the usual smaller
room designated for jury deliberations so that the jurors could
better practice social distancing. When the Court was hearing
argument concerning whether to send the hardcopies of
photographs out with the jury, counsel for Appellant stated: “Your
Honor, oftentimes — if this wasn’t COVID, I would have passed
around pictures or photographs, but that’s not realistic right now
to hand them copies.” N.T., 11/20/20, at 79. The court
considered in its decision that if the hardcopies had gone to the
jury, then multiple jurors may have touched the same surface and
the jurors may have huddled closely together to simultaneously
look at the same photograph(s). The manner in which the jurors
ultimately viewed the photographs during a break from their
deliberations was suggested by counsel for Appellant.[fn1] Id. at
90 (“If we just form a single line with social distancing, people
could walk, see the screen, and then continue around, just around
the courtroom.”).
-7-
J-A18023-21
[fn1] The trial court recognizes that this was an alternative to
Appellant’s preference of giving the hardcopies of the
photographs to the jury.
Trial Ct. Op. at 2-5 (some formatting altered).
On this record, we agree with the trial court’s analysis that it did not
refuse the jury’s request to view the photographic exhibits. Rather, the trial
court exercised its discretion and opted to display the photos on a video screen
for the jury as opposed to sending hardcopies into the jury room. In addition
to explaining that during trial the jury only viewed the photos in digital format
on a video screen, the trial court also noted its concerns about the
transmission of COVID-19 in connection with the jury’s request to view the
exhibits. Therefore, we reject Appellant’s assertion that the trial court failed
to cite COVID-19 concerns as a reason for refusing to have jurors handle
physical copies of the photos until it mentioned COVID-19 in the Rule 1925(a)
opinion. See N.T., 11/20/20, at 86-87.
For these reasons, we conclude that there was no abuse of discretion in
the trial court’s refusal to allow the jury to review and physically handle
hardcopies of the photos. See Kearns, 493 A.2d at 1362; see also Pa.R.C.P.
223.1(d)(3). As noted previously, the jury viewed the photos in digital format
on a video screen at trial, and upon request during deliberations, the jury was
permitted to again review the photos on a video screen. Therefore, we find
no abuse of discretion or error of law that controlled the outcome of the case.
See B & L Asphalt Industries, Inc., 753 A.2d at 267. Accordingly, we
-8-
J-A18023-21
affirm the order denying Appellant’s motion for a new trial and the judgment
entered on the verdict.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/27/2021
-9-