Vitez, W. v. Marmaxx Operating Corp.

J-S24017-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
WILLIAM B.C. VITEZ AND DAWN A. IN THE SUPERIOR COURT OF
VITEZ, PENNSYLVANIA
Appellants
v.
MARMAXX OPERATING CORP., AND THE
T.J.X. COMPANIES, INC.,
Appellee No. 1617 MDA 2015
Appeal from the Judgment Entered September 15, 2015
In the Court of Common Pleas of Lebanon County
Civil Division at No(s): 2010-00506
BEFORE: GANTMAN, P.J., BOWES, AND MUSMANNO, JJ.
MEMORANDUM BY BOWES, J.: FILED APRIL 14, 2016
William B.C. and Dawn A. Vitez appeal from the judgment entered
against them after a jury found in favor of Appellees, Marmaxx Operating
Corporation and The T.J.X. Companies, Inc., in this personal injury action
based on negligence. We affirm.
Appellants instituted this action by writ of summons on March 8, 2010,
seeking damages for injuries that they allegedly sustained on March 9, 2008,
at the T.J. Maxx store located in Lebanon, Pennsylvania, which is owned and
operated by Appellees. Appellants averred that at approximately 3:00 p.m.
on the day in question, automatic doors at the entrance to that store
prematurely closed on Mr. Vitez, injuring his right hand, arm, and shoulder.
J-S24017-16
Appellants maintained that the accident caused injuries to Mr. Vitez that
affected his ability to earn a living as a violinist.
The matter proceeded to a jury trial. Mr. and Mrs. Vitez testified as
follows. There were two sets of doors to the entrance to the store. They
manually opened the first set. The second set was automatic, opened
toward the entrance rather than toward the inside of the store, and abruptly
closed on Mr. Vitez as he was walking through them. The door struck his
right hand, arm, and shoulder, and caused him to spill coffee that he was
holding. Mr. Vitez reported the accident to the store manager, Thomas
Struebel. Appellants represented that Mr. Struebel told them that there
were “problems with that door before. He was going to put a sign on the
door to be careful and it’s not working properly.” N.T. Trial, 8/11/15, at 16.
Appellants said that Mr. Struebel apologized for the accident.
Mr. Struebel, the store manager for the T.J. Maxx store from April
2004 through February 2009, provided contrary evidence than that proffered
by Appellants. During his videotaped deposition taken for purposes of trial,
Mr. Struebel explained that the door in question was not fully automatic. It
was “a push-assist door, you actually have to push on the handle and once it
feels your pressure on it, it would automatically open for you.” Deposition of
Thomas Struebel, 8/4/15, at 7. That witness stated, “I don't remember
having any problems with” either set of doors at the entrance to the
Lebanon T.J. Maxx. Id. at 8.
-2-
J-S24017-16
Mr. Struebel acknowledged meeting with Mr. Vitez on March 9, 2008,
and said that Mr. Vitez told him that “he was coming into the door and hit
his hand on the [inside entrance] door.” Id. at 8. Mr. Vitez completed an
incident report and photographed the door, which had coffee on it. Mr.
Struebel noticed that Mr. Vitez’s hand was red but could not ascertain if it
was from the spilled coffee or from being struck.
Thereafter, Mr. Struebel went back “to clean the door off and checked
it to see if it was operating properly.” Id. at 9. Mr. Struebel reported that
the door “operated fine” in that it “was opening and closing regularly.” Id.
Mr. Struebel was asked and answered the following questions:
Q. Mr. Struebel, with respect to the inner entranceway door that
we were talking about, during the course of the day in question
on March 8, 2008, were you aware of that door malfunctioning
or not acting properly at any point before Mr. Vitez reported his
incident to you?
A. No.
Q. Do you have any recollection of that door malfunctioning or
not acting properly the day before this incident occurred?
A. No.
Q. Do you have any recollection as you're sitting here today of
that door not acting properly or malfunctioning a week before
this incident occurred?
A. No.
Q. Do you have any recollection or any knowledge of that door
not operating properly a month before this incident in March
2008?
-3-
J-S24017-16
A. No.
Id. at 10-11. Finally, Mr. Struebel said that there was no instance of the
door failing to properly function between January and March 2008. He also
stated that he did not call for maintenance on the door on March 9, 2008
because it had not malfunctioned previously and was operating properly
after Mr. Vitez left. Mr. Struebel also testified that he was ninety-nine
percent sure that the doors in question did not open toward the entrance
but, instead, opened toward the inside of the store and that Appellants were
incorrect in reporting that the automatic doors opened toward rather than
away from them.
After the incident, Mr. Vitez went to the emergency room at a local
hospital, where he complained about pain in his right hand radiating into his
fingers and arms. His right hand was x-rayed and displayed no fracture. He
was diagnosed with a bruise to the right hand. At that time, he did not
complain of pain in the right shoulder. Mr. Vitez began to experience pain in
the right shoulder, and he presented medical testimony indicating that he
had a pre-existing torn rotator cuff in the right shoulder that was aggravated
by the accident.
The jury heard evidence that in June 2007, nine months before this
incident, Mr. Vitez slipped, fell, and landed on the same hand that was
purportedly struck by the door at the T.J. Maxx store. In October 2007, five
months before the alleged accident herein, Mr. Vitez suffered injuries to his
-4-
J-S24017-16
right shoulder when a door at Hershey Hospital closed on him. Mr. Vitez was
in a motor vehicle accident in 2000, instituted a lawsuit, and claimed therein
that the accident had affected his ability to play the violin.
The jury concluded that Appellees were not negligent, and this appeal
followed denial of Appellants’ post-trial motions. They purport to raise ten
issues on appeal:
1. Did the trial court err in denying Plaintiffs' Motion for Post-
Trial Relief and failing to award judgment notwithstanding the
verdict in favor of Plaintiffs or award a new trial in that the
Defendant's store manager, Thomas Struebel, admitted to both
Plaintiffs at the time of the incident that he had been having
problems with the door that struck Mr. Vitez and that he had
intended to put up a warning sign but had not yet done so. Mr.
Struebel did not deny making the admission to the Plaintiffs in
his testimony at trial and the admission constitutes a failure on
the part of the Defendant to comply with its duty under the law
and as a result Defendant was negligent as a matter of law?
2. Did the trial court err in refusing to award sanctions against
Defendant, including a finding of liability as a matter of law, for
spoliation of evidence, namely replacing the doors in question
while the litigation was pending without notice to Plaintiff’s
counsel, after Plaintiff's counsel had asked to set up an
inspection time, and before Plaintiffs and Plaintiffs' expert had an
opportunity to inspect them, and the Defendant failing to
produce in discovery photographs taken of the doors in question
and Plaintiff's injuries by the store manager on the date of the
incident?
3. Did the trial court err in denying Plaintiffs' request for
standard points for charge 5.60 and 5.70 with respect to the
Defendant's spoliation of evidence in replacing the doors in
question while the litigation was pending and before Plaintiffs
and Plaintiffs' expert had an opportunity to inspect them, and
the Defendant failing to produce in discovery photographs taken
of the doors in question and Plaintiff's injuries by the store
manager on the date of the incident?
-5-
J-S24017-16
4. Did the trial court err in denying Plaintiffs' request for
standard point for charge 13.30 which is the res ipsa loquitur
charge?
5. Did the trial court err in granting Defendant's Motion in Limine
and limiting the testimony of Plaintiffs' expert witness, Len
McCuen, in his testimony at trial?
6. Did the trial court err in prohibiting the testimony at trial of
Plaintiffs' engineering and architecture expert, Len McCuen,
regarding the failure of Defendant to comply with manufacturing,
safety, and industry standards with respect to the inspection and
maintenance of the doors in question?
7. Did the trial court err in refusing to allow the Plaintiff and
Plaintiffs' expert to present evidence regarding the full service
record history with respect to the entrance and exit doors in
question especially in light of Defendant's admission that it had
no regular inspection or maintenance of the doors. (Plaintiffs'
exhibit 3)?
8. Did the trial court err in limiting the Plaintiffs' cross
examination of Thomas Struebel, the store manager, with
respect to other service calls regarding the doors in question in
the front of the store prior to the date of Plaintiffs incident and
failing to allow cross-examination with respect to Mr. Struebel's
involvement in adjusting the timing on the doors in question
immediately subsequent to the incident in question?
9. Did the trial court err in sustaining Defendant's counsel's
objection to Plaintiffs' counsel's closing argument regarding the
replacement of the doors by Defendant which had been testified
to during the trial without objection?
10. Did the trial court err in permitting the Defendant to have a
second defense medical expert examination of the Plaintiff?
Appellants’ brief at 2-4. Issues five and six are identical and will be resolved
together.
-6-
J-S24017-16
Appellants’ first claim is that the trial court should have entered
judgment in their favor due to alleged admissions made by Mr. Struebel.
When reviewing the propriety of an order granting or
denying judgment notwithstanding the verdict, we must
determine whether there is sufficient competent evidence to
sustain the verdict. We must view the evidence in the light most
favorable to the verdict winner and give the verdict winner the
benefit of every reasonable inference arising therefrom while
rejecting all unfavorable testimony and inferences. We apply
this standard in all cases challenging the grant of a motion for
J.N.O.V.
Pennsylvania law makes clear that a judgment
notwithstanding the verdict is proper only in clear cases where
the facts are such that no two reasonable minds could disagree
that the verdict was improper. Questions of credibility and
conflicts in evidence are for the fact-finder to resolve. This Court
will not substitute its judgment based upon a cold record for that
of the fact-finder where issues of credibility and weight are
concerned.
Dubose v. Quinlan, 125 A.3d 1231, 1237-38 (Pa.Super. 2015) (citations
omitted).
Appellees’ liability herein was premised upon the duty imposed under
Restatement (Second) of Torts § 341A, which is the duty owed by a
possessor of land to a business invitee. As we recently observed, in
Carrender v. Fitterer, 469 A.2d 123 (Pa. 1983), our Supreme Court
outlined that:
Possessors of land owe a duty to protect invitees from
foreseeable harm. Restatement (Second) of Torts, §§ 341A, 343
& 343A. With respect to conditions on the land which are known
to or discoverable by the possessor, the possessor is subject to
liability only if he,
-7-
J-S24017-16
“(a) knows or by the exercise of reasonable care
would discover the condition, and should realize that
it involves an unreasonable risk of harm to such
invitee, and
(b) should expect that they will not discover or
realize the danger, or will fail to protect themselves
against it, and
(c) fails to exercise reasonable care to protect them
against the danger.”
Restatement, supra, § 343.
Reinoso v. Heritage Warminster SPE LLC, 108 A.3d 80, 85 (Pa.Super.
2015) (en banc).
Appellants assert that judgment should have been entered in their
favor because Mr. Struebel admitted to them that he knew about the
condition of Appellees’ property, that the inside entrance automatic doors
were shutting prematurely and striking customers. In seeking judgment
n.o.v., Appellants first rely upon their own testimony as to a purported
admission from Mr. Struebel. Appellants’ brief at 12 (“William Vitez testified
at trial that the store manager, Thomas Struebel, admitted that there had
been problems with the door prior to the incident in question, but he had not
had a chance to put up a warning sign. Dawn Vitez, likewise, testified to the
same admission by Mr. Struebel.”).
Appellants’ reliance upon their own testimony is misguided. Pursuant
to the standard of review in the judgment n.o.v. context, we view the
evidence in the light most favorable to the verdict winner, and we do not
-8-
J-S24017-16
overturn the credibility determinations of the factfinder. By its verdict, the
jury found this testimony by Mr. and Mrs. Vitez incredible, and we likewise
must discount it. Additionally, Appellees adduced proof that the doors were
functioning properly before and after 3:00 p.m. on March 9, 2009, which we
must credit.
Appellants suggest that “Mr. Struebel at no time either in his discovery
deposition or in the trial testimony, denied making the statements in
question.” Id. This suggestion is a mischaracterization of Mr. Struebel’s
testimony, which was that there had been no problems with the door from
January 2008 to March 2008. He also said that he did not ask a
maintenance company to look at the door after March 9, 2008, because he
operated the door after Mr. Vitez said that it closed on him. The door was
working properly, as it had in the past. Appellants read excerpts from a
deposition that Mr. Struebel gave prior to his videotaped deposition. In the
previous deposition, Mr. Struebel stated that he did not remember making
any of the statements attributed to him by Appellants.
Since Mr. Struebel testified that the door did not malfunction before
the incident in question, he would not have apologized to Appellants, would
not have said that there was trouble with the door prior to March 9, 2008,
and would not have said that he meant to place warning signs at the
entrance. Mr. Struebel’s testimony unquestionably constituted a denial that
he admitted to Appellants that the door was not functioning properly just
-9-
J-S24017-16
prior to March 9, 2008. We therefore reject Appellants’ request for
judgment n.o.v.
Appellants’ second and third contentions relate to the doctrine of
spoliation. They fault the trial court with refusing to sanction Appellees
under that doctrine since the doors that purportedly malfunctioned were
replaced. Appellants, in their second issue, contend that an appropriate
sanction in this case was entry of judgment as to liability in their favor. In
their third allegation raised on appeal, they suggest that, in the alternative,
the jury should have been given the spoliation charge.
As we observed in Creazzo v. Medtronic, Inc., 903 A.2d 24, 28
(Pa.Super. 2006) (quoting Mount Olivet Tabernacle Church v. Edwin L.
Wiegand Division, 781 A.2d 1263, 1269 (Pa.Super. 2001)), “When
reviewing a court's decision to grant or deny a spoliation sanction, we must
determine whether the court abused its discretion.” Both the decision to
sanction a party for destroying evidence as well as the type of sanction
imposed is within the trial court’s discretion. Creazzo, supra.
Spoliation sanctions are imposed due to the “the common sense
observation that a party who has notice that evidence is relevant to litigation
and who proceeds to destroy evidence is more likely to have been
threatened by that evidence than is a party in the same position who does
not destroy the evidence.” Id. at 29 (quoting Mount Olivet, 781 A.2d at
1269). One remedy for the destruction of evidence within a party’s control
- 10 -
J-S24017-16
is to instruct the jury that an adverse inference may be drawn against the
party. Creazzo, supra. At the other end of the spectrum, the trial court
may impose liability against that party. Id.When determining whether to sanction a party for spoliation as well as
the nature of the sanction to impose, the trial court must consider three
factors:
(1) the degree of fault of the party who altered or destroyed the
evidence; (2) the degree of prejudice suffered by the opposing
party; and (3) whether there is a lesser sanction that will avoid
substantial unfairness to the opposing party and, where the
offending party is seriously at fault, will serve to deter such
conduct by others in the future.
Creazzo, supra at 29 (quoting Mount Olivet, 781 A.2d at 1269–70). The
“evaluation of the first prong, ‘the fault of the party who altered or
destroyed the evidence,’ requires consideration of two components, the
extent of the offending party's duty or responsibility to preserve the relevant
evidence, and the presence or absence of bad faith.” Creazzo, supra at 29
The duty of the offending party to preserve the evidence is established when
that party knows that litigation is pending or likely and that it is foreseeable
that destruction of the evidence would prejudice the other party. Id.Herein, the evidence as to spoliation was as follows. In July, 2011,
three years and four months after the accident, the T.J. Maxx store in
question was renovated. As part of those renovations, the doors that
allegedly closed on Mr. Vitez were replaced. Appellants’ lawyer, Karl R.
- 11 -
J-S24017-16
Hildebrand, Esquire, filed an affidavit indicating that he verbally discussed
examining the accident scene with Appellees’ counsel in June, 2011, fifteen
months after this case was filed. Appellants did not formally ask to examine
the doors until December 16, 2011, twenty-one months after this action was
instituted, and five months after the renovation work, when they
disseminated a letter demanding an inspection.
We conclude that the trial court did not abuse its discretion in refusing
to sanction Appellees under the facts at bar. It found both that Appellees
bore no fault in the removal of the door and that Appellants suffered no
prejudice due to their inability to inspect it. We concur with both findings.
Appellees did not intentionally destroy the automatic doors to prevent
Appellants from inspecting them; rather, they were replaced as part of a
renovation project that occurred more than three years after the March 9,
2008 incident and sixteen months after this lawsuit was filed. Appellants
waited fifteen months after filing this case to informally discuss an inspection
with Appellees’ counsel, who would have no apparent reason to know about
corporate plans to renovate the store. Appellants did not set a date for the
inspection, which could have occurred in the month between the alleged
June 2011 conversation and the July 2011 renovation.
Appellants’ written request to inspect the doors was made five months
after the renovations, and twenty-one months after the action was
instituted. Under the circumstances, Appellees had no reason to believe that
- 12 -
J-S24017-16
Appellants sincerely wanted to examine the doors when they decided to
renovate their store.
Fifteen months after this action was instituted, they determined that
the need to examine the property was so imperative that liability based on
spoliation should be imposed on Appellees. Conveniently, that demand was
sent after the doors were removed. If the necessity for an examination of
the accident scene was so compelling, Appellants should have made their
request in a timely manner. Since twenty-one months had passed from the
filing of this litigation before Appellants sent a written request to examine
the doors, Appellees bore no fault for purposes of spoliation when they
decided to go forward with renovations.
Additionally, Appellants were not prejudiced by their inability to inspect
the doors in December 2011, which was more than three and one-half years
after the accident occurred. The spoliation involved in this case does not
pertain to the destruction of a static object that malfunctioned, such as a
car. Rather, the product was in continual use after March 9, 2008. As of
December 16, 2011, when the inspection demand was made, the automatic
doors would not have been in the same condition as they were in when Mr.
Vitez was supposedly injured by them. Inspection is a non-issue in this case
because it would have been of no value.
Specifically, this action was not a products liability case against the
manufacturer or distributor of a purportedly defective product. In such a
- 13 -
J-S24017-16
case, a plaintiff normally must have access to the product to prove that it
was defective. In the present matter, the issues at trial were whether the
door had closed prematurely on customers before the March 9, 2008
incident and whether Appellees had notice that it had done so. An
inspection conducted in December 2011 would not have established either of
those critical issues. Appellants have advanced concepts pertinent to
malfunctioning products and attempted to engraft them in this premises
liability case.
As the trial court noted, Appellants had the maintenance records for
the door in question so that they could establish the existence of any
malfunction and notice thereof prior to March 9, 2008. They also presented
expert testimony as to Appellees’ duty to inspect and maintain the door, as
was pertinent to whether Appellees should have known the door was faulty.
Hence, we conclude that the trial court did not abuse its discretion in
refusing to sanction Appellees to any extent under the doctrine of spoliation,
and we therefore reject Appellants’ second and third claims.
Appellants’ fourth complaint is that the trial court erred in refusing to
instruct on the doctrine of res ipsa loquitur. Our standard of review in this
context is as follows:
Our standard of review when considering the adequacy of
jury instructions in a civil case is to “determine whether the trial
court committed a clear abuse of discretion or error of law
controlling the outcome of the case.” Stewart v. Motts, 539 Pa.
596, 654 A.2d 535 (1995). It is only when “the charge as a
- 14 -
J-S24017-16
whole is inadequate or not clear or has a tendency to mislead or
confuse rather than clarify a material issue” that error in a
charge will be found to be a sufficient basis for the award of a
new trial. Id. at 540; Ferrer v. Trustees of University of
Pennsylvania, 573 Pa. 310, 345, 825 A.2d 591, 612 (2002);
see also Tindall v. Friedman, 970 A.2d 1159, 1175 (Pa.Super.
2009).
Pringle v. Rapaport, 2009 PA Super 171, ¶ 12, 980 A.2d 159, 165
(Pa.Super. 2009) (en banc). We outline the parameters of the res ipsa
loquitur doctrine:
Res ipsa loquitur allows juries to infer negligence from the
circumstances surrounding the injury. Res ipsa loquitur,
meaning literally “the thing speaks for itself,” is “a shorthand
expression for circumstantial proof of negligence – a rule of
evidence.” Gilbert v. Korvette, Inc., 457 Pa. 602, 327 A.2d 94,
99 (1974). It is a rule that provides that a plaintiff may satisfy
his burden of producing evidence of a defendant's negligence by
proving that he has been injured by a casualty of a sort that
normally would not have occurred in the absence of the
defendant's negligence. William L. Prosser, Law of Torts §§ 39,
40 (4th ed. 1971) (calling res ipsa loquitur a “simple matter of
circumstantial evidence”). As noted, the Restatement (Second)
of Torts § 328D formulates the evidentiary theory of res ipsa
loquitur as follows:
(1) It may be inferred that harm suffered by
the plaintiff is caused by negligence of the
defendant when
(a) the event is of a kind which ordinarily
does not occur in the absence of
negligence;
(b) other responsible causes, including
the conduct of the plaintiff and third
persons, are sufficiently eliminated by
the evidence; and
- 15 -
J-S24017-16
(c) the indicated negligence is within the
scope of the defendant's duty to the
plaintiff.
(2) It is the function of the court to determine
whether the inference may reasonably be drawn by
the jury, or whether it must necessarily be drawn.
(3) It is the function of the jury to determine
whether the inference is to be drawn in any case
where different conclusions may reasonably be
reached.
Quinby v. Plumsteadville Family Practice, Inc., 907 A.2d 1061, 1071
(Pa. 2006).
The trial court refused to instruct the jury on this doctrine since, in
order to establish liability, Appellants had to prove that Appellees had
knowledge or should have had knowledge of a defect prior to the incident,
which they failed to do. Moreover, as the event in question could have
occurred in the absence of negligence on the part of Appellees, the charge
was inapplicable herein. We concur with this analysis.
We observe the following. Whether the door actually struck Mr. Vitez
was not an uncontested fact in this case. Appellants were the only
eyewitnesses to this event. Mr. Struebel merely saw spilled coffee on the
door. Of significance is the fact that Mr. Struebel also said that the doors
were functioning properly both before and after they purportedly closed on
Mr. Vitez. Since the happening of the incident at issue was not conceded,
the charge in question was inappropriate for that additional reason.
- 16 -
J-S24017-16
Appellants’ fifth and sixth allegations concern certain restrictions that
the trial court placed on the ability of their expert witness, Len McCuen, to
testify at trial.
The admission of evidence, including expert scientific
testimony, is within the purview of the trial court's discretion. . .
. [T]he decision to admit or to exclude evidence, including expert
testimony, lies within the sound discretion of the trial court.
Generally, we review a trial court's evidentiary rulings for abuse
of discretion. An abuse of discretion is not merely an error of
judgment; if, in reaching a conclusion, the court overrides or
misapplies the law, or the judgment exercised is shown by the
record to be either manifestly unreasonable or the product of
partiality, prejudice, bias or ill will, discretion has been abused.
A.J.B. v. M.P.B., 945 A.2d 744, 749 (Pa.Super. 2008) (citations omitted).
Initially, we note the following. The trial court did permit Mr. McCuen
to opine that the manufacturer's specifications for the door in question
recommended that Appellees perform regular maintenance on the door and
that Appellees’ service records established that they were not performing
that maintenance. N.T. Trial, 8/10/15, at 121-22. He was also allowed to
state that certain safety features built into the door were not functioning
properly when the incident occurred. His testimony was that automatic
doors do not normally hit a person passing through them
because there's a fail-safe system. Whether it's a power assist,
fully automatic, sliding, swinging, it doesn't matter. All these
doors have a backup sensor system and they have a safety zone
for a swinging door that would be the area of that you get
swatted by a door. There's many different kinds of sensors. We
don't know what kind of sensor it had but looking at literature
and so forth it was likely infrared scanner above the door and
based on the behavior, it had to have failed. Regardless of
- 17 -
J-S24017-16
whether or not it was power or they were linked or not linked,
regardless of quite a number of things of why the door was even
open kind of doesn't matter because we know that failed. But
then also the backup safety zone sensor had to have
failed or otherwise it wouldn't have closed in on him the
way it did.
Id. at 121 (emphases added).
However, Mr. McCuen was directed not to discuss problems that
Appellees encountered with doors in the store that did not strike Mr. Vitez.
This ruling was proper since the only door relevant to this matter was the
one that hit Mr. Vitez. Evidence that “is not relevant is not admissible.”
Pa.R.E. 402. “Evidence is relevant if: (a) it has any tendency to make a fact
more or less probable than it would be without the evidence; and (b) the
fact is of consequence in determining the action.” Pa.R.E. 401. The issue at
trial was whether the door that allegedly struck Mr. Vitez was malfunctioning
before March 9, 2008. Hence, issues concerning any other doors at the
store were not pertinent at trial, and the trial court did not abuse its
discretion in its ruling in this respect.
In addition, Mr. McCuen was not allowed to reveal to the jury that
there was a problem with the door just prior to the March 8, 2009 incident
and that Appellees should have known about the problem. This ruling was
premised upon the fact that the service records for the door refuted that
opinion. Specifically, Appellees’ records established two service calls
pertaining to the door at issue prior to March 9, 2008. One, made on
- 18 -
J-S24017-16
December 5, 2005, involved the door closing prematurely and striking
people’s heels and behinds. The other one pertained to a malfunctioning
button, which did not involve a problem similar to the one herein.
Since the December 5, 2005 service call occurred two years and three
months prior to the present incident, the trial court concluded that Mr.
McCuen would be required to speculate that there had been problems with
the door in question closing too quickly just prior to Mr. Vitez’s experience.
The law provides that
expert testimony is incompetent if it lacks an adequate basis in
fact. While an expert's opinion need not be based on absolute
certainty, an opinion based on mere possibilities is not
competent evidence. This means that expert testimony cannot
be based solely upon conjecture or surmise. Rather, an expert's
assumptions must be based upon such facts as the jury would
be warranted in finding from the evidence.
Gillingham v. Consol Energy, Inc., 51 A.3d 841, 849 (Pa.Super. 2012).
In this case, the service records, as well as Mr. Struebel’s testimony,
indicated that there had not been problems with the door shutting
prematurely in the months preceding March 9, 2008. Appellants had no
proof upon which Mr. McCuen could base an opinion to the contrary. Hence,
any testimony to the effect that the door was closing prematurely just prior
to the incident and that Appellees should have known about it would have
been pure speculation. The trial court properly restricted Mr. McCuen’s
testimony in this respect.
- 19 -
J-S24017-16
Appellants’ eighth issue is that the trial court erred in limiting their
cross-examination of Mr. Struebel and not permitting them to question him
about “the full service history on all the entrance and exit doors.”
Appellant’s brief at 26. As outlined, supra, the service calls on doors that did
not strike Mr. Vitez were not relevant. Hence, the questioning was properly
disallowed.
Next, Appellants complain that the trial court incorrectly curtailed their
closing argument that would have suggested to the jury that the doors were
replaced because they were defective. Specifically, in closing remarks,
Appellants’ counsel noted that “the doors were replaced. I would submit to
you, ladies and gentlemen, it’s reasonable to infer that you don't replace
doors in front of a store –.” N.T. Trial, 8/12/15, at 14. Appellees’ objection
to continuation of this line of thought was sustained. Counsel’s remarks
were clearly going to ask the jury to make the inference that the doors were
replaced because they were defective or malfunctioning. The trial court
sustained the objection because the doors were not replaced on that basis
but for cosmetic reasons during a renovation that occurred years after the
March 9, 2008 incident.
Appellants maintain on appeal that Appellees acknowledged that the
doors were removed and that they were permitted to argue all inferences
from the evidence. The flaw in this position is that the inference that
Appellants sought to make was an improper one under Pa.R.E. 407, which
- 20 -
J-S24017-16
provides, “When measures are taken by a party that would have made an
earlier injury or harm less likely to occur, evidence of the subsequent
measures is not admissible against that party to prove: negligence; culpable
conduct; a defect in a product or its design; or a need for a warning or
instruction.” Appellants’ argument on appeal fails for an additional reason.
The inference that Appellants were asking the jury to make was factually
erroneous. The doors were removed as part of renovations, not because
they were malfunctioning.
Appellants’ final position is that the trial court “erred in permitting the
Defendant to have a second defense medical expert examination of the
Plaintiff.” Appellants’ brief at 28. Pa.R.C.P. 4010(a) states,
(2) When the mental or physical condition of a party, or of a
person in the custody or under the legal control of a party, is in
controversy, the court in which the action is pending may order
the party to submit to a physical or mental examination by an
examiner or to produce for examination the person in the party's
custody or legal control.
(3) The order may be made only on motion for good cause
shown and upon notice to the person to be examined and to all
parties and shall specify the time, place, manner, conditions and
scope of the examination and the person or persons by whom it
is to be made.
The determination of whether there was good cause for a medical
examination is committed to the discretion of the trial court. McGratton v.
Burke, 674 A.2d 1095, 1096 (Pa.Super. 1996). When this action was first
instituted, Appellees were given an expert report linking injuries to Mr.
- 21 -
J-S24017-16
Vitez’s arm and hand to the March 9, 2008 incident, and Appellees obtained
a medical examination of those areas. Appellants then gave Appellees a
second expert report, which stated for the first time that Mr. Vitez’s rotator
cuff injury was exacerbated when the door closed on him. The trial court
therefore permitted Appellees to obtain a medical examination of that area.
In light of these facts, there was no abuse of discretion in permitting the
second examination. Moreover, this contention relates to the question of
damages, which the jury never examined since it found that Appellees were
not negligent. Hence, any error in this respect was not harmful to
Appellants.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/14/2016
- 22 -