Cornelius, T. v. Menio, G., M.D.

J-A09016-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
TAMMY CORNELIUS AND JAMES IN THE SUPERIOR COURT OF
CORNELIUS, PENNSYLVANIA
Appellants
v.
GREGORY J. MENIO, M.D.,
GREGORY J. MENIO, M.D., P.C.
Appellee No. 1382 EDA 2013
Appeal from the Judgment Entered May 3, 2013
In the Court of Common Pleas of Monroe County
Civil Division at No(s): No. 1551-CV-2007
BEFORE: BOWES, J., OTT, J., and JENKINS, J.
MEMORANDUM BY OTT, J.: FILED NOVEMBER 10, 2014
Tammy Cornelius and James Cornelius (collectively, “Cornelius”)
appeal from the judgment entered May 3, 2013, in the Court of Common
Pleas of Monroe County in favor of Gregory J. Menio, M.D., Gregory J. Menio,
M.D., P.C. (collectively, “Dr. Menio”), following a jury trial. Cornelius claims:
(1) “the Trial Court, ‘a court of record,’ improperly failed to record
substantive aspects of the trial (including voir dire),” in violation of the
Pennsylvania and United States Constitutions and Pennsylvania Rule of
Judicial Administration 5000.2(g), (2) “the Trial Court erred in conducting
voir dire in this medical malpractice case, … and [in] denying [Cornelius’]
(improperly unrecorded) challenges for cause of prospective jurors,” (3) “the
Jury’s 10-2 verdict in favor of [Dr. Menio] was so against the weight of the
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evidence that a new trial is required,” and (4) “the Trial Court erred by
denying [Cornelius’] (improperly unrecorded) motions for mistrial[.]”
Cornelius’ Brief at 6. Based upon the following, we affirm.
The parties are well acquainted with the underlying facts of this case,
and therefore, at the outset, we simply state that Tammy Cornelius suffered
a fall on March 1, 2005, and was treated by Dr. Menio, an orthopedic
surgeon, between March 17, 2005, and August 12, 2005, for left knee pain.
In August, 2005, on her own, she sought a second opinion, and was
ultimately diagnosed with an infection in her left knee in September, 2005.
She underwent a knee replacement on April 20, 2006.
On March 5, 2007, this action was commenced by writ of summons. A
complaint, alleging professional negligence in failing to diagnose Tammy
Cornelius’ left knee infection, was filed on April 13, 2007. Jury selection was
held on October 2, 2012, followed by trial from October 29, 2012, through
November 5, 2012. On November 5, 2012, the jury reached a 10-2 verdict
in favor of Dr. Menio, finding that he did not breach the standard of care and
was not negligent.
On November 13, 2012, Cornelius filed a statement of proceedings
under Pa.R.A.P. 1923 and 1924, regarding, inter alia, Cornelius’ challenges
for cause of prospective jurors at the voir dire hearing. On November 15,
2012, Cornelius filed a motion for post-trial relief, which included a request
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for notes of testimony of all sidebar conferences, “including but not limited
to voir dire of the jury,”1 and on November 16, 2012, filed supplemental
exhibits to the statement of proceedings. On November 15, 2012, Dr.
Menio filed objections to Cornelius’ statement of proceedings, and, on
November 26, 2012, filed a response to Cornelius’ post trial motion.
The trial transcript was filed on January 31, 2013. Subsequently, the
deadline for the parties’ briefs on the post-trial motion, originally March 12,
2013, was rescheduled to April 2, 2013. On April 11, 2013, the trial court
heard argument on Cornelius’ post trial motions, and took the matter under
advisement. Thereafter, Cornelius filed a motion to supplement the record,
an amended motion for supplementation seeking the trial judge’s jury
list/jury strike list, and second and third supplemental appendices to the
brief. Dr. Menio filed corresponding objections and responses.
On April 29, 2013, the trial court ordered:
AND NOW, this 29th day of April, 2013, upon consideration
of [Cornelius’] requests to supplement the record after the April
2, 2013 [briefing] deadline are hereby DENIED.
[Cornelius’] Motion to obtain a copy of the notes regarding
strikes for cause held at sidebar … on October 2, 2012 is hereby
DENIED. Neither counsel requested the court monitor to be
present at that time.
A copy of the strike list from jury selection is not in the file
and apparently cannot be found.
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1
Cornelius’ motion for post-trial relief, 11/15/2012, at ¶14.
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Order, 4/29/2013.
On May 3, 2013, Cornelius filed a praecipe for entry of judgment
pursuant to Pa.R.C.P. 227.4(1)(b), and filed a notice of appeal on May 6,
2013. The trial court did not direct Cornelius to file a concise statement of
errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b), and issued
no Rule 1925(a) opinion. On August 12, 2013, Dr. Menio filed with this
Court a motion for remand for purposes of affording the trial court the
opportunity to write a Rule 1925(a) opinion, and Cornelius filed a response
in opposition to the motion. This Court, by per curiam order of September
13, 2013, denied Dr. Menio’s motion for remand.2 See Order, 9/13/2013.
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2
This Court’s Order states:
Appellees have filed an application for remand, alleging that the
trial court has neither disposed of appellants’ timely filed post-
trial motions, nor written a Pa.R.A.P. 1925(a) opinion; appellants
have filed an answer opposing the requested relief.
Appellants filed timely post-trial motions on November 15, 2012.
Pa.R.C.P. 227.4(1)(b) states in pertinent part: “[T]he
prothonotary shall, upon praecipe of a party enter judgment
upon a nonsuit by the court, the verdict of a jury or the decision
of a judge following a trial without a jury, if one or more timely
post-trial motions are filed and the court does not enter an order
disposing of all motions within one hundred and twenty days
after the filing of the first motion.” Judgment was entered on the
trial court docket pursuant to appellants’ praecipe on May 3,
2013.
Accordingly, appellees’ application for remand, is DENIED.
Order, 9/13/2013.
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Cornelius first contends “[t]he trial court, as a ‘court of record,’
improperly failed to record substantive portions of the trial, violating not only
the Judicial Code and Rules of Court, but also the Pennsylvania and United
States Constitutions.” Cornelius’ Brief at 24. Cornelius’ claim concerns the
sidebar conferences held during jury selection on October 2, 2012.
Initially, we note Dr. Menio’s position that Cornelius has waived this
issue by “[h]aving failed to make any timely requests that sidebar
discussions be recorded and having failed to interpose timely objections
where sidebars were not recorded[.]” Dr. Menio’s Brief at 15.3 We agree.
It is well settled that a party must make a timely, specific objection
during trial to preserve an issue for appeal. See Takes v. Metropolitan
Edison Company, 695 A.2d 397, 400 (Pa. 1997). Here, the first time
Cornelius raised the issue that voir dire sidebar conferences were not
recorded was in the post trial motion. Cornelius’ counsel made no request
for the recording of sidebar conferences during jury selection, and never
raised an objection to the trial court that voir dire sidebars were not
recorded. While Cornelius argues “[t]here is no record of counsel being
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3
Dr. Menio also contends that Cornelius should be estopped from pursuing
this first issue, asserting that by filing the praecipe for judgment and
opposing remand for a Pa.R.A.P. 1925(a) opinion, Cornelius ensured there
was no trial court opinion to assist this Court in reviewing the trial court’s
discretionary courtroom procedures. See Dr. Menio’s Brief at 15.
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informed by the [t]rial [c]ourt the sidebars in question were off the record,” 4
it is counsel’s obligation to be conscious of courtroom practices and
procedures and to raise an objection in the event of disagreement.
Accordingly, as the issue of recording the sidebars was never raised until
post-trial motions, this issue is waived.5 See Takes, supra.
Moreover, Cornelius’ substantive argument that “the trial court has the
ultimate responsibility to ensure an adequate record for review including
sidebars,”6 relying on Pennsylvania Rule of Judicial Administration
5000.2(g),7 is meritless.
By way of background, Pennsylvania Rule of Judicial Administration
5000.1, “Scope,” states:
These Rules shall govern, within the unified court system, both
the employment and basic duties of all reporters and the
production of transcripts, as defined in Rule 5000.2.
Pa.R.J.A. 5000.1. Rule 5000.2, “Definitions,” states, in relevant part:
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4
Cornelius’ Brief at 30.
5
It bears mention that on four separate occasions during trial, Cornelius’
counsel preserved objections raised in off-the-record sidebars and an in-
chambers discussion by following those discussions with an on-the-record
sidebar. See N.T., 10/31/2012, at 138–139; 11/1/2012, at 170–173;
11/2/2012, at 1016–1017; and 11/5/2012, at 7.
6
Id. at 28.
7
Id. at 26.
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(g) Transcript of trial. The voir dire examination of jurors,
opening or closing statements of counsel, or the reading into the
record or for the benefit of the jury any written document which
is also accepted into evidence as an exhibit shall be recorded,
but not transcribed, unless otherwise ordered.
Pa.R.J.A. 5000.2(g) (emphasis supplied).
Here, “[t]he voir dire examination of jurors” was recorded, and Rule
5000.2(g) does not address sidebar conferences. Furthermore, a court
monitor was present in the courtroom but was not requested by Cornelius’
counsel to record the sidebars.
Our own research has not revealed any authority for the proposition
that a trial court is required to ensure that sidebar conferences are recorded
in the absence of a request. It is not the role of the trial court to protect the
record for the litigants. Rather, that obligation falls upon the litigants. See
Dilliplaine v. Lehigh Valley Trust Company, 322 A.2d 114, 116–117 (Pa.
1974) (“Appellate court consideration of issues not raised in the trial court
results in the trial becoming merely a dress rehearsal. This process removes
the professional necessity for trial counsel to be prepared to litigate the case
fully at trial and to create a record adequate for appellate review.”).
Accordingly, we reject Cornelius’ first issue as waived, and, in any event,
meritless.
Secondly, Cornelius claims:
The trial court erred in conducting voir dire in this medical
malpractice case, by arbitrarily allotting only a total of one hour
for voir dire, unduly limiting voir dire, cutting off [Cornelius’]
counsel during voir dire, and by itself asking general, preemptive
“rehabilitative questions” of unsworn prospective jurors, and by
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denying [Cornelius’] (improperly unrecorded) challenges for
cause of prospective jurors.
Cornelius’ Brief, at 6.
Our standard of review of the trial court’s conduct of voir dire is as
follows:
The sole purpose of voir dire examination is to secure a fair,
competent and impartial jury. To achieve this purpose, general
questions should be permitted so that it can be determined
whether any of the veniremen have a direct or even a contingent
interest in the outcome of the litigation or the parties involved.
The scope and extent of voir dire examination is within
the sound discretion of the trial court and the trial court’s
rulings thereon will not be disturbed absent a clear abuse
of that discretion.
Capoferri v. Children's Hosp. of Philadelphia, 893 A.2d 133, 138 (Pa.
Super. 2006) (quoting Ball v. Rolling Hill Hospital, 518 A.2d 1238, 1244-
45 (Pa. Super. 1986)) (emphasis added).
The trial judge, at the outset, addressed Cornelius’ counsel stating:
With that, Mr. Foley if you’re ready to start the voir dire. I just
received a copy of the proposed questions and with that number
you’ll never get through that in an hour so you’ll have to
prioritize somewhat.
N.T., 10/2/2012, at 4–5. Review of the record shows that Cornelius’ counsel
was not improperly limited or prevented by the court from questioning the
prospective jurors. While Cornelius contends the trial court cut off counsel’s
questioning of the jurors regarding Mountain Valley Orthopedics, the practice
group Dr. Menio joined after the events at issue, the record reflects that the
trial court’s effort was to streamline the questioning and not to prevent
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Cornelius’ counsel’s inquiries.8 Furthermore, although Cornelius complains
that the trial court “cut him off” when he followed up a question to a
prospective juror, Juror Cathers, regarding “frivolous lawsuits,” with a
question whether defenses should also be screened, we discern no abuse of
discretion in the trial judge’s decision to end the questioning of Juror
Cathers.9
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8
Specifically, the trial court stated:
Excuse me, Mr. Foley, let me try to cut this a little shorter. Of
those of you who have raised your hand that you’re a patient or
a family member is a patient of Mountain Valley Orthopedics, will
that fact prevent you from rendering a fair and just decision in
this case? If you think it will raise your hand or your paddle.
Okay, you can continue.
N.T., 10/2/2012, at 11.
9
The exchange between Cornelius’ counsel and Juror Cathers occurred as
follows:
MR. FOLEY: What do you think about frivolous lawsuits?
MR. CATHERS: I don’t think they should get to the point of
being litigated for something that’s trivial or somebody wants to
sue somebody for something that really has the degree of
importance that it should have reached. For instance somebody
that just doesn’t want to pay unemployment hours. They set up
a hearing just because that person doesn’t want to pay
unemployment and they fire somebody without just cause or
somebody who just wants to sue somebody for something that’s
not really -- doesn’t have a really significant level of importance,
something that’s minute.
I think it wastes time -- court’s time and it costs money
and I don’t think they should be – I screened. There should be a
(Footnote Continued Next Page)
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Cornelius next contends that the trial court erred in failing to grant
Cornelius’ motions to strike for cause as to Jurors #1, 2, 5, 6, 10, 11, 20,
and 22. Cornelius claims these prospective jurors had “close ‘situational
relationships’ with Dr. Menio and/or Pocono Medical Center (where
Defendant Dr. Menio and his partners are on staff, and his wife Elizabeth
Menio is a member of the auxiliary) where some of the events and testing in
this case took place.” Cornelius’ Brief at 58.
_______________________
(Footnote Continued)
significant level of something that’s important before it reaches
that.
MR. FOLEY: Do you think that defenses should be screened
also?
MR. CATHERS: Defenses?
MR. FOLEY: Yes. You had mentioned not paying
unemployment.
MR. CATHERS: Well a person that they’re filing suit against.
MR. FEENEY: Your Honor, may we approach?
THE COURT: We’re going to stop it right there. The next [juror]
is 26.
****
MR. FOLEY: If we prove to you that this is not a frivolous lawsuit
and that Tammy Cornelius suffered a serious injury because of
the negligence of Dr. Menio, would anybody have difficulty in
awarding appropriate damages for Tammy Cornelius? Anybody?
Hearing none.
N.T., 10/2/2012, at 15–17.
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As previously discussed, Cornelius made no request to record the voir
dire sidebar conferences, and there is no record of counsels’ requests for
strikes for cause and exercise of peremptory strikes. Dr. Menio asserts that
this issue has been waived as Cornelius did not object on the record at jury
selection.10 We agree.
On November 13, 2012, Cornelius filed with the trial court a statement
of proceedings pursuant to Pa.R.A.P. 1923 and 1924.11 The trial court made
no ruling on Cornelius’ statement of proceedings, which sought to remedy
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10
See Dr. Menio’s Brief at 24, citing Dilliplaine v. Lehigh Valley Trust
Company, 322 A.2d 114, 116–117 (Pa. 1974).
11
Pennsylvania Rule of Appellate Procedure 1923 provides:
If no report of the evidence or proceedings at a hearing or trial
was made, or if a transcript is unavailable, the appellant may
prepare a statement of the evidence or proceedings from the
best available means, including his recollection. The statement
shall be served on the appellee, who may serve objections or
propose amendments thereto within ten days after service.
Thereupon the statement and any objections or proposed
amendments shall be submitted to the lower court for settlement
and approval and as settled and approved shall be included by
the clerk of the lower court in the record on appeal.
Pa.R.A.P. 1923. Rule 1924 provides:
In lieu of the record on appeal as defined in Rule 1921
(composition of record on appeal), the parties may prepare and
sign a statement of the case showing how the issues presented
by the appeal arose and were decided in the lower court and
setting forth only so many of the facts averred and proved or
sought to be proved as are essential to a decision of the issues
presented. If the statement conforms to the truth, it, together
(Footnote Continued Next Page)
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the failure to do that which should have been done, i.e., request the
recording of the sidebars. Significantly, the trial court did rule on Cornelius’
post-trial motion request for a copy of the notes regarding the strikes for
cause, and denied the motion, stating that “[n]either counsel requested
the presence of the court monitor at that time,” and the strike list from
jury selection could not be located. See Order, 4/29/2013, supra
(emphasis added). Given that the voir dire sidebar discussions were not
preserved and the requests for strikes for cause were not made on the
record, we conclude this issue of the court’s denial of strikes for cause has
been waived. See Pa.R.A.P. 302(a) (”Issues not raised in the lower court
are waived and cannot be raised for the first time on appeal.”).
Moreover, even accepting Cornelius’ reconstruction of the sidebar
motions to strike for cause, we would find no basis upon which to grant
relief. As will be more fully discussed below, the record created at voir dire
_______________________
(Footnote Continued)
with such additions as the lower court may consider necessary
fully to present the issues raised by the appeal, shall be
approved by the lower court and shall then be certified to the
appellate court as the record on appeal and transmitted thereto
by the clerk of the lower court within the time prescribed by Rule
1931 (transmission of the record). Copies of the agreed
statement and the order from which the appeal is taken may be
filed as the reproduced record.
Pa.R.A.P. 1924.
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is inadequate to support Cornelius’ claim that the trial court erred in refusing
to strike the jurors.
Our standard of review of the trial court’s denial of a motion to strike a
potential juror for cause is well settled:
The test for determining whether a prospective juror should be
disqualified is whether he is willing and able to eliminate the
influence of any scruples and render a verdict according to the
evidence, and this is to be determined on the basis of answers to
questions and demeanor . . . . A challenge for cause should
be granted when the prospective juror has such a close
relationship, familial, financial, or situational, with the
parties, counsel, victims, or witnesses that the court will
presume a likelihood of prejudice[,] or demonstrates a
likelihood of prejudice by his or her conduct and answers to
questions. Our standard of review of a denial of a challenge for
cause differs, depending upon which of these two situations is
presented. In the first situation, in which a juror has a close
relationship with a participant in the case, the determination is
practically one of law and as such is subject to ordinary review.
In the second situation, when a juror demonstrates a likelihood
of prejudice by conduct or answers to questions, much depends
upon the answers and demeanor of the potential juror as
observed by the trial judge and therefore reversal is appropriate
only in the case of palpable error. When presented with a
situation in which a juror has a close relationship with
participants in the litigation, we presume prejudice for the
purpose of [en]suring fairness.
McHugh v. P&G Paper Prods. Co., 776 A.2d 266, 270 (Pa. Super. 2001)
(footnote, citations, internal quotation marks, and original modifications
omitted) (emphasis supplied).
Preliminarily, we address two relevant cases: McHugh v. Proctor &
Gamble Paper Prods. Co., supra, and Cordes v. Assocs. of Internal
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Med., 87 A.3d 829 (Pa. Super. 2014) (en banc), , ___ A.3d ___ (Pa.
October 28, 2014).12
In McHugh, an insured worker brought a premises liability claim
appeal denied against Proctor & Gamble Paper Products Company (“P&G”).
On appeal from the judgment entered in favor of P&G, the plaintiff
challenged the trial court’s refusal to strike for cause three prospective
jurors who were employees of P&G at the time of trial, and who indicated
that they knew Mr. Fellin, P&G’s employee who would be sitting at counsel
table as P&G’s in-court representative. McHugh, 776 A.2d at 268–270.
The plaintiff also challenged the trial court’s refusal to strike for cause a
fourth juror, who was the father-in-law of Mr. Fellin. Id. The McHugh
Court, in vacating the judgment in favor of the defendant, and awarding a
new trial, held “the employer/employee relationship evokes a presumption of
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12
On March 12, 2014, while this case was pending on appeal, this Court
decided Cordes v. Assocs. of Internal Med., 87 A.3d 829 (Pa. Super.
2014) (en banc), appeal denied, ___ A.3d ___ [192 WAL 2014] (Pa. October
28, 2014), and vacated the judgment, reversed the order denying a mistrial,
and remanded for a new trial.
Judge Wecht filed an Opinion in Support of Reversal in which Judge
Bender joined. Judge Bowes and Judge Gantman concurred in the result.
Judge Donohue filed a separate Opinion in Support of Reversal in which
Judge Gantman and this author joined. Judge Bowes concurred in the result.
Judge Olson filed a Dissenting Opinion, joined by Judge Allen. Former
President Judge, now Justice Stevens did not participate in the consideration
or decision of the case.
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prejudice so significant as to warrant disqualification of employees of a
party.” Id. at 270. Additionally, the Court concluded that a close familial
relationship existed in the case of the juror who was the father-in-law of Mr.
Fellin, P&G’s in-court representative, which should have compelled the trial
court to strike the juror for cause. Id. at 272–273.
Recently, this Court decided Cordes v. Assocs. of Internal Med.,
supra, a medical malpractice action that ended in a jury verdict in favor of
the defendants, including, inter alia, the plaintiff’s doctor, and the entity that
owned the doctor’s practice, Tri-State. Judge Wecht, in his Opinion in
Support of Reversal (W.O.S.R.), concluded the trial court erred in refusing to
presume prejudice and strike for cause the husband of a patient of the
defendant doctor (Juror Snowden); the daughter of a patient of the
defendant doctor (Juror Kaelin); and an employee of Heritage Valley Health
Systems, the parent company of Tri-State (Juror Majors). Judge Wecht
opined: “It cannot be gainsaid that the spousal and filial relationships are
among the closest of human connections. Accordingly, the trial court erred
when it declined to disqualify Ms. Kaelin and Mr. Snowden as jurors.”
Cordes, 87 A.3d at 838 (W.O.S.R.) (footnote omitted). He further wrote:
“[W]e hold that Mr. Majors’ employment relationship with Heritage Valley,
which had an undisputed financial interest in the outcome of the litigation
recognized by Mr. Majors, created a sufficient risk of partiality to establish
prejudice per se arising from his jury service.” Id. at 845 (footnote omitted).
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Judge Donohue, in her Opinion in Support of Reversal (D.O.S.R.),
joined Judge Wecht’s holding that prejudice should be presumed based upon
the physician/patient relationship between the Juror Snowden’s wife and the
defendant doctor, and agreed that the trial court erred by failing to
discharge for cause Juror Kaelin and Juror Majors, based upon a separate
rationale. Id. at 863 (D.O.S.R.) With regard to Juror Kaelin, Judge
Donohue “disagree[d] with Judge Wecht that the simple fact that the juror’s
parents were patients of the defendant doctor in this medical malpractice
case required her exclusion from the jury,” opining that it was “Juror Kaelin’s
involvement in her parents’ medical affairs and knowledge about her
parents’ positive perception of the defendant [doctor that] gives the
appearance of favor and partiality, warranting a presumption of prejudice[.]”
Id. at 868. Judge Donohue further opined, “I do not believe that Juror
Majors’ employer’s ownership interest in Tri-State supports a challenge for
cause and, to the extent that Judge Wecht holds that it does, I disagree.”
Id. at 869. She reasoned: “The purported employment relationship
between Juror Majors and Dr. Ray, standing alone, is too attenuated to
warrant the grant of a challenge for cause in this case,” but “the
presumption of prejudice here derives from Juror Majors’ perception of the
financial impact the verdict could have on his employer.” Id. at 869–870.
Turning to the present case, Cornelius identifies the following eight
jurors, for whom motions to strike for cause were denied:
Juror #1, Barbara Page
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Juror #2, Carmen Perez
Juror #5, Scott Decker
Juror #6, Boyd Allen Counterman
Juror #10, Mary Ellen Weikel13
Juror # 11, Robert George McClenathen
Juror #20, Denise Smith
Juror #22, Adrienne Franklin
The testimony offered by Jurors #1, 2, 5, 6, 11, 20, and 22, regarding
Dr. Menio is as follows:
MR. FOLEY: … The lawsuit is against Dr. Menio. Does anyboby
know Dr. Menio? Mrs. Page, how do you know Dr. Menio?
MS. PAGE: I’m a newly retired school nurse and I’ve taken care
of students who have been patients of Dr. Menio within the
school system.
MR. FOLEY: For how long?
MS. PAGE: I’ve been a school nurse for over thirty years.
MR. FOLEY: Ma’am?
UNIDENTIFIED JUROR [IDENTIFIED AS CARMEN PEREZ]: I work
at the hospital and sometimes we need –
THE COURT: I’m sorry, I can’t hear.
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13
Cornelius indicates the trial court granted Dr. Menio’s motion to strike
Juror #10, Mary Ellen Weikel. See Cornelius’ Brief at 60. Since Cornelius
was not required to use a peremptory strike, there can be no basis for any
complaint by Cornelius as to Juror #10. Therefore, we do not discuss her
further.
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UNIDENTIFIED JUROR: -- to refer patients to him.
MR. FOLEY: So you’ve treated some of Dr. Menio’s patients?
UNIDENTIFIED JUROR: Yes.
MR. FOLEY: Mr. Decker.
MR. DECKER: A couple years ago I was a patient of Dr.
Menio[’]s. He was supposed to do knee surgery on me, but I
found out I was a diabetic right before the surgery so it never
went through.
MR. FOLEY: How long did Dr. Menio treat you?
MR. DECKER: I only met with him a few times because the
surgery was already planned and everything but right before the
surgery, my pre-op was when I found out I was a diabetic so the
surgery was cancelled and I haven’t been back since.
MR. FOLEY: You did treat with him after the blood work?
MR. DECKER: I did. Yeah, he had sent me to the hospital to get
all the preoperative blood work and everything that I needed to
do before the surgery.
MR. FOLEY: Would that affect your ability to sit on this trial?
MR. DECKER: No, I haven’t seen him or talked to him since.
MR. FOLEY: Thank you.
MR: FEENEY: Your Honor, may we approach?
THE COURT: Yes.
(Whereupon sidebar was held off the record)
***
(Following the sidebar)
MR. FOLEY: Mr. Counterman, how do you know him?
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MR. COUNTERMAN: Yeah, my son had surgery done but other
than that I don’t personally know him.
MR. FOLEY: What type of surgery?
MR. COUNTERMAN: He had his bones redone as a correction
and he had pins put in.
MR. FOLEY: I’ll start over here. Anybody know Dr. Menio? How
do you know Dr. Menio?
…
MR. FOLEY: Mr. McClenathan.
MR. MCCLENATHAN: The doctor is one of our panel doctors. He
sees our work comp cases in the company I work for.
MR. FOLEY: What company do you work for?
MR. MCCLENATHAN: Walmart Distribution Center.
MR. FOLEY: Walmart?
MR. MCCLENATHAN: Yes.
MR. FOLEY: How do you know that he’s a panel doctor for the
worker’s comp?
…
MR. MCCLENATHAN: I know the names of the panel doctors. He
may have been in our facility once.
MR. FOLEY: You’re a manger for the warehouse?
MR. MCCLENATHAN: Yes, I’m the general manager.
…
MR. FOLEY: Okay, I’m sorry. Anybody else? Mrs. Smith, or Ms.
Smith.
MS. SMITH: My daughter is a patient of his.
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MS. FRANKLIN: Yes. I’m an RN at the Pocono Medical Center
and I’ve taken care of his patients.
N.T., 10/2/2012, at 7–10.14
The record does not demonstrate that any of the prospective jurors
had a “close relationship, familial, financial, or situational,”15 as in McHugh
and Cordes.
With regard to Juror #1, Barbara Page, Cornelius’ claim that she “only
just recently ceased her working relationship with Dr. Menio,” 16 is belied by
the record. Her testimony that, as a school nurse, she had taken care of
students that were Dr. Menio’s patients, fails to establish a “working
relationship,” nor was she questioned as to the number of such students.
____________________________________________
14
The jury was seated as follows: Juror #1 was Barbara Page, Juror #2 was
Carmen Perez, Juror #3 was Kevin Rosene, Juror #4 was Daniel Phillips,
Juror #5 was Rachel Tinney, Juror #6 was Michael Ruocco, Juror #7 was
Irene Jones, Juror #8 was Doreen Hicks, Juror #9 was Janet Zimich, Juror
#10 was Frank Manheart, Juror #11 was Denise Smith, and Juror #12 was
Maria Martinez. The first Alternate was William Kuntzman and the next
Alternate was Richard Cathers. See N.T., 10/2/2012, at 28. As discussed,
Cornelius had moved to strike for cause Jurors Page, Perez, and Smith.
Dr. Menio does not dispute Cornelius’ statement that Cornelius had
exhausted the peremptory challenges. See Dixon v. Andrew Tile & Mfg.
Corp., 357 A.2d 667, 668 n.1 (Pa. Super. 1976) (“It is harmless error to
overrule a challenge for cause where it should have been sustained if all the
peremptory challenges are not exhausted.”) (citations omitted) (emphasis
supplied).
15
McHugh, supra, 776 A.2d at 270.
16
Cornelius’ Brief at 56.
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Likewise, the testimony of Juror #2, Carmen Perez, and Juror #22,
Adrienne Franklin, establishes only that these jurors knew of Dr. Menio from
their work at the hospital, where Dr. Menio was on the staff. No
employment relationship, or financial interest of themselves or their
employer, was established as to these nurses.
Nor was a patient relationship established with regard to Juror #5,
Scott Decker, who testified he had been a patient of Dr. Menio “a couple
years ago,” and met with Dr. Menio “only … a few times.” N.T., 10/2/2012,
at 8. Decker indicated there was no on-going doctor/patient relationship,
stating, “I haven’t seen or talked to him since.” He also testified his ability
to sit on the jury would not be affected. Id.
Juror #6, Counterman, and Juror #20, Smith, each indicated that they
had a child who was a patient of Dr. Menio. There were no follow-up
questions to determine whether the child was currently under the care of Dr.
Menio and receiving treatment, whether the child was a minor or adult, and
whether, and to what extent, if any, the juror was involved in his/her child’s
medical treatment by Dr. Menio. Counterman’s statement that he did not
“know him personally,” referring to Dr. Menio, appears to indicate he had no
involvement in his son’s surgery by Dr. Menio. Id. at 9. Juror #20, Smith’s
statement that her daughter “is a patient of his,” without more, does not
indicate that her daughter was an active patient or that Smith was involved
in her daughter’s treatment. Id. at 10.
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Finally, the testimony of Juror #11, Robert George McClenathan, who
worked as a general manager at Walmart, was that he knew Dr. Menio as
one of the panel doctors who “sees our work comp cases.” 17 His comments
did not suggest a co-employment relationship or any perceived financial
interest of either himself or Walmart in the outcome of this case.
Here, Cornelius’ counsel had the opportunity to make a record that
established juror prejudice prior to the sidebar discussions of strikes for
cause. However, without appropriate follow-up questioning to develop the
relationships Cornelius argues existed, the challenged jurors’ answers did
not establish grounds to support motions to strikes for cause. Therefore,
even had this issue been preserved, Cornelius’ claim that the trial court
erred in refusing to strike the jurors would not warrant a new trial.
The third issue raised by Cornelius is a challenge to the weight of the
evidence.18, 19
It is well settled that “a new trial should be granted only in
____________________________________________
17
N.T., 10/2/2012, at 9.
18
“The general rule in this Commonwealth is that a weight of the evidence
claim is primarily addressed to the discretion of the judge who actually
presided at trial.” Armbruster v. Horowitz, 813 A.2d 698, 702 (Pa. 2002).
“However, where a properly preserved weight of the evidence claim is raised
on appeal and the judge who presided at trial failed to rule on the claim and
is now permanently unavailable to do so, the claim must be reviewed by the
appellate tribunal in the first instance.” Id. at 705.
Here, as mentioned, Cornelius opposed Dr. Menio’s application for
remand for purposes of affording the trial court the opportunity to write a
Rule 1925(a) opinion, and this Court denied the application for remand. See
Footnote 3, supra. We note Dr. Menio’s argument that Cornelius is
(Footnote Continued Next Page)
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truly extraordinary circumstances, i.e., when the jury’s verdict is so contrary
to the evidence as to shock one's sense of justice and the award of a new
trial is imperative so that right may be given another opportunity to prevail.”
Armbruster v. Horowitz, 813 A.2d 698, 703 (Pa. 2002) (citation omitted)
(emphasis in original). Therefore, “a new trial will not be granted on the
basis of a weight of the evidence claim unless the evidence supporting the
verdict is so inherently improbable or at variance with admitted or proven
facts or with ordinary experience as to render the verdict shocking to the
court's sense of justice.” King v. Stefinelli, 862 A.2d 666, 670 (Pa. Super.
2004). “Moreover, a new trial will not be granted on the ground that the
verdict was against the weight of the evidence where the evidence is
conflicting and the fact-finder could have decided in favor of either party.”
Folger v. Dugan, 876 A.2d 1049, 1053 (Pa. Super. 2005) (citation
omitted).
_______________________
(Footnote Continued)
estopped from challenging the weight of the evidence since he opposed the
application for remand for a Rule 1925(a) opinion. Nevertheless, we will
address Cornelius’ weight claim.
19
While Cornelius’ motion for post-trial relief is reflected by the trial court’s
docket as timely filed on November 15, 2012, it is not contained in the
certified record. However, a copy of the motion for post-trial relief is
included in the reproduced record, and Dr. Menio has not disputed its
accuracy. See Prieto Corp. v. Gambone Constr. Co., ___ A.3d ___, ___
[2014 Pa. Super. 196] (Pa. Super. September 10, 2014) (appellate court can
consider undisputed document if it is in the reproduced record, even though
it is not in the record that had been transmitted to the court)
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After suffering a fall in the snow on the way to work on March 1, 2005
Tammy Cornelius was treated by Dr. Menio between March 17, 2005 and
August 12, 2005, including a left knee arthroscopy on April 20, 2005. On
May 10, 2005, Dr. Menio aspirated the knee and obtained a specimen, which
was sent for culture and reported as negative for infection.
Cornelius claims, “The failure to investigate further and order further
testing was negligence and increased the risk of harm to Tammy Cornelius.”
Cornelius’ Brief at 68 (record citations omitted). Specifically, Cornelius
argues:
Mrs. Cornelius presented both preoperative and post operative
infection presentations to the jury, and argued that Dr. Menio
failed to properly investigate that possibility of infection after
May 10, 2005, to further investigate the potential for infection,
when he received a report on the less than 1 cc bloody
aspiration specimen. Both parties agreed the infection was
longstanding, slow moving, or indolent. If diagnosis had been
timely made, Dr. Menio would have had multiple opportunities to
intervene and treat between May 2005 and August 2005 when,
ultimately, other subsequent treating physicians ordered the
appropriate diagnostic tests, and diagnosed Mrs. Cornelius’
longstanding infection. By the time of delayed diagnosis in
August 2005, infection had completely destroyed her knee. Dr.
Menio’s failure to order appropriate testing or referral to
radiologists or infectious disease doctors increased the risk of
harm that Mrs. Cornelius ultimately suffered.
Cornelius’ Brief at 73–74.
The record shows that the facts of Dr. Menio’s treatment, care and
referrals while Tammy Cornelius was his patient were fully presented at trial,
as well as both parties’ experts’ opinions on the applicable standard of care
and whether Dr. Menio breached the standard of care. Ultimately, this case
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turned upon the jury’s credibility determinations. Based on our review, and
mindful of the standards that govern weight of the evidence claims, we
discern no basis upon which to conclude that a new trial is warranted in this
case. See Armbruster, supra, 813 A.2d at 706 (choice between two
permissible views was not so contrary to the weight of the evidence as to
shock one’s sense of justice). See also, Gunn v. Grossman, 748 A.2d
1235, 1240 (Pa. Super. 2000) (“The weight to be assigned to expert
testimony lies within the province of the jury.”). Accordingly, no relief is due
on this weight claim.
Finally, Cornelius argues that the trial court failed to ensure
transcription of Cornelius’ mistrial request on November 1, 2012, and erred
in failing to grant a mistrial or give a curative instruction. Cornelius states,
“[t]he court denied [Cornelius’] motion for mistrial in this instance where the
[c]ourt monitor failed to transcribe the sidebar conference.” Cornelius’ Brief
at 87.
Initially, we find Cornelius’ request for a mistrial or curative instruction
has been waived for failure to preserve the sidebar discussion and make a
record of the request for mistrial. See Pa.R.A.P. 302(a), supra.
Furthermore, the issue is waived since it was not raised in Cornelius’ motion
for post-trial relief. See Pa.R.C.P. 227.1(b)(2) (“Grounds not specified are
deemed waived unless leave is granted upon cause shown to specify
additional grounds.”). Order, April 29, 2013. In any event, we would find
no basis for relief based upon this claim.
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Our standard of review is well settled:
“Generally, the granting or refusal of a mistrial is a matter within
the discretion of the trial judge, and his or her decision will not
be overruled by an appellate court except for manifest, clear,
or palpable error amounting to an abuse of discretion.”
Bugosh v. Allen Refractories Co., 932 A.2d 901, 914–915 (Pa. Super.
2007).
The exchange at issue occurred during the direct examination of Dr.
Menio, as follows:
Q. Why are you sending a letter to Dr. Kipervas when she
[Tammy Cornelius] was referred to you by the ER?
A. Dr. Kipervas was her primary care doctor. She was also the
gatekeeper of her insurance plan. Mrs. Cornelius is part of the
Geisenger insurance plan and it is an HMO –
MR. FOLEY [CORNELIUS’ COUNSEL]: Your Honor, could
we approach?
THE COURT: Yes.
(Whereupon sidebar was held off the record)
N.T., 11/1/2012, at 150.
Cornelius claims this exchange improperly referenced Dr. Kipervas as
the “gatekeeper” of Cornelius’ insurance plan, and the Geisenger Health
Plan, in violation of the court’s pre-trial order, barring the defense “from
introducing or making reference to collateral source recoveries including …
future medical benefits of the Plaintiff.” Amended Order, 10/10/2012, at
¶¶2. However, our review leads us to conclude the references to Dr.
Kipervas as “gatekeeper” and insurance were passing, contextual, and
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without any prejudice that would have warranted the grant of a mistrial by
the trial judge. See Havasy v. Resnick, 609 A.2d 1326, 1334 (Pa. Super.
1992) (“Pennsylvania courts have held that the mere mention of a third
party source, such as insurance, does not automatically necessitate a new
trial.”), overruled, in part, on other grounds, by Passarello v. Grumbine,
87 A.3d 285 (Pa. Super. 2014). Accordingly, we would find no abuse of
discretion on the part of the trial judge in denying the request for mistrial or
curative instruction.
Therefore, this final claim, had it not been waived, would fail on the
merits.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/10/2014
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