Steltz, C. v. Meyers, W.

J-A21032-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CRAIG STELTZ : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM C. MEYERS, M.D.; VINCERA :
CORE INSTITUTE AND VINCERA :
INSTITUTE : No. 179 EDA 2019
:
Appellants :
Appeal from the Order Entered December 12, 2018
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): March Term 2016- 01720
BEFORE: BOWES, J., OLSON, J., and FORD ELLIOTT, P.J.E.
DISSENTING MEMORANDUM BY BOWES, J.: FILED APRIL 14, 2020
I respectfully dissent. While I recognize that this Court’s standard of
review over a trial court’s award of a new trial is deferential, this case presents
that rare circumstance in which the trial court has abused its discretion. In
particular, I believe that both the trial court and the Majority have
mischaracterized the context of the question posed by Appellant’s counsel and
overstated the existence of prejudice. Accordingly, I would reverse the trial
court’s order granting a new trial, and permit the jury’s verdict to stand.
Appellee Craig Steltz’s claims for relief were directed at an alleged
breach of the professional standard of care1 by Appellant William C. Meyers,
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1 Mr. Steltz’s expert David Treen, Jr., M.D. (“Dr. Treen”), espoused his view
of the applicable standard of care. See N.T. Trial, 8/6/18, at 5 (“[Dr. Treen’s]
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M.D. (“Dr. Meyers”). Specifically, Mr. Steltz underwent surgery on May 1,
2014, for athletic pubalgia—or a “sports hernia”—in his right leg. Mr. Steltz
was, at that time, a player for the Chicago Bears of the National Football
League (“NFL”). During practice on June 19, 2014, Mr. Steltz felt a “pop” in
his right leg. Mr. Steltz returned to Dr. Meyers for a consultation on June 30,
2014. At bedrock, this case concerns competing interpretations of an MRI
taken that day that was reviewed by, inter alia, Dr. Meyers, Adam Zoga, M.D.
(“Dr. Zoga”), and Peter Read, M.D. (“Dr. Read”).
Both Dr. Meyers and Dr. Zoga testified that they collectively reviewed
and discussed the June 30, 2014 MRI of Mr. Steltz’s right leg that same day,
and concurred in the assessment that the image indicated “a little bit of scar
breakup” and fluid at the surgery site. See N.T. Trial, 8/7/18 (Part II), at 14;
see also N.T. Trial, 8/9/18 (Part II), at 47, 49. Based upon this diagnosis,
Mr. Steltz returned to his training and practice regimen with the Chicago
Bears. Ultimately, Mr. Steltz was released from the athletic organization.
As pled, Mr. Steltz’s case focused upon a report that was reviewed and
approved by Dr. Read,2 and which was provided to Appellants at some point
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testimony revealed the steadfast opinion, whether or not the jury chooses to
believe it, that [Dr. Read’s interpretation of] the June 30, 2014 MRI should
have been disclosed to Mr. Steltz, and the failure to do so deprived Mr. Steltz
of the opportunity for treatment . . . .”).
2 Although Dr. Read approved the report interpreting the June 30, 2014 MRI
as showing a “complete tear” of Mr. Steltz’s common adductor muscles, it was
actually authored by a trainee named Zombor Zoltani. See N.T. Trial, 7/31/18
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after their June 30, 2014 assessment of Mr. Steltz had already been
completed and communicated to Mr. Steltz.3 See Complaint, 5/25/16, at ¶¶
19-46. That report diverged significantly from the initial assessment rendered
by Dr. Meyers and Dr. Zoga, and instead concluded that Mr. Steltz had
suffered a “complete tear” of his adductor muscle. See N.T. Trial, 7/31/18
(Part I), at 62. Although this report was ultimately found in Appellants’
records, it is not clear how or at what point that report was transmitted to
Appellants.4 See N.T. Trial, 7/31/18 (Part II), at 52-53.
Regardless, Mr. Steltz’s claims for relief revolve around the allegedly
delayed disclosure of the opinions expressed in Dr. Read’s report and the
validity of Dr. Read’s underlying analysis, as made clear in both his opening
and closing statements. See N.T. Trial, 7/31/18 (Part I), at 23-28; N.T. Trial,
8/10/18 (Part II), at 16-17 (“The negligence of Dr. Meyers is [his] arrogance
of certainty about an injury that was interpreted completely different[ly]. His
failure to communicate to his patient and . . . his patient’s employer . . . that
there was evidence of a tear.”). Indeed, even Mr. Steltz testified that he
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(Part II), at 13-14. Dr. Read was the attending radiologist who reviewed it,
concurred in its analysis, and approved the report. Id.
3 Dr. Read did not review and approve the report created by Mr. Zoltani until
July 3, 2014, and he did not dictate it until July 5, 2014. See N.T. Trial,
7/31/18 (Part II), at 14-16, 53.
4 Dr. Meyers testified that he “likely” saw the report for the first time on
August 27, 2014, when Mr. Steltz requested a copy of his medical records
after being released by his employer. Id. at 54, 56. Mr. Steltz testified that
he first became aware of the report on September 11, 2014, when he received
a copy of his records. See N.T. Trial, 8/2/18 (Part II), at 79.
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blamed Dr. Meyers specifically because of his alleged misinterpretation of the
MRI. See N.T. Trial, 8/2/18 (Part II), at 88 (“It wasn’t the Bears’ doctor I
went and saw, who read the MRI, and so I felt like Dr. Meyers was at fault for
it and not the Bears.”).
Despite the critical nature of the June 30, 2014 MRI and Dr. Read’s
assessment of the injury it depicted, it is undisputed that Mr. Steltz did not
present any corroborating expert testimony from a musculoskeletal radiologist
at trial.5 Dr. Read testified on behalf of Mr. Steltz as a fact witness, and was
never qualified as an expert.6 See Pa.R.E. 702. An expert on musculoskeletal
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5 In relevant part, Appellee presented testimony from David Treen, Jr., M.D.
(“Dr. Treen”), who was qualified as an expert in “athletic pubalgia” and
testified that his physical examination of Mr. Steltz indicated that he had a
torn adductor muscle. See N.T. Trial, 8/1/18 (Part I), at 55-58. However, he
freely confessed that he could not opine about the competing interpretations
of the June 30, 2014 MRI. Id. at 92-93 (“The two reports describe two totally
different findings. I don’t know which one is true and which one is false,
. . . .” (emphasis added)). Along similar lines, Mr. Steltz also presented
videotaped testimony from Benton Emblom, M.D., who was qualified as an
expert in orthopedic surgery. See N.T. Trial, 8/2/18 (Part I), at 40-41. He
similarly opined that Mr. Steltz had suffered a torn adductor muscle at some
indeterminate point. See N.T. Trial, 8/2/18 (Part II), at 83-84.
6 Mr. Steltz went to great lengths to establish Dr. Read’s bona fides with
respect to musculoskeletal radiology. See N.T. Trial, 7/31/18 (Part I), at 49-
51; N.T. Trial, 7/31/18 (Part II), at 25-26. However, he freely allowed that
Dr. Zoga was a far more experienced and accomplished radiologist with
respect to musculoskeletal imaging. See N.T. Trial, 7/31/18 (Part II), at 6-8.
The burden for such qualification is quite deferential. “[T]he test to be applied
when qualifying an expert witness is whether the witness has any reasonable
pretension to specialized knowledge on the subject under investigation. If he
does, he may testify and the weight to be given to such testimony is for the
trier of fact to determine.” Freed v. Geisinger Med. Ctr., 971 A.2d 1202,
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radiology was listed as potential witness on Mr. Steltz’s pre-trial statement.
See Plaintiff’s Pretrial Memorandum, 2/15/18, at 4 (identifying Jamie
Checkoff, M.D. as an “expert”). However, Dr. Checkoff did not testify at trial,
and no other qualified expert addressed the merits of Dr. Read’s analysis on
behalf of Mr. Steltz.
After Mr. Steltz had rested his case-in-chief, Appellants offered the
testimony of Dr. Jana Crain (“Dr. Crain”), a musculoskeletal radiologist who
was qualified as an expert in “interpreting MRI images of the core muscle
region.” See N.T. Trial, 8/6/18 (Part II), at 42, 52. Overall, Dr. Crain flatly
disagreed with the conclusions in the report approved by Dr. Read. Id. at 64-
65, 71. Thereafter, Dr. Zoga testified as both a fact and expert witness. See
N.T. Trial, 6/7/18 (Part I), at 41-43. However, Appellants’ qualification of Dr.
Zoga was unusually fraught with an extended series of inflammatory questions
and remarks by Mr. Steltz’s counsel that directly touched upon the respective
credibility of not only Dr. Zoga, but also Dr. Read.
Mr. Steltz’s counsel opened this qualification cross-examination with a
series of remarks concerning Dr. Zoga’s “enormous, enormous ego.” Id. at
29. An immediate objection was sustained. Id. at 30. Moments later,
however, Mr. Steltz’s counsel again insinuated that Dr. Zoga was inflating his
professional acumen, asking whether other “doctors come up to you, boy, Dr.
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1209 (Pa. 2009) (emphasis in original; internal citation omitted). Still, Mr.
Steltz apparently chose to concede the opportunity to allow his key witness to
explain his interpretation of the MRI.
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Zoga, you’re the go-to guy?” Id. at 31. Another objection was sustained.
Id. at 32. Counsel launched into a series of inquiries concerning Dr. Read’s
professional qualifications and credibility, first suggesting that Dr. Read must
be competent and accurate in his work due to the fact that he hadn’t been
“fired” after this incident. Id. at 35-36 (“Wouldn’t you, if you knew that one
of your people couldn’t do his job right—you don’t want him analyzing images
that affect the lives of people, do you?”). For a third time, Appellants objected
on the ground that this testimony was inappropriately touching upon Dr.
Read’s credibility. The trial court, again, sustained the objection. Id. at 36.
However, Mr. Steltz’s counsel persisted and continued to cross-examine
Dr. Zoga about Dr. Read, including adducing testimony that Dr. Read: (1) was
a board-certified radiologist; (2) completed a fellowship in musculoskeletal
radiology; (3) was still employed by his then-employer; and (4) continued to
review and interpret radiology images, including MRI. Id. at 36-37.
Eventually, defense counsel raised another objection when Mr. Steltz’s counsel
began to examine Dr. Zoga regarding his substantive review of the report
approved by Dr. Read. Id. at 44-47. Ultimately, the trial court qualified Dr.
Zoga as an expert in musculoskeletal radiology without any discrete objections
to his qualifications. Id at 47.
Throughout the qualification examination of Dr. Zoga, Mr. Steltz’s
counsel comported himself in a manner that smacked of unprofessionalism,
even based upon the cold record. His questions to Dr. Zoga and his responses
to defense counsel and the trial court were peppered with sarcastic asides and
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feigned contrition, despite admonitions from the trial court. Id. at 29-31, 33-
36, 40-42, 46.
Immediately after this prolonged and heated exchange, defense counsel
advanced the line of questioning that precipitated this appeal:
DEFENSE COUNSEL: [H]ow many musculoskeletal radiologists do
you think there are in the country[,] ballpark?
DR. ZOGA: So if the definition is radiologists who interpret
musculoskeletal imaging, it has to be five thousand.
DEFENSE COUNSEL: Five thousand. Five thousand of those
radiologists and [Mr. Steltz] couldn’t find one of them to come into
this courtroom to support Dr. Read, did you know that?
Id. at 48. The question was not answered, but it did provoke a strenuous
objection from Mr. Steltz’s counsel, who requested a mistrial. Defense counsel
responded that: (1) the question was simply a fair response to Mr. Steltz’s
counsel’s repeated “borderline” comments; and (2) the “only prejudice” to Mr.
Steltz was that the comment was “factual.” Id. at 51.
The trial court declined to grant a mistrial, noting that both parties had
made “occasional statements” that were problematic. Id. at 52. Instead, the
trial court issued a curative instruction regarding defense counsel’s allegedly
inappropriate question, addressing the jury as follows:
When we were last here, there was an exchange between the
counsel and I just wanted to state, as I stated at the beginning of
the trial, that the statements and arguments made by counsel do
not constitute evidence. They are not the facts. Evidence includes
any testimony of witnesses, documents, and other exhibits
submitted during the trial constitute facts and I just ask that you
understand that particular principle, as you evaluate the evidence,
okay.
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So the parties or counsel have agreed to proceed in a civil fashion.
So we’ll continue. Thank you.
N.T. Trial, 8/7/18 (Part II), at 4-5.
During defense counsel’s closing statement, he reiterated his earlier
point regarding the lack of expert support for Mr. Steltz’s position: “Why
wouldn’t they come in and hire a radiologist to tell us, yeah, I looked at those
images and Dr. Read is correct.” N.T. Trial, 8/10/18 (Part II), at 52; see also
id. at 33 (“You heard from musculoskeletal radiologists that there was no tear,
and that there was no retraction . . . . It’s unquestionable, undeniable, and
[Mr. Steltz] brought in no one to dispute it.”). Pertinent to our review, no
objection was lodged by Mr. Steltz with respect to these statements. Id.
Following a verdict in favor of Appellants, the trial court ultimately
granted Mr. Steltz’s post-trial motion for a new trial, grounding its reasoning
in three separate findings, namely: (1) that defense counsel’s question was
inappropriate; (2) that the question was also prejudicial as it undermined the
validity of the entire trial; and (3) that the prejudice was of such a type and
magnitude that it could not be remedied via a curative instruction. See Trial
Court Opinion, 12/12/18, at 6-7 (“There was no curative instruction this Court
could have delivered to the jury to fix the harm caused by [Appellants’]
counsel’s egregious statement that not one musculoskeletal radiologist among
the 5,000 who practice in the United States could be found to support [Dr.
Read’s] reading of the MRI.”).
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The learned Majority has largely concurred in the trial court’s legal and
factual assessment. I must respectfully dissent with respect to each finding.
The legal standards that govern our review of a trial court’s awarding of
a new trial are well-established, and admittedly deferential to the trial court’s
decision. As a general matter, a trial court engages in a two-step process
when responding to a request for a new trial by determining: (1) whether one
or more mistakes occurred at trial; and (2) whether that mistake is a sufficient
basis for granting a new trial. See Ferguson v. Morton, 84 A.3d 715, 720-
21 (Pa.Super. 2013). An appellate court essentially engages in the same
analysis in reviewing the decision of the trial court:
First, the appellate court must examine the decision of the trial
court that mistake occurred. . . . If the mistake involved a
discretionary act, the appellate court will review for an abuse of
discretion. If the mistake concerned an error of law, the court will
scrutinize for legal error.
If the appellate court agrees with the determination of the trial
court that a mistake occurred, it proceeds to the second level of
analysis. The appellate court must then determine whether the
trial court abused its discretion in ruling on the request for a new
trial. 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. A finding by an appellate court
that it would have reached a different result than the trial court
does not constitute a finding of an abuse of discretion. Where the
record adequately supports the trial court’s reasons and factual
basis, the court did not abuse its discretion.
Id. at 720 (internal citations and quotation marks omitted).
Where, as here, the trial court “articulates a single mistake (or a finite
set of mistakes), the appellate court’s review is limited in scope to the stated
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reason, and the appellate court must review the reason under the appropriate
standard.”7 Harman ex rel. Harman v. Borah, 756 A.2d 1116, 1123 (Pa.
2000). However, this assessment is not merely focused upon the mistake
itself, but also properly includes the attendant “circumstances under which the
statements were made and the precaution taken by the trial court and counsel
to prevent such remarks from having a prejudicial effect.” Siegal v.
Stefanyszyn, 718 A.2d 1274, 1277 (Pa.Super. 1998).
As the Majority correctly points out, “[i]t is improper for counsel to
present facts to the jury which are not in evidence and which are prejudicial
to the opposing party,” such that “counsel may not comment on evidence to
the effect that it removes an issue of credibility from the jury.” Young v.
Washington Hosp., 761 A.2d 559, 563 (Pa.Super. 2000) (emphasis added).
The Majority relies heavily upon the holding in Siegal, supra, to affirm
the trial court’s conclusion that defense counsel committed a “mistake” by
questioning Dr. Zoga regarding Mr. Steltz’s self-evident lack of expert
radiology testimony. See Majority Memorandum at 11-12. In Seigal,
defense counsel in a medical malpractice case made an improper statement
during closing arguments, which ultimately resulted in the awarding of a new
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7 The trial court stated that it relied solely upon defense counsel’s question in
granting a new trial. See Trial Court Opinion, 3/4/19, at 4 (“We wish to take
this opportunity to disabuse [Appellants] of the notion that we might have
relied on misconduct other than defense counsel’s improper question to Dr.
Zoga in granting a new trial.”).
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trial. At the outset of the trial in Siegal, one of plaintiff’s fact witnesses—Dr.
John Shore—had been precluded from offering expert testimony that the
defendant’s actions fell below the “applicable standard of care.” Id. at 1276.
During closing, defense counsel directly referred to this lack of testimony from
Dr. Shore, stating that its absence indicated that no malpractice occurred. Id.
On appeal, this Court concluded that these statements were improper. Id. at
1277 (“[C]ounsel’s argument was clearly improper, as it conveyed to the jury
something that counsel knew to be untrue, i.e., that Dr. Shore’s opinion was
not favorable to appellants’ case.”). The statement “so polluted the jury that
the effect could not be cured by the curative instruction that was given.” Id.
Instantly, defense counsel’s objectionable question was as follows: “Five
thousand of those radiologists and [Mr. Steltz] couldn’t find one of them to
come into this courtroom to support Dr. Read, did you know that? N.T. Trial,
8/7/18 (Part I), at 48. In particular, the Majority has focused upon the use of
the words “could not find” as proof positive that defense counsel was somehow
misrepresenting the fact that Mr. Steltz had listed Dr. Checkoff as a potential
expert witness:
Appellants’ counsel, having received a copy of [Mr. Steltz’s] pre-
trial memorandum, was, therefore, put on notice that [Mr. Steltz]
did find and planned to call as a potential witness another
radiologist whose findings concurred[8] with Dr. Read’s findings
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8 Like the trial court, the Majority has characterized Dr. Checkoff’s report as
corroborating Dr. Read’s interpretation of the June 30, 2014 MRI. See
Majority Memorandum at 11; Trial Court Opinion, 12/12/18, at 11 n.3.
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that the June 30, 2014 post-surgery MRI revealed a tear in the
adductor longus muscle, an allegation that formed the basis of
[Mr. Steltz’s] complaint. As such, when appellant’s counsel stated
that [Mr. Steltz] “couldn’t find” verses “did not find” another
radiologist who would agree with Dr. Read’s findings, his comment
was analogous to the statement made by counsel in Siegal.
Majority Memorandum at 11.
With all due respect to the learned Majority, Siegal is inapposite. By
focusing solely upon the verb utilized by defense counsel to the exclusion of
all other substance, the Majority has mischaracterized the basic import of
counsel’s question. In relevant part, defense counsel’s statement betrayed
no misrepresentation, but drew valid attention to the indisputable fact that
Mr. Steltz had not presented expert testimony regarding the correctness of
Dr. Read’s interpretation of the June 30, 2014 MRI, a critical issue in this case.
In contrast to Siegal, there was no ruling from the trial court precluding Mr.
Steltz from presenting Dr. Checkoff’s expert testimony. Hence, defense
counsel was not exploiting an adverse ruling, but properly referring to an
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However, Dr. Checkoff’s report concludes that the June 30, 2014 MRI indicates
only a “partial tear” of the adductor muscle. See Plaintiff’s Pretrial
Memorandum, 2/15/18. I also note that “[i]t is well established that a report
prepared by an expert who is not called to testify as a witness is hearsay.”
Semieraro v. Commonwealth Utility Equipment Corp., 544 A.2d 46, 47
(Pa. 1988); see also Kopytin v. Aschinger, 947 A.2d 739, 745 (Pa.Super.
2008) (same). Permitting Mr. Steltz to benefit from the contents of an expert
report that originated from a non-testifying witness is particularly suspect in
light of the rationale behind this maxim. See Phillips v. Gerhart, 801 A.2d
568, 575 (Pa.Super. 2002) (observing that opinions contained in medical
reports are inadmissible “unless the doctor who prepared the report is
available for in-court, cross-examination regarding the accuracy, reliability,
and veracity of his or her opinion”).
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unforced error: that Mr. Steltz offered no testimony from a musculoskeletal
radiologist corroborating Dr. Read’s interpretation of the June 30, 2014 MRI.9
As such, I do not perceive defense counsel’s question to be the flagrant
misrepresentation of a fact outside of the jury’s knowledge as identified by
the Majority, but a question duly predicated upon: (1) the lack of expert
radiology testimony presented by Mr. Steltz; and (2) Dr. Zoga’s testimony
that there were approximately 5,000 musculoskeletal radiologists potentially
available for such consultations. Both of these facts were of-record.
Moreover, Dr. Read’s interpretation of the June 30, 2014 MRI was both the
subject upon which Dr. Zoga was called to testify, and the lynchpin of Mr.
Steltz’s case. Although inartfully phrased, I do not believe that defense
counsel’s question here is in the same disfavored category as the statement
identified in Siegal.
I also believe that the Majority and the trial court have failed to properly
view the entirety of the circumstances surrounding defense counsel’s question
in assessing this “mistake.” Immediately before defense counsel asked his
question, Mr. Steltz’s counsel had just finished attacking Dr. Zoga’s credibility,
as bolstering Dr. Read’s interpretation of the June 30, 2014 MRI, over
numerous sustained objections. See N.T. Trial, 8/7/18 (Part I), at 29-47. I
note that “[e]ven an otherwise improper comment may be appropriate if it is
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9 At the close of the defense case, Mr. Steltz was afforded an opportunity to
present rebuttal testimony, but largely limited his presentation to
demonstrative testimony not relevant to this appeal. See N.T. Trial, 8/10/18
(Part I), at 41-53. No rebuttal expert testimony was adduced.
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in fair response to [opposing] counsel’s remarks.” Commonwealth v.
Burno, 94 A.3d 956, 974 (Pa. 2014).
Stated directly, Mr. Steltz’s counsel’s pursued an inflammatory and
inappropriate line of interrogation with Dr. Zoga regarding both his credibility,
and that of Dr. Read. As Appellants have argued, I believe that the fair
response doctrine applies quite aptly to these circumstances.10 Counsel’s
remarks do not constitute reversible error where they are “a reasonable
response, in both scope and force, to trial counsel’s attack on the witness’
credibility.” Commonwealth v. Hanible, 30 A.3d 426, 470 (Pa. 2011).
Here, defense counsel’s single question appears quite proportional in
light of the conduct of Mr. Steltz’s counsel detailed above. Specifically, Mr.
Steltz’s counsel was responsible for initially broaching the subject of credibility
on multiple fronts during his cross-examination of Dr. Zoga. Moreover, he did
so in a way that was clearly calculated to buttress Dr. Read’s credibility and
diminish Dr. Zoga’s credibility. In the face of such gamesmanship during an
adversarial contest, defense counsel cannot be expected to stand mute.
In short, I must part ways from the Majority with respect to its
affirmance of the trial court’ conclusion that defense counsel’s question was
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10 See Appellants’ brief at 22 (arguing that even if defense counsel’s question
“broached an improper subject,” it was nonetheless a “fair response” to the
questioning perpetrated by Mr. Steltz’s counsel); see also N.T. Trial, 8/7/18
(Part I), at 51 (same argument preserved at trial).
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inappropriate.11 With specific reference to our standard of review, I do not
believe that the record sufficiently supports the legal and factual assessments
rendered by both the Majority and the trial court. While my own analysis
would end at this point, I will also briefly address the remainder of the
Majority’s contentions.
“A new trial is not warranted merely because some irregularity occurred
during the trial . . . .” Harman, supra at 1121. The award of a new trial as
a result of improper conduct by counsel is an extraordinary remedy, and is
only appropriate if “the unavoidable effect of the conduct or language was to
prejudice the factfinder to the extent that the factfinder was rendered
incapable of fairly weighing the evidence and entering an objective verdict.”
Poust v. Hylton, 940 A.2d 380, 385 (Pa.Super. 2007).
The Majority’s assessment of the second prong of our analysis, i.e., the
prejudicial effect of defense counsel’s question, also relies quite heavily on its
presumption that defense counsel somehow took “liberties” with the facts.
See Majority Memorandum at 14 (citing Young, supra at 561; Siegal, supra
at 1277). As indicated above, I do not concur in the assessments of defense
counsel’s statements under the rubric provided by Siegal and Young. In the
absence of the factual distortion relied upon by the Majority, I find the
following discussion from Ferguson instructive:
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11 See Demosthenes, The Oration of Demosthenes on the Crown, (1st ed.,
1868) at 33 (translated by Sir R.P. Collier) (“But the facts speak for
themselves, they are too plain.”).
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A trial in an American court is distinctly an adversary proceeding
and is therefore bound at times to excite counsel into making
statements overladen with partiality. However, so long as
decorum is maintained, and there is no leaving the highway of fact
to agitate in the marshes of palpable exaggeration, unwonted
characterizations, hortatory appeals to latent prejudices, and
improper imputations of gross motives, there is no reason why
lawyers should not be permitted to express themselves in such
manner as they believe best serves the interests of justice.
Ferguson, supra at 723 (quoting Rondinelli v. City of Pittsburgh, 180
A.2d 74, 77-78 (Pa. 1962)).
To my mind, the conclusion that defense counsel’s single question
undermined confidence in the trial as a whole is not adequately supported by
the record or the law. Accord Ferguson, supra at 725 (“[I]t is self-evident
that prejudice mounts as the tenor of the comments in question grows more
flagrantly improper and the frequency of similar comments increases.”). To
the extent that the Majority claims that defense counsel’s question “removed”
the determination of Dr. Read’s credibility from the jury, I re-emphasize that
it was Mr. Steltz’s counsel who first raised that issue with Dr. Zoga during an
extensive cross-examination. See N.T. Trial, 6/7/18 (Part I), at 33-47.
Finally, the Majority also relies upon Siegal in support of its conclusion
that the trial court’s curative instruction was insufficient. See Majority
Memorandum at 14. In Siegal, the trial court’s curative instruction was found
to be insufficient because it “did not accurately convey to the jury what was
true, i.e., that [defense] counsel knew that Dr. Shore’s opinion would have
favored [plaintiff’s] position.” Siegal, supra at 1277.
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As explained above, I do not find Siegal to be an adequate parallel to
the instant case. Here, the trial court issued a curative instruction directing
the jury to disregard the contents of defense counsel’s question. See N.T.
Trial, 8/7/18 (Part II), at 4-5. Accordingly, I also fail to see why this curative
instruction was insufficient to dispel any potential for prejudice. See
Ferguson, supra at 725 (“Jurors are presumed to obey the court’s
instructions, and, if ever an inappropriate comment could be cured by
sufficient correction and admonition from the bench, the trial court’s efforts in
this case would suffice.”); see also In re Smith, 579 A.2d 889, 896
(Pa.Super. 1990) (“[T]he jury is presumed to have acted within the legal
parameters established by the court and with a proper evaluation and
weighing of the evidence.”).
Based on the foregoing discussion, I respectfully dissent.
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