Perez, J. v. Maroon, J.

J-A05008-20
J-A05009-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOHN PEREZ AND RAYNA PEREZ, HIS : IN THE SUPERIOR COURT OF
WIFE : PENNSYLVANIA
:
:
v. :
:
:
JOSEPH C. MAROON, M.D.; UPMC; :
UPMC PRESBYTERIAN; UPMC : No. 184 WDA 2019
PRESBYTERIAN-SHADYSIDE; AND :
TRI-STATE NEUROSURGICAL :
ASSOCIATES-UMPC :
:
:
APPEAL OF: RAYNA PEREZ :
Appeal from the Judgment Entered January 23, 2019
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): GD-11-024543
JOHN PEREZ AND RAYNA PEREZ, HIS : IN THE SUPERIOR COURT OF
WIFE : PENNSYLVANIA
:
:
v. :
:
:
JOSEPH C. MAROON, M.D.; UPMC; :
UPMC PRESBYTERIAN; UPMC : No. 211 WDA 2019
PRESBYTERIAN-SHADYSIDE; AND :
TRI-STATE NEUROSURGICAL :
ASSOCIATES - UPMC :
:
:
APPEAL OF: JOHN PEREZ :
Appeal from the Judgment Entered January 23, 2019
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): GD 11-24543
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J-A05009-20
BEFORE: BENDER, P.J.E., BOWES, J., and PELLEGRINI, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 10, 2020
Appellant, John Perez, appeals at docket number 211 WDA 2019 from
the January 23, 2019 judgment entered in favor of Appellees, Joseph C.
Maroon, M.D., UPMC, UPMC Presbyterian, UPMC Presbyterian-Shadyside, and
Tri-State Neurosurgical Associates-UPMC, following a jury trial. In addition,
his ex-wife, Rayna Perez, also appeals from the January 23, 2019 judgment
at docket number 184 WDA 2019.1 We affirm.
The trial court provided the following statement of the case:
[Mr. Perez] and [Ms. Perez] commenced this medical malpractice
action by filing a Praecipe for Writ of Summons on November 28,
2011.[2] [They] then filed a Complaint on May 17, 2012, alleging
[that Dr. Maroon] negligently performed a cervical discectomy on
Mr. Perez on November 30, 2009.[3] Generally speaking, Mr. Perez
alleges that Dr. Maroon negligently placed a surgical screw during
the procedure into the cervical disc space, rather than bone,
resulting in, among other things, a non-union.[4] This non-union
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* Retired Senior Judge assigned to the Superior Court.
1 We sua sponte consolidate these appeals pursuant to Pa.R.A.P. 513. See
Pa.R.A.P. 513 (“Where there is more than one appeal from the same order, or
where the same question is involved in two or more appeals in different cases,
the appellate court may, in its discretion, order them to be argued together in
all particulars as if but a single appeal.”).
2 Mr. Perez and Ms. Perez married on October 11, 2011, and finalized their
divorce in April of 2016. See N.T. Trial, 5/7/18-5/30/18, at 2601-02, 2603;
Mr. Perez’s Brief at 13.
3 A discectomy is the removal of a disc. See Appellees’ Brief at 12.
4 In more detail, Mr. Perez advances:
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eventually led to multiple revision procedures, and allegedly
ended Mr. Perez’s career as a horse racing jockey. Following
several years of pre-trial litigation, a jury trial was held between
May 7, 2018 and May 30, 2018, after which the jury returned a
verdict in favor of Dr. Maroon. Although the jury found Dr.
Maroon’s conduct fell below the applicable standard of care, it
nonetheless found the negligence was not a factual cause of any
harm to Mr. Perez.
On June 7, 2018, Mr. Perez and Ms. Perez both filed Motions for
Post-Trial Relief.1 Thereafter, numerous additional motions were
filed by both parties. On August 23, 2018, this [c]ourt held
argument on the Motions for Post-Trial Relief. On October 4,
2018, this [c]ourt denied the Motions for Post-Trial Relief, and
subsequently granted Dr. Maroon’s Motion to Strike Affidavit of
John C. Archiniaco.[5] Eventually, on January 28, 2019, Mr. Perez
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What normally occurs during a C5-6 fusion procedure is that
screws are anchored in both the C5 and C6 bones. Those screws
then hold the plate that contains the cage with the graft so that
the graft does not come loose and the fusion occurs. In Mr.
Perez’s case, Dr. Maroon removed too much bone from C5,
inserted a superior screw that was too thick and did so into the
superior disc space at C4-5, as opposed to the bone.
Mr. Perez’s Brief at 11 (internal citations omitted). See also Appellees’ Brief
at 12-13 (explaining that, during the procedure, “the area where bone had
been removed was filled with an insert (referred to as a titanium ‘cage’) and
bony material from the hospital bone bank. It is anticipated in this type of
surgery that the bony material and the ‘cage’ will integrate with the patient’s
native bone, resulting in a fusion or union. Thus[,] the terms non-fusion or
non-union refer to circumstances when that integration fails to occur. A small
plate was also placed to bridge the two vertebrae, with small (half-inch)
screws, one in the vertebrae above the disc and one in the vertebrae below
the disc. The plate does not facilitate union; its purpose is to allow the patient
to avoid having to wear a neck brace post-operatively”).
5 Mr. Archiniaco provided investigative services on Mr. Perez’s behalf. See
Trial Court Opinion (“TCO”), 6/25/19, at 9. His affidavit provided that the
woman who was seated at trial as juror number 11 (“Juror 11”) was “friends
on Facebook” with Ms. Perez’s divorce attorney, Elisabeth Molnar, Esquire, and
noted that there were “some Facebook ‘communications in the form of ‘likes’
on posts and photos’ between Ms. Molnar and [Juror 11] sometime prior to
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and Ms. Perez both filed Notices of Appeal.[6] [The trial court] then
issued Concise Statement Orders on February 1, 2019. On
February 15, 2019, Mr. Perez and Ms. Perez filed identical Concise
Statements of Matters Complained of on Appeal….
1Ms. Perez joined and incorporated Mr. Perez’s request for
Post-Trial Relief because she had a loss of consortium claim
derivative to the underlying claim.
TCO at 3-4.
Mr. Perez’s Appeal
We address Mr. Perez’s issues first. He raises the following issues for
our review:
1. Whether the trial court committed reversible error in permitting
the use of excerpts of Tammy Albaugh’s deposition at trial; failing
to allow [Mr. Perez] to call Ms. Albaugh on rebuttal; and in refusing
to provide an adverse inference regarding her intentional failure
to appear?
2. Whether the trial court committed reversible error in improperly
permitting hearsay statements of Loretta Blyshak to be used at
trial and then failed to provide Mr. Perez an[] adverse inference
instruction for her failure to appear at trial?
3. Whether the trial court committed reversible error in failing to
grant Mr. Perez’s request for judgment notwithstanding the
verdict [(“JNOV”)]?
4. Whether the trial court committed reversible error in improperly
not permitting an amendment of the [c]omplaint to include
allegations pertaining to informed consent and/or adding an
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trial.” Id. During jury selection, Mr. Perez had mentioned Ms. Molnar “as one
of thirty-three potential witnesses that would be called to testify in the case[.]”
Id. (citation omitted). However, Ms. Molnar ultimately did not testify at trial.
Id.
6Judgment was entered in favor of Appellees and against Mr. and Ms. Perez
on January 23, 2019.
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alternative allegation that Dr. Maroon was not present to perform
Mr. Perez’s surgery?
Mr. Perez’s Brief at 5.7
Mr. Perez’s First Issue
In Mr. Perez’s first issue, he argues that the trial court “committed
reversible error in permitting the use of excerpts of Tammy Albaugh’s
deposition at trial; failing to allow [Mr. Perez] to call Ms. Albaugh on rebuttal;
and in refusing to provide an adverse inference regarding her intentional
failure to appear[.]” Id. He contends that Ms. Albaugh, a nurse who worked
with Dr. Maroon, was “a critical witness in this case because of issues
surrounding a handwritten note that she purportedly created on an electronic
medical record allegedly after a phone conversation with Mr. Perez on April
19, 2010. The note concerned a key issue in the case — whether Dr. Maroon
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7 In his Summary of Argument section of his brief, Mr. Perez states that he
also “incorporates by reference the two issues and arguments presented by
co-Appellant, [Ms.] Perez, in her Brief for Appellant as if set forth more fully
herein.” Mr. Perez’s Brief at 15 n.3. See also Pa.R.A.P. 2137 (“In cases
involving more than one appellant or appellee, including cases consolidated
for purposes of the appeal pursuant to Rule 513 (consolidation of multiple
appeals), any number of either may join in a single brief, and any appellant
or appellee may adopt by reference any part of the brief of another.”);
Commonwealth v. Briggs, 12 A.3d 291, 343 n.48 (Pa. 2011) (noting that
Rule 2137 “allows a party to an appeal which has multiple parties or involves
consolidated cases to incorporate by reference parts of briefs which another
party has filed with the appellate court which is considering the appeal”)
(emphasis omitted).
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did in fact offer a plate removal, i.e.[,] revision surgery, to Mr. Perez.” Id. at
20 (citations omitted).8
Initially, we note that our standard of review of a trial court’s
decision to admit or exclude evidence is well-settled:
When we review a trial court ruling on admission of
evidence, we must acknowledge that decisions on
admissibility are within the sound discretion of the trial court
and will not be overturned absent an abuse of discretion or
misapplication of law. In addition, for a ruling on evidence
to constitute reversible error, it must have been harmful or
prejudicial to the complaining party.
“An abuse of discretion is not merely an error of judgment, but if
in reaching a conclusion the law is overridden or misapplied, or
the judgment exercised is manifestly unreasonable, or the result
of partiality, prejudice, bias or ill-will, as shown by the evidence
or the record, discretion is abused.”
Stumpf v. Nye, 950 A.2d 1032, 1035-36 (Pa. Super. 2008) (citation
omitted).
Here, with respect to Ms. Albaugh, the trial court explained:
At trial, [Appellees] sought to introduce [Ms. Albaugh’s] deposition
pursuant to Pa.R.C.P. 4020(a)(5), which provides as follows:
At the trial, any part or all of a deposition, so far as
admissible under the rules of evidence, may be used against
any party who was present or represented at the taking of
the deposition or who had notice thereof if required, in
accordance with any one of the following provisions: [a]
deposition upon oral examination of a medical witness,
other than a party, may be used at trial for any purpose
whether or not the witness is available to testify.
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8 Mr. Perez claims that, “[i]f the jury believed that Dr. Maroon offered Mr.
Perez a revision surgery and that Mr. Perez either declined or did not follow
up on Dr. Maroon’s offer, then the jury could have potentially concluded that
Dr. Maroon’s negligence was not a factual cause of harm to Mr. Perez.” Mr.
Perez’s Brief at 25 n.6.
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[N.T. at] 3135-[]37. Mr. Perez opposed this request, arguing
[that] Ms. Albaugh’s deposition testimony should be precluded
because it was hearsay; Mr. Perez further argued [that Appellees]
failed to demonstrate [that] Ms. Albaugh was unavailable
pursuant to Pa.R.E. 804. [Id. at] 3139-[]41. However, the
deposition of a nonparty medical witness is permitted regardless
of whether the witness is available to testify at trial. Pa.R.C.P.
4020(a)(5). Relying on Russell v. Albert Einstein Medical
Center, Northern Div., 673 A.2d 876 (Pa. 1996), this [c]ourt
determined [that] Ms. Albaugh, a registered nurse who was not a
party to the litigation, qualified as a nonparty medical witness.
[N.T. at] 3149-[]50.
Furthermore, this [c]ourt properly denied Mr. Perez’s request to
call Ms. Albaugh on rebuttal because counsel for Mr. Perez had
previously deposed Ms. Albaugh, and had a full and fair
opportunity [to] call her as a witness during his case-in-chief, and
admittedly failed to do so, with no explanation. [Id. at] 3280;
see Downey v. Weston, 301 A.2d 635, 641 (Pa. 1973) (“The
trial court has discretion in excluding as rebuttal evidence that
which is properly part of the case[-]in[-]chief.”). This [c]ourt also
properly denied Mr. Perez’s request to provide the jury with an
adverse inference instruction as to Ms. Albaugh’s failure to appear
at trial. [N.T. at] 3280-[]81. Once again, counsel for Mr. Perez
deposed Ms. Albaugh prior to trial[,] and made no effort to call
her for Mr. Perez’s case-in-chief. [Id.]
TCO at 22-23.
Use of Ms. Albaugh’s Deposition at Trial
Mr. Perez initially challenges the trial court’s decision on the basis that
“Ms. Albaugh’s testimony should not have been read into the record.” Mr.
Perez’s Brief at 19 (unnecessary capitalization and emphasis omitted). His
argument in this respect is two-fold: first, he says that Rule 4020(a)(5) “allows
a deposition to be used at trial if the witness is not a party. Ms. Albaugh,
while not named as a defendant in this case, was an agent of Appellees, UPMC
and Dr. Maroon, who acted within the scope of her employment and her
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relationship to Appellees providing medical care and therefore is a party under
the rule.” Id. at 21. Mr. Perez also contends that, “[a]lthough the term ‘party’
is not defined in Rule 4020 nor is it defined in Russell, Pa.R.E. 803(25)
provides guidance for what qualifies as an opposing party’s statement,
defining party statements to include statements made in a representative
capacity.” Id. at 21-22 (citation and footnote omitted).
Second, Mr. Perez advances that, “while subsection (5) of Rule 4020(a)
does state that a deposition may be used at trial regardless of whether or not
the witness is available, subsection (a) states that ‘any part [or] all of a
deposition, so far as admissible under the rules of evidence, may be
used…[.]’” Id. at 22 (emphasis in brief; citation omitted). He states that
Pa.R.E. 804 “governs exceptions to the hearsay rules when a declarant is
unavailable[,]” and none of the criteria for being unavailable apply to Ms.
Albaugh. See id. at 22-24.9 Therefore, Mr. Perez argues that “Ms. Albaugh
did not meet the criteria of being unavailable so as to circumvent the hearsay
rules and allow her deposition testimony to be read into the record.” Id. at
25.
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9 Regarding Ms. Albaugh’s absence at trial, Appellees’ counsel explained to the
trial court, “I don’t want to bring her in here and subject her to what these
witnesses have been subjected and another four hours of cross-examination
of the nature that we have experienced throughout this trial.” N.T. at 3148.
See also id. at 3151 (“Your Honor, she can’t come in after – I have sat
through this trial. I’ve never seen anything like this.”); TCO at 6-7 (“For the
benefit of the appellate court, this court notes that this trial was a three-week
long, fiercely disputed, highly emotional case, in which the parties did not
agree on much, if anything.”).
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We reject both of these arguments. With respect to Mr. Perez’s first
argument, Appellees astutely discern that, “[w]hile the Rules of Civil
Procedure do not define a ‘party,’ the law provides that a ‘party’ is a ‘person
who commences or against whom relief is sought in a matter….’” Appellees’
Brief at 25 (citing 42 Pa.C.S. § 102)). Moreover, Appellees point out that,
“[h]ad the Rules Committee intended agents of a party to be exempt from
Rule 4020(a)(5), it surely would have crafted a rule reflecting this intent.”
Id.10 Finally, though Mr. Perez correctly states that Russell did not address
the definition of ‘party’ under Rule 4020, see Mr. Perez’s Brief at 26 n.8, we
observe that the nurse in that case was employed by the defendant hospital,
and her deposition was nevertheless admitted at trial pursuant to Rule
4020(a)(5). See Russell, supra. Thus, we conclude that Ms. Albaugh is not
a ‘party’ for purposes of Rule 4020(a)(5).
Regarding Mr. Perez’s second argument, we agree with the trial court
and Appellees that witness availability is irrelevant under Rule 4020(a)(5),
which states that “[a] deposition upon oral examination of a medical witness,
other than a party, may be used at trial for any purpose whether or not the
witness is available to testify.” Pa.R.C.P. 4020(a)(5) (emphasis added).
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10We note that the Rules Committee did specifically mention agents in other
provisions of Rule 4020. Namely, Rule 4020(a)(2) states that “[t]he
deposition of a party or of any one who at the time of taking the
deposition was an officer, director, or managing agent of a party or a
person designated under Rule 4004(a)(2) or 4007.1(e) to testify on behalf of
a public or private corporation, partnership or association or governmental
agency which is a party, may be used by an adverse party for any purpose.”
Pa.R.C.P. 4020(a)(2) (emphasis added).
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While Mr. Perez is again correct that the Russell Court did not reach the issue
of why the nurse in that case was unavailable to testify at trial, see Mr.
Perez’s Brief at 26 n.8, the Court noted that the trial court admitted the nurse’s
deposition into evidence “without any showing that she was unavailable to
testify.” Russell, 673 A.2d at 877 (emphasis added). This fact supports that
availability, and the circumstances surrounding a witness’s availability, do not
matter under Rule 4020(a)(5). Further, Appellees persuasively ascertain that
the comment to the rule against hearsay, Pa.R.E. 802, states that “[o]n
occasion, hearsay may be admitted pursuant to another rule promulgated by
the Pennsylvania Supreme Court. For example, in civil cases, all or part of a
deposition may be admitted pursuant to Pa.R.C.P. No. 4020….” Pa.R.E. 802,
Comment; see also Appellees’ Brief at 23. As such, we concur with Appellees
that Rule 4020 “permits the admission of deposition testimony
notwithstanding the limitations of the hearsay rule.” Appellees’ Brief at 23.
Accordingly, the trial court did not err or abuse its discretion in allowing
Appellees to read the deposition testimony of Ms. Albaugh at trial.
Failing to Allow Mr. Perez to Call Ms. Albaugh on Rebuttal
Mr. Perez next complains that, “[s]ince the [trial c]ourt allowed Ms.
Albaugh’s testimony to be read into evidence via her deposition, Mr. Perez
should have then been permitted to call Ms. Albaugh as a live witness on
rebuttal.” Mr. Perez’s Brief at 28. He explains that he “did not call Ms. Albaugh
during his case-in-chief because he believed that Appellees would call her as
a live witness during their case.” Id. He adds that “there was simply no
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reason for Mr. Perez to call Ms. Albaugh in his case-in-chief on the issue of
causation because (1) counsel for Appellees indicated that they intended to
call her in their case-in-chief; (2) Mr. Perez already had direct evidence of an
admission against interest made by Dr. Maroon on a disability form where Dr.
Maroon admitted that Mr. Perez was disabled from the date of his initial
surgery on November 30, 2009[,] performed by Dr. Maroon; and [(3)] it was
[Appellees’] burden to rebut what had already been presented.” Id. at 29
(citations omitted). Further, Mr. Perez contends that “it would have also been
proper for [Ms.] Albaugh to be called during rebuttal because at the time of
her deposition, Mr. Perez did not have additional facts and evidence that he
needed to properly cross-examine [Ms.] Albaugh at her deposition.” Id. at
30.
We deem this claim waived. The trial transcript reveals the following
occurred at trial:
[The trial court]: … So as of now, my ruling is we’ll have the jury
come in. We’ll let them use [Ms. Albaugh’s] deposition.
[Mr. Perez’s attorney]: Your Honor, then I would ask that they
make her available tomorrow when they’re done reading it for my
rebuttal case.
I have her – I can give her notice to attend, I’m pretty sure. She’s
their employee. They are hiding her. I would like her to be
brought in live so that she can be interrogated in front of the jury
and they can assess her credibility and not have [Mr. Perez’s
counsel] put on a pretend show about what Ms. Albaugh is really
going to say.
[The trial court]: Where is she? Why can’t she come in?
[Appellees’ attorney]: Your Honor, she can’t come in after -- I
have sat through this trial. I’ve never seen anything like this.
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[The trial court]: Okay.
[Mr. Perez’s attorney]: Thank you. I take that as a compliment.
[The trial court]: So let’s say you do what you do, and he wants
to call her in rebuttal?
[Appellees’ attorney]: That’s not proper rebuttal. He took the
deposition of [Ms.] Albaugh. [Mr. Perez’s attorney] took her
deposition. He had free rein to ask her whatever questions he
wanted to ask her.
There’s no rebuttal. He was supposed to put her in his case[-]in[-
]chief if her testimony was necessary.
So there’s no issue -- he can’t possibly suggest that her
deposition, which he took, is raising an issue which he could not
have anticipated.
[The trial court]: All right. Let’s – you know, like I said, that’s my
ruling. We’re going to let you read the deposition
tomorrow. We’ll see what happens.
Again, plan on, you know, right as soon she is done, we’ll take a
little bit of time, but we’re going to go over points and everything.
[Mr. Perez’s attorney]: Your Honor, just to be clear, is she in the
country? Is she here present, because opposing counsel, I mean,
this issue may come up.
[The trial court]: What I’ve learned in these past three weeks
is to deal with issues as they arise, and as of right now,
that issue has not arisen. So we’ll take it one step at a time.
…
[Mr. Perez’s attorney]: [A]m I going to be permitted to read
counter-designations even if I’m not going to be allowed to call
the witness now? I assume I can do that.
[Appellees’ attorney]: Certainly. That’s the rule.
[Mr. Perez’s attorney]: Oh, okay.
N.T. at 3150-53 (emphasis added). Though the trial court appeared to take
a wait-and-see approach, the next day, when Appellees’ counsel concluded
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reading Ms. Albaugh’s deposition, Mr. Perez did not request to call Ms. Albaugh
as a rebuttal witness. See id. at 3194.11 Because Mr. Perez failed to renew
his request at the appropriate time at trial, he has waived his claim with
respect to calling Ms. Albaugh as a witness on rebuttal. See Commonwealth
v. Petterson, 49 A.3d 903, 913-14 (Pa. Super. 2012) (determining that the
appellant’s failure to renew his request for a continuance constituted a waiver
of any claim that the trial court had failed to grant a continuance where the
trial court had, at best, conditionally denied the continuance request); Keffer
v. Bob Nolan’s Auto Service, Inc., 59 A.3d 621, 657-58 (Pa. Super. 2012)
(“When the trial court overlooks or fails to rule on an issue, the party seeking
the court’s ruling must remind the court that it has not ruled and obtain a
definitive ruling on the issue. Failing to do so results in the waiver of the issue
not ruled upon.”) (citations omitted).
Moreover, we observe that Mr. Perez has also waived certain aspects of
his present argument by failing to raise such theories in his brief in support of
his post-trial motion. Specifically, therein, he did not argue to the trial court
that he had no reason to call Ms. Albaugh in his case-in-chief on the issue of
causation. See Mr. Perez’s Brief at 29 (stating that “there was simply no
reason for Mr. Perez to call Ms. Albaugh in his case-in-chief on the issue of
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11 Mr. Perez acknowledged in his brief in support of his post-trial motion that
the trial court did not definitively deny his request to call Ms. Albaugh as a
witness on rebuttal. See Mr. Perez’s Brief in Support of Post-Trial Motion,
7/13/18, at 35 (“… [Mr. Perez] sought to call Ms. Albaugh during rebuttal. The
[c]ourt seemingly did not permit [Mr. Perez’s] counsel to do so although
admittedly the record is somewhat unclear.”) (citations omitted).
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causation…”); see also 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.”); Newman
Development Group of Pottstown, LLC v. Genuardi’s Family Market,
Inc., 98 A.3d 645, 658 n.16 (Pa. Super. 2014) (“A new argument cannot be
raised in support of an issue on appeal if it was not first presented before the
trial court. Thus, this argument is waived.”) (citation omitted). Instead,
before the trial court, Mr. Perez only contended that he “did not call Ms.
Albaugh during his case-in-chief because he believed that [Appellees] would
call her as a live witness during their case[,]” and complained that he had
gained additional facts and evidence since Ms. Albaugh’s deposition that he
needed in order to properly examine her. See Mr. Perez’s Brief in Support of
Post-Trial Motion at 35. Consequently, based on the arguments before it, the
trial court weighed that “counsel for Mr. Perez had previously deposed Ms.
Albaugh, and had a full and fair opportunity [to] call her as a witness during
his case-in-chief, and admittedly failed to do so, with no explanation.” TCO
at 23 (emphasis added). We would discern no error or abuse of discretion by
the trial court in this regard. As Appellees state, “If Mr. Perez required
testimony from [Ms.] Albaugh for purposes of his evidence, he could have
called her as a witness during his case-in-chief. … The mere fact that Mr.
Perez’s counsel … ‘expected’ [Appellees] to call [Ms. Albaugh] during their
case-in-chief does not bear on whether [Ms.] Albaugh was an appropriate
rebuttal witness.” Appellees’ Brief at 27. As such, no relief is due on this
basis.
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Refusing to Provide an Adverse Inference Instruction
Finally, Mr. Perez argues that the trial court “should have provided the
jury with an adverse inference instruction with respect to [Ms.] Albaugh’s
failure to appear at trial[,]” specifically Pennsylvania Suggested Standard Jury
Instruction 5.40 (Civ) – Failure to Call a Witness - Adverse Inference. Mr.
Perez’s Brief at 31 (unnecessary capitalization and emphasis omitted). He
points to case law stating that, “[w]here evidence which would properly be
part of a case is within the control of the party whose interest it would naturally
be to produce it, and without satisfactory explanation, he fails to do so, the
jury may draw an inference that it would be unfavorable to him.” Id. at 32
(citing Rupnik v. Pa. R. Co., 194 A.2d 906, 909 (Pa. 1963)) (emphasis in
brief). Mr. Perez claims that Appellees had sole control over Ms. Albaugh, her
testimony was expected to favor Dr. Maroon, and Appellees did not offer a
satisfactory explanation as to why she was unavailable. Id. As a result, Mr.
Perez says that he “was prejudiced, as the jury was left to speculate as to
whether it was somehow Mr. Perez’s decision not to call this witness.” Id.We recognize that “[t]he decision to issue a missing witness instruction,
or alternatively whether to permit counsel to make an argument on closing
equivalent to such an instruction, is a matter within the trial court’s discretion
which this Court will not overturn absent manifest abuse.” Hawkey v.
Peirsel, 869 A.2d 983, 986 (Pa. Super. 2005) (internal quotation marks and
citation omitted). Further, “availability is not an abstract concept but a fact-
based matter. Absent a showing that the witness in question was ‘peculiarly
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available’ to one party and not the other, we will not disturb a trial court’s
exercise of discretion in denying a party the opportunity to argue an adverse
inference in closing.” Id. at 988-89. To illustrate, in Hawkey, this Court
agreed that the plaintiffs should not be permitted to urge the jury to draw an
adverse inference against a hospital for not calling two of the nurses it
employed to testify at trial, where the plaintiffs presented no evidence that
the hospital exercised exclusive control over them or that the nurses were not
equally available to both parties. See id. at 987-89. This Court noted that
the plaintiffs in that case had advance notice of the two nurses’ potential
relevance to the case, but made no effort to depose them and ensure their
appearance at trial. Id. at 989.
Here, Mr. Perez has not demonstrated that Ms. Albaugh was ‘peculiarly
available’ to Appellees. Appellees aptly discern that Ms. Albaugh “was known
to Mr. Perez and, in fact, was identified in his Pretrial Statement. [He] made
no efforts to secure [her] attendance at trial, and her status as an employee
of one of the defendants cannot make her ‘unavailable’ for purposes of the
‘missing witness’ rule.” Appellees’ Brief at 28 (citing Hawkey, supra).Indeed, at trial, Mr. Perez’s counsel conceded that he could have called Ms.
Albaugh in his case-in-chief. See N.T. at 3278, 3280; see also Mr. Perez’s
Brief in Support of Post-Trial Motion at 35 (claiming that he did not call Ms.
Albaugh in his case-in-chief only because he believed that Appellees would
call her as a live witness during their case). Accordingly, the trial court
observed that “Mr. Perez deposed Ms. Albaugh prior to trial[,] and made no
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effort to call her for Mr. Perez’s case-in-chief.” TCO at 23 (citation omitted).
Thus, because Mr. Perez has not demonstrated that he could not have called
Ms. Albaugh, the trial court did not abuse its discretion in refusing to give an
adverse inference instruction due to Ms. Albaugh’s failure to appear at trial.
Mr. Perez’s Second Issue
In Mr. Perez’s second issue, he argues that “the trial court committed
reversible error in improperly permitting hearsay statements of Loretta
Blyshak[] to be used at trial and then failing to provide Mr. Perez an[] adverse
inference instruction for her failure to appear at trial.” Mr. Perez’s Brief at 32
(unnecessary capitalization and emphasis omitted). By way of background,
according to Mr. Perez, Ms. Blyshak, a former employee of UPMC, “accessed
Mr. Perez’s medical records relating to his hospital admission, hours after-the-
fact[,] and documented an alleged conversation between Mr. Perez’s mother[,
Mary Ann Perez,] and herself.” Id. at 33 (emphasis, citation, and footnote
omitted); see also id. at 6. Mr. Perez describes that Ms. Blyshak documented
the alleged conversation in the ‘Spiritual Comments’ section of his medical
record, relaying that “Mr. Perez’s mother contacted a nurse and asked her to
visit with Mr. Perez hoping that Mr. Perez would open up to her about his
eating disorder and his desire to retire from being a jockey.” Id. at 33
(citation omitted). At trial, after Mary Ann Perez had testified on direct-
examination that Mr. Perez expected to return to horse racing following the
surgery, Mr. Perez explains that Appellees’ counsel then used Ms. Blyshak’s
record against her and displayed it to the jury during cross-examination. See
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id. at 33-34; see also N.T. at 1510. Mr. Perez’s counsel objected to its use,
but the trial court overruled his objection after Appellees stated that they were
using the record for “impeachment of the witness based on her representation
as to what her son was saying and his desire to return [to racing].” See N.T.
at 1552; see also Mr. Perez’s Brief at 34.12 Mr. Perez now argues that Ms.
Blyshak’s medical record was inadmissible hearsay and not proper
impeachment, and insists that the trial court should have provided Mr. Perez
with an adverse inference instruction because Appellees failed to call Ms.
Blyshak as a witness. Id. at 34-41.
Initially, we deem Mr. Perez’s claim regarding the adverse inference
instruction waived due to his failure to include it in his Rule 1925(b) statement.
Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement and/or not
raised in accordance with the provisions of this paragraph (b)(4) are
waived.”); see also Order, 1/31/19, at 2 (stating that “[a]ny issue not
properly included in [Rule 1925(b)] [s]tatement timely filed and served … shall
be deemed waived”). With respect to whether the trial court erred in
improperly permitting Appellees to use Ms. Blyshak’s statements at trial, we
fail to see how any erroneous evidentiary ruling by the trial court regarding
Ms. Blyshak’s statements would be so prejudicial as to affect the verdict and
warrant a new trial. See Folger v. Dugan, 876 A.2d 1049, 1054 (Pa. Super.
____________________________________________
12 After Appellees’ counsel showed Mary Ann Perez the record, she admitted
that Mr. Perez, like many jockeys, “was what they call a heaver” and “would
eat and heave.” N.T. at 1554. She denied, however, that her son had a desire
to retire. Id.- 18 -
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2005) (“Evidentiary rulings which did not affect the verdict will not provide a
basis for disturbing the jury’s judgment. In making this determination, we
must consider whether a new trial would produce a different verdict. If there
is any support in the record for the trial court’s denial of a new trial, we must
affirm the trial court’s order.”) (citations omitted); Gunn v. Grossman, 748
A.2d 1235, 1243 (Pa. Super. 2000) (“To constitute reversible error, an
evidentiary ruling must not only be erroneous, but also harmful to the
complaining litigant. [W]e will not reverse the trial court’s denial of a new
trial unless there is a clear abuse of discretion or an error of law, which
controlled the outcome of the case.”) (citations omitted). Mr. Perez argues
that, as a result of Ms. Blyshak’s statements, Mary Ann Perez “was made to
look like a liar on the stand rather than [Ms.] Blyshak. Further, Mr. Perez had
absolutely no ability to refute her statements contained in the admission
record … because she did not appear at trial.” Mr. Perez’s Brief at 40.
Moreover, he claims that “[p]erhaps more significantly, the jury was able to
hear statements of [Ms.] Blyshak relating to a conversation with [Mary Ann]
Perez with the belief [sic] that Mr. Perez really did ‘desire to retire’ and was
using Dr. Maroon’s surgery as an excuse to retire (thus, that [Mr. Perez] had
no real damages) even though the statements were unauthenticated hearsay,
self-serving for Appellees[,] and completely unverified by anyone during the
trial.” Id. at 40-41 (emphasis omitted). He adds that the purported
statement of Mary Ann Perez also served to “collaterally impeach” him. Id.
at 41.
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The jury in the case sub judice found that, although Dr. Maroon was
negligent, his negligence was not a factual cause of any harm to Mr. Perez.
As Appellees ascertain,
[E]ven if the [t]rial [c]ourt’s evidentiary ruling was somehow an
abuse of discretion, the testimony could not have influenced the
jury’s verdict. [Mary Ann] Perez was impeached with a prior
inconsistent statement about Mr. Perez’s intention to retire. This
bears only upon the issue of potential economic damages, e.g.,
the amount of earnings loss attributable to working as a jockey,
not to the overarching issue of causation of any injury or damages,
economic or non-economic. Since the jury found that any alleged
negligence of [Appellees] did not cause harm to Mr. Perez, the
jury never reached the “downstream” question of the nature of
the earnings loss. Simply put, Mr. Perez’s testimony (and Nurse
Blyshak’s entries in the hospital record impeaching that
testimony) could not reasonably be deemed to have brought
about that verdict. To the extent there was error, it was harmless.
Appellees’ Brief at 32-33. We agree with Appellees that this evidentiary ruling
could not have controlled the outcome of this case. No relief is due.
Mr. Perez’s Third Issue
In Mr. Perez’s third issue, he claims that the trial court erred in failing
to grant his request for JNOV. He argues that “he presented evidence such
that no two reasonable minds would disagree that Dr. Maroon was at least a
factual cause of harm to Mr. Perez.” Mr. Perez’s Brief at 41 (emphasis in
brief). He contends that he “presented overwhelming evidence that Dr.
Maroon was at least a factual cause of harm to him, and the court need look
no further than [Appellees’] medical records, the testimony of Dr. Maroon[,]
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and [Dr. Maroon’s] own expert, [William C.] Welch[, M.D.], to establish the
same as a matter of law.” Id. at 42-43 (emphasis in brief).13
We apply the following standard of review to such claims:
A JNOV can be entered upon two bases: (1) where the movant is
entitled to judgment as a matter of law; and/or, (2) the evidence
was such that no two reasonable minds could disagree that the
verdict should have been rendered for the movant. When
reviewing a trial court’s denial of a motion for JNOV, we must
consider all of the evidence admitted to decide if there was
sufficient competent evidence to sustain the verdict. In so doing,
we must also view this evidence in the light most favorable to the
verdict winner, giving the victorious party the benefit of every
reasonable inference arising from the evidence and rejecting all
unfavorable testimony and inference. Concerning any questions
of law, our scope of review is plenary. Concerning questions of
credibility and weight accorded the evidence at trial, we will not
substitute our judgment for that of the finder of fact. If any basis
exists upon which the [court] could have properly made its award,
then we must affirm the trial court’s denial of the motion for JNOV.
A JNOV should be entered only in a clear case.
V-Tech Services, Inc. v. Street, 72 A.3d 270, 275 (Pa. Super. 2013)
(citation omitted).
Here, in denying Mr. Perez’s request for JNOV, the trial court explained:
A review of the record demonstrates [that] there was sufficient
competent evidence to sustain the jury’s verdict that the
negligence of Dr. Maroon was not a factual cause of any harm to
Mr. Perez.
[T]he theory of Mr. Perez’s case was that Dr. Maroon negligently
placed a surgical screw during the performance of a cervical
discectomy, which resulted in a myriad of problems, including
non-union, and ultimately resulted in the need for several revision
surgeries. In fact, Mr. Perez had presented expert testimony to
____________________________________________
13 Mr. Perez cites to no case law supporting his JNOV argument in his initial
brief, but instead relies on the Pennsylvania Suggested Standard Civil Jury
Instruction for Factual Cause. See Mr. Perez’s Brief at 41-42.
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that effect, including the testimony of Robert Beatty, M.D., and
Randy Davis, M.D. However, as with most medical negligence
cases, Dr. Maroon likewise presented expert testimony that Dr.
Maroon’s conduct was not a factual cause of Mr. Perez’s post-
surgical issues.
For example, defense expert, [Dr. Welch,]3 … testified that Dr.
Maroon’s pre-operative, intraoperative, and post-operative care
was not a factual cause of harm to Mr. Perez. [N.T. at] 2911-
[]14. Specifically, Dr. Welch testified the placement of the screw
in the disc would not cause pain or impede cervical rotation, which
were two of Mr. Perez’s post-surgical complaints. [Id. at] 2912-
[]13. Dr. Welch also testified [that] Mr. Perez’s post-operative
swallowing complaints were common issues shared by most
patients undergoing this surgery, and that some patients have
persistent swallowing problems even after the removal of the
surgical plate, which was an issue for Mr. Perez. [Id. at] 2914-
[]15.
3Dr. Welch is a board certified neurosurgeon who practices
at the Pennsylvania Hospital in Philadelphia, Pennsylvania.
Dr. Welch performs approximately 600 operations a year
and the vast majority of those operations are spine surgery.
[N.T. at] 2890.
Furthermore, Dr. Welch noted that Mr. Perez’s neck pain and
swallowing problems persisted following the revision surgeries,
and that Mr. Perez also experienced two non-fusions following the
revision surgeries, again the identical problems that he faced
following Dr. Maroon’s initial surgery. [Id. at] 2951-[]54. Thus,
Dr. Welch opined that Mr. Perez’s symptoms might not have been
any different even if the screw had been placed in a different
position, and therefore any alleged negligence was not a factual
cause of Mr. Perez’s post-surgical problems. [Id. at] 2961-[]62.
Clearly, Dr. Maroon put forth sufficient evidence to support the
verdict, and where there is sufficient competent evidence to
sustain the verdict, JNOV is not warranted. Condio v. Erie Ins.
Exchange, 899 A.2d 1136 (Pa. Super. 2006).
In addition, the testimony [of] Mr. Perez’s own treating physician,
Andrew Hecht, M.D.,4 would likewise support the jury’s finding of
no factual cause. One of Mr. Perez’s primary concerns following
Dr. Maroon’s surgery was the non[-]union and loosening of the
surgical applicances [sic], which was allegedly the result of the
negligent placement of the surgical screw. However[,] Dr. Hecht
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testified that following his revision surgeries in 2011 and 2012, he
also found loose screws, loose hardware, and non-fusion, the
same or similar findings following Dr. Maroon’s surgery. [N.T. at]
887-88. Dr. Hecht acknowledged a patient can develop a non-
fusion, pseudoarthrosis and loose screws, complaints of Mr. Perez
following Dr. Maroon’s surgery, even if the surgeon exercises very
good or perfect technique. [Id. at] 914. Again, further evidence
that would support a finding of no factual cause by the jury.
4Dr. Hecht is the neurosurgeon that performed the revision
surgeries, and testified as a fact witness in this case.
Thus, viewing the evidence in the light most favorable to
[Appellees], and giving [Appellees] the benefit of every
reasonable inference arising from the evidence and rejecting all
unfavorable testimony and inference[s], it was reasonable for the
jury to find that Dr. Maroon’s negligence did not contribute to Mr.
Perez’s injuries.
TCO at 14-17 (emphasis in original).
On appeal, Mr. Perez advances a myriad of arguments as to how the
evidence presented at trial demonstrated that Dr. Maroon was at least a
factual cause of harm to him. However, these arguments implicate the weight
of the evidence, and do not address the issue of whether there was sufficient
competent evidence to sustain the verdict. See V-Tech Services, Inc.,
supra (“Concerning questions of credibility and weight accorded the evidence
at trial, we will not substitute our judgment for that of the finder of fact.”);
see also Morin v. Brassington, 871 A.2d 844, 851 (Pa. Super. 2005)
(“[T]he remedy of entry of judgment in a party’s favor is proper only when a
party successfully challenges the sufficiency of the evidence. On the other
hand, the remedy of a new trial is proper when the verdict rendered by the
trial court indicates that the trial court abused its discretion when weighing
the evidence.”) (emphasis in original; citations omitted); Appellees’ Brief at
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36 n.14 (observing that “Mr. Perez’s [b]rief includes over 10 pages of
argument regarding the alleged ‘overwhelming evidence’ presented that Dr.
Maroon was a factual cause of harm”) (citation omitted). Accordingly, we
need not address these arguments here, as they do not concern whether there
was sufficient competent evidence to sustain the verdict.
With respect to the trial court’s finding that sufficient competent
evidence supported the verdict, Mr. Perez argues:
The trial court found that the testimony of Appellees’ expert, Dr.
Welch, supported the jury’s verdict, ignoring the admission of Drs.
Maroon and Welch. Specifically, the court pointed to Dr. Welch’s
testimony that: (a) Dr. Maroon’s inferior placement of the screw
in the disc would not cause pain or impede Mr. Perez’s ability to
turn his head; and (b) Mr. Perez’s neck pain and swallowing
problems persisted following Dr. Hecht’s revision surgeries and
that Mr. Perez experienced two non-fusions following the revision
surgeries.
First, if it were true that Mr. Perez’s pain and movement issues
were not attributable to Dr. Maroon’s inferior screw placement as
Dr. Welch claimed, then why did Dr. Maroon prescribe 30
Oxycodone upon discharging Mr. Perez from the hospital, then
over the course of only eight days in December post-surgery,
prescribe[] ninety more Oxycodone[,] and then another forty on
December 29? Beyond that, even more were prescribed by other
physicians[] post Dr. Maroon scripts. Second, the record is devoid
of any explanation from either Dr. Maroon or his expert as to the
blatantly incorrect claim that Mr. Perez was well-fused when he
was not. Third, … Dr. Hecht established that Dr. Maroon’s surgery
required all [of] the revision surgeries.
Mr. Perez’s Brief at 58-59 (internal citations omitted).
Mr. Perez’s Pain
None of these arguments convinces us that the trial court erred in
denying Mr. Perez’s request for JNOV. First, Dr. Welch stated that he has had
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“screws go into the dis[c] space[,]” and has “not seen them associated with
pain.” N.T. at 2912. Regarding Dr. Maroon’s prescribing Oxycodone to Mr.
Perez, Dr. Welch testified that Mr. Perez,
was on narcotics before surgery. It’s very common for patients
on narcotics when they go into surgery to require narcotics for
some period of time after surgery for whatever it was that we did,
and he may have been on pain medicines for any one of these
other multitude of injuries[.] I don’t know exactly, but we
prescribe them for pain.
N.T. at 3062. Thus, Mr. Perez’s use of narcotics for pain does not undermine
Dr. Welch’s testimony that the placement of the screw in the disc space would
not cause pain.
Claim that Mr. Perez was Well-Fused
Second, Mr. Perez contends that, “[a]ccording to Dr. Welch, Mr. Perez’s
condition in April justified a revision. However, Dr. Maroon did not document
any offer of a revision at that time. Instead, Dr. Maroon told Mr. Perez … that
he was ‘well fused[,’] when he was not. Dr. Maroon and his expert agree that
such information was inaccurate.” Mr. Perez’s Brief at 54 (citations and
footnote omitted). Mr. Perez argues that “[s]uch testimony … establishes that
a JNOV is required because … as the months passed without a revision being
offered, Mr. Perez’s condition continued to deteriorate. Harm was being
increased to him on a daily basis….” Id. at 55.
We disagree. At trial, Mr. Perez’s counsel showed Ms. Albaugh’s April
19, 2010 note — which we discussed supra — to Dr. Welch. N.T. at 3088.
Ms. Albaugh’s note stated: “Notified of results. Offered removal of titanium
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plate as C5-6 level is well fused. Pt will consider and contact office if he wishes
plate removal.” Mr. Perez’s Exhibit 134. Mr. Perez’s counsel then asked Dr.
Welch:
[Mr. Perez’s counsel:] [L]et’s make the assumption hypothetically
that it was somehow proven that this note is accurate. My client
[contests that it] is. But assume it’s proven accurate and the jury
accepts it as accurate, this is not an accurate representation of
what’s really occurring, because my client needs a revision at this
point in time, and in here, it makes it sound like, oh, we’ll just go
look at the plate. Right? It’s an understatement of what’s going
on.
[Dr. Welch:] So the patient is experiencing neck pain and
dysphagia,[14] correct?
[Mr. Perez’s counsel:] And cervical rotation issues and losing
weight.
[Dr. Welch:] That’s--
[Mr. Perez’s counsel:] And a lot of other things, sir.
[Dr. Welch:] The weight limitation I didn’t see recorded. I’m
happy to do that as a hypothetical or not. Okay.
So now, the question is and you see it, why, what tests can we
get? So to address the dysphagia now at this point, Dr. Maroon
is offering removal of the titanium plate.
You do that, you’re staring right at the fusion that you did. You’re
going to explore the fusion.
Does that mean he’s going to revise it? I don’t know. I’m sure
you asked Dr. Maroon [if he] had planned to revise it at that period
of time, but it means he’s addressing this man’s problems. He’s
addressing them sequentially.
Removing the plate one would hope might improve the dysphagia.
It might not. It might. But it would allow you to see at least
whether or not the fusion is solid.
____________________________________________
14 Dysphagia refers to difficulty swallowing. See Appellees’ Brief at 39.
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You can address it right then. Whether or not he planned on doing
a revision then, I don’t know. He never says revision here.
[Mr. Perez’s counsel:] Right. He never says revision anywhere in
his notes, right?
[Dr. Welch:] In my opinion, in retrospect, does he need a fusion
– does he need a revision of his fusion at this point? Probably.
It’s now six months. The man is not making the improvement
that is expected.
[Mr. Perez’s counsel:] Is it reasonable to just remove the plate
and see?
[Dr. Welch:] It certainly is. I’ll leave it at that.
[Mr. Perez’s counsel:] So if the jury thinks and believes that this
note – by the way, this statement here, “C5-6 level is well fused,”
that’s just not based on reality, is it?
[Dr. Welch:] In retrospect, I don’t think that’s accurate.
N.T. at 3090-92.
In addition, Dr. Maroon noted at trial that, by 4 or 5 months after
surgery, 90 to 98% of patients who have had this surgery have a fusion, and
explained that:
The only way … to determine for certain that there is a fusion is
by touching it, looking at it, feeling it, and seeing if it moves.
That’s the only way 100 percent certainly [sic] that you can
determine if there’s a fusion. That’s what I offered in terms of
removing the plate. That is part of the procedure when you do a
revision surgery to see if there’s any abnormalities.
Id. at 1997.15
Viewing this evidence in the light most favorable to Appellees as the
verdict winner, giving them the benefit of every reasonable inference arising
____________________________________________
15Dr. Maroon also testified that “[i]f you go in to somebody’s neck for a second
time to remove a plate, it’s automatic that you would check the fusion.” N.T.
at 1994.
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from the evidence and rejecting all unfavorable testimony and inference, see
V-Tech Services, Inc., supra, the jury could have believed that, though Dr.
Maroon conveyed to Mr. Perez that he was well-fused when he was not, Mr.
Perez did not follow up on Dr. Maroon’s offer to remove the plate and thereby
check the fusion.16 In fact, Mr. Perez himself recognizes that, “[i]f the jury
believed that Dr. Maroon offered Mr. Perez a revision surgery and that Mr.
Perez either declined or did not follow up on Dr. Maroon’s offer, then the jury
could have potentially concluded that Dr. Maroon’s negligence was not a
factual cause of harm to Mr. Perez.” Mr. Perez’s Brief at 25 n.6; see also id.
at 31 (noting that “a jury could have been erroneously misled into believing
that if Dr. Maroon did in fact offer to remove the plate, and Mr. Perez failed to
accept that offer, then Dr. Maroon would not have caused Mr. Perez[’s]
injuries. In other words, Mr. Perez’s injuries were his own fault because he
failed to accept Dr. Maroon’s corrective measures that could have reduced or
alleviated his injuries.”). Thus, no relief is due on this basis.
Dr. Hecht’s Testimony
Third, Mr. Perez says that “Dr. Hecht established that Dr. Maroon’s
surgery required all [of] the revision surgeries.” Id. at 59. He asserts that
“Dr. Hecht testified that the four remedial surgeries he had to perform were
____________________________________________
16Appellees also point out that Dr. Hecht testified that Mr. Perez told him that
Dr. Maroon had advised a possible revision from the original surgery, and
explained that the earliest timeframe for having concerns about a fusion is
usually six to eight months after surgery. N.T. at 894-95, 902-03; see also
Appellees’ Brief at 39 (citations omitted).
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all related to Dr. Maroon’s initial 2009 surgery. Dr. Hecht: ‘I think that the
first surgery was the cause of the second surgery. And the second surgery –
and so on. So it all starts somewhere.’” Id. at 57 (citations omitted). Mr.
Perez argues that, “[d]espite that unequivocal testimony, the trial court
somehow reinterpreted Dr. Hecht’s testimony to support a finding in favor of
Dr. Maroon.” Id. at 57-58 (citation omitted).
In making this argument, Mr. Perez ignores that Dr. Hecht also testified
at trial that patients could develop a non-fusion, pseudoarthrosis, and loose
screws even if the surgeon exercises very good or perfect technique. N.T. at
914. As the trial court discerned, such testimony constitutes further “evidence
that would support a finding of no factual cause by the jury.” TCO at 17.
Accordingly, we conclude that the trial court did not err in denying Mr. Perez’s
request for JNOV.
Mr. Perez’s Fourth Issue
In Mr. Perez’s final issue, he complains that the trial court “committed
reversible error in improperly not permitting an amendment of the complaint
to include an alternative allegation that Dr. Maroon was not present to perform
Mr. Perez’s surgery.” Mr. Perez’s Brief at 59 (unnecessary capitalization,
emphasis, and footnote omitted). He explains:
At the close of Mr. Perez’s case, counsel for Mr. Perez sought to
amend the complaint to include a subparagraph allegation that
the reason the negligent acts occurred in this case is because Dr.
Maroon was not present in whole or in part for the surgery. The
court understood the issues and the reasons behind the
amendment but deferred its ruling as to whether the amendments
would be granted. The issue was later revisited during the
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proposed points for charge process on Friday, May 25, 2018. The
court again deferred the issue. On Tuesday, May 29, 2018, the
court denied Mr. Perez’s motion to amend on the basis that it was
too prejudicial to the defense.
However, there was more than ample evidence presented to the
jury that Dr. Maroon might have not … been present to perform[]
Mr. Perez’s surgery[,] which explains why numerous actions were
done wrong or not at all.
Id. at 61-62 (internal citations omitted). Mr. Perez argues that “[a]n
amendment to include such an allegation was necessary in order to conform
Mr. Perez’s complaint to the evidence presented at trial[,]” and claims that a
jury “could have easily found that Dr. Maroon’s negligence caused [Mr.
Perez’s] injuries because he did not even perform the procedure in the first
place….” Id. at 62.
We apply the following standard of review to such claims:
A party may, at any time, with consent of an opposing party or by
leave of court, amend his or her pleading. A trial court has broad
discretion in ruling on a party’s motion to amend the pleadings.
An amendment will not be allowed, however, when it is against a
positive rule of law, where it states a new cause of action after the
statute of limitations has run, or when it will surprise or prejudice
the opposing party.
Somerset Community Hosp. v. Allan B. Mitchell & Associates, Inc., 685
A.2d 141, 147 (Pa. Super. 1996) (internal citations omitted).
The trial court explained that it denied Mr. Perez’s request to amend his
complaint “as it was introducing a completely new cause of action into the
case, two weeks into the trial. There is no doubt that allowing an amendment
at that late stage would ‘surprise and prejudice’ Dr. Maroon, as for the seven
years that the case existed, that was never a consideration in the defense of
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the case.” TCO at 29 (citations omitted). The trial court added that “to allow
the amendment would create a completely new cause of action, of which the
two year statute of limitations would have long since expired.” Id. at 29-30
(citation omitted).
We discern no abuse of discretion. This Court has stated that “[a]n
amendment introducing a new cause of action will not be permitted after the
[s]tatute of [l]imitations has run in favor of a defendant. Only if the proposed
amendment merely amplifies, as opposed to altering, the cause of action
already averred, will it be allowed if the statute of limitations has run.”
Chaney v. Meadville Med. Ctr., 912 A.2d 300, 303-04 (Pa. Super. 2006)
(citations omitted; some brackets added). Further, we observed that “[a] new
cause of action does arise … if the amendment proposes a different theory or
a different kind of negligence than the one previously raised or if the operative
facts supporting the claim are changed.” Id. at 304 (citations and emphasis
omitted); see also John Goffredo and Sons, Inc. v. S.M.G. Corp., 446
A.2d 255, 256 (Pa. Super. 1982) (“In the context of amendment of pleadings,
we have defined a new cause of action as a ‘different theory’ or ‘basis for
recovery.’”).
Here, the statute of limitations for an action to recover damages for
injuries caused by the negligence of another is two years. 42 Pa.C.S. § 5524.
We have no reason to disagree with the trial court that the statute of
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limitations has expired in this case.17 Moreover, as Appellees set forth, “Mr.
Perez sought to amend his [c]omplaint to assert that, as an alternative to
negligently performing surgery, Dr. Maroon did not actually perform the
surgery. This proposed amendment regarding Dr. Maroon not performing
surgery would have fundamentally altered the type of malpractice alleged.”
Appellees’ Brief at 43-44 (footnote omitted).18 We agree. In addition, Mr.
Perez has not convinced us that the trial court abused its discretion in
determining that the amendment would have caused surprise and prejudice
to Appellees. See Mr. Perez’s Brief at 63 (arguing that the amendment would
____________________________________________
17 Mr. Perez cursorily advances that “Dr. Maroon denies to this day that he
was not present for the surgery. Thus, he is hard pressed to argue the statute
of limitations is running on such a claim as he and his counsel dispute that
such a claim has ever arisen to begin with.” Mr. Perez’s Brief at 64 n.19; see
also Mr. Perez’s Reply Brief at 29 (“Appellees deny there is any evidence that
Dr. Maroon was not in the room, therefore, they cannot simultaneously argue
the statute of limitations has even begun to run, given the discovery rule
and/or equitable tolling.”) (citation omitted). However, Mr. Perez does not
sufficiently develop an argument in support of this contention and, therefore,
we do not address this claim further. See Commonwealth v. Gibbs, 981
A.2d 274, 284 (Pa. Super. 2009) (“It is [an a]ppellant’s obligation to
sufficiently develop arguments in his brief by applying the relevant law to the
facts of the case, persuade this Court that there were errors below, and
convince us relief is due because of those errors. If an appellant does not do
so, we may find the argument waived.”) (citation omitted).
18Mr. Perez argues that he did “allege that Dr. Maroon did not take certain
action in connection with his surgery. The reason why he did not act (whether
because of neglect or because he was not there) caused no surprise to Dr.
Maroon.” Mr. Perez’s Reply Brief at 29 (emphasis and citation omitted). In
support of this claim, Mr. Perez generally cites to his complaint, but does not
specify which allegations convey that Dr. Maroon did not actually perform the
surgery. We decline to scour his 61-page complaint for him.
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not have caused Appellees any undue surprise or prejudice because of a qui
tam action that Mr. Perez does not elaborate on, and because of references to
Dr. Maroon’s alleged absence Mr. Perez says he made in his response in
opposition to Appellees’ motion for partial summary judgment on the issue of
punitive damages). Accordingly, no relief is due.
Ms. Perez’s Appeal
We next turn to Ms. Perez’s appeal. She raises the following issues for
our review:
1. Whether the trial court committed reversible error in failing to
grant a new trial or, in the alternative, an evidentiary hearing
where after-acquired evidence confirmed the existence of an
undisclosed relationship between Juror 11 and Ms. Molnar, an
adverse witness[,] that was not disclosed at any time prior to the
verdict being rendered?
2. Whether a new trial should have been awarded given that the
verdict was against the weight of the evidence?
Ms. Perez’s Brief at 6.19
Before we delve into Ms. Perez’s issues, we address Appellees’
application to quash her appeal, which remains pending before us. Appellees
argue that Ms. Perez, who has asserted a claim for loss of consortium, “cannot
argue appellate issues unrelated to her loss of consortium claim[,]” and
consequently ask us to quash her appeal and strike her brief. Application to
Quash, 1/16/20, at ¶ 20. Citing to Scattaregia v. Shin Shen Wu, 495 A.2d
____________________________________________
19 Like Mr. Perez, Ms. Perez states that she “incorporates by reference the four
issues and arguments presented by [Mr.] Perez in his Brief for Appellant as if
set forth more fully herein.” Ms. Perez’s Brief at 16 n.5. See also Pa.R.A.P.
2137, supra; Briggs, supra.
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552, 553, 554 (Pa. Super. 1985), Appellees explain that “Pennsylvania courts
have long held that an action for loss of consortium is derivative[,]” and
“[b]ecause a loss of consortium action has been viewed as derivative[,] its
success in this Commonwealth has always been dependent upon the injured
spouse’s right to recover.” Application to Quash at ¶ 21. Consequently,
Appellees state that Ms. Perez “could not recover in this action unless the jury
found that [Appellees] were negligent and a cause of harm; accordingly, at
trial, [Mr. Perez] was the only party who presented evidence and/or testimony
on the issue of liability because [Mr. Perez], and not [Ms. Perez], asserted a
cause of action for negligence and thus, he bore the burden of proof with
regard to that claim.” Id. at ¶ 22. Appellees claim that Ms. Perez’s brief “is
simply an attempt to evade the word limit for appellate briefs[,]” and that
“she, along with [Mr. Perez], are not entitled to a second [b]rief on distinct
appellate issues by virtue of their divorce during the pendency of this lawsuit
and her attainment of separate counsel.” Id. at ¶¶ 1, 30.
In response, Ms. Perez counters that, pursuant to Pa.R.A.P. 501, “any
party who is aggrieved by an appealable order … may appeal therefrom[.]”
Ms. Perez’s Answer, 1/28/20, at ¶ 18 (emphasis in original). She agrees with
Appellees that her “loss of consortium claim is dependent upon [Mr. Perez’s]
right to recover, and she could not recover unless the jury found that
Appellees were negligent.” Id. As such, she says she “has a vested interest
in the outcome of this appeal, was aggrieved from the decision of the lower
court, and has standing to appeal.” Id.
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Appellees have not persuaded us that Ms. Perez is not ‘aggrieved’ under
Pa.R.A.P. 501, or that she cannot argue the issues she raises because they
purportedly do not relate to her loss of consortium claim. Accordingly, we
deny Appellees’ application to quash.
Ms. Perez’s First Issue
In Ms. Perez’s first issue, she argues that the trial court erred “in failing
to grant a new trial or, in the alternative, an evidentiary hearing where after-
acquired evidence confirmed the existence of an undisclosed relationship
between Juror 11 and Ms. Molnar, an adverse witness.” Ms. Perez’s Brief at
18 (unnecessary capitalization and emphasis omitted). The trial court
provided the following background on this issue:
[D]uring the jury selection process, a woman by the name of
Eli[s]abeth Molnar was mentioned as one of thirty-three potential
witnesses that would be called to testify in the case on behalf of
Mr. Perez. Ms. Molnar was previously Ms. Perez’s divorce
attorney, although she ultimately was not called to testify at trial,
her name was never mentioned during the trial, and to the
court[’s] knowledge she was never present in the courtroom
during the trial. There was no information whatsoever provided
to the jury who Ms. Molnar was, or what information she may have
had that would have been relevant to the case. Again, she was
simply one of a laundry list of thirty-three potential witnesses
identified by counsel, most of which were not actually called as
witnesses at trial.
On July 13, 2018, more than two months following jury selection,
Mr. Perez produced an affidavit of John C. Archiniaco (“Archiniaco
affidavit”), who had been providing investigative services on his
behalf. The Archiniaco affidavit discloses that Ms. Molnar was
“friends on Facebook” with a woman who ultimately was seated
at trial as [Juror] 11. The Archiniaco affidavit likewise noted some
Facebook “communications in the form of ‘likes’ on posts and
photos” between Ms. Molnar and [Juror] 11 sometime prior to
trial. The Archiniaco affidavit was provided to the court as an
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exhibit to [Mr. Perez’s] [b]rief [in support of his post-trial motion],
as evidence to support the need for further inquiry of the jury as
to any irregularities or “outside influence.” Thereafter,
[Appellees] filed a Motion to Strike Affidavit of John C. Archiniaco,
which this court granted on November 9, 2018.
TCO at 9-10 (internal citation omitted).20
With respect to why it did not hold an evidentiary hearing, the trial court
explained:
[Mr. and Ms. Perez] … argue [that] this [c]ourt erred in denying
Mr. Perez’s request for an evidentiary hearing on extraneous
influences on the jury, again based on the Archiniaco affidavit.
The standard for determining the admissibility of post-verdict
juror testimony, pursuant to Pennsylvania Rule of Evidence
606(b), is well established:
Upon an inquiry into the validity of a verdict, … a juror may
not testify as to any matter or statement occurring during
the course of the jury’s deliberations or to the effect of
anything upon that or any other juror’s mind or emotions in
reaching a decision upon the verdict or concerning the
juror’s mental processes in connection therewith, and a
juror’s affidavit or evidence of any statement by the juror
about any of these subjects may not be received. However,
a juror may testify concerning whether prejudicial facts not
of record, and beyond common knowledge and experience,
were improperly brought to the jury’s attention or whether
any outside influence was improperly brought to bear upon
any juror.
Pratt v. St. Christopher’s Hosp., 866 A.2d 313, 320 (Pa. …
2005) (citations omitted); see also Pa.R.E. 606(b). Furthermore,
a trial court employs a limited-scope objective inquiry, which takes
into account facts and circumstances of the particular case and
focuses on how a typical juror would be affected by influence. Id.at 322-[]24 (citations omitted). This objective inquiry also
includes consideration of the associated guidelines in Carter by
____________________________________________
20We note that, with respect to this issue, Mr. Perez additionally filed a
supplemental brief in support of his post-trial motion on August 30, 2018, and
a motion for a hearing on September 11, 2018, which the trial court
subsequently denied.
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Carter v. United States Steel Corp., 604 A.2d 1010, 1016-[]17
(Pa. 1992), which provide that a new trial will be granted only
where there is a “reasonable likelihood of prejudice.” [Pratt, 866
A.2d] at 324. In determining whether there is a reasonable
likelihood of prejudice, a trial court should consider the following
factors:
(1) whether the extraneous influence relates to a central
issue in the case or merely involves a collateral issue; (2)
whether the extraneous influence provided the jury with
information they did not have before them at trial; and (3)
whether the extraneous influence was emotional or
inflammatory in nature.
Carter, 604 A.2d at 1016-[]17 (citations omitted).
Following the jury’s verdict, this [c]ourt polled each juror at the
request of counsel for Mr. Perez; each juror then affirmed the
verdict was their own. [N.T. at] 3597-[]98. Nonetheless, counsel
for Mr. Perez expressed serious dissatisfaction with the responses
and body languages of some of the jurors, particularly juror
number 5 and [Juror] 11. [Id. at] 3601-[]02. Counsel believed
“[t]he evidence in this case was overwhelming in favor of [his]
client.” [Id. at] 3602. Counsel further stated “[t]his is absolutely
unbelievable that this verdict came in in this manner,” and he
would “go to [his] grave saying that.” [Id. at] 3602-[]03. [The
court] then denied counsel’s subsequent request to permit further
inquiry of the jury because [it was] confident and comfortable with
the individual responses. [Id. at] 3603.
Relying solely on the affidavit of John C. Archiniaco, Mr. Perez then
filed a Motion for Hearing Regarding Jury Irregularities on
September 11, 2018. Mr. Perez essentially sought an evidentiary
hearing to determine whether Ms. Molnar influenced and/or
created bias with [Juror] 11. [T]his [c]ourt denied Mr. Perez’s
request for two reasons: First, because the alleged connection
between [Ms.] Molnar and Juror [11] was incredibly weak. Mr.
Archiniaco attached only one screenshot allegedly depicting [that
Juror] 11 “liked” [Ms.] Molnar’s profile picture on Facebook a[t]
sometime prior to trial. Mr. Archiniaco provided no other credible
or substantive evidence of extraneous influence for this [c]ourt’s
consideration, other than a vague “friendship on Facebook.”
Furthermore, even if some connection between the two existed,
the simple fact is that Ms. Molnar literally had nothing to do with
the trial. She was not a party. She was not a witness. She was
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not even present during the course of the trial. She was simply
one of thirty-three other potential witnesses identified by counsel
prior to trial, literally never to be heard from or about again during
the actual trial. Mr. Perez has cited no case[]law which would
require further inquiry into a relationship between a juror and a
non-participant at trial, and therefore the motion for a further
evidentiary hearing regarding extraneous influences of the jury
was denied.
TCO at 11-14.
Before proceeding to the merits of this issue, we must ascertain whether
Ms. Perez has preserved it for our review. Appellees insist that Ms. Perez
“never raised an alleged ‘Facebook’ relationship between Juror … 11 and [Ms.]
Molnar at any point during trial or post-trial proceedings. She did not file a
[m]otion requesting an evidentiary hearing as to any potential extraneous
influence on Juror … 11 and did not join in Mr. Perez’s [m]otion for such a
hearing. Likewise, Ms. Perez did not oppose [Appellees’] Motion to Strike
Affidavit of John C. Archiniaco or join in Mr. Perez’s opposition of said
[m]otion.” Appellees’ Brief at 23. Thus, Appellees say this issue has been
waived. Id. We agree, as “it is the appellant’s obligation to demonstrate
which appellate issues were preserved for review.” Commonwealth v.
Rush, 959 A.2d 945, 949 (Pa. Super. 2008) (citing Pa.R.A.P. 2117(c),
2119(e)); see also 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.”). Here, Ms. Perez
has not demonstrated how she raised and preserved this issue below. See
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Ms. Perez’s Brief at 19-20 (explaining how Mr. Perez raised this issue
below).21 Accordingly, this issue is waived.
Nevertheless, even if not waived and to the extent the issue is not
waived by Mr. Perez, who incorporated by reference this issue in his brief, we
would not grant relief. We apply the following standard of review:
We will reverse a trial court’s decision to deny a motion for a new
trial only if the trial court abused its discretion. An abuse of
discretion exists when the trial court has rendered a decision or a
judgment which is manifestly unreasonable, arbitrary, or
capricious, has failed to apply the law, or was motivated by
partiality, prejudice, bias or ill will. This Court may not substitute
its judgment for that of the trial court. 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. If
the record adequately supports the trial court’s reasons and
factual basis, an abuse of discretion will not be found.
____________________________________________
21 We recognize that Ms. Perez joined in, and incorporated by reference, Mr.
Perez’s motion for post-trial relief and brief in support thereof, which set forth
that Mr. Perez “obtained after-acquired evidence relating to Juror … 11 and
Ms. Molnar[,]” and “[b]ecause of this undisclosed relationship, a new trial is
in order or[,] in the alternative[,] an evidentiary hearing is necessary to
further ascertain the details of said relationship and why it was not disclosed
to [Mr. Perez] during jury selection.” See Mr. Perez’s Brief in Support of Post-
Trial Motion at 53. However, most of the theories and arguments supporting
this request for relief were developed below by way of Mr. Perez’s
Supplemental Brief in Support of Motion for Post-Trial Relief and Motion for
Hearing, which — based on our review of the record — Ms. Perez did not join
or incorporate by reference. Further, to the extent Ms. Perez argues that we
should grant a new trial where after-discovered evidence confirmed the
existence of a relationship between Juror 11 and Ms. Molnar, this claim is also
waived due to Ms. Perez’s failure to clearly include it in her Rule 1925(b)
concise statement. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the
Statement and/or not raised in accordance with the provisions of this
paragraph (b)(4) are waived.”).
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Pratt v. St. Christopher’s Hosp., 824 A.2d 299, 302 (Pa. Super. 2003), aff’d
866 A.2d 313 (Pa. 2005) (internal citations and quotation marks omitted).
First, Ms. Perez argues that Mr. Archiniaco’s affidavit “provided direct,
after-discovered evidence of an undisclosed relationship between an adverse
trial witness and Juror 11, and such evidence provides for a presumption of
prejudice which warrants a new trial.” Ms. Perez’s Brief at 20 (unnecessary
capitalization and emphasis omitted). Ms. Perez points to case law providing
that “[t]here are situations … when a court will presume prejudice on the part
of one of the jurors in order to insure fairness[,]” and explaining that “[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….”
Id. at 20, 21 (citations and emphasis omitted).22 In this instance, she says
that prejudice should be presumed because:
Juror 11 sat as a juror in this case yet never disclosed her
relationship with Ms. Molnar, a witness connected to Ms. Perez and
hostile to Mr. Perez. Mr. Perez (through his counsel via writ of
summons), sued [Ms.] Molnar and also identified that she
appeared to be working in tandem with Dr. Maroon’s daughter.
(R. 001882, 003941a-003943a). As such, it is likely that Ms.
Molnar, or even Dr. Maroon himself, had the power to exercise
control over Juror 11. Without any other facts, that, unto itself,
is enough to establish a presumption of prejudice that would
require a new trial.
____________________________________________
22With respect to our standard of review, Ms. Perez notes that where “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.” Ms. Perez’s
Brief at 21 (citing McHugh v. P&G Papers Prods. Cp., 776 A.2d 266, 270
(Pa. Super. 2001)); see also id. at 3.
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Id. at 23-24.
Even if properly preserved, we would reject this argument. In support
of the theory that Ms. Molnar was working in tandem with Dr. Maroon’s
daughter and had the power to control Juror 11, Ms. Perez cites only to
arguments — not evidence — advanced by Mr. Perez’s counsel at oral
argument on post-trial motions.23 Thus, we would agree with the trial court
that the alleged link between Mr. Molnar and Juror 11 was “incredibly weak[,]”
as “Mr. Archiniaco attached only one screenshot allegedly depicting [that
Juror] 11 ‘liked’ [Ms.] Molnar’s profile picture on Facebook a[t] sometime prior
to trial” and did not provide any “other credible or substantive evidence of
extraneous influence for this [c]ourt’s consideration, other than a vague
‘friendship on Facebook.’” TCO at 13.24 Moreover, the trial court persuasively
observed that Ms. Molnar “had nothing to do with the trial[,]” as she was
“simply one of thirty-three other potential witnesses identified by counsel prior
to trial, literally never to be heard from or about again during the actual trial.”
Id. Accordingly, Ms. Perez has not demonstrated that Juror 11 had a close
____________________________________________
23 Appellees also recognize that Ms. Perez’s theory is counterintuitive to the
extent that “Ms. Molnar, Ms. Perez’s divorce attorney, controlled one of the
jurors so that her client would ultimately lose out on a recovery at trial.”
Appellees’ Brief at 28.
24 Cf. Schwarzbach v. Dunn, 381 A.2d 1295, 1298 (Pa. Super. 1977)
(determining that the “potential for prejudice was great” where it was “quite
possible that a secretary in a law office could influence her husband in deciding
a matter in which her employer is counsel for one of the parties”).
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relationship with a witness at trial, which would warrant a presumption of
prejudice and necessitate a new trial.25 As such, we would not determine that
the trial court abused its discretion by denying Mr. Perez’s request for a new
trial on this basis.
Second, Ms. Perez contends that, “[a]lthough the relationship between
Juror 11 and [Ms.] Molnar warrants a presumption of prejudice and automatic
new trial…, at the very least, the trial court should have granted an evidentiary
hearing or conducted further inquiry post-verdict to address the jury issues
raised.” Ms. Perez’s Brief at 28. Ms. Perez states that, “even if the relationship
between [Ms.] Molnar and Juror 11 is deemed to be remote, further
questioning should have been conducted to determine if Juror 11 was
influenced by [Ms.] Molnar (or ultimately, Dr. Maroon) and if that influence
impacted the verdict.” Id. at 29.
Our Supreme Court has explained that, where post-verdict allegations
of extraneous information and/or outside influence affecting jury deliberations
arise, “[t]he procedure for development of such claims and their ultimate
disposition remain vested, in the first instance, within the sound discretion of
the trial courts.” Pratt, 866 A.2d at 324. In the case sub judice, we reiterate
the trial court’s observation that Mr. Perez provided no meaningful evidence
of extraneous influence, only that Ms. Molnar and Juror 11 were friends on
Facebook. TCO at 13. As Appellees identify, “[n]either Ms. Perez nor Mr.
____________________________________________
25 Our referral to the citation “R. 001882” leads us to the index of a trial
transcript, which we presume is error.
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Perez has ever presented even a hint of actual evidence of an extraneous
influence on the jury’s verdict. Rather, counsel for Mr. Perez requested an
evidentiary hearing so that he might uncover outside influences. The post-
verdict discovery of a Facebook ‘relationship’ between a hypothetical witness
and a juror reveals nothing of relevance to a Rule 606(b) determination….”
Appellees’ Brief at 33. We agree. Accordingly, we would conclude that the
trial court did not abuse its discretion in denying Mr. Perez’s request for an
evidentiary hearing.
Ms. Perez’s Second Issue
In Ms. Perez’s second issue, she argues that the verdict was against the
weight of the evidence. Ms. Perez’s Brief at 30.26 She avers that “[t]he weight
of the evidence established that Dr. Maroon was at least a factual cause of
harm to Mr. Perez and the fact that the jury decided that issue against Mr.
Perez is beyond shocking.” Id. She raises a multitude of arguments as to
why the verdict was against the weight of the evidence, pointing to, inter alia,
x-rays, animated swallowing studies, Mr. Perez’s experts’ testimony, medical
records, Mr. Perez’s pain and difficulty swallowing, Dr. Hecht’s testimony, and
the trial court’s own statements at trial. See id. at 30-40.
We apply the following standard of review:
Our review of the denial of a motion for a new trial based on
weight of the evidence is limited. We must determine whether
____________________________________________
26 As mentioned supra, Ms. Perez joined in, and incorporated by reference,
Mr. Perez’s motion for post-trial relief and brief in support thereof, which
included therein a weight-of-the-evidence claim.
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the trial court abused its discretion in denying a new trial, not
whether the verdict, in this Court’s opinion, is against the weight
of the evidence. Because the trial judge has had the opportunity
to hear and see the evidence presented, an appellate court will
give the gravest consideration to the findings and reasons
advanced by the trial judge. We have noted that [o]ne of the least
assailable reasons for granting or denying a new trial is the lower
court’s conviction that the verdict was or was not against the
weight of the evidence.
Cragle v. O’Brien, 225 A.3d 182, 189 (Pa. Super. 2019) (internal citations
and quotation marks omitted). Further, we acknowledge:
Given the primary role of the jury in determining questions of
credibility and evidentiary weight, this settled but extraordinary
power vested in trial judges to upset a jury verdict on grounds of
evidentiary weight is very narrowly circumscribed.
A new trial is warranted on weight of the evidence grounds only
in truly extraordinary circumstances, i.e., when the jury’s verdict
is so contrary to the evidence that it shocks one’s sense of justice
and the award of a new trial is imperative so that right may be
given another opportunity to prevail. This Court has also noted
that one of the reasons that the power and duty to upset a verdict
on weight grounds is so narrowly circumscribed is because of the
obvious tension between the broad, settled, exclusive role of the
fact-finder in assessing credibility and the limited power of trial
judges, in narrowly circumscribed circumstances, to overturn
those assessments when the judicial conscience is not merely
disappointed, or uncomfortable, but shocked.
Mirizio v. Joseph, 4 A.3d 1073, 1088 (Pa. Super. 2010) (citation omitted).
In the case at bar, the trial court explained why it denied Mr. Perez’s
weight claim as follows:
In his [m]otion for [p]ost-[t]rial [r]elief, Mr. Perez spent
considerable time re-arguing the issue of negligence despite the
jury’s finding of negligence. With respect to the issue of
causation, Mr. Perez merely asserted [that] he presented
numerous credible witnesses, in contrast to [Appellees’] few
incredible witnesses. However, it is not the role of this court to
“pass on the credibility of witnesses or to act as a trier of fact.”
[Worley v. County of Delaware, 178 A.3d 213, 238 (Pa.
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Cmwlth. 2017)]. Furthermore, the jury is free to credit the
testimony of one expert and reject the testimony of the other
expert where the parties’ medical experts disagree on whether or
not an accident caused some injury to the plaintiff. Kraner v.
Kraner, 841 A.2d 141, 145 (Pa. Super. 2004) (jury verdict was
contrary to weight of the evidence where jury found driver
negligent, but declined to award passenger damages for her
injuries, despite all three experts agreeing that passenger
sustained some injury as a result of motor vehicle accident).
[As stated in the court’s analysis regarding Mr. Perez’s motion for
JNOV, t]here was substantial support in the record for the jury’s
finding that Dr. Maroon’s negligence was not a factual cause of
any injury to Mr. Perez. Thus, the verdict in this case is not “so
contrary to the evidence as to shock one’s sense of justice[.]”
Worley, 178 A.3d at 237-[]38.
TCO at 18 (some brackets in original).
We discern no abuse of discretion by the trial court. Furthermore, we
agree with Appellees that Ms. Perez’s weight argument “ignore[s] the province
of the jury and overlook[s] the mountain of contradictory evidence presented
by the defense — either by way of direct examination of witnesses or
refutation of Mr. Perez’s evidence during cross-examination of his witnesses.”
Appellees’ Brief at 36 (citing TCO at 14-17). Accordingly, Ms. Perez’s weight
claim fails. Consequently, as none of the claims presented by Mr. and Ms.
Perez warrants relief, we affirm the judgment entered in favor of Appellees.
Judgment affirmed.
Judge Pellegrini joins this memorandum.
Judge Bowes concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/10/2020
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