Avery, A. v. Cercone, B.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ANDREA AVERY : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

:

v. :

:

:

BRANDON CERCONE AND HARRY : No. 595 WDA 2020

SPADAFORA :

Appeal from the Judgment Entered June 10, 2020

In the Court of Common Pleas of Allegheny County Civil Division at

No(s): GD 13-022334

BEFORE: BOWES, J., NICHOLS, J., and McLAUGHLIN, J.

MEMORANDUM BY NICHOLS, J.: FILED: SEPTEMBER 27, 2021

Appellant Andrea Avery appeals from the judgment entered after the

trial court denied her motion for post-trial relief. Appellant contends that the

trial court erred and abused its discretion when it denied Appellant’s post-trial

motion challenging the weight of the evidence and requesting a new trial with

respect to damages. After review, we affirm in part, vacate in part, and

remand with instructions.

In an opinion filed on April 4, 2019, the trial court summarized the

relevant facts and procedural history of this case as follows:

In August of 2011 [Appellant], then forty-seven years old, was

walking in the parking lot of her employer, Bayer Corporation,

when a van struck her. The impact knocked her off of her feet,

and her head hit hard against the paved surface of the parking

lot. She lost consciousness and was diagnosed with a brain

concussion.

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This proceeding, however, does not involve the August, 2011

pedestrian-vehicle collision. Instead, this proceeding involves an

automobile collision that occurred approximately six months later,

on February 1, 2012. [Appellant] attended the funeral mass for

her aunt at 10:00 a.m. on February 1, 2012 at a church in

Carnegie Borough. Afterwards, she drove her 2006 Mazda

automobile near the rear of the funeral procession on Interstate

376 (more commonly called the Parkway West) towards the

cemetery located in Moon Township. Defendant Harry Spadafora

[(Appellee)1], on his way to buy paint at Home Depot, was driving

a 2000 Silverado pick-up truck owned by Defendant Brandon

Cercone behind [Appellant]. He did not realize he had entered the

slower moving funeral procession, and the Silverado collided with

the rear of the Mazda.

[Appellant] and [Appellee] then pulled their cars to the shoulder

of the highway and had a brief conversation. [Appellee] admitted

fault for the collision, apologized and asked [Appellant] if she was

all right or wanted him to call the paramedics. [Appellant]

responded that she was in a funeral procession, needed to get to

the cemetery and that they could exchange contact information

and speak later. [Appellant] then drove to the cemetery for the

burial, and later that day she drove herself to a hospital

emergency room. There, she reported having a bad headache and

was prescribed a pain reliever. [Appellant] then drove to her

home.

On February 1, 2012, when [Appellee] collided with [Appellant],

she was still recovering from the brain concussion she received

when the van struck her in August of 2011. [Appellant’s] position

at Bayer Corporation was a “financial analyst,” which involved

minimal physical labor. She worked for Bayer from her home after

the van hit her, and had just returned to work at Bayer’s office

location on January 23, 2012. She had previously scheduled

appointments in February for chiropractic treatment, vestibular

therapy and with a neurologist monitoring the concussion. On

February 22, 2012, Ms. Avery saw the neurologist, James

Valeriano, M.D., who determined the collision with [Appellee]

“substantially flared up problems” from the August, 2011

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1 On appeal, this Court affirmed the judgment the judgment in favor of Mr.

Cercone. Avery v. Cercone, 225 A.3d 873, 875 n.1 (Pa. Super. 2019).

Accordingly, the only parties to the instant appeal are Appellant Avery and

Appellee Spadafora.

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concussion. [Appellant] was unable to work until February 23,

2012, when she was cleared to work, but for no longer than four

hours per day. Bayer, however, could not accommodate that

limitation, hence she did not return to work until she could do so

on a full time basis, which occurred on April 5, 2012.

[Appellant] commenced this proceeding in November of 2013 by

the filing of a praecipe for writ of summons. The complaint, which

was filed in March of 2014, included a claim that Defendant

Brandon Cercone negligently entrusted his vehicle to [Appellee].

Following Mr. Cercone’s deposition in April of 2016, [Appellant]

amended her complaint with the addition of a claim that Mr.

Cercone was negligent or reckless to lend [Appellee] his pick-up

truck when the brakes were malfunctioning. On September 5,

2018, the dispute was assigned to me for resolution by way of a

jury trial.

. . . I supervised the selection of the jury for approximately a day

and a half. Then, counsel argued numerous motions in limine with

a court reporter transcribing the argument. My rulings on the

motions included granting defendants’ motion to preclude

testimony of Tri-Rivers Consulting Service as well as granting

[Appellee’s] motion to exclude testimony as to Diffusion Tensor

Imaging.

The trial began on September 6, 2018[,] and took nine days to

complete. On the second day of the trial, Mr. Cercone was shown

a signature on the defendants’ verification of the answer and

testified that it did not look like his signature, but that he could

have signed it. Later that day, [Appellee] testified that some of

the denials contained in the answer were inaccurate. The next

day, outside the presence of the jury, [Appellant’s] counsel asked

me to strike the answer, direct a verdict against the defendants

and preclude the defendants from presenting any cross-

examination or defense for the remainder of the trial. I denied all

of these requests.

Among the twenty-two live witnesses at the trial to testify on

behalf of [Appellant] was expert witness Randall Benson, M.D., a

neurologist based in Detroit, Michigan. Dr. Benson first examined

and tested [Appellant] four years after the collision with

[Appellee]. He testified that the collision with [Appellee] caused

permanent injuries to [Appellant’s] brain, including damage to her

pituitary gland with resulting permanent ‘growth hormone

deficiency. He also testified that the collision with [Appellee]

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caused [Appellant] to be likely to suffer from dementia beginning

at the age of sixty-five. Mr. Cercone and [Appellee] had experts

testify by videotape who disagreed with Dr. Benson, including

neurologist David Lobas, M.D., who examined [Appellant] in May

of 2017 and found no neurological deficits.[2]

Counsel for [Appellee in his] closing to the jury acknowledged

responsibility for $8,500 in past lost earnings and the “flare up” of

[Appellant’s] concussion symptoms, but denied responsibility for

any other losses. Based on testimony from an expert forensic

economist and an expert life care planner, [Appellant’s] counsel’s

closing to the jury requested $8,500 in past lost earnings,

$517,100 in future lost earning capacity and $2,682,892 in future

medical expenses for a total of approximately $3.2 million in

economic damages. [Appellant’s] counsel also asked the jury to

compensate her for pain, suffering and other noneconomic losses

from February 1, 2012 to the end of [Appellant’s] life.

I instructed the jury to render its verdict by answering five written

questions, the fourth of which was an itemization of damages.[fn1]

During the deliberations, the jury sent me two notes with

questions concerning damages, which I did my best to answer.

The jury then rendered a verdict in favor of Mr. Cercone and

against [Appellee] in the amount of $8,500 itemized as follows:

(a) Future medical expenses $0

(b) Past lost earrings $ 8,500.00

(c) Future lost earning capacity $0

(d) Past, present, and future pain

and suffering, embarrassment and

humiliation and loss of enjoyment of life $0

Total $ 8,500.00

[fn1] The first question asked if any of the defendants were

negligent, the second question asked if the negligence was

a factual cause of any harm to [Appellant], the third

question asked for the percentage of negligence attributed

to each defendant and the fifth question asked if the conduct

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2 However, as discussed below, Dr. Lobas also conceded that Appellant

suffered an injury.

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of any defendant was outrageous (the jury determined

neither defendant’s conduct was outrageous).

After I read this jury verdict in open court, [Appellee’s] counsel

immediately requested a conference at side bar. Believing this

verdict could amount to reversible error on appeal, he asked if the

jury could reconsider its award of $0 for pain and suffering. I

agreed to have the jury do so and explained to the jury that it was

“inconsistent” for someone to be injured, with $8,500 of lost

earnings, yet have no pain and suffering “that would also logically

be incurred when there is a loss of earnings.” I asked the jury to

deliberate again considering the instructions I provided on pain

and suffering and other noneconomic losses. The jury deliberated

again and returned with a verdict of $8,500 for past lost earnings

and $10,000 for noneconomic losses for a total verdict of $18,500.

[Appellant] filed a motion for post-trial relief, which I denied. She

then filed a timely appeal to the Superior Court of Pennsylvania .

...

Trial Ct. Op., 4/4/19, at 1-5 (record citations omitted).

In this Court’s disposition of Appellant’s prior appeal, we held that the

trial court invaded the province of the jury when it concluded that the weight

of the evidence required an award for pain and suffering and directed the jury

to continue deliberating. See Avery v. Cercone, 225 A.3d 873, 880 (Pa.

Super. 2019) (stating “[t]he trial court gave a de facto directed verdict of at

least $1 for pain and suffering”). We noted: (1) the jury was under no legal

obligation to enter an award for Appellant for pain and suffering because the

jury was free to reject both side’s evidence of pain and suffering as a transient

rub of life; (2) the trial court should have let the original verdict stand and

waited to see if Appellant would file post-trial motions challenging the weight

of the evidence; and (3) if no post-trial motion challenging the weight of the

evidence was filed, then the original verdict of $8,500.00 would have

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remained a consistent verdict. Id. Additionally, the prior panel of this Court

noted that if Appellant had filed a post-trial motion, the trial court could have

then determined if the verdict was against the weight of the evidence. Id.

Accordingly, this Court concluded that the trial court erred by directing the

jury to conduct further deliberations on this point to arrive at a dollar amount.

Id. This court then affirmed the judgment in favor of Appellant, vacated the

$18,500 judgment against Appellee, reinstated the original verdict against

Appellee for $8,500 in lost wages, and remanded to permit Appellant to file a

new post-trial motion challenging the weight of the evidence regarding the

pain and suffering award, “because the trial court must resolve this question

in the first instance.” Id. at 875; see also id. at 883.

On remand, Appellant filed a post-trial motion and supporting brief

challenging the weight of the evidence with respect to the award of zero

dollars for pain and suffering and requested a new trial as to damages.

Appellee filed a response to Appellant’s motion, and on May 7, 2020, the trial

court held a conference via telephone. On May 11, 2020, the trial court

concluded that the jury’s original verdict was not against the weight of the

evidence and denied Appellant’s post-trial motion. Order, 5/11/20. On June

10, 2020, Appellant filed a praecipe for the entry of judgment on the original

verdict in the amount of $8,500 for lost wages and zero dollars for pain and

suffering. This timely appeal followed.

On June 11, 2020, the trial court directed Appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),

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and Appellant filed her Rule 1925(b) statement on June 30, 2020. The trial

court filed its Rule 1925(a) opinion on August 7, 2020.

On appeal, Appellant presents the following issues:

1. A jury is required to compensate a plaintiff for all damages

related to injuries resulting from a defendant’s negligence. On

remand, the trial court committed reversible error by denying

[Appellant’s] motion for a new trial. The trial court found that

it did not shock the court’s sense of justice that the jury did not

award any damages for: (1) [Appellant’s] past, present and

future pain and suffering damages; (2) [Appellant’s] loss of

future earning capacity; and (3) future medical expenses.

However, the jury determined, and the evidence showed, that

[Appellant] did suffer a compensable injury as a result of

[Appellee’s] negligence, since the jury awarded [Appellant]

$8,500, representing the amount of lost past wages for the

time that [Appellant] was unable to work due to the pain and

suffering resulting from her injuries.

2. A jury award that completely disregards the evidence

presented at trial on the question of damages, bears no

reasonable relationship to the proven damages, requiring the

award of a new trial. The jury determined that [Appellant]

suffered no damages for: (1) [Appellant’s] past, present and

future pain and suffering damages; (2) [Appellant’s] loss of

future earning capacity; and (3) future medical expenses. The

jury’s determination demonstrates that the jury rejected

uncontroverted evidence that [Appellant] suffered or will suffer

damages for: (1) past, present and future pain and suffering;

(2) loss of future earning capacity; and (3) future medical

expenses. Accordingly, [Appellant] is entitled to a new trial on

all elements of damages.

3. A Frye[3] hearing is required when the admissibility of expert

scientific evidence is challenged. Frye only applies to

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3 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). “The purpose of a

Frye hearing is to permit a trial court to hear from experts in the relevant

scientific field whether an expert’s methodology is generally accepted.”

Walsh v. BASF Corporation, 191 A.3d 838, 846 (Pa. Super. 2018) (footnote

omitted), aff’d, 234 A.3d 446 (Pa. 2020).

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determine if the relevant scientific community has generally

accepted the principles and methodology the scientist employs.

[Appellee] challenged [Appellant’s] expert neurologist’s use of

DTI (Diffuse Tensor Imaging) to confirm the diagnosis of brain

injury, arguing that radiologists assert the use of DTI is

unreliable. The trial court struck the use of DTI without a Frye

hearing, without the presentation of any evidence, instead,

relying upon argument based upon differing fields of science

since a radiologist is not in the same field of science as a

neurologist.

4. A party is permitted to provide evidence of bias in order for the

jury to determine whether the opposing party and their expert

have a significant pattern of compensation that would support

a reasonable inference that the witness might be inclined to

slant his testimony. Instantly, [Appellee] hired Tri-Rivers

Consulting who had a long-standing and significant financial

relationship with [Appellee’s] counsel. Tri-Rivers provided an

expert to testify for [Appellee]. [Appellant was] prohibited

from presenting evidence of the extent and nature of the

business relationship between Tri-Rivers and [Appellee’s]

counsel.

Appellant’s Brief at 5-6 (some formatting altered).

New Trial/Weight of the Evidence

Appellant first contends that the trial court abused its discretion in

denying her post-trial motion for a new trial based on the weight of the

evidence. Appellant reiterates that Appellee admitted fault and contends that

the uncontroverted evidence established that she endured pain and suffering

from the injuries sustained in the accident. Appellant’s Brief at 29-49.

Appellant notes that the jury was not permitted to disregard uncontroverted

medical evidence. Id. at 29. Further, Appellant argues that her claim for pain

and suffering is supported by the evidence and by the fact that the jury

awarded her $8,500, representing wages that were lost due to her injuries;

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therefore, the verdict bore no rational relationship to the evidence. Id. at 30-

43. Additionally, Appellant points to the fact that Appellee’s counsel admitted

in his closing argument that Appellant was entitled to an award for pain and

suffering as further support for her argument that the verdict was against the

weight of the evidence. Id. at 41-47. Accordingly, Appellant alleges that it

was error for the jury to award zero dollars for pain and suffering, and she

claims that she is entitled to a new trial on the issue of damages. Id. at 51.

Appellee asserts that there was no error in the jury awarding Appellant

$8,500 for lost wages but awarding her no damages for pain and suffering.

Appellee’s Brief at 17. Appellee argues that the jury is the finder of fact, and

that the courts must guard against usurping the role of the jury. Id.

Furthermore, Appellee asserts that the jury was free to believe all, part, or

none of the evidence presented, and that the jury was permitted to conclude

that Appellant’s injuries were a transient “rub of life” for which pain and

suffering compensation is not warranted. Id. at 19. Appellee points out that

Appellant had a prior concussion and that the evidence did not support a

finding that the second accident caused Appellant to endure compensable pain

and suffering. Id. at 27-29.

Our standard of review for an order denying a post-trial motion for a

new trial that challenges the weight of the evidence is as follows:

The power to grant or deny a new trial lies inherently with the trial

court, and we will not reverse its decision absent a clear abuse of

discretion or error of law which controlled the outcome of the case.

. . . A new trial based on weight of the evidence issues will not be

granted unless the verdict is so contrary to the evidence as to

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shock one’s sense of justice; a mere conflict in testimony will not

suffice as grounds for a new trial. It is beyond argument that the

fact-finder is free to accept or reject the credibility of both expert

and lay witnesses, and to believe all, part or none of the evidence.

. . . [H]owever, . . . a jury is not free to ignore an obvious injury.

Casselli v. Powlen, 937 A.2d 1137, 1138-39 (Pa. Super. 2007) (citations

omitted and formatting altered). Moreover,

As a general proposition victims indeed must be compensated for

all that they lose and all that they suffer from the tort of another.

In that proposition is subsumed that they have suffered loss and

that compensable pain was inflicted.

We have held and hold now that there are injuries to which human

experience teaches there is accompanying pain. Those injuries

are obvious in the most ordinary sense: the broken bone, the

stretched muscle, twist of the skeletal system, injury to a nerve,

organ or their function, and all the consequences of any injury

traceable by medical science and common experience as sources

of pain and suffering. Pain of varying degree, may indeed follow

small injury and be greater in its consequence than the initial

blow. It may aggravate existing defects of the person, exploding

latent diseases or precipitate, into present pain, what otherwise

might have passed or been long delayed, absent the immediate

injury.

Id. at 1139 (citation omitted and formatting altered). “Where a defendant

concedes liability and his or her expert concedes injury resulting from the

accident that would reasonably be expected to cause compensable pain and

suffering, the jury’s verdict is against the weight of the evidence where it finds

for the defendant.” Id. at 1140 (citation omitted and formatting altered).

Moreover, it is well settled that the award of damages must bear a rational

relationship to the uncontroverted testimony, and where the “jury’s verdict

has no basis in the uncontroverted evidence . . . as to be grossly inadequate

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that verdict should be vacated.” Kiser v. Schulte, 648 A.2d 1, 6-7 (Pa.

1994). This Court has held:

Where the verdict bears a reasonable relationship to the damages

proved and also comprehends the jury’s resolution of disputed

liability, the court cannot simply substitute its judgment for that

of the jury[.] The mere fact that a verdict is low does not

necessarily mean that it is inadequate[.]

[C]ompromise verdicts are both expected and allowed. The

compromise may arise out of damages or negligence or the

balance of evidence concerning either or both. However, a verdict

is not a proper compromise when it represents a retreat from the

responsibility for decision. The compromise is not a proper one

when it derives from misunderstanding, passion, prejudice or any

other improper motive or factor. A verdict which arbitrarily allows

nothing for pain and suffering, where some pain and suffering

must have existed, cannot be permitted to stand.

Alexander v. Knight, 177 A.2d 142, 146 (Pa. Super. 1962) (citations omitted

and formatting altered).

It is undisputed that prior to the accident at issue (second accident),

Appellant had suffered an earlier concussion that had not completely healed.

Trial Ct. Op., 4/4/19, at 1; R.R. at 1714a.4 A neurologist, James Valeriano,

M.D., one of Appellant’s treating physicians, testified that the second accident

caused injuries to Appellant and “substantially flared up” Appellant’s prior

concussive injuries. R.R. at 1714a. After the second accident, Appellant was

diagnosed with an injury to her optic nerve, pituitary dysfunction, and cervical

strain and concussion. Id. at 2597a, 2464a, 2356a. Behavioral neurologist

Randall Benson, M.D., testified that enduring two concussions in six months

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4 For the parties’ convenience, we refer to the reproduced record.

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decreased the possibility of a positive outcome. Id. at 1590a. Dr. Benson

testified to a reasonable degree of neurological certainty that the second

accident caused Appellant suicidal thoughts, mood changes, an increased risk

of dementia, and damaged Appellant’s pituitary gland requiring hormone

replacement therapy. Id. at 1590a-1605a. Dr. Benson diagnosed Appellant

as permanently impaired due to the injuries caused in the second accident.

Id. at 1671a.

It is undisputed that the injuries caused Appellant to miss work, and the

jury awarded Appellant damages for her lost wages. Trial Ct. Op., 4/4/19, at

4. Importantly, Appellee’s expert in neurology, David Lobas, M.D., noted that

Appellant suffered a prior concussion, and he conceded that the second

accident injured Appellant. R.R. at 2600a. Dr. Lobas testified: “I think that

she experienced an injury, but I can’t -- there’s nothing here in this note that

gives me any more data to -- to comment about a about that further. I -- I

mean, her symptoms are worse. That’s what I would take away from this.”

Id. at 2600a-01a. Indeed, Dr. Lobas agreed that Appellant’s injuries were

worsened by the second accident. Id. at 2601a. Additionally, Appellee’s

expert neuroradiologist Vikas Agarwal, M.D. testified that after reviewing

Appellant’s MRI studies he found no acute intercranial abnormalities, however,

he concluded that there is a medical probability that Appellant had a mild

traumatic brain injury. Id. at 2614a-15a.

Despite the uncontroverted evidence of a brain injury, the jury awarded

damages for lost wages but awarded zero dollars for pain and suffering

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resulting from the injuries. The jury’s conclusion is errant and contrary to

human experience. See Casselli, 937 A.2d at 1141. Although a

commonplace injury such as a bruise may be categorized by the finder of fact

as a “transient rub of life,” see Kennedy v. Sell, 816 A.2d 1153, 1157 (Pa.

Super. 2003), the jury is not free to ignore uncontroverted evidence and an

obvious injury. See Casselli, 937 A.2d at 1141. We conclude that the trial

court abused its discretion when it denied Appellant’s motion for a new trial

on damages based on the weight of the evidence. Accordingly, we vacate the

judgment entered on the jury verdict and remand for a new trial for the

reasons discussed herein.

Damages

Next, we must determine the parameters of Appellant’s new trial. In

her second issue, Appellant argues that because the jury disregarded

uncontroverted evidence, she is entitled to a new trial on all elements of

damages including pain and suffering, loss of earning capacity, and future

medical expenses. Appellant’s Brief at 51-62. Appellant contends that she is

entitled to a new trial on all aspects of damages despite the trial court’s

assertion that Appellant waived her claims for loss of earning capacity and

future medical expenses. Id. at 53; see also Trial Ct. Op., 8/7/20, at 6, n.2

(opining that Appellant failed to challenge the jury’s award of zero dollars for

loss of earning capacity and future medical expenses in her initial post-trial

motion resulting in waiver of these claims pursuant to Pa.R.C.P. 227.1(b)(2)

and Pa.R.A.P. 1925(b)(4)(vii)). Appellant states that she requested “a new

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trial on damages in toto” and preserved her claim for a new trial on all aspects

of damages. Id. at 54.

Appellee agrees with the trial court that Appellant waived her claims

relative to loss of earning capacity and future medical expenses. Appellee’s

Brief at 31. Moreover, Appellee asserts that if this Court concludes that

Appellant is entitled to a new trial on the issue of damages, it should be limited

to damages for pain and suffering only. Id. at 34.

In order to determine the scope of trial following remand, we must

determine whether Appellant waived her claims for a new trial with respect to

loss of earning capacity and future medical expenses. Rule 227.1 provides in

relevant part as follows:

(b) Except as otherwise provided by Pa.R.E. 103(a), post-trial

relief may not be granted unless the grounds therefor,

(1) if then available, were raised in pre-trial proceedings or by

motion, objection, point for charge, request for findings of fact or

conclusions of law, offer of proof or other appropriate method at

trial; and

Note: If no objection is made, error which could have been

corrected in pre-trial proceedings or during trial by timely

objection may not constitute a ground for post-trial relief.

Pa.R.E. 103(a) provides that the specific ground for an

overruled objection, or the substance of excluded evidence,

need not be stated at or prior to trial, or without having

made an offer of proof, if the ground of the objection, or the

substance of the evidence sought to be introduced, was

apparent from the context.

(2) are specified in the motion. The motion shall state how the

grounds were asserted in pre-trial proceedings or at trial.

Grounds not specified are deemed waived unless leave is

granted upon cause shown to specify additional grounds.

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Pa.R.C.P. 227.1(b) (emphasis added). Additionally, Rule 1925(b)(4)(vii)

states that issues not included in a Rule 1925(b) statement are waived.

In Appellant’s initial post-trial motion, she claimed only that the award

of zero dollars for pain and suffering was against the weight of the evidence.

R.R. at 660a-662a. Appellant never mentioned loss of earning capacity and

future medical expenses in her initial post-trial motion. Moreover, when this

Court remanded the matter to permit Appellant to file post-trial motions, the

panel instructed that post-trial motions were limited to pain and suffering only.

See Avery, 225 A.3d at 875 (remanding “for the filing of new post-trial

motions on a weight-of-the-evidence claim regarding the pain and suffering

award” (emphasis added)). Additionally, we clarified:

[Appellant] may, if she wishes, renew her post-trial motions for a

new trial on the grounds that the jury’s original award of $0 for

pain and suffering was against the weight of the evidence, such

that it should shock the conscience of the trial judge who presided

over the jury trial.[fn5]

[fn5] If the trial judge determines a new trial on damages is

warranted for pain and suffering, the issue remains whether

the award of $8,500 for lost wages may nevertheless stand.

A panel of this Court recently decided that the unchallenged

portion of a damages award stands. See Mader [v.

Duquesne Light Co., 199 A.3d 1258, 1270 n.2 (Pa. Super.

2018) (Mader I) aff’d, 241 A.3d 600 (Pa. 2020)]. Mader

[I] currently binds the trial court on that point; however,

the Supreme Court of Pennsylvania has granted an

allowance of appeal and is reviewing this issue. Id., 217

A.3d 193 (Pa. 2019).

Avery, 225 A.3d at 881.

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In her post-trial motion following remand, Appellant recognized that she

was limited to filing a post-trial motion with respect to pain and suffering only

and recited the above-quoted language from this Court’s prior decision. R.R.

at 2680a. Nevertheless, Appellant expanded upon this Court’s limited

remand, and requested a new trial on all aspects of damages in the

subsequent post-trial motion following remand. Id. at 2681a-86a.

Accordingly, pursuant to Pa.R.C.P. 227.1(b) and Pa.R.A.P.

1925(b)(4)(vii)), Appellant waived her claims with respect to loss of earning

capacity and future medical expenses when she failed to properly raise and

preserve these claims in her initial post-trial motion and appeal. Moreover,

as noted in this Court’s prior decision, at the time of that opinion, the decision

in Mader I provided that the unchallenged portion of an award of damages

remains undisturbed. Avery, 225 A.3d at 881.

Subsequently, our Supreme Court affirmed this Court’s decision in

Mader I. Mader v. Duquesne Light Co., 241 A.3d 600 (Pa. 2020) (Mader

II). In Mader II, our Supreme Court addressed this issue as follows:

Duquesne Light argues that Mader waived his right to seek a new

trial for past and future medical expenses, offering that, while

Mader requested a new trial on damages, and raised arguments

about lost wages and pain and suffering, he failed to set forth any

reasoning or argument as to why the jury’s award regarding past

and future medical expenses was improper, citing Pa.R.C.P. 227.1

(requiring in a post-trial motion separate reasons for each type of

relief sought). Mader responds that the waiver issue is not

encompassed within the issues upon which we granted allowance

of appeal, was properly resolved by both the trial court and the

Superior Court’s below against Duquesne Light, and, in any event,

he preserved his right to a new trial on past and future medical

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expenses by seeking a new trial limited to damages, and in his

reply brief in the trial court arguing for a new trial on all damages.

We too decline to find waiver in these circumstances. While, in

his post-trial motion, Mader focused on the lack of damages for

pain and suffering, he argued globally for a new trial on all

damages, and, at least in certain post-trial filings, sought from the

trial court an award of a new trial for all damages, and argued

against the award of a new trial on only certain categories of

damages.

Mader II, 241 A.3d at 610 n.5.

In Mader II, our Supreme Court declined to find waiver of any aspects

of damages because the appellant in that case “argued globally” for a new

trial on all damages. However, the instant case is distinguishable. As

discussed above, in her initial post-trial motion, Appellant did not request a

new trial “globally.” Rather, Appellant requested a new trial relative to pain

and suffering only, and this Court remanded to allow Appellant to file a post-

trial motion with respect to pain and suffering only. See Avery, 225 A.3d at

875, 881. Moreover, the trial court specifically held that Appellant’s claims

regarding loss of earning capacity and future medical expenses were waived.

Trial Ct. Op., 8/7/20, at 6, n.2. Accordingly, although we remand this matter

for a new trial, the new trial shall be limited to damages for pain and suffering

only.

Frye Hearing

In her third issue, Appellant asserts that the trial court abused its

discretion when it precluded Appellant’s expert neurologist, Dr. Randall

Benson, from testifying regarding the use of Diffuse Tensor Imaging (DTI) to

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confirm the diagnosis of a brain injury. Appellant’s Brief at 63-64. Appellant

argues that the trial court erred in making this ruling without holding a Frye

hearing. Id. at 65-66. Appellant contends that the trial court erred in its

reliance on Appellee’s argument and in concluding that radiology and not

neurology is the field in which DTI must be accepted. Id. at 69-70.

Appellee asserts that the trial court properly granted Appellee’s motion

in limine to preclude Dr. Benson from testifying relative to his use of DTI.

Appellee’s Brief at 39-40. Appellee contends that DTI is a controversial and

unreliable diagnostic tool, and Appellee asserted that the Radiological Society

of North America issued a statement providing that there is insufficient

evidence to support the routine clinical use of these neuroimaging techniques

for diagnosis or prognostication. Id. at 43-44. Appellee claims that because

there is a lack of general acceptance of DTI for diagnostic purposes, DTI does

not satisfy the Frye standard, and the trial court correctly concluded that Dr.

Benson’s testimony relative to DTI was inadmissible. Id. at 46.

A motion in limine is a pretrial mechanism to obtain a ruling on the

admissibility of evidence, and it enables the trial court to “weigh potentially

prejudicial and harmful evidence before the trial occurs, thus preventing the

evidence from ever reaching the jury.” Parr v. Ford Motor Co., 109 A.3d

682, 690 (Pa. Super. 2014) (en banc) (citation omitted). “A trial court’s

decision to grant or deny a motion in limine is subject to an evidentiary abuse

of discretion standard of review.” Id. (citation and quotation marks omitted).

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Questions concerning the admissibility of evidence lie within the

sound discretion of the trial court, and we will not reverse the

court’s decision absent a clear abuse of discretion. An abuse of

discretion may not be found merely because an appellate court

might have reached a different conclusion, but requires a manifest

unreasonableness, or partiality, prejudice, bias, or ill-will, or such

lack of support so as to be clearly erroneous.

In addition, to constitute reversible error, an evidentiary ruling

must not only be erroneous, but also harmful or prejudicial to the

complaining party.

Id. at 690-691 (citations omitted and formatting altered). Indeed, “[i]n order

to find that the trial court’s evidentiary rulings constituted reversible error,

such rulings must not only have been erroneous but must also have been

harmful to the complaining party.” Oxford Presbyterian Church v. Weil-

McLain Co., 815 A.2d 1094, 1100 (Pa. Super. 2003) (citations and quotation

marks omitted). An appellant “must therefore show error in the evidentiary

ruling and resulting prejudice, thus constituting an abuse of discretion by the

lower court.” Id. (citations and quotation marks omitted). An evidentiary

ruling which did not affect the verdict will not provide a basis for disturbing

the jury’s judgment. Peled v. Meridian Bank, 710 A.2d 620, 626 (Pa. Super.

1998) (citation omitted).

Regarding scientific evidence and expert opinions, our Rules of Evidence

provide:

A witness who is qualified as an expert by knowledge, skill,

experience, training, or education may testify in the form of an

opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized

knowledge is beyond that possessed by the average

layperson;

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(b) the expert’s scientific, technical, or other specialized

knowledge will help the trier of fact to understand the

evidence or to determine a fact in issue; and

(c) the expert’s methodology is generally accepted in the

relevant field.

Pa.R.E. 702.

The proponent of expert scientific evidence bears the burden of

establishing all of the elements for its admission under Pa.R.E.

702, which includes showing that the rule in [Frye] is satisfied.

See [Grady v. Frito-Lay, Inc., 839 A.2d 1038, 1045 (Pa. 2003)].

Frye, which is now embodied in Pa.R.E. 702(c), instructs that the

court should not admit scientific evidence during trial unless the

underlying methodology has gained general acceptance in the

scientific community. See Commonwealth v. Topa, 369 A.2d

1277, 1281-82 (Pa. 1977). “Frye does not apply to every time

science enters the courtroom . . . Frye does apply, however,

where an expert witness employs a novel scientific methodology

in reaching his or her conclusion.” Folger ex rel. Folger v.

Dugan, 876 A.2d 1049, 1058 (Pa. Super. 2005) (en banc)

(citations omitted). One method to assess a Frye motion is to

conduct a Frye hearing, although a hearing is not mandatory.

Buttaccio v. American Premier Underwriters, Inc., 175 A.3d 311, 315

(Pa. Super. 2017).

After review, pursuant to the standard set forth in Parr, we cannot

conclude that the trial court’s ruling on Appellee’s motion in limine was

reversible error because we do not find that Appellant has established

prejudice. See Parr, 109 A.3d at 691. As noted, Appellant argues that Dr.

Benson sought to rely on DTI to confirm his diagnosis of a traumatic brain

injury. Appellant’s Brief at 63-64, 68. However, Appellant does not assert

how this evidentiary ruling impacted the verdict or how she was prejudiced by

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the ruling on the motion in limine.5 Accordingly, we conclude that Appellant

has failed to establish prejudice, and she is entitled to no relief on this claim

of error.6 See Oxford Presbyterian Church, 815 A.2d at 1100; Peled, 710

A.2d at 626.

Bias

In her final issue, Appellant contends that the trial court abused its

discretion when it granted Appellee’s motion in limine precluding Appellant

from presenting evidence of bias and the nature of Tri-Rivers Consulting’s (Tri-

Rivers) relationship with Appellee’s counsel. Appellant’s Brief at 71. Appellant

asserts that she should have been permitted to provide evidence of bias to

the jury illustrating that Tri-Rivers and Appellee’s counsel have a pattern of

compensation supporting an inference that the witness might be inclined to

provide biased testimony. Id. at 74.

Appellee argues that the trial court properly granted the motion in limine

to preclude Appellant from questioning a representative from Tri-Rivers.

Appellee emphasizes that Appellant was not prevented from questioning Dr.

____________________________________________

5 As noted above, Appellee’s experts conceded that Appellant sustained a

traumatic brain injury. See R.R. at 2600a-01a, 2614a-15a.

6 In Appellant’s Reply Brief addressing a separate issue on damages, she does

mention generally that the preclusion of DTI evidence negatively impacted the

damages that stem from a permanent brain injury. Appellant’s Reply Brief at

16-17. However, this claim was not asserted in Appellant’s initial brief where

Appellant’s focus was utilizing DTI to confirm a diagnosis, and we are

constrained to point out that Appellant cannot raise new issues in a reply brief.

Reginelli v. Boggs, 181 A.3d 293, 307, n.15 (Pa. 2018); Pa.R.A.P. 2113(a).

Moreover, as stated above, Dr. Benson was not precluded from, and did in

fact testify that Appellant suffered permanent injuries. R.R. at 1671a.

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Lobas regarding bias or his compensation for testifying. Appellee’s Brief at

46-47. Appellee asserts that Tri-Rivers was not an expert, did not have a

medical license, and it did not author any report. Id. at 47. Moreover, Dr.

Lobas is not a shareholder or employee of Tri-Rivers. Id. Appellee contends

that the trial court precluded Appellant from calling Tri-Rivers as a witness

because the testimony would have been cumulative and a distraction. Id. at

50.

As this issue involves the review of an order granting a motion in limine,

our standard of review remains the same as the prior issue. See Parr, 109

A.3d at 690-91 (stating that trial court’s decision to grant or deny a motion in

limine is subject to an evidentiary abuse of discretion standard of review, and

questions concerning the admissibility of evidence lie within the sound

discretion of the trial court and will not be disturbed absent an abuse of that

discretion).

The trial court addressed Appellant’s claim of error as follows:

[Appellant] contends that I made an error by granting [Appellee’s]

motion in limine to preclude testimony of Tri-Rivers Consulting

Service. [Appellee’s] attorneys contacted Tri-Rivers Consulting

Service, which is an expert referral service, to refer them to an

expert medical witness to examine [Appellant] and potentially

testify as to his or her findings at the trial. Tri-Rivers referred

neurologist David Lobas, M.D. to [Appellee’s] attorneys, and Dr.

Lobas examined [Appellant] on May 19, 2017, and later testified

as to his findings by way of a videotaped deposition. During his

direct examination that was viewed by the jury, Dr. Lobas testified

that between five and ten percent of his practice is litigation

related and that Tri-Rivers charged [Appellee] $925 for his record

review, $1,695 for the examination of [Appellant] (Dr. Lobas

testified to receiving $847 of this from Tri-Rivers) and $2,990 for

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his deposition testimony. During the cross-examination, Dr.

Lobas testified concerning how many “independent medical

evaluations” he did per month, the percentage of “record reviews”

that he performed on behalf of [Appellee] and the percentage of

his expert work performed for the defendants’ law firms. Such

information on expert witnesses is discoverable and also may be

used at trial to demonstrate partiality of an expert witness. See

Cooper v. Schoffstall, 905 A.2d 482 (Pa. 2006); see also J.S.

v. Whetzel, 860 A.2d 1112 (Pa. Super. 2004).

[Appellant], however, believing such information also could be

used at trial to demonstrate the partiality of an expert referral

service, served a subpoena for the appearance at trial of Tri-Rivers

Consulting Service. Cooper v. Schoffstall is premised on the

concept that an expert witness with a pattern of compensation

could slant his or her testimony in light of the substantial financial

incentives. But no Pennsylvania court ruling suggests extension

of this concept to an entity that can provide no expert testimony

and serves exclusively as a referral service. In addition, the

minimal probative value of [Appellant] calling a referral service for

the sole purpose of demonstrating its bias is outweighed by the

danger of the Jury focusing only on its credibility instead of the

credibility of Dr. Lobas. See Pa.R.E. 403; see also Flenke v.

Huntington, 111 A.3d 1197 (Pa. Super. 2015). Testimony by

Tri-Rivers also would be needlessly cumulative of the partiality

demonstrated as to Dr. Lobas. Id. Therefore, I correctly granted

[Appellee’s] motion in limine and precluded any testimony from

Tri-Rivers.

Trial Ct. Op., 4/4/19, at 5-6 (some formatting altered).

After review, we agree with the trial court and discern no abuse of

discretion. As the trial court stated, Tri-Rivers is a consulting service, not an

expert. Appellant, sought to portray Dr. Lobas as a biased professional

witness and had the opportunity and, in fact, did question Dr. Lobas eliciting

testimony concerning his fees and income gained from testifying at trial.

Therefore, testimony regarding bias from a representative of Tri-Rivers would

have been cumulative of the testimony provided by Dr. Lobas.

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Appellant cites Cooper, to support its assertion that a party is permitted

to seek information concerning possible bias of an opposing party’s witness.

Appellant’s Brief at 71. In Cooper, our Supreme Court recognized that a

“pattern of compensation in past cases” may raise an inference that the

witness may slant his testimony to ensure he is hired as a witness in future

cases. Cooper, 905 A.2d at 494 (citation and quotation marks omitted). The

Cooper Court concluded that the plaintiff showed cause and should be

permitted to seek supplemental discovery of financial records of a non-

party expert medical witness to facilitate an inquiry into potential bias. Id. at

494-95. However, Cooper did not compel a non-party to appear and testify

relative to bias.

Appellant does not argue that she was precluded from seeking

discovery. Rather, Appellant sought to present to the jury testimonial

evidence of bias. Appellant’s Brief at 75. However, Appellant was not

precluded from attempting to portray Dr. Lobas as a biased witness. Indeed,

Appellant questioned Dr. Lobas on this subject.

As stated above, Tri-Rivers is not an expert; it is a referral service. In

his motion in limine, Appellee asserted that referral services such as Tri-Rivers

are used by both defense and plaintiff’s attorneys. R.R. at 492a; see also

Appellee’s Brief at 49. Moreover, Appellant was permitted to question Dr.

Lobas relative to the fees he received for his services and was not precluded

from attempting to establish that Dr. Lobas was a biased expert defense

witness during cross-examination. We find that there was no abuse of

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discretion in the trial court’s conclusion that any information elicited from Tri-

Rivers would have been cumulative of the direct and cross-examination

testimony of Dr. Lobas. See Parr, 109 A.3d at 690. Accordingly, we conclude

that no relief is due to Appellant on this issue.

For the reasons set forth above, we vacate the judgment entered on the

verdict with respect to damages for pain suffering and remand for a new trial

limited to damages for Appellant’s pain and suffering only. We affirm the

remainder of the judgment.

Judgment affirmed in part and vacated in part. Case remanded for

further proceedings consistent with this memorandum. Jurisdiction

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/27/2021

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