Z.F.I V. Bethanna, W.

J-A19009-20

2020 PA Super 286

Z.F.1 AND Z.F.2, AS MINORS, BY : IN THE SUPERIOR COURT OF

AND THROUGH THEIR PARENT AND : PENNSYLVANIA

NATURAL GUARDIAN, [V.B.] :

:

:

v. :

:

:

BETHANNA, WAYNE AND ROSELLA : No. 1425 EDA 2019

KEENY (H/W), DEFENDER :

ASSOCIATION OF PHILADELPHIA, :

ROGER KIMBER, JR., M.D. AND :

WELSH MOUNTAIN HEALTH :

CENTERS D/B/A MEADOW CREEK :

FAMILY PRACTICE :

:

:

APPEAL OF: DEFENDER :

ASSOCIATION OF PHILADELPHIA :

:

Appeal from the Judgment Entered March 29, 2019

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

No(s): July Term, 2017 No. 02958

BEFORE: PANELLA, P.J., McLAUGHLIN, J., and McCAFFERY, J.

OPINION BY McLAUGHLIN, J.: FILED DECEMBER 16, 2020

The Defender Association of Philadelphia (“Defender Association”)

appeals from the judgment entered against it and in favor of Z.F.1 and Z.F.2

(“Children” or “Plaintiffs”), by and through their parent and natural guardian,

V.B. (“Father”). The Defender Association claims that it is immune as a matter

of law from suit, Plaintiffs failed to prove that it breached a standard of care

or caused damages, the court erred in evidentiary rulings, and the court

erroneously denied remittitur. We affirm.

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Plaintiffs filed this action in June 2016, seeking damages for abuse

Children allegedly suffered while Children lived in their foster parents’ home.

Trial Court Opinion, filed Aug. 2, 2019, at 2(“1925(a) Op.”). They brought the

action against “an agency that certifies and oversees foster homes,”

Bethanna, and Children’s foster parents, Wayne and Rosella Keeny (“foster

parents”). Id. Subsequently, in July 2017, Plaintiffs filed a separate action

naming the Defender Association as a defendant,1 and the trial court

consolidated the cases.2 The Defender Association filed an Answer and New

Matter and asserted in New Matter, “Answering Defendants incorporate by

reference all affirmative defenses according to the Pennsylvania Rules of Civil

Procedure 1030(a).” Defender Association’s Answer, filed Oct. 18, 2017, at ¶

126. One of the defenses listed in Rule 1030(a) is “immunity from suit.”

Pa.R.C.P. 1030(a). However, the Defender Association did not file any pretrial

motion, such as a motion for summary judgment, seeking dismissal based on

any claim of immunity.

Plaintiffs settled with Bethanna prior to trial, and the case against the

Keenys and the Defender Association proceeded to a jury trial.

____________________________________________

1 This Complaint also included claims against Roger Kimber, Jr., M.D., and

Welsh Mountain Health Centers. Plaintiffs dismissed the claims against Dr.

Kimber and Welsh Mountain Health Centers prior to trial.

2 The trial court consolidated the cases for purposes of discovery and trial only.

For that reason, and because the Defender Association was a party to the

second case only, its filing a single notice of appeal from the judgment in the

second case does not violate Commonwealth v. Walker, 185 A.3d 969, 977

(Pa. 2018).

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The trial court set forth the following factual history:

ZF1 and ZF2 are twin siblings. Their biological mother was

unable to provide parental supervision and services, thus

[C]hildren were declared dependent and placed in the foster

care system in April of 2011. On April 29, 2011, the Child

Advocacy Unit of the Defender Association was named

counsel and guardian ad litem of [C]hildren. Bethanna, an

agency that certifies and oversees foster homes, placed

[C]hildren with foster parents Wayne and Rosella Keeny,

who lived in Lancaster, on August 24, 2011. At this time,

[C]hildren were seventeen months old. While [C]hildren

were living with the Keenys, and after roughly three years

of being in the foster care system, the goal for [C]hildren

became adoption. In reference to the process and timing of

adoption, Shereen Arthur White, Esquire (Defender

Association Attorney White)2 testified at trial that “the law

requires that after a certain time you have to kind of move

them forward so they don’t linger in the system.” The

Keenys were viewed as the prospective adoptive parents. In

September of 2013, while [C]hildren were in the care of the

Keenys, the Department of Human Services (DHS)

contacted [Father] to inform him that he may be the father

of [C]hildren.3 [Father] took a paternity test, the results of

which were presented at a dependency hearing in January

of 2014. The results established [Father] as the biological

father of [C]hildren.

2 Defender Association Attorney White was a child

advocate attorney for the Defender Association.

Defender Association Attorney White was assigned to

work on [C]hildren’s case around the time that the

Defender Association received the case.

3 Information regarding the ordering of the paternity

test and the process of contacting [Father] regarding

the paternity test were never discussed on the record.

This information was only discussed in the pleadings,

which do not cite to any source.

[Father] appeared in court for the first time in January 2014.

His paternity having been confirmed, [Father] requested

visitation rights with his children. He was given permission

to start with supervised visits. After having spent time with

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[C]hildren, [Father] informed DHS, his attorney Daniel

Kurland, Esquire, and [C]hildren’s Bethanna caseworker,

Ms. Katie Herrmann, that he suspected abuse in the Keeny

home. On multiple occasions, [Father] expressed concerns

that [C]hildren were being spanked and that ZF1 was made

to sit on the floor with her panties off. Ms. Herrmann told

[Father] that she would check out the allegations of abuse

and report back to him. Ms. Herrmann reported back that

she could not find any proof that abuse was happening.

[Father] again raised concerns of abuse of both children at

a dependency hearing on May 29, 2014. Defender

Association Attorney White and a Bethanna agency worker[]

were both present at this dependency hearing. In her

testimony, Defender Association Attorney White asserted

that “the agency worker from Bethanna” (whom she did not

name) reported, “the Keenys do not spank or physically

discipline ZF1 and ZF2. I was told that they physically

discipline their biological son, but not ZF1 and ZF2.”

Defender Association Attorney White testified that her

general role as a child advocate attorney was to represent

the best interests of the child. One of her specific roles was

to gain, gather, and solicit facts about each of her cases. As

mentioned above, at the May 29, 2014 dependency hearing,

[Father] raised concerns that [C]hildren were being spanked

as well as a concern that ZF1 was being made to sit on the

floor without her underwear.

[The following portion of the May 2014 transcript, where the

DHS social worker stated that Father expressed concerns

about the foster parents, was read to Attorney Williams

during the trial:

He said that he felt that the kids were being spanked

in the foster home because during one of the visits –

and he’s here to testify to that -- they asked the

children something . . . about their bottom. And one

of the kids reported: “I sit on the floor with my panties

down, or something, and then they said something

else.”

N.T., 11/19/18, at 49-50.]

At trial, attorney for [P]laintiffs asked [Attorney White],

“Can we agree that nowhere in that May 29, 2014 transcript

do you follow up with any questions about the child being

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made to sit on the floor with her panties down or do any of

the things that you suggested to this Court and this jury that

you would have done if you had heard such an allegation?”5

In response, Defender Association Attorney White stated, “I

can tell you that in that transcript there’s nothing about me

following up, but my work goes way beyond a transcript in

a court hearing.” Defender Association Attorney White then

confirmed that an allegation such as the one made at the

May 29, 2014 hearing regarding ZF1 being made to sit on

the floor without her panties would warrant immediate

removal and investigation. She further confirmed that she

did not request that ZF1 be removed from the home at the

May 29, 2014 dependency hearing nor at any time

thereafter, prior to the removal of [C]hildren from the Keeny

home in May of 2015.

5 Defender Association Attorney White had testified

that, if she had become aware of an allegation or

involving concern ZF1 [was] being made to sit on the

floor without her underwear in front of Mr. Keeny, “I

would have gotten it before the judge. I would have

asked to remove. I would have asked for further

investigation. I would have asked to get her out of

there while we figure out what’s going on.”

In May of 2015, after [Father] raised additional concerns of

abuse, Bethanna sent caseworker Marissa Morris to visit the

Keenys’ home for further investigation. At trial, Mrs. Keeny

confirmed that, during this visit, Marissa Morris took

[C]hildren separately and inquired of [C]hildren whether

they were being spanked or hit. Mrs. Keeny also

acknowledged that it was during this visit that it actually

came to light that the Keenys had spanked [C]hildren.

On May 13, 2015, Ms. Katie Herrmann, the Bethanna

caseworker who had been assigned to [C]hildren’s case

since January of 2014, reported to Defender Association

Attorney White that the Keenys had confirmed their use of

physical discipline on [C]hildren. The Bethanna foster care

rules forbid corporal punishment of foster children. Defender

Association Attorney White requested that [C]hildren be

moved out of the home immediately. Bethanna initially

attempted instead to implement a “plan of correction”,

which entailed reprimanding the Keenys and allowing

[C]hildren to remain in the Keeny home. However, Defender

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Association Attorney White emailed Bethanna caseworker

Marissa Morris on May 13, 2015, stating that a plan of

correction was an insufficient remedy for the alleged issue

at hand. Defender Association Attorney White stated that

her clients, ZF1 and ZF2, must be moved to respite on that

date. At trial, Mrs. Keeny confirmed that after she admitted

to having spanked [C]hildren, they were removed from the

Keeny[s’] home. In early June of 2015, Colleen Swim,

Esquire (Attorney Swim) succeeded Defender Association

Attorney White as the Defender Association Child Advocate

Attorney for [C]hildren.

According to the Child Protective Services Investigation

Report from November 20, 2015, ZF1 made “consistent and

credible disclosures of sexual abuse”.6 The report also

noted, in reference to ZF1, the “child reported that AP7

inserted his finger in her vagina, in parentheses hiney, and

anus, in parentheses butt, and it caused pain”. ZF1 reported

that this had happened on more than one occasion. On

November 24, 2015, ZF1 and ZF2 disclosed to Bethanna

caseworker Natasha Yoder that Rosella and Wayne Keeny

had sexually molested them and that Wayne Keeny put his

hand in their bottom. In November of 2015, Bethanna sent

Attorney Swim an email which alerted her to the fact that

ZF1 and ZF2 disclosed that they were sexually abused in the

Keeny home.8

6 Video interviews of [C]hildren were played for the

jury on the first day of trial to avoid putting [C]hildren

on the stand.

7 It was never clarified on the record what “AP”

signifies.

8 Ms. Swim stated that she did nothing about the email

because [C]hildren were in therapy at the time she

received the email.

On December 5, 2016, [C]hildren moved in [Father].

[Father] testified that “ZF1 and ZF2 both wet the bed” when

they first came to live with him. He also stated that ZF1 had

“anger issues at times, which occurs to this day. She often

goes into blank stares, biting her nails, but – she’s happy.”

When asked if ZF1 exhibited any other behavioral issues,

[Father] said, “Yes. She actually - touches herself’; [Father]

clarified that he was referring to ZF1 touching herself in

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private areas. He also testified, “[A]t my sister’s home

before we moved, she had a couple occasions where she

smeared her poop on the bathroom wall.” When asked about

ZF2, [Father] explained, “He’s quiet, you know. He’s happy

as well, but he bites his nails. He pulls his hair out.”

Wayne Keeny admitted to having spanked both ZF1 and

ZF2, but denied any other type of hitting by himself or

Rosella Keeny. Both Wayne and Rosella Keeny denied all

allegations of sexual abuse. Wayne Keeny admitted to

having used corporal punishment with [C]hildren, even

though he was aware that this was not allowed under the

foster care agreement with Bethanna. Rosella Keeny

admitted to having spanked [C]hildren with her hand or a

wooden spoon. Rosella Keeny also admitted to having used

a wooden ruler on the hands of [C]hildren one time. At trial,

Rosella Keeny provided her perspective regarding the time

ZF1 stated that she was made to sit on the floor with no

underwear. She stated that ZF1 was wound up before bed

and Wayne Keeny asked her to sit on the floor in front of

him as a time-out, to calm her down. Mrs. Keeny added that

she later noticed ZF1’s tights and underwear on the floor,

but stated that ZF1 was covered by her long dress and thus

was not exposed.

Ms. Erica Cook, a social service advocate for the Defender

Association, had been assigned to [C]hildren’s case in 2013.

Ms. Cook testified that she never visited [C]hildren while

they lived in the Keeny home, never attended a hearing for

ZF1 or ZF2, nor did she ever meet Rosella or Wayne Keeny.9

Ms. Cook testified that she was not aware of any concerns

about [C]hildren being mistreated in the Keeny home until

May of 2015. Ms. Cook agreed that, as a social service

advocate, she would want to be made aware of any

allegations that a child was being mistreated.

9 Defender Association Attorney White had testified,

however, that “typically social workers would do all

the home visits”, and that she herself attempted to

partake in home visits for her cases. Defender

Association Attorney White confirmed that there were

times when social workers saw her clients.

1925(a) Op. at 2-7 (citations to record omitted).

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Both Plaintiffs and the Defender Association presented expert testimony

at trial. Plaintiffs called Dr. Robin A. Altman, M.D. to provide expert testimony

about child psychiatry, psychiatry, and placement agencies and to testify that

Bethanna breached the standard of care for a child welfare agency. She also

said that Z.F.1 suffered from post-traumatic stress disorder (“PTSD”) and

disassociation related to trauma. She testified that she believed Children were

abused in the Keeny household. The trial court summarized her testimony as

follows:

Dr. Altman stated that someone should have spoken to

[C]hildren alone and investigated further into the allegations

of abuse raised by [Father]. Additionally, Dr. Altman stated

that she believed ZF1 suffered from posttraumatic stress

disorder, also known as PTSD. Dr. Altman testified that she

believed ZF1 was suffering from disassociation related to

trauma. When asked whether she had an opinion as to

whether ZF1 and ZF2 were abused in the Keeny household,

Dr. Altman responded, “Yes. I believe they were.” Dr.

Altman also testified that she believed, based on evidence

of fecal smearing, that ZF1 was sexually abused in the

Keeny household.

Id. at 8 (citations to record omitted).

For its part, the Defender Association called Dr. Annie Steinberg, M.D.,

to testify as an expert in pediatrics and child psychiatry. She opined that

Children’s symptoms were related to their six moves to different homes at a

young age:

Dr. Steinberg stated that any child who is moved to six

different homes at such a young age would experience

similar issues and exhibit similar symptoms to those of ZF1

and ZF2. Dr. Steinberg opined that Dr. Altman did not spend

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enough time with ZF1 and ZF2 to properly conclude that

they each suffer from posttraumatic stress disorder.

Id.

Dr. Steinberg testified that she did not believe that Children had PTSD,

and when she gave her basis for that opinion, Plaintiffs objected that she was

not offering her own opinion, but rather “bootstrapping” other doctors’

opinions. The trial court sustained the objection:

A. At the current time, I do not believe they have

posttraumatic stress disorder.

Q. And why do you believe that?

A. Because the treatment providers that saw them for the

longest period of time at Joseph J. Peters Institute in

Philadelphia got to know them very well, worked with the

father, worked with the last foster parent before transition

to the biological family. And over many months of working

with [C]hildren, their father and initially the last foster

parent did not believe that they met the criteria for that

diagnosis.

MR. BEZAR: Objection; motion to strike.

THE COURT: I’ll see counsel.

MR. BEZAR: Your Honor, the witness is bootstrapping other

physicians’ opinions. I wasn’t sure where she was going to

go. She started to say the people that had seen them. I

thought she was going to say they reported certain clinical

symptoms, which she’s allowed to suggest and a few other

things. But all of the sudden, she just bootstrapped

someone else’s opinions to form -- to support her or to

suggest her own.

MR. DOYLE: Any medical expert can use the treatment

records of the patient to formulate their opinion and the

basis for their opinion.

MR. BEZAR: Absolutely.

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MR. DOYLE: It includes treatment records by other people

in her field.

MR. BEZAR: Agreed.

MR. DOYLE: And she relied upon that to formulate her

opinions in part. And I think it’s very proper for her to

comment on medical records she reviewed. They were

clearly listed in her report. She clearly offered this opinion.

...

MR. DOYLE: She clearly offered this opinion. She clearly

indicated that she had reviewed these records and what

they showed and why they were important to her.

MR. BEZAR: Absolutely, she’s allowed to review those

records. But she’s not allowed to bootstrap her opinion with

the opinions of others. She’s allowed to use the basic data,

and that is --

THE COURT: It will be stricken.

N.T., 11/20/18, at 303-305. The court also struck another portion of Dr.

Steinberg’s testimony where she repeated other practitioners’ findings.

Plaintiffs also presented the testimony of an expert in dependency court

matters, Karen Deanna Williams, Esquire. She testified, among other things,

about the standard of care of a child advocate and a guardian ad litem. The

trial court gave this summary of her testimony:

[Williams] testified that, in her opinion, the Defender

Association failed to comply with the appropriate standard

of care in regards to their handling of [C]hildren.

Specifically, Expert Witness Attorney Williams testified that

the allegations about a foster child sitting on the floor with

her panties down should have been sufficient to trigger

further investigation on the part of the child advocate. She

noted that the child advocate from the Defender Association

had been made aware of the allegations that ZF1 was made

to sit on the floor with her panties down at the May 29, 2014

dependency hearing, but that the child advocate failed to

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pursue any further investigation or raise any questions after

this allegation was made. In response to [P]laintiffs’

attorney’s questioning on direct examination, Expert

Witness Attorney Williams opined that the Defender

Association’s failure to take adequate care was a “but for”

cause of the harm to ZF1 and ZF2.

1925(a) Op. at 8-9 (citations to record omitted).

Williams’ testimony took place on two non-consecutive days, Thursday,

November 15, 2018, and Monday, November 19, 2018. On November 15, she

testified about a delay in reunification with Father and gave an opinion that

the Defender Association breached the standard of care by failing to obtain

medical records. N.T, 11/15/18, at 176-77. After this testimony, but before

Williams’ subsequent testimony on November 19, Plaintiffs withdrew their

claim that the Defender Association had breached the standard of care by

failing to obtain medical records. They also withdrew the claim premised on a

delay in reunification. N.T., 11/19/18, at 69.

However, when Williams returned to the stand on November 19, the

Defender Association proceeded to cross-examine her about Children’s

medical records. Id. at 68. Plaintiffs objected and explained at sidebar that

they had withdrawn the medical records claim. They argued that the Defender

Association’s questioning of Williams risked that she would “blurt out

something that she is unaware that she is not to blurt out.” Id. at 69. The

Defender Association responded that Plaintiffs needed to tell the jury that they

had withdrawn the issue, and Plaintiffs agreed to tell the jury that “not getting

the records is not a breach in the standard of care.” Id. at 72. Plaintiffs then

argued that questioning Williams about the records was no longer relevant.

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The Defender Association replied that it only wanted to ask her if the Children’s

doctor was a mandatory reporter of child abuse, as a predicate to asking her

if, after the hearing at which the statement about Z.F.1 sitting on the floor

with no underwear came out, the physician had found any abuse. Id. at 75.

The court responded that the Defender Association could “ask those questions,

and that’s the end of it. . . .” Id. at 76.

At the close of Williams’ testimony, the Defender Association asked the

court to strike Williams’ testimony about the withdrawn theories. Id. at 90-

91. The following morning, the parties and the court discussed a cautionary

instruction, and the court asked the parties to agree on wording for such an

instruction. N.T., 11/20/18, at 7-10.

The Defender Association presented its own expert in the practice of

law, professional responsibility, and the duties of a child advocate and a

guardian ad litem, Samuel Stretton, Esquire. He found the Defender

Association did not fail in its responsibilities:

In preparing his expert report, Attorney Stretton reviewed

[P]laintiffs’ complaint, [P]laintiffs’ Bethanna file, [P]laintiffs’

Defender Association file, the dependency court transcripts,

the deposition transcript of Defender Association Attorney

White, and the deposition transcript of Attorney Swim. With

regards to the Defender Association’s standard of care,

Attorney Stretton testified, “there was nothing I saw that

indicated the Defenders failed in their responsibilities of

regular review, checking in with social workers, appearing

at hearings. And as soon as they became aware of a

problem, they immediately . . . requested [C]hildren be

pulled.”

1925(a) Op. at 9 (citations to record omitted).

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The Defender Association directed Stretton’s attention to testimony at

the May 29, 2014 dependency hearing regarding the incident where Z.F.1 was

made to sit on the floor without her panties, and asked him if he had an

opinion about whether Defender Association Attorney White’s “representation

in total at that hearing” met the standard of care. N.T, 11/20/18, at 104-05.

Plaintiffs objected and they argued at sidebar that the response would be

beyond the scope of Stretton’s expert report. Id. at 105. Stretton’s report did

not mention that the social worker had said at the May 2014 hearing that

Z.F.1 had reported that she sat on the floor without underwear. Stretton’s

expert report did say he had reviewed the transcript, and it included the

following opinion:

My opinion, within reasonable legal and ethical certainty, is

that the Defender Association of Philadelphia, as child

advocate and guardian ad litem, fulfilled its common law and

fiduciary obligations of these two minor children, Z.F.1 and

Z.F.2, at all pertinent times. In my review of the record,

there were multiple court hearings where the well-being of

[C]hildren was discussed.

Id. at 115. The trial court sustained the objection.

After the close of evidence, the Defender Association informed the court

that the parties were unable to agree on a cautionary instruction regarding

the withdrawn theories. They therefore renewed their motion to strike

Williams’ testimony about those theories. The court denied the motion. N.T,

11/21/18, at 30-31. During closing argument, Plaintiffs informed the jury that

they had withdrawn the medical records and reunification claims:

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This is not a case about the Child Advocate Unit not getting

medical records or a delay in unification with [Father]. This

is a case about an attorney that served both as a courtroom

advocate and as a guardian ad litem, an attorney that was

required to protect the best interest of a child and failed to

do so by soliciting testimony about things that were raised

during the May 29, 2014 hearing.

Id. at 45. Plaintiffs then focused their argument on the sole remaining

negligence theory against the Defender Association, and did not argue for a

verdict based on either of the withdrawn theories.

The jury found in favor of Plaintiffs, and against the Defender

Association and the Keenys. It awarded damages of $2.5 million to Z.F.1 and

$2.0 million to Z.F.2. When it apportioned liability, it found the Defender

Association 55% liable, Bethanna 20% liable, Wayne Keeny 20% liable, and

Rosella Keeny 5% liable.

The Defender Association filed post-trial motions, including a motion for

judgment notwithstanding the verdict (“JNOV”) arguing Plaintiffs had failed to

present a prima facie case. It also sought a new trial based on allegedly

improper evidentiary rulings, and requested remittitur or reduction of the

damages. The Defender Association then filed a supplemental post-trial

motion, claiming it was entitled to JNOV “based upon a qualified sovereign

immunity.” The trial court denied the post-trial motions, and the Defender

Association filed a timely Notice of Appeal.

The Defender Association raises the following issues:

1. Is the Defender Association immune from suit while

serving the court in the capacity of a guardian ad litem, and

is the issue reviewable or was it waived?

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2. Did the Defender Association commit legal malpractice in

handling vague allegations of spanking by foster parents

when they first surfaced at a 2014 court hearing or

thereafter in light of express denials of spanking by the

foster parents and [C]hildren at the time, a total lack of any

corroborating evidence, and a judicial ruling that the

allegations did not raise concerns about the safety of

[C]hildren?

3. Was the conduct of the Defender Association during or

after the 2014 dependency hearing causally related to harm

suffered by [C]hildren?

4. Did the trial court improperly permit the jury to consider,

over numerous timely objections, prejudicial and irrelevant

testimony by [Plaintiffs’] expert relating to theories of

liability against the Defender Association that [Plaintiffs]

subsequently abandoned at trial?

5. Did the trial court improperly prevent the Defender

Association from presenting expert testimony on the

element of the standard of care in a legal malpractice case?

6. Did the trial court improperly prevent the Defender

Association from presenting expert medical testimony on

the issue of whether [C]hildren were suffering post -

traumatic stress disorder (“PTSD”)?

7. Should the trial court have remitted the excessive amount

of the jury award and the grossly disproportionate share of

fault the jury imposed upon the Defender Association?

Defender’s Br. at 8-12 (“Question Presented:” omitted).

A. Immunity

In its first issue, the Defender Association claims it is immune from suit

because the suit arose from actions taken while one of its attorneys was acting

as a guardian ad litem, and disputes that the claim against it was for legal

malpractice. It is uncertain of the immunity it claims, stating it is eligible for

“judicial and/or quasi-judicial immunity.” Defender’s Br. at 43. It claims it did

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not waive the issue because it asserted immunity as an affirmative defense in

its Answer to the Complaint and re-raised the issue in its supplemental post-

trial motion.

Ordinarily, a party waives appellate review of any issue it did not

properly preserve below. See generally Pa.R.A.P. 302(a). However, some

issues are non-waivable, and the Defender Association likens its claimed

immunity to local governmental immunity, which is nonwaivable. See

Defender’s Reply Br. at 7 (citing Taylor v. Phila., 692 A.2d 308, 313

(Pa.Cmwlth. 1997), aff’d, 699 A.2d 730 (Pa. 1997)). It also suggests that its

claim is for absolute immunity and therefore not subject to waiver. See id.

(citing In re XYP, 567 A.2d 1036, 1039 (Pa. 1989); Guarrasi v. Scott, 25

A.3d 394, 405 n.11 (Pa.Cmwlth. 2011).

We do not need to reach the question of waiver because the Defender

Association is asking us to establish a new immunity, which is not for us to

do. Although it contends we would not be creating new law, but rather

extending existing principles, we disagree. The Defender Association concedes

that it has not cited any existing Pennsylvania statute, rule, or case law

establishing that a guardian ad litem enjoys immunity. It instead cites cases

from other states and statements in a federal decision to make what are

fundamentally policy arguments that we should extend immunity to it.

But it is not the institutional role of the Superior Court to make such

policy decisions. Rather, the Superior Court is an error-correcting court and

we leave policy questions to the Supreme Court and the General Assembly.

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Matter of M.P., 204 A.3d 976, 986 (Pa.Super. 2019). “It is not the

prerogative of an intermediate appellate court to enunciate new precepts of

law or to expand existing legal doctrines.” Id. To do as the Defender

Association asks, rather than applying existing rules, we would have to import

them into a novel context where they do not have obvious application. We

therefore decline the invitation to create an immunity for guardians ad litem

and reject the Defender Association’s first issue.

B. Judgment Not Withstanding the Verdict

The Defender Association’s next two claims argue the court erred in

denying its motion for JNOV.

[T]he standard of review for an order granting or denying

judgment notwithstanding the verdict is whether there was

sufficient competent evidence to sustain the verdict. We

must view the evidence in the light most favorable to the

verdict winner and give him or her the benefit of every

reasonable inference arising therefrom while rejecting all

unfavorable testimony and inferences. Furthermore,

judgment nov should be entered only in a clear case, where

the evidence is such that no reasonable minds could

disagree that the moving party is entitled to relief. Review

of the denial of judgment nov has two parts, one factual and

one legal:

Concerning any questions of law, our scope of review

is plenary. Concerning questions of credibility and

weight accorded evidence at trial, we will not

substitute our judgment for that of the finder of fact.

Underwood ex rel. Underwood v. Wind, 954 A.2d 1199, 1206 (Pa.Super.

2008) (quoting N.E. Fence & Iron Works, Inc. v. Murphy Quigley Co.,

Inc., 933 A.2d 664, 668 (Pa.Super. 2007)).

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“To prevail in any negligence action, the plaintiff must establish the

following elements: the defendant owed him or her a duty; the defendant

breached the duty; the plaintiff suffered actual harm; and a causal relationship

existed between the breach of duty and the harm.” Merlini v. Gallitzin

Water Auth., 934 A.2d 100, 104 (Pa.Super. 2007) (citing Freed v.

Geisinger Med. Ctr., 910 A.2d 68, 72–73 (Pa.Super. 2006)).

1. Breach of Standard of Care

The Defender Association claims the evidence did not establish that it

breached a duty of care to Children. It claims that at the 2014 hearing, a social

worker testified that Father informed her that one of the children said that she

“sit[s] on the floor with [her] panties down.” Defender’s Br. at 44 (citation

omitted). It argues that Father did not testify at the hearing that he had any

suspicions of sex abuse, and that Father’s counsel spoke only of “corporal

punishment.” Id. at 45. It further notes that the allegations of spanking were

addressed at the hearing. The Defender Association states that it supported

Father’s request for more visitation, “thereby help[ing] to provide [C]hildren

with precisely what they needed: another set of eyes looking after them and

ears listening to them.” Id. at 44.

The Defender Association also claims that Father’s counsel

“misrepresented” at trial the statement attributed to Z.F.1. Id. at 46. The

Defender Association claims that the alleged misrepresentation – that Z.F.1

“was made” to sit on the floor without her underwear “in front of” foster father

– is “significantly different” from what it contends is the “correct” version of

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the statement – that Z.F.1 “sit[s] on the floor with [her] panties down.” Id.

at 46-47. The Defender Association maintains that because Plaintiffs’ counsel

repeated the misstatement during direct examination of Williams, Plaintiffs’

expert on the standard of care, Williams’ opinion is based on “inaccurate facts”

and is “incurably corrupted.” Id. at 48. The Defender Association concludes

that “the only reliable evidence” on this issue was testimony it presented “that

it conducted appropriate follow up at the May 29, 2014 hearing to determine

if [C]hildren were being subjected to any corporal punishment.” Id.

The trial court concluded that Plaintiffs presented sufficient evidence of

a breach of the standard of care:

In the case at hand, the Defender Association was assigned

to represent both the legal interests and the best interest of

ZF1 and ZF2. The [P]laintiffs’ claim of professional

negligence asserts that the Defender Association breached

their duty of care in regards to the legal interests of ZF1 and

ZF2. The twelve jurors applied the law to the facts of the

case and all twelve jurors found that the Defender

Association’s conduct satisfied all three elements of a claim

of professional negligence. N.T. 11/21/18 at 161-62. As the

party representing [C]hildren’s legal interests, the Defender

Association owed a duty of care to ZF1 and ZF2. The

testimony presented by Expert Witness Attorney Williams

provided sufficient, competent evidence to support a finding

of professional negligence on the part of the Defender

Association, as she testified that they failed to satisfy the

standard of care owed to ZF1 and ZF2 in representing both

their legal interests and their best interests. The facts at trial

supported the claims that the Defender Association failed to

further investigate the allegations of abuse raised at the May

29, 2014 dependency hearing. The record evidence

established that all three elements were met and thus the

jury’s verdict is sustained. Therefore, their claim for

judgment notwithstanding the verdict fails.

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1925(a) Op. at 16-17.

This was not error. Plaintiffs’ evidence was sufficient to establish that

the Defender Association breached its duty of care by failing to investigate

once it became aware that one of the children had reported, “I sit on the floor

with my panties down.” Williams initially offered such an opinion without

Plaintiffs’ counsel making the alleged misrepresentation. Plaintiffs’ counsel

referred Williams to the portion of the dependency transcript that includes that

allegation and asked if that was “something that the child advocate is

supposed to follow up on.” N.T., 11/19/18, at 18-19. She responded,

“Absolutely,” and explained that the Defender Association had an affirmative

duty to gather information and investigate because of the possibility of abuse.

Id. at 19-21. She then opined that the Defender Association’s failure to do so

was a breach of the standard of care. Id. at 21-22.

The alleged mischaracterization appeared later, when Plaintiffs’ counsel

asked Williams a hypothetical question, at which point she offered an opinion

incorporating the allegation that the child was “made” to sit on the floor

without underwear. See id. at 24. However, Williams later read the portion of

the dependency transcript containing the report of abuse, and this time did

not make the misstatement:

He said that he felt that the kids were being spanked in the

foster home because during one of the visits – and he’s here

to testify to that -- they asked the children something . . .

about their bottom. And one of the kids reported: “I sit on

the floor with my panties down, or something, and then they

said something else.”

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Id. at 49-50.

Plaintiffs’ counsel closed his examination of Williams, again without

making the alleged misrepresentation, by asking if a child advocate is

“required to follow up on issues surrounding spankings as well as sitting on

the floor with one’s panties down.” Id. at 36. Williams again responded that

the Defender Association breached a duty of care when it did not follow up on

the report. See id.

The Defender Association then cross-examined Williams, making the

point that the transcript did not include allegations that Z.F.1 was “made” to

sit on the floor without underwear, or that such occurred in front of foster

father:

Q. Does that paragraph indicate Mr. Keeny’s name?

A. No.

Q. Does it say she’s being made to sit on the floor with her

panties down?

A. No.

Q. Does it say: “I was made to sit in front of Mr. Keeny, a

foster parent in his sixties, with no underwear on”?

A. No.

Id. at 50.

The jury thus heard the expert’s direct testimony both with and without

the allegedly inaccurate characterization of the transcript, as well as a cross-

examination making the very point the Defender Association now urges on us.

The jury thus had this the information before it to judge the basis of Williams’

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opinion and to determine the credibility and weight to give her testimony.

When it did so, it held against the Defender Association. Viewing the evidence

in the light most favorable to the Plaintiffs, as verdict-winners, as our standard

of review requires, we find the evidence sufficient to prove breach of duty.

This issue fails.

2. Causation

The Defender Association next claims Plaintiffs failed to establish

causation. It maintains that there was no evidence to establish that whatever

happened at the May 2014 hearing was a substantial factor in causing harm

to Children. It argues that it “is pure speculation to say that additional follow-

up by the Defender [Association] after the 2014 hearing would have resulted

in the discovery of abuse and/or removal of [C]hildren from the [foster

parents’] home.” Defender Association’s Br. at 49. It claims the only evidence

as to causation was expert testimony that inaction following the hearing “left

open the possibility that [C]hildren could be exposed to future harm.” Id. at

50 (emphasis omitted).

Here, the trial court concluded:

The Defender Association . . . posits that [P]laintiffs failed

to provide sufficient evidence to establish that the Defender

Association’s conduct was a “but for” cause of the harm to

ZF1 and ZF2. (Def.’s Memorandum of Law at 14). However,

[P]laintiffs presented evidence at trial which showed that an

attorney from the Defender Association was present at the

May 29, 2014 dependency hearing when [Father] raised

allegations of both physical and sexual abuse. N.T. 11/16/18

PM at 106. Testimony presented by Expert Witness Attorney

Williams noted that a child advocate who was made aware

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of this information should have taken further steps to look

into the allegations of abuse. Id. at 107. The evidence also

showed that the Defender Association failed to further

investigate or question the allegations of abuse raised at the

May 29, 2014 dependency hearing, which led to [C]hildren

remaining in the Keeny home for approximately twelve

more months before they were removed on May 13, 2015.

N.T. 11/16/18 PM at 61. [Father] testified that, after

removal from the Keeny home, ZF1 exhibited symptoms of

bed wetting, anger issues, and fecal smearing. N.T.

11/16/18 AM at 16-17. In addition, he testified that ZF1

touched herself in private areas and stared blankly. Id. With

regards to ZF2, [Father] testified that he exhibited

symptoms of bed wetting, pulled his hair out and bit his

nails. Id. Plaintiffs’ expert, Dr. Altman, testified that she

believed ZF1 and ZF2 suffered from posttraumatic stress

disorder. N.T. 11/15/18 at 63. Thus there was sufficient

evidence in this record for the jury to conclude that the

Defender Association’s professional negligence was a factual

cause of harm to [C]hildren and that both ZF1 and ZF2

suffered actual damage as a result of the Defender

Association’s negligent conduct. The Defender Association is

thus not entitled to judgment notwithstanding the verdict in

regard to this issue.

1925(a) Op. at 15-16 (emphasis in original).

We agree with the trial court that the jury reasonably could have

concluded that the Defender Association’s breach of the standard of care

caused harm to Children. The trial court did not err when it denied the motion

for JNOV.

C. Motion for New Trial

In its next three issues, the Defender Association argues the court erred

in denying its motion for a new trial, which was based on alleged errors in

evidentiary rulings regarding expert testimony. “Our standard of review in

denying a motion for a new trial is to decide whether the trial court committed

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an error of law which controlled the outcome of the case or committed an

abuse of discretion.” Corvin v. Tihansky, 184 A.3d 986, 992 (Pa.Super.

2018) (citation omitted). “The admission of expert testimony is a matter

within the sound discretion of the trial court, whose rulings thereon will not be

disturbed absent a manifest abuse of discretion.” Woodard v. Chatterjee,

827 A.2d 433, 440 (Pa.Super. 2003) (quoting Walsh v. Kubiak, 661 A.2d

416, 419 (Pa.Super. 1995) (en banc)).

To be admissible, “expert testimony must be based on more than mere

personal belief, and must be supported by reference to facts, testimony or

empirical data.” Snizavich v. Rohm and Haas Co., 83 A.3d 191, 195

(Pa.Super. 2013) (citations and internal quotation marks omitted). Although

an expert may rely on information and data not in evidence, “an expert may

not act as a ‘mere conduit or transmitter of the content of an extrajudicial

source.’” Woodard, 827 A.2d at 444 (quoting Primavera v. Celotex Corp.,

608 A.2d 515, 521 (Pa.Super. 1992)).

An “expert” should not be permitted simply to repeat

another’s opinion or data without bringing to bear on it his

own expertise and judgment. Obviously, in such a situation,

the non-testifying expert is not on the witness stand and

truly is unavailable for cross-examination. The applicability

of the rule permitting experts to express opinions relying on

extrajudicial data depends on the circumstances of the

particular case and demands the exercise, like the

admission of all expert testimony, of the sound discretion of

the trial court. Where . . . the expert uses several sources

to arrive at his or her opinion, and has noted the reasonable

and ordinary reliance on similar sources by experts in the

field, and has coupled this reliance with personal

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observation, knowledge and experience, we conclude that

the expert’s testimony should be permitted.

Id. at 444-45 (quoting Primavera, 608 A.2d at 521).

Further, “an expert witness may not testify on direct examination

concerning matters which are either inconsistent with or go beyond the fair

scope of matters testified to in discovery proceedings or included in a separate

report.” Woodard, 827 A.2d at 441 (citation omitted); see also Pa.R.C.P.

4003.5(c). “No ‘hard and fast rule [exists] for determining when a particular

expert’s testimony exceeds the fair scope of his or her pre trial report,’ and

we must examine the facts and circumstances of each case.” Id. at 442

(citation omitted). We have stated that, when determining whether testimony

is within the fair scope of the report:

The question to be answered is whether, under the

particular facts and circumstances of the case, the

discrepancy between the expert’s pre-trial report and his

trial testimony is of a nature which would prevent the

adversary from making a meaningful response, or which

would mislead the adversary as to the nature of the

appropriate response.

Id. (quoting Feden v. Consol. Rail Corp., 746 A.2d 1158, 1162 (Pa.Super.

2000)) (emphasis removed).

1. Refusal to Strike Expert Testimony

The Defender Association claims the court erred in denying its request

to grant a new trial based on the court’s failure to strike allegedly prejudicial

testimony of the Plaintiffs’ expert on the standard of care, Attorney Williams.

It argues that Williams testified about three purported breaches – failure to

retrieve medical records, failure to make efforts to reunify Children with

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Father, and failure to follow up on the statements regarding abuse. However,

because Plaintiffs withdrew the first two claims, the Defender Association

claims the court erred when it denied its motion to strike testimony about the

two withdrawn theories.

The trial court found:

The Defender Association . . . contends that this Court erred

by failing to strike Expert Witness Attorney Williams’

“irrelevant testimony” regarding reunification and medical

records. (Def.’s Memorandum of Law at 20). The Defender

Association argues that this testimony carried a danger of

unfair prejudice sufficient to inflame the jury. Id. The

Defender Association waived their right to assert this claim

as they failed to timely object to this testimony. Expert

Witness Attorney Williams testified regarding reunification

and medical records on November 15, 2018. N.T. 11/15/18

at 50, 151-183. Between November 15, 2018 and

November 19, 2018, Expert Witness Attorney Williams

testified on direct examination, cross-examination by both

the Keenys’ counsel and the Defender Association’s counsel,

[P]laintiffs’ re-direct, and the Defender Association’s re-

cross-examination. N.T. 11/15/18; N.T. 11/19/18 PM. It

was not until the Defender Association’s re-cross-

examination of Expert Witness Attorney Williams on

November 19, 2018, that the Defender Association moved

to strike Expert Witness Attorney Williams’ testimony

regarding medical records and reunification. N.T. 11/19/18

PM at 90. In response, this Court requested that the parties

agree upon language for [P]laintiffs’ counsel to use in their

closing argument to inform the jury of the limitation on the

Defender Association’s liability with regards to the

reunification and medical records in question. N.T. 11/20/18

at 6-10.

The parties could not agree upon language, thus the

Defender Association renewed its objection and this Court

overruled it. N.T. 11/21/18 at 30-32.

The Defender Association failed to timely object to Expert

Witness Attorney Williams’ testimony regarding

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reunification and medical records, thus the Defender

Association waived this issue and this claim fails.

1925(a) Op. at 21-22.

We do not think the Defender Association waived this issue by failing to

object when Williams gave the testimony that the Defender Association later

sought to strike. After all, the objection only arose after Williams gave that

testimony. Nor do we think that the Defender Association’s questioning of

Williams on cross-examination amounted to a waiver, as the questioning was

narrowly focused on medical records, and did not mention the separate

reunification claim. Nor did the questioning elicit any testimony reiterating an

opinion about either of the withdrawn claims.

We nonetheless affirm, albeit on a different basis. Even assuming the

trial court ought to have struck the testimony, the Defender Association did

not sustain prejudice. Plaintiffs informed the jury themselves during closing

argument that their case against the Defender Association was limited to the

sole remaining theory, and they did not attempt to obtain a verdict based on

a withdrawn claim.

2. Preclusion of Expert Opinion Based on Fair Scope Rule

The Defender Association next claims the court erred in excluding

testimony from its expert, Attorney Stretton. It claims the court’s ruling that

the expert could not testify regarding an opinion as to the child sitting on the

floor was error because the report indicated the expert reviewed the 2014

transcript, and it was the basis of the opinion that the Defender Association

satisfied its duty of care. It claims the preclusion based on the fair scope rule

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was error because the opinion was expressly in the report. It claims “[t]he

omission of specific words from an otherwise unobjectionable expert report is

not a basis for precluding expert testimony.” Defender’s Br. at 59. It argues

it was prejudiced by this preclusion because it was left without evidence to

rebut the testimony that it breached the standard of care at the 2014 hearing.

The trial court concluded:

In Expert Witness Attorney Stretton’s expert report, he

briefly acknowledged an incident where ZF1 was made to sit

on the floor “without her underwear”. Pl.’s Exhibit 322 at 5.

The text concerning this incident made no reference to the

May 29, 2014 dependency hearing. Id. Expert Witness

Attorney Stretton’s report referred to only one instance in

or around May of 2015, when [Father] spoke with a

Bethanna supervisor regarding his concerns: “He said the

female minor was made to sit on the floor without

underwear.” Id. (Emphasis added)[.] Aside from this lone

statement, Expert Witness Attorney Stretton did not discuss

the incident, nor did he address this incident with regards

to his determination of whether or not Defender Association

Attorney White breached her standard of care. When asked

on direct examination if he was familiar with the incident

where ZF1 was “sitting on the floor without her panties”,

Attorney Stretton confirmed that he was familiar with this

incident. N.T. 11/20/18 at 105. The attorney for the

Defender Association then asked, “Do you have an opinion,

within a reasonable degree of legal and ethical certainty, as

to whether Ms. Arthur White’s representation in total at that

hearing on the 29th met the standard of care?” Id.

(Emphasis added)[.] Plaintiffs’ attorney timely objected, on

the grounds that [P]laintiffs “were not on notice that this

witness was going to offer testimony that there was

compliance within the standard of care with respect to

follow-up investigation on the sitting on the floor with her

panties down.” Id. at 106. This Court sustained the

objection, id., and precluded Attorney Stretton from

testifying to anything having to do with the panties and

sitting on the floor. Id. at 121-22.

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The Court found that this testimony fell outside the fair

scope of Attorney Stretton’s report. Plaintiffs were unable to

discern, from his report, that he would be rendering an

opinion concerning Defender Association Attorney White’s

representation at the May 29, 2014 dependency hearing

specific to the concerns raised about ZF1 being made to sit

on the floor with or without her panties. In his report, he

had only referenced [Father] mentioning this concern in May

of 2015 to the Bethanna supervisor, not at a court hearing

on May 29, 2014. Pl.’s Exhibit 322 at 5. Allowing Attorney

Stretton to testify to his opinion based on a different

allegation than what he noted in his report would have

constituted unfair surprise. Therefore, this Court properly

acted within its discretion when it precluded Attorney

Stretton from testifying with regards to the incident of ZF1

being made to sit on the floor with her panties down.

Aside from this incident, Expert Witness Attorney Stretton

was permitted to testify with regards to his opinion as to

whether Defender Association Attorney White had met her

duties and responsibilities to represent [C]hildren. N.T.

11/20/18 at 100. This testimony sufficed for Expert Witness

Attorney Stretton’s opportunity to counter the opinion

offered by [P]laintiffs’ expert and thus was part of the

evidence for the jury’s consideration.

1925(a) Op. at 23-25 (emphasis in original).

We conclude the trial court did not abuse its discretion. The expert

report did not provide an opinion as to whether the Defender Association acted

within the standard of care following the May 2014 hearing regarding the claim

that Z.F.1 sat on the floor without underwear, and the court did not abuse its

discretion concluding that providing such an opinion at the trial was beyond

the fair scope of the report.

3. Preclusion of Expert Testimony Conveying Opinion of Others

The Defender Association also argues that the court erred when it

prevented the jury from hearing expert testimony from Dr. Steinberg

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rebutting the evidence that Children were suffering from post-traumatic stress

disorder. It claims the court erred in finding the expert “bootstrapped her

opinion off the opinions of others.” Defender’s Br. at 60. Dr. Steinberg’s expert

report noted the expert reviewed the medical records and doctor notes and

formed an opinion that “‘the treatment providers that saw [Children] for the

longest period of time’ had correctly concluded [C]hildren showed no lingering

effects from PTSD.” Id. (citation omitted) (alteration in original). It noted an

expert may base an opinion on the opinions of others. Further, here the expert

conducted an independent evaluation of the work done by the physicians and

concluded they were right in their assessment.

The trial court stated:

The Defender Association contends that Dr. Steinberg only

relied on records from others in the field in forming her

opinion that ZF1 and ZF2 did not suffer from posttraumatic

stress disorder. N.T. 11/20/18 at 308-09. To the contrary,

Dr. Steinberg testified regarding another provider’s opinion

as to whether ZF1 and ZF2 suffered from posttraumatic

stress disorder. Id. at 303. In reference to ZF1 and ZF2, Dr.

Steinberg stated, “at the current time, I do not believe they

have posttraumatic stress disorder”. Id. When asked why

she believed that, Dr. Steinberg replied:

Because the treatment providers that saw them for

the longest period of time at Joseph J. Peters Institute

in Philadelphia got to know them very well, worked

with the father, worked with the last foster parent

before transition to the biological family. And over

many months of working with [C]hildren, their father

and initially the last foster parent did not believe that

they met the criteria for that diagnosis.

Id.

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Following an objection by [P]laintiff’s counsel, this Court

struck Dr. Steinberg’s testimony regarding the opinions

offered by others in the field as to whether [C]hildren

suffered from posttraumatic stress disorder. Id. at 305. This

Court properly precluded Dr. Steinberg’s testimony

rendering the opinions of others, thus this assignment of

error fails and the Defender Association is not entitled to a

new trial.

1925(a) Op. at 26.

We conclude the court did not abuse its discretion in precluding Dr.

Steinberg from testifying as to what other doctors concluded. See Woodard,

827 A.2d at 444.

D. Remittitur

In its last argument, the Defender Association argues the jury award

and apportionment of damages to the Defender Association were excessive

and warranted remittitur. It argues there was “no credible basis for the jury’s

finding that the Defender Association was 55% liable for damages from

physical abuse administered by others when [the foster parents] were found

only 25% liable.” Defender’s Br. at 63.

Remittitur is the “procedural [process] by which an excessive verdict of

the jury is reduced.” Carlino v. Ethicon, Inc., 208 A.3d 92, 118 (Pa.Super.

2019) (alteration in original). “[T]he decision to grant a remittitur depends on

whether the award of compensatory damages lies beyond ‘the uncertain limits

of fair and reasonable compensation’ or whether the verdict ‘so shocks the

conscience as to suggest that the jury was influenced by partiality, prejudice,

mistake, or corruption.’” Id. (quoting Hammons v. Ethicon, Inc., 190 A.3d

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1248, 1285-86 (Pa.Super. 2018)). The standard “is highly deferential,

because the trial judge serves not as finder of fact but as impartial courtroom

authority with obligation to give great respect to the jury’s function.” Id.

(citations omitted). “This Court is not free to substitute its judgment for that

of the fact finder. Rather, it is our task to determine whether the lower court

committed a clear or gross abuse of discretion when conducting its initial

evaluation of a defendant’s request for remittitur.” Id. (citations and quotation

marks omitted).

The trial court found the award did not shock the conscience:

The Defender Association alleged that the jury award is

excessive and exorbitant. Additionally, the Defender

Association argued that the jury apportionment of [55%]

liability to the Defender Association was excessive and is

evidence of partiality, prejudice, or mistake. The Defender

Association failed to put forth any evidence from the trial to

establish that the verdict so shocked the sense of justice as

to suggest that the jury was influenced by partiality,

prejudice, or mistake. The jury award fell within the

uncertain limits of fair and reasonable compensation and the

award was neither excessive nor exorbitant. The Defender

Association failed to put forth evidence to establish that this

Court committed an abuse of discretion or an error of law,

thus, in denying its request for remittitur, this claim fails.

1925(a) Op. at 27 (citations to record omitted).

We conclude the trial court did not commit a clear or gross abuse of

discretion. Neither the amount awarded by the jury, or its apportionment

among the defendants, shocks the conscience.

Judgment affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/16/2020

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