Garced, S. v. United Cerebral Palsy

J-A20018-22

2023 PA Super 257

SAMUEL GARCED AND GLADYS IN THE SUPERIOR COURT

DELGADO-GARCED OF PENNSYLVANIA

Appellants

v.

UNITED CEREBRAL PALSY OF

PHILADELPHIA AND VICINITY A/K/A

BLOSSOM PHILADELPHIA AND SANOSIL

USA, LLC AND SANOSIL

INTERNATIONAL, LLC AND HALOSIL

INTERNATIONAL, LLC

Appellees No. 111 EDA 2022

Appeal from the Order Entered December 7, 2021

In the Court of Common Pleas of Philadelphia County

Civil Division at No.: 171003536

BEFORE: STABILE, J., MCCAFFERY, J. and PELLEGRINI, J.*

OPINION BY STABILE, J.: FILED DECEMBER 7, 2023

In this civil action, Appellants Samuel Garced (“Mr. Garced”) and Gladys

Delgado-Garced (“Mrs. Garced”) allege that Mr. Garced suffered injuries from

exposure to a disinfectant cleaner known as HaloSpray manufactured by

Appellee Halosil International, Inc.1 that was applied to a sealed room by

employees of Appellee United Cerebral Palsy of Philadelphia (“UCP”) using a

“fogger” provided by Halosil. Mr. Garced claimed that he suffered permanent

lung damage by inhaling HaloSpray fog that escaped through gaps between

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* Retired Senior Judge assigned to the Superior Court.

1 Appellees Halosil International, Inc., Sanosil USA, LLC and Sanosil

International, LLC fall under the same corporate umbrella. We refer

collectively to these appellees as “Halosil.”

J-A20018-22

the sealed room and an adjacent room where he was cleaning. A jury awarded

Mr. Garced $500,000.00 in damages for future medical expenses and

$500,000.00 for past and future noneconomic loss but awarded no damages

as to past lost earnings or future lost earning capacity. The trial court granted

Halosil’s and UCP’s motions for judgment notwithstanding the verdict (“JNOV”)

on Mr. Garced’s future medical expenses and future noneconomic loss based

upon a failure to establish causation through competent expert testimony.

The court denied Halosil’s motion seeking JNOV on the ground that Appellants’

action was preempted under the Federal Insecticide Fungicide Rodenticide Act

(“FIFRA”), 7 U.S.C. § 136(v). The court ordered a new trial limited to the

amount of past noneconomic loss related to Mr. Garced’s emergency room

visits and follow-up treatment. Sanctions also were ordered as against

Appellants and their counsel for conduct relating to the use of an interpreter

at trial. Appellants appeal from the order disposing of post-trial motions. We

affirm.

I. BACKGROUND FACTS AND APPEAL ISSUES.

The record reflects that HaloSpray consists of 94.5% deionized water,

hydrogen peroxide, silver nitrate and phosphoric acid. Halosil, the

manufacturer and seller of HaloSpray, provided a fogging machine (known as

a HaloFogger) and bottles of HaloSpray to UCP. David St. Clair of Halosil

trained Pat Bonner, head of UCP’s maintenance department, how to use the

HaloFogger to generate disinfectant fog from HaloSpray and how to train other

UCP employees to use the HaloFogger and prepare rooms for fogging. St.

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Clair also trained another UCP employee, Jason Benson. St. Clair instructed

that safe fogging requires closing all doors, sealing all gaps between the doors

and door jambs and floors with masking tape, sealing all air vents and placing

caution signs on exit doors to keep people out. St. Clair advised that nobody

should enter a room that is being fogged without PPE (a respirator and

goggles), and people without PPE should stay out until the next morning so

that the hydrogen peroxide in the fog could dissipate.

UCP contracted with Mr. Garced to provide general cleaning services at

UCP. On May 26, 2016, Mr. Garced was exposed to HaloSpray at UCP’s

Philadelphia facility. On that date, Mr. and Mrs. Garced were providing

cleaning services at UCP. When they arrived that day, they were told not to

clean Room 166 that evening. Benson set up the HaloFogger in Room 166,

sealed the room and left the building at around 8:30 to 8:45 p.m. Mr. Garced

testified that he was mopping and sweeping the floor of the classroom

adjacent to Room 166 when he began feeling symptoms in his nose, face and

chest. He testified that he had been working for about twenty minutes in the

room before noticing fog or smoke around him. When he looked up and saw

smoke on the ceiling, he exited the room. In the hallway, his face was bright

red, and he threw up a white substance. Mrs. Garced testified that the

bathroom doors leading into Room 166 and the connecting room where Mr.

Garced was working were both open at the time of the incident.

Appellants left UCP and drove to nearby Einstein hospital because Mr.

Garced was suffering from coughing and burning. He received oxygen in the

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emergency room and reported chest pain and tightness. He claimed to never

have had respiratory problems before the incident at UCP. Following the

exposure incident, he related he had shortness of breath, coughing, pain in

his chest, left-sided sinus pain and swelling.

In mid-August 2016, three months after the incident at UCP, Mr. Garced

was diagnosed with irritant induced asthma or reactive airway disease

syndrome (“RADS”). He later underwent sinus surgery, and he stopped

working in 2019.

Appellants filed a personal injury action raising negligence claims

against all Appellees as well as product liability and breach of warranty claims

against Halosil. Appellants also named St. Clair as a defendant but later

agreed to dismiss their claim against him. The court granted summary

judgment in favor of Halosil on the product liability and warranty claims but

permitted the case to proceed to trial on Appellants’ negligence claim.

Several weeks before trial, the parties filed a total of 24 motions in

limine, including Halosil’s Frye2 motion to preclude the testimony of

Appellants’ medical expert witnesses, Drs. Lazaar and Savul, on the ground

that the methodology underlying their opinions was not generally accepted in

the relevant scientific community. UCP subsequently joined in this motion.

One day before trial, the case was reassigned from the Honorable Sean

Kennedy to the Honorable James Crumlish, III. On the morning of trial, the

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2 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

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parties argued the motions in limine before Judge Crumlish. Without holding

an evidentiary hearing, Judge Crumlish denied the Frye motion without

prejudice to Appellees’ right to renew their objections to the medical experts’

testimony during trial. N.T., 9/28/21, at 29.

The case proceeded to trial before Judge Crumlish. Appellants

contended that Halosil was negligent in teaching UCP employees and in failing

to identify places where the fog could escape and injure bystanders.

Appellants asserted that UCP’s employees were negligent in failing to seal the

room it was fogging. Drs. Lazaar and Savul testified that Mr. Garced’s

exposure to HaloSpray was the cause of his RADS. Notably, Appellants did

not present any testimony, expert or otherwise, concerning the concentration

of fog in the room where Mr. Garced experienced symptoms, a calculation of

the dosage of HaloSpray that he inhaled, or the concentration of the mist in

the room that would have been sufficient to cause RADS.

Mr. Garced required an interpreter for his testimony because his primary

language is Spanish. After trial began, Appellees learned that Appellants and

their counsel met with their interpreter before and during trial to discuss Mr.

Garced’s testimony. Appellees immediately moved for a directed verdict on

the ground that Appellants and their counsel improperly coached the

interpreter. The court denied this motion without prejudice to Appellees’ right

to raise the same motion at the conclusion of trial.

At the close of Appellants’ case, the court entered a nonsuit against Mrs.

Garced. It previously granted Appellees’ motion in limine to preclude her

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personal injury claim for failure to provide an expert report that causally

connected her claimed injury to the exposure incident. At the close of

evidence, Appellees again moved for a directed verdict based on Appellants’

misconduct relating to the interpreter. Appellees also moved for a directed

verdict on the ground that Appellants failed to present sufficient evidence in

support of the causation element of their negligence claim. Finally, Halosil

moved for a directed verdict on the ground that Appellants’ claims were

preempted under FIFRA. The court denied all motions for directed verdict.

On October 7, 2021, the jury returned a verdict in favor of Mr. Garced

in the amount of $1,000,000.00, finding UCP eighty percent (80%) liable and

Halosil twenty percent (20%) liable. The verdict sheet reflected awards of

$500,000.00 for “future medical expenses” and $500,000.00 for “past,

present, and future pain and suffering, embarrassment and humiliation and

loss of enjoyment of life.” All parties filed post-trial motions. On December

7, 2021, the court entered an order denying Appellants’ post-trial motions as

well as Halosil’s motion for JNOV under FIFRA. The court granted Halosil’s

and UCP’s motions for JNOV for Appellants’ failure to submit sufficient

evidence of causation. The court concluded that Appellants’ experts failed to

meet the Frye and Rule 7023 standard for opining on proximate cause to

support future medical expenses and future noneconomic loss, and that the

jury therefore had no valid basis for these awards. Accordingly, the court

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3 Pa.R.E 702 – Testimony by Expert Witnesses.

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vacated the jury’s verdict and ordered a new trial limited solely to the issue of

any past noneconomic loss that Mr. Garced could recover related to his initial

emergency room visit and its immediate aftermath, which in the court’s

opinion, represented the only injury for which Mr. Garced had admissible

medical opinions to establish causation in fact. Consequently, the court struck

the award of future medical expenses and future noneconomic loss,4 and

granted a new trial limited to the amount of past noneconomic loss related to

Mr. Garced’s emergency room visits and follow-up treatment. The court

denied UCP’s motion for JNOV based on Appellants’ misconduct during trial

relating to the interpreter for Mr. Garced’s testimony. The court did, however,

in granting a new trial, grant relief on the issue of this misconduct, providing:

[In the new trial,] the Court’s prior preclusions of evidence are

imposed as the law of the case, the Jury’s determination that [Mr.

Garced] failed to prove any damages based upon lost income is

binding, [Appellants’] experts are PRECLUDED from offering

testimony as to any current or future medical conditions, [Mrs.]

Garced is PRECLUDED from bringing claims on her own behalf and

[Mr. Garced] must produce his complete tax returns or suffer

dismissal of his case.

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4 The court was clear both in its opinion and in its “Final Order” that it was

striking the jury’s award for future medical costs and future noneconomic

damages. The court order, however, elsewhere stated that it was striking

only the award of future medical expenses and granting a new trial as to past

noneconomic loss only. Despite this part of the order striking only future

medical expenses, we think it clear this was an oversight to not also include

the striking of future noneconomic loss, as the court’s order, its opinion, and

its grant of a new trial limited solely to past noneconomic loss, definitively

establish that its order included the striking of both future medical costs and

future noneconomic loss. None of the parties to this appeal challenge this

oversight.

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Order, 12/7/21, at 2. The court further imposed two sanctions: an order

requiring Appellants’ counsel to pay $5,000.00, and an order directing

Appellants5 to pay counsel fees to Appellees relating to litigation concerning

the interpreter.6

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5 We also note some confusion as to who is responsible for paying counsel

fees with respect to litigation concerning the interpreter. In its opinion, the

court determined that an award against “Plaintiff [Mr. Garced] and Mrs.

Garced” for their participation in the conduct surrounding the interpreter

warranted the further sanction of counsel fees. Trial Court Opinion 12/7/21

at 27. The court’s Final Order of that same date, however, directs that the

misconduct of “Plaintiff, Gladys Garced and their counsel warrants the

imposition of sanctions” such that “Plaintiff shall pay attorneys fees to the

Defendants for their time in conducting the deposition of the interpreter….”

Trial Court Final Order 12/7/21 at 3. (Emphasis added). Once again, we think

it clear that the imposition of sanctions for these fees was against both Mr.

and Mrs. Garced, as evidenced by the court’s opinion and its reference to

“their” counsel in its final order. Should any confusion persist, Appellants may

seek clarification from the trial court upon remand.

6 The court instructed Appellees to file motions substantiating the amount of

their counsel fees and that it would schedule a hearing on Appellees’

application for attorney’s fees. The lower court docket reflects that the

attorney’s fee issue against Appellants remains pending in the trial court;

there have not been any further filings or rulings on this issue. We observe

the fact that litigation remains pending over the amount of counsel fees as a

sanction against Appellants under 42 Pa.C.S.A. § 2503, does not defeat our

jurisdiction over this appeal. As the Commonwealth Court has observed:

A motion for counsel fees under 42 Pa.C.S.[A.] § 2503 is an

ancillary matter separate from the appeal of the trial court’s

judgment in the case. Samuel–Bassett v. Kia Motors America,

Inc., [] 34 A.3d 1, 48 ([Pa.] 2011); Old Forge School District

v. Highmark Inc., [] 924 A.2d 1205, 1211 ([Pa.] 2007). The

filing of an appeal therefore does not divest the trial court of

jurisdiction over such a motion for counsel fees. Samuel–

(Footnote Continued Next Page)

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On December 15, 2021, Appellants filed a notice of appeal from the

order deciding post-trial motions. Both Appellants and the trial court complied

with Pa.R.A.P. 1925. Appellees did not file cross-appeals. Appellants raise

the following issues in this appeal, which we re-order to accommodate the

order in which we shall address the issues:

1. Did the trial court err in granting [Appellees’] Motion for JNOV

where the evidence viewed in the light most favorable to

[Appellants] was sufficient as a matter of law to support a causal

nexus between [Appellees’] negligence and the injuries?

2. Did the trial court err and abuse its discretion in granting

[Appellees’] Motion for New Trial and at the same time punishing

[Appellants] and [Appellants’] counsel for alleged vexatious

conduct by “gutting” their case and ordering sanctions against

them where there was no evidence that the [Appellants] or

[Appellants’] counsel deliberately violated a clear order of the

Court, and there was no evidence that any alleged vexatious

conduct affected the outcome of the trial?

3. Did the trial court err in denying [Appellants’] Motion for a New

Trial on the issue of damages where income tax consequences

were brought into the trial; [Appellants were] limited to ten

minutes for testimony on damages; evidence was introduced as

to what was paid for past medical bills in violation of the collateral

source rule; the defense expert was permitted to testify that the

use of Xolair [a drug that Mr. Garced received as part of his

medical treatment] beyond four months was inappropriate though

not part of his pretrial report; [Appellants were] precluded from

arguing that [Mr. Garced’s] work at UCP did not continue as a

consequence of this accident; the trial court gave a prejudicial

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Bassett, 34 A.3d at 48; Old Forge School District, 924 A.2d at

1211.

Ness v. York Tp. Bd. Of Com’rs, 123 A.3d 1166, 1170 (Pa. Cmwlth. 2015).

Commonwealth Court decisions do not bind this Court, but we may consider

them as persuasive authority. Petow v. Warehime, 996 A.2d 1083, 1189

n.1 (Pa. Super. 2010).

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curative instruction; and [Appellants were] precluded from

introducing a videotape to rebut surveillance video that had just

been provided by [Appellees]?

4. Did the trial court err in precluding [Appellants’] liability expert

from testifying because he was an alleged competitor of the

defendant?

Appellants’ Brief at 5-6.

II. JNOV AND CAUSATION

When reviewing an order resolving a post-trial motion for JNOV, our

standard of review is as follows:

A judgment notwithstanding the verdict can be entered upon two

bases: (1) where the movant is entitled to judgment as a matter

of law; and/or, (2) the evidence was such that no two reasonable

minds could disagree that the verdict should have been rendered

for the movant. When reviewing a trial court’s denial of a motion

for judgment notwithstanding the verdict, we must consider all of

the evidence admitted to decide if there was sufficient competent

evidence to sustain the verdict. In so doing, we must also view

this evidence in the light most favorable to the verdict winner,

giving the victorious party the benefit of every reasonable

inference arising from the evidence and rejecting all unfavorable

testimony and inference. Concerning any questions of law, our

scope of review is plenary. Concerning questions of credibility and

weight accorded the evidence at trial, we will not substitute our

judgment for that of the finder of fact. If any basis exists upon

which the [trial] court could have properly made its award, then

we must affirm the trial court’s denial of the motion for judgment

notwithstanding the verdict. A judgment notwithstanding the

verdict should be entered only in a clear case.

Karden Constr. Servs., Inc. v. D’Amico, 219 A.3d 619, 627 (Pa. Super.

2019).

In their post-trial motions, Appellees sought JNOV based on Appellants’

failure to present sufficient evidence at trial to establish the necessary nexus

between Mr. Garced’s initial exposure to HaloSpray and his long-term chronic

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respiratory illness, RADS. Appellees focus on two flaws in Appellants’

evidence: (1) Appellants failed to establish any level or concentration of

exposure to HaloSpray at the time of the May 26, 2016 incident, and (2)

Appellants’ medical experts failed entirely to set forth any scientific authority

or empirical studies to support their opinions on causation. The trial court

agreed and granted JNOV on all of Appellants’ future economic and non-

economic claims for damages. On appeal, Appellants argue that neither of

their experts had to testify that a particular concentration of HaloSpray had

to be identified to render a diagnosis of RADS or chronic sinusitis or to casually

connect exposure to their diagnoses. Appellants’ Brief at 48. They argue

instead that their evidence was sufficient because it is known that HaloSpray

is an irritant, their expert testimony established that exposure for up to 20

minutes7 was a significant exposure, and Mr. Garced developed respiratory

problems from exposure to the HaloSpray irritant. Id. at 48-49. They claim

an exact concentration of the irritant is not required if the patient meets the

scientifically and medically accepted criteria; that is, Mr. Garced had no prior

respiratory symptoms,8 the product is confirmed to be an irritant, other causes

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7 Appellees contend that the evidence shows Mr. Garced was only in the room

for several minutes, but for purposes of this JNOV issue, we will accept as true

Mr. Garced’s claim that he was in the room for twenty minutes.

8 A statement that is belied by the record, as demonstrated below.

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are ruled out, and the diagnosis is confirmed through methacholine challenge

testing. Id. at 49.

In granting JNOV, the trial court observed that “[i]t was more than

sufficient as a matter of fact for the jury to conclude that [Mr. Garced] suffered

an injury of undefined severity on May 26, 2016 that caused him to seek

treatment to the emergency room. However, the evidence demonstrated that

any effects suffered from exposure to Halospray at UCP resolved within several

months and [Appellant’s] lung function showed no continuing injury.”

Memorandum Opinion, 12/7/21, at 4. Citing Estate of Walsh v. BASF Corp.,

234 A.3d 446, (Pa. 2020), which in turn relied upon Frye, the court held that

to attempt to legally and factually connect the claimed continuing injuries back

to the UCP exposure, Appellants needed to offer a timely pre-trial expert

opinion and competent and admissible expert testimony at trial based upon

an accepted scientific methodology that causally connected Mr. Garced’s

alleged ongoing medical condition to the Halospray exposure. Memorandum

Opinion at 4. The trial court concluded that Appellants’ expert testimony failed

to demonstrate a causal nexus between the incident at UCP and Mr. Garced’s

future economic loss and future medical expenses:

[Appellants’] experts only referenced two sources to support their

conclusion—a Material Data Safety Sheet for Halomist (not the

applicable Halospray) and an EPA document dealing with a 90%

Hydrogen Peroxide solution. [Appellants’] counsel here

extensively asked witnesses about Halomist, not the product

involved in [Mr. Garced’s] exposure (Halospray). The experts

made no separate scientific investigation as to Halospray and

never did any testing or calculations to determine exposure levels,

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airborne properties or experimental evidence from human

populations. No evidence was offered as to the effect of Halospray

on human subjects, exposure times or latent injury. Not a single

treatise, textbook or scientific article was consulted or cited. The

EPA warnings on the 90% product bear no relationship to

Halospray, which contained a dramatically different concentration

and application and had no more than 5% hydrogen peroxide.

Thus, . . . [Appellants’] experts failed to offer any scientific

methodology for their conclusions that [Appellant] Garced’s

current lung problems resulted from a brief exposure in 2016 to

Halospray. Halosil’s assertion of a deficiency in expert testimony

supporting a case in fact and proof as to causation of [Mr.

Garced’s] alleged brief exposure to Halospray is correct.

[Appellants] did not produce any supporting testimony of an

expert toxicologist or industrial hygienist. (N.T. 9/29/21 p.m., pp.

47-49). [Appellants] did not have an expert who measured the

contents of the “mist” or the amount of potentially hazardous

material in it. [Appellants] simply had [their] experts parrot lay

beliefs based upon [Appellants’] version of the event—i.e., not one

expert or scientist did any testing on the product to determine a

concentration in the air either in the room where the fogging

occurred or as to the ability of the “fog” to migrate from the sealed

room to the location where Mr. Garced claimed to have been

exposed (counsel admitted that the opinion given relied wholly on

the subjective “history”, not on any scientific assessment of

exposure. N.T. 9/29/21 p.m., p. 98, lines 15-18; see also, N.T.

9/29/21 p.m., p. 110, lines 12-20). Clearly, there was no

admissible scientific foundation or basis sufficient to present to the

jury to support the conclusion that an exposure to Halospray of a

kind causing permanent injury had occurred. The entirety of the

experts’ conclusions depended upon Mr. Garced’s self-serving

narrative. . . . Furthermore, there was no evidence as to the

concentration level of any material that composed the Halospray

or how many parts of any specific chemical were in the “fog” that

allegedly migrated to an entirely different room at UCP where Mr.

Garced claimed to have been exposed.

Id. at 6-8 (emphasis added).

In arriving at its determination that Appellants failed to present

competent expert testimony, the trial court also found this Court’s analysis in

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Sniavich v. Rohm & Haas, 83 A.3d 191 (Pa. Super. 2013), “instructive.” Id.

at 6. The court stated:

[Sniavich] involved a claimed injury arising from chemical

exposure. In Sniavich, Plaintiff sought to relate her deceased

husband’s brain cancer to chemical exposures at his work.

However, the expert concluded a proximal relationship solely on

the basis of the diagnosis along with work history and work

conditions analyzed through the expert’s experience in

occupational medicine. The court found that the opinion lacked

any scientific authority—facts, testimony, or empirical data. The

court outlined the foundation required as follows:

The exercise of scientific expertise requires inclusion

of scientific authority and application of the authority

to the specific facts at hand. Thus, the minimal

threshold that expert testimony must meet to qualify

as an expert opinion rather than merely an opinion

expressed by an expert, is this: the proffered expert

testimony must point to, rely on or cite some scientific

authority—whether facts, empirical studies, or the

expert’s own research—that the expert has applied to

the facts at hand and which supports the expert’s

ultimate conclusion. When an expert opinion fails to

include such authority, the trial court has no choice

but to conclude that the expert opinion reflects

nothing more than mere personal belief.

83 A.3d at 197. Instead, the Court concluded that Plaintiff’s

expert report could “be aptly described as ‘scrupulously avoid[ing]

the medical literature,’ and based ‘entirely on subjective

assessments of both cause and effect,’ as it does not include any

`research, conducted by [the plaintiff’s expert] or anyone else,

to support [his] assertion[ ] on causation.’” Id., citing Checchio

v. Frankford Hospital-Torresdale Division, 717 A2d 1058,

1062 (Pa. Super. 1998).

Id. at 6.

We concur with the trial court’s conclusion that Appellant’s failed to

establish a causal connection between Mr. Garced’s initial exposure to

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HaloSpray on May 26, 2016, and his subsequent development of RADS.9

Essentially, Appellants’ experts simply gave their own opinions that Mr. Garced

developed RADS due to an initial exposure of a known irritant, and that based

upon a reported history of no prior respiratory problems, that his current

diagnosis of RADS, as diagnosed through testing, was due to the HaloSpray

exposure. This was insufficient. Appellants failed to present credible expert

testimony comporting with Rule 702(c), in that the experts failed to rely upon

any generally accepted scientific methodology to arrive at their opinions and

failed to consider all relevant facts to support a causal link between Mr.

Garced’s initial exposure and subsequent development of RADS, his claimed

permanent injury.

It cannot be disputed that in a case where it is claimed that an initial

injury related to a chemical exposure of undefined specificity is connected with

future disease, competent expert testimony is required on the question of

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9 We do take an exception with the trial court’s rationale in concluding that

Appellants failed to establish causation between the exposure and his

development of RADS. We do not agree with the court’s assertion that

Halomist and Halospray have different concentrations of hydrogen peroxide.

The record reflects that Halomist and Halospray have the same ingredients

and concentrations. TC-1 at 435, 450 (listing ingredients of both Halomist

and Halospray). They are chemically the same but their use and use

protocols, including labelling and packaging, are different. N.T. 9/28/21 at

22, 44-45, 57-58. Notwithstanding this error, we agree with the trial court’s

conclusion that Appellants’ expert testimony was deficient because the

testimony did not rest upon generally accepted scientific methodology and

was simply an expression of the experts’ personal beliefs.

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causation. See Hamil v. Bashline, 392 A.2d 1280, 1285 (Pa. 1978) (“[I]t is

generally acknowledged that the complexities of the human body place

questions as to the cause of pain or injury beyond the knowledge of the

average layperson[;] therefore, the law requires that expert medical

testimony be employed”). For expert testimony to be admitted at trial, the

testimony must comport with the requirements of Pa.R.E. 702 that provides:

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;

(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.

It must be emphasized that the proponent of expert scientific evidence bears

the burden of establishing all the elements for its admission under Rule 702,

which includes (when applicable) a showing that the Frye test is satisfied.

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

The Frye test was adopted in Pennsylvania in Commonwealth v.

Topa, 369 A.2d 1277 (Pa. 1977), and "is part of Rule 702.” Grady, 839 A.2d

at 1042. The Frye test provides that novel scientific evidence is admissible

"if the methodology that underlies the evidence has general acceptance in the

relevant scientific community." Id. Our Supreme Court has made it clear

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however, that Frye is not implicated every time science comes into the

courtroom; rather, it applies only to proffered expert testimony involving

novel science. Commonwealth of Pennsylvania v. Dengler, 890 A. 2d

372, 382 (Pa. 2005).10 Therefore, while the methodology underlying expert

testimony must generally be accepted in the relevant field, it is only when

testimony is based upon novel science that the Frye test also must be met.

Moreover, the Frye test applies to an expert’s methods, not to conclusions.

Grady, 839 A.2d at 1047. Presently, we find that there is no need to

determine whether any methodologies utilized by Appellants’ experts passed

the Frye test to admit novel science, since no methodologies at all were

identified to support causation in their testimonies. To the extent either of

Appellants’ experts attempted to establish causation based upon a differential

diagnosis11 as a methodology, they failed, as they did not account for

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10 “What constitutes novel scientific evidence has historically been decided on

a case-by-case basis, and there is some fluidity in the analysis; indeed,

science deemed novel at the outset may lose its novelty and become generally

accepted in the scientific community at a later date, or the strength of the

proponent's proffer may affect the Frye determination.” Dengler, 890 A.2d

at 382.

11 A differential diagnosis is a generally accepted methodology.

Pledger by

Pledger v. Janssen Pharmaceuticals, 198 A.3d 1126, 1141 (Pa. Super.

2018); Stange v. Janssen Pharmaceuticals, Inc., 179 A.3d 45, 55 (Pa.

Super. 2018). In performing a differential diagnosis,

a physician begins by ‘ruling in’ all scientifically plausible causes

of the plaintiff's injury. The physician then ‘rules out' the least

plausible causes of injury until the most likely cause remains. The

(Footnote Continued Next Page)

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preexisting conditions and/or other possible causes of Mr. Garced’s current

problems. An expert’s personal belief, standing alone, is not sufficient proof

that his methodology is generally accepted. As we stated in Snizavich:

The exercise of scientific expertise requires inclusion of scientific

authority and application of the authority to the specific facts at

hand. Thus, the minimal threshold that expert testimony must

meet to qualify as an expert opinion rather than merely an opinion

expressed by an expert, is this: the proffered expert testimony

must point to, rely on or cite some scientific authority—

whether facts, empirical studies, or the expert’s own research—

that the expert has applied to the facts at hand and which supports

the expert’s ultimate conclusion. When an expert opinion fails

to include such authority, the trial court has no choice but

to conclude that the expert opinion reflects nothing more

than mere personal belief[.]

Id. at 197 (citation omitted) (emphasis added).

Appellants relate in their appellate brief that prior to the presentation of

other expert testimony, Mr. Garced testified that while working as a cleaning

contractor at UCP on May 26, 2016, he was exposed to a chemical fog

emanating from an adjacent room in which HaloSpray was being used due to

a failure to seal the adjacent room from the one in which he was cleaning.

While mopping the floor he noticed his face burning, looked up and saw a fog,

and ran out of the room. He estimated his time in the room was approximately

____________________________________________

final result of a differential diagnosis is the expert’s conclusion that

a defendant's product caused (or did not cause) the plaintiff’s

injury.

Glastetter v. Novartis Pharmaceuticals Corp., 252 F.3d 986, 989 (8th Cir.

2001).

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twenty minutes. He went to a hospital emergency room where he was given

oxygen. He had coughing, burning, chest tightness, and pain in his chest that

he rated five out of ten. He testified that he never had any respiratory

problems before. Following the incident, he stated that he had shortness of

breath, coughing, pain in his chest, left sided sinus pain and swelling. He saw

several pulmonologists as well as his family doctor who all diagnosed irritant

induced asthma or RADS, together with chronic left sided sinusitis. He had

sinus surgery. Despite multiple medications and injections, he testified that

he still has difficulty breathing, coughing, and shortness of breath and that his

pulmonary function tests have declined over time. In 2019 he stopped

working.

Appellees point out that uncontradicted facts of record also established

that while at the emergency room, Mr. Garced’s vital signs were normal,

including his oxygenation, and he had a normal chest x-ray. Mr. Garced did

not suffer from any ongoing injury for several months after this exposure, and

his lung function showed no continuing injury. Two weeks after the incident,

Mr. Garced saw a physician at Penn Medicine, who concluded he had no

continuing symptoms, that is, no current signs or symptoms of respiratory

disease. In August 2016, Mr. Garced’s pulmonary function tests were normal.

He also had a CAT Scan at that time that showed no lung abnormalities.

Nonetheless, Mr. Garced complained of shortness of breath, coughing, and

sinus and chest pain several months later and saw a physician. The physician

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ordered additional tests, one of which suggested that—several months after

May 26th—Mr. Garced had developed signs of lung injury. Ultimately, Mr.

Garced was diagnosed with RADS.

Against this competing evidence, Appellants attempted to establish a

causal link between Mr. Garced’s May 26, 2016 exposure to HaloSpray and his

claimed permanent injury through the expert testimony of two physicians:

Drs. Lazaar and Savul.

Dr. Aili Linay Lazaar, Garced’s treating physician, board certified in

internal medicine, pulmonary medicine, and critical care, N.T., 9/29/21, at 27,

testified as a treating physician and expert on Mr. Garced’s behalf. She first

became involved in his care in June 2017, id. at 33, more than a year after

Mr. Garced’s exposure to HaloSpray in May 2016. She testified that when Mr.

Garced was seen after the exposure in the Einstein emergency room, the only

abnormality observed was some redness in his mouth, id. at 36, and his

pulmonary function test or spirometry was normal. Id. at 37. A chest x-ray

done at the hospital and a later CAT scan likewise showed no abnormality.

Id. at 38. A working diagnosis at that time (in June 2017), based upon

Garced’s report of persistent symptoms, was RADS, which constricts the

bronchial tubes like asthma. Id. at 39. A methacholine challenge test12

____________________________________________

12 A methacholine challenge test is a breathing test to see how lungs are

working. It checks for asthma in patients who have a cough, trouble

breathing, or other breathing problems. Methacholine is a medication that

(Footnote Continued Next Page)

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performed by another physician was positive, leading Dr. Lazaar to agree with

a diagnosis of RADS. Id. at 43. At the time of trial, Mr. Garced was a patient

of Dr. Lazaar for four years and saw her three to four times a year. Id. at 45.

Because Mr. Garced had no previous history of respiratory disorder, Dr. Lazaar

opined that Mr. Garced developed his problems from his exposure at the

workplace, and that the exposure to the mist and fog in the room was the

cause of the irritants to his airway and his subsequent problems. Id. at 46.

Based upon (1) statements in the material sheets for the mist or cleaning

solution that the product contained hydrogen peroxide (its main component),

as well as silver nitride with phosphoric acid, and (2) Mr. Garced’s reporting

that he was exposed to a high concentration of the mist in the room, it was

her opinion that Garced’s exposure was consistent with RADS. Id. at 46-50.

Dr. Lazaar also opined that the persistence of Mr. Garced’s symptoms after a

number of years since his initial exposure and his worsening pulmonary

function tests showed that he developed more persistent symptoms of

asthma. Id. at 65-66. She testified that beginning in February 2018, Mr.

____________________________________________

makes airways narrow if the patient has asthma. Asthma is a lung condition

that can make it hard to breathe. During the test, the patient breathes in

small amounts of methacholine, and a pulmonary technologist measures lung

function. Normal lung function will be measured first (also known as baseline

breathing). Then the patient starts the test, and the methacholine is added.

If lung function drops by 20% or more from the patient’s baseline, he may

have asthma. See https://www.mskcc.org/cancer-care/patient-

education/methacholine-challenge-test.

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Garced underwent additional tests to see if other therapies might help him.

Id. at 67. Two of the values looked at for persistent asthma are the levels of

eosinophils and another blood protein called IgE. Id. at 67. While eosinophil

levels were normal, IgE levels were elevated. Id. at 68. Xolair, an injection

therapy, was prescribed and given to Mr. Garced every two weeks. Id.

Despite an elevated IgE level, Dr. Lazaar testified that her opinion that Mr.

Garced suffers from RADS as a result of exposure to toxic fog remained

unchanged. Id. at 69. She did admit, however, that Mr. Garced had a history

of chronic hives and elevated eosinophils prior to his exposure, but that did

not necessarily mean he also had asthma. Id. at 69-70.

On cross-examination, Dr. Lazaar acknowledged that she issued three

reports: one in August 2019, another in August 2020, and the third in October

2020. Id. at 85. The first, based upon the report of another physician, Dr.

Swartz, indicated that Mr. Garced fit the definition of RADS. In the second,

Dr. Lazaar reported a diagnosis of asthma, and in the third, a diagnosis of

allergic inflammation and asthma. Id. at 86-87. She then offered her opinion

that Mr. Garced has a combination of an allergic tendency as well as

pulmonary symptoms instigated by the exposure. Id. at 88. Allergic asthma

can be progressive over time, id. at 91, and can present as new symptoms in

middle age. Id. at 92. Mr. Garced’s history over a year before the incident

also indicated allergies to fish and iodine, causing anaphylaxis. Id. at 98. Dr.

Lazaar admitted that as of June 2015, Mr. Garced had a history of hives and

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dry tongue and throat. Id. at 100. She also related that Mr. Garced’s airway

showed some “remodeling” and that it had undergone some chronic changes.

Id. at 103. She admitted that he had a diagnosis of Barrett’s esophagus,

which she qualified may in severe cases cause inflammation of the airway, id.

at 104, and that many airway disorders can cause inflammation of the airway.

Id. at 105-106. She admitted that although Mr. Garced’s lung function

declined as a result of airway remodeling due to ongoing inflammation, she

had not done any studies to determine the type of inflammation that he

exhibited. Id. at 106. While admitting that the literature indicates that most

people with RADS due to an acute exposure resolve quickly, and that Mr.

Garced had normal findings at the emergency room after the incident, her

opinion remained unchanged because sometimes it takes times for a response

to develop. Id. at 107-108. She had no personal knowledge of the quantity

of dose of the exposure claimed by Mr. Garced. N.T., 9/29/21, V.II, at 11.

Dr. Lazaar simply noted that some of the ingredients of HaloSpray, in an

unspecified quantity, were “known to be a respiratory irritant.” N.T., 9/29/21,

at 49. Dr. Lazaar further claimed that the “fog or mist” that Mr. Garced saw

“suggest[ed] a high concentration or high amount of that mist in the room.”

Id. Hydrogen peroxide is a component of Halomist and is known to be a

respiratory irritant. Id. She noted Mr. Garced’s symptoms have become more

persistent over the years since the incident and that he had no report of

respiratory symptoms prior to the RADS diagnosis. Id. at 33, 65-66. Her

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opinion was that Garced’s exposure to the mist triggered an ongoing response

and chronic respiratory illness, and the fact that he was normal after the

emergency room visit did not affect her diagnosis because it takes time for

the ongoing response to develop. Id. at 106-07.

Dr. Savul, a board-certified occupational medicine expert, testified as

Appellants’ second and final expert witness respecting Mr. Garced’s injury. He

was familiar with RADS having seen it while practicing family medicine and

from observing chemical exposures. N.T., 9/29/21, V. II, at 45. While stating

that he was prepared to discuss Mr. Garced’s injuries, problems and

disabilities, and long-term effects due Mr. Garced’s exposure on May 26, 2016,

he never tested HaloSpray and its effects. Id. at 47-49. Dr. Savul reviewed

Mr. Garced’s records from 2016 through 2019, as well as deposition

transcripts and material data sheets for HaloSpray. Id. at 55-56. He first

saw Mr. Garced in September 2019 as part of an independent medical

evaluation, at which time he was having episodes of asthma attacks. Id. at

58. Because he believed Mr. Garced never had any issues or history of asthma

prior to May 2016, he diagnosed him as having RADS. Id. at 88. His

examination of Mr. Garced revealed tenderness when he pressed on his

sinuses, and Mr. Garced complained of coughing, wheezing, shortness of

breath, and chest tightness. Id. at 90-91. Mr. Garced also had an anostomy

performed on his sinuses to clear blockages and to help with thickening of the

wall. Id. at 86-93. Dr. Savul offered his opinion that his “number one relevant

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diagnosis” was that Mr. Garced suffered from RADS, or an irritant induced

occupational asthma as a result of the May 26, 2016 exposure, since Mr.

Garced never had asthma prior to that time. Id. at 93-94. His opinion

remained unchanged regardless of whether Mr. Garced was exposed for 3 or

4 minutes or 10 to 20 minutes because he had symptoms during that time.

Id. at 101. He considered Mr. Garced to have had a significant exposure. Id.

at 112. He admitted, however, that there is a permissible dose of HaloSpray,

measured in parts per million, that is considered safe, but he never assessed

the actual concentration of HaloSpray in the air on the date of the incident.

Id. at 48-49, 115.

On cross-examination, Dr. Savul admitted that as of the time he

produced his expert report, he did not have any records regarding Mr. Garced

prior to May 26, 2016, N.T., 9/30/21, at 62, but subsequently did review

records from 2011 and a 2015 visit. Id. at 62-63. He then recalled that the

2015 record did indicate some left sided face and nasal burning. Id. He saw

Mr. Garced three years after the incident for an independent medical exam

and not as a treating physician. Id. at 68. He reviewed Dr. Lazaar’s report

and agreed with his [sic] diagnosis of irritant-induced occupational asthma, or

RADS. Id. at 69. He was unaware that in October 2020, that Dr. Lazaar

changed her diagnosis to allergic inflammation and allergic asthma, id. at 71,

but indicated that would not necessarily change his diagnosis; he would have

to reassess the records. Id. at 71. He admitted reviewing pulmonary function

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tests from 2016 through 2019 that showed a decline in function, but also

admitted that in August 2016, Mr. Garced’s function was normal and his

decline in function did not begin until August 2017. Id. at 73-76.

Deterioration of lung function over time, Dr. Savul said, is typical for “any

asthma”, including allergic asthma. Id. at 81. He admitted that records from

2014 indicated that Mr. Garced had a sinus infection, id. at 84-85, which he

later admitted was diagnosed as chronic sinusitis. Id. at 87. He did not know

if any treatment was effective. Id. at 88. As well, he admitted not seeing

records from 2014 that indicated that Mr. Garced (age 56 at the time) was

complaining of pain, swelling, and burning in his throat, bumps on his tongue

and itching on lips, and that his nose felt like it was on fire. Id. at 86. He

also acknowledged that records from Penn Medicine Allergy from 2015

indicated oral and nose burning, a rash, and chronic rhinitis. Id. at 89-90.

Other records also revealed he had sinus surgery in the 1980’s. Id. at 93.

Still other records revealed extensive use of nasal cocaine that Dr. Savul

admitted could affect sinuses and that he did not have these records when

completing his evaluation. Id. at 100-104. Regardless, he stated those

records would not affect his opinions. Id. at 112-113.

Our review of the record in this case establishes that Appellants’ experts

presented no methodology—or in the words of Sniavich, no “facts,” no

“empirical studies,” and none of their “own research,” 83 A.3d at 197—in

support of their ultimate conclusions that HaloSpray caused Mr. Garced’s long-

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term injuries, i.e., RADS. Dr. Lazaar testified that hydrogen peroxide “is

known to be a respiratory irritant” and that the “fog or mist” that Mr. Garced

saw “suggest[ed] a high concentration or high amount of that mist in the

room.” N.T., 9/29/21, at 49. Similarly, Dr. Savul testified that Mr. Garced’s

chronic condition was caused by “significant exposure” to the mist or fog in

the room at UCP. N.T., 9/30/21, at 112. Conspicuously absent from any of

their expert testimony, however, is any attempt to cite any credible or

accepted scientific studies that link a single exposure of unknown quantity or

intensity of the irritant identified in HaloSpray that caused an immediate injury

that subsequently resolved, to the delayed response they opined as RADS due

to the initial exposure. Neither expert presented any facts, studies or research

that established (or even estimated) the concentration of any respiratory

irritant to which Mr. Garced was exposed, or to establish a nexus between any

irritant and Mr. Garced’s long-term conditions. To the extent any literature

was referenced, that literature indicated that most people with RADS due to

an acute exposure resolve quickly. Consistent with this was testimony and

other evidence that Mr. Garced had normal findings at the emergency room

after the incident and thereafter. The fact that Mr. Garced’s methacholine

challenge tests produced results consistent with asthma did nothing more than

establish that fact but do nothing in and of themselves to establish a causal

link between the HaloSpray exposure and delayed onset of RADS. It appears

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both experts’ opinions reflect nothing more than their own personal beliefs, or

at best, a working diagnosis.

Nor did any of Appellants’ experts attempt to conduct a credible

differential diagnosis to eliminate other possible causes of Mr. Garced’s

delayed onset of RADS. A differential diagnosis would have been essential in

light of Mr. Garced’s medical history, the normal exams conducted

contemporaneously with his exposure and thereafter, and the fact that his

lung function did not start to decline until more than a year after the incident.

Neither expert considered nor attempted to eliminate as possible causes of

RADS any of Mr. Garced’s medical history prior to May 26, 2016. That history

included a) pain, swelling, and burning in his throat, bumps on his tongue,

itching on lips, a nose that felt like it was on fire, b) records from Penn

Medicine Allergy from 2015 that indicated oral and nose burning, a rash, and

chronic rhinitis, c) records that revealed Garced had sinus surgery in the

1980’s, d) prior to his exposure in 2016, he had elevated eosinophils indicative

of asthma, e) for over a year before the incident, he had allergies to fish and

iodine, causing anaphylaxis, f) he had a history of hives and dry tongue and

throat, and g) a diagnosis of Barett’s esophagus. Dr. Lazaar’s testimony that

she had not done any studies to determine the type of inflammation exhibited

by Garced, that many airway disorders can cause inflammation of the airway,

and that allergic asthma can be progressive over time and can present as new

symptoms in middle age, made imperative a credible differential diagnosis to

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establish the casual link between the HaloSpray exposure and a subsequent

diagnosis of RADS. What is apparent is that neither of Appellants’ experts

were able to provide a differential diagnosis that Mr. Garced developed RADS

as a result of the singular exposure to HaloSpray in an unspecified quantity

and intensity on May 26, 2016. Cf. Anderson v. Hess Corp., 592 F. Supp.

2d 1174 (D.N.D. 2009) (expert Neumann properly conducted differential

diagnosis to establish the causal connection between plaintiff’s exposure to

hydrogen sulfide and sulfur dioxide, and RADS where expert ruled out other

possible causes of plaintiff’s symptoms).

Appellants clearly failed to satisfy Rule 702(c)’s standard of employing

generally accepted methodology in coming to their opinions to establish a

causal connection between the May 2016 exposure and Garced’s claimed

permanent lung injury. Accordingly, we hold that the trial court properly

entered JNOV against Appellants on their claims of future medical expenses

and future noneconomic loss.

III. PAST ECONOMIC LOSSES

Appellants assert that the trial court erred by awarding a new trial

limited to Mr. Garced’s past noneconomic loss. We agree with the trial court’s

decision. The jury awarded $500,000.00 for “past, present, and future pain

and suffering, embarrassment and humiliation and loss of enjoyment of life”

without distinguishing between the amounts awarded for past, present, and

future damages. As discussed above, the trial court properly entered JNOV

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as to future medical expenses and future noneconomic loss, leaving past

noneconomic loss as the only recoverable item of damages. Since the verdict

sheet failed to specify this amount, a new trial is necessary to determine what,

if any, damages are recoverable for past noneconomic loss.

IV. GRANT OF A NEW TRIAL – THE INTERPRETER PROBLEM

Appellants argue the trial court abused its discretion in granting a new

trial based upon their conduct with respect to the interpreter. The trial court

ordered that a new trial was necessary due to Appellants’ misconduct vis-à-

vis Mr. Garced’s interpreter. We find no abuse of discretion.

Our Supreme Court has held:

A new trial should be granted if the judge finds that an injustice

has been done. Among the recognized reasons for granting a new

trial is misconduct by counsel. The power to grant a new trial is

inherent in the court, and the decision to grant or deny a motion

for new trial rests within its sound discretion. The court’s decision

will not be disturbed on appellate review absent an abuse of that

discretion.

Colosimo v. Philadelphia Elec. Co., 518 A.2d 1206, 1210 (Pa. 1986)

(citations omitted).

During trial, Mr. Garced, whose primary language is Spanish, required

an interpreter to relate his testimony. At the end of the first day of trial, Mr.

Garced was in the middle of his testimony and still under oath. Nonetheless,

he, his wife, the interpreter, and Plaintiff’s counsel’s paralegal met and

discussed his testimony from earlier that day. N.T., 10/1/21, at 12-13 (Mrs.

Garced), N.T., 10/5/21, at 56-57 (interpreter). Mrs. Garced complained that

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the interpreter did not include all businesses that Mr. Garced stated he was

working with when the incident at UCP happened. N.T., 10/1/21, at 13 (Mrs.

Garced), N.T., 10/5/21, at 56-57 (interpreter). She also told Mr. Garced that

he “didn’t say the right things.” N.T., 10/5/21, at 58 (interpreter). Halosil’s

counsel observed this conversation and reported what she observed to the

court on the morning of the next day of trial. Appellants’ counsel agreed that

the conversation was not appropriate and advised the court that he dismissed

the interpreter. The trial court ordered the parties to depose the interpreter.

During the interpreter’s deposition, Appellees learned for the first time

that this same interpreter had met with Appellants and their counsel at

counsel’s office for several hours about one week before trial. This fact was

not disclosed to the court or to opposing counsel prior to the deposition. The

interpreter testified that he was concerned that serving as the court

interpreter for Mr. Garced’s trial might be a conflict of interest. N.T., 10/5/21,

at 69, 71. When the interpreter’s boss requested that the interpreter serve

as the court interpreter during trial, the interpreter told his boss of his

concerns regarding a conflict of interest. Id. at 71. The interpreter’s boss

told the interpreter that “it had been okayed by a judge.” Id. at 72. However,

the court did not approve of the conflict and was never apprised of it. The

trial court observed that these issues would have remained concealed from

the court if Appellees’ defense counsel not observed Appellants talking with

the interpreter. Trial Court Memorandum, 10/5/21, at 5.

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Following the interpreter’s deposition, the court reviewed the transcript

and held a hearing to further investigate this matter. The court later noted

that “[a]t no time did [Appellants’] counsel provide any credible explanation

for his nondisclosure or lack of candor.” Id. at 6.

Moreover, Appellants’ counsel unilaterally discharged the interpreter,

N.T., 10/2/21, at 6 (Appellants’ counsel’s representation that he had

“procured a different interpreter”), which made it difficult for the court to

examine the interpreter’s conduct further.

Mrs. Garced was questioned about her communications with the

interpreter. She testified that the pretrial meeting took place at her request

because she wanted to meet the interpreter before trial to make sure “the

testimony here in court would go smoothly.” N.T., 9/30/21, at 106. In

particular, she wanted to see whether the interpreter could understand Mr.

Garced’s dialect. Id. She insisted she could not remember anything else she

had told the interpreter. N.T., 10/1/21, at 12. She also said she could not

remember whether she told her husband he had missed parts of his testimony.

Id. at 13. Nonetheless, she admitted she might have told Mr. Garced his

testimony was not correct. Id. at 14. She also made repeated outbursts to

the jury during the trial, accusing Appellees of lying, among other things.

N.T., 9/30/21, at 73.

Appellees moved for a mistrial and directed verdict based on Appellants’

attempts to influence the interpreter. The trial judge issued a lengthy

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memorandum denying a mistrial but granting a curative instruction to apprise

the jury of Appellants’ misconduct. The court determined that Appellants and

their counsel participated in an “ex parte effort to hector, intimidate and

interfere with [the] Interpreter and translator witness and Officer of the Court

and further demonstrated an intentional effort to coach, influence and recast

direct present testimony of Mr. Garced and his anticipated cross examination

while he was still testifying on direct.” Trial Court Memorandum, 10/5/21, at

8. At the post-trial motion stage, however, the court, upon reflection,

determined that the curative instruction did not adequately cure the taint of

Appellants’ misbehavior. The court listed multiple instances of misconduct by

Appellants and their counsel and determined that the proper remedy was to

grant a new trial and to impose monetary sanctions of $5,000.00 against

Appellants’ counsel, and for the Garceds to pay counsel fees incurred by the

Appellees to address the interpreter issue.

We find no abuse of discretion by the trial court ordering a new trial

based upon Appellants’ use of an ethically compromised interpreter. The

Pennsylvania Rules of Professional Conduct for Judiciary Interpreters prescribe

that interpreters “shall be impartial and unbiased and shall refrain from

conduct that may give an appearance of bias or favoritism.” Rule 3,

Pennsylvania Rule of Professional Conduct for Judicial Interpreters, 204 Pa.

Code, Schedule F. The Comment to Rule 3 further explains that “[d]uring the

course of the proceedings, interpreters should not converse with parties,

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witnesses, jurors, attorneys, or friends or relatives of any party, except in the

discharge of their official functions.” Id. Interpreters must also disclose,

before they testify, “any prior involvement, whether personal or professional,

that could reasonably be construed as a conflict of interest,” and whether

“they have been previously retained for private employment by one of the

parties in the case.” Id. The interpreter herein failed these requirements.

His pretrial meeting with Appellants to help them prepare for trial ended his

impartiality and, along with his conversation with them during the trial,

created an appearance of bias and favoritism. The interpreter’s violation of

the rules, albeit at the behest of Appellants and counsel, requires a new trial,

as the trial court held.

In addition, Appellants’ and their counsel’s misconduct relating to the

interpreter made a new trial an absolute necessity. As the trial court pointed

out, (1) Appellants’ counsel made no credible effort to retain a qualified

interpreter from the court’s pool and failed to retain one who could attend the

entire trial, (2) before defense counsel saw Appellants and their counsel

conversing with the interpreter, Appellants’ counsel failed to disclose to

defense counsel or the court that he employed the interpreter to assist

Appellants in trial preparation, (3) Appellants’ counsel then discharged the

interpreter preemptively to prevent the court from examining him, resulting

in additional trial delays, and (4) the interpreter’s employer was advised—

likely by Appellants’ counsel—that his pretrial meeting with Appellants did not

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create a conflict. While Appellants’ counsel suggested it was mere coincidence

that that he employed the same interpreter for trial that he and Appellants

met with one week before, it does not appear that this was any accident. The

clear purpose of the pretrial meeting was to coach the interpreter as to Mr.

Garced’s accident to prepare the interpreter for trial. Based on these

observations, we agree with the trial court that Appellants’ and their counsel’s

actions “were purposely, calculating and premeditated, part of an intentional

plan to disrupt control, limit, and engineer [Mr. Garced’s] testimony.” Id.

In addition, we find no abuse of discretion by the trial court in concluding

that its curative instruction did not obviate the need for a new trial. The

instruction stated that the meetings between Appellants, their counsel, and

the interpreter before and during trial were wrong. N.T., 10/4/21, at 10-14.

It also advised that the jury could disregard some or all of Appellants’

testimony based on their conduct. Id. at 15. The instruction also stated that

the jury could disregard Appellants’ expert testimony to the extent the experts

relied on Appellants’ testimony. Id. While this instruction addressed some of

the misconduct, it could not adequately remedy the damage done. The

instruction did not advise the jury about numerous aspects of Appellants’ and

their counsel’s misconduct. As the trial court noted, their conduct was an

intentional effort to manipulate and control the evidence at trial.

Memorandum Opinion, 12/7/21, at 16, 22. Appellants interfered with the

interpreter’s impartial translation of testimony. As the trial court stated, “the

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misconduct before the court takes the analysis beyond whether the instruction

sufficiently informed the jury of the reasons for the discharge of the

interpreter, to the question of whether a mere instruction could remedy a

pattern of deceit and misconduct revealed during the trial.” Id. at 17. No

relief is due Appellants on this issue.

V. COUNSEL FEES UNDER §2503(7)

Relatedly, we also conclude that the court acted well within its discretion

under 42 Pa.C.S.A. § 2503(7),13 by imposing sanctions upon Appellants’

counsel of $5,000.00 and directing Mr. and Mrs. Garced to pay counsel fees

to Appellees relating to litigation concerning the interpreter issue.14 Appellate

____________________________________________

13 Section 2503(7) provides:

The following participants shall be entitled to a reasonable

counsel fee as part of the taxable costs of the matter:

***

(7) Any participant who is awarded counsel fees as a sanction

against another participant for dilatory, obdurate or vexatious

conduct during the pendency of a matter.

“Participants” are defined to include litigants, witnesses, and their counsel.

42 Pa.C.S.A. § 102.

14 We recite in full the many bases upon which the trial court imposed

sanctions to inform the reader of the egregious conduct warranting the

imposition of sanctions. To wit, the trial court found:

1) [Appellants] played fast and loose with this Court’s discovery

Orders (see Order of Judge Robins-New of September 10, 2019)

as to the Garceds’ income and failed to provide to provide [sic]

complete tax records;[1]

(Footnote Continued Next Page)

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____________________________________________

1 [Appellants] might argue that this misconduct had no bearing on the

outcome of the trial since the jury did not award damages for lost

income. The court disagrees. It was clear from the testimony at trial,

based upon [Mr.] and Mrs. Garced’s withholding of their complete tax

history and providing of only a partial Schedule C as to the cleaning

business, that [Mr.] and Mrs. Garced, at a minimum, defrauded Federal,

State and local taxing authorities and their employees by paying their

employees undisclosed sums “under the table” and purported to excuse

such behavior by asserting that Mr. Garced claimed “ all of the income

as his own” and that he, himself, had (allegedly) paid the taxes on his

employees’ compensation (by calling it his “income”)(N.T. 10/4/21 a.m.,

p. 49, lines 11-18; p. 50, lines 12-24), an assertion that could not be

verified due to the failure to produce complete records and, more

troublingly, represented an effort by [Mr. Garced] to offer the very

limited evidence in his Schedule C Federal tax returns to support his

damages claims, evidence he knew to be false based upon the “under

the table” admission during his testimony. In doing so, Mr. Garced

clearly knowingly proffered fraudulent evidence to the Court and

defrauded both his employees and taxing authorities since he did not

pay withholding, federal, state or local income taxes (such as FWT, FICA,

FICA Med, Pennsylvania State Tax, Philadelphia Wage Tax and

Affordable Care Act Compliance and 1099 disclosure) attributed to their

earnings, or address his obligations as employer to protect them by

paying for workers’ compensation or medical insurance (or the penalty

for not providing medical insurance). Regardless of the specious claim

that [Mr.] Garced “paid the taxes” as his own, [his] failure to provide

complete records prevented [Appellees] from challenging him on cross-

examination or using the records to show that Mr. Garced was a fraud

and liar, factors that would have undermined his credibility entirely to

the Jury.

2) [Appellants] failed to comply with the Court’s Pre-trial Order

(under risk of Sanction) requiring [them] to retain a qualified

interpreter who would be available for the entirety of the trial

(necessitating repeated delays in the trial and requiring the use of

three different interpreters);

3) [Appellants’] counsel never made any credible efforts to timely

secure an interpreter with the First District Court Reporter Digital

and Interpreter Administration (as required for the entirety of the

trial);

4) Thereafter [Appellants’] counsel misled defense counsel (as to

an agreed upon joint engagement of the Court Interpreter) as to

(Footnote Continued Next Page)

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the only available option being a private interpreter in order to

secure defense counsel’s acquiescence in [Appellants’] privately

screened and selected interpreter;

5) When Mr. Guerra appeared at the trial to serve as the Court

Interpreter, neither he nor [Appellants’] counsel disclosed to

defense counsel that he had previously been employed by

[Appellants’] counsel to assist in the pretrial preparation of

[Appellants’] testimony for trial in order to determine whether

[Appellees] still consented to the use of this private interpreter;

6) When [Appellants’] counsel became aware that defense counsel

had overheard the improper ex parte conversation between

[Appellants], the interpreter and counsel’s paralegal, he

unilaterally discharged the interpreter on the day of trial in order

to shield him from the court’s examination and to cover up the

questionable circumstances of his hiring, further interrupting and

delaying the progress of trial;

7) Counsel’s unilateral discharge of the Court Interpreter without

securing a replacement ensured that the trial would suffer some

sort of significant interruption;

8) [Appellants’] counsel unilaterally dismissing his client from

Court while still under cross-examination presented the court with

the dilemma of adjourning the trial or disrupting the ongoing

testimony of Mr. Garced (an option that allowed him the benefit

of previewing and preparing to gain an unfair advantage in the

continuation of his cross examination and by watching the entirety

of [Appellants’] case before having to resume his testimony and

further prepare him for anticipated cross examination);

9) When asked to address the circumstances of the hiring of the

interpreter after defense counsel raised concerns over the

improper conversation of the Court Interpreter with counsel’s

paralegal, Mrs. Garced and [Mr. Garced], [Appellants’] counsel

asserted incredibly to the court that he had been unable to secure

a court interpreter (the later-revealed facts surrounding the hiring

(Footnote Continued Next Page)

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____________________________________________

of Mr. Guerra confirm that [Appellants] never intended to hire a

Court Interpreter but only wanted someone who had been

screened and approved by [counsel], Mr, Garced and Mrs. Garced,

a fact that would have remained unknown to the court and

defense counsel but for the fortuity of defense counsel discovering

the ex parte conversation);

10) [Appellants’] counsel never disclosed to the court prior to

calling Mr. Garced to the stand that the Court Interpreter had been

secretly employed by him in connection with preparing Mr. Garced

to testify at the trial, and thus had been a part of counsel’s “trial

team;”

11) Someone, likely associated with [Appellants’] trial team,

falsely misrepresented to the Interpreter or his employer that any

conflict arising out of Mr. Guerra’s previous employment for the

trial prep had been brought to the court’s attention and this court

had waived the interpreter’s conflict of interest, a representation

that discouraged the Interpreter from making a disclosure of his

own;

12) When questioned by the court regarding the circumstances of

hiring the interpreter, [Appellants’] counsel insincerely deflected

any potential for an ethical lapse or conflict of interest, proclaiming

that the interpreter had accurately translated the testimony,

calling a conflict merely “arguable”;

13) [Appellants’] counsel attempted to suggest that it was merely

fortuitous that the same individual hired to assist in the trial prep

was sent by his agency to handle the trial, a suggestion wholly

undermined when Mrs. Garced testified that she had specifically

requested the opportunity to screen the interpreter in advance of

the trial to see if the Court Interpreter “was on the same page” as

[Appellants];

14) [Appellants’] counsel declined to address why he failed to

disclose the prior employment of Mr. Guerra before commencing

Mr. Garced’s testimony, a failure which, at this stage, can only be

(Footnote Continued Next Page)

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____________________________________________

attributed to a purposeful and conspiratorial plan between counsel

and client to intimidate and influence the efforts of the interpreter

at the time of trial;

15) This intention to intimidate and influence is confirmed in the

testimony of Mr. Guerra regarding the hallway conversation in

which Mrs. Garced was hectoring him regarding the quality of his

translation and he admittedly engaged with Mr. Garced in

discussing the substance of his testimony (and but for defense

counsel overhearing these parties, the fraud on the court and

defendants would have continued);

16) When questioned regarding the contents of the hallway

conversation both Mr. and Mrs. Garced suffered mendacious

memory lapses (N.T. 10/1/21 a.m., pp. 13-15; 10/4/21 p.m., pp.

25-26);

17) Mrs. Garced’s admissions regarding her intentions for an

advance preview with Mr. Guerra conflicted with counsel’s evasive

responses to the court’s direct questions about Mr. Guerra’s

appearance in court and implicate counsel in an apparent

intentional effort to mislead the court; and

18) Mrs. Garced refused to follow the court’s rulings or counsel’s

instructions and engaged in frequent outbursts in front of the jury

and argued directly with the court; and

19) Counsel improperly questioned his client in an effort to

undermine and contradict the Ruling and Order of the Court to

argue or by his questions suggest in front of the jury that the

hallway conversation (contrary to the Courts findings and Order)

and other improper contacts had not affected the truthfulness of

his testimony and had not caused him to change his testimony.

(N.T. 10/5/21 a.m., p. 31, lines 11-17).

Memorandum Opinion, 12/7/21, at 18-22.

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review of a trial court's order awarding attorney’s fees to a litigant is limited

solely to determining whether the trial court palpably abused its discretion

in making a fee award. Thunberg v. Strause, 682 A.2d 295, 299 (Pa. 1996).

We agree with the trial court’s rationale and find no abuse of discretion in

imposing sanctions as articulated in its opinion which we reproduce, in part,

as follows:

The consideration of these matters in post-trial proceedings allows

the court to address a matter the court reserved for further action

in the earlier ruling addressing the conduct of [Mr. Garced], Mrs.

Garced and [their] counsel….[When addressing [Appellees’]

Motions for Directed Verdict, Motion to Strike or in the Alternative

for Mistrial] … in the heat of the trial and faced with the continuing

and increasingly intentional obstruction, dilatory and prejudicial

conduct by counsel, [Mr.] and Mrs. Garced, a ruthless ongoing

waste of the valuable time of the jury, the Court and Defense, and

without time for significant reflection or the benefit of determining

the full impact of [their] misconduct on the jury, the court elected

to continue with the trial in the hopes that a curative instruction

that informed the jury of the out-of-court misconduct and the (as

then charged, hypothetical) impact on the witnesses’ credibility

would fully address the concerns raised in the motions. However,

the court also anticipated that a mere instruction might not be

sufficient to resolve the affront to the court, the jury and the

system of justice, prevent additional contumacious conduct by

[Appellants] and counsel, or mitigate the prejudice to [Appellees].

Memorandum Opinion, 12/7/21, at 16.

***

The court now, upon reflection, in recognition of the gravity of the

subsequent misconduct during the remainder of the Trial, and in

consideration of whether the conduct warrants further sanctions,

examines the entire record of the trial, to evaluate the evidence

and counsel[’s] and [Appellants’] misconduct before the court,

and to determine whether the curative instruction adequately

cleansed the record of the misconduct or successfully prohibited

the admonished counsel as to future misconduct.

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Id. at 17.

***

The court has had the advantage of observing the demeanor and

tone of the participants in addressing the concerns surrounding

the Interpreter (and throughout the proceedings) and finds based

upon these observations that the actions of [Appellants’] and

counsel were purposeful, calculating and premeditated, part of an

intentional plan to disrupt control, limit, and engineer [Mr.

Garced’s] testimony. The hiring of Court Interpreters with

significant known ongoing unavailability and scheduling conflicts

ensured that Mr. Garced’s testimony would suffer frequent and

significant interruptions, preventing [Appellees] from making

substantial inroads on cross examination and allowing for breaks

in the testimony for coaching the witness. Further this misconduct

of [Appellants] was, in the totality of the conduct before the court,

a transparent plan to waste the allotted trial time, to allow

[Appellants] to tactically feign memory loss, to cripple or

disadvantage the defense, and to obstruct the full and fair

presentation of the defense.

Id. at 22-23.

***

This court has searched precedent for comparable circumstances

that would provide guidance on addressing the obstructive and

vexatious conduct that occurred during this trial and the remedies

for such conduct. Throughout the proceedings, the court was

challenged to formulate a remedy that would not reward the

perpetrators with a second bite at the apple and burden the

defense with the expense of another trial. See Sutch v.

Roxborough Mern. Hosp., 142 A.3d 38, 52 (Pa. Super. 2016),

app. den. 640 Pa. 378, 163 A.3d 399 (2016). This case presents

the unique circumstances of compounded misconduct that

included both clients and counsel, coupled with counsel engaging

in blatant misrepresentations to the court on the record by counsel

in the course of the trial. The underlying matter—luring an

interpreter—which should involve a basic procedure devolved into

a shameful cloak and dagger attempt to cover up the actions of

both clients and counsel leading to repeated delays in the trial and

necessitating the use of three different interpreters (remarkable,

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when the Pre-trial Order issued in conjunction with the trial

mandated that counsel retain an interpreter available for the

entire duration of the trial).

Id. at 24.

***

Entering a JNOV would fully punish the wrongdoers and erase the

taint, but, as previously discussed, it is outside the scope of the

court’s authority. Long v. Bethany Children's Home, Inc.,

2021 WL 1157945 at * 3 (Pa. Super. March 26, 2021). citing

Reott v. Asia Trend Inc., 7 A.3d 830, 835 (Pa. Super. 2010),

aff'd 618 Pa. 228, 55 A.3d 1088 (2012). Granting an entirely new

trial simply allows [Appellants] a "do-over" with the benefit of

having previewed [Appellees’] cases. However, limiting the scope

of any new trial to the evidence credibly presented, i.e., that some

type of incident that occurred at the workplace at UCP on May 26,

2016 and the immediate injuries proven to flow from that

incident—prevents [Appellants] from inflating the claims in this

case and using expert testimony dependent upon an

unscientifically confirmed causal nexus. Moreover, it limits the

ability of witnesses who have shown an inclination to manipulate

the proceedings to their favor to embellish their account of the

incident in pursuit of a jackpot. Such a ruling is consistent both

with the court’s finding as to misconduct and its determination of

an insufficiency in the underpinnings for the experts’ conclusions.

Id. at 25.

***

[T]he misconduct here involved counsel and clients. However, the

misrepresentations and omissions related to the circumstances of

hiring the original Court Interpreter are entirely the actions of

counsel, warranting the entry of a separate sanction against him.

[Counsel’s] statements surrounding the hiring and firing of the

Court Interpreter, the convenient absence of Mr. Garced, and the

scheduling of Court Interpreters generally and the replacements

for [the Interpreter], were, based upon his demeanor and

duplicitous responses, wholly incredible, purposefully misleading

and unremorseful. The court orders a Sanction of $ 5,000 against

[counsel] to be paid to [Appellees’] counsel as attorneys’ fees.

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The court further determines that an award against [Mr.] and Mrs.

Garced for their participation in the conduct surrounding the hiring

of the interpreter and thereafter their evasive responses under

oath is further required. Sutch suggests that an appropriate

measure of sanctions is the cost that an opposing party incurred

to address the misconduct. In this case, it appears that such cost

would encompass counsel’s fees in connection with the deposition

of the interpreter, the fees in conjunction with the filing of

[Appellees’] counsel’s bench memos on the remedy for the use of

an interpreter appearing to have a conflict of interest and for the

costs of filing post-trial motions seeking a new trial that could

proceed (hopefully) without the misconduct.

Id. at 26-27.

We further reject Appellants’ contention that the imposition of sanctions

was improper because there was no direct order under which they could be

held in contempt. Appellants misapprehend the basis upon which the court

entered sanctions. The court imposed sanctions under 42 Pa.C.S.A. 2503(7),

and not on any intentional disregard of a court order. Moreover, as Appellees

correctly point out, an award of counsel fees under Section 2503 is distinct

from a finding of civil contempt that might include sanctions in the form of

counsel fees. Carlino E. Brandywine, L.P. v. Brandywine Vill. Ass’n, 197

A.3d 1189, 1204 (Pa. Super. 2018). Appellants are not entitled to any relief

on this issue.

VI. EVIDENTIARY ISSUES

In their remaining arguments, Appellants contend that the trial court

committed errors in an array of evidentiary rulings. We review evidentiary

rulings for abuse of discretion. Talmadge v. Ervin, 236 A.3d 1154, 1156

(Pa. Super. 2020). We review these arguments seriatim.

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(i) Taxes

Appellants argue they are entitled to a new trial because Appellees

asked Appellants’ economic expert inappropriate questions. Specifically,

Appellees asked whether, in calculating lost earning capacity, the wages the

expert used factored in Appellants’ taxes.

In Gradel v. Inouye, 421 A.2d 674 (Pa. 1980), our Supreme Court held

that “the law in Pennsylvania plainly is that income tax consequences should

not be considered by the jury. . . . Income tax as it relates to damages should

be mentioned neither in argument nor in jury instructions.” Id. at 680. Under

Gradel, it likely was improper for the court here to allow questions to

Appellants’ economic expert about whether he considered taxes in calculating

lost earning capacity. Any error, however, was harmless, since the jury did

not award Appellants damages for loss of future earnings or earning capacity,

and the court properly entered JNOV for future economic loss, as discussed

above.

(ii) Limitation of Mr. Garced’s Testimony

Appellants argue that they are entitled to a new trial because the trial

court limited Mr. Garced’s direct testimony. When Mr. Garced resumed his

testimony on the fifth day of trial—after testifying for half a day on the first

day—the trial court limited his direct testimony to ten minutes. N.T., 10/4/21,

at 6. The trial court explained that it took this step because of the “time

wasted [by Appellants] during trial, [counsel’s] disorganized and repetitive

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leading questions, multiple delays of the trial due to the firing of the original

Interpreter, [and] failure to secure a replacement interpreter.” Trial Court

Memorandum, 12/7/21, at 30.

At the outset, we observe Appellants waived this issue for purposes of

appeal because they did not object to the trial court’s ruling. Estate of

Brown, 30 A.3d 1200, 1207 (Pa. Super. 2011) (“failure to object in timely

fashion at trial results in waiver of issue for appeal”). As the trial court pointed

out in its opinion, the portion of the record Appellants cite to show they

preserved this issue actually related to a different issue—Appellants’ request

that the trial judge recuse himself. When the court ruled that Mr. Garced’s

direct would be limited, counsel’s only response to the time limitation was:

“Yes, sir.” Id. at 6. Then, after the court brought the jury in and read the

curative instruction concerning the misconduct related to the interpreter,

Appellants asked the trial judge to recuse himself. Id. at 19. This request

did not concern the time limitation imposed on Mr. Garced’s direct testimony.

Even if Appellants preserved this issue, a trial court is authorized to control

the scope of a witness’s examination, Rettger v. UPMC Shadyside, 991 A.2d

915, 925 (Pa. Super. 2010), and the court here exercised this authority

properly in placing a time limit on Mr. Garced’s testimony. Mr. Garced’s direct

examination resumed a week after he testified at length on the first day of

trial. This was after Appellants’ misconduct with the interpreter, multiple

delays, and repetitive leading questions, all were deemed to interfere with the

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flow of the trial. At that point, the trial court limited Mr. Garced’s further

testimony to ten minutes due to Appellants’ interference with the flow of trial

caused by their misconduct concerning the interpreter and the resulting delay

in obtaining a substitute interpreter. Memorandum Opinion, 12/7/21, at 30.

In addition, Mr. Garced’s testimony was duplicative of other witnesses,

including his wife, who testified about his exposure, treatment, and damages,

and Appellants’ multiple damages experts. Accordingly, the court’s limitation

on Mr. Garced’s testimony was a proper exercise of discretion.

(iii) Admission of Past Medical Costs

Appellants request a new trial on the ground that the court erred in

allowing Appellees to question Appellants’ life care plan expert about Mr.

Garced’s past medication costs, when Appellants were not seeking to recover

past medical costs. We find that this cross-examination was appropriate. On

direct examination, Appellants’ life care planner testified about projected

future medical costs. On cross-examination, defense counsel challenged the

planner’s opinions by seeking information regarding the amount of Mr.

Garced’s past medical bills. This was permissible cross-examination, since

past medical costs are relevant when future medical expenses are at issue.

Pratt v. Stein, 444 A.2d 674, 697 (Pa. Super. 1982) (“[w]here the evidence

in a personal injury action shows the value of medical services already

rendered the injured person, and that such service will be required in the

future, the jury may determine from the past service, and its value, what may

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reasonably be required in the future, although there is no other evidence of

the value of the future services”). Defense counsel’s questions were proper

to assist the jury to determine the amount, if any, Appellants could recover

for future medical expenses. In addition, these questions were an appropriate

challenge to the life care planner’s opinions concerning future medical costs.

The witness had no knowledge of the past cost of Mr. Garced’s medications,

so these questions directly impeached the credibility of her opinions. See

Pa.R.E 611(b) (permitting cross-examination of a witness on matters relevant

to any issue in the case, including credibility).

(iv) Scope of Dr. Kelsen Testimony

Appellants argue they are entitled to a new trial because a defense

medical expert, Dr. Kelsen, was permitted to testify that the use of Xolair, a

medication that Mr. Garced received in treatment following the incident at

UCP, should have been limited to four months. According to Appellants, Dr.

Kelsen failed to include this opinion in his report, so his testimony at trial fell

outside the fair scope of his report. Appellees correctly point out, however,

that Mr. Garced’s use of Xolair was within the parameters of Dr. Kelsen’s

supplemental report provided to all counsel. Under Pennsylvania Rule of Civil

Procedure 4003.5, expert reports define the permissible scope of a party’s

expert trial testimony. Pa.R.Civ.P. 4003.5(c) (“[The expert’s] direct testimony

at the trial may not be inconsistent with or go beyond the fair scope of his

testimony in the discovery proceedings as set forth in his deposition, answer

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to an interrogatory, separate report, or supplement thereto”). “[I]n

determining whether an expert’s trial testimony falls within the fair scope of

his pre-trial report, the trial court must determine whether the report provides

sufficient notice of the expert’s theory to enable the opposing party to prepare

a rebuttal witness.” Feden v. Consolidated Rail Corp., 746 A.2d 1158,

1162 (Pa. Super. 2000). In other words,

in deciding whether an expert’s trial testimony is within the fair

scope of his report, the accent is on the word “fair.” 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. In his supplemental report, Dr. Kelsen opined that Xolair was not an

appropriate treatment for Mr. Garced. Given his opposition to this medication,

his trial testimony that any use of Xolair should be limited to four months was

within the fair scope of his supplemental opinion.

(v) Termination of Mr. Garced’s Contract

Appellants object to the court’s order granting UCP’s motion to preclude

any reference to the termination of Mr. Garced’s contract with UCP. This ruling

was within the court’s discretion. The agreement between UCP and Mr.

Garced’s company was an at-will contract. “The general rule is that when a

contract provides that one party shall render services to another . . . but does

not specify a definite time or prescribe conditions which shall determine the

duration of the relation, the contract may be terminated by either at will.”

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Price v. Confair, 79 A.2d 224, 226 (Pa. 1951). Thus, UCP had the right to

terminate this contract at any time. Permitting Appellants to introduce

evidence of termination would have led the jury to speculate why the contract

was terminated and would have introduced irrelevant collateral issues

unrelated to Appellants’ claim of lost income arising from the fogging incident

at UCP.

(vi) Exclusion of Rebuttal Video

Appellants contend a new trial is needed because the trial court

precluded a rebuttal video they sought to present at trial. The videotape,

which purportedly showed Mr. Garced’s continuing pulmonary symptoms while

he was active, was intended to rebut a defense video showing Mr. Garced

engaging in various strenuous activities. Appellants produced this video to

Appellees just before the trial. The trial court’s decision to bar introduction of

the video was within its discretion. “The purpose of the discovery rules is to

prevent surprise and unfairness and to allow a trial on the merits.” Clark v.

Hoerner, 525 A.2d 377, 382 (Pa. Super. 1987). Permitting the video would

have been unfairly prejudicial to Appellees. The video was not listed in

Appellants’ pretrial memorandum and was not provided to Appellees until the

eve of trial. Further, preclusion of the video did not prevent Appellants from

presenting their case, because the video was duplicative and cumulative of

Appellants’ testimony. Through testimony by Mr. Garced and others,

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Appellants were able to present evidence that doing certain tasks, such as

walking on stairs, caused Mr. Garced’s blood oxygen level to drop.

(vii) Motion in Limine Precluding Mrs. Garced’s Injuries

Appellants lastly contend the trial court erred in granting Appellees'

motion in limine precluding recovery of Mrs. Garced’s claimed injuries

resulting from exposure to HaloSpray because her expert did not use the

words to “a reasonable degree of medical certainty” in her report. Appellants

contend the report clearly indicated that her expert’s opinions were within a

reasonable degree of medical certainty. We disagree. The trial court’s order

of September 28, 2021, precluding Mrs. Garced from presenting a personal

injury claim was not based upon mere semantics, but rather was grounded

upon the substantive basis that she too failed to provide competent expert

testimony to establish causation.

Mrs. Garcia provided a one and a half page expert report from her

primary care physician, Dr. Anita C. Lee, dated November 1, 2019, to

substantiate her claim that she too suffered injury and long term effects from

exposure to the HaloSpray that leaked into the room her husband was

cleaning. According to Dr. Lee’s summary of Mrs. Garcia alleged chemical

exposure, Mrs. Garced said that she was working with her husband on May

27, 2016, when he was exposed to a fog of Halomist. She claimed to be in

the vicinity and became exposed to the fog as well. She initially had no

symptoms but claimed to develop nausea, headache, and dizziness by the

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time her husband was taken to the emergency room, even though she

received no treatment at that time. She claimed to have noted the onset of

shortness of breath soon after, as well as chest tightness and a nonproductive

cough. She was seen by an ear, nose and throat physician with a negative

examination. She denied heartburn, took no inhalers, and had no prior lung

or asthma problems in the past. Dr. Lee reviewed the material data sheets

for the chemical composition of Halomist and noted that those agents are

known to be irritants to the mouth, throat, gastrointestinal tract, and lungs.

Relying upon the 2016 record of Mrs. Garced’s pulmonologist, Dr. Schwartz,

which Dr. Lee stated she also confirmed, Dr. Lee noted that after Mrs. Garced’s

alleged exposure, her initial workup included “neg CXR, PFTs with

methacholine challenge on 10/12/16 that was normal.” After about a year,

Mrs. Garced’s condition started to improve, and Dr. Lee diagnosed nonspecific

airway irritation/inflammation induced by her prior exposure. Dr. Lee noted

there were some (but not all) days that Mrs. Garced woke up with shortness

of breath subsequent to her exposure, and that she takes no medications for

her symptoms. Dr. Lee stated that since the chemical exposure three years

ago, Mrs. Garced’s symptoms slowly resolved from an exposure from the same

incident but to a lesser extent than Mr. Garced’s exposure.

In light of our above discussion on the failure to establish causation

between the May 26, 2016 incident and Mr. Garced’s injuries, no further

discussion is needed to conclude that the trial court acted within its discretion

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in granting Appellees’ motion in limine to preclude Mrs. Garced from making

a personal injury claim related to the May 16, 2016 incident. Suffice it to say,

Dr. Lee’s nonspecific diagnosis of an airway irritation/inflammation, without

any attempt purporting to meet the expert criteria under Pa.R.E. 702 for the

admission of expert testimony to establish a causal connection to the May 26,

2016 incident, requires that we deny any relief on this claim.

VII. HALOSIL’S CROSS-APPEAL

Halosil attempts to present a “cross-appeal” in its brief arguing that the

trial court erred by denying its motion to dismiss Appellants’ claims against it

on the ground that FIFRA preempts Appellants’ entire action. We find we are

precluded from reviewing this contention because Halosil failed to file an

appeal from the court’s order disposing of its post-trial motions.

As discussed above, the court denied Halosil’s motion seeking JNOV

based upon FIFRA but awarded Appellants a new trial limited to the amount

of Mr. Garced’s past noneconomic loss. Halosil could have filed a notice of

appeal from the denial of its FIFRA argument within 30 days of the order

dismissing its post-trial motion, see Pa.R.A.P. 903(a), or a cross-appeal within

14 days of a timely notice of appeal filed by Appellants. Pa.R.A.P. 903(b).

Since Halosil did neither, we are precluded from entertaining the merits of its

cross-appeal.

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VIII. CONCLUSION

For the foregoing reasons, we affirm the trial court’s order disposing of

the parties’ post-trial motions, and we remand for further proceedings

consistent with this decision.

Order affirmed. Case remanded for further proceedings. Jurisdiction

relinquished.

Date: 12/07/2023

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