Busanic, M. v. Premier Orthopaedic and Sports Med.

J-A30012-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

MATTHEW BUSANIC : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

PREMIER ORTHOPAEDIC & SPORTS :

MEDICINE PHYSICAL THERAPY :

: No. 852 EDA 2025

Appellant :

Appeal from the Order Entered March 6, 2025

In the Court of Common Pleas of Chester County Civil Division at No(s):

2020-04947-TT

BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and SULLIVAN, J.

MEMORANDUM BY LAZARUS, P.J.: FILED APRIL 28, 2026

Premier Orthopaedic & Sports Medicine Physical Therapy (Premier)

appeals from the order, entered in the Court of Common Pleas of Chester

County, concluding that the verdict was against the weight of the evidence,

granting Appellee Matthew Busanic’s post-trial motion, and relisting this

professional negligence case for a new trial solely on damages. We determine

that the trial court clearly abused its discretion when it determined that the

jury’s verdict was so contrary to the evidence that it shocked its sense of

justice. Thus, we vacate and remand for reinstatement of the jury verdict.

In July 2018, Busanic started a course of physical therapy (3x/week for

4 weeks) at Premier after spraining his ankle while running. At his first

appointment, Busanic met with Premier physical therapist Catilin Wilkinson,

who performed a series of tests to evaluate the strength of his ankles and

developed a set of exercises for him (plan/program). See N.T. Jury Trial,

J-A30012-25

10/29/24, at 18, 67. At his second appointment, Busanic received instructions

on how to implement the plan and was shown “close to ten” exercises under

the direction of Premier physical therapist assistant (PTA) Colleen Smith. Id.

at 21, 78. Busanic testified that Smith followed along with him as he

performed each of the exercises to make sure he was doing them correctly.

Id. at 74. The entire program of exercises took approximately one hour to

complete. Id. at 78. Smith testified that when she works with patients, if

“they are doing the exercise in an incorrect way or [] a way that’s likely to

injure them” she steps in and changes how they are performing the exercise.

Id., 10/30/24, at 120. See also id., 10/29/24, at 81 (Busanic testifying

Smith “would have told [him]” if he did not perform an exercise correctly and

that he understood all of the movements “to the best of [his] ability”). Smith

testified that a physical therapy aide often works with a patient, following

them through their plan of care and guiding them through their individualized

exercise program. Id. at 122. However, even when an aide is working with

a patient, Smith testified that she is “always scanning, so if [she] see[s]

something being done incorrectly, [she] will always tell [the aide] to stop the

exercise [and] will come over and change it.” Id.

One of the exercises in Busanic’s plan required the use of a

“TheraBand”—a pre-tied elastic resistance band—that Busanic placed around

his foot and held tightly at waist-level while flexing his foot forward and

backward while sitting on a treatment table. Id., 10/29/24, at 24-25; id.,

10/30/24, at 145. Busanic testified that he was not given any warning by

-2-

J-A30012-25

Premier staff about the risks associated with using the TheraBand, whether

the band should not be “bunched up” when placed around his foot, where to

position his hands in relation to his body when he holds the band, or where

on his foot the TheraBand should be positioned. Id., 10/29/24, at 28. Busanic

did the TheraBand exercises1 approximately five to ten minutes that day. Id.

at 35.

When Busanic returned to Premier for more therapy on July 31, 2018,

Matthew Arizini, a physical therapy aide, took Busanic “from one area of the

room to the other and instruct[ed him on] how to do [the exercises] and set

[him] up.” Id. at 34. Busanic testified that Arizini selected the TheraBand he

should use, “instructed [him on how] to . . . press [his] toes or [his] foot

forward and have it come back,” and put the band on his foot before Busanic

performed the TheraBand exercise described above. Id. at 36. Busanic

testified that Arizini handed him the TheraBand and “told [him] to . . . hold it

tight” while he described the motions Busanic should perform. Id. at 37.

Busanic testified Arizini told him to do ten of the exercises, watched him

perform “one or two of them, and then he sort of walked away.” Id. at 38.

As Busanic was performing the seventh repetition, he testified that “the band

instantly slipped off [of his] foot and hit [him] in the [right] eye.” Id. at 38;

____________________________________________

1 Busanic was instructed on how to do two different exercises using the

TheraBand. He was injured doing an exercise where he flexed his foot, while

sitting on a table, using the TheraBand. During the other TheraBand exercise,

Busanic put the TheraBand around his ankle and stepped side-to-side on the

floor. Id. at 24.

-3-

J-A30012-25

see also Complaint, 7/30/20, at ¶ 11;2 N.T. Jury Trial, 10/29/24, at 96

(Busanic testifying band had been placed “around the ball of [his] foot and the

instep” right before accident); id. at 100. Busanic testified at trial that he did

not know “how or why” the accident happened, but in his deposition testified

that he was holding the band with one hand at the time it slipped off, which

is how Arizini handed him the band. Id. at 97, 100, 114. But see id. at 104

(Busanic testifying “I have no reason to believe I did anything wrong” when

performing band exercise on date of accident). Finally, on re-direct

examination, Busanic testified that he did not “adjust, change, or manipulate

how the band was put on [his] foot in any way.” Id. at 114.

On August 7, 2018, doctors at Wills Eye Physicians/Mid Atlantic Retina

diagnosed Busanic with a sub-retinal hemorrhage and a “severely torn retina

. . . with an associated retinal detachment.” Report of Carl Hyunsuk Park,

MD, 6/18/21, at 1 (unpaginated). Busanic required treatment, five eye

____________________________________________

2 Busanic’s first amended complaint states that at the time he sustained his

eye injury he “was performing a resisted planar flexion exercise using a

TheraBand at the direction of an unidentified male agent or employee of

Premier [] who is believed to have been working under the supervision of

Colleen Smith, a physical therapy assistant also employed by [] Premier[.]”

Complaint, 9/21/20, at ¶ 9-10. The record is clear that no one actually saw

the band hit Busanic’s eye. Arizini testified that he did not remember working

with Busanic on the day of the accident. See N.T. Jury Trial, 10/31/24, at 36-

37. Moreover, Christian H. Mongrain, who prepared Busanic’s Certificate of

Merit, states that Busanic was injured while “performing resisted TheraBand

ankle plantar flexion exercises under the direction and care of Premier

Therapy employee, Colleen Smith, PTA, when the TheraBand slipped

off of his right foot and struck [his] right eye.” Certificate of Merit,

Christian H. Mongrain, PT, DPT, HEM, 8/4/20, at 2 (emphasis added).

-4-

J-A30012-25

surgeries,3 and has permanent vision loss. Doctor Park, who performed

Busanic’s first eye surgery, prepared a report that concluded, “to a reasonable

degree of medical certainty[,] all of [Busanic’s] injuries to [his] right eye

(traumatic macular hole, traumatic cataract, severe retinal detachment with

proliferative vitreoretinopathy) were due to the impact caused by the

malfunctioned resistance band, TheraBand, that hit the eye at high

velocity/energy.” Id. at 2 (unpaginated) (emphasis added); see also N.T.

Jury Trial, 10/29/24, at 85-87.4

On July 30, 2020, Busanic filed a complaint against Premier and Hygenic

Performance Products, Inc., the manufacturer of the TheraBand. Premier filed

preliminary objections to the complaint, claiming, among other things, that

the court should strike Busanic’s premises liability count where Busanic had

improperly “meld[ed] and conflat[ed] a claim of professional liability with a

claim for premises liability” after having already filed a certificate of merit.

Preliminary Objections, 9/1/20, at 3 (unpaginated). On September 21, 2020,

Busanic filed a first amended complaint alleging negligence against Premier

and Hygenic and strict liability solely against Hygenic. Busanic’s negligence

claims against Premier consisted of allegations that Premier: had a duty to

act in Busanic’s best interest; failed to properly instruct and supervise Busanic

____________________________________________

3 The final eye surgery, a lens implant, was successfully performed at Wills

Eye Hospital in October 2019 by Brandon D. Ayres, M.D.

4 Busanic did not recall telling Dr. Park that the band had malfunctioned, but

testified that the band had “slipped off” of his foot. N.T. Jury Trial, 10/29/24,

at 88.

-5-

J-A30012-25

on how to safely use the TheraBand while performing an exercise; failed to

properly supervise and instruct him that using a TheraBand created a

dangerous condition; and caused Busanic’s injuries due to its negligence

and/or carelessness. See First Amended Complaint, 9/21/20, at ¶¶ 14-19

(emphasis added).

In his first amended complaint, Busanic lists seven potential reasons

Premier was the factual cause of harm to his right eye. Specifically, Busanic

alleged that Premier failed to:

 properly supervise Busanic while he used the TheraBand while

performing the exercise;

 properly instruct Busanic on how to safely use the TheraBand during the

exercise;

 correct Busanic’s technique while using the TheraBand before it snapped

and struck his eye;

 warn Busanic about the possible dangers of using the TheraBand;

 properly train its agents, servants, and/or employees about how to have

patients safely perform TheraBand exercises;

 provide Busanic with eye protection while using the TheraBand; and

 instruct Busanic to “effectively wrap or double wrap or cinch the

TheraBand around his foot” to make sure it was properly secured.

Id. at ¶ 18(a)-(g). Premier filed an answer and new matter to the first

amended complaint, specifically denying that it was negligent and stating that

it “did not cause or contribute to any of Plaintiff’s injuries” and that its acts

“were not substantial causes or factors of the subject incident and/or did not

-6-

J-A30012-25

result in the injuries and/or losses alleged by Plaintiff.” Answer and New

Matter, 11/25/20, at ¶¶ 12, 15-19, 30.

The case proceeded to a jury trial in October 2024. 5 At the close of

Busanic’s case, Premier moved for a compulsory non-suit, stating its reasons

on the record as follows:

First, specifically[,] I want to address the issues of underlying

negligence in care for the patient. The plaintiff’s expert made no

claims, no testimony about any individual acts of negligence in

care for the patient. The plaintiff’s expert made no claims, no

testimony about any individual acts of negligence other than

instruction and/or supervision during the entire scope of their

testimony. In fact, the essence of the testimony was when I

specifically asked him, he said, well maybe the band rolled off.

We don’t know. Maybe it didn’t. Maybe it did. We don’t know if

it rolled up.

The fact that there’s absolutely no certainty to that is an indication

that there is absolutely no showing [that] has been made by

expert testimony of individual negligence of any of the agents of

Premier, and, in fact, they testified that the only agents he was

talking about was the supervision, which I assume was Colleen

Smith, and then the aide who we just heard from, Mr. Arizini. So

any claims regarding the actions that were in his report or

mentioned, I think need be dismissed along with any underlying

incidences.

The second part of the motion, Your Honor, is with regard

to causation. There is no testimony from the expert

witness that had anything been different or had

supervision been different or had somebody been there

that there would have been a different outcome. We hear

during the testimony that under the acts, statutes, and

regulations, there is no requirement that anybody be next to

persons when they do this exercise. That is what Plaintiff’s expert

____________________________________________

5 Hygenic was dismissed from the case on March 11, 2024. See Praecipe to

Settle, Discontinue and End, 8/9/23; see also Stipulation to Dismiss,

3/11/24. Thus, the case proceeded to trial with Premier as the sole defendant.

-7-

J-A30012-25

admits. If there was an issue where this occurred, nobody

testified that this could have stopped it or prevented it.

There is no causation argument as far as that goes, Your

Honor.

N.T. Jury Trial, 10/31/24, at 78-79 (emphases added). The court denied the

motion. See id. at 86.

Prior to closing arguments, Premier’s counsel moved for a directed

verdict “based on the status of the evidence and everything” and incorporating

the arguments he made in his motion for nonsuit, including lack of causation.

Id. at 180. See Pa.R.C.P. 226. The trial judge denied the motion. Id.

Both Busanic’s counsel and Premier’s counsel proposed a “factual cause”

point of charge for the jury, citing Pennsylvania Standard Jury Instruction

(Civ.), 5th Ed. 14.20. See also N.T. Jury Trial, 10/31/24 at 185 (Busanic’s

counsel, in closing arguments, telling jury judge is going to give them verdict

slip asking “basic questions [like] ‘Do you find that Premier was negligent? If

you find that Premier was negligent, do you find that [it] w[as] the factual

cause of the harm[.]?”).6

In closing argument to the jury, Busanic’s attorney discussed factual

causation, among other things, stating:

____________________________________________

6 Busanic’s counsel also noted that there was no proposed comparative

negligence charge and nothing on the verdict slip regarding comparative

negligence. Id. at 126-27. He asked the court to preclude Premier’s counsel

from arguing that Busanic did anything wrong or that he was personally at

fault for his injuries or that there was any intervening cause as it related to

Busanic’s injury. Id. at 127-28. In response, Premier’s counsel stated, “I will

not argue that. I may go through what happened and ask the jury to consider

how that happened, but I will not say he did it to himself or contributed to the

cause.” Id.

-8-

J-A30012-25

[] You’re going to deliberate. And what you’re going to do is

you’re going to have to take the facts and the law as the judge

gives you to make decisions. What you’re going to hear is you’re

going to make those decisions based on a preponderance of the

evidence. . . .

The judge is going to give you a verdict slip. And that verdict slip

is going to guide how you make your decision. You’re going to be

asked some very basic questions. Do you find that Premier was

negligent? If you find that Premier was negligent, do you find

that [it was] the factual cause of the harm, that [its]

negligence caused the harm? And then what is the full and fair

damages in this case?

***

If you decide that any one of those things is true and you put that

on the scale, Premier has been negligent in the treatment of

[Busanic]. If you find that they did not instruct him properly

on the exercise and that was [the] factual cause of his

injury, that’s enough. If you find that they didn’t instruct him

right and didn’t give him safety instructions, that’s enough. If you

find that it wasn’t the right person, that’s enough. It’s not an all

or nothing proposition.

***

Premier, the company, acting through their employees[,] violated

the standard of care by failing to warn, failing to instruct, and

failing to have the right person administer [the] right care on the

last day. Again, I can’t emphasize it enough. It is not an all or

nothing proposition. And then you’re going to be asked on

the verdict slip if it’s the factual cause. It might seem kind of

crazy, but you’re going to be asked if they’re negligent for the

band hitting [Busanic’s] eye, was the band the cause of his

injuries? There’s been no evidence that anything else was

the cause of [Busanic’s] injuries. . . . That band caused

the injury to [Busanic’s] eye that led to the follow-up surgeries.

Id. at 185-86, 195-96 (emphasis added); id. at 236 (Plaintiff’s counsel stating

to jury, “Busanic is entitled to recover damages for all injuries factually

caused by the defendant’s negligence”) (emphasis added).

In its charge to the jury, the trial court gave the following instruction:

-9-

J-A30012-25

The plaintiff has the burden of proving that the following is more

likely true than not: Premier[’s] negligence was a factual

cause in bringing about the harm suffered by Matthew

Busanic. Matthew Busanic also has the burden of proving the

extent of damages caused by Premier[.]

***

The issues you have to decide in the course of the law as I

give it to you are, was Premier [] negligent? And was

Premier[’s] negligent conduct a factual cause in bringing

about the injuries to Matthew Busanic? In this case, you must

decide whether Premier [] was negligent.

***

In order for Plaintiff [] to recover in this case, the

defendant, Premier[’s] conduct must have been a factual

cause in bringing about harm. Conduct is a factual cause of

harm when the harm would not have occurred absent the conduct.

To be a factual cause, the conduct must have been an actual real

factor in causing the harm even if the result was unusual or

unexpected.

A factual cause cannot be an imaginary or fanciful factor having

no connection or only an insignificant connection to the harm. To

be a factual cause, Premier[’]s conduct need not be the

only factual cause. The fact that some other cause—causes[—

]concur with Premier[’s] negligence and produc[e] an injury does

not relieve Premier [] from liability as long as its own negligence

is a factual cause of the injury.

***

The fact that I am instructing you on damages does not imply an

opinion on my part as to whether damages should be awarded. If

you find the defendant’s negligence caused Plaintiff’s

harm, you must then determine an amount of money

damages that you find would fairly and adequately

compensate Plaintiff for all the physical harm he has

sustained as a result.

***

- 10 -

J-A30012-25

[] The parties agree that Matthew Busanic sustained some injury

from the accident.[7] If you find that Premier [] was

negligent, you must award damages for the injury in the

form of noneconomic damages caused by Premier[’]s

negligence.

The parties disagree on the extent of Matthew Busanic’s injury

caused by Premier[’s] negligence. You must decide the extent of

the injury of Premier[’s] negligence caused and return a verdict

that fully compensates Matthew Busanic for all injuries sustained.

Matthew Busanic is entitled to recover damages for all

injuries factually caused by [Premier’s] negligence.

[Premier] need not be the sole cause of the injuries. Other

causes may have contributed to producing the final result. The

fact that some other factor may have contributed to an injury does

not relieve a defendant of liability unless you find that such

other causes would have produced the injury complained

of independently of their negligence.

Even though prior conditions or concurrent causes may have

contributed to an injury, if [Premier’s] negligence factually

caused the injury, [Premier] is liable for the full amount of

damages sustained without any apportionment or diminution for

the other conditions or causes.

If you find that Premier[’s] negligence caused Matthew

Busanic harm, he is entitled to recover past and future money

damages for the following types of harm, each of which I will

describe in some detail.

Id. at 231, 234-37 (emphasis added). Relatedly, the verdict slip submitted

to the jury, which both parties agreed to, included the following relevant

language:

1. Do you find the Defendant, Premier Orthopaedic & Sports

Medicine Associates, Ltd., was negligent?

____________________________________________

7 The issue of degree of an injury is addressed through damages once factual

cause is established. Thus, because the jury determined that Premier was not

the factual cause of harm to Busanic, it never addressed the degree or extent

of his injuries.

- 11 -

J-A30012-25

***

If you answered “Yes[,]” go to Question 2.

If you answered “no[,]” the Plaintiff cannot recover, and you

should not answer further questions. The foreperson should sign

and date the last page of the verdict slip and tell the court officer

that you have reached a verdict.

2. Was the negligence of those defendants you have found to

be negligent a factual cause of any harm to the plaintiff?

* * *

If you answered “Yes[,]” go to Question 3.

If you answer Question 2 “No” as to all defendants you have

found to be negligent, the plaintiff cannot recover and you

should not answer any further questions and should return

to the courtroom.

Verdict Slip, 10/31/24, at 1 (emphasis added). 8 Neither party objected to the

jury instructions. See Passarello v. Grumbine, 87 A.3d 285, 292 (Pa. 2014)

(objections to jury instruction must be made before jury retires to deliberate). 9

____________________________________________

8 Queston three of the jury verdict form, which was left blank by the jury,

reads as follows:

3. State the amount of damages, if any, sustained by Plaintiff,

Matthew Busanic.

$_______________________

Id. at 2. Busanic’s counsel also read the verdict slip, verbatim, to the jury in

his closing arguments. See supra at 9-11. Notably, he reiterated that if the

jury answered “no” to the second question (factual causation), “the plaintiff

cannot recover [and the jury] should not answer any further questions.” N.T.

Jury Trial, 10/31/24, at 243.

9 Prior to the jury rendering its verdict on October 31, the jury foreperson

asked the judge the following questions: “May we see the standard of care?

Articles that were shown. 9.2, 40.32, & 40.50” and “Can we see the 2

definitions of negligence again?” See Court Exhibit 1, 10/31/24; Court Exhibit

(Footnote Continued Next Page)

- 12 -

J-A30012-25

After a four-day trial, the jury returned a verdict that found Premier was

negligent, but that its negligence was not a factual cause in bringing about

harm to Busanic. See Verdict Slip, 10/31/24, at 1. Consequently, the jury

awarded no damages. See id. at 1-2 (verdict slip stating if jury found Premier

was not factual cause of harm, Busanic “cannot recover;” amount of

damages question left blank and slip signed and dated by jury foreperson)

(emphasis added). Prior to the court being adjourned, Busanic’s counsel put

the following objection on the record:

[W]e believe the jury has just rendered what’s considered an

inconsistent verdict. Meaning, when they found negligence, but

not factual cause[,] it contradicts all the evidence of record and is

inconsistent with the kind of verdict slip given the facts of the case

because there’s no doubt that our client was injured at the

physical therapy facility and that his injury is caused by their

negligence.

____________________________________________

2, 10/31/24. The court responded to the questions by sending the following

to the jury: “The jury is to rely on the instructions given by the court both

during the charge and again in response to the jury’s first question.” Court

Exhibit 3, 10/31/24. At 9:08 p.m. that evening, Premier’s counsel moved for

a mistrial “[o]n the basis that [the jury didn’t] seem to be making any progress

. . . [and to avoid] a jury [from] just mak[ing] a decision to avoid coming back

tomorrow or to get it done for the purpose of getting it done.” N.T. Jury Trial,

10/31/24, at 254-55. See also id. at 255 (defense counsel stating concern

that jury would “throw any reason to the wind and make a decision that’s

inappropriate for this case for either side on causes or reasons other than . .

. the right reasons”). Busanic’s attorney opposed the motion, stating that

the court had not been given any indication that the jury was deadlocked and

that there were alternate jurors available in the event they were to lose some

jurors to vacation. Id. at 255-56. The court agreed with Busanic’s counsel,

concluding that there had been no indication the jury was deadlocked, and,

thus, denied the mistrial motion. Id. at 256.

- 13 -

J-A30012-25

N.T. Jury Trial, 10/31/24, at 261-62.10 The court noted counsel’s objection

and advised him that he would have an opportunity to file post-trial motions.

Id. at 262.

Busanic filed post-trial motions requesting a new trial on the issue of

damages, claiming that the jury’s verdict that Premier’s negligence was not a

factual cause in bringing about harm to Busanic was: inconsistent with its

finding that Premier was negligent; not supported by the evidence; against

the weight of the evidence; shocking to one’s conscience; contrary to caselaw;

and “against the [c]ourt’s instructions to the jury.” Plaintiff’s Motion for Post-

Trial Relief, 11/8/24, at ¶ 5. On March 6, 2025, the trial court granted

Busanic’s motion and awarded a new trial on damages. Premier filed a timely

notice of appeal and court-ordered Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal.

On appeal, Premier raises the following issues for our consideration:

(1) Whether the trial court committed an error of law and/or

abused its discretion when it granted [Busanic] a new trial

on damages and found that [Premier] did not dispute

causation?

(2) Whether the trial court committed an error of law and/or

abused its discretion when it granted [Busanic] a new trial

____________________________________________

10 Our Supreme Court has stated that “an inconsistent verdict provides

grounds for objection and, if a party seeks relief upon grounds of verdict

inconsistency, it must forward a timely, contemporaneous objection upon the

rendering of the verdict.” Criswell v. King, 834 A.2d 505, 513 (Pa. 2003).

However, because a weight of the evidence claim “ripens only at the post-

verdict stage,” such claim is “properly forwarded for the first time in a timely-

filed post-trial motion.” Id.

- 14 -

J-A30012-25

and found that the jury charge required the jury to award

damages and that the jury failed to follow instructions?

(3) Whether the trial court committed an error of law and/or

abused its discretion when it found the verdict was against

the weight of the evidence?

(4) Whether the trial court committed an error of law and/or

abused its discretion when it failed to find that [Busanic]

waived his challenge to the verdict on the grounds that the

jury failed to follow instructions?

Appellant’s Brief, at 4.

The applicable standard of review of [a trial] court’s decision to

grant a new trial is as follows: The decision of whether to grant a

new trial is within the sound discretion of the trial court. An

appellate court will not disturb the trial court’s decision unless the

trial court palpably abused its discretion or committed an error of

law. In evaluating an order awarding a new trial, an appellate

court keep[s] in mind that a new trial is warranted where the

jury’s verdict is so contrary to the evidence as to shock one’s

sense of justice. However, a new trial should not be granted

because of a mere conflict in testimony or because the trial judge,

on the same facts, would have arrived at a different conclusion.

Andrews v. Jackson, 800 A.2d 959, 962 (Pa. Super. 2002) (citation

omitted). Moreover,

[under common law, t]he granting of a new trial limited to

damages was not permitted[.] Troncatti v. Smereczniak, []

235 A.2d 345[, 346] ([(Pa.)] 1967). However, Pennsylvania and

most other jurisdictions have adopted a rule permitting such

limited new trials under specific circumstances. A new trial limited

to the issue of damages will be granted where: (1) the issue of

damages is not “intertwined” with the issue of liability; and (2) []

the issue of liability has been “fairly determined” or is “free from

doubt.” Gagliano v. Ditzler, [] 263 A.2d 319[, 320] ([(Pa.)]

1970).

Kiser v. Schulte, 648 A.2d 1, 7-8 (Pa. 1994) (some citations omitted).

Our Supreme Court has recognized that there is a significant distinction

between the grant of a new trial on the basis of an inconsistent verdict versus

- 15 -

J-A30012-25

one upon the weight of the evidence. In the former, the challenge disputes

the power of the jury to render the verdict and does not allege any facial error

in the jury’s verdict. The latter challenge derives from the fact that the trial

court, like the jury, had an opportunity to hear the evidence and observe the

demeanor of the witnesses and concludes that the verdict was so contrary to

what it heard and observed that it will deem the jury’s verdict a miscarriage

of justice. Criswell, 834 A.2d at 512. See Hobbs v. Ryce, 769 A.2d 469,

472, n.3 (Pa. Super. 2001) (citation omitted) (“A trial judge is not at liberty

to suggest to the jury that the weight of the evidence did not support its

damage award.”).

Here, the trial court concluded that the verdict was against the weight

of the evidence presented at trial because the jury failed to find factual

causation when only negligence was contested. We note that such a holding

is “[o]ne of the least assailable” for an appellate court. Fazio v. Guardian

Life Ins. Co. of America, 62 A.3d 396, 413 (Pa. Super. 2012) (“Because the

trial judge has had the opportunity to hear and see the evidence presented,

an appellate court will give the gravest consideration to the findings and

reasons advanced by the trial judge when reviewing a trial court’s

determination that the verdict is against the weight of the evidence.”).

When reviewing an order granting a new trial, “if . . . the trial court

indicates that the reasons it gives are the only basis for which it ordered a

new trial[,] . . . an appellate court can only examine the stated reasons.”

Morrison v. Dep’t of Pub. Welfare, 646 A.2d 565, 570 (Pa. 1994) (internal

- 16 -

J-A30012-25

quotations omitted). Instantly, the court stated it granted a new trial on

damages for the following reasons: (1) Premier contested only negligence

and not causation, and (2) the court instructed the jury that “it must award

some damages upon a finding of negligence.” See Trial Court Memorandum

Opinion, 3/6/25, at 1 (emphasis added).

Here, contrary to the court’s conclusion, Premier never stipulated or

conceded negligence, causation, or damages. The trial court’s conclusion that

causation was not contested—because “the parties did not dispute that

Plaintiff’s eye injury was caused by the TheraBand slipping off Plaintiff’s foot

after it had been placed on his foot by Mr. Arinzini” and where Busanic’s

“treating surgeon and expert . . . opined to a reasonable degree of medical

certainty that all the injuries to Plaintiff’s right eye [] were due to the impact

caused by the malfunctioned resistance band that hit the eye at high

velocity”—conflates how Busanic sustained his injury with the factual or actual

cause of Busanic’s injury. Trial Court Memorandum Opinion, 3/6/25, at 4-5.

The latter finding, necessary to impose liability in any negligence action,

requires “a demonstration that the breach of duty was both the proximate

cause and actual cause of [the] injury.” Eckroth v. Pennsylvania Elec.,

Inc., 12 A.3d 422, 427 (Pa. Super. 2010) (emphasis added). Although

Premier may have conceded that the accident caused some injury to Busanic,

Premier contends that “[a]greeing that the accident caused injury” is not the

same as agreeing that its negligence was the factual cause of the accident.

Appellant’s Pa.R.A.P. 1925(b) Statement, 4/14/25, at 2, citing Hamil v.

- 17 -

J-A30012-25

Bashline, 392 A.2d 1280, 1284 (Pa. 1978). See Martin v. Evans, 711 A.2d

458, 461 (Pa. 2988) (mere occurrence of accident does not establish negligent

conduct).

The trial court posits that, where medical experts for both sides agree

that a plaintiff’s accident caused some injury, a jury’s verdict that defendant’s

negligence is not a substantial factor in causing plaintiff’s injury is contrary to

the weight of the evidence. See Trial Court Memorandum Opinion, 3/6/25, at

2.11 It is true that a jury is not permitted to disregard uncontroverted evidence

of causation and find a defendant’s negligence was not a substantial factor in

causing at least some injury to plaintiff, where both parties agree that a

plaintiff sustained some injury as a result of an accident. Andrews, 800 A.2d

at 965. However, here the parties are not disputing whether Busanic was

injured when the TheraBand slipped off his foot and struck him in the right

eye. Instead, the dispute was whether Premier’s negligence caused the

accident that resulted in Busanic’s injury. Premier asserts that it did contest

causation. We agree.

It is well established that:

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

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

defendant breached the duty[;] the plaintiff suffered actual

harm[;] and a causal relationship existed between the breach of

____________________________________________

11 Busanic’s counsel’s statement to the jury that “[it] might seem kind of crazy,

but you’re going to be asked if [Premier] is negligent for the band hitting

Matthew’s eye, was the band the cause of his injuries,” is also misleading.

N.T. Jury Trial, 10/31/24, at 196. While the band indisputably was the

mechanism that caused the injury, as we discuss infra, that is not the same

as factual causation.

- 18 -

J-A30012-25

duty and the harm. To establish the causation element in a

professional malpractice action, the plaintiff must show

that the defendant's failure to exercise the proper standard

of care caused the plaintiff's injury.

McFeeley v. Shah, 226 A.3d 582, 594-95 (Pa. Super. 2020) (emphasis

added). Here, Premier presented expert testimony on the breach of duty

element to support its defense that it did not deviate from the standard of

care required of professionals in the physical therapy field when it rendered

care to Busanic. Therefore, while there was no dispute that the TheraBand

was the direct cause of the injury to Busanic’s eye, Premier contested the

factual causation, or actual (“but for” or “cause in fact”) cause of the harm

suffered. See N.T. Jury Trial, 10/31/24, at 132 (defense counsel

acknowledging “[t]he cause of the injury was the band hitting the eye, right.

Nobody disputes that.”); id. (defense counsel stating, “Nobody is arguing

causation as to when there was trauma to the eye.”) (emphasis added).

Notably, Premier moved for a compulsory non-suit and directed verdict

on the basis of causation, claiming that no expert testified that even if

someone at Premier had been supervising Busanic at the time the band slipped

off of his foot, he would not have been injured. See N.T. Jury Trial, 10/31/24,

at 78-79, 180. Additionally, on cross-examination of defense witnesses Smith

and Wilkinson, Busanic’s counsel mentioned the risks of TheraBands

“potentially slipping off or tearing or breaking.” Id. at 10/30/24, at 229-30.

Smith also testified that Premier routinely checks the bands for “wear and

tear” and discards any bands that could increase “a chance of injury.” Id. at

- 19 -

J-A30012-25

121.12 Moreover, both Smith and Busanic’s expert, Christian Mongrain, PT,

DPT, HEM, testified that TheraBands can roll up, scrunch up, or come up too

high on the foot. See N.T. Jury Trial, 10/30/24, at 6, 143.

Therefore, even though the jury may have determined that Premier was

negligent13—i.e., that it failed to use the ordinary care or skill of a person in

____________________________________________

12 Busanic’s expert, Christian H. Mongrain, testified extensively on the relevant

portions of Pennsylvania’s Physical Therapy Practice Act (Act) that discussed

what types of things physical therapists and physical therapy assistants may

delegate to support personnel like Arizini. See N.T. Jury Trial, 10/30/24, at

3-8. However, his initial expert report did not mention the Act at all. Mongrain

testified that “the standard of care of physical therapy” was violated if a

therapist or assistant “delegate[d] to an aide the observance and correction

of a patient [during skilled therapy] doing exercises [and also] to delegate to

an aide the responsibility to warn patients about safety concerns and risks

with certain exercise equipment like exercise bands.” Id. at 6. Doctor

Mongrain also testified about the concerns when using a TheraBand, such as

“rolling up or scrunching up or coming up too high on the foot.” Id.

13 The judge defined negligence to the jury as follows:

A person must act in a reasonably careful manner to avoid

harming others. The care required varies according to the

circumstances and the degree of danger at a particular time. You

must decide how a reasonably careful person would act under the

circumstances established by the evidence in this case.

A person who does something a reasonably careful person would

not do under the circumstances is negligent. A person can also

be negligent by failing to act. A person who fails to do something

a reasonably careful person would do under the circumstances is

negligent.

Professional negligence is a negligent, careless, or unskilled

performance by a physical therapist of the duties imposed by them

via a professional relationship with a client. Negligence is the

failure to use the ordinary care or skill of a person in that

profession. A professional must have the same knowledge and

skill and use the same care normally used in the profession. The

(Footnote Continued Next Page)

- 20 -

J-A30012-25

the physical therapy profession—in order to be entitled to damages, the

plaintiff was still required to prove that the negligence was the factual cause

of harm. Cf. Winschel v. Jain, 925 A.2d 782 (Pa. Super. 2007) (verdict

against weight of evidence where jury concluded physician was negligent, but

that his negligence was not cause of decedent’s death; plaintiff established

element of causation with uncontradicted expert testimony that physician’s

failure to diagnose totally obstructed artery clearly increased risk of fatality

and led to plaintiff’s death).

The cases cited by the trial court14 to support its decision to grant a new

trial on damages all involve negligence cases in which the plaintiff sustained

injury as a result of a motor vehicle accident. 15 While this distinction may

seem inconsequential in the overall scope of causation in negligence cases,

our Court in Daniel v. William R. Drach Co., 849 A.2d 1265 (Pa. Super.

2004), recognized the following nuance, which applies equally to the instant

matter:

____________________________________________

professional whose conduct falls below the standard of

care is negligent.

N.T. Jury Trial, 10/31/24, at 233-34 (emphasis added). Therefore, the term

“negligence,” as presented to the jury, encompassed the elements of duty and

breach (i.e., defendant’s conduct fell below standard of care).

14 Notably, Busanic cited to the same cases in his post-trial motion for a new

trial.

15 One of the cases, Martin, supra, involved a tractor trailer hitting a man

standing behind the truck at a rest stop. In any event, a vehicle was the cause

of the plaintiff’s injuries.

- 21 -

J-A30012-25

[T]hese [motor vehicle] cases are distinguishable from the case

now before us. In Andrews and the other cases that Appellants

cite, the jury’s finding of negligence established that the negligent

operator of the vehicle caused the collision. Whereas those juries’

findings on negligence established that the drivers were liable for

causing the collision, the jury’s decision in this case that Appellee

was negligent did not establish that its negligence caused the

alleged accident in which [plaintiff] injured himself. This is so

because[,] when an auto accident occurs and one driver is found

to be negligent, then absent contributory negligence, the driver’s

negligence is almost invariably what caused the auto accident.

And therefore, if there is an uncontroverted injury that arose from

the auto accident, the jury must find that the driver’s negligence,

which caused the accident, was also a substantial factor in causing

the injury.

However, we do not extrapolate from this case law that[,]

regardless of the factual circumstances, a finding of

negligence combined with an uncontroverted injury

automatically requires a finding that the negligence was a

substantial factor in causing the accident that caused the

injury. Rather, the aforementioned case law is limited to a jury’s

finding on whether the plaintiff was “injured” in the accident.

Andrews, 800 A.2d at 965. Appellants herein have misplaced

their reliance, as they are not here arguing about whether

[plaintiff] was injured in the accident, for this issue is not in

dispute.

Instead, the issue is whether Appellee's negligence caused

the accident that resulted in the injury. The jury found that

it did not, and the trial court concluded that the jury’s verdict was

proper. As Appellee argues in its brief, there are other factors

that may have caused [plaintiff’s] accident, among which may

have been his own actions.

Id. at 1268-69 (quotation marks omitted) (emphases added). See also

Koziar v. Rayner, 200 A.3d 513 (Pa. Super. 2018) (trial court erred in

vacating jury verdict and granting new trial where jury could have found

defendants negligent, but ultimately did not believe it was defendant’s

negligence that caused plaintiff’s injuries; rather, the jury could have found

- 22 -

J-A30012-25

the injury resulted from her own negligence or might not have believed

plaintiff’s version of how accident happened).

After due consideration of the evidence, viewed in a light most favorable

to Premier as the verdict winner, we conclude that the jury could have

reasonably reached the conclusion it did—that Premier was negligent, but not

the factual cause of Busanic’s injury. Winschel, supra. As Premier’s counsel

argued in his motion for nonsuit, no expert 16 testified that even if Wilkinson,

Smith, or Arizini had been supervising Busanic at the time he completed his

seventh repetition of the TheraBand exercise on July 31, 2018, he would not

have been injured. In fact, no one could explain exactly how or why the band

slipped off Busanic’s foot and injured his eye. See Gaita v. Pamula, 122

A.2d 63 (Pa. 1956) (well-established principle that jury is free to believe or

disbelieve opinion evidence presented by expert witness). Thus, we find the

trial court erred in granting a new trial on damages on the basis that causation

was not contested at trial.

Moreover, the jury did follow the court’s instruction and did not proceed

to award damages after concluding Premier’s negligence was not the factual

____________________________________________

16 At most, Mongrain’s pre-trial expert report, entered as an exhibit at trial,

stated that Premier’s “abandonment of duties . . . created a dangerous

condition that caused or contributed to [Busanic’s] compromised

health, safety, and well-being.” Expert Report, 12/22/22, at 4 (emphasis

added). See id. at 14 (“actions or inactions of Premier . . . violated the

standard of care for physical therapy and created a dangerous condition that

caused [] Busanic’s eye injury.”), but see id. (“Had [] Busanic been provided

with the skilled therapy services that he was charged for . . . he more likely

than not would have completed the exercises without injury.”) (emphasis

added).

- 23 -

J-A30012-25

cause of Busanic’s harm. Here, the parties agreed not only to the trial court’s

jury instruction that the jury could only award damages if it first concluded

that Premier’s negligence factually caused the harm to Busanic, but they also

agreed on the wording of the jury’s verdict slip mandating that if the jury does

not find Premier was a factual cause of any harm to Busanic, it shall not award

damages. See Verdict Slip, 10/31/24, at 1. Thus, to the extent that the court

also found that the jury did not follow the trial court’s instructions, we

determine that finding to be in error. See Farese v. Robinson, 222 A.3d

1173, 1184 (Pa. Super. 2019) (It is well-established that “the jury is

presumed to follow the trial court’s instruction”) (citation omitted). See also

Appellant’s Brief, at 17 (Premier pointing out trial court’s instructions “make

it clear that, not only was causation never conceded by Defendant, [but] the

jury was required to follow instructions in answering the question on causation

on the verdict slip”).

In conclusion, we find that in the instant case, liability was fairly

determined by the evidence.17 See Kaiser, supra (issue of liability must

____________________________________________

17 Both the trial court and Busanic rely heavily on an unpublished

memorandum decision, Boyle v. Einstein Med. Ctr. Montgomery, 227 A.3d

418 (Pa. Super. 2020) (Table), to support the grant of a new trial on damages

on the basis that the jury failed to follow the trial judge’s instructions by not

finding factual causation, and, in doing so, rendered a verdict that is against

the weight of the evidence. See Trial Court Memorandum Opinion and Order,

3/6/25, at 7-8; see also Appellee’s Brief, at 10-11; Plaintiff’s Brief in Support

of Motion for Post-Trial Relief, 12/12/24, at 5-8. For many reasons, that case

is inapposite to the instant facts and, does not support the grant of a new trial

on damages.

(Footnote Continued Next Page)

- 24 -

J-A30012-25

____________________________________________

In Boyle, the plaintiff underwent right knee replacement surgery at Einstein

Medical Center in Montgomery County (Einstein). The day after surgery, the

plaintiff fell when she used the bathroom in her recovery room, having been

left unassisted by a physical therapist. Id. As a result of the fall, plaintiff’s

surgical wound opened “all the way down to the implants [and caused] a

significant tear or rupture of plaintiff’s patellar tendon and medial and lateral

retinaculum.” 227 A.3d at *2. Plaintiff was placed in a locked, hinged knee

brace for six weeks to allow the tendon to heal. Id.

Plaintiff sued Einstein for negligence, contending that the physical therapist

was negligent (i.e., breached the standard of care) for not taking plaintiff back

to her bed to use a bedpan, but, instead, taking her to a bathroom that was

not equipped with a toilet she could use, failing to summon a same-sex staff

member to assist plaintiff in the bathroom, and instructing her to use a

bedpan while standing alone and unassisted. At trial, the plaintiff’s claim of

negligence focused on whether Einstein’s physical therapist breached the

relevant standard of care. While the parties did not dispute how the plaintiff

injured herself—falling after she lost her grip on her walker while standing and

trying to use a bedpan in a bathroom—the parties disagreed on the “precise

nature of the [plaintiff and physical therapist’s verbal exchange] with one

another” in the recovery room bathroom just before the fall.

While Einstein stated that it did not “concede” any of the elements of

negligence, the facts clearly bore out that duty and breach were “hotly”

contested at trial. Moreover, the extent of plaintiff’s injuries, complicated by

her past medical history, was also contested. The jury was instructed that the

parties had agreed that plaintiff suffered some injury and that “if you find that

the defendant was negligent, you must award the plaintiff some damages for

those injuries that were sustained as a result of the defendant’s negligence.”

Id. at *3. However, the jury also found that Einstein’s negligence was not a

factual cause of the plaintiff’s injuries and awarded no damages. Id.

Ultimately, the trial court concluded that “factual causation” was not

reasonably disputed by the parties and, thus, a new trial on damages was

required where the jury’s verdict was against the weight of the evidence. On

appeal, our Court focused on the testimony of one of Einstein’s experts to

conclude that liability had been fairly determined in the case. Specifically, our

Court found that Einstein “did not reasonably challenge causation at trial”

where Einstein’s own medical expert established that plaintiff’s fall resulted in

some injury, requiring emergency surgery.

(Footnote Continued Next Page)

- 25 -

J-A30012-25

have been “fairly determined” or “free from doubt” to grant new trial limited

to damages). While the jury may have believed that Premier breached its

duty of care (i.e., it was negligent), Busanic still had the burden of establishing

that Premier’s conduct proximately caused actual harm to him. See Martin,

711 A.2d at 502 (citation omitted). By granting a new trial on damages, the

trial court inappropriately invaded the province of the jury where none of

Busanic’s experts testified that Premier’s negligence (breach of duty) actually

caused Busanic’s injuries. See Kravinsky v. Glover, 369 A.2d 1349, 1356

(Pa. Super. 1979) (“Expert testimony is admissible when, taken in its

entirety, it expresses reasonable certainty that the accident was a substantial

factor in bringing about the injury.”) (emphasis in original) (citation omitted).

Indeed, Busanic, himself, testified he did not know “how or why” the accident

happened.

Plaintiff’s expert, Dr. Park, an expert in ophthalmology, testified about

the injury Busanic sustained to his right eye as a result of the TheraBand

accident. Specifically, in his deposition, Dr. Park discussed the physical

injuries Busanic sustained, the fact that the injuries were caused by a

____________________________________________

Notably, in Boyle, our Court recognized that “[t]he trial court did not hold

that Einstein conceded the issue of causation.” Id. at *14. By contrast, in

the instant matter the trial court specifically granted a new trial based on the

reason that it found Premier did not contest causation. See Trial Court

Memorandum Opinion, 3/6/25, at 1 (emphasis added); see also Morrison,

supra (appellate court must confine review to reasons trial court gave for

ordering new trial). Moreover, unlike the facts in Boyle where there was no

reasonable dispute by the parties of “the causative link between Ms. Boyle’s

injuries and her fall,” here, Premier never admitted that there was any link

between Premier’s actions and Busanic’s injuries. See id. at *14-15.

- 26 -

J-A30012-25

malfunction of the TheraBand, the numerous medical and surgical treatments

Busanic underwent to repair his eye, Dr. Park’s opinion that Busanic will not

regain full functional vision in his right eye, and the need for follow-up care

for the foreseeable future. See N.T. Jury Trial, 10/29/24, at 88 (on cross-

examination of Busanic, defense counsel referencing Dr. Park’s expert report

that stated, “It’s my opinion expressed to a reasonable degree of medical

certainty that all of the injuries to the eye . . . were due to impact caused by

the malfunctioned resistance band.”).

Plaintiff’s expert, Christian Mongrain, an expert in physical therapy,

testified primarily on how Premier allegedly violated its standard of care by

not ensuring that Busanic was adequately supervised by qualified staff (not

an aide) when performing his exercises on the date of the accident. See N.T.

Jury Trial, 10/30/24, at 89-92. See also Expert Report by Christian Mongrain,

12/22/22, at 14 (stating “Busanic was injured because the physical therapy

staff failed to ensure that he used the TheraBand in a manner that was

consistent with the standard of care”); id. at 4 (causation section of

Mongrain’s report stating Premier’s “abandonment of duties . . . created a

dangerous condition that caused or contributed to his compromised health,

safety, and well-being”); id. at 14 (“actions or inactions of Premier . . .

violated the standard of care for physical therapy and created a dangerous

condition that caused [] Busanic’s eye injury”); id. (“Had [] Busanic been

provided with the skilled therapy services that he was charged for . . . he

more likely than not would have completed the exercises without injury.”)

- 27 -

J-A30012-25

(emphasis added). But see Eaddy v. Hamathy, 694 A.2d 639, 642 (Pa.

Super. 1997) (plaintiff’s expert fails standard of certainty if he testifies “that

the alleged cause ‘possibly[,’] or ‘could have’ led to the result, that it ‘could

very properly account’ for the result, or even that it was ‘very highly probable’

that is caused the result”).

On the other hand, Premier’s expert defended the case by arguing that

“at all times [Premier] compl[ied] with the standard of care in the treatment

of Busanic” and opined in her expert report, which was entered into evidence,

that “the events of 7/31/18 were an unfortunate accident.” N.T. Jury Trial,

10/31/24, at 102; Report of Sandra L. Campbell, PT, PhD. MBA, 3/7/23, at 4,

111.18 See also N.T. Jury Trial, 10/30/24, at 164 (Premier physical therapy

assistant Smith testifying she scans gym at all times to make sure patients

doing exercises correctly with aides, it is common practice in therapy practices

that aides follow patients as they do exercises, and that “it was unfortunate

what happened to [Busanic]”). Doctor Campbell testified that, “to a

reasonable degree of professional certainty,” she believed that this was a “bad

outcome [that] happen[ed] without somebody being negligent.” Id.,

10/31/24, at 101, 123-24. Moreover, on re-cross examination, Doctor

Mongrain, plaintiff’s expert, also agreed that “in physical therapy you can have

bad outcomes without negligence.” Id., 10/30/24, at 109-10.

____________________________________________

18Additionally, no one testified that the aide placed the band on Busanic

improperly prior to the accident.

- 28 -

J-A30012-25

In cases where both parties’ experts do not agree that the defendant’s

negligence was the actual cause in bringing about the harm to plaintiff, the

issue of factual cause must go before a jury. Straw v. Fair, 187 A.3d 966

(Pa. Super. 2018). Here, the jury was properly tasked with determining that

issue. See First v. Zem Zem Temple, 686 A.2d 18, 21 n.2 (Pa. Super. 1996)

(In Pennsylvania, a negligent act is a cause-in-fact of the plaintiff’s injuries “if

the harmful result would not have come about but for the negligent

conduct.”); see also Eckroth, supra at 427 (“Even with proof of both breach

of duty as prescribed under statute and the occurrence of injury . . . [Plaintiffs]

were still obligated to show the two were linked by causation [which included]

a demonstration that the breach of duty was both the proximate cause and

actual cause of injury[.]”) (citations omitted) (emphasis added). Even

though defense counsel did not argue contributory negligence, the jury was

free to infer that, based on the evidence, other factors may have caused

Busanic’s accident. See Daniel, supra; Koziar, supra.

Because the jury’s verdict was not so contrary to the evidence to shock

one’s sense of justice, the trial court abused its discretion in granting a new

trial. See Thompson v. City of Philadelphia, 493 A.2d 669 (Pa. 1985). In

so finding, we acknowledge that the trial court’s decision to grant a new trial

on weight of the evidence grounds is “[o]ne of the least assailable” by an

appellate court. Fazio, supra. However, we also recognize that the “narrowly

circumscribed” power to grant a new trial is only permitted where the judicial

conscience is actually “shocked,” and not merely disappointed or

- 29 -

J-A30012-25

uncomfortable. Criswell, supra at 512-13 (power to grant new trial narrowly

circumscribed “because of the obvious tension between the broad, settled,

exclusive role of the fact-finder in assessing credibility and the limited power

of trial judges . . . to overturn those assessments”).

Order vacated. Case remanded for reinstatement of the jury verdict.

Jurisdiction relinquished.

Date: 4/28/2026

- 30 -