concluding that -5- J-A23032-19 the trial court properly declined to grant a mistrial after plaintiff’s counsel, referring to a drawing of a triangle with a horizontal line drawn through it, argued to the jury that plaintiff’s medical expenses were only the “tip of the iceberg,” and her non-economic damages remained below the horizontal “water line,” because the statement did not suggest a specific sum
How later courts described this case
- concluding that -5- J-A23032-19 the trial court properly declined to grant a mistrial after plaintiff’s counsel, referring to a drawing of a triangle with a horizontal line drawn through it, argued to the jury that plaintiff’s medical expenses were only the “tip of the iceberg,” and her non-economic damages remained below the horizontal “water line,” because the statement did not suggest a specific sum
- stating that “[w]here evidence which would properly be part of a case is within the control of the party in whose interest it would naturally be to produce it, and, without satisfactory explanation he fails to do so,” an inference that it was unfavorable to the party may be drawn
- explaining that a jury may infer that evidence would disfavor a party “[w]here [it] would properly be part of a case, [it] is within the control of the party whose interest it would naturally be to produce it, and, without satisfactory explanation he fails to do so[.]”
- stating that “[w]hile it may be that further expenses were incurred by Yale, they were not satisfactorily shown at trial by either Uku’s testimony or [the Appellants’] documentary evidence.”
Written by the judges who cited it.
Distinguished
Distinguished by Nelson, D. v. Airco Welders Supply, 107 A.3d 146 (2014)
However, based upon the record before us, Clark is distinguishable.
The opinion
SCHILLER, Judge,
dissenting.
I agree with the Majority that the plain language of the joint tortfeasor’s release limited plaintiffs recovery to $200,000.00 per non-settling defendant. However, I respectfully disagree with the conclusion that “none of the (Buttermore) exceptions is apparent here,” op. p. 207, and on that basis I would remand this case to the Court of Common Pleas for further proceedings.
In Buttermore v. Aliquippa Hospital, 522 Pa. 325 , 561 A.2d 733 (1989), the Supreme Court summarized the law on releases and cogently described the sometimes harsh reality of entering into one, to wit:
*208 However improvident their agreement may be or subsequently prove for either party, their agreement, absent fraud, accident or mutual mistake, is the law of their case.
Id. at 328-29 , 561 A.2d at 735 . Here, where you have non-settling defendants seeking the advantage of an agreement which specifically sought to preserve rights against them, and where that agreement conveys tremendous benefits to those defendants, for which they neither negotiated nor rendered consideration, one could conclude that there was an “accident.” Moreover, this record, as well as the trial court’s opinion, raises at least the spectre of a “mutual mistake” between the signatories to the joint tortfeasors’ release; for it is clear from appellee’s argument that the language as it was written was not reflective of appellee’s understanding. The unanswered question then is what was the CAT Fund’s understanding when it included this language in the agreement. I would remand this case to the Court of Common Pleas for a factual finding on these issues.