Steltz, C. v. Meyers M.D., W., Aplts.

[J-51-2021]

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

CRAIG STELTZ, : No. 10 EAP 2021

:

Appellee : Appeal from the Judgment of

: Superior Court entered on April 14,

: 2020 at No. 179 EDA 2019

v. : (reargument denied June 18, 2020)

: affirming the Order entered on

: December 12, 2018 in the Court of

WILLIAM C. MEYERS, M.D.; VINCERA : Common Pleas, Philadelphia

CORE INSTITUTE AND VINCERA : County, Civil Division at No. 01720

INSTITUTE, : March Term 2016.

:

Appellants : ARGUED: September 21, 2021

OPINION

JUSTICE MUNDY DECIDED: December 22, 2021

We granted allowance of appeal to consider whether the Superior Court erred in

affirming the trial court’s award of a new trial. Because we conclude that the trial court

did not abuse its discretion in denying a mistrial based on a single, unanswered question

proposed to an expert witness, that decision alone cannot later serve as the basis for

granting a new trial. Accordingly, we reverse the order of the Superior Court and remand

for further proceedings.

I. FACTUAL AND PROCEDURAL HISTORY

In 2016, Craig Steltz filed this medical malpractice action against Dr. William

Meyers, Vincera Core Institute, and Vincera Institute (collectively Appellants). On May 1,

2014, Dr. Meyers performed surgery to repair Steltz’s athletic pubalgia. 1 That surgery is

not the basis of the alleged malpractice. Instead, while rehabilitating from that surgery,

Steltz, who was a player for the Chicago Bears of the National Football League, felt a pop

in his right leg on June 19, 2014. This led him to return to Dr. Meyers on June 30, 2014,

after the Chicago Bears’ team physicians performed a magnetic resonance imaging (MRI)

on June 27, 2014. At the June 30th follow-up appointment, Dr. Meyers also performed

an MRI on Steltz, discussed the MRI with Dr. Adam Zoga, a musculoskeletal radiologist,

and concluded Steltz had scar tissue breakup, a normal postoperative finding, and not a

new injury to his adductor muscle. However, Dr. Paul Read, a second musculoskeletal

radiologist, also independently reviewed the June 30th MRI shortly after the June 30th

appointment and issued a report concluding the MRI showed a complete tear of the

adductor tendon. Based on these conflicting interpretations of the June 30th MRI, Steltz

alleged Dr. Meyers was negligent in failing to diagnose and disclose the existence of the

tear as reported by Dr. Read.

The case proceeded to a two-week jury trial, from July 31, 2018 to August 13,

2018. Steltz presented Dr. Read as a fact witness, who testified that on July 3, 2014, Dr.

Zombor Zoltani, a resident, authored the primary report interpreting the June 30th MRI as

showing a complete tear, with which Dr. Read agreed and approved in his capacity as

the attending radiologist. N.T., 7/31/18, a.m. session, at 61-62; 7/31/18, p.m. session, at

13-14. At the time he interpreted the June 30th MRI, Dr. Read was unaware that Dr.

Meyers and Dr. Zoga had previously interpreted it as scar tissue breakup. N.T., 7/31/18,

p.m. session, at 13. At trial, Dr. Read substantially affirmed the conclusion of his report,

with the exception that he would classify the injury not as a “tear” but as a complete

1Athletic pubalgia is an injury to the muscles and tendons of the abdomen and leg that

attach to the pubic bone. It has been commonly referred to as a “sports hernia.”

[J-51-2021] - 2

“discontinuity” of the common adductor tendon origin because “tear” connotes trauma,

and he was not certain the injury was traumatic. Id. at 22-23.

Steltz also presented Dr. Meyers, as if on cross examination, as part of his case-

in-chief. Dr. Meyers testified that he had interpreted the June 30th MRI with Dr. Zoga,

and he had concluded that Steltz “absolutely did not have a new injury to his adductor

muscle. He had scar breakup.” Id. at 50, 66. Dr. Meyers acknowledged that Dr. Zoga

did not issue a report of his read of the June 30th MRI. Id. at 49. Further, Dr. Meyers

stated that he did not see Dr. Read’s report “until much later,” when Steltz requested his

medical records, and he told Steltz that Dr. Read’s report was not correct. Id. at 51, 56.

As additional medical expert witnesses, Steltz presented Dr. David Treen and Dr.

Benton Emblom. Dr. Treen was qualified as an expert “in the area of sports hernia and

athletic pubalgia.” N.T., 8/1/18, a.m. session, at 28. Dr. Treen testified that, as a general

surgeon, he does not interpret MRIs and relies on radiologists’ interpretations. Id. at 22.

As he does not interpret MRIs, he stated that he could not resolve the conflicting

interpretations of Steltz’s MRIs. Id. at 92-93. Instead, based on his August 16, 2016

visual inspection of Steltz, Dr. Treen opined that “it looked as though the muscle had torn

away from the pelvis,” and it “would not be a salvageable reconstruction” at that time but

it was “more probable than not” that it could have been repaired closer to the time of the

injury, two years earlier. Id. at 56, 60-61. Dr. Treen also opined that it was below the

standard of care to not disclose the results of the June 30th MRI, assuming it showed a

complete tear of the adductor longus muscle, to Steltz. Id. at 62. Likewise, Steltz

presented the videotaped deposition of Dr. Benton Emblom, an orthopedic surgeon,

whose expert opinion, based on a September 2014 physical examination, was that Steltz

had a torn adductor muscle that was surgically unsalvageable and required physical

rehabilitation. N.T., 8/2/18, a.m. session, at 40-41; N.T., 8/2/18, p.m. session, at 83-84.

[J-51-2021] - 3

After presenting other witnesses not relevant to the issue in this appeal, Steltz rested his

case-in-chief. N.T., 8/6/18, p.m. session, at 27. Notably, Steltz did not present an expert

in radiology to support Dr. Read’s interpretation of the June 30th MRI and did not attempt

to present Dr. Read as an expert.

Appellants began their case by presenting Dr. Jana Crain, a musculoskeletal

radiologist whose practice involved reading MRIs for multiple professional, college, and

amateur sports teams. N.T., 8/6/18, p.m. session, at 39-40. On cross examination of her

voir dire, Steltz’s counsel inquired as to the number of radiologists in the United States

whose subspecialty was musculoskeletal radiology, to which Dr. Crain responded that

she did not know. Id. at 44 (asking “how many radiologists are there in the United States

that are musculoskeletal radiologists?” and how many radiologists are members of the

society of musculoskeletal radiologists). Further, Steltz’s counsel established that there

is not a board certification for the subspecialty of musculoskeletal radiology, which is

essentially a self-declared specialty. Id. at 46. Following voir dire, the trial court accepted

Dr. Crain as an expert in musculoskeletal radiology. Id. at 52. Dr. Crain testified that,

based on her review of the June 30th MRI in conjunction with Dr. Meyers’ operative report,

she disagreed with Dr. Read’s report that there was a complete tear of the common

adductor tendon origin. Id. at 64. Instead, her opinion was that the June 30th MRI was

consistent with Dr. Meyers’ postoperative report and showed “either the post[-]op release

area hasn’t healed or he’s torn some scar tissue in this area of post[-]op release.” Id. at

66.

Appellants next presented Dr. Zoga as a fact and expert witness. N.T., 8/7/18,

a.m. session, at 43. During voir dire, Dr. Zoga explained that in 2005-2006 he had worked

with colleagues, including Dr. Meyers, to develop an MRI imaging protocol for

musculoskeletal groin injuries. Id. at 11-12. Further, he studied postoperative MRI cases

[J-51-2021] - 4

and “realized that some of the MRI findings in the postoperative patient that most of us

[radiologists] who didn’t know any better would think are new injuries actually are

expected. They’re just a result of the surgery.” Id. at 24. During Steltz’s counsel’s cross-

examination of Dr. Zoga on voir dire, he elicited testimony from Dr. Zoga regarding Dr.

Read’s qualifications, specifically that Dr. Read is a musculoskeletal radiologist in Dr.

Zoga’s division at Thomas Jefferson University, that Dr. Read is a board-certified

radiologist who had completed a fellowship in musculoskeletal radiology, and that Dr.

Read continues to read MRIs and report on them. Id. at 35-37. Further, in response to

Steltz’s counsel’s questioning about Dr. Read’s continued employment, Dr. Zoga stated

that although he did not have the ability to terminate other employees, he did not believe

Dr. Read should be fired for misreading Steltz’s June 30th MRI. Id. at 35. Dr. Zoga

acknowledged that Dr. Read’s report regarding the June 30th MRI was still part of the

medical record and that no addendum or correction had been issued. Id. at 44.

Ultimately, the trial court accepted Dr. Zoga as an expert in musculoskeletal radiology.

Id. at 47.

Appellants’ counsel’s first line of questioning to Dr. Zoga on direct examination,

which follows in its entirety, precipitated this appeal:

[Appellants’ counsel]: Dr. Zoga, how many musculoskeletal

radiologists did you say there are in this country?

[Dr. Zoga]: I can only guess based on the membership of the

Society of Skeletal Radiology. I did check yesterday. I believe

the membership of the Society of Skeletal Radiology, which

means radiologists who have to spend at least 50 percent of

their clinical effort in the musculoskeletal arena, is about 950.

I’m sure there are some others. I don’t even know how to

guess that.

[Appellants’ counsel]: So 950 nationwide that spend about at

least 50 percent of their time reviewing musculoskeletal

images, that’s what you just told us?

[J-51-2021] - 5

[Dr. Zoga]: That’s correct.

[Appellants’ counsel]: So if you were to lump them altogether,

those who spend 50 percent of their time and those like Dr.

Read who spend only 5 to 10 percent of their time, how many

musculoskeletal radiologists do you think there are in this

country ballpark?

[Dr. Zoga]: So if the definition is radiologists who interpret

musculoskeletal imaging, it has to be five thousand.

[Appellants’ counsel]: Five thousand. Five thousand of those

radiologists and plaintiff couldn’t find one of them to come into

this courtroom to support Dr. Read, did you know that?

[Steltz’s counsel]: Your Honor --

[Appellants’ counsel]: Not one, couldn’t find one?

[Steltz’s counsel]: Your Honor, I object and I make a motion.

N.T., 8/7/18, a.m. session, at 47-49.

The trial court sustained the objection, and Steltz’s counsel requested a curative

instruction and made a motion for sanctions. Id. at 49. After Steltz’s counsel indicated

he wanted to make a motion at sidebar, the trial court dismissed the jury from the

courtroom. Id. Once the jury left the courtroom, Steltz’s counsel moved for a mistrial. Id.

at 50. The trial court denied the motion for a mistrial and recessed for lunch. When the

jury returned, the trial court immediately issued the following curative instruction:

When we were last here, there was an exchange

between the counsel and I just wanted to state, as I stated at

the beginning of the trial, that the statements and arguments

made by counsel do not constitute evidence. They are not the

facts. Evidence includes any testimony of witnesses,

documents, and other exhibits submitted during the trial

constitute facts and I just ask that you understand that

particular principle, as you evaluate the evidence, okay.

So the parties or counsel have agreed to proceed in a

civil fashion. So we’ll continue. Thank you.

N.T., 8/7/18, p.m. session, at 4-5. Steltz did not object to this curative instruction. Id.

[J-51-2021] - 6

Dr. Zoga proceeded to testify that the June 27th MRI and the June 30th MRI both

showed that the surgical repair was intact, and healing as expected. Id. at 10-12, 22

(explaining the June 30th MRI was “completely commensurate with the accepted eight to

nine week postoperative repair”). He disagreed with Dr. Read’s report that the June 30th

MRI showed a complete tear, surmising that Dr. Read “simply misidentified the tissue

response to [surgical] adductor decompression as a common adductor tear” due to Dr.

Read’s lack of familiarity with reading postoperative MRIs. Id. at 25-26. Dr. Meyers also

testified again as a fact witness, consistent with his prior testimony.

After Appellants rested their case, the trial court permitted Steltz to put on rebuttal

evidence, initially limited to testimony, but later expanded to include the demonstrative

evidence of Steltz displaying his injured leg to the jury. N.T., 8/10/18, a.m. session, at 40,

52. During his rebuttal, Steltz did not seek to introduce any additional expert testimony.

In his closing statement, Steltz’s counsel argued that Dr. Meyers’ was negligent

both in his “certainty about an injury that was interpreted completely differently” and in his

failure to disclose the evidence of a tear to Steltz and his employer, the Chicago Bears

organization. N.T., 8/10/18, p.m. session, at 17. In contrast, Appellants’ counsel

emphasized in his closing statement that Steltz did not present an expert to support Dr.

Read’s interpretation of the MRI as showing a complete tear and instead the jury “heard

from musculoskeletal radiologists that there was no tear and that there was no retraction.”

Id. at 33. Further, Appellants’ counsel asserted that Steltz “didn’t bring anybody in to

dispute [Dr. Crain and Dr. Zoga] because they can’t.” Id. at 36; see also id. at 52 (asking

“[w]hy wouldn’t they come in and hire a radiologist to tell us, yeah, I looked at those

images and Dr. Read is correct[?]”). Steltz’s counsel did not object to any of these

statements. Instead, in rebuttal, Steltz’s counsel reiterated that Dr. Read was a board-

certified radiologist with a focus in musculoskeletal radiology. Id. at 57.

[J-51-2021] - 7

The jury returned a verdict for Appellants. N.T., 8/13/18, a.m. session, at 42-44.

Thereafter, Steltz filed a timely post-trial motion asserting that the trial court erred in

denying his motion for a mistrial because the effect of Appellants’ counsel’s question to

Dr. Zoga was so prejudicial that no jury instruction could adequately cure the prejudice.

Upon further review of the issue, the trial court agreed with Steltz, concluding

“[t]here was no curative instruction this [c]ourt could have delivered to the jury to fix the

harm caused by [Appellants’] counsel’s egregious statement that not one musculoskeletal

radiologist among the 5,000 who practice in the United States could be found to support

[Dr. Read’s] reading of the MRI.” Trial Ct. Op., 12/12/18, at 6-7 (relying on, inter alia,

Siegal v. Stefanyszyn, 718 A.2d 1274 (Pa. Super. 1998)). It further explained that this

question was “improper at its core,” as follows:

There was no purpose to [Appellants’] questions to Dr. Zoga

but to prejudice the jury. First, [Appellants] knew . . . it would

be impossible and wholly improper for Dr. Zoga to answer this

leading question in his capacity as an expert witness; it is

obvious Dr. Zoga is not privy to . . . [Steltz’s] trial preparations.

Second, [Appellants] were on notice that [Steltz] had retained

[Jaime] Checkoff, M.D. as a musculoskeletal radiology expert

because he was listed as a potential expert witness in

[Steltz’s] pre-trial memorandum . . . and a copy of his report

was appended to the same.3 [Steltz’s] counsel also

mentioned that he intended to call as a witness ‘a radiologist

. . . who is a consultant to the [San Francisco] 49ers’ in his

opening statement,[2] although [Steltz] ended up not calling

this witness. Third, the question was a roundabout way to use

Dr. Zoga as a prop for counsel to opine on the credibility of

[Steltz’s] evidence, which neither counsel nor experts are

permitted to do. Finally, it was inappropriate for [Appellants’]

2 We note that while the trial court attributed this statement to Steltz’s counsel, Steltz’s

counsel’s opening statement did not mention any experts in radiology who would testify

in support of Dr. Read. N.T., 7/31/18, a.m. session, at 16-31. Instead, it was Appellants’

counsel who indicated that he intended to call a radiologist who consulted with the San

Francisco 49ers and other teams. Id. at 43. This was a reference to Dr. Crain, who

testified at trial.

[J-51-2021] - 8

counsel to question a witness about [Steltz’s] trial strategy or

failure to produce a witness.

3 Thesubstance of Dr. Checkoff’s report indicates that

he had reviewed the same MRIs that Dr. Read had and

he concurred with Dr. Read’s conclusions.

***

[Appellants’ counsel] had to know he was implying something

not really true and practically unverifiable . . . and [the

question] was staged perfectly. The odds were good that any

such ‘question’ . . . would be objected to and addressed by

the court in dramatic fashion, thus reinforcing [Appellants’]

message in the minds of the jurors.

Trial Ct. Op., 12/12/18, at 10-12 (citation omitted). Additionally, the trial court concluded

the question was prejudicial as it “had the potential to taint the jury’s perceptions of the

case by insinuating that no musculoskeletal radiologist out of 5,000 could be found to

testify in support of [Dr. Read’s] reading of the MRI, which [Appellants] had no right to

present as a truth.” Id. at 12. As such, the trial court granted Steltz’s request for a new

trial.

The Superior Court affirmed in a divided, unpublished memorandum decision. On

appeal, Appellants contended that “the trial court erred in granting a new trial based upon

a single unanswered question . . . where the question did not raise an improper subject

and it . . . was not so prejudicial that it justified overturning a ten-day jury trial[.]” Steltz v.

Meyers, 2020 WL 1867021, at *2 (Pa. Super. Apr. 14, 2020). The majority noted the

standard that a trial court must follow in deciding a motion for a new trial involves a two-

step inquiry, in which a trial court must first determine if it made a mistake, and if so,

whether the mistake prejudiced the moving party. Id. If the appellate court agrees that a

mistake occurred, it must then determine if the trial court abused its discretion in granting

a new trial or if the record supports the trial court’s reasoning and factual basis. Id. (relying

on Ferguson v. Morton, 84 A.3d 715, 719-20 (Pa. Super. 2013)). When trial counsel’s

comments are the basis for a new trial, the Superior Court noted that a court must

[J-51-2021] - 9

examine the circumstances of counsel’s statements and the precaution the trial court took

to avoid prejudice. Id. at *3. Although a trial court has a duty to cure the harm, “there are

certain instances where the comments of counsel are so offensive or egregious that no

curative instruction can adequately obliterate the taint.” Id. (quoting Siegal, 718 A.2d at

1277). Specifically, the court recounted that counsel cannot comment on evidence in an

attempt to remove the issue of credibility from the jury, counsel cannot present facts that

are not in evidence, and counsel cannot appeal to the jury’s passion and prejudice. Id.

Applying the two-part standard for a new trial, the Superior Court first concluded

Appellants’ counsel’s question was improper. To reach this conclusion, the Superior

Court primarily relied on Appellants’ counsel’s use of the phrase “couldn’t find,” which the

court reasoned was “quite different from saying Steltz did not find another radiologist

who would agree with Dr. Read.” Id. at *5 (emphasis in original). The Superior Court

explained that Dr. Read’s report was supported by Dr. Checkoff, “a board certified

radiologist [who] was listed as a potential expert witness in Steltz’s pre-trial

memorandum.” Id. The Superior Court explained that Dr. Checkoff’s review of the June

30th MRI concluded that it showed “a partial tear of the right adductor longus muscle[.]”

Id. (quoting Steltz’s Pretrial Memorandum, 2/15/18, at Ex. A, “Jaime Checkoff, MD” letter).

Because Appellants’ counsel received Steltz’s pretrial memorandum with Dr. Checkoff’s

letter, the court reasoned that Appellants had notice that Steltz actually had found a

radiologist who supported Dr. Read’s report. Id. As Appellants’ counsel knew that Steltz

had found an expert witness, but nonetheless suggested Steltz could not find one, the

Superior Court analogized this case to Siegel. Id.

In Siegel, the trial court granted defendants’ motion in limine to preclude plaintiff’s

medical fact witness from testifying as an expert regarding whether defendant’s treatment

fell below the standard of care. Yet, during closing argument, defense counsel asked the

[J-51-2021] - 10

jury, “[d]o you think if [plaintiff’s medical fact witness] really felt that [defendant] had done

something wrong that [plaintiff] would have let him walk out of this court room without

saying so? The answer is no.” Siegal, 718 A.2d at 1276. The Siegal Court determined

such statement warranted a new trial, as it was “clearly improper,” and “conveyed to the

jury something that counsel knew to be untrue.” Id. at 1277. Thus, because the Superior

Court concluded the record here similarly supported the trial court’s conclusion that

Appellants’ counsel’s statement to Dr. Zoga was improper, in that Appellants’ counsel

knew his statement to be untrue, the majority determined the trial court did not abuse its

discretion in determining that it had erred in denying the motion for a mistrial.

Having concluded a mistake occurred, the Superior Court proceeded to determine

that the trial court did not abuse its discretion in finding Steltz was prejudiced by

Appellants’ counsel’s question to Dr. Zoga. The court again noted that Appellants’

counsel knew his inclusion of the phrase “couldn’t find” was misleading and untrue. It

also concluded that Appellants’ counsel pursued this line of questioning in an attempt to

remove the issue of Dr. Read’s credibility from the jury, and counsel was not free to take

liberties with or misconstrue the evidence for the jury. Steltz, 2020 WL 1867021, at *6

(citing Ferguson, 84 A.3d at 723; Young v. Washington Hosp., 761 A.2d 559, 561 (Pa.

Super. 2000)). Lastly, the majority determined the curative instruction was inadequate,

as it only generally informed the jury that counsel’s statements and arguments were not

evidence, but did not specifically address the fact that Steltz had found an expert to

support Dr. Read’s findings. Id. (citing Siegal, 718 A.2d at 1277 (finding curative

instruction was not sufficient to cure harm because it did not convey what was true to the

jury)). The majority therefore concluded the trial court did not abuse its discretion in

granting Steltz a new trial.

[J-51-2021] - 11

Judge Bowes authored a dissent, recognizing that while the standard of review is

deferential, “this case presents that rare circumstance in which the trial court has abused

its discretion.” Id. at *7 (Bowes, J., dissenting). She concluded “the trial court and the

[m]ajority . . . mischaracterized the context of the question posed by [Appellants’] counsel

and overstated the existence of prejudice.” Id. First, Judge Bowes disagreed that a

mistake occurred at trial because Appellants’ counsel’s question was not improper. Id. at

*11. She reasoned that Steltz undisputedly did not present any expert testimony from a

musculoskeletal radiologist to corroborate Dr. Read’s analysis. Id. Thus, Judge Bowes

found Siegal inapposite, stating “[b]y focusing solely upon the verb utilized by defense

counsel to the exclusion of all other substance, the [m]ajority has mischaracterized the

basic import of counsel’s question . . . . [C]ounsel’s statement betrayed no

misrepresentation, but drew valid attention to the indisputable fact that [ ] Steltz had not

presented expert testimony regarding the correctness of Dr. Read’s interpretation[.]” Id.

Thus, the facts that Steltz did not present an expert to support Dr. Read’s reading and

there were approximately 5,000 musculoskeletal radiologists potentially available to

testify were facts of record within the jury’s knowledge. Id. at *12. As a result, Judge

Bowes concluded the record did not support the factual and legal assessments rendered

by the trial court and majority.

Additionally, Judge Bowes opined that the majority failed to view the entirety of the

circumstances surrounding the line of questioning, in that immediately prior to Appellants’

counsel’s question, Steltz’s counsel had just “finished attacking Dr. Zoga’s credibility, as

bolstering Dr. Read’s interpretation of the . . . MRI, over numerous sustained objections.”

Id. Thus, under the fair response doctrine, “[c]ounsel’s remarks d[id] not constitute

reversible error where they [were] ‘a reasonable response . . . to trial counsel’s attack on

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the witness’ credibility.’” Id. (quoting Commonwealth v. Hanible, 30 A.3d 426, 470 (Pa.

2011)).

Although her conclusion that the question was not inappropriate would end her

analysis, she proceeded to address the majority’s analysis of the prejudice prong. Id.

Judge Bowes concluded the majority’s finding of prejudice was not supported by the

record because such finding heavily relied on the majority’s “presumption that defense

counsel somehow took ‘liberties’ with the facts.” Id. at *13 (citing, inter alia, Ferguson, 84

A.3d at 723; Young, 761 A.2d at 561). She further emphasized that the single question

did not undermine the confidence in the trial as a whole because (1) counsel’s question

did not remove the issue of Dr. Read’s credibility from the jury, in that Steltz’s counsel

first raised the issue of Dr. Read’s credibility when cross-examining Dr. Zoga about his

qualifications as an expert; and (2) the curative jury instruction sufficiently mitigated any

potential prejudice because it directed the jury to “disregard the contents of defense

counsel’s question.” Id. at *17 (citing, inter alia, Ferguson, 84 A.3d at 725 (explaining jury

is presumed to obey court’s instruction)). Thus, Judge Bowes concluded the trial court

abused its discretion in granting a new trial.

II. ISSUE AND STANDARD OF REVIEW

This Court granted Appellants’ petition for allowance of appeal to address the

following issue:

Whether the Superior Court misapplied and fundamentally

altered Pennsylvania’s settled standard for prejudice caused

by statements or questions of trial counsel, which forbids a

new trial on a record like this, where defense counsel’s

question was based on the record, the trial court issued a

curative instruction, the jury was repeatedly instructed that

statements and questions of counsel are not evidence, and

the closing arguments of both counsel fully addressed the

subject matter of defense counsel’s question?

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Steltz v. Meyers, 249 A.3d 887 (Pa. 2021) (per curiam).

This Court’s standard of review over a trial court’s decision to grant or deny a new

trial is whether the trial court abused its discretion. Harman ex rel. Harman v. Borah, 756

A.2d 1116, 1122 (Pa. 2000). We engage in the same two-step analysis as the trial court:

first determining whether a mistake occurred and, if so, whether the trial court erred in

ruling on the request for a new trial. Id. at 1123. Our scope of review over the first prong

is governed by the trial court’s rationale. Id. at 1122. If the trial court identifies the specific

mistake or mistakes, our review is limited to its stated reason. Id. at 1123. Further, if the

mistake involved a discretionary act, we review for an abuse of discretion; however, if it

involved an error of law, we review for legal error. Id. “If there were no mistakes at trial,

the appellate court must reverse a decision by the trial court to grant a new trial because

the trial court cannot order a new trial where no error of law or abuse of discretion

occurred.” Id. If an appellate court agrees that a mistake occurred, it proceeds to the

second step and must determine whether the trial court abused its discretion in ruling on

the motion for a new trial. Id.

III. WHETHER A MISTAKE OCCURRED AT TRIAL

As our standard of review dictates, we proceed to apply the two-prong analysis to

determine whether the trial court erred in granting a new trial, first determining whether a

mistake occurred at trial. The parties disagree about whether a mistake occurred. We

note that our review is confined to the single mistake the trial court identified as the basis

for its decision to grant a new trial, which was that it mistakenly denied Steltz’s motion for

a mistrial based on Appellants’ counsel’s improper question. See Trial Ct. Pa.R.A.P.

1925(a) Op., 3/4/19, at 4 (clarifying “[w]e wish to take this opportunity to disabuse

[Appellants] of the notion that we might have relied on misconduct other than [Appellants’]

[J-51-2021] - 14

counsel’s improper question to Dr. Zoga in granting a new trial.”); Harman, 756 A.2d at

1123. Further, because the trial court’s denial of a mistrial was a discretionary act, we

review for an abuse of discretion. Harman, 756 A.2d at 1123; Commonwealth v. Rega,

933 A.2d 997, 1016 (Pa. 2017) (“the grant or denial of a mistrial will not be overturned

absent an abuse of discretion.”). Accordingly, we set forth the parties’ arguments on this

issue.

A. PARTIES’ ARGUMENTS

Appellants assert the question posed to Dr. Zoga was not improper. While

acknowledging that the question was “certainly grounded in advocacy,” they argue that it

did not misconstrue the evidence. Appellants’ Brief at 22. Holistically viewing the

question, which asked whether Dr. Zoga was aware that Steltz could not find an expert

to come into court to support Dr. Read, Appellants contend that “Dr. Zoga, the jury, and

everyone else knew as an absolute fact that [Steltz] had rested his case without calling

any radiology expert to support Dr. Read.” Id. at 23. Appellants criticize the Superior

Court for focusing on the verb counsel chose and argue that the question did not insinuate

that Steltz was generally unable to find or retain any radiologist to support Dr. Read. Id.

at 23-24. Instead, Appellants insist the question was limited to what had occurred at trial

in the courtroom. Id. at 24. Further, due to the question’s inherent focus on courtroom

activity, Appellants contend that Steltz’s pretrial memorandum and Dr. Checkoff’s report

are irrelevant. Id. (arguing Dr. Checkoff’s report was inadmissible hearsay).

Additionally, Appellants distinguish Siegal. Appellants maintain counsel did not

make an untruthful statement but asked a question after establishing the predicate facts

that 5,000 radiologists in the United States specialize in reading musculoskeletal MRIs,

and Steltz did not find one to testify at trial. Id. at 25. Appellants also note that the trial

court did not preclude Dr. Checkoff’s testimony, but “it was [Steltz’s] own choice not to

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call Dr. Checkoff or any other radiology expert in his case[-]in[-]chief, and the trial court

specifically permitted him to present rebuttal evidence, yet he still failed to call such an

expert.” Id. As such, Appellants stress that the question to Dr. Zoga “was a proper effort

to elicit criticism of a glaring deficiency in [Steltz’s] case, not an effort to remove Dr. Read’s

credibility from the jury.” Id. at 26; see also id. at 27 (noting that parties are generally

permitted to criticize each other for failing to call expert witnesses and citing Wilson v.

Consol. Dressed Beef Co., 145 A. 81, 85 (Pa. 1929), and Nazarak v. Waite, 216 A.3d

1093, 1112-13 (Pa. Super. 2019)).

Moreover, Appellants argue that even if the question was improper in isolation, it

was a fair response to Steltz’s perceived attack on Appellants’ experts. Appellants’ Brief

at 28. Appellants contend that during the voir dire of Dr. Crain, “[Steltz’s] counsel belittled

musculoskeletal radiology as a ‘self declare[d]’ specialty that has no board certification

and can be practiced by any of the thousands of radiologists who ‘think’ they are qualified

to read musculoskeletal imaging.” Id. Appellants claim that a fair response to that line of

questioning was to ask whether any of those thousands of radiologists had testified in

support of Dr. Read. Id. Appellants conclude that the trial court’s initial decision to deny

a mistrial was not a mistake, and we should reverse the subsequent decision to grant a

new trial. Id. at 31.

In contrast, Steltz argues Appellants’ counsel’s question to Dr. Zoga was not

merely acceptable legal advocacy because “[i]t went far beyond the record, and

incorporated various misleading, even untrue[,] insinuations[.]” Steltz’s Brief at 23. Steltz

maintains that the wording of the question implied that “Steltz had asked 5,000

radiologists (or a large number of them) to serve as an expert witness; that none of them

were willing to testify in support of Dr. Read’s case-important MRI interpretations; and

that Steltz had hidden this fact from the jury.” Id. Further, Steltz maintains that the only

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purpose of the question was to prejudice the jury because Dr. Zoga could not have had

the requisite knowledge to answer the question. Id. at 24. The insinuation that Steltz

could not find an expert to support Dr. Read was untrue, according to Steltz, because his

pretrial memorandum identified Dr. Checkoff as an expert who would testify at trial to

support Dr. Read. Id.; see also id. at 28-29 (contending Dr. Checkoff’s report was not

inadmissible hearsay because it was not offered for the truth of its contents but to show

Appellants had notice of an expert). As such, Steltz asserts that the question was not

based on record evidence and purposely misleading, and its only purpose was to

prejudice the jury. Id. at 25-26.

In support of his position, Steltz discusses Rice v. Hill, 172 A. 289 (Pa. 1934), a

personal injury case in which the plaintiff’s counsel stated that “[the defendants] had a

doctor in court and they didn’t call him to dispute [the testimony of the plaintiff’s treating

physician].” Rice, 172 A. at 290. This statement was false because the record did not

show that the defendants had any doctor in court or that any doctor had examined the

plaintiff and prepared an expert opinion. Id. Steltz analogizes this case to Rice and

Siegal, on the basis that Appellants’ counsel knew the question and its insinuations were

untrue and misleading but still pursued the question.

As an additional reason that the question was improper, Steltz argues it opined

negatively on Dr. Read’s credibility, as the trial court and Superior Court concluded.

Steltz’s Brief at 30. Because deciding witness credibility is exclusively the jury’s function,

Steltz maintains the question posed to Dr. Zoga was improper because it sought to elicit

expert testimony on the credibility of another witness. Id. at 31 (citing Commonwealth v.

Maconeghy, 171 A.3d 707, 712 (Pa. 2017) (stating that expert witnesses cannot comment

on witness credibility)). Accordingly, Steltz requests that we affirm the Superior Court.

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In their reply brief, Appellants emphasize that Steltz did not refute their argument

that the question was a fair response to Steltz’s counsel’s attacks on the specialty of

musculoskeletal radiology and on the credibility of Appellants’ experts. Appellants’ Reply

Brief at 1-2. Appellants also maintain that the question did not contain any of the

“insinuations” that Steltz attributed to the question because it did not suggest Steltz had

contacted any radiologists, had found or identified an expert, or had hid that from the jury.

Id. at 4. Instead, “[Appellants’] counsel’s question emphasized the notable fact that none

of the musculoskeletal radiologists whom [Steltz’s] counsel had demeaned as ‘self-

declared’ came into the courtroom to testify in support of Dr. Read.” Id. at 5.

Additionally, Appellants claim Rice undermines Steltz’s position because the

attorney in Rice made a false statement that an expert was in the courtroom and the

defendant did not call him, but Appellants did not make a false statement by noting that

no radiology expert testified to support Dr. Read. Id. at 6. Appellants continue that the

deceptive conduct in the cases upon which Steltz relies “is nothing like saying ‘couldn’t

find’ rather than ‘did not find,’ which is the sole basis on which the Superior Court affirmed

the award of a new trial.” Id. at 7.

Moreover, Appellants maintain that the question to Dr. Zoga was “certainly

intended to highlight the lack of expert support for Dr. Read’s interpretation of the MRI,

but it was not prohibited commentary on Dr. Read’s credibility.” Id. at 8. Instead,

Appellants claim the question addressed the lack of evidence, which is distinct from

attacking a witness’s credibility. Id. Because the question did not ask Dr. Zoga to

comment on whether Dr. Read was truthful, Appellants contend it did not suggest that Dr.

Zoga comment on Dr. Read’s credibility. Id. Instead, the question asked Dr. Zoga “to

comment on the lack of support for Dr. Read’s interpretation.” Id. at 9.

B. ANALYSIS

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To constitute a “mistake,” the trial court’s denial of Appellants’ motion for mistrial

must have been an abuse of its discretion. “An abuse of discretion is not merely an error

of judgment[.]” Paden v. Baker Concrete Const., Inc., 658 A.2d 341, 343 (Pa. 1995)

(quoting In re Milton Hershey Med. Ctr., 634 A.2d 159, 161 (Pa 1993)). An abuse of

discretion exists when the trial court has rendered a judgment that is manifestly

unreasonable, arbitrary, or capricious, has failed to apply the law, or was motivated by

partiality, prejudice, bias, or ill will.” Harman, 756 A.2d at 1123. “Whether a court abuses

its discretion in [denying a motion for a mistrial] because of improper remarks of counsel

must be determined by the circumstances under which the statement was made and by

the precautions taken by the court and counsel to prevent its having a prejudicial effect[.]”

Martin v. Phila. Suburban Transp. Co., 257 A.2d 535, 537 (Pa. 1969) (quoting McCune v.

Leamer, 119 A.2d 89, 90 (Pa. 1956)). It is well settled that juries are presumed to follow

the trial court’s instructions, including its curative instructions following an improper

question. See Commonwealth v. Simpson, 754 A.2d 1264, 1272 (Pa. 2000). “Generally,

in the absence of extraordinary circumstances, a prompt and effective curative instruction

which is directed to the damage done will suffice to cure any prejudice suffered by the

complaining party.” Mount Olivet Tabernacle Church v. Edwin L. Wiegand Division, 781

A.2d 1263, 1275 (Pa. Super. 2001) (internal quotation marks omitted), aff’d per curiam,

811 A.2d 565 (Pa. 2002).

Initially, we recount the circumstances under which Appellants’ counsel asked the

question to Dr. Zoga at issue. At that point, Steltz had rested his case-in-chief without

presenting an expert in radiology to verify Dr. Read’s interpretation of the June 30th MRI.

Further, the jury had heard: (1) the testimony of Appellants’ first expert witness, Dr. Crain,

an expert in radiology, that Dr. Read’s report was incorrect based on her review of the

June 30th MRI; (2) Steltz’s counsel’s attempt, during the cross examination of the voir

dire of Dr. Crain, to establish that musculoskeletal radiology was essentially a “self-

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declared” subspecialty and inquire as to the number of radiologists who interpret

musculoskeletal MRIs, a question Dr. Crain was unable the answer; and (3) the voir dire

of Dr. Zoga, a portion of which included Steltz’s counsel reinforcing Dr. Read’s

credentials. Immediately after Dr. Zoga was certified as an expert witness, Appellants’

counsel elicited testimony from Dr. Zoga that he knew there were approximately 5,000

radiologists in the country who interpreted musculoskeletal MRIs, to which Steltz’s

counsel did not object. It was at this time, with the foregoing foundations, that Appellants’

counsel asked the question “Five thousand. Five thousand of those radiologists and

[Steltz] couldn’t find one of them to come into this courtroom to support Dr. Read, did you

know that?” N.T., 8/7/18, a.m. session, at 48. Dr. Zoga never answered this question.

Id. at 48-49.3 After dismissing the jury, denying Steltz’s motion for a mistrial, and

recessing for lunch, the trial court immediately issued a curative instruction referring to

the “exchange between the counsel” and cautioning the jury that “the statements and

arguments made by counsel do not constitute evidence,” to which Steltz did not object.

N.T., 8/7/18, p.m. session, at 4-5.

The trial court and Superior Court did not consider these circumstances and

instead focused solely on the wording of the question, the objection to which had been

sustained. Moreover, the trial court and the Superior Court mischaracterized Appellants’

counsel’s question to Dr. Zoga as suggesting Steltz could not find any radiology expert to

support Dr. Read. Viewed as a whole, Appellants’ counsel’s question focused on Steltz’s

failure to present a radiology expert at trial to testify in support of Dr. Read. Thus, whether

Steltz had obtained an expert report or listed an expert as a potential witness in his pretrial

3The trial court, as noted, sustained an objection to the question. That the question was

objectionable in some aspects of its phrasing and relevance to the expertise of evidence

provided by the witness being addressed is not at issue. Rather it is the subsequent

motion for mistrial based on the question’s suggestion of a lack of expert evidence

presented in Steltz’s case-in-chief that formed the basis for the motion for a new trial.

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memorandum was outside the scope of the question Appellants’ counsel asked.

Appellants’ counsel was not commenting on Steltz’s pretrial preparations or

misrepresenting the fact that Steltz had notified Appellants he might present expert

testimony in support of Dr. Read. Instead, Appellants’ counsel’s question attempted to

highlight the fact that Steltz did not ultimately present such expert testimony, regardless

of whether he had retained an expert in preparation for trial.

Because the question did not attempt to convey something that was untrue, the

Superior Court’s reliance on Siegal was misplaced. As discussed above, the attorney in

Siegal commented on the lack of an expert opinion from a medical fact witness who the

trial court had precluded from testifying as an expert. Siegal, 718 A.2d at 1276. The

attorney’s commentary was improper because it conveyed something to the jury that the

attorney knew was untrue. Id. at 1277. However, in this case, Appellants’ counsel did

not convey any untrue facts to the jury. The fact that Steltz did not present a radiology

expert to testify at trial in support of Dr. Read was not untrue at the time Appellants’

counsel asked the question. Steltz had not attempted to qualify Dr. Read as an expert

witness nor had Steltz presented a radiology expert to testify in support of Dr. Read.

Further, the trial court had not precluded Steltz from presenting Dr. Checkoff as an expert.

Accordingly, Siegal does not support the Superior Court’s conclusion that the question

was improper.

The record supports the trial court’s initial decision to deny Steltz’s motion for a

mistrial. At that point in the case, the question to Dr. Zoga was a single reference to

Steltz’s failure to produce an expert in radiology at trial to support Dr. Read, the trial court

sustained Steltz’s objection to the question, Dr. Zoga did not answer the question, the

trial court issued a curative instruction at the next opportunity, and Appellants’ counsel

did not continue to pursue this subject in his direct examination of Dr. Zoga. Further, as

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Judge Bowes explained in her dissent, counsel’s question was not improper because it

was “duly predicated upon: (1) the lack of expert radiology testimony presented by [ ]

Steltz; and (2) Dr. Zoga’s testimony that there were approximately 5,000 musculoskeletal

radiologists potentially available for such consultations. Both of these facts were of-

record.” Steltz, 2020 WL 1867021, at *11 (Bowes, J., dissenting). Under these

circumstances, and considering the precautions taken by the trial court and the parties,

we conclude the trial court did not abuse its discretion in denying the motion for a mistrial.

See Martin, 257 A.2d at 537; see also Commonwealth v. Jones, 683 A.2d 1181, 1195

(Pa. 1996) (stating an “isolated reference [to irrelevant evidence], to which there was a

curative instruction provided, would not have presented any basis for the granting of a

mistrial.”). Because this was the only basis the trial court specified as grounds for a new

trial, we must reverse because the trial court cannot order a new trial in the absence of a

mistake. See Harman, 756 A.2d at 1123.

There may be certain circumstances in which a trial court may deny a motion for a

mistrial because it concluded its curative instruction was adequate, but still properly grant

a new trial based on the cumulative effect of the improper remarks. See Lee v. Se. Pa.

Transp. Auth., 704 A.2d 180, 183 (Pa. Cmwlth. 1997). However, the trial court in this

case did not view the question in the context of the entire two-week trial when evaluating

the post-trial motions. In addition to the circumstances in which the question was

presented, as discussed above, we note several other factors that weigh against granting

a new trial. First, after the defense rested its case, the trial court permitted Steltz to

present rebuttal evidence. However, despite knowing that his case had been attacked

for the failure to present an expert in support of Dr. Read, Steltz chose not to move to

have Dr. Read certified as an expert or to present expert testimony in support of Dr.

Read’s interpretation. Second, in Appellants’ counsel’s closing statement, he predictably

[J-51-2021] - 22

argued that he presented musculoskeletal radiologists, Steltz did not present any

witnesses to dispute those experts, and the reason Steltz “didn’t bring anybody in to

dispute this [is] because they can’t.” N.T., 8/10/18, p.m. session, at 36. Steltz did not

object to these arguments. Instead, in rebuttal, Steltz’s counsel defended his trial strategy

and stated that he was relying solely on Dr. Read, a board-certified radiologist with a

fellowship in musculoskeletal radiology. Id. at 57-58. Third, the trial court again charged

the jury that “[e]vidence is not what the lawyers say.” N.T., 8/13/18, a.m. session, at 13.

Based on these considerations, we conclude it was an abuse of discretion for the trial

court to grant a new trial in the absence of a mistake.

Because we have concluded that a mistake did not occur, we reverse the order of

the Superior Court and remand for further proceedings.

Order reversed. Case remanded. Jurisdiction relinquished.

Justices Saylor, Todd and Dougherty join the opinion.

Justice Wecht files a dissenting opinion in which Chief Justice Baer and Justice Donohue

join.

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