Appendix — Thomas Jefferson University Hospital v. Bynum

la

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

DIANE BYNUM and FOUNTAIN : No. 418 EAL 2002

PARRISH, :

: Application for Reconsideration

: of denial of Petition for

v. : Allowance of Appeal

THOMAS JEFFERSON UNIVERSITY :

HOSPITAL and DR. PHILIP HIRSHMAN $:

AND HEE-OK PARK CHAI, M.D., :

PETITION OF: THOMAS JEFFERSON

UNIVERSITY HOSPITAL and

DR. PHILIP HIRSHMAN, M.D.

ORDER

PER CURIAM

AND NOW, this 6th day of February 2003, the

Application for Reconsideration of the Denial of the Petition

for Allowance of Appeal is DENIED.

TRUE COPY FROM RECORD

Attest: FEB 6 2003

/s/ Patricia Johnson

Patricia Johnson, Chief Clerk

Supreme Court of Pennsylvania,

Eastern District

2a

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

DIANE BYNUM and FOUNTAIN : No. 418 EAL 2002

PARRISH,

: Petition for Allowance of

Respondents : Appeal from the Order of the

: Superior Court

THOMAS JEFFERSON UNIVERSITY :

HOSPITAL and DR. PHILIP HIRSHMAN =:

AND HEE-OK PARK CHAI, M.D.

PETITION OF: THOMAS JEFFERSON

UNIVERSITY HOSPITAL and DR.

PHILIP HIRSHMAN, M_D.,

ORDER

PER CURIAM

AND NOW, this 10th day of December 2002, the

Petition for Allowance of Appeal is DENIED.

TRUE COPY FROM RECORD

Attest: DEC 10 2002

/s/ Patricia Johnson

Patricia Johnson, Chief Clerk

Supreme Court of Pennsylvania,

Eastern District

3a

DIANE BYNUM AND FOUNTAIN: IN THE SUPERIOR COURT OF

PARRISH, : PENNSYLVANIA

Appellants :

Vv.

THOMAS JEFFERSON

UNIVERSITY HOSPITAL AND

DR. PHILIP HIRSCHMAN AND

Hee-PK PARK CHAT. M_D.,

Appellees : No. 3485 EDA 2000

ORDER

AND NOW, this 31st day of July, 2002, IT IS HEREBY

ORDERED:

THAT the application filed June 12, 2002, request-

ing reargument/reconsideration of the decision

dated May 29, 2002, is DENIED.

PER CURIAM

4a

DIANE BYNUM and FOUNTAIN : IN THE SUPERIOR COURT OF

PARRISH, : PENNSYLVANIA

Appellants :

v.

THOMAS JEFFERSON UNIVERSITY :

HOSPITAL and DR. PHILIP HIRSCHMAN =: No. 3485 EDA 2000

and Hee-OK Park Chai, M.D. :

Appeal from the Judgment entered February 12, 2001,

Court of Common Pleas, Philadelphia County,

Civil Division at Nos. 923 March Term, 1998 &

2294 December Term, 1998.

BEFORE: McEWEN, JOHNSON, and JOYCE, Ju.

MEMORANDUM: FILED MAY 29, 2002

Diane Bynum (Bynum) and Fountain Parrish (Parrish),

husband and wife, appeal from the judgment entered in a

medical malpractice case after the trial court denied their

post-trial motions. Bynum and Parrish allege that, as a

result of the negligence of Dr. Philip Hirshman, their fetus

was stillborn. Bynum and Parrish sought damages for

emotiona: distress. Bynum and Parrish contend that the

trial court erred in permitting testimony that Bynum had

aborted a prior pregnancy and had considered aborting the

pregnancy at issue. Additionally, Bynum and Parrish assert

that the trial court improperly removed Hospital’s name

from the jury interrogatories, that the trial court’s conduct

during trial hampered Bynum and Parrish’s counsel’s

exercise of trial strategy, and that the court improperly

imposed a deadline for the jury’s deliberations. We conclude

that the testimony concerning the prior and contemplated

abortions was unduly prejudicial, and therefore, we reverse

the judgment and remand for a new trial.

This case arises from the stillbirth of Bynum’s fetus in

December 1996. Bynum’s expected due date was December

23, 1996. On December 20, 1996, Bynum saw Dr. Hirshman,

a third year OB/GYN resident at Thomas Jefferson

University Hospital (Hospital), for a prenatal visit. During

5a

the visit, Dr. Hirshman indicated a positive fetal heartbeat

and fetal movement on the prenatal flow record. He

‘instructed Bynum to return in one week to be induced if

she had not gone into spontaneous labor. Bynum contends

that during the visit she told Dr. Hirshman that she had

experienced decreased fetal movement. Dr. Hirshman

denies that Bynum told him and asserts that if Bynum

had told him that she experienced decreased fetal movement

then he would have performed more tests prior to sending

her home. On December 23, 1996, Bynum went to Hospital

complaining that she had not felt any fetal movement since

that morning. An ultrasound ndicated that the fetus had

died in utero. Bynum and Parrish sought damages for

emotional distress. Bynum and Parrish admit that there is

no evidence of Hospital’s independent liability and their

only claim against Hospital is one of vicarious liability.

Bynum and Parrish filed suit against-a number of

defendants. In September 1999, the court consolidated the

cases, and the parties stipulated to the dismissal of all

defendants other than Hospital and Dr. Hirshman. Bynum

claimed that she informed Dr. Hirshman that the fetus was

moving less on the day of the prenatal visit and that Dr.

Hirshman’s failure to take further action caused the

stillbirth. The only claims against Hospital were those of

vicarious liability for the actions of Dr. Hirshman who was a

resident doctor and a Hospital employee. Bynum and

Parrish sought damages for emotional distress resulting

from how they learned that their baby was stillborn. In April

2000, the original trial of this case ended in a hung jury.

During the jury trial in June 2000, the Honorable Mark

I. Bernstein permitted testimony concerning Bynum’s prior

abortion and her consideration of aborting the pregnancy in

question. Additionally, the trial court instructed defense

counsel regarding discourtesy and proper questioning. The

trial court also refused to include jury interrogatories

requested by the plaintiffs regarding Hospital’s liability.

At the conclusion of the trial, the trial judge told the jury

6a

that due to a personal commitment the judge would be

leaving the courthouse at approximately 3:30 that day and

therefore would only be able to receive the verdict either

before he left that afternoon or the next morning. The judge

made it clear to the jury that they could deliberate for as

long as they needed. The jury returned their verdict at 3:50

finding Dr. Hirshman not negligent in his medical care.

Bynum and Parrish filed this timely appeal after the trial

court denied Bynum and Parrish’s motion for post-trial

relief.

Bynum and Parrish present the following issues for our

review:

1. Whether trial court committed reversible error in

permitting testimony concerning [Bynum’s] termi-

nation of a previous pregnancy in 1992?

2. Whether the trial court committed reversible error

in permitting testimony concerning [Bynum’s]

consideration of the termination of this pregnancy

by abortion?

3. Even if issues concerning the previous abortion and

consideration of abortion are relevant, it was still

excluded pursuant to Rule 403 of the Rules of

Evidence and it was reversible error to permit

cross-examination.

4. Whether trial court improperly removed [Hospi-

tal’s] name from the jury interrogatories?

5. Whether trial court’s constant attack of counsel for |

defendant improperly prevented plaintiffs’ counsel

from determining in his discretion when to object to

certain points or to exercise any trial strategy and

improperly disrupted trial?

Brief for Appellant at 4.

We will not overturn a decision to grant or deny a

motion for a new trial unless the trial court “grossly abused

its discretion or committed an error of law that controlled

7a

the outcome of the case.” Collins v. Cooper, 746 A.2d 615,

617 (Pa. Super. 2000).

Bynum and Parrish’s first three questions concern the

admissibility of evidence regarding Bynum’s prior abortion

and her contemplated abortion of the pregnancy in question.

As these questions are interrelated, we will address them

together.

We recently elaborated on the standard for reviewing

the admissibility of evidence:

In order to find that the trial court’s evidentiary

rulings constituted reversible error, such rulings

must not only have been erroneous but must also

have been harmful to the complaining party.

Appellant must therefore show error in the

evidentiary ruling and resulting prejudice, thus

constituting an abuse of discretion by the lower

court. Based upon such showing, our only remedy is

to grant a new trial.

Collins v. Cooper, 746 A.2d 615, 619-620 (Pa. Super. 2000)

(internal quotations and citations omitted).

Bynum and Parrish first contend that the testimony

concerning the prior abortion and the contemplated

abortion was not relevant to the issues in the case, and

therefore inadmissible. Brief for Appellants at 13. Bynum

and Parrish contest the court’s conclusion that the evidence

was relevant to damages. They further object to the

implication that they suffered less from the loss of their

child than would a plaintiff who had not previously had an

abortion. Brief for Appellants at 13.

Additionally, Bynum and Parrish contest the trial

court’s second rationale for admitting the evidence. Brief

for Appellants at 15. The trial court concluded that Bynum

and Parrish had placed the records at issue through

allegations of alteration or inaccuracy. Trial Court Opinion,

5/16/01, at 10-11. The court concluded accordingly that all

8a

parts of the records were relevant including those that

referenced prior pregnancies. Trial Court Opinion, 5/16/01,

at 10-11. Bynum and Parrish contend that they did not

allege that the records had been altered but rather that

information, such as Bynum’s name and details of the

December 20, 1996 prenatal visit had not been recorded

accurately. Brief for Appellants at 15.

Alternatively, Bynum and Parrish assert that, even if

the testimony was relevant, the issue of abortion is

inherently prejudicial and should only be allowed when it

directly impacts the issues in the case. Brief for Appellants

at 16. Plaintiffs claim that “[a]ny consideration of the issues

surrounding abortions are tainted with unfair prejudice as it

has nothing to do with liability [or] the emotional distress

that [Bynum] suffered. It did have to do with how certain

jurors would view [Bynum] and her value cf life.” Brief for

Appellants at 20-21. Bynum and Parrish contend that the

purpose of the testimony was to “inflame and prejudice and

affect [Bynum’s] credibility and it should not have been

allowed pursuant to rules 402 and 403 of the Pennsylvania

Rules of Evidence.” Brief for Appellants at 13-14. Bynum

and Parrish contend that the jurors’ decision on negligence

rested on whether they believed Bynum or Dr. Hirshman’s

testimony regarding whether Bynum mentioned decreased

fetal movement at the prenatal visit. Therefore, if the

abortion testimony prejudiced the jury’s opinion of Bynum

and thus her credibility, the admission of the testimony is

reversible error. Brief for Appellants at 17-18, 19-20. Bynum

and Parrish assert that the abortion testimony should have

been excluded under Rule 403 of the Pennsylvania Rules of

Evidence because the probative value was outweighed by the

danger of unfair prejudice.

Our Rules of Evidence state that all relevant evidence is

admissible, unless otherwise provided, and that evidence

that is not relevant is inadmissible. See Pa.R.E. 402.

Evidence is relevant if it has “any tendency to make the

existence of any fact that is of consequence to the

9a

determination of the action more probable or less probable

than it would be without the evidence.” Pa.R.E. 401. A trial

court may exclude relevant evidence “if its probative value is

substantially outweighed by the danger of unfair prejudice,

confusion of issues or misleading the jury.” Fisher v. N.

Hills Passavant Hosp., 781 A.2d 1232, 1234 (Pa. Super.

2001). Evidence will be deemed unduly prejudicial “not

where it merely hurts a party’s case, but where it tends to fix

a decision which has an improper basis in the minds of the

jury.” Id. at 1234 (quotations and citations omitted); see

also Pa.R.E. 403.

Hospital and Dr. Hirshman present us with cases in

which courts admitted testimony relating to abortions. Brief

for Appellees at 15-16. Upon review of the cases, however,

we conclude that they are inapposite. A number of the cases

involve medical malpractice claims against doctors who

performed ineffective abortions or against doctors or

individuals whose alleged negligence caused the plaintiffs

to have an abortion. See e.g. Speck v. Finegold, 439 A.2d

110 (Pa. 1981) (involving claim against doctor who

preformed ineffective vasectomy and abortion); Coveleski

v. Bubnis, 634 A.2d 608 (Pa. 1993) (involving car accident

where mother sought damages for wrongful death of eight

week old fetus whom she aborted for fear of damage as a

result of accident). In these cases, the testimony regarding

the plaintiffs’ abortions was essential to the plaintiffs’ case

due to the fact pattern of the cases and the basis of the

claims.

In the case at hand, the trial court determined that the

abortion testimony was relevant to the jury’s determination

of the amount of damages to award. We disagree. The trial

court based its relevancy conclusion on mere speculation

that a prior abortion would effect the suffering felt after the

loss of an entirely separate pregnancy. We discern no

correlation between an abortion four years prior and the

degree of emotional distress parents would feel upon

hearing that their full term baby had died in utero after a

10a

subsequent pregnancy. The defendants did not present

evidence that the prior abortion was a voluntary act by

Bynum. Additionally, we see no relevance in Bynum’s

contemplation of abortion in the early months of the

pregnancy in question. Once the parents determined to

carry the pregnancy to term, they negated by their conduct

any prior intent to abort, as a consequence of which the

prior contemplation is irrelevant.

Additionally, we find no relevance in _ testimony

regarding the prior abortion or the contemplation of the

pregnancy to the issue of accuracy of fhe records, which the

trial court asserts in its 1925(a) opinion. The fact that the

medical history form correctly reflected the number “3” in

the prior pregnancy box does not provide any relevant

information to the issues in this case. The accuracy of the

records could have easily been established without reference

to the small section of the record concerning prior

pregnancies. Therefore, we conclude that the testimony

should have been excluded as not relevant pursuant to

Pa.R.E. 401 and 402.

Even if the testimony could be deemed relevant, the

trial court nonetheless erred because the testimony was

unduly prejudicial. The outcome of this case depended

substantially on whether the jury believed Bynum, as

opposed to Dr. Hirshman, when she said she told Dr.

Hirshman that she had noticed decreased fetal movement

during her last pre-natal visit. Currently this nation is

polarized on the issue of abortion with some members of our

community exhibiting extreme negative reactions to women

who have abortions or to persons who advocate for a

woman’s right to choose an abortion. We conclude in view of

this circumstance that the references to abortions may

likely have fixed a “decision which [had] an improper basis

in the minds of the jury.” Fisher, 781 A.2d at 1234

(quotations and citations omitted). Although we recognize

that the testimony was not lengthy, we conclude that its

inclusion was demonstrably prejudicial. Considering the

lla

minor relevance, if any, of the abortion testimony to the

facts of this case, we conclude that the probative value did

not outweigh the prejudice of the testimony to Bynum and

thus should have been excluded pursuant to Pa.R.E. 403.

Pa.R.E. 403 (“Although relevant, evidence may be excluded

if its probative value is outweighed by the danger of unfair

prejudice. .. .”). Therefore, we conclude that a new trial is

necessary to correct the trial court’s abuse of discretion in

allowing the testimony regarding the prior and contem-

plated abortions.

In their fourth issue, Bynum and Parrish contend that

the trial court erred by removing Hospital’s name from the

jury interrogatories. We have previously stated our standard

of review of a trial court’s decision to grant or refuse a

request for special interrogatories:

Generally, a trial judge in Pennsylvania may grant

or refuse a request for special findings on the basis

of whether such would add to the logical and ©

reasonable understanding of the issue. We will not

disturb a trial judge’s decision to grant or refuse the

request absent an abuse of discretion.

Century 21 Heritage Realty, Inc. v. Bair, 563 A.2d 114,

116 (Pa. Super. 1989).

Bynum and Parrish contend that the trial court erred in

omitting Hospital’s name from the jury interrogatories.

Brief for Appellants at 23. Bynum and Parrish argue that

Hospital should have been included on the interrogatories

because under the doctrine of vicarious liability the master

may be primarily liable. Brief for Appellants at 23. Bynum

and Parrish further contend that the trial court incorrectly

concluded that Bynum and Parrish needed to present

evidence of direct liability in order to keep Hospital on the

interrogatory. Brief for Appellants at 24. “[Hospital] was not

a guarantor for defendant Hirshman but a co-defendant

liable in its own right.” Brief for Appellants at 24.

Additionally, the plaintiffs note that the jury did question

12a

the interrogatories: “Are we to view [Hospital] and Dr. -

Hirshman as one entity to decide our verdict?” Brief for

Appellant at 25 quoting N.T., 6/8/00, at 699-700. Bynum and

Parrish contend that the interrogatories confused the jurors

when Hospital was included in the case caption but not the

interrogatories.

The trial court refused to include Hospital’s name on

the jury interrogatories because Bynum and Parrish had not

presented any evidence concerning any direct liability by

Hospital but only claimed that Hospital was liable through

its agent, Dr. Hirshman. Trial Court Opinion at 3-4. The

court concluded that to allow the jury “to determine

whether [Hospital] was independently liable, when there

was no evidence of independent liability, would only invite a

finding of direct liability where even plaintiffs concede there

was no evidence to support such a verdict.” Trial Court

Opinion, 5/16/01, at 5. Therefore, any interrogatory

regarding direct liability “would invite confusion or worse,

an inconsistent verdict unsupported by any evidence.” Trial

Court Opinion, 5/16/01, at 6. The trial court in this case

clearly instructed the jury that any verdict against Dr.

Hirshman would be molded to include Hospital as the

doctor’s employer. N.T. 6/8/00, at 694. The trial court

answered in the affirmative the jury’s question as to

whether they should treat Dr. Hirshman and Hospital as

one entity. N.T. 6/8/00, at 698. Hospital in no way contested

the relationship with Dr. Hirshman. Trial Court Opinion at

5. Additionally, Bynum and Parrish do not cite any

authority for the argument that they had a legal right to

have Hospital on the interrogatories. Therefore, we

conclude that the triai court did not abuse its discretion

when it granted Hospital’s request to remove its name from

the jury interrogatories.

Bynum and Parrish additionally allege that the conduct

of the trial court during trial was prejudicial to their case.

Bynum and Parrish contend that the repeated interruptions

and sidebars called by the court to instruct defense counsel

13a

disrupted the trial and prevented plaintiffs’ counsel from

exercising his trial strategy. Bynum and Parrish contend

that their trial counsel’s opportunity to object was taken

away and that the court’s actions “’made plaintiffs’ trial

counsel appear incompetent and as if the trial court was

protecting [plaintiffs] counsel.” Brief for Appellant at 28.

Bynum and Parrish claim that this conduct denied them

their state and federal rights to counsel. Brief for Appellant

at 29.

Bynum and Parrish however failed to raise the issue of

trial court’s prejudice prior to the verdict. Therefore,

pursuant to Rule of Civil Procedure 227.1(b), plaintiffs have

waived this issue. See Ware v. U.S. Fidelity and

Guaranty Co., 577 A.2d 902, 904-905 (Pa. Super. 1990)

(concluding that prejudice of judge is waived unless raised

prior to verdict).

Although the plaintiffs do not include the issue in their

statement of questions presented, plaintiffs contend that the

trial court committed reversible error regarding the “3:30 -

deadline”. Brief for Appellant at 30-31. Plaintiffs contend

that the imposition of the deadline and the requirement that

if the jury did not decide before 3:30 p.m. they would have to

return the next day was improper and caused the jury to

rush to judgment. Brief for Appellant at 30-31. Plaintiffs

contend this amounted to judicial coercion. Brief for

Appellant at 30-31.

We first note that an appellant waives any question not

contained in the statement of questions. See Pa.R.A.P.

2116(a). Additionally, even if the plaintiffs had included the

deliberation deadline question in their statement of

questions, we would waive the question because plaintiffs

failed to make an objection to the jury instructions or raise

the issue prior to the conclusion of the trial in violation of

the Rules of Civil Procedure 226 and 227.1(b) respectively.

Additionally, even if we were to address the merits of the

issue, the record belies Bynum and Parrish’s assertion of

coercion. The trial court made it clear to the jurors that they

l4a

should not feel a need to conclude their deliberation by 3:30

and could feel free to return the next day to continue to

deliberate. N.T. 6/8/00, at 695. For all the foregoing reasons,

we conclude that the question regarding the “deadline” is

meritless.

Because we have concluded that the admission of the

testimony regarding the prior and contemplated abortions

was error mandating a new trial, we reverse the judgment

and remand for a new trial.

Judgment REVERSED. Case REMANDED for

further proceedings consistent with this Memorandum.

Jurisdiction RELINQUISHED.

Judge McEwen concurs in the result.

Judge Joyce files a Concurring and Dissenting Memor-

andum.

Judgement Entered.

/s/

Prothonotary

Date: MAY 29 2002

52.3

15a

DIANE BYNUM AND FOUNTAIN : IN THE SUPERIOR COURT OF

PARRISH, : PENNSYLVANIA

Appellants :

v.

THOMAS JEFFERSON UNIVERSITY

HOSPITAL AND DR. PHILIP

HIRSCHMAN AND HEE-OK PARK

CHAI, M.D., :

Appellees : No. 3485 EDA 2000

Appeal from the Judgment entered February 12, 2001,

In the Court of Common Pleas, Philadelphia County,

Civil Division at Nos. 923 March Term, 1998 & 2294,

December Term 1998.

BEFORE: MCEWEN, JOHNSON and JOYCE, Ju.

FILED MAY 29, 2002

CONCURRING AND DISSENTING MEMORANDUM BY

JOYCE, J. |

While I am in agreement with the resolution of

Appellants’ first, fourth and fifth issues, I write separately

to express my disagreement with the resolution of the

second and third issues.

These issues are as follows:

Ii. Whether the trial court committed reversible

error in permitting testimony concerning [Ms.

Diane Bynum’s] consideration of the termination

of this pregnancy by abortion?

III. Even If issues concerning . . . consideration of

abortion are relevant, it was [sic] still excluded

pursuant to Rule 403 of the [Pennsylvania] Rules

of evidence and it was reversible error to permit

cross examination.

Brief for Appellants, at 4.

16a

At trial, the critical question was whether or not

Appellant,’ Ms. Diane Bynum informed Dr. Phillip Hirsh-

man, during the December 20, 1996 prenatal visit, that she

was experiencing decreased fetal movement. During the

prenatal visit, Dr. Hirshman indicated in the prenatal flow

record that the fetus had a positive heartbeat. The flow

record also indicated fetal movement. After making these

observations, Dr. Hirshman instructed Ms. Bynum to return

in one week to be induced if she had not gone into

spontaneous labor. Ms. Bynum contends that during the

prenatal visit she told Dr. Hirshman that she was

experiencing decreased fetal movement. Dr. Hirshman

denies that Ms. Bynum told him of the decreased movement.

He claims that had Ms. Bynum informed him of the

decreased movement, he would have performed more tests

prior to sending her home.

Thus, on the issue of liability, the jury was required to

determine whether or not Ms. Bynum informed Dr.

Hirshman that she was experiencing decreased fetal move-

ment. If Dr. Hirshman was so informed but he failed to take

proper action and sent Ms. Bynum home instead, the jury

could reasonably find him negligent. If on the other hand,

Dr. Hirshman was not informed of the decreased fetal

movement, the jury could conclude that his failure to

perform more tests or take other action did not fall below

the applicable standard of care. Thus on the issue of

liability, i.e., failure to adhere to the proper standard of

care, the fact that Ms. Bynum has had a previous abortion or

the fact that she contemplated abortion in the early stages of

the pregnancy at issue here, is clearly irrelevant.

1 The other Appellant is Mr. Fountain Parrish. Appellants are the

“parents” of the stillborn fetus. See Plaintiffs’ Complaint, filed 3/12/1998,

at 7 10.

17a

With respect to damages” however, I think that Ms.

Bynum’s contemplation of abortion in the early stages of the

pregnancy is very relevant. Ms. Bynum’s testimony

established that she considered terminating the pregnancy

at issue in this case, voluntarily and for reasons unrelated to

her health or physical well-being or those of the fetus. The

pertinent testimony elicited on cross-examination concern-

ing the contemplation of abortion is as follows:

Q: And then ma’am [your medical record] indicates,

“Would pregnancy be a problem at this time?” And,

again, this is the pregnancy that we’re talking

about in this case. And you indicated, “Yes.” Do you

recall that ma’am?

Mr. ‘<eenheel [Appellants’ counsel]: Objection,

Your Honor.

The Court: Legal basis?

Mr. Keenheel: Irrelevant.

Tiie Court: Overruled. You may answer the

question.

A [Ms. Bynum]: Yes, that’s it.

Q: And then, ma’am, [your medical record]

indicates “Complaints; Symptoms.” It indicates,

“She’s considering terminating pregnancy.” Did

you tell that to the Family Planning Clinic with

regard to this pregnancy; that after you learned

| 2 Appellants’ claim for damages was premised on emotional distress:

| 1 88. The conduct of each defendant was extreme and

# outrageous, and intentionally or recklessly caused plaintiffs to

] suffer emotional distress.

) 1 89. The defendants engaged in such conduct with knowledge

: that severe emotional distress was certain or substantially

certain to result from their conduct.

1 90. By reason of the foregoing, each defendant is liable to the

plaintiffs for the severe emotional distress incurred.

Plaintiffs’ Complaint, Filed 3/12/1998, at 1 88 - 11 90.

18a

that you were pregnant, that you were considering

another abortion?

A: Yes sir. I was surprised to find that I was

pregnant. I went for — to take birth controls; and

=e they told me I was pregnant. I was in college. So I

was surprised. But, obviously, that wasn’t my

choice.

N.T. 6/5/2000, at 126-127

Ms. Bynum’s contemplation of abortion indicates the

value she placed on the fetus; the value placed on the fetus

impacts on how emotionally distressed, if at all, Ms. Bynum

would be upon losing the fetus. If Ms. Bynum placed so little

value on the fetus that she contemplated aborting the fetus,

then her level of emotional distress would not be the same as

that of a woman who valued the fetus all through the

pregnancy and never contemplated an abortion at any stage.

Even though Ms. Bynum ultimately decided not to abort the

fetus, her earlier contemplation of abortion sheds some light

on her emotional disposition towards the fetus.

Since Appellants are seeking damages for emotional

distress for the stillbirth of the fetus, their emotional

disposition towards the fetus as well as the value they

placed on the fetus at every stage of the fetal development, is

highly relevant. An illustration would buttress this point

more forcefully: It is common knowledge that smoking,

consumption of alcohol and illegal narcotics are detrimental

to fetal health, development and well being. If a pregnant

woman engaged in these activities at any stage of her

pregnancy, it is reasonable to conclude that this conduct

reflects on the value she placed on the fetus. Individuals

normally do not harm things or persons they value or care

about. Along these lines, in the case at bar, Ms. Bynum’s

contemplation of harming or aborting the fetus earlier in

the pregnancy is relevant to the determination of her

emotional disposition towards the fetus. See Pa.R.E. 401

(“ ‘Relevant evidence’ means evidence having any tendency

19a

to make the existence of any fact that is of consequence to

the determination of the action more probable or less

probable than it would be without the evidence”).

Admittedly, evidence of Ms. Bynum’s consideration of

abortion is prejudicial. However, the probative value of this

relevant evidence is not outweighed by its prejudicial effect.

See Pa.R.E. 403 (“Although relevant, evidence may be

excluded if its probative value is outweighed by the danger

of unfair prejudice, confusion of the issues, or misleading

the jury, or by considerations of undue delay, waste of time,

or needless presentation of cumulative evidence”). Indeed,

excluding this evidence would deprive the fact-finder of an

accurate picture of Ms. Bynum’s emotional disposition

towards the fetus. Thus, I would hold that evidence of Ms.

Bynum’s contemplation of an abortion is admissible for

purposes of damages pursuant to Pa.R.E. 401 and Pa.R.E.

403. :

Because the trial in this case was not bifurcated, I

cannot conclude that the admission of evidence regarding

the contemplated abortion was erroneous. In my view, this

is a case that loudly cries out for bifurcation between the

liability phase and the damages phase. Therefore, I would

remand for a new triz| with instructions that the trial be

bifurcated. Ai the liability phase, the evidence of the

contemplated abortion is clearly inadmissible. For purposes

of damages, however, I reiterate my view that the evidence

is relevant and admissible.

20a

IN THE COURT OF COMMON PLEAS

OF PHILADELPHIA COUNTY

CIVIL TRIAL DIVISION

DIANE BYNUM : DECEMBER TERM, 1998

FOUNTAIN PARRISH

US.

THOMAS JEFFERSON UNIVERSITY ~ :

HOSPITAL : NO. 2294

ORDER

AND NOW, this 2lst day of November, 2000, it is

hereby ORDERED and DECREED that Plaintiff's Post

Trial Motions are DENIED.

BY THE COURT

/s/ MARK I. BERNSTEIN, J.

MARK I. BERNSTEIN, J.

MN ae OSS RARE Dp AOS EEN EET RAR eee a te Amn 7

a NS IK seep

2la

DIANE BYNUNM AND : COURT OF COMMON PLEAS

FOUNTAIN PARRISH : PHILADELPHIA COUNTY, PA

v.

THOMAS JEFFERSON UNIV.

HOSPITAL - DECEMBER TERM 1998

AND PHILIP HIRSHMAN, M.D. __: NO. 2294

OPINION

By this appeal, plaintiffs seek a new trial because the

court refused to allow the jury to decide issues which were

not in the case. Although the claims against Thomas

Jefferson University Hospital were exclusively grounded in

the agency of Dr. Hirshman, which was admitted by Thomas

Jefferson University Hospital, plaintiff requested the jury

be permitted to find that defendant Thomas Jefferson

University Hospital was independently liable. The Court

refused and plaintiff claims error. By this appeal, plaintiffs

further claims that, by requiring defense counsel ask proper

questions instead of making speeches, the Court interfered

with plaintiffs’ counsel’s courtroom “artistry” and his right

to “do his thing”. Further, plaintiffs claim error in

permitting brief testimony of a prior pregnancy and

contemplation of aborting the pregnancy at issue. Finally,

although the verdict was delivered at 3:50 p.m. on June 8,

2000, plaintiffs claim that it was reversible for the trial

Court to “refuse” to take a verdict after 3:30 p.m.

Plaintiffs, Diane Bynum and Fountain Parrish, in-

stituted this medical malpractice action against defendants,

Thomas Jefferson University Hospital, Jefferson Obstetrics

and Gynecology Associates, Jefferson Associates in Radi-

ology, Phillip Hirshman, M.D., Donald Mitchell, M.D. and

Janio Szklaruk, M.D. in the Court of Common Pleas,

Philadelphia in March of 1998. In December of 1998

Plaintiffs instituted a second action against Thomas

Jefferson University Hospital, Thomas Jefferson Ob/Gyn

fanic and Hee-Ok Park Chia, M.D. A Petition to

Consolidate these two cases was granted on September 10,

22a

1999. All defendants, except Thomas Jefferson University

Hospital and Dr. Hirshman, were dismissed by stipulation

prior to the start of trial.

This case, originally tried before the Honorable Victor

DiNubile, Jr., ended in a hung jury on-April 14, 2000. Retrial

began on June 5, before the Honorable Mark I. Bernstein.

The only allegation against Thomas Jefferson University

Hospital was vicarious liability for the actions of Dr.

Hirshman, a resident doctor and hospital employee. Dr.

Hirshman was also a named defendant. Defendant hospital

agreed to take full responsibility for any negligence of Dr.

Hirshman. On June 8, 2000, the jury returned a verdict that

Dr. Hirshman was not negligent in his medical care. From

this verdict, plaintiffs requested post trial relief.

A court has a duty to grant a new trial if it determines

that the judicial process has effected a serious injustice,

where there has been an error of law or where the verdict is

against the clear weight of the evidence’. Upon review of

this case, this Court must view the evidence in the light

most favorable to the verdict winner.

This case arises out of a medical malpractice claim by

Diane Bynum and her husband, Fountain Parrish, alleging

negligence in failing to determine that plaintiffs’ fetus had

died in utero. No claim is made that any malpractice in any

way caused the death in utero. The plaintiffs allege only

damages for their own emotional distress for learning of the

still birth three days later*. Ms. Bynum, a 28-year-old

woman, had three pregnancies. Her first pregnancy resulted

in a live birth, her second pregnancy was terminated by a

voluntary abortion, and she suffered a still birth on her

third pregnancy. Ms. Bynum’s due date was December 23,

1996. On December 20, 1996, Dr. Hirshman saw Ms. Bynum

for a prenatal visit. At that visit Ms. Bynum did not

complain of decreased fetal movement. Dr. Hirshman

1 Austin v. Ridge, 435 Pa. 1, 255 A.2d 123 (1969).

2 No claim is presented on behalf of the stillborn fetus.

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23a

testified that if he had been told of decreased fetal

movement he would have immediately ordered further

testing’. At this visit, the prenatal flow record demonstrated

a positive fetal heartbeat and fetal motion. Ms. Bynum was

told to return in one week to be induced if she had not yet

gone into spontaneous labor.

On December 23, 1996, Ms. Bynum went to the hospital

and complained that she had not felt any fetal movement

that morning. She was seen by two Obstetrician/Gynecolo-

gist residents. An ultrasound was performed. No fetal

motion and no fetal heart tones were detected. It was

determined that the fetus was dead. The jury could properly

find from the evidence that the fetus died only after the

medical visit of December 20, 1996 and therefore there was

no negligence whatsoever.

Plaintiffs allege that the Court improperly refused to

include questions about direct liability of defendant,

Thomas Jefferson University Hospital, in the jury inter-

rogatories. There was no evidence whatsoever presented of

any direct liability by Thomas Jefferson University

Hospital. The only claim against the hospital was through

its agent, Dr. Hirshman. Plaintiffs acknowledge that there is

no evidence of any independent theory of liability concern-

ing Thomas Jefferson University Hospital*. The following

exchange took place at trial between the Court and counsel:

THE COURT: There’s no independent theory against

Thomas Jefferson; right?

MR. KEENHEEL: No, sir.

THE COURT: Then over your objection, the Jury

Interrogatories will not included any reference to Thomas

Jefferson. You can argue about Thomas Jefferson. I don’t

have any problem with that. But if counsel is agreeing, on

behalf of Thomas Jefferson, that any verdict against Dr.

3 N.T.- 6/6/00, at 424.

4 N.T.- 6/6/00, at 463.

24a

Hirshman can be molded to include Thomas Jefferson, the

jury is not going to get any question about Thomas

Jefferson, except on the caption. They’ll be on the caption.”°

The decision to grant a request for jury interrogatories

is discretionary and must be determined based on “whether

such would add to a logical and reasonable understanding of

the issue.” Unnecessary jury interrogatories “can create

misleading issues and defeat justice.’”

In Greet v. Arned Corp.®, plaintiff was injured when a

scaffolding collapsed. A verdict for the plaintiff ensued. The

defense appealed the verdict claiming error in refusing to

ask specific questions of the jury. The defendant claimed the

trial court erred when it refused a request for special

interrogatories on the issue of contributory negligence. The

Supreme Court found that the trial judge property denied

this request, because there was no evidence from which

contributory negligence could be found. A judge should

submit a special interrogatory only when doing so will “add

to a logical and reasonable understanding of the issues’.”

Further, “(t)o permit the jury to return special findings,

where they are unnecessary, can create misleading issues

and defeat justice.’°” Further, this was not in error as “(n)o

evidence was presented by [defendant] showing any

contributory negligence on the part of [plaintiffs] ... ”**

Allowing the jury to determine whether Thomas

Jefferson University Hospital was independently liable,

when there was no evidence of independent liability, would

only invite a finding of direct liability where even plaintiffs

5 N.T.-6/6-00, at 463.

6 Century 21 Heritage Realty, Inc. v. Blair, 386 Pa.Super. 373, 563 A.2d

114 (1989).

7 Willinger v. Mercy Catholic Medical Center, 482 Pa. 411, 445, 393-A.2d

1188, 1190 (1978).

8 Greet v. Arned Corp., 412 Pa. 292, 194 A.2d 343 (1963).

9 Id. at 345.

10 Id. at 345.

11 Id. at 346.

25a

concede there was no evidence to support such a verdict.

The Court gave the jury the following instruction concern-

ing the hospital’s liability:

You were told, at the beginning of the trial, that

Thomas Jefferson University Hospital was the

defendant. They take full responsibility for Dr.

Hirshman’s activities; and we will mold a verdict

after you have reached it. Therefore, whatever

verdict is reached against Dr. Hirshman is also

reached against Thomas Jefferson University

Hospital; and you will find no mention whatsoever

on the questions concerning Thomas Jefferson

University Hospital. He was their employee during

the times in question, and they accept that?”.

This instruction made it clear that Thomas Jefferson

University Hospital assumed all responsibility for Dr.

Hirshman’s liability and did not dispute that Dr. Hirshman

was its agent, acting in the course and scope of his

employment. An employer is responsible for the torts of

his employee that occur within the scope of his employ-

ment}*”. Where such responsibility is admitted, there is no

question for jury determination. To include the interroga-

tory requested would invite confusion or worse, an

inconsistent verdict unsupported by any evidence’*. Thus,

no error was committed in refusing to grant plaintiffs’

request to independently include Thomas Jefferson Uni-

versity Hospital in the jury interrogatories.

Plaintiffs also allege that the conduct of the trial court

was prejudicial. During the course of the trial, discourtesy

occasionally compelled the Court to instruct defense counsel

and witnesses.

The Court did not allow a witness to interrupt counsel:

12 N.T.- 6/8/00, at 694.

13 Johnson v. Glenn Sand and Gravel, 308 Pa.Super. 22, 453 A.2d 1048

(1982).

14 Greet, at 346.

26a

(Mr. Britton] Q: My question is, simply, you

testified ...

(Ms. Bynum] A: Yes, I did sir.

The Court: Excuse me. Excuse me. You need a full

question before you can possibly answer.’®

The Court did not allow counsel to ask multiple questions

before any answer was given:

[Mr. Britton] Q: Does your insurance card indicate

“Thomas Jefferson OB/GYN clinic?”

Where is your insurance card?

The Court: Which question do you want answered?’®

The Court did not allow a witness to present irrelevant

testimony from a prior proceeding when the question did

not call for such prejudicial material:

_[Mr. Britton] Q: to the extent that there would be

testimony in this case by a Dr. Brill that he took the

complete medical history from your wife, you would

disagree that such a thing happened; correct?

The Court: Objection overruled. That is a proper

question. You can answer it.

[Mr. Parrish] The Witness: Sir, according to my

testimony and the testimony of Dr. Mass in prior

proceedings...

Court: You weren’t asked about Dr. Mass in any

prior proceedings. If there is testimony in his case

that a Dr. Briil interviewed your wife while at the

Hospital, would you disagree with that testimony? ~

The Witness: Yes, sir.

15 N.T.- 6/5/00, at 100.

16 N.T.- 6/5/00, at 178.

27a

The Court: Next question.?’

The Court did not allow Defense counsel to make speeches

instead of asking questions:

[Mr. Britton] Q: It’s very possible, Doctor, that if a

nonstress had been done, it may have been perfectly

normal and reassuring.

Court: That is a statement.

Q: Would you agree with me, Doctor, that a

nonstress may very well have been reassuring?

[Dr. Polin] A: I would not agree with you at all.

Q: That’s your opinion because of what you’ve been . . .

Court: Is this a question or a statement??®

The behavior of defense counsel culminated in a final

instruction by the Court, outside the presence of the jury,

that counsel would either ask questions or his examination

would be terminated:

The Court: Mr. Britton, you have tried at least two

other cases in front of me. You have received my

written instructions that said you must ask

questions, and may not make statements posing

as questions. You have been repeatedly instructed

that way in this trial; and I will absolutely not

permit you to lead your own witness through

nonquestions. You will either ask questions of your

witnesses, or the examination will be terminated.

Any questions?

Mr. Britton: No, sir.

The Court immediately reconsidered the harshness of the

remedy for making speeches:

17 N.T. -6/5/00, at 216.

18 N.T. -6/6/00, at 327.

28a

The Court: Counsel, we’re back on the record. On

reflection Mr. Britton, the preclusion of presenting

a proper case on behalf of your client is much too

severe, even for not asking questions. If you can’t

ask questions, I will require you to write out your

entire direct examination of every witness before

you begin.*®

It is within the province of the trial judge to object to

inappropriate lines of questioning, inappropriate manner of

questioning or to ask a witness to clarify an answer. It is

within the scope of the trial judge’s duties to “confine

arguments within the limitations of legitimate advocacy”””.

It is the proper function of a trial judge to control their

courtroom”. “A trial judge is not required to remain mute

when counsel speaks of irrelevant and prejudicial matters

... counsel may properly be admonished on such occasions

without nullifying the entire trial as long as the trial judge

does not display partiality or prejudice by his conduct,

manner of speech, or choice of language’.” Plaintiffs’

counsel never objected at trial to the Court’s proper control

at trial.”* Indeed, defense counsel, recognizing the propriety

of the Courts instruction, never objected. “It is the proper

role and function of_the trial judge to exercise his judicial

powers in such a manner as to give the jury the opportunity

to hear the case free from irrelevant issues and appeals to

passion and prejudice . . . it is ultimately the authority and

the responsibility of the trial judge to maintain the

atmosphere appropriate for a fair, rational and civilized

19 N.T. -6/6/00, at 377.

20 Commonwealth v. Holley, 358 Pa. 296, 301, 56 A.2d 546, 549 (1948).

21 Behr v. Behr, 548 Pa. 144, 695 A.2d 776 (1997).

22 Commonwealth v. Phillips, 183 Pa.Super. 377, 384-85, 132 A.2d 733,

737 (1957).

23 Since plaintiffs failed to raise the issue prior to verdict, any objection

has been waived. See Commonwealth v. Hammer, 508 Pa. 88, 494 A.2d

1054 (1985).

29a

~

determination of the issues, and to govern the conduct of all

persons in the courtroom, including attorneys.”*”

Plaintiffs make no allegation of prejudice or bias on the

part of the Court. Neither do plaintiffs make any allegation

that the discretion exercised to control the courtroom was

either incorrect or inappropriate. Rather, plaintiffs only

allege that plaintiff might not have objected to defense

counsel’s abuses. The objection is that the Court strictly

maintained the trial as a serious search for the truth. There

is no right to make a trial incoherent by not objecting-to

inappropriate evidence or inappropriate behavior by oppos-

ing counsel. No legitimate allegation of error is raised.”

Plaintiffs further allege that Ms. Bynum’s prior

abortion and consideration of aborting the pregnancy in

question were irrelevant. These facts were relevant to a

proper assessment of the liability claim and damages, had

the jury found negligence. The only damage alleged was

distress of the parents in learning of the stillbirth three days

later. The only element of damages claimed was compensa-

tion for the emotional distress suffered by parent plaintiffs.

Defendant’s examination of Ms. Bynum concerning her

abortion was limited:

(Mr. Britton] Q: You see the date of December

twenty, 1996; correct?

[Ms. Bynum] A: Yes.

Q: And it indicates here “ECE.” Do you see, on

12/23/96?

A: Yes, sir.

24 Commonwealth v. Brown, 490 Pa. 560, 575, 417 A.2d 181, 189 (1980),

quoting the ABA STANDARD RELATING TO THE FUNCTION OF

THE TRIAL JUDGE, Comment to §1.1 (a)&(b) (1972).

25 See Commonwealth v. Harris, 550 Pa. 92, 104, 703 A.2d 441, 447

(1998), where cautioning counsel not to editorialize, warning counsel not

to mislead the jury, and clarifying the testimony of a witness were

approved.

30a

Q: That was, in fact, your due date; correct?

A: Yes, sir.

Q: And over here it indicates “G,” gravida, which is

the number of times you were pregnant. Were you

pregnant three times?.

A: Yes, sir.

Q: And you had delivered — this was the third time

you were pregnant; correct?

A: Yes, sir.

Q: And you had delivered one child previously?

A: Yes, sir.

Q: And that child’s name and age is what?

A: Chanelle. She is nine years old.

Q: She is nine years old?

A: Yes.

Q: And the second time...

Mr. Keenheel: Objection, Your Honor.

The Court: Basis? Legal Basis?

Mr. Keenheel: Can we have a sidebar?

The Court: Absolutely.

(Whereupon the following took place at sidebar,

outside the presence of the Jury:)

The Court: Yes, sir?

Mr. Keenheel: I’m objecting to the fact that Mr.

Britton is going to bring up the fact that she had an

abortion.

Mr. Britton: It’s very relevant.

The Court: Excuse me. Just wait. Okay. Anything

further?

3la

Mr. Keenheel: No, sir. Just irrelevant and pre-

judicial, and has nothing to do with what happened

on December twentieth.

The Court: Mr. Britton?

Mr. Britton: It’s very relevant.

The Court: What is it very relevant to?

Mr. Britton: It’s very relevant, because there’s

evidence during this pregnancy that when she got

pregnant, she was considering an abortion as well.

So it’s very relevant that she was suing for

damages, because she had a — she’s suing for

damages because she had a stillborn baby; and in

the past, she had an abortion, and she was

considering having an abortion here. It’s part of

her medical history.

The Court: I don’t care about her medical history.

You’re suing for emotional distress, as I understand

it. Maybe I’m wrong. Your damages are the

emotional distress of learning that her baby was

stillborn in the way she learned it, rather than

being told by the Doctor, or rather than going to the

Hospital right then and there and being told; right?

Mr. Keenheel: Right.

‘The Court: That’s the only element of damages;

right?

Mr. Keenheel: Yes, sir.

The Court: The questions of prior abortions and

abortion concerning this baby is entirely relevant

for the jury to understand how to compensate her;

so the objection is overruled”®.

26

N.T. -6/5/00, at 104-107.

32a

Plaintiff further made the accuracy of the medical

record which included the prior abortion relevant to the

issue of liability. Plaintiffs claimed that the defendant

intentionally altered Ms. Bynum’s medical records. Plain-

tiffs allege that the defendant tampered with her records.

Ms. Bynum’s abortion was contained in these records.

Defense counsel was properly permitted to question Ms.

Bynum to demonstrate that these records were in fact

accurate. Having called into question the accuracy of the

records and thereby asking the jury to find deliberate

activity to conceal the truth, all parts of the medical record

which plaintiffs acknowledged as accurate became relevant

to prove that the medical records were in fact correct and

unaltered. The Court properly admitted the evidence.

Plaintiffs further claim that the probative value of Ms.

Bynum’s prior abortion and her consideration of aborting

this very pregnancy was outweighed by their prejudicial

effect. “(Relevant) evidence may be excluded if its probative

value is outweighed by the danger of unfair prejudice . . .?””

It is the responsibility of the trial judge to balance the

probative value of the evidence against any prejudicial

effect®. The evidence was probative both as to liability and

for the proper evaluation of the claim of emotional distvess

damages. The issues were appropriately, briefly, and

compassionately addressed at trial. Testimony about the

abortion was not presented in an inflammatory or

sensational manner. It was mentioned but once in a factual

manner. The totality of the testimony is contained in two

pages of transcript”®. The testimony concerning Ms.

Bynum’s abortion was limited to the following examination:

27 Pennsylvania Rules of Evidence, Rule 403.

28 Morrison v. Commonwealth, 538 Pa. 122, 646 A.2d 565 (1994);

Commonwealth v. Boyle, 498, 447 A.2d 250 (1982); Brinch v. Jounce,

757 A.2d 388 (Pa.Super. 2000); Henery v. Shadle, 443 Pa.Super 331, 661

A.2d 142 (1996).

29 N.T. 6/5/00, at 126-127.

33a

(Mr. Britton) Q: I think that what we were going

through is that you were pregnant three times. You

were pregnant-this time was one time. You had a

daughter who was 9 years old. That was the second

time. And the third time that you were pregnant

was in 1992.

And am I not correct, that that “pregnancy

terminated in an abortion?

[Ms. Bynum] A: Yes sir.°°

Q: Ms. Bynum, I was beginning to show you the

records for the visit on 12/20 and there was this

issue of one of the three pregnancies had been

terminated in an abortion. And I think we were at

that point and time we took a break.

When you came into the clinic- this is a Jefferson

University Family Planning - it indicates that you

first came on 4/30/96. Does that generally comport

with approximately the time you came to the family

Planning Clinic?

A: Yes sir.

Q: Do you-at the bottom here- well it has your

address. And that was your address at the time; was

it not?

A: Yes sir.

Q: You have in front of you, and you can look at it if

you, like.

It indicates that you were pregnant before, and you

indicated at that time two pregnancies.

Number of abortions, one. That’s correct; is it not?

A: yes sir.*?

30 N.T.-6/5/00, at 104.

31 N.T.-6/5/00, at 125-126.

34a

Plaintiffs were not prejudiced by the admission of Ms.

Bynum’s prior abortion, nor her contemplation of aborting

this pregnancy. The evidence was admissible to rebut

plaintiffs’ claim of medical tampering with the records and

to give a full picture to evaluate the only damages claimed,

the parents emotional distress resulting from a “late”

discovery of miscarriage*”.

Finally, plaintiffs claim that the verdict was improperly

received. Prior to Jury deliberations, the Court advised the

jury that due to personal obligations no verdict would be

taken after 4:00 p.m., but the jury could continue

deliberating as long as they chose that day. If no verdict

was reached by 4:00, any verdict reached would be delivered

the next day. In the presence of counsel the jury was told:

“We will permit you to deliberate as long as you like

today; but I want to tell you that I will be leaving

City Hall sometime between 3:30 and 4:00, and

there will be no verdict taken after I leave. My son

is graduating from eighth grade. I will be there, or I

won’t be around the next day. But you may

continue deliberating until five, or if you chose;

you can leave any time after 3:30 that you say,

’Okay, let’s come back tomorrow.’ Now in saying

this, I do not in any way want to imply that you

should rush a verdict and that it would be

reasonable or unreasonable for you to conclude

your deliberations by 3:30 today. That is entirely up

to you. And I hope I’m not rushing you. I trust that

I’m not. You will do what you need to do in order to

fairly render the proper verdict in this case. I am

certain of that.**”

The length of the Jury deliberations is within the

Judge’s discretion and will only be reversed if there is a

32 The Court notes that in finding no negligence the jury accepted

defendant’s evidence that there was a live fetus at the medical visit.

33 N.T.- 6/8/200, at 696.

35a

finding of abuse of discretion or if the verdict was the

product of coercion or an overworked fatigued jury®*. In

Commonwealth v. Gartner, the jury deliberated from 2:55

p.m. until 12:20 a.m., at 12:20 the trial judge encouraged the

jury to continue deliberating, but gave them the option of

taking a rest. The jury continued to deliberate and reached a

verdict at 2:55 a.m. The Supreme Court found no coercion as

“(t)he Court offered the jurors the opportunity to suspend

their deliberations in order to rest for the night, but they

apparently preferred to attempt a speedy resolution of the

case*’.” Likewise, in this case there is no support for the

allegation that the Jury suffered fatigue or was coerced, and

there is no allegation that plaintiffs suffered any prejudice.

Further, plaintiffs raised no objection either when this

instruction was given, or when the verdict was taken at 3:50

p.m.*°. In order to preserve an issue for review, a party must

make a timely objection®’. No objection was raised until Post

Verdict Motions were filed. Only after the verdict was

rendered was any objection raised in Post Verdict Motions.

For the aforementioned reasons, the judgement of the

Court should be affirmed.

BY THE COURT

/s/ MARK I. BERNSTEIN, J.

MARK I. BERNSTEIN, J.

May 16, 2001

DATE

34 Commonwealth v. Gartner, 475 Pa. 512, 381 A.2d 114 (1997).

35 Id. at 531.

36 Plaintiffs claim the verdict was received at 3:30 p.m., however, the

copy of the timed notes of testimony reveals that the verdict was taken at

3:50 p.m.

37 Dilliplaine v. Lehigh Valley Trust Company, 457 Pa. 255, 322 A.2d

114(1974). ’