Peter Ponzini v. Monroe County ( 2019 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
Nos. 17-2921 & 17-3133
____________
PETER PONZINI; MIRYEM BARBAROS
as Co-Administrators of the Estate of
Mumun Barbaros, deceased,
Appellants
v.
MONROE COUNTY; WARDEN DONNA M. ASURE;
RICH CUTH; CPT. GEORGE KUMBURIS;
CO JESSE CLEARE; CO J. PARKER;
CO ROBERT OVERFIELD; CO GARY MOWRY;
CO NORMA L. ELMORE; CO ERIN DEVERS;
SGT. HAIDLE; PRIMECARE MEDICAL INC.;
DR. ALEX THOMAS; DR. WILLIAM BUFFTON;
DR. DEBORAH WILSON; CHRISTINA ROWE;
PATRICIA BAUER; WENDY JOHNSON;
C. ROVE; PAUL S. JAMES;
NURSE GRACE RAMOS; JOHN DOE, PSS;
JOHN DOE I; JOHN DOE II, JOHN DOE III;
JOHN DOE IV; JOHN DOE V
______________
Appeal from the United States District Court
for the Middle District of Pennsylvania
(District Court No. 3-11-cv-00413)
District Judge: Hon. Robert D. Mariani
______________
Argued: March 14, 2019
______________
Before: McKEE, ROTH, and FUENTES, Circuit Judges.
(Opinion filed: November 21, 2019)
Brian S. Chacker [ARGUED]
Gay & Chacker, P.C.
1731 Spring Garden Street
Philadelphia, PA 19130
Counsel for Appellants/Cross-Appellees in 17-2921
Robert L. Byer [ARGUED]
Andrew R. Sperl
John E. Moriarty
Duane Morris LLP
30 South 17th Street
Philadelphia, PA 19103
Counsel for Appellees/Cross-Appellants in 17-3133
_______________________
OPINION
_______________________
McKEE, Circuit Judge.
Peter Ponzini and Miryem Barbaros, co-administrators of the estate of Mumun
Barbaros (collectively “Plaintiffs”), appeal the District Court’s order granting PrimeCare
Medical, Inc.’s Motion for Judgment Notwithstanding the Verdict which reversed the
jury’s award of $8,000,000 in punitive damages. PrimeCare, Paul James, Patricia Bauer,
Christina Rowe, Wendy Johnson, and Grace Ramos (collectively, the “PrimeCare
Defendants”) cross-appeal the District Court’s denial of their Motion for a New Trial
based on allegedly misleading jury instructions. For the reasons that follow, we will

This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
2
reverse the Court’s order granting JNOV and we will affirm the order denying the
PrimeCare Defendants’ motion for a new trial.
I.1
Under Pennsylvania law, “[p]unitive damages may be awarded for conduct that is
outrageous, because of the defendant’s evil motive or his reckless indifference to the
rights of others.”2 Accordingly, “a punitive damages claim must be supported by
evidence sufficient to establish that (1) a defendant had a subjective appreciation of the
risk of harm to which the plaintiff was exposed and that (2) he acted, or failed to act, as
the case may be, in conscious disregard of that risk.”3
The Pennsylvania Supreme Court has held that the determination of whether a
defendant’s actions are reckless lies within the sound discretion of the fact finder.4
Therefore, a court should set aside a punitive damages claim “only when no reasonable
inference from the facts alleged supports an award of punitive damages.”5 It is now firmly
established that a hospital may be held directly, not merely vicariously, liable for failure to
oversee all persons providing patient care as well as for failing to adopt/enforce rules and
policies adequate to ensure quality care. Those are all non-delegable duties owed directly
1
The District Court had original jurisdiction over the case pursuant to 28 U.S.C. § § § 1331,
1341(1), (3) and (4), 1343(a)(3) and (4). The District Court had supplemental jurisdiction
to address state law claims under 28 U.S.C. § 1376(a). We have appellate jurisdiction
pursuant to U.S.C. § 1291.
2
Hutchison ex rel. Hutchison v. Luddy, 582 Pa. 114, 121 (Pa. 2005) (internal quotation
marks and citations omitted).
3
Id. at 124.
4
See SHV Coal, Inc. v. Cont’l Grain, Co., 587 A.2d 702, 705 (Pa. 1991).
5
Eagle Traffic Control v. Addco, 889 F. Supp. 200, 201 (E.D. Pa. 1995) (citing Trotman v.
Mecchella, 618 A.2d 982, 985 (Pa. Super 1992)).
3
to the patient.6 Thus, when healthcare institutions act (or fail to act) with intentional or
reckless disregard for a patient’s health and welfare, they may be held liable for punitive
damages.7
In overturning the jury’s award of punitive damages, the District Court concluded,
“[v]iewing all the evidence in the light most favorable to the Plaintiffs, no reasonable jury
could find PrimeCare’s conduct sufficiently recklessly indifferent so as to warrant
punitive damages under Pennsylvania law.”8 We disagree.
Plaintiffs introduced more than sufficient evidence to support their claim for
punitive damages. From the moment Barbaros entered MCCF, every person who
interacted with him or was involved in his “care” violated policies and procedures
intended to ensure proper communication and patient safety. The record is filled with
evidence of policies ignored, medical records not reviewed, medical orders not followed,
medication prescribed but not given (after verification), and PrimeCare ignoring nursing
staff complaints about insufficient staffing and doctors not visiting MCCF sufficiently
frequently. The evidence is clearly sufficient to allow a reasonable juror to conclude that
PrimeCare recklessly disregarded Barbados’s welfare; and the jury here did just that.
Viewing the evidence in the light most favorable to Plaintiffs (as we must), we
conclude that the jury could easily find that PrimeCare is a company that regularly
misrepresents its operational structure, fails to properly supervise its staff, and takes
6
See Thompson v. Nason Hosp., 591 A.2d 703, 707–08 (Pa. 1991).
7
See Scam pone v. Grane Healthcare Co., 11 A.3d 967, 989–92 (Pa. Super. 2010)
(scheduling unqualified and insufficient staff justified punitive damages).
8
Ponzini v. PrimeCare Med., Inc., 269 F. Supp. 3d 444, 544 (M.D. Pa. Aug. 30, 2017).
4
affirmative steps to mislead the public and the government. Therefore, the record
supports the jury’s conclusion that PrimeCare’s actions were “of such an outrageous
nature as to demonstrate intentional, willful, wanton or reckless conduct.”9
As noted at the outset, the District Court should only have set the punitive damages
award aside if “no reasonable inference from the facts alleged support[ed] [the] award of
punitive damages.”10 That is simply not the case here. Therefore, we will reverse the
District Court’s order vacating the award of punitive damages.
II.
The PrimeCare Defendants argue that they are entitled to a new trial because the
District Court erroneously charged the jury on negligence per se. Federal Rule of Civil
Procedure 59 provides that a new trial may be granted “after a jury trial, for any reason for
which a new trial has heretofore been granted in an action at law in federal court.”
Although Rule 59 does not enumerate specifics, “[a] court may grant a new trial on the
grounds of: (1) improper admission or exclusion of evidence; (2) improper instructions to
the jury; (3) misconduct of counsel; (4) newly discovered evidence; or (5) a finding that
the jury’s verdict is against the weight of the evidence.”11 The decision to grant a new
trial is within the sound discretion of the trial court, and such requests are disfavored.12
9
Addco, 889 F. Supp. at 201.
10
Id.
11
Davis v. Gen. Acc. Ins. Co. of Am., 153 F. Supp. 2d 598, 600 (E.D. Pa. 2001).
12
Williamson v. Consol. Rail Corp., 926 F.2d 1344, 1353 (3d Cir. 1991).
5
In evaluating a motion for a new trial, we must first determine whether an error was
in fact made, and then decide “whether that error was so prejudicial that refusal to grant a
new trial would be inconsistent with substantial justice.”13
When the motion is based on the court’s jury instructions, a new trial is warranted
only if the instructions, taken as a whole, “fail[ ] to ‘fairly and adequately’ present the
issues in the case without confusing or misleading the jury.”14 “It is well settled that a
trial judge has substantial discretion to select the language to be used in instructing the
jury on the law so long as the judge’s instructions are correct and do not omit essentials.”15
“We generally review jury instructions for abuse of discretion to determine whether
they are misleading or inadequate. However, when the question is whether the
instructions misstate the law, our review is plenary.”16 “The trial court should be reversed
only if the instruction was capable of confusing and thereby misleading the jury.”17
Here, “[a]s the Court stated on the record, Plaintiffs requested a negligence per se
instruction on two grounds, but the Court declined to give that instruction. Instead, the
Court, upon Plaintiffs’ request, directed the jury to an uncontroversial definition contained
in Pennsylvania’s statutes and nursing regulations.”18 That portion of the charge read as
follows:
13
Farra v. Stanley–Bostitch, Inc., 838 F. Supp. 1021, 1026 (E.D. Pa. 1993) (internal
citations and quotation marks omitted).
14
Donlin v. Philips Lighting N. Am. Corp., 581 F.3d 73, 79 (3d Cir. 2009) (quoting United
States v. Ellis, 156 F.3d 493, 498 n.7 (3d Cir. 1998)).
15
United States v. Tiller, 302 F.3d 98, 105 (3d Cir. 2002).
16
Woodson v. Scott Paper Co., 109 F.3d 913, 929 (3d Cir 1997).
17
United States v. Fischbach and Moore, Inc., 750 F.2d 1183, 1195 (3d Cir. 1984).
18
Ponzini, 269 F. Supp. 3d at 550.
6
D. Negligence Per Se. Violation of Statute.
Pennsylvania law in effect at the time this alleged harm occurred, The
Practical Nurse Law defines the practice of practical nursing as the
performance of selected nursing acts in the care of the ill, injured or infirm,
under the direction of a licensed professional nurse or a licensed physician,
which do not require the specialized skill, judgment and knowledge required
in professional nursing.19
We review the instruction for an abuse of discretion because the issue is not
whether the trial judge misstated the law, it is whether his instruction was confusing and
thereby misleading.20 We have long held that “we consider the totality of the instructions
and not a particular sentence or paragraph in isolation.”21
When the mention of negligence per se is viewed in context with the instruction as
a whole, we are satisfied that the Court never actually instructed the jury on negligence
per se. Instead, the Court gave the statutory definition of practical nursing but labeled it
as: “D. Negligence Per Se. Violation of Statute.”22 The negligence per se “title” was
clearly more of a typographical mistake than an error of law or a misleading instruction on
the law. We cannot conclude that the insertion of that lone phrase (which was almost
certainly inadvertently “pasted” into the instruction) suggested to the jury that it should
consider whether any of the PrimeCare Defendants were, in fact, negligent per se. This is
reinforced by the fact that the Court did not instruct on a legal standard, the violation of
19
Ohio App. 3334–35.
20
See Woodson, 109 F.3d at 929; see also Bolden v. Se. Pa. Transp. Auth, 21 F.3d 29, 33
(3d Cir. 1994) (“Absent an error of law, decisions as to proposed jury instructions are
generally subject to review only for abuse of discretion.”).
21
In re Braen, 900 F.2d 621, 626 (3d Cir. 1990).
22
Ohio App. 3334.
7
which would have been necessary to establish per se negligence.23 In fact, the Court never
even explained the concept of negligence per se and we do not think a fair and objective
reading of that language, in context with the entire charge, could have somehow sent the
jury down the path of deliberating about whether the evidence established per se
negligence, a concept they were never informed about.
An error is harmless when there is a “high probability” that the discretionary error
did not contribute to the verdict.24 Moreover, an error is harmless only if “in light of the
total record here, we are satisfied that no jury would have found for the defendant solely
on the basis of the [] instruction.”25
The PrimeCare Defendants’ claim of error requires us to view the jury instruction
titled negligence per se in the limited scope of the statements before and immediately after
the erroneously inserted title rather than viewing the entirety of the charge. The phrase
“negligence per se” was merely a title. It was an extraneous phrase in the midst of a
legally correct instruction. We do not believe that it created a sufficient probability of jury
confusion to negate the jury’s verdict. It was simply not that confusing or misleading. It
was a recitation of the nursing statute; it was not a negligence per se instruction, and we
doubt that a reasonable jury could have interpreted it as anything other than that. The
23
See United States v. Dobson, 419 F.3d 231 (3d Cir. 2005) (holding that the district court
must instruct the jury on a legal standard necessary to establish the charge before it).
24
Langbord v. U.S. Dep’t of Treasury, 832 F.3d 170, 196 (3d Cir. 2016) (en banc).
25
Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 357 (3d Cir. 1999) (quoting Hurley v.
Atlantic City Police Dep’t, 174 F.3d 95, 121 (3d Cir. 1999)) (internal quotation marks
omitted).
8
PrimeCare Defendants do not argue that it contained an inappropriate definition of the
practice of practical nursing.
Given the totality of the charge, inclusion of the phrase negligence per se “was
harmless because ‘it is highly probable that [it] did not affect the outcome of the case.’”26
We therefore agree with the District Court’s conclusion that it was not “prejudicial and
does not entitle the PrimeCare Defendants to a new trial.”27 Thus, we will affirm the
District Court’s denial of the PrimeCare Defendants’ motion for a new trial.
III.
For the foregoing reasons, the judgment entered by the District Court on August
30, 2017 will be vacated in part and affirmed in part. The grant of JNOV will be reversed
and the denial of PrimeCare Defendants’ motion for a new trial will be affirmed.
26
Marshak v. Treadwell, 240 F.3d 184 (3d Cir. 2001) (quoting West v. Philadelphia Elec.
Co., 45 F.3d 744, 752 (3d Cir. 1995)).
27
Ponzini, 269 F. Supp. 3d at 550.
9
Ponzini v. Monroe County
Nos. 17-2921 & 17-3133
ROTH, Circuit Judge, concurring in part and dissenting in part:
I agree with my colleagues that the District Court erred in granting PrimeCare’s
renewed motion for judgment as a matter of law on the issue of punitive damages. I
disagree, however, with their conclusion that the District Court’s negligence instruction
was not capable of confusing or misleading the jury. I would reverse the judgment
against PrimeCare on that issue and remand this case for a new trial.
I
After the close of evidence, the District Court charged the jury, including on the
question of PrimeCare’s negligence. That section, numbered as 17, provided an
overview about theories of negligence:
17. Plaintiffs’ negligence care against PrimeCare Medical, Inc. In addition
to Plaintiffs’ claims against [individual defendants], Plaintiffs have also
brought a claim against Defendant PrimeCare Medical, Inc. for negligence.
PrimeCare Medical, Inc. may be liable under any of the following three
theories of negligence: 1. Respondeat superior. 2. Liability for its
independent contractors, and/or; 3. Direct corporate liability. I will instruct
you on each theory of liability.1
The District Court provided detailed explanations of those three theories of negligence
under the headings “A. Respondeat Superior,” “B. Liability for Independent Contractor,”
1
Ohio App. 3332.
1
and “C. Corporate Liability of PrimeCare Medical, Inc.”2 For each theory of negligence,
the District Court laid out, in numbered lists, what the jury would have to find to
conclude that PrimeCare was negligent.
Following those three headings, under the heading “D. Negligence Per Se.
Violation of Statute,” the statutory definition of “Practical Nursing” was set out.3 The
District Court gave no explanation for the relevance of the statute or how the jury should
consider the statute. The District Court then proceeded directly to “18. Negligence.
Damages.”4
After the verdict was returned, PrimeCare filed a Rule 50(b) motion for judgment
as a matter of law and a new trial. In relevant part, the District Court denied the motion
for a new trial because “the Court cannot say that either providing the definition of the
practice of practical nursing to the jury (which was not a negligence per se instruction) or
2
Ohio App. 3332–33. These three headings, along with all other headings, were read to the
jury out loud.
3
“Pennsylvania law in effect at the time this alleged harm occurred, The Practical
Nursing Law, defines the practice of practical nursing as the performance of selected
nursing acts in the care of the ill, injured or infirm, under the direction of a licensed
professional nurse or a licensed physician, which do not require the specialized skill,
judgment and knowledge required in professional nursing.” App. 3334.
4
Ohio App. 3335. The discrepancy between the “three theories of negligence” and the four
headers A–D was the result of plaintiffs’ counsel requesting a full negligence per se
charge during a prior colloquy regarding changes to the District Court’s proposed
instructions. Ultimately, as a compromise, the District Court agreed to add paragraph D
despite concerns that it would appear “that these laws dictate the duty of care.” App.
3108. Notably, the District Court had forbidden plaintiff’s counsel from asking witness
questions geared toward negligence per se.
2
permitting Plaintiffs to argue that PrimeCare failed to comply with the regulation[ ] was
in error.”5
II
Jury instructions are reviewed for legal accuracy de novo. Misleading and
inaccurate instructions are reviewed for an abuse of discretion.6 A “failure to use the
exact words requested by counsel is not reversible error” if the instructions were
“accurate in substance and understandable to lay persons.”7 Reversal is appropriate,
however, if “the instruction was capable of confusing and thereby misleading the jury.”8
There is no dispute over the accuracy of the quotation of the Practical Nursing
Statute. However, in view of the heading “Negligence Per Se-Violation of Statute,” the
instruction was sufficiently misleading that even the District Court and the parties could
not agree whether negligence per se had been charged. All parties fully briefed the issue
on appeal as if negligence per se had actually been charged. The District Court had taken
the opposite position in its memorandum opinion, stating that “[i]t is apparent that the
Court did not charge the jury in accordance with a negligence per se instruction (despite
the label of the instruction stating ‘Negligence Per Se-Violation of Statute’).”9 This
disagreement alone is sufficient to demonstrate that the jury instruction was capable of
confusing the jury. The majority, however, fails to address the parties’ framing of the
5
Ohio App. 186 (emphasis added).
6
Difiore v. CSL Berhing, LLC, 879 F.3d 71, 75 (3d Cir. 2018).
7
Id. (quoting Williams v. Mussomelli, 722 F.2d 1130, 1134 (3d Cir. 1983)).
8
Grazier ex rel. White v. City of Philadelphia, 328 F.3d 120, 126 (3d Cir. 2003) (citing
United States v. Fishbach & Moore, Inc., 750 F.2d 1183, 1195 (3d Cir. 1984)).
9
Ohio App. 179.
3
instruction and claims that the inclusion of the phrase “negligence per se” is insufficient
to cause confusion.
The substance of the instruction fares no better. The majority emphasizes that “the
totality of the instructions and not a particular sentence or paragraph in isolation” needs
to be considered.10 But doing so here weakens the majority’s argument: While the
District Court described the definition in the instruction as “uncontroversial,”11 its
placement within the broader negligence instruction invites confusion. The charge
followed three theories of negligence under which PrimeCare would be liable. These
three theories were introduced by headings labeled A, B, and C, and each heading was
followed by a short legal explanation of the theory and what the jurors had to find based
on their factual determinations. A section titled “D. Negligence per se” followed,
consisting solely of the “Practical Nursing” statutory definition.12 It would be a logical
assumption for the jury to conclude that negligence per se was meant to be a fourth
theory of liability and that the performance or misperformance of the duties of practical
nursing was the basis for that claim.
The District Court’s reliance on Prum v. Crisante13 to support its ruling is
instructive. The court in Prum, like the District Court here, declined to give a negligence
10
In re Braen, 900 F.2d 621, 626 (3d Cir. 1990); accord Maj. Op. at 6–7.
11
Ohio App. 180.
12
Ohio App. 3334–35.
13
No. 14-4829, 2016 WL 7201233 (E.D. Pa. Apr. 29, 2016).
4
per se jury instruction and instead instructed the jury on the applicable law.14 Unlike in
the instant case, however, the instruction continued:
Mr. Prum claims that the defendant, Mr. Crisante, violated these laws. In
turn, Mr. Crisante claims that Mr. Prum violated these laws. If you find that
either party violated the law, you may consider this evidence in determining
whether either party was negligent in this case.15
The instruction in Prum made it clear what the jury should do with the applicable law
provided to it.16
Here, the only guidance the jury received along with the statutory definition was
the heading “Violation of Statute. Negligence Per Se.”17 The text of this instruction
provided no indication to the jury that the negligence per se section was not to be
assessed as an independent theory of liability like the prior three sections. The plain
reading of this heading by a layperson would be that a violation of the Practical Nursing
statute would, without more, be enough to find negligence on the part of PrimeCare.18
The jury was therefore easily capable of being misled to assume that section D was a
theory of liability, just as were sections A, B, and C.
III
14
Id. at *1 n.1.
15
Id.
16
The District Court’s reproduction of Pennsylvania’s Suggested Standard Jury
Instructions is similar, explicitly mentioning that a statutory violation is “evidence you
must consider, along with all other evidence, in deciding whether [name of defendant]
was negligent.” App. 179 (bracket in original).
17
Ohio App. 159.
18
Cf. Hill v. Reederei F. Laeisz G.M.B.H., Rostock, 435 F.3d 404, 420 (3d Cir. 2006)
(looking to the “ordinary meanings” of a term in a jury instruction to determine whether
it was confusing or misleading).
5
For the above reasons, I would reverse the judgment of the District Court and
remand this case for a new trial.
6