Steltz, C. v. Meyers M.D., W., Aplts. ( 2021 )

[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
[J-51-2021] - 12
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?
[J-51-2021] - 13
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
[J-51-2021] - 15
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
[J-51-2021] - 16
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.
[J-51-2021] - 17
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
[J-51-2021] - 18
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-
[J-51-2021] - 19
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.
[J-51-2021] - 20
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
[J-51-2021] - 21
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.
[J-51-2021] - 23