Buttaccio, M. v. American Premier Underwriters , 175 A.3d 311 ( 2017 )

J-A02041-17
2017 Pa. Super. 368
MIKE BUTTACCIO IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
AMERICAN PREMIER UNDERWRITERS,
INC., FORMERLY KNOWN AS
PENN CENTRAL CORPORATION,
INDIVIDUALLY AND/OR AS
SUCCESSOR-IN-INTEREST-OR-LIABILITY
TO PENN CENTRAL
TRANSPORTATION COMPANY, THE
PENNSYLVANIA NEW YORK
CENTRAL RAILROAD COMPANY, AND/OR
THE PENNSYLVANIA
RAILROAD, CONSOLIDATED RAIL
CORPORATION AND CSX
TRANSPORTATION, INC.,
Appellants No. 1602 EDA 2016
Appeal from the Judgment Entered April 27, 2016
in the Court of Common Pleas of Philadelphia County Civil Division
at No(s):May Term 2014 No. 2115
BEFORE: OTT, RANSOM, and FITZGERALD,* JJ.
OPINION BY FITZGERALD, J.: FILED NOVEMBER 16, 2017
Appellants, American Premier Underwriters, Inc. (“Penn Central”),
Consolidated Rail Corporation (“Conrail”), and CSX Transportation, Inc.
(“CSX”) (collectively referred to as “Appellants” or “the railroads”), appeal
from a judgment of $597,000.00 entered in favor of Appellee, Mike
Buttaccio, in this personal injury action under the Federal Employers’
Liability Act (“FELA”), 45 U.S.C. §§ 51-60. Appellants argue that the trial
*
Former Justice specially assigned to the Superior Court.
J-A02041-17
court abused its discretion by denying their motion to exclude the testimony
of Appellee’s liability expert on the ground that his methodology is not
generally accepted in the field of ergonomics. Second, Appellants request a
new trial on the grounds that counsel for Appellee repeatedly violated the
trial court’s order precluding evidence and argument about the manpower
that Appellants provided, and counsel made a highly prejudicial comment
that “‘two employees of CSX were killed’” in an unrelated accident.
Appellants’ Brief at 42. Finally, Appellants contend that the trial court erred
by permitting Appellee’s liability expert to introduce evidence that Appellants
“received ‘thousands of claims [from other employees] for carpal tunnel
syndrome and lower extremity disorders and upper extremity disorders as
well.’” Id. at 43.
We hold that the trial court acted within its discretion in determining
that the methodology of Appellee’s liability expert was generally accepted in
the field of ergonomics. We conclude, however, that Appellants are entitled
to a new trial because of Appellee’s counsel’s violations of the preclusion
order and prejudicial remark concerning the death of two CSX employees.
With regard to Appellants’ final argument, we direct the trial court to hold an
evidentiary hearing on remand as to the admissibility of Appellee’s “other
claims” evidence.
Appellee brought this action against his railroad employers to recover
for his occupational injuries and economic damages. Appellee began his
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employment in 1973 as a carman for Penn Central, and he later worked as a
carman and car inspector at the railyard in Rochester, New York. R.R.
615a.1 In these capacities, he repaired freight cars, changed brake valves
and wheel sets, and generally kept the cars in working order. Id. at 599-
601a. This work required him frequently to kneel or squat next to or under
rail cars and climb onto, up, down, over and under rail cars while lifting and
using heavy vibrating tools. Id. at 988a-89a, 1000a, 1004a-05a, 1011a-
12a, 1016a-19a, 1042a-43a, 1049a-50a, 1061a-65a. Appellee claimed that
his many years of heavy work, combined with frequent awkward postures,
caused gradual development of career-ending shoulder, knee and carpal
tunnel injuries. N.T., 11/13/15, at 41-60 (Appellee’s closing argument). Dr.
Andres, Appellee’s liability expert, testified that Appellee’s job duties
exposed his shoulders and knees to “high-force exertions,” and that
Appellants “could have minimized the effects of [Appellee’s] exposure to
these risk factors” but failed to do so. Id. at 373a-74a, 1360a-62a.
The jury found for Appellee and awarded him $600,000, which the trial
court molded to $597,000 to reflect the jury’s finding that Appellee was .5%
comparatively negligent. The trial court denied Appellants’ post-trial
motions and entered judgment in favor of Appellee. Appellants filed a timely
appeal, and Appellants and the trial court complied with Pa.R.A.P. 1925.
1
Whenever possible, for the convenience of the parties, we cite to the
reproduced record.
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Appellants raise the following issues in this appeal:
1. Should the trial court have excluded [Appellee’s] liability
expert where [Appellee] failed to show that the expert’s
methodology is generally accepted in the field of
ergonomics or reliable?
2. Are [Appellants] entitled to a new trial where
[Appellee’s] counsel repeatedly and intentionally violated
the trial court’s ruling on a motion in limine and made an
inflammatory and highly prejudicial comment about the
unrelated details of two railroad employees?
3. Did the trial court commit reversible error by admitting
into evidence testimony about “thousands of claims”
against [Appellants] by other employees, despite
[Appellee’s] failure to show that these claims were
substantially similar to the facts in this case?
Appellants’ Brief at 3.
In their first argument, Appellants object to the trial court’s order
denying their motion to exclude Dr. Andres’ expert testimony. According to
Appellants, Dr. Andres’ methodology is not generally accepted in the field of
ergonomics, and he failed to objectively measure the actual forces to which
Appellee was exposed on the job. More specifically, Appellants argue that
Dr. Andres failed to provide “objective ergonomic data that identifies
[Appellee’s] work tasks as being repetitive or exposing [Appellee] to
awkward postures or forceful tasks” and failed to articulate steps that the
railroads should have taken to minimize risk factors. Id. at 20, 26. We
disagree.
“[T]he admission of expert scientific testimony is an evidentiary matter
for the trial court’s discretion and should not be disturbed on appeal unless
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the trial court abuses its discretion.” See Grady v. Frito-Lay, Inc., 839
A.2d 1038, 1046 (Pa. 2003).
The Rules of Evidence provide:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form
of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized
knowledge is beyond that possessed by the average
layperson;
(b) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue; and
(c) the expert’s methodology is generally accepted in
the relevant field.
Pa.R.E. 702. The proponent of expert scientific evidence bears the burden of
establishing all of the elements for its admission under Pa.R.E. 702, which
includes showing that the rule in Frye v. United States, 293 F. 1013 (D.C.
Cir. 1923), is satisfied. See Grady, 839 A.2d at 1045. Frye, which is now
embodied in Pa.R.E. 702(c), instructs that the court should not admit
scientific evidence during trial unless the underlying methodology has gained
general acceptance in the scientific community. See Commonwealth v.
Topa, 369 A.2d 1277, 1281-82 (Pa. 1977). "Frye does not apply to every
time science enters the courtroom . . . Frye does apply, however, where an
expert witness employs a novel scientific methodology in reaching his or her
conclusion.” Folger ex rel. Folger v. Dugan, 876 A.2d 1049, 1058 (Pa.
Super. 2005) (en banc) (citations omitted). One method to assess a Frye
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motion is to conduct a Frye hearing, although a hearing is not mandatory.
See id. (“[t]he trial court did not err in declining to conduct a Frye
hearing”).
Dr. Andres, a bioengineer and ergonomist2 for thirty-five years, has
published hundreds of publications, abstracts, technical reports and trade
notes on ergonomics in peer-reviewed publications and has received multiple
grants to perform ergonomic research from organizations such as NASA,
OSHA and the National Institute of Occupational Safety and Health. R.R.
382a-87a, 392a-93a. He has performed twenty-four site inspections of
carmen’s workplaces, ten of which were CSX workplaces. Id. at 281a,
382a-87a, 1304a. Dr. Andres interviewed Appellee, reviewed his medical
records, and read his deposition detailing his work as a carman. Id. at
281a-82a, 1328a-29a, 1360a. Additionally, Dr. Andres reviewed the
analysis of numerous railroad industry consultants concerning the frequency
of carmen’s tasks, the forces created by performing these tasks, the
2
“Ergonomics is the science of fitting workplace conditions and job demands
to the capabilities of the working population.” Ahmed v. Keystone
Shipping Co., 2012 WL 5300094, at *5 (E.D. Mich. 2012) (citing
Occupational Safety and Health Administration’s definition of ergonomics).
Federal courts have held that “ergonomics is an accepted scientific field,”
Hewitt v. Metro-North Commuter Railroad, 244 F. Supp. 3d 379, 390
(S.D.N.Y. 2017), and this Court has implicitly signified its agreement. See
Zito v. Merit Outlet Stores, 647 A.2d 573, 574, 576 (Pa. Super. 1994)
(reversing nonsuit in slip-and-fall action against store based in part on
ergonomic expert’s testimony that ramp was too steep). We need not
formally decide this question here. Appellants appear to accept that
ergonomics is a generally accepted scientific field; they only dispute whether
Dr. Andres’ methodology is generally accepted in the field of ergonomics.
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duration of these tasks and the risk factors for musculoskeletal disorders
created by these tasks. Id. at 304a-08a. Based on this data, Dr. Andres
performed a Three Dimensional Static Strength Prediction Program
(“3DSSPP”) biomechanical modeling of some of Appellee’s tasks, Id. at
348a-55a, and concluded that these tasks violated the “strength criterion”
for Appellee’s shoulder and knee. Id. at 1354a-55a.
The trial court concluded that no need existed to hold a Frye hearing,
because Dr. Andres’ opinion
was not based on a novel methodology. . . . Dr. Andres’
testimony and expert report were based upon his
education, biometric and ergonomics programs based on
publications from NASA, the National Institute of
Occupational Safety and Health, the Occupational Safety
and Health Administration, and the Federal Railroad
Administration. Additionally, Dr. Andres performed
twenty-four site inspections of railroad carmens’
workplaces and visited the Rochester Yard in preparation
for another FELA case . . .
The [c]ourt properly denied Appellants’ motion to preclude
Dr. Andres’ testimony as it was for the jury to decide the
weight to be given to Dr. Andres’ testimony after hearing
his qualifications and the facts, data and conclusions upon
which he based his opinions.
Trial Ct. Op., 7/27/16, at 6.
This ruling was well within the trial court’s discretion. The court’s
analysis is consistent with decisions in other FELA cases finding that the
methodology of Dr. Andres himself and other ergonomists is generally
accepted in the ergonomic community. See Hewitt, 244 F. Supp. 3d at
391 (Dr. Andres “employs multiple methodologies that are generally
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accepted in the field of ergonomics”); Rowley v. Union Pacific Railroad
Co., 2016 WL 6561296, *1-*2 (E.D. Wis. 2016) (ergonomic expert based
opinion on interview with plaintiff, depositions of two of plaintiff’s coworkers,
safety videos from defendant railroad, various scientific literature, and
expert’s own experience, education, and training; expert’s opinion that
exposure to recognized ergonomic risk factors—including awkward postures,
forceful exertions, repetitive motions, contact stresses, and cold
temperatures—can cause musculoskeletal disorders is “generally accepted
within the ergonomic and scientific communities”); Powers v. Union
Pacific R. Co., 2009 WL 734707, *2 (E.D. Tex. 2009) (Dr. Andres testified
and based opinion on “litigation files, [plaintiff’s] work history, medical
diagnoses and treatments,” “job analysis summaries,” “scientific literature
and industry materials,” and his “28 years of experience and practice in the
field of ergonomics and over a decade of experience studying the railroad
industry”; court found this data “both sufficient as well as of the type
reasonably relied upon by experts in the field of ergonomics”).3
3
Although federal courts scrutinize expert testimony under Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), instead of Frye, there is
some overlap between these tests. Frye, as stated above, asks whether the
underlying methodology has gained general acceptance in the scientific
community. Under Daubert, one of many criteria is whether the expert’s
methodology is generally accepted within the expert’s field (although, unlike
Frye, this criterion is not necessarily dispositive). See Hewitt, 244 F.
Supp. 3d at 391; Rowley, 2016 WL 6561296, at *1-*2; Powers, 2009 WL
734707, at *2. Accordingly, these federal decisions provide persuasive
authority for our analysis to the extent that they address whether
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Appellants argue that Dr. Andres’ testimony is deficient because he
never assessed a carman’s job at the yard where Appellee worked.
Appellants’ Brief at 20. In Hewitt, the district court held that it was
unnecessary for Dr. Andres to visit the plaintiff’s jobsite before rendering his
opinion:
Metro–North objects that Dr. Andres’ opinions are
inadmissible because he never personally observed any
Metro–North employees performing the job tasks that
allegedly led to Hewitt’s injuries . . . Similarly, Metro–
North criticizes Dr. Andres for relying upon videotapes of
employees working at other railroad companies, rather
than observing employees at Metro–North itself . . . The
company also criticizes Dr. Andres for failing to observe
Hewitt perform any of the allegedly dangerous job tasks . .
.
For two reasons, the [c]ourt finds this alleged shortcoming
insufficient to warrant exclusion of Dr. Andres’ testimony.
First, the evidence before the Court suggests that the
science of ergonomics is sufficiently well-established so as
to justify admitting expert testimony on the topic, even
when the expert has not personally observed the allegedly
unsafe job environment. As other district courts have
recognized, it is well-established that “exposure to
recognized ergonomic risk factors—including awkward
postures, forceful exertions, repetitive motions, contact
stresses, and cold temperatures—can cause” certain types
of injuries and that these types of risk factors are
especially prevalent in certain workplace settings, such as
railroads. Rowley, 2016 WL 6561296, at *2; see also
Powers, 2009 WL 734707, at *4 (“That ergonomic risk
factors exist in a certain occupations and that known
remedial measures alleviate such risks has been widely
ergonomists’ methodology is generally accepted in the scientific community.
See Okeke-Henry v. Southwest Airlines, Co., 163 A.3d 1014, 1017 n.4
(Pa. Super. 2017) (decisions of lower federal courts may have persuasive,
but not binding, authority on Superior Court).
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described and accepted in the scientific community. That
corrective actions can address ergonomic risk factors has
been commonly accepted in the scientific community for
several decades.”); Ahmed [v. Keystone Shipping Co.],
2012 WL 5300094, at *6 [(E.D. Mich. 2012)] (noting that
the defendants did not “question the basic science of
ergonomics”). Additionally, the Second Circuit has
recognized that “in many cases,” the requirements of
Federal Rule of Evidence [703][4] can be met simply
through the “personal knowledge and experience of the
expert.” United States v. Litvak, 808 F.3d 160, 181 n.25
(2d Cir. 2015) (citation omitted). Given these two
considerations—the profusion of scientific literature on
ergonomics and Dr. Andres’ general familiarity with the
science—the [c]ourt concludes that Dr. Andres could
permissibly rely upon materials other than personal
observations of Hewitt to form his opinions about the
ergonomic risk factors present in Hewitt’s particular
workplace. The [c]ourt notes that other district courts
have ruled similarly. See, e.g., Rowley, 2016 WL
6561296, at *3 (rejecting argument that an ergonomics
expert’s opinions were “unreliable because he failed to . . .
conduct an on-site investigation”); Wright, 2016 WL
1183135, at *6–7 (rejecting argument that ergonomics
expert opinion should be excluded because the expert “did
not personally assess plaintiff’s work environment”);
Ahmed, 2012 WL 5300094, at *6 (rejecting argument
that Dr. Andres’ testimony should be excluded because he
had “only seen photographs of the stairway and area
where Plaintiff fell and admittedly has never visited the
ship”); Smith v. BNSF Ry. Co., [] 2011 WL 4054858, at
*4 (W.D. Okla. [] 2011) (rejecting argument that
ergonomics expert’s testimony should be excluded because
the expert “never observed Plaintiff perform his job duties,
4
Hewitt cites Federal Rule of Evidence 704. Read in context, it seems clear
that the court intended to cite Federal Rule of Evidence 703. See F.R.E. 703
(providing in relevant part that “[a]n expert may base an opinion on facts or
data in the case that the expert has been made aware of or personally
observed. If experts in the particular field would reasonably rely on those
kinds of facts or data in forming an opinion on the subject, they need not be
admissible for the opinion to be admitted”). Pennsylvania Rule of Evidence
703 is identical to this passage.
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nor did he observe any other railroad employee who held
similar duties to those performed by Plaintiff”) . . . .
Second, the [c]ourt rejects Metro–North’s argument as
inconsistent with the reality of FELA cases. Metro–North’s
arguments suggest that ergonomics expert testimony can
be admitted only if the expert personally observed the
plaintiff performing his job. But, as one district court
noted, it may be “impossible for [an ergonomics expert] to
observe plaintiff perform his job duties” because the
plaintiff’s injuries likely prevent him from continuing to
work for the defendant railway. Wright, 2016 WL
1183135, at *7; see also Rowley, 2016 WL 6561296, at
*3 (rejecting argument that it was necessary for an
ergonomics expert to personally observe the plaintiff at
work, especially when the plaintiff “ha[d] not worked for
[the defendant] in years,” meaning that “it would be
impossible to directly observe him at work now”). The
implication of Metro–North’s arguments is that virtually all
ergonomics expert testimony should be inadmissible, a
result the Court rejects given the general acceptance of
ergonomics in the scientific community and the numerous
district courts that have admitted this evidence.
Hewitt, 244 F. Supp. 3d at 388-90. We find Hewitt’s thorough analysis
persuasive and hold that Dr. Andres’ testimony was admissible. Hewitt
observed that under the Federal Rules of Evidence, it is possible for an
expert to base his opinion on “personal knowledge and experience” instead
of on-site visits. Id. at 389. The same holds true under Pa.R.E. 703, which,
as noted above, is identical to the pertinent federal rules. Dr. Andres was
permitted to base his opinion on personal knowledge and experience, given
his impressive credentials and the wealth of scholarly literature on
ergonomics, much of which is his own. While defense counsel could (and
did) argue that Dr. Andres’ failure to visit the yard where Appellee worked or
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to observe Appellee performing his job undermined the weight of his
testimony, these matters did not affect its admissibility. See K.H. ex rel.
H.S. v. Kumar, 122 A.3d 1080, 1098 (Pa. Super. 2015), appeal denied,
135 A.3d 586 (Pa. 2016) (if witness has any reasonable pretension to
specialized knowledge on subject under investigation, he may testify as
expert, and jury decides weight to give to his testimony).
Appellants also maintain that Dr. Andres never took any objective
measurements of the degree of force to which Appellee was subject.
Appellants’ Brief at 20. We disagree. To calculate levels of stress caused by
workplace tasks, Dr. Andres utilized a 3DSSPP program that “was developed
at the University of Michigan Center for Ergonomics . . . based on 24 years
of research at [this institution]. It calculates many stresses and forces,
including the stress on the low back and on the major joints of the body.”
R.R. 346a (Dr. Andres’ expert report). During trial, Dr. Andres described
this program as “computer models [with which], based on measurement of
the amount of force being exerted by the hands, we can predict the stresses
on the joints in the body.” Id. at 1350a. “[C]ompanies buy this tool,” Dr.
Andres continued, “and use [it] to analyze jobs. And what it does, based on
a person’s height and weight, i[s] calculate[] the forces at all joints and the
forces in the low back.” Id. Applying the 3DSSPP program to the job duties
described by Appellee, Id. at 348a-55a, 1350a-55a, Dr. Andres concluded
that Appellee’s knees and shoulders were “exposed . . . to recognized
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ergonomic risk factors . . .” Id. at 1357a. Nothing in Appellee’s brief
convinces us that the 3DSSPP program, or the manner in which Dr. Andres
used this program, was not generally accepted in the ergonomic
community.5
Finally, Appellants point out that two courts, including the
Commonwealth Court, have found Dr. Andres’ methodology deficient.
Appellants’ Brief at 23-25 (citing, inter alia, Davies v. SEPTA, — A.2d —,
2009 WL 9101442 (Pa. Cmwlth. 2009) (unpublished memorandum); Pretter
v. Metro North Commuter R. Co., 206 F. Supp. 2d 601 (S.D.N.Y. 2002)).
Davies reasoned that Dr. Andres “offered no testimony to show that other
ergonomists generally accept his methods” and failed to reference any
“studies showing a correlation between the work of railroad engineers and
[plaintiff’s injuries].” Id. at 9101442, *5. We are not bound by precedential
decisions of the Commonwealth Court, see Murphy v. Karnek, 160 A.3d
850, 860 n.11 (Pa. Super. 2017) (citation omitted), let alone non-
precedential opinions such as Davies. Neither are we bound by decisions of
federal district courts such as the Pretter court. See Okeke-Henry, 163
A.3d at 1017 n.4. In any event, for the reasons provided above, we
5
In a similar vein, Appellants argue that Dr. Andres failed to cite “a single
epidemiological study” that established a causal nexus between occupational
disorders and musculoskeletal disorders. Appellants’ Brief at 26. Once
again, this argument goes to the weight of Dr. Andres’ testimony, not its
admissibility. See K.H., 122 A.3d at 1098.
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disagree with Davies’ and Pretter’s holdings that Dr. Andres’ methodology
is not generally accepted in the ergonomic community.
In their second argument, Appellants seek a new trial due to the
prejudicial conduct of Appellee’s counsel during trial. We hold that counsel’s
repeated violations of the trial court’s order granting Appellants’ motion in
limine, as well as counsel’s inflammatory remark concerning the death of
two CSX carmen in an unrelated case, warrant a new trial.
Prior to trial, Appellants filed a motion in limine to preclude Appellee
from introducing evidence or argument at trial concerning his allegation that
Appellants provided inadequate manpower or that the lack of manpower
caused Appellee’s injuries. The court granted Appellants’ motion on the
ground that Appellee failed to provide any support for this allegation.
Nevertheless, counsel for Appellee repeatedly delved into the subject
of manpower during trial. During Appellee’s testimony, counsel asked “how
many carmen were assigned to work at Rochester Yard,” R.R. 978a, and
asked multiple times whether Appellee worked with a partner or had to
move heavy equipment by himself. Id. at 1157a, 1164a-65a, 1167a,
1242a. On redirect, counsel asked Appellee if he knew “of any other way
the work can be done other than the way [he] did it at the railroad.” Id. at
1732a. Counsel then asked Appellee whether “handling rerailers is a two-
man job,” whether there were times Appellee had to handle a rerailer by
himself, and approximately when that occurred. Id. at 1735a-36a.
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In addition while cross-examining Dr. Tucker, Appellants’ expert in the
field of orthopedic surgery, counsel asked whether Dr. Tucker agreed “that
there should be either a lifting device or a second person to help out lift that
retailer if and when that time comes.” Id. at 1534a. Counsel also read a
passage from Dr. Tucker’s report that stated: “[Appellee] does appear to
claim at times the railroad did not provide him with the help or manpower.”
Id. at 1545a. Further, counsel asked Dennis Broadbent, CSX’s director of
quality control, about the number of persons who worked at the Buffalo yard
and stated that there were “six carmen at [the Rochester] yard.” Id. at
1829a, 1844a. Counsel also asked Broadbent whether it was “not
appropriate for one guy to carry” a rerailer and whether “the safest way to
carry rerailers with two persons as opposed to three.” Id. at 1891a.
Counsel for Appellants objected to each of these questions. The trial
court sustained most of Appellants’ objections but declined to grant a
mistrial. Appellants also preserved their objection to “manpower” questions
in their post-trial motions. Appellants’ Post-Trial Motions, at 65-66.
The purpose of pretrial motions in limine is to “give[] the trial judge
the opportunity to weigh potentially prejudicial and harmful evidence before
the trial occurs, thus preventing the evidence from ever reaching the jury.”
See Parr v. Ford Motor Co., 109 A.3d 682, 690 (Pa. Super. 2014) (en
banc) (citation omitted). A trial court’s decision to grant or deny a motion in
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limine “is subject to an evidentiary abuse of discretion standard of review.”
Id. (citation and question marks omitted).
“[W]hen a party intentionally violates a pre-trial order, the only
remedy is a new trial, in order to promote fundamental fairness, to ensure
professional respect for the rulings of the trial court, to guarantee the
orderly administration of justice, and to preserve the sanctity of the rule of
law.” Mirabel v. Morales, 57 A.3d 144, 151 (Pa. Super. 2012) (quotation
marks omitted) (new trial warranted where counsel for plaintiff disregarded
pretrial order to refrain from discussing Comcast’s size and wealth during
closing argument in attempt to highlight economic disparities between the
parties); Poust v. Hylton, 940 A.2d 380, 387 (Pa. Super. 2007) (new trial
required in wrongful death action, where court entered order precluding
defense counsel from mentioning decedent’s cocaine use, but defense
counsel asked decedent’s treating physician whether decedent had cocaine
in his system at time of death). The Poust court aptly reasoned:
The grant of a motion in limine is a court order that must
be observed. To allow [defense] counsel to violate such a
court order, without the declaration of a mistrial, as was
immediately sought by [plaintiff’s] counsel here, would
defeat the intended purpose of such orders. Why would
counsel ever bother filing such a motion if opposing
counsel were free to blithely ignore it without the court’s
affording any relief to the offended party by way of the
grant of a mistrial upon proper application?
Id. at 385.
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Appellee does not contest that his counsel’s references to “manpower”
violated the trial court’s pretrial order. Instead, Appellee contends that they
caused no prejudice. We disagree. In the first place, Appellee did not
proffer any expert testimony that the railroads provided insufficient
manpower, so Appellee had no foundation to claim insufficient manpower.
By repeatedly injecting the manpower issue into the case, counsel drew
attention to a theory that the jury never should have heard and invited the
jury to decide the case on an improper basis. Although the trial court issued
several curative instructions to disregard counsel’s improper remarks, the
sheer number of counsel’s improper references prejudiced Appellants; they
were “too numerous to be harmless.” Pioneer Commercial Funding
Corp. v. American Fin. Mortg. Corp., 797 A.2d 269, 291 (Pa. Super.
2002), rev’d on other grounds, 855 A.2d 818 (Pa. 2004) (new trial on
punitive damages granted where plaintiff’s counsel made multiple
inflammatory remarks during closing argument); see also Hutchinson v.
Penske Truck Leasing Co., 876 A.2d 978, 987 (Pa. Super. 2005)
(plaintiff’s counsel’s repeated interjections of evidence of foreign crash test
standards, which trial court had precluded in pretrial order, was reversible
error requiring new trial); Nigra v. Walsh, 797 A.2d 353, 358 (Pa. Super.
2002) (new trial warranted in personal injury action where defense counsel
violated collateral source rule with multiple questions or comments whose
“cumulative effect” was to suggest that plaintiff was receiving social security
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disability benefits for injuries for which plaintiff sought damages in personal
injury action).
Another instance of misconduct by Appellee’s counsel provides a
separate and independent reason for granting a new trial. The following
exchange took place during Broadbent’s cross-examination:
[Counsel for Appellee]: In 2007, CSX made you director of
quality, or something like that?
[Broadbent]: Director of quality control in Jacksonville.
[Counsel for Appellee]: Was that after two carmen were
killed?
Id. at 1845a. Appellants objected and moved for a mistrial. The trial court
sustained the objection, calling counsel’s conduct “a shameless attempt to
prejudice this jury,” but did not grant a mistrial. R.R. 1846a. Counsel for
Appellants requested a curative instruction. Id. The trial court stated that it
would tell the jury to disregard the question but then failed to issue the
instruction; the court simply asked counsel for Appellee to “restate [his]
question.” R.R. 1847a.
We review the trial court’s denial of a motion for mistrial for abuse of
discretion. See Poust, 940 A.2d at 385. The law is clear that attorneys
may not make “irrelevant remarks . . . which are reasonably likely to have a
direct and prejudicial effect on the award of damages.” Narciso v. Mauch
Chunk Tp., 87 A.2d 233, 234, 235 (Pa. 1952) (new trial required due to
defense counsel’s single remark during closing argument that civil action
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was “in reality against the taxpayers of the township and not against the
township itself”). In Poust, a wrongful death action, the trial court entered
a pretrial order precluding the defendant from mentioning the word
“cocaine” during trial with reference to the decedent. Defense counsel
ignored this order by asking the decedent’s treating physician whether the
decedent had cocaine in his system. The trial court denied the plaintiff’s
motion for mistrial and declined to give a curative instruction. Following a
defense verdict, this Court reversed and remanded for a new trial, stating:
The trial court clearly abused its discretion in failing to
grant the requested relief of a mistrial, which should have
been granted to [plaintiff] immediately at the time that the
court order was violated by defense counsel. In her
violation of this pre-trial order of the court, [defense]
counsel clearly uttered the word “cocaine”, which [plaintiff]
had sought to preclude due to the potentially prejudicial
effect of the mention of that word in front of the jury.
Under Pennsylvania law, [plaintiff] was entitled to the
declaration of a mistrial, ipso facto, immediately upon
[defense] counsel’s flagrant and intentional use of this
obviously prejudicial word “cocaine”, in violation of the
prior pre-trial preclusion order of the trial court.
Poust, 940 A.2d at 385.
As in Poust, the trial court herein abused its discretion by failing to
grant a mistrial in response to the irrelevant and prejudicial remark of
counsel for Appellee about the death of two CSX carmen in an unrelated
case. And as in Poust, the trial court compounded its error by failing to
issue a curative instruction to the jury.
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In their final argument, Appellants contend that the trial court erred by
denying their motion in limine to preclude evidence that Appellants “received
thousands of claims for carpal tunnel syndrome and lower extremity
disorders and upper extremity disorders as well.” R.R. 1331a-32a.
Appellants argue that this “other claims” evidence was inadmissible because
Appellee failed to demonstrate that these claims were substantially similar to
his own, and because its prejudicial impact outweighed its probative value.
The trial court denied Appellants’ motion in limine without conducting a
hearing. R.R. 906a. Since we are remanding on other grounds articulated
above, the trial court should take the opportunity on remand to hold an
evidentiary hearing on this issue.
In a variety of cases, we have directed trial courts to hold hearings on
remand to develop issues that affect the disposition of the case. See, e.g.,
Moscatiello v. Pittsburgh Contractors Equip. Co., 595 A.2d 1198, 1205
(Pa. Super. 1991) (remanding for ascertainment of additional facts
concerning timing and extent of damages to machine sold by defendant to
determine whether defendant was entitled to setoff against damages
awarded to plaintiff); see generally Standard Pa. Practice, § 92:110
(collecting cases). Here, good reason exists to convene an evidentiary
hearing on the “other claims” issue. “Other claims” evidence is admissible
when the plaintiff demonstrates “substantial similarity” between these claims
and his own injuries. See, e.g., Lockley v. CSX Transp., Inc., 5 A.3d 383,
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395-96 (Pa. Super. 2010). The present record leaves us uncertain whether
Appellee has met this burden. At one point, Dr. Andres indicated that
Appellants received thousands of claims from other railroad employees that
were substantially similar to Appellee’s claims. R.R. 1331a-32a (Dr. Andres
answered “yes” to counsel’s question about whether Appellants “received
thousands of claims for carpal tunnel syndrome and lower extremity
disorders and upper extremity disorders as well”). Moments later, however,
he appeared to testify that the other claims submitted to Appellants did not
pertain to carmen such as Appellee. R.R. 1333a-34a. To resolve this
apparent inconsistency, and to alleviate further confusion during the next
trial, we instruct the trial court to hold an evidentiary hearing on the “other
claims” issue prior to retrial.
Judgment reversed. Case remanded for further proceedings in
accordance with this opinion. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/16/2017
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