Tightening the Belt: The Shrinking Scope of Harmless Error

Key Points:

  • Superior Court overturns longstanding precedent in Pennsylvania.
  • A new trial based on damages testimony is not warranted when the fact-finder finds for the defendant on the basis that there is no negligence and, therefore, no liability.

 

In late January 2015, the Pennsylvania Superior Court issued an opinion that justified its decision to overturn the trial court. It highlighted testimony in which the minor plaintiff’s expert witness and the defendants’ attorneys referenced the availability of collateral sources. Even though the defense verdict was based on lack of liability, the court concluded that the effect of the damages testimony prejudiced the jury.

The court’s opinion in Deeds v. Univ. of Pa. Med. Ctr., 2015 Pa. Super. LEXIS 32 (Pa.Super. Jan. 30, 2015), authored by the Honorable David N. Wecht, centered on delayed diagnosis of preeclampsia in a pregnant woman with a physically small placenta and a history of sickle cell disease, physical trauma, and cocaine and cigarette use. The plaintiff’s mother presented to the Hospital of the University of Pennsylvania (HUP) with back and abdominal pain and was diagnosed with common discomfort secondary to pregnancy. She presented to HUP two months later with complaints of headache, uterine contractions and blurred vision. She was evaluated and instructed to return for a follow-up visit two days later. Upon her return, she presented with vaginal bleeding and placental abruption. The plaintiff’s mother had an emergency caesarean section, and the minor plaintiff was born with birth defects.

The jury returned a verdict in favor of the defendants, finding that HUP was not negligent. Deeds filed post-trial motions requesting judgment notwithstanding the verdict or, alternatively, a new trial. The Honorable Mark I. Bernstein denied Deeds’ post-trial motions, and Deeds filed a statement of errors complained of on appeal. Deeds argued, inter alia, that defense counsel violated the collateral source rule by informing the jury that the plaintiff received governmental benefits for payment of her medical expenses. Specifically, Deeds cited an instance during cross-examination where her own life care planning expert witness stated that Medicaid financed her medication in response to defense counsel’s query regarding to whether Deeds incurred out-of-pocket expenses for medication. The court partially sustained Deeds’ objection. In another occurrence, defense counsel asked the expert whether the Affordable Care Act would affect future costs, and the court sustained Deeds’ objection. During closing argument, defense counsel merely stated that Deeds already received everything the life care planning expert indicated she would need.

By reversing and remanding the case for a new trial, the Superior Court overturned a longstanding rule of Pennsylvania law. Historically, an error with regard to damages testimony has been rendered meaningless when there has been a defense verdict based on liability. The court rationalized its conclusion by claiming that the effect of the aforementioned testimony on the jury was not quantifiable; therefore, the only remedy was a new trial. In reaching its judgment, the Superior Court disregarded that the trial court sustained Deeds’ objections because the court had not provided any limiting instructions. Similarly, the Superior Court gave no consideration to the defense argument that Deeds’ life care planning expert’s testimony about Medicaid was not responsive to defense counsel’s question.

Relying on contrary precedent in Pennsylvania, the Honorable Eugene B. Strassburger, III filed a dissenting opinion, noting that damages testimony cannot be considered grounds for appeal when there has been a defense verdict based on lack of liability because a finding of liability is necessarily a prerequisite to a determination of damages. The former test for granting a new trial was whether the trial court committed an error of law that controlled the outcome of the case. See Daniel v. William R. Drach Co., Inc., 849 A.2d 1265, 1267-68 (Pa.Super. 2004). Previously, if a jury returned a defense verdict based on lack of negligence, the jury never reached the issue of damages because the defendant was not liable to remit payment to the plaintiff. Deeds overturns this longstanding logic and opens a doorway for plaintiffs to cite any instance of impermissible testimony, regardless of whether an objection thereto has been sustained, in support of a motion for a new trial. Furthermore, the opinion generates ambiguities with regard to what a jury may consider when issuing a defense verdict based on lack of liability.

Apart from the strict legal issues, it should be noted that this case represents a growing trend toward lawsuits aimed at “deep pocket” entities. Despite potential negligence by individual health care providers, plaintiffs increasingly elect to target corporations and hospitals. Quite often, litigation against “deep pocket” entities is frivolous, and true culpability lies with an individual provider whose insurance limits make the prospect of targeting that provider appear unattractive. In the above matter, the defendant doctors were stipulated out of the case prior to trial.

* Laura, an associate in our Philadelphia, Pennsylvania office, can be reached at 215.575.2842 or ljpersun@mdwcg.com.

 

Defense Digest, Vol. 21, No. 2, June 2015

Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2015 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.