The Superior Court of Pennsylvania (“Pennsylvania Appellate Court”), in its Memorandum Opinion dated April 14, 2020, affirmed the trial court’s grant of a new trial to the Pennsylvania medical malpractice plaintiff because the defense counsel asked an improper and prejudicial question during cross examination of the plaintiff’s expert.
The Underlying Facts
The Pennsylvania medical malpractice plaintiff was a professional football player who underwent hernia surgery after which the defendants provided medical care to the plaintiff and allegedly failed to disclose the existence of a tear in the plaintiff’s adductor longus muscle in his right leg. The plaintiff returned to playing professional football but contended that the undiagnosed injury impeded his ability to cut sideways on the field and compromised his performance, leading to being cut from the team and not hired by any other NFL team.
During trial, the plaintiff’s musculoskeletal radiology expert testified that there are approximately 5,000 musculoskeletal radiologists in the United States. The defense counsel then asked the plaintiff’s expert, “Five thousand. Five thousand of those radiologists and [the plaintiff] couldn’t find one of them to come into this courtroom to support Dr. Read, did you know that?” [Dr. Read is a musculoskeletal radiologist who reviewed the plaintiff’s June 30, 2014 MRI at the defendants’ request and prepared a report for the defendant doctor, concluding, among other things, that the plaintiff sustained a complete tear of his adductor muscle. Dr. Read was also proffered as a fact witness by the plaintiff.]
The plaintiff’s Pennsylvania medical malpractice lawyer objected to the question and moved for a mistrial. The trial judge denied the motion for mistrial and provided the jury with a cautionary instruction that questions by counsel are not facts to be considered as evidence. The jury ultimately returned a verdict for defendants. The plaintiff subsequently moved for a new trial, arguing that the trial court erred in denying the plaintiff’s motion for mistrial because the effect of defense counsel’s question was so prejudicial that no instruction could have cured it. The trial court granted the plaintiff’s new trial motion, and the defendants appealed.
Pennsylvania Appellate Court Opinion
The Pennsylvania Appellate Court held, “Appellants’ counsel, having received a copy of Steltz’s [the plaintiff] pre-trial memorandum, was, therefore, put on notice that Steltz did find and planned to call as a potential witness another radiologist whose findings concurred with Dr. Read’s findings that the June 30, 2014 post-surgery MRI revealed a tear in the abductor longus muscle, an allegation that formed the basis of Steltz’s complaint … Upon review of the record, we discern no abuse of discretion on the part of the trial court in reaching the conclusion that appellants’ counsel’s statement was “improper at its core” and that it erred in denying Steltz’s motion for a mistrial.”
The Pennsylvania Appellate Court further held, “The record demonstrates that counsel knew his questions involving the words “couldn’t find” were untrue and misleading when, in fact, Steltz did find a radiology expert, Dr. Checkoff, who agreed with Dr. Read’s findings … Counsel emphasized the point of his question by asking it not once but, over Steltz’s counsel’s objection, asking it a second time when he stated, “Not one, couldn’t find one?” These questions were an attempt to remove the issue of whether Dr. Read’s testimony was credible from the jury … the curative instructions only generally informed the jury that counsel’s statements and arguments were not evidence, and did not address the specific questions by appellants’ counsel and the fact that Steltz not only could have found but did find a radiology expert who concurred with Dr. Read’s findings … we find that the record supports the trial court’s reasons and factual basis for its decision, and we discern no abuse of discretion on the part of the trial court in granting Steltz a new trial.
Source Steltz v. Meyers, J. A21032/19.
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