The Superior Court of Pennsylvania stated in its non-precedential decision filed on December 15, 2025: “[T]he entitlement for settling defendants to remain as parties to an action in order to establish their status as joint tortfeasors, and then have a jury apportion liability among those parties, is tempered by the fact that the jury is only permitted to consider the liability of defendants for whom a prima facie case has been established in the first place … As we find the trial court erred by failing to dismiss the Forefront Defendants prior to trial, we also agree that this failure, and subsequent dismissal of the Forefront Defendant’s in the middle of trial, unfairly prejudiced Swank.”
“Our concern here is that the jury was confused by the mid-trial dismissal of defendants, where those defendants should never have been presented to the jury in the first place. By the time the Forefront Defendants were dismissed, the jury had already been introduced to Forefront and their counsel; Forefront’s counsel participated at trial by questioning witnesses; and the jury was informed by the Non-Settling Defendants of Swank’s allegations against Forefront based on the Complaint. Rather than focusing solely on the conduct of the Non-Settling Defendants, the jury was left wondering why Forefront was sued and dismissed in a notably unforthcoming manner. We emphasize, this was not a clear-cut situation where a defendant requested, in the presence of the jury, to be dismissed for lack of evidence, the court granted that request, and the court informed the jury why the defendant was dismissed so that the jury was clear on the reasons. Instead, the whole situation with Forefront was kept secretive from the jury, based on the court’s mistaken reliance on the Fair Share Act and mistaken belief that the Fair Shair [sic] Act somehow necessitated Forefront being on the verdict sheet without needing to defend itself at trial. This left the jury to speculate without giving them the information they needed to make an informed decision. The Non-Settling Defendants were able to insinuate negligence on the part of Forefront at trial, despite there being no possibility of a prima facie case of medical negligence against them. Further, the Non-Settling Defendants were able to do this due to the trial court’s improper application of the law, which constitutes an abuse of discretion. For the foregoing reasons, we conclude the trial court erred by refusing to grant Swank’s post trial motion seeking a new trial. Accordingly, we reverse and remand for a new trial.”
Source Swank v. Rabkin Dermatopathology Laboratory, P.C., J-A23007-25.
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