J. A33002/15
2016 PA Super 70
ANN COUGHLIN, ADMINISTRATRIX OF : IN THE SUPERIOR COURT OF
THE ESTATE OF THOMAS COUGHLIN, : PENNSYLVANIA
DECEASED, :
:
Appellant :
:
v. : No. 3367 EDA 2014
:
UMMU MASSAQUOI :
Appeal from the Judgment Entered January 26, 2015,
in the Court of Common Pleas of Philadelphia County
Civil Division at No. July Term, 2013 No. 0355
BEFORE: FORD ELLIOTT, P.J.E., STABILE AND STRASSBURGER,* JJ.
OPINION BY FORD ELLIOTT, P.J.E.: FILED March 21, 2016
Ann Coughlin, administratrix of the Estate of Thomas Coughlin,
deceased, appeals from the judgment entered January 26, 2015, in favor of
defendant/appellee, Ummu Massaquoi. The decedent, Mr. Coughlin, was
struck and killed by appellee while crossing the street. Evidence was
presented that the decedent was heavily intoxicated at the time of the
accident. The trial court denied appellant’s pre-trial motion in limine to
exclude evidence of the decedent’s intoxication, including the toxicology
report and the expert testimony of Richard Saferstein, Ph.D. The jury
determined that appellee’s negligence was not a factual cause of decedent’s
* Retired Senior Judge assigned to the Superior Court.
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death.1 Post-trial motions were denied, and this timely appeal followed.
After careful review, we affirm.
The trial court has summarized the history of this matter as follows:
This matter was tried before a jury over a
period of three (3) days. After deliberations, the
jury returned a verdict finding the defendant
negligent, but that her negligence was not the
factual cause of the decedent’s death. As a result,
the jury did not reach the question of damages.
Based upon the jury’s finding as to the lack of
causation on the defendant’s part, the errors alleged
to have been committed by this Court are without
merit and a new trial is not warranted.
This case arises from an accident that occurred
on January 13, 2012, when Plaintiff’s adult son,
Thomas Coughlin, was killed while walking across
Castor Avenue in the Northeast section of the City of
Philadelphia. He was struck by a car operated by the
Defendant, Ummu Massaquoi. Defendant admitted
at trial to never seeing Mr. Coughlin at any time
before the impact had occurred. There were no
eyewitnesses to this unfortunate event.
Police investigation of this incident revealed
that:
[22] A The [defendant’s] vehicle was traveling south
on the
[23] left lane of Castor Avenue approaching Howell
[24] Street. Vehicle 1’s left fender contacted the
[25] pedestrian. The pedestrian partially mounted
[1] vehicle 1, riding the fender, which would be the
[2] front left side of the vehicle where the tire is --
[3] above the tire, rather. He then went onto the
1
To the extent the jury’s verdict could be characterized as inconsistent or
against the weight of the evidence adduced at trial, that issue is not before
this court. The only issue on appeal is the admission of evidence of the
decedent’s intoxication. (Trial court opinion, 6/30/15 at 2.)
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[4] A-pillar. The A-pillar is the framing of the car
[5] which holds -- in between the your [sic]
windshield and
[6] your door frame, so it rides up. Then the
[7] pedestrian struck part of the windshield and the
[8] left side-view mirror partially dislodging the
[9] mirror.
N.T., 08-04-2014, Pg. 56, L. 22 to Pg. 57, L.9.
Further, there were no witnesses who had
previously observed Mr. Coughlin displaying any
signs of intoxication or to his overall condition before
he was killed. Prior to being struck, his whereabouts
were unknown.
Despite finding the defendant had operated her
vehicle in a negligent manner prior to the time of
impact, the jury did not conclude that the
defendant’s negligence was the factual cause of the
decedent’s death. Given the factual circumstances,
this may have been an inconsistent verdict since
there were no other factors that the jury could
consider in determining factual cause once the issue
of negligence was resolved, however, that issue had
not been preserved by Plaintiff, nor has it been
raised as an issue on appeal, and, it is therefore
deemed waived under Pa. R.A.P. 1925.
As to the issues raised on appeal in regard to
intoxication, the decedent was pronounced dead
shortly after the accident and his body was
transported to the Office of the Medical Examiner
where a complete autopsy, including drug and
alcohol screens, was performed. Defendant retained
an expert toxicologist, Richard Saferstein, Ph.D., who
testified at trial that Mr. Coughlin’s blood alcohol
levels (BAC) of .313 would have rendered him unfit
to safely walk or cross the street on the night in
question.
There is no indication that the jury relied upon
the testimony of the defendant’s expert witness in
regard to the decedent’s unfitness to cross the
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street, as such reliance would lead this Court to
believe that had such testimony been considered,
the jury would have considered the decedent’s
actions in apportioning defendant’s liability and the
decedent’s comparative fault.
Initially, in her Motion in limine, Plaintiff noted
that the investigating police officer did not indicate
anywhere in his report that the decedent had
exhibited signs of intoxication. The first indication of
intoxication was through post-mortem blood and
urine testing which revealed that Mr. Coughlin’s
blood alcohol level was elevated and that he also had
trace amounts of other illegal substances in his
blood.[2]
Plaintiff argued that since neither the
Defendant nor Fire rescue personnel who treated the
decedent at the scene before he was transferred to
the hospital, testified that Mr. Coughlin exhibited any
traits of intoxication such evidence of BAC levels was
inadmissible. The Defendant argued that
Mr. Coughlin’s extremely elevated BAC level of .313
rendered him unfit to be crossing a four-lane avenue
between intersections at night. It was the extremely
high BAC level that Dr. Saferstein relied upon [to]
render the conclusion that Mr. Coughlin was a
danger to himself and others on the roadway.
In considering these arguments, this Court
denied Plaintiff’s Motion in limine and permitted the
admission of both the BAC test results and
Dr. Saferstein’s testimony into evidence at trial.
Dr. Saferstein was precluded, however from opining
as to the ultimate question of causation, as that was
within the jury’s domain in weighing and considering
2
According to Dr. Saferstein, the toxicology report revealed the presence of
cocaine metabolite in the decedent’s blood, less than 100 micrograms per
liter. (Notes of testimony, 8/5/14 at 22.) The presence of cocaine
metabolite indicates cocaine use within the previous 24 hours; however, it
would have had no effect on the decedent’s behavior. (Id. at 25.) The
decedent did not have cocaine in his system. (Id.)
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all of the evidence. As previously stated, the jury
rendered a verdict of no factual causation.
Trial court opinion, 6/30/15 at 1-4.
The jury rendered its verdict on August 5, 2014. A timely post-trial
motion was filed on August 15, 2014, and denied on August 25, 2014. A
motion for reconsideration was filed on September 22, 2014, as well as a
protective appeal notice on September 24, 2014.3 Appellant’s motion for
reconsideration was denied on September 25, 2014. On October 9, 2014,
appellant was ordered to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b) within 21 days; appellant timely
complied on October 29, 2014. The trial court filed a Rule 1925(a) opinion
on June 30, 2015.4
Appellant has raised the following issues for this court’s review:
1. Did the trial court err as a matter of law and/or
abuse its discretion by denying plaintiff’s
motion in limine and admitting evidence of
3
The mere filing of a motion for reconsideration is insufficient to toll the
30-day appeal period. Although a party may petition the court for
reconsideration, the simultaneous filing of a notice of appeal is necessary to
preserve appellate rights in the event that either the trial court fails to grant
the petition expressly within 30 days, or it denies the petition.
Pa.R.A.P. 1701; Valley Forge Center Assoc. v. Rib-It/K.P., Inc., 693
A.2d 242, 245 (Pa.Super. 1997) (citations omitted).
4
We note that appellant filed her notice of appeal from the August 25, 2014
order denying post-trial motions, an order which is generally interlocutory
and not appealable unless reduced to judgment. However, judgment was
subsequently entered on January 26, 2015; thus, we will consider the appeal
filed after the entry of judgment. Jones v. Rivera, 866 A.2d 1148,
1149 n.1 (Pa.Super. 2005), citing Dominick v. Hanson, 753 A.2d 824,
825 n.1 (Pa.Super. 2000); Pa.R.A.P. 905(a).
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Mr. Coughlin’s post-mortem blood alcohol
content (“BAC”) when there was no additional,
independent corroborative evidence of
intoxication?
2. Did the trial court err as a matter of law and/or
abuse its discretion in allowing the testimony
of defendant’s toxicology expert, Richard A.
Saferstein, Ph.D., where the sole piece of
independent “intoxication” evidence upon
which Dr. Saferstein’s testimony was based
was Mr. Coughlin’s purported post-mortem
BAC?
3. Did the trial court err as a matter of law and/or
misapply the law set forth in Gallagher v.
Ing, 532 A.2d 1179 (Pa.Super. 1987) in
denying plaintiff’s motion for reconsideration
and upholding the court’s decision to admit
evidence of Mr. Coughlin’s BAC without
additional independent evidence to corroborate
intoxication?
Appellant’s brief at 7.
We will address appellant’s issues together, as they are interrelated.
Basically, appellant argues that the decedent’s BAC of .313 was inadmissible
as a matter of law where there was no independent corroborating evidence
of intoxication, e.g., slurred speech, odor of alcohol, unsteady gait, etc.
There was no evidence as to Mr. Coughlin’s whereabouts prior to the
accident. Appellant argues that there was no independent eyewitness
testimony to support an inference that Mr. Coughlin had been drinking and
was heavily intoxicated prior to the accident. According to appellant,
Mr. Coughlin’s BAC, in and of itself, was insufficient for the issue of
intoxication to go to the jury. We disagree.
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The Superior Court’s standard for reviewing the trial
court’s denial of a motion for a new trial is whether
the trial court clearly and palpably abused its
discretion or committed an error of law which
affected the outcome of the case. Melso v. Sun
Pipe Line Co., 394 Pa.Super. 578, 576 A.2d 999
(1990), appeal denied, 527 Pa. 667, 593 A.2d 842
(1991); Cooper v. Burns, 376 Pa.Super. 276, 545
A.2d 935 (1988), appeal denied, 522 Pa. 619, 563
A.2d 888 (1989). We will reverse the trial court’s
denial of a new trial only where there is a clear
abuse of discretion or an error of law which
controlled the outcome of the case. Vignoli v.
Standard Motor Freight, Inc., 418 Pa. 214, 210
A.2d 271 (1965); Cashdollar v. Mercy Hospital of
Pittsburgh, 406 Pa.Super. 606, 595 A.2d 70
(1991). The trial court abuses its discretion when it
misapplies the law or when it reaches a manifestly
unreasonable, biased or prejudiced result. Girard
Trust Bank v. Remick, 215 Pa.Super. 375, 258
A.2d 882 (1969). Abuse of discretion may occur
through an honest, but erroneous use of discretion.
Pachesky v. Getz, 353 Pa.Super. 505, 509, 510
A.2d 776, 778 (1986); Adelman v. John McShain,
Inc., 148 Pa.Super. 138, 24 A.2d 703 (1942). A
new trial may not be granted merely because the
evidence conflicts and the jury could have decided
for either party. Hilbert v. Katz, 309 Pa.Super.
466, 471, 455 A.2d 704, 706 (1983) (citations
omitted). The grant of a new trial is appropriate,
however, where the jury verdict may have been
based on improperly admitted evidence.
Wilkes-Barre Iron & Wire Works, Inc. v. Pargas
of Wilkes-Barre, Inc. v. Caladie, 348 Pa.Super.
285, 294, 502 A.2d 210, 215 (1985) (citations
omitted).
Whyte v. Robinson, 617 A.2d 380, 382 (Pa.Super. 1992) (emphasis in
original).
Questions regarding the admissibility or exclusion of
evidence are also subject to the abuse of discretion
standard of review. Rogers v. Johnson & Johnson
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Products, Inc., 401 Pa.Super. 430, 436, 585 A.2d
1004, 1007 (1990) (citations omitted). Pennsylvania
trial judges enjoy broad discretion regarding the
admissibility of potentially misleading and confusing
evidence. Daset Mining Corp. v. Industrial Fuels
Corp., 326 Pa.Super. 14, 22, 473 A.2d 584, 588
(1984). Relevance is a threshold consideration in
determining the admissibility of evidence. Majdic v.
Cincinnati Machine Co., 370 Pa.Super. 611, 618,
537 A.2d 334, 338 (1988). A trial court may,
however, properly exclude evidence if its probative
value is substantially outweighed by the danger of
unfair prejudice. Daset, supra. Generally for the
purposes of this evidentiary rule, “prejudice” means
an undue tendency to suggest a decision on an
improper basis. Id. The erroneous admission of
harmful or prejudicial evidence constitutes reversible
error. Whitman v. Riddell, 324 Pa.Super. 177, 471
A.2d 521 (1984).
Id. at 383.
Since Critzer v. Donovan, 289 Pa. 381, 137 A. 665
(1927), the well-settled law of this Commonwealth is
that where recklessness or carelessness is at issue,
proof of intoxication is relevant, but the mere fact of
consuming alcohol is inadmissible as unfairly
prejudicial, unless it reasonably establishes
intoxication. Cusatis v. Reichert, 267 Pa.Super.
247, 249-50, 406 A.2d 787, 788-89 (1979) and
cases cited therein. The rule of Morreale v. Prince,
436 Pa. 51, 53, 258 A.2d 508 (1969), states that
such evidence of intoxication must reasonably
establish a degree of intoxication which proves
unfitness to drive where reckless or careless driving
is the matter at issue. This Court, in Kriner v.
McDonald, 223 Pa.Super. 531, 533-35, 302 A.2d
392, 394 (1973) extended the Critzer/Morreale
rules of inadmissibility to evidence tending to
establish intoxication on the part of a pedestrian.
According to Kriner, such evidence of intoxication is
inadmissible unless it proves unfitness to be crossing
the street. Furthermore, no reference should be
made to a pedestrian’s use of alcohol unless there is
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evidence of excessive or copious drinking. Cook v.
Philadelphia Transportation Company, 414 Pa.
154, 158, 199 A.2d 446, 448 (1964).
Id.
The theory behind allowing a blood alcohol
level to be admitted into evidence in a civil case is
that it is relevant circumstantial evidence relating to
intoxication. However, blood alcohol level alone may
not be admitted for the purpose of proving
intoxication. There must be other evidence showing
the actor’s conduct which suggests intoxication.
Only then, and if other safeguards are present, may
a blood alcohol level be admitted.
Ackerman v. Delcomico, 486 A.2d 410, 414 (Pa.Super. 1984) (citations
omitted).
Instantly, Dr. Saferstein testified that an individual with a BAC greater
than .31 would be unfit to cross the street safely:
Well, let’s talk in terms of the general public,
because I don’t know Mr. Coughlin and certainly
didn’t interact with him. But an individual who is at
.31 would be severely, severely intoxicated. That’s
four times the legal level of driving in the
Commonwealth of Pennsylvania, four times higher.
So he was severely intoxicated due to that high
concentration of alcohol.
Notes of testimony, 8/5/14 at 22.
Talking about an average, normal human being at a
.31, as I indicated, is severely intoxicated. So what
can we expect from the impact of alcohol at that
level? We can expect very poor muscular
coordination. We can expect very poor body
coordination. We can expect slow and unsteady
hand movements and poor hand-to-eye and
foot-to-eye coordination. But what’s more, we can
expect in the average person that that person would
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be suffering from a significant deterioration in
judgment and self-control. That person would
become -- is a risk taker, taking chances that an
average human being would not consider to be
prudent. That’s probably the most significant
deterrent that you can associate with a person that’s
at that level. So that person could find himself or
herself in situations that you and I would not
consider to be tenable and would not consider to be
appropriate. So there is a significant loss of caution
and self-restraint in an individual of that high of
blood alcohol level.
Id. at 23-24.
Dr. Saferstein also testified that even assuming Mr. Coughlin was a
heavy drinker and had built up a tolerance for alcohol, his judgment would
still be significantly impaired:
Users of alcohol may not show the outward
manifestations of alcohol; they may not show the
physical manifestations; they may not show poor
body gauge; they may not show poor muscular
coordination or hand-to-eye coordination. But
tolerance is not a factor when it comes to judgment.
Individuals -- we have not ever been able to
establish that there’s a relationship between alcohol
tolerance with the so-called outward manifestations
of alcohol and the ability of alcohol to deteriorate
your judgment and self-control.
Id. at 26.
In Dr. Saferstein’s expert opinion, with a BAC of .313, Mr. Coughlin
would have been unable to safely traverse the intersection:
This individual was severely, severely intoxicated,
and in my opinion, he could not safely cross the
street without endangering his life and well-being.
As I indicated, and I keep coming back to the same
thing, at this level of intoxication, an average normal
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human being would be expected to show a
significant deterioration in judgment and self-control.
Now, how [to] blend that into the circumstances of
this particular situation is not possible for me to say.
You shouldn’t be driving, and you shouldn’t be taking
chances walking as a pedestrian. So I think the best
I thing [sic] I can offer is that we’re dealing with a
severely intoxicated individual who would be
expected, as an average person, to be showing a
significant decline in judgment and self-control.
Id. at 27-28.
Instantly, there is no eyewitness testimony to corroborate the fact of
Mr. Coughlin’s intoxication, e.g., slurred speech, staggered gait, etc. No
one saw Mr. Coughlin try to cross the street. No one actually saw him
consume any alcohol. However, we have held that the “other” evidence of
intoxication necessary to render admissible the results of a blood alcohol test
does not have to consist of third-party eyewitness testimony, as appellant
suggests, but may consist of expert testimony describing the effects of a
particular BAC level on the average person. See Gallagher v. Ing, 532
A.2d 1179, 1183 (Pa.Super. 1987), appeal denied, 548 A.2d 255 (Pa.
1988) (“The ‘other’ evidence necessary to render admissible a blood alcohol
content in excess of .10 percent, it has been held, may consist of expert
testimony interpreting the significance of the results of blood alcohol tests
with respect to unfitness to drive.”) (citation omitted); see also Braun v.
Target Corp., 983 A.2d 752, 760 (Pa.Super. 2009), appeal denied, 987
A.2d 158 (Pa. 2009) (“Corroborative evidence to establish intoxication can
be in the form of expert testimony, indicating that the level of drugs or
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intoxicants in the injured party’s bloodstream would have affected his
judgment, coordination, and/or impaired his motor skills to such a degree
that he was unfit to perform the activity in question.”), citing Gallagher,
supra.
Here, we determine that Dr. Saferstein’s expert testimony was
sufficient corroborating evidence for admission of the decedent’s BAC result.
Therefore, the trial court did not abuse its discretion in denying appellant’s
motion in limine and post-trial motion for a new trial.5
Judgment affirmed.
Stabile, J. joins the Opinion.
Strassburger, J. files a Concurring Statement in which Stabile, J. joins.
Judgment Entered.
JosephD.Seletyn,Esq.
Prothonotary
Date: 3/21/2016
5
As we find that evidence of Mr. Coughlin’s alcohol consumption was
properly admitted, we need not address the trial court’s assertion that the
jury must not have considered this evidence since it found appellee
negligent.
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