J. A21024/16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOIE DIGIOVANNI : IN THE SUPERIOR COURT OF
Appellant : PENNSYLVANIA
:
:
:
v. :
JOHN B. MURPHY :
:
: No. 2902 EDA 2015
Appeal from the Judgment Entered September 15, 2015
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): November Term, 2013 No. 01291
BEFORE: Bender, P.J.E., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY DUBOW, J.: FILED SEPTEMBER 22, 2016
Appellant, Joie DiGiovanni, plaintiff below, appeals from the Judgment
entered in the Philadelphia County Court of Common Pleas on September
15, 2015, in favor of Appellee, John B. Murphy, defendant below, following a
jury trial. After careful review, we affirm.
We summarize the facts, as gleaned from the detailed trial court
opinion, as follows. On February 5, 2012, Appellant was the passenger in a
car, which was rear-ended. Appellee was the driver of the striking vehicle,
and was travelling at approximately 45 miles per hour. Appellant did not
wait for an ambulance to take her to the hospital following the accident, but
rather travelled there in her boyfriend’s car.
Appellant presented at the hospital with a scrape on her chin and a cut
lip, and complaining of pain in her ankles, wrist, leg, hip, neck, and back.
J. A21024/16
Hospital staff performed x-rays and a C-T scan, both of which came back
negative. Appellant subsequently experienced swelling and bruising.
Appellant sought treatment for her injuries from five different medical
professionals. Ultimately, she received a diagnosis of fibromyalgia and
rheumatoid arthritis. Her doctor prescribed Appellant the drug Humira,
which Appellant described as a “miracle drug.” See Trial Ct. Op., 2/25/16,
at 1-3 (citations omitted).
On November 14, 2013, Appellant filed an arbitration Complaint
against Appellee raising claims arising from injuries she alleged she
sustained in the February 4, 2012 collision. Specifically, Appellant claimed
that, at the time of the accident she suffered from asymptomatic
fibromyalgia and rheumatoid arthritis, which conditions were made
symptomatic by the trauma of the accident. Appellee filed an Answer with
New Matter on October 20, 2014. That same day, the arbitration panel
entered an award for Appellant in the amount of $41,500.
Appellee filed an appeal from the Arbitration Award on October 30,
2014. A three-day jury trial commenced on August 10, 2015. Following the
trial, the jury concluded that Appellee’s negligence was not a factual cause
of Appellant’s injuries, and, thus, returned a verdict for Appellee on August
12, 2015.
Appellant filed a Post-Trial Motion on August 21, 2015, in which she
alleged the jury’s verdict was against the weight of the evidence and that
-2-
J. A21024/16
the court erred in permitting the jury to receive medical expert reports and
internet articles produced by Appellee’s counsel in cross-examination of
Appellant’s expert witness. On August 25, 2015, Appellee filed an Answer to
Appellant’s Post-Trial Motion. Appellant filed a “Reply in Support to Post-
Trial Motion” on September 1, 2015.
Appellant filed a Notice of Appeal from the jury’s August 12, 2015
verdict in favor of Appellee on September 4, 2015.1 The trial court denied
Appellant’s Post-Trial Motion on September 14, 2015, and simultaneously
entered Judgment in Appellee’s favor.2 Appellant and the trial court have
complied with Pa.R.A.P. 1925.
Appellant raises the following issues for our review:
1. Whether the jury’s finding that [Appellee’s] negligence
was not a factual cause of the injuries sustained by
[Appellant] was against the weight of the evidence
requiring the court to remand for a new trial.
2. Whether the court erred in sending portions of hearsay
internet articles, which directly addressed the medical
1
We note that Appellant’s September 4, 2015 Notice of Appeal was
premature as a final order had not yet been entered in the case. See PA
Energy Vision, LLC v. South Avis Realty, Inc., 120 A.3d 1008, 1012 n.3
(Pa. Super. 2015) (an appeal of a final order in a civil case lies from the
entry of judgment). However, the trial court entered judgment following
denial of Appellant’s Post-Trial Motion on September 14, 2015, thus
perfecting Appellant’s appeal. See Prime Medica Assocs. V. Valley Forge
Ins., 970 A.2d 1149, 1154 n.6 (Pa. Super. 2009) (a final judgment entered
during the pendency of an appeal is sufficient to perfect appellate
jurisdiction).
2
The court mailed the parties Pa.R.C.P. 236 Notice of Entry of Judgment on
September 15, 2015.
-3-
J. A21024/16
causation issues and therefore likely [a]ffected the
outcome of the case, into the jury room requiring the court
to remand for a new trial.
Appellant’s Brief at 6.
In her first issue, Appellant claims that the jury’s conclusion that
Appellee’s negligence was not a factual cause of the harm Appellant suffered
was against the weight of the evidence where neither Appellee’s negligence,
nor the fact that Appellant now suffers from fibromyalgia and rheumatoid
arthritis, are in dispute. Id. at 21, 24. Appellant avers, that “[i]n light of
the high speed collision together with the objective and undisputed evidence
of injury, the verdict was against the weight of the evidence and justice
requires a new [t]rial.” Id. at 24.
When considering challenges to the weight of the evidence, we note
that, “[t]he weight of the evidence is exclusively for the finder of fact[,] who
is free to believe all, none or some of the evidence and to determine the
credibility of witnesses.” Commonwealth v. Talbert, 129 A.3d 536, 545
(Pa. Super. 2015). “A jury is entitled to believe all, part or none or the
evidence presented…. A jury can believe any part of a witness’ testimony
that they choose, and may disregard any portion of the testimony that they
disbelieve.” Martin v. Evans, 711 A.2d 458, 463 (Pa. 1998) (citation and
quotation omitted). Where a jury has made credibility determinations
regarding the testimony and evidence presented, those determinations are
rarely overturned. Armbruster v. Horowitz, 744 A.2d 285, 287 (Pa.
-4-
J. A21024/16
Super. 1999). Further, “[i]n order for a defendant to prevail on a challenge
to the weight of the evidence, the evidence must be so tenuous, vague and
uncertain that the verdict shocks the conscience of the court.” Talbert,
supra at 546 (internal quotation marks and citation omitted).
The trial court cogently and comprehensively addressed Appellant’s
weight of the evidence claim in its Rule 1925(a) Opinion. Accordingly, with
respect to this issue, we affirm on the basis of the trial court’s well-reasoned
Opinion. See Trial Ct. Op. at 5-7.
In her second issue on appeal, Appellant claims the trial court erred in
permitting limited portions of internet articles from the Mayo Clinic, the
National Institute of Health (“NIH”), and the Cleveland Clinic about
rheumatoid arthritis into the jury room. Appellant’s Brief at 24. Appellant
claims that it was inappropriate to provide the jury with these documents
because counsel had not moved them into evidence and they are hearsay
documents.3 Id.
At trial, both parties’ expert witnesses testified at trial by way of
videotaped deposition. The transcripts of those depositions, and the internet
3
To the extent that Appellant challenges the trial court’s decision to permit
the jury to view the articles during deliberation on hearsay grounds, we find
this argument waived. Our review of the record, including the deposition
transcripts of Dr. Whalen and Dr. Derk, and the trial transcript, indicates
that Appellant did not preserve this issue by making a specific, timely
objection before the trial court. See Boykin v. Brown, 866 A.2d 1264,
1267 (Pa. Super. 2006) (holding that in order to preserve the application of
a hearsay objection for appellate review, that specific exception must first be
raised before the trial court).
-5-
J. A21024/16
articles used by counsel to question the witnesses attached thereto, were
entered into evidence.
During deliberation, the jury asked the court to send back to the
deliberation room the articles used by Appellee’s counsel during cross-
examination of Appellant’s expert, Dr. Whalen. Following colloquy with
counsel, and over Appellant’s objection that the documents had not been
moved into evidence, the trial court permitted the jury to receive “only the
relevant pages [of the internet articles] that were touched upon from the
testimony by the two experts[, Drs. Whelan and Derk].”4 N.T., 8/12/15, at
68.
Notwithstanding Appellant’s claim on appeal that the articles were not
moved into evidence, our review of the record confirms that, “the articles
were attached to Dr. Whalen’s deposition transcript, Exhibit P-13, and were
admitted into evidence [Exhibits D-5, D-7, and D-8].” Trial Ct. Op. at 8.
Moreover, Appellant represented to the court during an in camera
discussion that the articles used by Appellee’s counsel to cross-examine Dr.
Whalen were “part of the transcript[,]” and “part of what we introduced as
Dr. Whalen’s testimony. We have the whole transcript and the tape
introduced. And, in fact, [the NIH article] is Exhibit D-5 of [Appellant’s]
Exhibit, I think it’s 13.” N.T., 8/11/15, at 75-76. Appellant’s counsel
4
Pages 1, 3, 4, and 9-11 of the National Institutes of Health article, pages 1,
2, and 7 of the Mayo Clinic article, and page 1 of the Cleveland Clinic Article.
-6-
J. A21024/16
conceded that he “moved [into evidence] the entire transcript and this was
attached to the transcript.” Id. at 76.
During a jury trial, the court “may make exhibits available to the jury
during its deliberations.” Pa.R.C.P. 223.1(d)(3). The trial court has
discretion to determine which exhibits should be permitted to be viewed by
the jury during deliberations. Wagner by Wagner v. York Hosp., 608
A.2d 496, 503 (Pa. Super. 1992) (noting that “the trial court has the
discretion to determine which exhibits should be permitted to go out with
the jury.”).
Accordingly, the trial court did not abuse its discretion in permitting
the jury to view the articles during deliberation.
Judgment affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/22/2016
-7-
J. A21024/16
-8-
Circulated 08/31/2016 02:49 PM
PHILADELPHIA COURT OF COMMON PLEAS
CIVIL TRIAL DIVISION
JOIE DIGIOVANNI, November Term, 2013
No. 1291
v.
Superior Court Docket Ni?<>. r},.,.
JOHN B. MURPHY 2902 EDA 2015 ~:_,_.·
tt,c . .,,
C:T\
Sarmina, J. (·;· r-..
C:,)
February 25, 2016 ,~:..·+' r-s
, .. o,
c.
OPINION
r ..
PROCEDURAL HISTORY:
--
-i .
s.
On August 12, 2015, following a jury trial before this Court, verdict was entered in favor of
John .13. Murphy (hereafter, the defendant), and against Joie DrGiovanni (hereafter, the plaintiff).'
Timely post-trial motions were filed on August 21, 2015. On September 1, 2015, the plaintiff filed a
notice of appeal.' Subsequently, on September 14, 2015, this Court denied the plaintiff's post-trial
motions.
FACTS:
On February 4, 20l2, at around 6:00 P.M., the plaintiff was a passenger in her friend's
vehicle, traveling cast on Interstate 76 towards Center City Philadelphia. Notes of Testimony (N.T.)
8/10/15 at 46, 49-50. The plaintiff and her friend were facing each other talking, as they were stuck
in traffic, when the defendant's vehicle collided with the vehicle in which the plaintiff was traveling.
Id. at 50-S 1. The defendant was driving a sport utility vehicle (SUV), at approximately 45 miles per
hour, when he was approaching the bend in Interstate 76 where Roosevelt Boulevard and City Line
I
The ph1intiff was represented by James Famiglio, Esquire, and the defendant was represented by Ronald 1-farrero,
Esquire.
2 TI1is Court was instructed by the Superior Court that the plaintiff's premature appeal was to be considered as if it were
timely filed after the denial of the plaintiffs post-trial motions.
Digiovanni Vs Murphy-OPFLD
111111111 I II 1111 I 111111111 If Ill
Avenue meet. Id. at 125. The defendant did not immediately notice that the cars in front of him
were stopped, and consequently he "rear-ended" the vehicle the plaintiff was traveling in, which was
in front of him. kl The car the plaintiff was traveling in hit the car in front of it, and that car hit
the car in front of it as well. Id. at 51.
A frcr the collision, the defendant exited his vehicle, walked over to the plaintiff, and risked if
eve1:7onc was okay. Id. at 51. The plaintiff stated that she was not okay, and called her boyfriend to
come to the scene of the accident. hi, at 52. The police also arrived at the scene. Id. at 5l. The
plaintiff's boyfriend then rook her to Lankenau Hospital; she did not wait for an ambulance to
arnve. Id. The defendant was able to drive his vehicle away from the accident scene. Id. at 132.
When the plaintiff arrived at the hospital, she was complaining of pain in her ankles, wrist,
leg, hip, neck, back. Id. at 53. She also presented with a scrape on her chin, and a busted open lip.
Id. The hospital staff performed x-rays and a CT scan, both of which came back negative. Id. at 54.
The plaintiff was not admitted to the hospital, and was given Tylenol with codeine. Id. at 54-55.
That same day, the plaintiff left the hospital and immediately traveled with her boyfriend to her
parent's shore house in Margate, New Jersey. N.T. 8/10/15 at 54-55.
\Xlhco the plaintiff returned from the shore, she began to swell and bruise. hi at 55. 'Thus,
the plaintiff sought treatment from Dr. Brent \Xleinennan, who treats people who have been in car
accidents. Id. at 56. 13ecause she did not like the area in which Dr. Wcinerman's office was located,
the plaintiff sought treatment from a different doctor about a week later - Dr. Harding, a
chiropractor. Id. at 57. After being seen by Dr. Harding, the plaintiff then went to her family
doctor, Dr . Alexander Ricciutti, who worked at Medical Rehabilimtion Center of Philadelphia, with
complaints of swollen wrists, arms, ankles, and a changing color sensation in her hands. Id. at 59.
These symptoms never subsided following the motor vehicle accident the plaintiff was involved in,
and they were not controlled by medication. kl at 60.
2
Dr. Ricciutti referred the plaintiff to Dr. Yang, a physiatrist, who took an ElvfG and then
referred the plaintiff to a rheumarologist, N.T. 8/ t 0/ 15 at 71. The plaintiff went to Main Line
Rheumarology, where she was diagnosed with fibromyalgia and rheumatoid arthritis. Id. at 72. The
plaintiff was treated with the drug Humira, and a number of other drugs,' to which she was
responsive. Td. at 73. The plaintiff testified that she injects herself in her stomach or her thigh with
Humira every two weeks. Id.
A ftcr treating at Main Line Rheumatology for rough I}' one year, the plaintiff began seeing a
different rheumatologist - Or. Thomas Whalan - who was treating the plaintiff at the time of trial.
Id. at 77- 78. Dr. Whalan kept the plaintiff on the same drugs that she was previously prescribed,
and the plaintiff testified that her symptoms arc controlled, particularly by the Humira, which she
described as a "miracle drug." Id. at 79-81.
LEGAL ANALYSIS:
The plaintiff raises two issues on appeal:
I. The verdict was against the weight of the evidence and against longstanding Pennsylvania law.
2. The Court erred in permitting the jury to receive in the jury room all expert medical reports and
internet articles produced by defense counsel in the cross-examination of plaintiff's expert.
1) The verdict was against the weight of the evidence and against longstanding
Pennsylvania law.
The plaintiffs first claim is that the verdict was against the weight of the evidence and
against longstanding Pennsylvania law. The plaintiff claims that there was no dispute that the
plaintiff sustained injuries to her wrists and ankles as a direct result of this motor vehicle accident,
'The plaintiff restified th:lt while under the care of ~fain Line Rhcumatology, she was prescribed Humira, Methatrexare,
Cyclobcnzaprine, as well as folic add and a muscle relaxer. i'\ .T. 8/ 10/1 S at 77- 79.
3
and thus the plaintiff was entitled to damages for those injuries.' Although the defendant's
negligence was not disputed in this case, the plaintiffs injuries, as well as the causation of those
injuries, was disputed, and the medical experts for both sides offered conflicting testimony as to
causation. As it is within the sole province of the jury to make credibility determinations regarding
conflicting testimony, the verdict was not against the weight of the evidence, and this claim fails.
Issues of credibility are for the jury to determine, and factual findings are rarely overturned
where a jury has made credibility determinations regarding the testimony and evidence presented.
Annbrustcr v. Horowitz, 744 1\.2d 285, 287 (Pa.Super. 1999), affd, 813 A.2d 698 (Pa. 2002).
Credibility determinations are within the sole province of the jury. 'A jury is entitled to
believe all, part or none of the evidence presented .... A jury can believe any part of a witness'
testimony that they choose, and may disregard any portion of the testimony that they
disbelieve.' Randt, at 234, 671 A.2d at 233 (citation omitted).
Martin v. Evans, 71 ·1 A.2d 458, 463 (Pa. 1998).
The standard by which a trial court should review a weight of the evidence claim is as follows:
This Court has repeatedly emphasized that it is not only al J court's inherent fundamental
and salutary power, but its duty to grant a new trial when it believes the verdict was against
the weight of the evidence and resulted in a miscarriage of justice. Although a new trial
should not be granted because of a mere conflict in testimony or because the [court] on the
same facts would have arrived at a different conclusion, a new trial should be awarded when
the jury's verdict is so contrary to the evidence as to shock one's sense of justice and the
award of a new trial is imperative so that right may be given another opportunity to prevail.
Ma1111110/'t.tO ,,. 1818 M(lrkel Pad11e1:chip, 734 A.2d 23, 28 (Pa.Supcr.1999) (citations omitted).
Armbruster, 74·1 A.2d at 287.
I
Tn support of this proposition, the plaintiff cites to Cn:;selli v. Powlen, in which rhe Superior Court found that the
jury's award of zero damages was against the weight of the evidence presented at trial. 937 ,-\.2d 1137, 1140 (Pa.Super.
~007). In Casselli, the plaintiff \V' to view expert medical
reports and internet articles' - rhar were all introduced into evidence at trial - during their
deliberations. Thus, this claim foils.
During a jury trial, the court may "make exhibits available to the jut}' during its
deliberations." Pa.R.C.P. 223.1 (d)(.1). 111e trial court has discretion to determine which exhibits
should be permitted to be viewed by the jury during deliberations. Wagner by Wagnct; v. Yoxk
Hospital, 608 A.2d 496, 503 (Pa.Super. l 992).
During deliberations, the jurors asked to see particular articles which were utilized by
defense counsel during cross-examination of plaintiffs expert, Dr. Whalen. N.T. 8/12/15 at 53.
The articles were attached to Dr. Whalen's deposition transcript, Exhibit P-13, and were admitted
into evidence. Exhibits 0-5, 0-7, 0-8. The jurors also requested to sec the expert reports of Dr.
Whalen and Dr. Derk, which were also moved into evidence, as attachments to the video deposition
transcripts of Dr. Whalen and Dr. Derk. Exhibits P-13, D-4.<' Upon consideration of plaintiff's
counsel's objection, this Court sent only relevant portions of the articles, which were touched on in
; 111c plaintiff incorrectly states that this Court allowed the jury to view all internet articles produced by defense counsel
on cross-examination of plaintiff's expert, Dr. Whalen, as this Court limited the articles to only those pages that were
mentioned in the testimony. N.'l'. 8/12/15 at 68.
1'
Dr. \X!J1:1len'$ report was attached to Dr. \v'h:1len's video deposition transcript as Exhibit W1rnlcn· I. Dr. Derk's report
was attached to Dr. Derk's video deposition transcript as Exhibit Derk-Z, and his supplemental report was attached as
Exhibit Dcrk-3.
8
the experts' testimony, to the jury. 7 N .T. 8/ 12/ 15 at 68. This Court allowed the expert re pons of
Dr. Derk and Dr. Whalen to be sent to the jury, as they were also admitted into evidence. ML
As this Court acted within its discretion in allowing the jurors to view portions of the articles
and the experts' reports - which were all properly admitted into evidence at trial - during
deliberations, this claim fails.
For the foregoing reasons, the verdict entered in favor of the defendant should be affirmed.
BY THE COURT:
.M. TERESA SA!lliIINA, J.
7 Punicuiarly, p,1ges 1, 3, 4, 9, and 10 from the NIH article, entitled "Rheumatoid Arthritis," were sent to the jury. N.T.
8/ 12/ 15 at 74; Exhibit D-S. Pages l , 2, and 7 from the ;\fayo Clinic article, entitled "Diseases and Conditions:
Rheumatoid Arthritis," were scot to the jury. IJ.; Exhibit D-7. Finally, page I from the Cleveland Clinic article, entitled
"Rheumatoid Arthritis," was sent to the jury. IJ.; Exhibit D-8.
9