Temple, J. v. Providence Care Center

J-A06009-18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

JAMES TEMPLE, ADMINISTRATOR FOR IN THE SUPERIOR COURT
THE ESTATE OF ELMA B. TEMPLE, OF
DECEASED, PENNSYLVANIA

Appellant

v.

PROVIDENCE CARE CENTER, LLC D/B/A
PROVIDENCE CARE CENTER,

Appellee No. 87 WDA 2017

Appeal from the Order Entered December 14, 2016
In the Court of Common Pleas of Beaver County
Civil Division at No(s): 11726-2012

BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED JANUARY 05, 2021

Appellant, James Temple, administrator for the estate of Elma B.

Temple, deceased, appeals from the trial court’s order granting Appellee,

Providence Care Center, LLC d/b/a Providence Care Center (referred to herein

as “Providence”), a new trial as to both liability and compensatory damages.

We previously affirmed, focusing our review on a few highly contested issues

and determining that the trial court was able to sua sponte grant Providence

a new trial. Upon review, our Supreme Court reversed our decision,

concluding that the trial court did not invoke — and could not have invoked —

its sua sponte power to declare a new trial based on those issues. It instead

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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ascertained that the trial court granted a new trial based upon Providence’s

unpreserved motions for a mistrial, which was legal error. Our Supreme Court

subsequently remanded the case back to us to examine other bases given by

the trial court for its grant of a new trial that we had not addressed in our

prior memorandum. After reviewing some of the other reasons given by the

trial court, we again affirm the trial court’s decision to award a new trial on

liability and compensatory damages to Providence.

Our Supreme Court summarized the factual and procedural history of

this case as follows:
In 2008, Elma Betty Temple (“Elma”), who suffered from
Alzheimer’s disease, became a resident of Providence Care
Center, a nursing home located in Beaver Falls, Pennsylvania.
Providence … owned and operated the facility, while Grane
Healthcare Company (“Grane”) provided management services.
On November 28, 2011, Elma, who was 81 years old at the time,
fell while walking on a ramp. She suffered a fracture in her right
humerus, a fracture in her right pelvis, and a laceration to her
right elbow. Providence apparently was not supervising Elma at
the time; the only witness to the incident, a hospice chaplain, was
not a designated caregiver.

On September 26, 2012, [Appellant], Elma’s son, filed a complaint
on Elma’s behalf1 against Providence and Grane, alleging
negligence and corporate negligence, and sought punitive
damages. [Appellant] alleged that Providence should have known
that Elma required supervision, because of two previous falls in
2011. [Appellant] further claimed that the facility was
understaffed, and that Providence failed to provide needed safety
measures.

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1 During the course of the litigation, Elma passed away.
[Appellant] is now the administrator of Elma’s estate.[1]

In May 2016, the court of common pleas presided over an eight-
day jury trial. During the trial, three issues arose that are
pertinent for resolving the instant dispute: (1) the admission of
evidence regarding alleged understaffing of the facility, (2)
testimony pertaining to Providence’s alleged “star rating,”[2] and
(3) the propriety of [Appellant’s] closing argument, as detailed
below. At the close of [Appellant’s] case, the trial court granted
a motion for nonsuit as to Grane and dismissed Grane from the
case. The trial court denied a motion for nonsuit as to Providence
and denied a motion for a directed verdict on punitive damages.

In the bifurcated trial, the jury first considered whether Providence
was negligent, the amount of compensatory damages to award,
and whether Providence was reckless. The jury found that
Providence was both negligent and reckless, and awarded
$2,000,000 in compensatory damages. The second phase of the
trial was focused upon punitive damages. After deliberations in
this phase, the jury awarded $250,000 in punitive damages.

***

After the jury announced its verdicts and awards, both [Appellant]
and Providence filed post-trial motions, which the trial court
____________________________________________

1 In light of Elma’s passing, we order our Prothonotary’s office to amend the
caption to accord with the caption used by our Supreme Court, which reflects
that Appellant is now the administrator of Elma’s estate.

2 The Court explained that the Centers for Medicare & Medicaid Services
(“CMS”) assess nursing homes and
“created the Five-Star Quality Rating System to help consumers,
their families, and caregivers compare nursing homes more easily
and to help identify areas about which you may want to ask
questions.” A CMS-run website “features a quality rating system
that gives each nursing home a rating of between 1 and 5 stars.
Nursing homes with 5 stars are considered to have much above
average quality and nursing homes with 1 star are considered to
have quality much below average.”

Temple Estate of Temple v. Providence Care Center, LLC, 233 A.3d 750,
754 n.3 (Pa. 2020) (hereinafter “Temple II”) (internal citations omitted).

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disposed of in two separate opinions. In an opinion dated
December 13, 2016, the trial court responded to Providence’s
post-trial motions. First, the trial court granted Providence’s
motion for [judgment non obstante veredicto (“JNOV”)] with
regard to punitive damages, finding that [Appellant] had
presented no evidence that could show that Providence’s “conduct
amounted to anything more than negligence.”

Second, in a lengthy analysis, the trial court granted Providence’s
motion for a new trial with regard to negligence and compensatory
damages. The trial court provided five reasons for granting a new
trial: (1) the compensatory damages award was “so contrary to
the evidence as to shock one’s sense of justice…”; (2) [Appellant]
did not support [his] understaffing claims with expert testimony,
and the trial court “ha[d] no way to determine whether the jury
found Providence to be negligent based on a lack of staffing or
based on another allegation of negligence…”; (3) the trial court
improperly instructed the jury on staffing and the possibility of
Providence’s reckless conduct…;6 (4) the trial court improperly
submitted the issue of punitive damages to the jury…;7 and (5)
the trial court admitted “improper prejudicial evidence….”
6 The trial court additionally found that it had improperly
instructed the jury on corporate liability, but the court
decided that this error was harmless.
7 The trial court’s language with regard to this reason for
granting a new trial was especially confusing. The trial court
wrote that “[a] new trial is necessary because the question
of punitive damages was improperly submitted to the jury.”
The court then wrote that, “[f]or the reasons we believe a
[JNOV] is warranted on the issue of punitive damages, we
also believe a new trial is warranted.” The best
interpretation of this portion of the opinion is that the trial
court was granting a new trial on negligence and
compensatory damages because the court submitted the
punitive damages question to the jury, as the trial court had
earlier in the opinion granted JNOV on the punitive damages
question.

With regard to the fifth reason, the trial court highlighted the
erroneous admission of evidence regarding six different issues,
including the staffing, star rating, and closing argument
controversies noted above. Notably, the trial court did not make
any determination as to whether Providence waived entitlement

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to a new trial based upon the star rating issue. And in response
to [Appellant’s] claim that Providence had waived the ability to
ask for a new trial due to the prejudicial closing argument, the
court wrote that Providence “timely objected … at trial. … Thus,
[the remedy of asking for a new trial was] not waived by”
Providence. The trial court concluded that “the cumulative effect
of the errors in this trial … produced something other than a just
and fair result. For that reason, a new trial [wa]s warranted.”8
8The trial court additionally denied Providence’s request for
remittitur, as it found the proper remedy to be a new trial.

After [Appellant] filed a timely appeal to the Superior Court, the
trial court issued an opinion in accordance with Pa.R.A.P. 1925(a).
As to the decision to grant a new trial on negligence and
compensatory damages, the trial court wrote that “[t]he [c]ourt
adequately addressed all issues in [its post-trial motions opinion],
which will serve as its [Rule] 1925(a) [O]pinion on these issues.”
However, the trial court also stated that the December 13, 2016
post-trial motions opinion “did not give an overarching reason for
its decision. … [T]he [c]ourt note[d] that the main reason for
ordering a new trial was not the substantial verdict, but the fact
that the [c]ourt did not believe the trial was fair.” In contrast to
the post-trial motions opinion, the trial court explained that[,] “if
this were a case of purely compensatory damages, [the trial court]
likely would not have awarded a new trial. The main problem in
this case was [Appellant’s] counsel’s failure to follow the rules,
and his co-mingling of arguments regarding compensatory and
punitive damages, despite the court’s admonition against this.”
The court then described the same issues regarding the star rating
and [Appellant’s] closing argument. Based upon these two issues,
the trial court came “simply [to] believe the trial was not fair,” and
“when a trial judge believes that the trial was not fair, that judge
is obliged to correct it.” Separate from this finding of unfairness,
the trial court wrote that it “d[id] not believe the claim of
inadequate staffing was properly supported by expert testimony.”
Seemingly referring to all three issues—star rating, closing
arguments, and staffing—the trial court felt “compelled to order a
new trial on both liability and damages.” The trial court did not
mention any of the other reasons9 for granting [a] new trial that
it described in its December 13, 2016 post-trial motions opinion.10
9 The trial court apparently narrowed its focus to the star
rating, closing arguments, and staffing issues on its own
accord. In his Pa.R.A.P. 1925(b) statement, [Appellant]

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wrote only that “[t]he trial court erred when it granted the
post-trial motion of Providence … and ordered a new trial as
to both liability and damages on the claim of negligence.”
10Additionally, in its Rule 1925(a) Opinion, the trial court:
(1) defended its decision to grant nonsuit for Grane; (2)
defended its rulings on other evidentiary issues; and (3)
agreed that delay damages would be proper upon remand.

***

In an unpublished memorandum, the Superior Court affirmed in
part and reversed in part. The panel affirmed the trial court’s
decision to grant a new trial. The panel first noted that,
“[b]ecause the trial court focuses on [the star rating and closing
argument] incidents to demonstrate why it believed that the trial
was unfair, [the panel] examine[d] each in turn to ascertain if they
warrant a new trial.” Temple v. Providence Care Ctr., LLC,
2018 WL 3358598, at *4 (Pa. Super. July 10, 2018) [(hereinafter
“Temple I”)].

First, on the star rating issue, the panel agreed with [Appellant]
that Providence had not preserved its claim. See id. at *6 (noting
“Providence’s late objection and failure to request a mistrial”).
However, the panel explained that these failures “cannot waive
the trial court’s power to sua sponte order a new trial.” Id.; see
also id. (“[W]e disagree with [Appellant] that Providence waived
[the star rating issue] claim by not objecting immediately and
asking for a mistrial.”). In an extended footnote, the panel further
explained that, “notwithstanding Providence’s post-trial motions
asking for a new trial, it is evident that the trial court felt
compelled to grant a new trial independent of Providence’s
motions requesting such relief.” For proof that the trial court had
used its sua sponte authority, the panel cited the trial court’s
language that, “‘when a trial judge believes that the trial was not
fair, that judge is obliged to correct it.’” Additionally, the panel
found that this sua sponte power applied in both criminal and civil
trials. Finally, the panel distinguished our waiver jurisprudence
announced in Tagnani v. Lew, … 426 A.2d 595 ([Pa.] 1981),
writing that Tagnani “involved only one error, and not the
multiple errors the trial court points to in the case sub judice,” and
that this Court’s decisions confirming the sua sponte power “post-
date” Tagnani.

Next, the panel agreed with [Appellant] that “Providence did not
request a mistrial immediately following [Appellant’s] closing

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argument.” However, the panel once again found “that this
omission d[id] not preclude the trial court from granting a new
trial sua sponte.” The Superior Court only mentioned the staffing
issue in a footnote,11 but concluded that “the trial court had a basis
to believe that the trial was unfair, given the cumulative effect of
[Appellant’s] improper conduct, along with other errors that
prejudiced Providence.” The Superior Court did not analyze those
“other issues” in terms of whether the trial court was using its sua
sponte authority or whether preservation and waiver rules
applied. In its final disposition, the Superior Court remanded the
case for a new trial.12
11 The panel wrote that[ former Providence employee
Katherine] McCombs’[s] testimony “was insufficient to
establish … understaffing,” but the panel did not analyze the
staffing claim in terms of waiver of a motion for a mistrial
by Providence or the trial court’s ability to grant a new trial
sua sponte.
12 Not pertinent to this appeal, the panel made two
additional rulings. First, the panel sustained the trial court’s
decision to grant JNOV on punitive damages. Second, the
panel reversed the trial court’s decision to grant the motion
for nonsuit as to Grane and ordered that Grane be included
in a new trial.

We granted [Appellant’s] petition for allowance of appeal in order
to decide the following question:

Did the Superior Court disregard decades of controlling
Supreme Court precedent by affirming the grant of a new
trial based upon errors that were not preserved properly at
the time of trial?

Temple v. Providence Care Ctr., LLC, 205 A.3d 312 ([Pa.]
2019) (per curiam).

Temple II, 233 A.3d at 753, 757-60 (some internal citations omitted;

emphasis in original; some brackets added).

Upon its review, our Supreme Court discerned that Providence did not

preserve its request for a mistrial based on the staffing, star rating, and

closing argument issues, as Providence did not request a mistrial at any point

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during the trial itself because of those issues. See id. at 763; see also id. at

760 (explaining that a party preserves a motion for mistrial by “mak[ing] a

timely, specific objection at trial and rais[ing] the issue on post-trial motions”)

(citation omitted; brackets and emphasis in original). It then evaluated

whether this Court erred in determining that the trial court used, or could have

used, its sua sponte authority to grant a new trial because of the staffing, star

rating, and closing argument issues. Id. at 764-68. The Court concluded

that:
There are instances in which a party detects, but fails to preserve,
an error that could result in a mistrial. In today’s decision, we
again recognize that a trial court possesses the very limited and
restrained authority to halt proceedings and compel them to begin
anew based upon that unpreserved error. But in such a
circumstance, a trial court may only use its sua sponte authority
to grant a new trial where “exceedingly clear error” results in
“manifest injustice,” of a constitutional or structural nature.
Ewing v. Tees, 1 Binn. 450, 455-56 (Pa. 1808) (opinion of
Tilghman, C.J.) However, that is not what occurred here, and the
Superior Court’s conclusion must be reversed. Because
Providence … did not preserve its request for a mistrial and
because the trial court did not grant, and could not have granted,
a new trial sua sponte based upon the unpreserved request for a
mistrial, we reverse the Superior Court’s order and remand for
further proceedings.

Temple II, 233 A.3d at 752-53.

In remanding the case to us, our Supreme Court observed:
The trial court, responding to Providence’s arguments that
included “everything but the kitchen sink,” gave a multitude of
reasons in its December 13, 2016 Post-Trial Motions Opinion and
Rule 1925(a) Opinion for granting a new trial. The Superior Court
focused only upon the three issues outlined in this opinion because
the trial court itself directed the focus to those three issues in the
Rule 1925(a) Opinion. The Superior Court, though, failed to take
into account the trial court’s statement that the trial court

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“adequately addressed all issues” in the December 13, 2016 Post-
Trial Motions Opinion, “which … serve[d] as its [Rule] 1925(a)
[O]pinion on these issues.” While the Superior Court noted that
its affirmance was based upon “the cumulative effect of
[Appellant’s] improper conduct, along with other errors that
prejudiced Providence,” it did not analyze any of the other reasons
for the trial court’s grant of a new trial.

The “salutary purpose” of a Rule 1925(a) opinion is “to provide a
sufficient foundation for ensuing appellate review.”
Commonwealth v. Hairston, … 84 A.3d 657, 679 ([Pa.] 2014)
(Saylor, J., concurring); see also Commonwealth v. Pate, …
617 A.2d 754, 758-59 ([Pa. Super.] 1992) (“The purpose of the
[Rule 1925(a) opinion] is two-fold. First, it gives the appellate
court a reasoned basis for the trial court’s disposition of the
challenged orders. Second, it requires the judge to thoroughly
consider his decision regarding the post-trial motions, in order to
correct any problems that occurred at the trial level.”). A trial
court can use a Rule 1925(a) opinion expressly to amend or even
supersede its rationale from an earlier opinion. See … Rule
1925(a) Op.[, 3/8/17,] at 2 (“Although we stated in our [Post-
Trial Motions] opinion that the verdict shocked the conscience of
the [c]ourt, if this were a case of purely compensatory damages,
we likely would not have awarded a new trial.”) (emphasis in
original). A Rule 1925(a) opinion, however, does not erase from
existence the trial court’s prior pronouncements on a topic when
the Rule 1925(a) opinion does not give such direction. The
continued relevance of an earlier opinion is especially salient when
the trial court specifically has incorporated that prior opinion into
the Rule 1925(a) opinion, as the trial court did here.

We agree with [Appellant] that the trial court’s other reasons for
granting a new trial “are not properly before the Court.”
Accordingly, on remand, the Superior Court shall consider the
other bases for the trial court’s grant of a new trial. In doing so,
the Superior Court must again consider any possible waiver by
either party, including in failing to preserve an issue at trial or in
failing to note an adverse party’s lack of preservation upon appeal.
Therefore, we reverse the Superior Court and remand for further
proceedings consistent with this opinion.

Temple II, 233 A.3d at 768-69 (some internal citations and footnote omitted;

emphasis in original).

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Pursuant to our Supreme Court’s instruction, we turn our attention back

to this matter to consider the other bases for the trial court’s grant of a new

trial to Providence. At the outset, we acknowledge that,
“[w]here the trial court articulates a single mistake (or a finite set
of mistakes), the appellate court’s review is limited in scope to the
stated reason.” Morrison v. Commonwealth, Dep't of Pub.
Welfare, Office of Mental Health, … 646 A.2d 565, 571 ([Pa.]
1994). Conversely, “where the trial court leaves open the
possibility that there were reasons to grant or deny a new trial
other than those it expressly offered, or the trial court justifies its
decision on the ‘interests of justice,’ an appellate court must apply
a broad scope of review and affirm if it can glean any valid reason
from the record.” Harman [ex rel. Harman v. Borah], 756 A.2d
[1116,] 1123-24 [(Pa. 2000)] (citing Morrison, 646 A.2d at 570).

Temple II, 233 A.3d at 764.

Additionally, we recognize that,
[i]n reviewing a trial court’s decision to grant or deny a motion for
a new trial, it is well-established law that, absent a clear abuse of
discretion by the trial court, appellate courts must not interfere
with the trial court’s authority to grant or deny a new trial.
Moreover, a new trial is not warranted merely because some
irregularity occurred during the trial or another trial judge would
have ruled differently; the moving party must demonstrate to the
trial court that he or she has suffered prejudice from the mistake.

… [W]e must first determine whether we agree with the trial court
that a factual, legal or discretionary mistake was, or was not,
made. If we agree with the trial court’s determination that there
were no prejudicial mistakes at trial, then the decision to deny a
new trial must stand. If we discern that a mistake was made at
trial, however, we must then determine whether the trial court
abused its discretion in ruling on the motion for a new trial. A trial
court abuses its discretion by rendering a judgment that is
manifestly unreasonable, arbitrary or capricious, or has failed to
apply the law, or was motivated by partiality, prejudice, bias or ill
will.

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Atwell v. Beckwith Machinery Co., 872 A.2d 1216, 1221 (Pa. Super. 2005)

(citation omitted).

In conducting our review, we rely on the briefs that the parties originally

filed with this Court.3 In Appellant’s initial brief to this Court, he attacks the

trial court’s grant of a new trial to Providence due to the weight of the

evidence, the star rating controversy, his closing argument, and the

understaffing issue. See Appellant’s Brief at 33-34. He does not address in

the relevant argument section of his initial brief the trial court’s other reasons

for awarding a new trial, such as the court’s determinations that the jury

should not have been instructed regarding recklessness and that Appellant’s

expert — Nurse Charlotte Sheppard — provided unsupported testimony that

Providence acted with “reckless disregard” for Elma’s safety. In spite of

Appellant’s inattention to these issues, the trial court did in fact conclude that,

“[b]ecause [it] wrongly allowed Nurse Sheppard to testify that [Providence’s]

conduct was reckless without proper support for this opinion, and because [it]

allowed the issue of recklessness to go to the jury, [it] believe[s] a new trial

is warranted.” Trial Court Opinion and Order on Providence’s Post-Trial

Motion, 12/13/16, at 30. It further explained:

____________________________________________

3 In a per curiam order, we denied Appellant’s request to conduct further
briefing on remand. We agree with Providence that Appellant “had an
opportunity to fully brief all potentially relevant issues in both his initial and
reply briefs. Thus, nothing further is needed or appropriate.” Providence’s
Answer to Appellant’s Application for Leave to Conduct Further Briefing on
Remand, 9/19/20, at ¶ 5 (emphasis in original).

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[Providence] argues that Nurse Sheppard should not have been
permitted to testify that [Providence] acted with “reckless
disregard” for [Elma’s] safety. [The court] do[es] not believe that
this opinion was impermissible merely because it was an opinion
on the ultimate fact. Such opinion is permitted under Rule of
Evidence 704. [See Pa.R.E. 704 (“An opinion is not objectionable
just because it embraces an ultimate issue.”).] The trial judge
has discretion to admit or exclude an expert’s opinion on an
ultimate issue, depending on the probative value of the opinion
versus its potential to cause confusion or prejudice.

After careful review of the testimony, however, [the court]
agree[s] that Nurse Sheppard’s opinion of “reckless disregard”
was not supported by facts as required by Rule 705. [See Pa.R.E.
705 (“If an expert states an opinion[,] the expert must state the
facts or data on which the opinion is based.”).] Nurse Sheppard
did not state the facts to support her opinion that [Providence’s]
conduct was more than ordinary negligence. Without this factual
support, [the court] believe[s] her opinion concerning
recklessness was improper.

Nurse Sheppard made no distinction for the jury between
negligence and recklessness. This was an important difference
and a matter that required expert testimony, because … this was
a professional negligence case, which requires a professional to
explain the standard of care and why it was not met. The law
recognizes a distinction between negligence, gross negligence and
recklessness. Nurse Sheppard summarily concluded that the
conduct amounted to “reckless disregard” for [Elma’s] safety, but
did not explain to the jury why it was more than just an ordinary
breach of the professional duty of care for a nursing home. As
such, [the court] believe[s] it was improper to allow her to give
the opinion that the conduct was reckless.

Moreover, [the court] do[es] not believe the conduct in this case
was anything more than ordinary negligence, as [it] originally
thought going into the trial.

Id. at 29-30. In granting Providence a new trial, the trial court also stated

that it agreed with Providence that “the jury was misled into awarding

[Appellant] large amounts for items unsupported by the evidence[,]” id. at

36, and opined that it “did not believe the trial was fair.” Rule 1925(a) Op. at

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2; see also id. at 2-3 (indicating that the jury included damages for

punishment in its $2 million verdict).

Despite Appellant’s failure to mention these reasons for the new trial in

its initial brief, Providence raises in its responsive brief that, in addition to the

understaffing, star rating, and closing argument issues, “[a] new trial was also

required because of the admission of unsupported testimony (and jury

instruction) regarding ‘reckless disregard.’” Providence’s Brief at 39.

Providence argues that “Nurse Sheppard did not state facts to support an

opinion that the case involved anything more than ordinary negligence and

made no distinction between negligence and recklessness.” Id. at 39-40

(citation omitted). It also asserts that “the jury instruction regarding

recklessness during the compensatory stage of trial based upon Nurse

Sheppard’s unsupported conclusion was similarly inappropriate.” Id. at 40

(citation omitted). Providence claims that “[s]uch an instruction at the

compensatory stage of trial invited the jury to punish Providence, which is not

a function of compensatory damages. Providing this misleading instruction,

which was in no way supported by the evidence and which clearly affected the

jury’s compensatory verdict, warrants a new trial.” Id.

Appellant counters in his reply brief that there is plenty of evidence to

support Nurse Sheppard’s testimony regarding reckless disregard. He says

that “[h]er opinion was based, in part, upon her finding that Elma was

frequently left alone without any assistance or supervision when ambulating

and transferring. It[ is] also based on [Providence’s] repeated failure to

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update Elma’s care plan.” Appellant’s Reply Brief at 26 (citations omitted).

Appellant therefore contends that, “[w]ith or without Nurse Sheppard’s

testimony, these facts demonstrate recklessness.” Id. at 27. Moreover, he

insists that, “[a]s for the claim that Nurse Sheppard somehow usurped the

‘function of the jury’ with her opinion, both lay and expert witnesses are

permitted to give opinions that embrace an ‘ultimate issue.’” Id. (citations

omitted). He further argues that “the court explained to the jury that they

were not bound to accept any of the expert testimony[,]” and that “the jury

was free to reject Nurse Sheppard’s opinion.” Id. at 28.4

Appellant’s argument lacks merit. In Temple I, we affirmed the trial

court’s grant of JNOV on punitive damages, agreeing with the trial court that

Appellant proffered insufficient evidence to demonstrate any recklessness by

Providence. Temple I, 2018 WL 3358598, at *9-13. In reaching that

conclusion, we discussed how “punitive damages may be awarded for conduct

that is outrageous, because of the defendant’s evil motive or his reckless

____________________________________________

4 Notably, Appellant does not contend that Providence waived its arguments
pertaining to the impropriety of Nurse Sheppard’s reckless disregard
testimony and the trial court’s jury instruction on recklessness. Consequently,
we do not consider any possible waiver of these issues further. See
Commonwealth v. Hakala, 900 A.2d 404, 407 (Pa. Super. 2006) (noting
that “[i]t is the [a]ppellant who has the burden of establishing his entitlement
to relief by showing that the ruling of the trial court is erroneous under the
evidence or the law[,]” and that “[i]t is not this Court’s function or duty to
become an advocate for the appellants”) (citations omitted; some brackets
added); Coulter v. Ramsden, 94 A.3d 1080, 1088 (Pa. Super. 2014) (“This
Court will not act as counsel and will not develop arguments on behalf of an
appellant.”) (citations omitted); see also Commonwealth v. Williams, 141
A.3d 440, 464 n.23 (Pa. 2016) (deeming a waiver argument waived).

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indifference to the rights of others.” Id. at *9 (citations omitted). We

explained that reckless indifference in this context requires “evidence

sufficient to establish that (1) a defendant had a subjective appreciation of

the risk of harm to which the plaintiff was exposed and that (2) he acted, or

failed to act, as the case may be, in conscious disregard of that risk.” Id. at

*11 (citations omitted). We then discerned that,
in granting Providence’s motion for JNOV regarding punitive
damages, the trial court explained its reasoning as follows:

After careful review of the testimony, we believe there was
insufficient evidence regarding the state of mind of
Providence to show that its conduct amounted to anything
more than negligence. [Appellant’s] expert, Nurse …
Sheppard, testified that the staff “should’ve known that if
they didn’t provide appropriate supervision, an adverse
outcome could happen.” However, “should have known” is
not the requisite state of mind for punitive damages.
Further[,] she testified that “[t]hey knew something bad
could happen if they didn’t do something appropriately like
supervise and update her care plan, yet they didn’t do that.”
She did not identify who specifically knew this, and yet still
failed to act.

Nurse Sheppard testified that they “missed opportunities to
go back and update the plan and make sure they were
meeting [Elma’s] needs” and that “the facility failed to
anticipate her needs.” These failures do not establish the
state of mind necessary to impose punitive damages.

Moreover, there was no assertion that the employees at
Providence deliberately failed to take action, or that any of
the employees appreciated an unusually high risk, but still
failed to do anything about it. See[,] e.g.[,] Jones v.
McDonald’s Corp., 958 F.Supp. 234 (E.D. Pa. 1997) … (“If
the defendant actually does not realize the high degree of
risk involved, even though a reasonable man in his position
would, the mental state required for the imposition of
punitive damages in Pennsylvania is not present.”)[.]

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[Trial Court] Opinion and Order on Providence’s Post-Trial Motions
at 4-5 (some internal citations omitted).

We agree with the trial court’s observations. As it ascertained,
Appellant does not point to any evidence demonstrating that
Providence had a subjective appreciation of the risk of harm to
which [Elma] was exposed due to its alleged failure to supervise
her and update her care plan, and that Providence acted (or failed
to act) in conscious disregard of that risk.

Id. (emphasis in original; internal citation omitted). In addition to rejecting

Appellant’s arguments that Providence was reckless in its alleged failure to

supervise and update Elma’s care plan, we also rejected Appellant’s argument

that Providence was reckless in purportedly understaffing its facility. Id. at

*11-13. Accordingly, we agree with the trial court that Nurse Sheppard’s

reckless disregard testimony and the trial court’s jury instruction on

recklessness were improper.

Providence insists that it was prejudiced by these mistakes. It

complains that the jury was able to hear and consider Nurse Sheppard’s

unsupported testimony and maintains that the jury instruction regarding

recklessness, which had been given during the compensatory stage of trial,

invited the jury to punish Providence instead of compensate Elma for her

damages. Providence’s Brief at 40; see also Harman, 756 A.2d at 1122

(“The harmless error doctrine underlies every decision to grant or deny a new

trial. A new trial is not warranted merely because some irregularity occurred

during the trial or another trial judge would have ruled differently; the moving

party must demonstrate to the trial court that he or she has suffered prejudice

from the mistake.”) (citations omitted). Appellant advances no counter-

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argument specifically addressing the prejudice, if any, experienced by

Providence as a result of these errors. See Appellant’s Reply Brief at 26-28;

see Coulter, supra; Hakala, supra. Thus, because the record reflects that

these errors misled the jury and contributed to its rendering an unfair

compensatory damages verdict, and because Appellant proffers no persuasive

argument to the contrary, we conclude that Providence suffered prejudice

from these mistakes.

Finally, Appellant fails to convince us that the trial court abused its

discretion in granting a new trial to Providence based on these prejudicial

mistakes. The record supports the reasons provided by the trial court for

granting a new trial due to Nurse Sheppard’s improper testimony and the trial

court’s jury instruction on recklessness. Accordingly, we affirm the trial court’s

decision to grant Providence a new trial on liability and compensatory

damages.5, 6

Order granting new trial to Providence affirmed. Case remanded for

further proceedings. Jurisdiction relinquished.

____________________________________________

5 Because we conclude that a new trial is warranted due to Nurse Sheppard’s
testimony and the trial court’s jury instruction regarding recklessness, we
need not address any of the other reasons that the trial court provided for
granting a new trial.

6 Nothing in this memorandum shall affect our previous determinations in
Temple I that the trial court properly granted JNOV on punitive damages, but
erred in granting a nonsuit in favor of Grane. See Temple I, 2018 WL
3358598, at *18. We reiterate that Grane may be included in the new trial.
Id.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/5/2021

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