Opinion
J-A20002-15 No. 2444 EDA 2014
08-05-2015
MARY COLEMAN AND MARVIN COLEMAN, ADMINISTRATORS FOR THE ESTATE OF CAROLYN COLEMAN, DECEASED, Appellants v. MAPLEWOOD MANOR AND G&E HC REIT II, MAPLEWOOD AND MAPLEWOOD MANOR CONVALESCENT CENTER, INC. AND MAPLEWOOD MANOR CONVALESCENT CENTER AND FFE/MAPLEWOOD-CLIVEDEN INC., AND MAPLEWOOD MANOR CONVALESCENT CENTER, INC., AND G&E HC REIT II CLIVEDEN SNF, L.P. AND G&E HC REIT II PHILADELPHIA SNF PORTFOLIO SPE GENERAL PARTNER, LLC GENERAL PARTNER AND G&E HC REIT II MAPLEWOOD MANOR SNF, L.P.. AND JOHN DOE CORPORATIONS (1-3), JOHN DOE (1-3) AND JOHN DOE ENTITIES (1-3) FICTITIOUS NAMES, INDIVIDUALLY, JOINTLY, SEVERALLY OR IN THE ALTERNATIVE, Appellees
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P 65.37
Appeal from the Judgment dated July 9, 2014, Court of Common Pleas, Philadelphia County, Civil Division at No. April Term, 2012 No. 003416 BEFORE: DONOHUE, SHOGAN and WECHT, JJ. MEMORANDUM BY DONOHUE, J.:
Appellants Mary Coleman and Marvin Coleman, as the administrators of the estate of Carolyn Coleman ("Appellants") appeal from the judgment entered against them and in favor of Maplewood Manor and the other appellees named above ("Maplewood"). Following our review, we affirm.
The trial court summarized the history of this case as follows:
Carolyn Coleman was a resident of Maplewood Manor beginning in April of 2008, when she was admitted following a fall in her home. Coleman arrived at Maplewood with a history of pulmonary edema, diabetes, congestive heart failure, hypertension, and obesity. On or about July 27, 2011, Coleman, who was unable to walk or to shower by herself, was taken by staff to a showering room across the hall from her room. When she was in the showering room, she suffered a cardiac arrest. She was taken back to her room where staff performed CPR and called an ambulance. Coleman was transported to Einstein Hospital in Philadelphia on July 27. She died three days later. At the time of her death, she was sixty-nine years old.Trial Court Opinion, 12/23/11, at 1-2. Appellants filed a timely post-trial motion, which the trial court denied. This timely appeal followed.
Although the [c]omplaint, all subsequent pleadings, and a majority of the written documents introduced as evidence indicated that Coleman suffered the cardiac arrest on July 27, in the course of discovery, Appellants found an undated, handwritten note apparently made by a nurse on which the nurse wrote that Coleman was "found down" on July 24. At trial, Appellants proceeded on the theory that Coleman actually suffered a cardiac arrest on July 24 and was left ... for three days before an ambulance was called. At trial, Maplewood presented expert testimony that it would be basically impossible for a person to go into cardiac arrest, be ignored for three days, and arrive alive at a hospital after those three days had elapsed. Apparently accepting this testimony and finding that the cardiac arrest occurred on July 27, the jury found that Maplewood was not negligent.
Appellants present the following issues for our review:
1. Whether the [trial court] committed error and/or abused its discretion when it refused a new trial despite fabricated medication records?Appellants' Brief at 6.
2. Whether the [trial] court committed error or abused its discretion when it refused a new trial in light of [Maplewood's] closing specifically designed to inflame the jury?
3. Whether the discovery court unknowingly committed error and/or abused its discretion when it ruled [that] [Appellants'] payroll records request was too broad?
4. Whether the [trial] court committed error and/or abused its discretion when it ruled [Maplewood] did not admit to not having procedures and policies and thereby controlled the outcome of the case?
5. Whether the [trial] court committed error and/or abused its discretion when [it] refused to hold the incident date was July 24, 2011 and thereby controlled the outcome of the case?
We have reordered the issues for ease of discussion.
The first two issues presented challenge the trial court's denial of Appellants' motions 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." Gurley v. Janssen Pharm., Inc., 113 A.3d 283, 288 (Pa. Super. 2015) (citation omitted).
Appellants allege that Maplewood fabricated medication records to establish that the decedent was coherent and receiving medication between July 24 and July 27, 2011 in support of its position that decedent's cardiac arrest occurred on July 27. See Appellants' Brief at 41-43. The trial court denied Appellants' motion for a new trial based upon this alleged fabrication because Appellants produced no evidence to support a finding of fabrication. Trial Court Opinion, 12/23/11, at 6.
The only allegation Appellants made with regard to this claim in their post-trial motion is that "[Maplewood] presented fabricated documentary evidence that was used in the direct examination of their experts, the cross of [Appellants'] expert, and during closing arguments." Plaintiffs' Motion for Post-Trial Relief, 5/26/14, ¶ 37. At oral argument, Appellants clarified that their claim was based on a comparison of two of Maplewood's trial exhibits, D-1 and D-28, and explained that the basis for their belief that D-1 (the medication record) was fabricated. See N.T., 7/8/14, at 5-9. However, Appellants presented no evidence, beyond their detailed comparison, to establish that the medication record was fabricated. Appellants' claim of fabrication was based solely on conjecture and speculation that arose after they took a closer look at documents that had been in their possession prior to the commencement of trial. A new trial may be proper when evidence is discovered after trial that relates to material facts of the case and/or the impeachment of a witness; it is not cumulative of evidence that had been admitted at trial; and it could not have been obtained by reasonable diligence in time for trial. See McCabe v. Pennsylvania R. Co., 166 A. 843, 844 (Pa. 1933); In re Estate of Roart , 568 A.2d 182, 187 (Pa. Super. 1989). The same cannot be said here, where it was only after trial that Appellants discovered a new basis for impeachment in documents they possessed before trial. As such, we find no abuse of discretion in the trial court's denial of this motion.
Appellants claimed that the initials of some nurses that appeared on the medication record for certain days did not appear on the corresponding staffing sheet, and alleged that Maplewood fabricated the medication sheet to support its claim that the decedent was conscious between July 24 and July 27, 2011.
We note Appellants' concession that Maplewood provided the documents at issue in response to Appellants' discovery requests. N.T., 7/8/14, at 5. Accordingly, Appellants could have discovered the alleged discrepancies upon which they base their claim of fabrication prior to trial.
Appellants also challenge the denial of their request for a new trial based upon certain comments made by Maplewood's counsel in his closing argument to the jury. Appellants argue that during his closing argument, Maplewood's counsel apologized for deposing the decedent's elderly mother, Mary Coleman, and then made "untrue statements" to the effect that he only deposed Mary Coleman because Appellants' counsel insisted that he do so. Appellants' Brief at 48-49.
Our review of the record reveals that Appellants never objected to these statements at trial. "In order to preserve an issue for appellate review, a party must make a timely and specific objection at the appropriate stage of the proceedings before the trial court. Failure to timely object to a basic and fundamental error will result in waiver of that issue." Thompson v. Thompson , 963 A.2d 474, 475-76 (Pa. Super. 2008). "On appeal the Superior Court will not consider a claim which was not called to the trial court's attention at a time when any error committed could have been corrected." Id.; see also Maya v. Johnson & Johnson , 97 A.3d 1203, 1224 (Pa. Super. 2014) ("It is the duty of the trial judge to take affirmative steps to attempt to cure harm [caused by statements made in closing argument] once an offensive remark has been objected to.") (emphasis added). Because Appellants did not object at a time at which the trial court could have issued a curative instruction, this issue has been waived.
Even if this issue had not been waived, we would find that it merits no relief.
It is well settled that the presentation of closing arguments ... is within the discretion of the trial court, whose vantage point enables it to evaluate the climate of the courtroom and the effect on the jury of closing arguments. Furthermore, a new trial is not required where the remarks made by counsel were neither inflammatory or prejudicial.Mansour v. Linganna , 787 A.2d 443, 449 (Pa. Super. 2001) (internal citations omitted). "When reviewing objectionable remarks made by trial counsel in closing argument, they must not be viewed in isolation, but, rather in the context of opposing counsel's closing argument." Alexander v. Carlisle Corp., 674 A.2d 268, 271 (Pa. Super. 1996).
The record reveals that it was Appellants, not Maplewood, who played the videotaped depositions of Mary Coleman and the decedent's brother, Marvin Coleman at trial, in support of their damages claim. Appellants played the entire videotapes, which made it apparent that the depositions were taken by Maplewood as part of the discovery process. In his closing argument, Appellants' counsel stated that he was "arguing on behalf of [decedent] and Miss Mary." N.T., 5/15/14, at 29. He subsequently stated, "Now, I've got to talk about damages really quickly. We cannot bring back [decedent], and Miss Mary Coleman. Okay. She's 98 years old." Id. at 42. Subsequently, Maplewood's counsel apologized to the jury for taking these depositions and stated,
When questioned by their counsel during the deposition, Mary and Marvin Coleman testified as to decedent's daily life, their relationships with her, and the activities decedent enjoyed. Deposition of Mary Coleman, 10/11/13, at 33-38; Deposition of Marvin Coleman, 10/11/13, at 36, 39-42.
I think that that wasn't meant to be shown to the jury at all. It was just a fact-finding thing. And Ms. Coleman, at her age, we probably shouldn't have done that. That wasn't right. But you know ... [Appellants' counsel] insisted that they would be providing information about this case, that they would be testifying at trial. So, as an attorney, I'm legally obligated to take their depositions, to find out what they know.Id. at 46-47.
Appellants brought the deposition videotapes before the jury and referenced Mary Coleman's advanced age in their closing argument, thereby tacitly reinforcing the fact that Maplewood deposed her despite her advanced age. Considering Maplewood's counsel's statements against this backdrop, we conclude that the complained-of statements were made in response to the subtle attempt by Appellants to impugn Maplewood's counsel, if not Maplewood, in the eyes of the jury. Statements made for such a responsive purpose are permissible. See Alexander , 674 A.2d at 271. Appellants would not have been entitled to a new trial on this basis.
In their next issue, Appellants challenge the trial court's determination that their requests for staffing and payroll records was overbroad. Appellants' Brief at 45. The majority of Appellants' argument addresses the wholly different question of whether Maplewood failed to timely produce an asset purchase agreement and/or certain payroll records. Id. at 45-47. This argument implicates Maplewood's failure to abide by a discovery order, not the propriety of the trial court's order. Appellants put forth no discussion relevant to the issue raised; that is, they have not indicated how or why the trial court erred in its determination that the request at issue was overly broad. Accordingly, this issue is waived. King v. Stefenelli , 862 A.2d 666, 670 (Pa. Super. 2004) (finding issue waived where brief contains no corresponding argument).
In their fourth issue, Appellants argue that the trial court erred by refusing to give jury instructions relating to admissions of fact and violations of laws governing nursing homes. Appellants' Brief at 53. The heart of this issue is Appellants' contention that they requested Maplewood's "policies and procedures" for patient care by virtue of the following discovery request:
15. Copies of internal memoranda, inter-office memos, facsimilies, e-mail or other documents or communications regarding this claim, made by Defendant(s) and/or any agent and/or employee of Defendant(s), or their insurance carrier(s), excepting those that are privileged. Please provide copies of all communications/documentation of any type whatsoever related to patient/resident care, including, but not limited to, handbooks, brochures, memoranda, newsletters, videos, certifications, accreditations, inspections by any state and/or local agency, public or private, and reviews of services/care provided by any state and/or local agency, public or private.Plaintiff's Request for Production of Documents, 10/25/12, ¶ 15 (emphasis added). Maplewood responded, "None." Defendants' Response to Plaintiff's Request for Production of Documents, 12/11/12, at 2.
Immediately before trial, the parties convened for a hearing on the parties' competing motions in limine. Appellants argued, inter alia, that Maplewood's response to paragraph fifteen was an admission that it lacked policies and procedures related to patient care and sought to hold Maplewood to that admission. N.T., 5/12/14, at 22-26. Maplewood responded that because the request did not use the terms "policies" or "procedures," no such documents had been requested. Id. at 26-27. During this proceeding, the trial court learned that there had been a prior ruling on the discovery issues Appellants were raising. The trial court denied Appellants' motion (with regard to the discovery issues) and instructed Appellants not to raise the issues again. Id. at 36-37.
At the charging conference, Appellants requested that the trial court instruct the jury that Appellees admitted that they did not have polcies and procedures related to patient care by virtue of their answer to paragraph fifteen of Appellants' document request. N.T., 5/14/14, at 173-74. The trial court rejected this request and reminded Appellants that it had rejected their argument regarding this issue prior to the start of trial. Id. at 174-75. Appellants' counsel stated, "I don't recall the denial, Your Honor, but if you're saying that their response ... [is] not an admission, okay, Your Honor." Id. at 174. With this statement, Appellants withdrew their requested jury charge. As such, this issue is waived for purposes of appeal. See Meyer v. Union R.R. Co., 865 A.2d 857, 861 (Pa. Super. 2004) (recognizing that to preserve an issue concerning the trial court's charge to the jury for appeal, complaining party must have submitted specific point for charge or made specific objection when the instruction was not given).
Appellants' final issue presents the compound argument that the trial court erred by (1) refusing to rule that the decedent's cardiac arrest occurred on July 24, 2011 and (2) subsequently refusing to instruct the jury to that effect.
The issue of the date of decedent's cardiac arrest was first raised in Maplewood's motion in limine. Maplewood argued that Appellants consistently maintained that decedent suffered cardiac arrest on July 27, 2011, until their expert witness, Dr. Hankins, issued her report. In her report, Dr. Hankins opined that decedent's cardiac arrest occurred on July 24, 2011. Maplewood argued that Appellants should be precluded from proceeding on this "new theory" of negligence because they did not raise it in their complaint and it was now barred by the statute of limitations. Defendants' Motion in Limine, 4/25/14, at 4. Appellants responded that this was not a new theory; that they always claimed the cardiac arrest occurred "on or about July 27, 2011;" that Maplewood had long been aware that July 27, 2011 was not the only date relevant to their case; and that Maplewood admitted that July 24, 2011 was the date of the incident in a response to a document request. Plaintiffs' Response to Defendants' Motion in Limine, 5/4/14, at 2-4. Following argument, the trial court denied Maplewood's motion. It ruled:
Dr. Hankins' issued her report on August 15, 2013, which was more than two years after the decedent's death.
As to the ... motion in limine to precluded [sic] the report of [Appellants'] expert A.V. Hankins, M.D., and any claims that [Appellants'] decedent suffered a cardiac arrest on July 24, 2011, was found down inN.T., 5/12/14, at 49.
the shower, was left alone and fell in the shower and was ignored and untreated for three days, the notes regarding the decedent's treatment are admissible under the hearsay exception that notes were made for medical treatment. The pleading that the occurrence occurred on or about July 27, 2011, is broad enough to allow such testimony, and the argument can go as to the weight of the discussion, not the admissibility.
Subsequently, on the second day of trial, Appellants requested that the trial court rule that July 24, 2011 "is the date [the decedent] went down in the shower room and that that's the date the defendants attempted to perform CPR on her." N.T., 5/13/14, at 7-8. The trial court denied this motion, stating, "I feel that that is a matter of fact for the jury to decide. I'm not going to make a ruling as to the date." Id. at 8. We find no error in this determination. There was no dispute that the decedent suffered cardiac arrest while she was in the shower room. The parties were proceeding on conflicting theories as to the date that event occurred, and both had evidence in support of their position. It is axiomatic that "a fact-finder is permitted to accept all, part, or none of the testimony, and it is within the fact-finder's exclusive province to resolve conflicts in that testimony." Haan v. Wells , 103 A.3d 60, 72 (Pa. Super. 2014) (emphasis added). As such, under these circumstances, it would have been error for the trial court to rule as Appellants requested.
The second part of Appellants' issue argues that the trial court erred in refusing to give the jury a directed verdict jury instruction regarding the date of the incident. Appellant's Brief at 57. Contrary to Appellants' claim, the record reveals that the trial court agreed to give the charge. Id. It appears, however, that the trial court did not give this instruction to the jury, and when the trial court asked, "[C]ounsel, is there any reason that I need to confer with you before the jurors begin their deliberation?" Appellants' counsel responded "No, Your Honor." Id. at 101-02. Accordingly, Appellants' have waived this issue because they did not object when the trial court omitted it from its charge. Meyer , 865 A.2d at 861.
Judgment affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/5/2015