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Digiovanni v. Murphy

SUPERIOR COURT OF PENNSYLVANIA
Sep 22, 2016
J. A21024/16 (Pa. Super. Ct. Sep. 22, 2016)

Opinion

J. A21024/16 No. 2902 EDA 2015

09-22-2016

JOIE DIGIOVANNI Appellant v. JOHN B. MURPHY


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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.:

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. 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 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. The trial court denied Appellant's Post-Trial Motion on September 14, 2015, and simultaneously entered Judgment in Appellee's favor. Appellant and the trial court have complied with Pa.R.A.P. 1925.

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).

The court mailed the parties Pa.R.C.P. 236 Notice of Entry of Judgment on September 15, 2015.

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
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. 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. Id.

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).

At trial, both parties' expert witnesses testified at trial by way of videotaped deposition. The transcripts of those depositions, and the internet 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]." N.T., 8/12/15, at 68.

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.

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 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. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/22/2016

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Summaries of

Digiovanni v. Murphy

SUPERIOR COURT OF PENNSYLVANIA
Sep 22, 2016
J. A21024/16 (Pa. Super. Ct. Sep. 22, 2016)
Case details for

Digiovanni v. Murphy

Case Details

Full title:JOIE DIGIOVANNI Appellant v. JOHN B. MURPHY

Court:SUPERIOR COURT OF PENNSYLVANIA

Date published: Sep 22, 2016

Citations

J. A21024/16 (Pa. Super. Ct. Sep. 22, 2016)