Felton, M. v. Johnson & Johnson

• Court: Superior Court of Pennsylvania
• Decided: July 7, 2026
• Docket: 778 WDA 2025
• Status: Unpublished
• Author: Bender

Opinion

J-A13040-26

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

MICHELLE F. FELTON, EXECUTRIX OF : IN THE SUPERIOR COURT OF THE ESTATE OF MICHAELEEN LEE, : PENNSYLVANIA DECEASED : : Appellant : : : v. : : No. 778 WDA 2025 : JOHNSON & JOHNSON; JANSSEN : PHARMACEUTICALS INC.; JOHNSON & : JOHNSON HOLDCO (NA) INC., : KENVUE, INC. :

Appeal from the Judgment Entered September 3, 2025 In the Court of Common Pleas of Allegheny County Civil Division at No: GD-23-008055

BEFORE: BOWES, J., OLSON, J., and BENDER, P.J.E.

MEMORANDUM BY BENDER, P.J.E.: FILED: July 7, 2026

Michelle F. Felton (Appellant), executrix of the Estate of Michaeleen Lee,

Deceased (Decedent),1 appeals from the denial of her request for a new trial.2

After careful consideration, we affirm.

On June 29, 2023, Decedent filed a complaint against Johnson &

Johnson; Janssen Pharmaceuticals Inc.; Johnson & Johnson Holdco (NA) Inc.;

and Kenvue, Inc. (collectively, Defendants). Decedent claimed that she

____________________________________________

1 Appellant was substituted as plaintiff after Decedent’s death on November

9, 2023.

2 On May 13, 2025, the trial court entered an order denying Appellant’s post-

trial motion, and Appellant praeciped for entry of judgment on September 3, 2025. J-A13040-26

suffered from mesothelioma that was caused by asbestos in the talcum

powder sold by Defendants.

A jury trial was held over the course of several weeks, from November

11, 2024 to January 6, 2025. On the last day of trial, the trial court and

counsel discussed “an issue … with the verdict slip.” N.T., 1/6/25, at 3. The

court recognized that its verdict slip improperly instructed the jury to consider

compensatory and punitive damages regardless of whether they found that

Defendants caused Decedent’s mesothelioma. The court stated:

We worked a little bit with this. What we’ve come up with is the following, that at the end of Question 7 it would read as follows: Only proceed to Question 8 if any of the following has occurred: (A) if you’ve answered yes for any entity at Questions 1 and 2 and/or if you’ve answered yes for both Questions 4 and 5 and/or if you’ve answered yes for both Questions 6 and 7. So it seems that that covers that if [Appellant] gets liability on all the causes of action or one, we go to compensatory damages. Then I believe as it reads now with regard to the punitive damages, it reads appropriately.

Id.

Defendants’ counsel expressed concern with the trial court’s revisions.

He anticipated that the jury could find Defendants not liable, but “still consider

whether punitive damages are warranted against [Defendants] and that’s not

right.” N.T. at 5. Defendants’ counsel stated, “this is getting a little bit

cumbersome and my proposal is easier to understand for the jury.” Id. at 6.

However, the court did not adopt counsel’s proposal. The court said, “we can

do it that way but wouldn’t the simpler way to do this be that if the jury doesn’t

find liability as to [Defendants] and for whatever reason goes to punitive

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damages, I mean wouldn’t I just mold the verdict and say it’s an invalid award

of damages?” Id. at 6-7. As Defendants observe, Appellant’s counsel “did

not object to the court’s plan.” Defendants’ Brief at 8.

Later that day, the jury issued its verdict. The jury found Defendants

had not caused Decedent’s mesothelioma, but awarded her estate $22 million

dollars in punitive damages. Upon hearing the verdict, the trial court stated

that it needed to speak with counsel. The court told counsel, “I thought our

instructions were clear, maybe they weren’t.” N.T. at 261. The court added,

“I think I know what we should do but I want to hear it from the parties.” Id.

Defendants’ counsel reiterated that the verdict form “was confusing” and the

“problem [wa]s not the jurors, it[ wa]s the instruction.” Id. at 265. When

the court agreed “the error [wa]s in the slip,” Appellant’s counsel suggested,

“if the [c]ourt believes there is an error the way the verdict slip is

misunderstood, … we need to clarify that with them.” Id. at 266-67. The

court rejected the suggestion, and repeated that the jury “clearly reached no

causation before they addressed any damages.” Id. at 271. The court

concluded, “I’ll poll the jury. That is all I’m going to do.” Id. at 273. The

court then asked that the jury be returned to the courtroom. Id. at 274. After

polling the jury, the court “mold[ed] the verdict, which found for Defendants

and awarded [Appellant] no damages.” Trial Court Opinion (TCO), 10/22/25,

at 4.

On January 15, 2025, Appellant filed a post-trial motion seeking a new

trial. The trial court reviewed the parties’ briefs and heard oral argument

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before denying the motion on May 13, 2025. On June 11, 2025, Appellant

filed a notice of appeal, followed by a court-ordered concise statement on July

1, 2025.

Appellant presents the following questions for our review:

1. Given the jury’s verdict was inconsistent, should the trial court have either asked the jury to clarify its verdict or ordered a new trial?

2. Should the trial court have precluded Defendants’ experts from testifying outside the scope of or in contradiction to their disclosed opinions?

3. Should the trial court have precluded Defendants’ fact witnesses from testifying about scientific, technical, or other specialized knowledge?

4. Should the trial court have prohibited Defendants from questioning one of [Appellant’s] experts about a physical confrontation when Defendants represented to [Appellant] they would not raise the issue, and the physical altercation had nothing to do with the merits of the case and was unduly prejudicial?

5. Should the trial court have precluded Defendants from introducing Complaints and an e-mail from [Decedent’s] counsel from a prior case?

6. Should the trial court have precluded Defendants from designating its questioning of [Decedent] about why she brought this matter in Allegheny county?

Appellant’s Brief at 3-5.

In her first question, Appellant asserts that the trial court erred “by

failing to have the jury clarify or correct its ambiguous and inconsistent verdict

or order a new trial based on that inconsistent verdict.” Appellant’s Brief at

13. To the contrary, Defendants maintain that the court “correctly molded

the verdict because the jury’s intent on causation was clear, notwithstanding

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the errant award of punitive damages.” Defendants’ Brief at 1. Defendants

reiterate that the jury found no causation on any of Appellant’s claims against

Defendants. They state that the jury “mistakenly answered the questions on

punitive damages because the directions not to do so absent causation on one

of the underlying claims were buried below the question concerning

compensatory damages on the preceding page—a question and page the jury

correctly skipped because it found no causation.” Id. at 19.

“Our standard of review when faced with an appeal from the trial court’s

denial of a motion for a new trial is whether the trial court clearly and palpably

committed an error of law that controlled the outcome of the case or

constituted an abuse of discretion.” Blumer v. Ford Motor Co., 20 A.3d

1222, 1226 (Pa. Super. 2011) (citation omitted). “It is beyond peradventure

that the trial judge has the power to mold a jury’s verdict.” Krock v. Chroust,

478 A.2d 1376, 1380 (Pa. Super. 1984) (citations omitted). “The power to

mold or, more precisely, amend a jury’s verdict is merely a power to ‘make

the record accord with the facts, or to cause the verdict to speak the truth.’”

House of Pasta, Inc. v. Mayo, 449 A.2d 697, 702 (Pa. Super. 1982) (citation

omitted). The rationale supporting the trial court’s discretion is that

“[v]erdicts which are not technically correct in form but which manifest a clear

intent on the part of the jury may be corrected without resort to further jury

deliberations or the grant of a new trial.” Mendralla v. Weaver Corp., 703

A.2d 480, 486 (Pa. Super. 1997) (citing House of Pasta, supra, at 701).

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Here, we discern no error. The trial court advised the parties that it

would mold the verdict in the event of an inconsistent verdict. See N.T. at 6-

7 (stating that if the jury did not find causation, “and for whatever reason

goes to punitive damages, I mean wouldn’t I just mold the verdict and say it’s

an invalid award of damages?”); see also McDermott v. Biddle, 674 A.2d

665, 667 (Pa. 1996) (recognizing “the presumption that jury verdicts are

consistent, that is, consistency will be presumed unless there is no reasonable

theory to support the jury’s verdict.”). In its opinion, the trial court has

properly and thoroughly expanded on the issue. See TCO at 7-14. For

example, the court states:

The question of jury intent in this case takes an interesting cast, in that if anything the jury made its intent all too clear. There is little doubt that the jury intended to find that [Appellant] had not proven causation between [Decedent’s] mesothelioma and Defendants’ actions[, as] the jury denied the existence of causation on three separate occasions, making any uncertainty on the part of the jury on that point exceedingly unlikely. It seems just as clear that the jury, believing it had to decide the issue, chose to award [Appellant] punitive damages against Defendants. Faced with mutually exclusive findings within the verdict, the [c]ourt sought to preserve as much of the jury’s decision as possible and issued a molded verdict enacting the jury’s finding of fact that Defendants’ conduct did not give rise to [Appellant’s] injuries, since causation must be found for the Court to award damages.

TCO at 7 (citation omitted).

In addition, the trial court has capably addressed Appellant’s remaining

questions which assail the court’s evidentiary rulings. Appellant claims the

jury was influenced by “inappropriate expert opinions” and “irrelevant and

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prejudicial evidence.” Appellant’s Brief at 15. Conversely, Defendants

observe that the trial court “made countless rulings that went both ways,” and

“carefully assessed every objection raised by the parties and then exercised

its broad discretion to address the individual circumstances of each issue.”

Defendants’ Brief at 1, 5. We agree with Defendants.

When we review a ruling on the admission or exclusion of evidence, including the testimony of an expert witness, our standard is well-established and very narrow. These matters are within the sound discretion of the trial court, and we may reverse only upon a showing of abuse of discretion or error of law. An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous. In addition, to constitute reversible error, an evidentiary ruling must not only be erroneous, but also harmful or prejudicial to the complaining party.

Risperdal Litig. W.C. v. Janssen Pharms., Inc., 174 A.3d 1110, 1118 (Pa.

Super. 2017) (citation omitted).

Our review reveals that the trial court properly exercised its discretion

on evidentiary matters. In addition, we agree with the court’s determination

that even if its “evidentiary decisions amounted to error, [Appellant] has not

shown prejudice that would place said error outside the scope of the harmless

error doctrine.” TCO at 25. After “careful review of the facts and law

involved,” the court found “no persuasive indication that it applied the law so

erroneously, or made decisions that were so unfounded and prejudicial to

[Appellant] that an abuse of discretion was committed.” Id. at 26-27.

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Accordingly, and for the above reasons, we adopt the trial court’s

October 22, 2025 opinion in disposing of Appellant’s questions and affirming

the denial of her request for a new trial.3

Order affirmed.

DATE: 07/07/2026

3 In addressing Appellant’s questions, the trial court “count[ed] a total of 9

issues raised by [Appellant], taking into account all sub-issues,” which it “attempt[ed] to condense … where possible.” TCO at 4 n.1.

-8- Circulated 06/23/2026 09:11 AM

Allegheny County - Department of Court Records Civil Division - Filings Information

County caseID:GD-23-008055 Case Description:Lee vs Acme Markets Inc, etal_ Official Docket Entry, Sort By Document Number Ascending

Document Filed Date Title/Entry Entry Classification Filed By Number

1 10/22/2025 Opinion Official Docket Entry Philip Algnelzi

(Index Page-1) IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNNSYLVANIA

MICHELLE FELTON, Executrix of CIVIL DIVISION—COMPLEX the Estate of MICHALEEN LEE, Decedent,

Plaintiff, Case No. GD 23-008055

v.

JOHNSON & JOHNSON et al.,

Defendants.

Opinion

I. Factual Background

This case sterns from Decedent Michaeleen P. Lee being diagnosed with epithelioid

mesothelioma, a rare form of lung cancer which Plaintiff claims is directly related to asbestos

exposure, on November 28, 2022. Plaintiff’s Complaint at 23. Plaintiff claims this diagnosis to

be the outcome of exposure to talc products containing asbestos and silica from the 1 940s

through 2015, a result of Plaintiff’s using such products as talcum and baby powder on herself

and family members. Id.. Plaintiff commenced the action at issue with a 7-count complaint filed

June 29, 2023 against several retail and manufacturing entities involved in the making and

1 distribution of talc products. The jury ultimately considered counts of negligence; gross, willful

and wanton misconduct; and fraudulent misrepresentation.

As part of the complaint Plaintiff sought compensatory damages under the theory that

Plaintiff was harmed “as a direct and proximate result of the actions of the defendants [. ..] and

the inhalation of asbestos fibers from the Product Defendants’ producs”. Id. at 48. Plaintiff also

sought punitive damages, to be awarded as result of Defendants’ actions being “willful, wanton,

gross and in total disregard of the health and safety of the users and consumers of their

products.” Id. at 49. Defendants put forth affirmative defenses, includ ng that Plaintiff’s injuries

were caused as a result of working as a chemistry professor at Bucks County Community

College (BCCC) and that Plaintiff’s illness developed separately and independently. Defendants

filed expert reports considering both possibilities, and presented testimony related to the same.

With regards to BCCC, Defendants claimed, in part, that Plaintiff had been exposed to asbestos

from lab equipment and flaking insulation there. Defendants’ Brief in opp. to P. SMJ, p. 1 1.

At trial, Defense expert witnesses Dr. Attanoos and Dr. Sanchez were introduced

primarily to speak to issues unrelated to Bucks County Community College and Plaintiff’s

activities there. However, Defendants introduced testimony from Dr. Attanoos limited to

expressing that evidence that BCCC’s abatement records with regards to asbestos caused him

“great concern.” Trial Tr. 1/3/2025 (AM) at 12:9-13. Similarly, Dr. Saachez was allowed to give

testimony regarding testing for asbestos done by BCCC without speaking to causation. Trial Tr.

1/2/2025 (PM) at 6:24-7:14. Defendant objected to both witnesses’ testimony related to BCCC.

Plaintiff also objected to the introduction of Defense witnesses Drs. Kuffner and Hopkins’

testimony regarding scientific methodology and data during cross examination. This Court

2 allowed both witnesses’ testimony as within the scope of cross examination following Plaintiff’s

direct questioning.

Defendants additionally introduced an email from Plaintiff’s former attorney wherein the

attorney opined on the likelihood that Plaintiff’s time at BCCC was the source of her illness in

the context of a previous action Plaintiff had initiated against other parties related to Plaintiff’s

work at BCCC and BCCC’s use of asbestos. None of those parties sued are named defendants in

the case before this Court. Defendants also introduced Plaintiff’s complaint from the same case.

This Court admitted the email over Plaintiff’s objection to be used to rebut statements Plaintiff

made regarding that attorney’s investigation of BCCC and the asbestos exposure involved. Trial

Tr. 11/25/2024 (PM) at 5:12-20. Similarly, the Court determined that Plaintiff’s endorsement of

the complaint could be used as a party opponent statement. Trial Tr. 11/1 5/2024 60: 11-23,73:18-

74:2. Finally, Defendants cross-examined Plaintiff witness Dr. Longo regarding his arrest

resulting from an altercation at a scientific conference; this Court allowed Defendants to

introduce evidence of the arrest over Plaintiff’s objection provided Defendants used the evidence

to elicit testimony related to Dr. Longo’s reputation as an expert. Trial Tr. 12/1 8/2024 at 1 17:15-

118:6.

Plaintiff’s first error count is a result of the jury rendering a verdict that was contradictory

on its face, finding as it did both that Defendants both did not cause Dr. Lee’s injuries and that

punitive damages totaling $22 million should be awarded to Plaintiff as a result of Defendants’

actions. This Court expressed some confusion, Trial Tr. 1/6/25 at 261; 16- 17, and considered

objections from both Defendants’ and Plaintiff’s counsel. Plaintiff argued at trial that the verdict

was inconsistent and that the jury should be asked to clarify its verdict. Trial Tr. 1/6/25 at 263:22-

267:10. The Court surmised that the verdict slip’s special verdict questions assessing punitive

3 damages (question 9) and last question addressing liability (question 7) lacked language making

it clear to the jury that the question of punitive damages should not be considered if no liability

has been found. Defendant’s Brief in Opp. at 7-9; Trial Tr. 1/6/2025 266:25-267:1, 269:1 8-270:2.

The issue had been addressed by the Court with regards to question 8 prior to the verdict being

reached, at which time the Court asserted that a molded verdict would cure any mistakes owed to

the drafting of questions 7 and 9. Id. at 5:10-8:7. After overruling Plaintiff, this Court filed a

verdict form dated 01/08/25 molding the verdict, which found for Defendants and awarded

Plaintiff no damages.

Plaintiff filed a motion for post-trial relief in the form of a new trial on 1/15/25; in it

Plaintiff avers 3 issues in support: a) the jury ‘s verdict was ambiguous and inconsistent given

the jury’s both awarding damages to Plaintiff and finding for Defendant with regards to whether

there was causation between Defendants’ acts and Plaintiffs injury; b) Defendants’ expert

witnesses Dr. Sanchez and Dr. Anoos presented testimony at trial outside the scope of what their

disclosed reports covered in violation of Pa.R.C.P. 4003.5(c), and fact witnesses Dr. Kufifner and

Dr. Hopkins gave expert opinion testimony in violation of Pa.R.E. 701(c); and c) Defendants

improperly introduced prejudicial evidence at trial. Plaintiff’s Motion for Post-Trial Relief at 4-

12. 1

1In all, this court counts a total of 9 issues raised by Plaintiff, taking into account all sub-issues. This Court finds it prudent to quote: the view of an eminent appellate jurist, Judge Ruggero Aldisert, that the number of claims raised in an appeal is usually in inverse proportion to their merit and that a large number of claims raises the presumption that all are invalid. As Judge Aldisert puts it, ‘Appellate advocacy is measured by effectiveness, not loquaciousness.’

Commonwealth v. Ellis, 626 A. 2d 1137, 1140-41 (Pa. 1993) citing, The Appellate Bar: Professional Competence and Professional Responsibility-A View from the Jaundiced Eye of One Appellate Judge, 11 Cap.U.L.Rev. 445, 458 (1982).

This Court will attempt to condense claims where possible.

4 II. Analysis

A. Issue #1

The standard under which a judge’s decision whether to grant a new trial is evaluated

requires a clear abuse of discretion or error of law by the court. Chiaverini v. Sewickley Valley

Hosp., 409 Pa. Super. 630, 633 (Pa. Super. 1991); Blicha v. Jacks, 864 A. 2d 1214, 1218 (Pa.

Super. 2004). This standard will regiment the Court’s analysis of all three of Plaintiff’s averred

errors, and Plaintiff bears the burden of proof of showing either abuse of discretion or error of

law. Daddona v. Thind, 891 A.2d 786, 805 14 (Pa. Commw. Ct. 2006) (with regards to admitting

expert testimony); Koch v. Franklin, 315 Pa. 145, 147 (Pa. 1934) (burden ofproofis Plaintiff’s).

Clear abuse of discretion is more specifically defined as “a misapplication of the law, a

manifestly unreasonable exercise in judgment, or a final result that evidences partiality,

prejudice, bias, or ill-will.” Allegheny County v. Golf Resort, Inc., 974 A.2d 1242, 1245 (Pa.

Super. 2009). It should also be noted that, although a potential remedy for an inconsistent

verdict, a trial court’s power to grant a new trial is strictly circumscribed in accordance with the

law’s general reluctance to upset or overturn a duly deliberated verdict rendered by a jury.

Criswell v. King, 575 Pa. 34, 834 A.2d 505, 512-13 (Pa. 2003). A trial court responding to a

request for a new trial must first determine whether any mistakes were made at trial, and if so,

whether those mistakes warrant ordering a new trial. Harman ex rel. Harman v. Borah, 562 Pa.

5 455, 467 (Pa. 2000). This Court sees no evidence that would amount to either a clear abuse of

discretion or error of law, with regards both to this Court’s evidentiary rulings and molded

verdict. It cannot therefore conclude that an appellate court would find for Plaintiff in her

requests for a new trial.

As noted by both parties’ brief in support and opposition to a new trial, the relevant

inquiry when assessing whether a molded verdict is proper when a jury returns a contradictory

verdict is the extent to which the verdict evinces a clear intent on the part of the jury. A molded

verdict is meant to give voice to what the jury clearly intends: “the verdict to be molded must

manifest a clear intent on the part of the jury.” Krockv. Chroust, 330 Pa. Super. 108, 116(Pa.

Super. 1 984). As such, molding a verdict is regarded as “a power to ‘make the record accord with

the facts, or to cause the verdict to speak the truth.’” Id., quoting Pennsylvania Practice (Rev.

Ed.) Ch. 27, § 72 at 568. When the Court can determine the jury’s intent, it has the well-

established discretion to issue a molded verdict. See, for example, Ferrick Excavating and

Grading v. Senger Trucking Co., 31 5 Pa.Super. 69, 77 (Pa. Super. 1 983). This power of the Court

complements the well-established presumption that a jury’s verdict is consistent unless no

reasonable theory is available to support a verdict. See Hornak v. Pittsburgh Railways Co., 143

Pa. 169, 175 (Pa. 1969). Similarly, the Court in deciding whether to mold a verdict is limited to

considering facts that are discernable from the verdict itself. Krock v. Chroust, 330 Pa. Super, at

116: May v. Pittsburgh Railways Co., 209 Pa.Super. 126, 129 (Pa. Super. 1966). The molded

verdict, as a result, must implement the clear intent of the jury and will not be valid if the Court

assumes facts extrinsic to the verdict itself in doing so. As aforementioned, just like for any

judicial decision to be reviewed under a clear abuse of discretion standard, “if in reaching a

conclusion the law is overridden or misapplied, or the judgment exercised is manifestly

6 unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence or

the record, discretion is abused.” Mielcuszny v. Rosol, 317 Pa. 91, 93-94 (Pa. 1934). Case law

places the ability to adjust damages specifically as part of a molded verdict within the scope of

the court’s power to mold a verdict. See Pusl v. Means , 982 A.2d 550, 556-57 (Pa. Super. 2009)

(Trial court was within discretion to adjust damages based on statute and public policy);

Mendralla v. Weaver Corp., 703 A.2d 480, 486 (Pa. Super. 1997) (Molded verdict properly

barred type of damages impermissibly awarded by jury).

The question of jury intent in this case takes an interesting cast, in that if anything the

jury made its intent all too clear. There is little doubt that the jury intended to find that Plaintiff

had not proven causation between Dr. Lee’s suffering from mesothelioma and Defendants’

actions: as Defendants correctly point out in their brief, the jury denied the existence of causation

on three separate occasions, making any uncertainty on the part of the jury on that point

exceedingly unlikely. Defendants’ Brief in Opposition to Plaintiff’s Motion for Post-Trial Relief,

p. 5. It seems just as clear that the jury, believing it had to decide the issue, chose to award

Plaintiff punitive damages against Defendants. Faced with mutually exclusive findings within the

verdict, the Court sought to preserve as much of the jury’s decision as possible and issued a

molded verdict enacting the jury’s finding of fact that Defendants’ conduct did not give rise to

Plaintiff’s injuries, since causation must be found for the Court to award damages.

In rendering their verdict in this case, the jury considered the elements of negligence and

whether they applied to Defendants’ conduct; finding a defendant negligent requires the jury to

find '‘(1) a duty or obligation recognized by the law requiring the defendant to conform to a

certain standard of conduct for the protection of others against unreasonable risks; (2)

defendant's failure to conform to the standard required; (3) a causal connection between the

7 conduct and the resulting injury; (4) actual loss or damage resulting to the plaintiff.” (emphasis

added). R. W v. Manzek, 585 Pa. 335, 346 (Pa. 2005). Each element is necessary for a defendant

to incur liability, and although damages do not necessarily flow from a jury’s finding of liability,

liability must be found in order to award damages. See Pennsylvania Practice, 4 PAPRAC § 12.1,

“Damages in Tort Actions Generally”.

The jury’s verdict slip contained nine questions. Ct. Ex. 23, Verdict Slip. Question 2

addressed causation for the negligence claim. Id., Question 2. Question 5 addressed causation on

the claim of detrimental reliance on any statement of material fact made to conceal or omit

material information by Johnson & Johnson about the safety of the product at issue. Id., Question

5. Question 7 addressed causation as to detrimental reliance on any statement or conduct of

material fact intentionally or negligently made by Johnson & Johnson misrepresenting the safety

of the product at issue. Id., Question 7. As to all causation questions— questions 2, 5, and 7— the

jury answered No. Thus, there was no dispute the jury found against the Plaintiff on the issue of

causation on all causes of action. In light of these findings by the jury, there should have been no

consideration by the jury of any types of damages, either compensatory or punitive damages.

Unfortunately, the instructions on the Verdict Slip either confused or misdirected the jury.

As is the Court’s practice in every jury trial, before the verdict was read by the jury, the

Court reviewed the Verdict Slip to ensure it was properly followed, filled out, signed by the

foreperson, and dated. Trial Tr. 1/6/25 at 261:4-12. Immediately, the Court identified the problem

with the Verdict Slip and sent the jury back to the jury room. Id. Outside the presence of the jury,

the Court sought the advice and counsel of the attorneys. Id. at 261 :4-273: 1 9. During the

discussion, it became clear why this occurred. Id. at 266:15-268:24; 269:18-270:2. Question 7 on

8 the Verdict Slip, the final question before a determination of damages, instructed the jury as

follows:

Only proceed to Question 8 if any of the following have occurred: a. If you have answered “YES” for any entity at Question 1 & 2 and/or; b. If you answered “YES” for both Questions 4 & 5; and/or c. If you answered “YES” for both Questions 6 & 7. Ct. Ex. 23, Verdict Slip, Question 7 at 4.

Since the jury answered No to questions 2, 5, and 7, the jury never went to question 8, which was the compensatory damage question. By not going to question 8, and moving to question 9, the jury did not read the instruction at the bottom of question 8 which stated the following:

Please proceed to Question 9 only if you have answered one of the following as to Johnson & Johnson: a. “YES” as to Johnson & Johnson on Questions 1 & 2; and/or b “YES” as to Questions 4 & 5; and/or c. “YES” as to Questions 6 & 7. Id.

What should have occurred is the Verdict Slip, at the end of question 7, should have instructed

the jury to not consider both questions 8 and 9 if they had not fulfilled the conditions for going to

question 8. Reiterating, this was fully identified by the Court and counsel. Id. at 266: 15-268:24;

269:18-270:2.

Plaintiffs counsel argued that the jury should be brought back and questioned as to what

their intent was, which clearly would violate the province of the jury. Id. at 270: 1 6-273 : 12. At

that point, the Court was convinced the only proper procedure was to poll the jury if any party so

desired and mold the verdict. Id. at 270:12-15, 273:16-19; 280:8-281:1 (molding). The Court,

9 having earlier indicated it would mold a verdict that erroneously awarded punitive damages, took

the action consistent with that conclusion and molded the verdict.

By issuing a verdict that barred damages because no causation had been found, the Court

applied a principle of law. It did so without assuming facts unascertainable from the verdict or

considering questions which were not before the jury, nor did the Court have to consider

questions not posed to the jury in molding the verdict. Diamond design Inc. v. Blair, 2024 WL

589532 at 5 (Pa. Super. 2024). Because causation is an element necessary to incurring the legal

liability which gives rise to damages, and therefore a threshold issue, the jury’s finding

insufficient evidence of causation meant the issue of punitive damages never should have been

reached. Making a determination of law in order to mold a verdict is within the scope of a trial

court’s powers to resolve legal questions. See House of Pasta. Inc n. Mayo, 449 A.2d 697, 704

(Pa. Super. 1982) (Court can only mold verdict to avoid “incorrect result”); Mendralla v. Weaver,

703 A.2d at 486 (Court’s adjustment of damages was within power to mold a verdict since it did

not have to speculate as to how to amend damages); Kowal v. Com., Dept. ofTransp., 51 5 A. 2d

116, 119 (Pa. Cmwlth. 1986) (Court was obligated to mold verdict in accordance with statutory

damages limit); Criswell v. King, 834 A.at 512—13 (2003) (Province of jury’s fact-finding role is

strict and almost exclusive, and court should only upset a jury verdict based on factual

considerations is reserved for extreme circumstances); Mizirio v. Joseph, 4 A.3d 1073, 1089-90

(Pa. Super. 2010) (Trial judge properly struck damage award using molded verdict to bring

verdict in line with the law). The Court did not impinge upon the jury’s role as a fact finder:

rather, it considered the verdict’s finding of punitive damages and barred it as legally unsound,

without speculating as to the jury’s intent or resorting to any facts extrinsic to the verdict. See

Daley v. John Wanamaker inc, 464 A.2d 355, 357-358 (Pa. Super. 1983) (Trial court’s

10 modification of a jury’s damages award is abuse of discretion if court must endeavor to

determine facts to make adjustment, or if jury’s award does not amount to an error of law);

Prather v. H-K Corp., 423 A.2d 385, 389 (Pa. Super. 1980) (Whether an award is substantial or

fits the facts is a question for the jury barring extreme cases). This Court therefore does not find

evidence of the type of misapplication of law that would amount to a clear abuse of discretion

and warrant a new trial.

Similarly, no errors of judgment as to facts are evident in the Court’s molding of the

verdict, to the extent that this Court was exercising its power to establish a record reflecting the

effective result of the jury’s findings of facts. No measures taken by the Court made the intent

expressed by the jury’s findings of facts anything other than “clear and free from doubt.”

Mendralla v. Weaver, 703 A.2d at 486. Where the Court interfered with the jury’s findings of

fact, it did so to have the record accord with the jury’s effective findings.; in finding no causation

and therefore no punitive damages, the Court merely gave legal effect to the underlying verdict

findings. As such, the Court can find no evidence of clear abuse of discretion as to facts in its

molding of the verdict.

Nor did the molded verdict in the instant case force a different result than intended by the

jury’s clear findings. Pennsylvania case law indicates that a trial court’s molding a verdict to

reduce or bar damages based on incompatible findings, as here, can result in a verdict that retains

the jury’s intent where awarding damages would require the Court improperly to speculate.

Gorki v. Smith, 812 A.2d 683, 708 (Pa. Super. 2002).; Mendralla v. Weaver, op. cit). A new trial

as a result of judicial abuse of discretion generally requires that the party requesting a new trial

suffer some sort of prejudice because of the Court’s actions such that a different result would

have ensued without them. Boyle v. Independent Lift Truck, Inc., 607 Pa. 31 1, 318 (Pa. 2010)

11 (Injured party has burden to show prejudice and new trial requires trial court error that affects the

verdict); Com., Dept, of General Services v. U.S. Minerals Products Co., 598 Pa. 331, 336 (Pa.

2008) (New trial requires error of law or abuse of discretion that would have affected verdict).

Whatever evidence there is that any other court seeking to preserve the jury’s verdict would have

ruled differently, this Court can find none that amounts to prejudice against plaintiff warranting a

new trial. As aforementioned, the Court’s molding of the verdict preserves the jury’s findings of

facts and the intent animating those findings.

Plaintiff was found not to have proven causation, and therefore denied damages, on the

merits and according to a jury verdict. This Court acted both within its scope of discretion and its

role determining questions of law when it molded a verdict to resolve the contradictory findings

noted on the verdict slip. To the extent that the Court chose this remedy over the others available,

it did so as a discretionary matter. Morrison v. Com., Dept, of Welfare, Office ofMental Health,

538 Pa. 122, 134-136 (Pa. 1994). Its only decision of law was made according to well-settled

principles and according to a clear intent expressed by the jury upon deliberation and as recorded

in its verdict. As such, Plaintiff’s first averred error is supported by neither the record nor the

law, including Plaintiff’s request for a new trial.

Separate grounds for rejecting Plaintiff’s argument exist under the doctrine of waiver. A

plaintiff will not waive objections to an inconsistent verdict if the verdict slip does not call for

inconsistent answers in its form or language. City ofPhiladelphia, Police Dept. v. Gray, 633

A. 2d 1095 (Pa. 1993). In this case, Plaintiff agreed to the drafting of liability and damage

questions on the verdict slip; these questions as drafted are very likely to be responsible for the

erroneous verdict the jury returned. This entails that an objection to the questions as presented to

the jury arose when the instructions were being drafted, and in fact Defendants had argued that

12 leaving instructions to skip punitive damages with the compensatory damages question was

inappropriate, at which time Plaintiff made no objection. Trial Tr. 1/6/2025 6:23-7:5. Plaintiff

also did not preserve an objection to a molded verdict after this Court raised the possibility that it

would be the proper action should punitive damages be awarded with no causation, or after this

Court put the molded verdict on the record. Id.; Trial Tr. 1/6/2025 280:8-16.

This issue of waiver was also brought up by the Court when discussing post-trial

objections with counsel:

While nobody has argued this, I want somebody to address this. How is this not fully, totally and completely waived with the events of January 6th when I handed out the verdict slip that we all agreed was very complicated. I handed that verdict slip out to everybody, and I said, okay, the motion is denied, any other issues on the verdict slip? [.. .[ Now, there was an error in this. The instruction was wrong. You didn't pick it up. How isn't it waived? Trial Tr. 4/22/25 at 5:24-6:6, 6:11-6:13.

Plaintiff’s counsel responded by denying that the verdict was in error, and that there was

insufficient evidence that the jury rendered its verdict as a result of mistakenly skipping question

8 as described above. Id, at 6:14-15, 6:22-7:1. The Court finds it hard to square this line of

argument with Plaintiff’s claim that the verdict was inconsistent and prejudicial enough to

warrant a new trial. As the Court pointed out during post-trial arguments, there is overwhelming

evidence that the verdict slip and jury instructions were deficient, most prominent among which

is the fact that the jury came to a verdict that should never have been a possibility. Plaintiff’s

appeals to jury intent being inscrutable does not undo the fact that the instructions and slip as

drafted resulted in a contradictory verdict, and that all parties approved the slip. Far from

carrying her burden of proof showing abuse of discretion or reversible error on this Court’s part,

13 it is this Court’s opinion that Plaintiff did not timely preserve her objection to the verdict slip and

as such is not entitled to post-trial relief on that account.

B. Issue #2

1. Scope of Questioning

This issue concerns testimony that four of Defendants’ expert witnesses rendered at trial

on a wide range of topics. As to Drs. Sanchez, Kuffher and Hopkins, the Court admitted

questioning and evidence it found to be within the scope of what Plaintiff had put at issue during

direct questioning at trial or as deposition designations. Trial Tr. 1/2/2025 (PM) at 6:24-7:14 (Dr.

Sanchez); Trial Tr. 12/9/24 at 209:6-213:15, 219:14-19 (Kuffner); Hopkins Designations from

4/11/2018: 199:10-200:07; 275:14-276:12; 77:02-78:14; 62:22-64:14 (Hopkins). The Court also

admitted Dr. Attanoos’ testimony upon guarantee by Defendants that Dr. Attanoos would only

testify as to the “great concern” evidence of Plaintiff’s exposure as a chemistry professor caused

him. Trial Tr. 1/3/2025 (AM) at 12:9-13). After review, this Court concludes that all of Plaintiff’s

averred errors qualify as valid evidentiary decisions identifying a proper scope for expert

testimony.

Pa.R.E. 701(c) proscribes any testimony by a lay witness based on the same “scientific,

technical or otherwise specialized knowledge” that is the purview of an expert witness as defined

under Pa.R.E. 702. Just as is the case with granting a new trial, a trial court’s setting the scope of

cross examination is within that court’s discretion and will stand absent a clear abuse of

discretion. Boucher v. Pennsylvania Hosp., 831 A.2d 623, 629 (Pa. Super. 2003). To the extent

that a trial court determines testimony, including expert testimony, is admissible, it is making a

14 1

discretionary decision, as is the case when the court determines whether a party’s counsel’s

argument and presentation of evidence is appropriate. Commonwealth v. Hart, 479 Pa. 84, 87,

(Pa. \913y Purcell v. Westinghouse Broadcasting Co., 411 Pa. 167, 184, 191 (Pa. 1963) (Court’s

decision regarding counsel’s presentation of argument is discretionary); Morrison v. Com., 538

Pa. at 135-136). With regards to testimony admitted as part of cross-examination, Pa.R.E. 611(b)

allows for testimony on the same subjects covered on direct examination and gives the trial court

discretion to admit relevant evidence as if on direct. Finally, evidence proferred to directly

contradict opposing evidence (including testimony) has long been available to civil parties as of

right under Pennsylvania law if another party has proffered facts or testimony contradicting a

party’s testimony. Schoen v. Elsasser, 172 A. 301, 302 (Pa. 1934); Mitchell v. Gravely Intern, 698

A.2d at 620.

Plaintiff first argues that witnesses Drs. Kuffner and Hopkins were not disclosed as expert

witnesses, and correctly notes that Defendants introduced these witnesses as fact rather than

expert witnesses. Plaintiff’s Brief in Support of Post-trial Motion at 14-18. It is also true,

however, that the use of testimony within the scope of a cross-examination and to impeach

statements or claims made by a witness on direct are generally within a trial court’s discretion to

admit evidence, even if the testimony admitted is a surprise to the opposing party. Mitchell v.

Gravely Intern, 698 A.2d 618, 620-621 (Pa. Super. 1997) (it was an abuse of discretion for trial

court to grant new trial in part based on trial court admitting rebuttal testimony). More

importantly, a trial court should not deem previously undisclosed expert testimony offered by a

party in good faith inadmissible unless the complaining party can show they would suffer

prejudice from not being able to prepare adequately for the testimony pre-trial. Green Const. Co.

v. Dept. ofTransp., 643 A.2d 1129, 1139 (Pa. Cmwlth. 1994). Determining prejudice is a fact-

15 based decision to be made by the trial court which involves balancing the facts with each party’s

circumstances. Werner v. Department of Public Welfare, 530 A. 2d 1004, 1007 (Pa. Cmwlth.

1987); Feingold v. Southeastern Pennsylvania Transportation Authority, 512 Pa. 567, 573 (Pa.

1 986). Finally, if the evidence being offered is relevant and there is a question as to the

timeliness of disclosing an expert, courts have generally tended to apply Pa.R.C.P. 4003.5 so as

to admit rather than reject evidence as the preferable solution to a conflict regarding undisclosed

expert evidence. Clark v. Hoerner, 525 A.2d 377, 382-383 (Pa. Super. 1987).

As Defendants’ brief in opposition to Plaintiff’s post-trial motion correctly notes,

Plaintiff’s direct questioning of Drs. Kuffner and Hopkins covered specialized issues such as

industry talc safety studies and scientific literature regarding asbestos contamination in talcum

(Defendants’ Brief in Opposition at 20-22). This Court therefore admitted testimony that would

arguably have been violative of Rules 701(c) and 702 had it not been proffered within the scope

of a cross examination. Plaintiff’s having placed the testimony within the scope of cross

examination also makes the question of whether Drs. Kuffner and Hopkins had been disclosed as

expert witnesses in a timely manner irrelevant.

2. Discovery and Expert opinion

Plaintiff next argues that Dr. Attanoos’ testimony improperly testified to opinion at trial

diverging from the conclusion that Dr. Lee’s mesothelioma was spontaneous, which is what Dr.

Attanoos had submitted in his pre-trial expert report. Plaintiff’s Brief in Support of Post-Trial

Motion at 3, 8. Dr. Attanoos gave testimony differentiating commercial asbestos from other

kinds, the prevalence of asbestos in buildings like that Dr. Lee worked in at BCCC that were

16 built during a particular time period . See Trial Tr. 1/3/25 (PM) at 7:3-27:7. Defendants’ counsel

then elicited testimony from Dr. Attanoos that although he did not see evidence of Dr. Lee’s

potential exposure at BCCC when drafting his report, which concluded Dr. Lee’s illness was

spontaneous rather than caused by asbestos exposure, he then received documents that made it

more likely Dr. Lee developed mesothelioma as a result of commercial asbestos exposure. See

Trial Tr. 1/3/25 (PM) at 16:19-18:8. Among these documents were asbestos abatement records

from BCCC created in part in response to Dr. Lee alerting BCCC administration to the presence

of asbestos. Id. On cross, counsel for the plaintiff opened a line of questioning impeaching Dr.

Attanoos claims that pleural mesothelioma was not likely to be linked to commercial talc usage,

the notion that exposure to asbestos associated with home products was not likely to cause

Plaintiff’s illness, and the claims that the concept of spontaneously developed mesothelioma was

a scientifically valid occurrence rather than a legal fiction. See Trial Tr. 1/3/25 (PM) at 62: 1 4-

76:18, 83:13-89:15. Plaintiff’s counsel also presented Attanoos with evidence that he had been

round to have exceeded his permitted scope of testimony in past cases. Trial Tr. 1/3/25 (PM) at

53:13-89:15.

An expert witness’s direct examination is generally to be limited to the fair scope of the

pre-trial report that expert may have filed. Petrasovits v. Kleiner, 719 A.2d 799, 804 (Pa. Super.

1 998). ‘"Fair scope”, and Pa. R.C.P. 4003.5’s favoring of liberal discovery and aversion to

surprise prejudicial testimony, have been interpreted in part to include testimony for which non-

movant has had a chance to prepare a meaningful response and which would not mislead non-

movant as to the substance of testimony at trial. Wilkes-Barre Iron & Wire Works, Inc. v. Pargas

oj Wilkes-Barre, Inc., 502 A.2d 210, 212-213 (Pa. Super. 1985). Beyond the aforementioned

resrriction of Dr. Attanoos’ testimony, the report filed by Defendants contained opinion

17 acknowledging Dr. Lee’s work at BCCC as a possible cause of'her injuries, as this Court

acknowledged during trial:

[Dr. Attanoos] is not giving an opinion. He is saying it causes concern. It, obviously, caused Dr. Lee concern, she told them about it. He isn’t telling the jury anything that Dr. Lee didn’t say in her records. Trial Tr.1/3/25 (AM) at 12:9-12:13. See also Defendants’ Brief In Op., at 16.

As such, there is a low likelihood that Plaintiff would have been prejudicially surprised

by expert testimony related to Dr. Attanoos’ opinion regarding Dr. Lee’s exposure to asbestos at

BCCC, and would have had opportunity to prepare a meaningful response at trial. Indeed, the

lines of questioning highlighted above show that Plaintiff’s counsel was afforded an opportunity

to present what Plaintiff considers to be a discrepancy between Dr. Attanoos’s position with

regards to Dr. Lee’s cause of illness in his report and what he expressed with regards to BCCC

exposure having caused the mesothelioma. See Trial Tr. 1/3/25 (PM) at 59:10-68:21. The Court

therefore cannot be said to have abused its discretion or committed reversible error by admitting

testimony well within fair scope as applied to expert testimony related to pre-trial reports.

Similarly, Dr. Sanchez’s testimony regarding Bucks County Community College asbestos

abatement records upon cross examination by Defendants was admitted subject to the condition

that Dr. Sanchez would not provide testimony about a causal link between BCCC’s actions and

Plaintiff’s injuries:

Mr. Stute (Defendants): I said I would not solicit a causation opinion, but [Dr. Sanchez] certainly has a background in and scientific experience and testing knowledge to give general opinions. The Court: This issue as far as concern has been put before the jury. As long as we don't go a step further, I'm fine. Trial Tr. 1/2/25 at 9:16-9:23

18 As this exchange shows, Defendants were permitted to solicit general opinion testimony based

on general background knowledge regarding the possible presence of asbestos at BCCC based on

abatement records. Similarly to Dr. Atanoos, Dr. Sanchez gave no opinion as to whether the

conditions at BCCC caused Plaintiff’s illness, rather giving his general opinion as to the

advisability of working under conditions as they were at BCCC with regards to asbestos

exposure, based on his technical knowledge of the subject. See Trial Tr. 1/2/25 at 9:1-21:13.

Here again, the testimony at issue very well may have fallen under the scope of Rules

701(c) and 702 as expert testimony; having weighed the proposed scope of testimony and the

circumstances of each party, however, this Court made a decision within its discretion to include

the testimony as redirect once Plaintiff put the abatement records at issue. Having questioned

both witnesses on matters directly and indirectly related to knowledge that would qualify as

expert testimony pursuant to Rules 701(c) and 702, Plaintiff did not suffer the type of harm or

prejudice that this Couit can discern as the result of an abuse of discretion or reversible error of

law on its part. McClain ex rel. Thomas v. Welker, 761 A.2d 155, 156 (Pa.Sup.2000). Indeed, a

trial court s discretion to admit evidence if it is competent (material to issues raised at trial) and

relevant (tends to prove or disprove a material fact at issues) extends to determining that expert

testimony that may have improperly be kept undisclosed is admissible at trial. Romeo v. Manuel,

703 A.2d 530, 532 (Pa. Super. 1997); Sprague v. Walter, 656 A.2d 890, 918 (Pa. Super. 1995);

Turney Media Fuel, Inc. v. Toll Bros., Inc., 725 A.2d 836, 839 (Pa. Super. 1999). This is in

addition to the aforementioned well-established precedent guaranteeing rebuttal once facts have

been proffered discrediting a witness.

Nothing in evidence suggests this Court abused its discretion or committed reversible

error that would warrant granting a new trial, nor is there evidence of prejudice to Plaintiff that

19 would give rise to the same. This Court did make evidentiary judgments with regards to all of the

testimony Plaintiff refers to as part of the second error in her motion for post-trial relief, but none

fall outside the scope of this Court’s discretion as a trial court. As such, Plaintiff’s second averred

error should not be grounds for awarding post-trial relief.

C. Issue #3

Plaintiff finally seeks relief with regards to the introduction of evidence by Defendants

related to two topics: 1) Dr. Lee’s suing various defendants in relation to the manufacturing of

chemical equipment, and a related opinion by Dr’ Lee’s former attorney that that chemical

equipment may have caused Dr. Lee’s mesothelioma; and 2) the introduction of evidence related

to Plaintiff expert witness Dr. Longo’s having been arrested following a physical altercation.

Plaintiff additionally claims Defendants’ questions regarding Dr. Lee’s choice of venue were

calculated to bias the jury against Dr. Lee as not being a local resident and so prejudicial as to

prevent Plaintiff from obtaining a favorable verdict. Plaintiff’s brief in support at 22-23. The

above determinations regarding a trial court’s discretion apply here as they did regarding

Plaintiff’s claims regarding expert testimony.

After Plaintiff had addressed an opening statement to the jury, Defendants brought a

motion to the Court to introduce portions of an email, read aloud to the jury, that expressed an

opinion by former counsel for Dr. Lee that her mesothelioma was related to work done at BCCC.

Trial Tr. 11/25/2024 at 3:7-7:4. The email had been subject to a ruling by the Court deeming the

email privileged and thereby inadmissible, issued in response to a motion in limine filed by

20 Plaintiff; in the same order, the Court had admitted use of the complaint served by Dr. Lee as part

of the same legal action. See Plaintiff’s Motion In Limine No. 7 at 1-9, 1 1; Order 1 1/15/24 ruling

on Motion in Limine No. 7, Count 2. Acknowledging its prior ruling, the Court nonetheless

admitted the portion Defendants proposed to have read aloud into evidence:

You went through in detail why [Dr. Lee] thought it was that, why she filed the suit, they did the investigation and dismissed it. Whether the lawyer thought it, it doesn't make a difference. I'm going to allow it, it's coming in, for that purpose, for what you said. Trial Tr. 1 1/25/24 at 5: 14-5:20.

As the Court points out, Plaintiff’s counsel had made the fact that Dr. Lee had investigated and

abandoned the potential for legal action against BCC and others a line of argument in her

opening statement, leaving the opinion open for Defendants to rebut:

[Dr. Lee] hired a lawyer and the first lawyer that she hired had known about people that worked in a lab and had asbestos and so asbestos in the laboratory, that was an exposure, so she filed a lawsuit [...] We also went to Bucks County and said, did you buy this stuff, did you use it [. . .] and they didn’t [. ..] In this particular scenario we looked at the research, we did the investigation and we couldn't prove the case and we said to ourselves that case is dismissed [. ..] That resulted in [Dr. Lee] meeting [Plaintiff’s counsel]. Trial Tr. 1 1/25/25 (AM) at 92:12-92:15, 92:23-93:1, 93:3=93:7.

The Court originally refused to admit the email in part because it “involv[ed] the lawyer’s

opinion as to what caused the plaintiff’s disease”. Order 11/1 5/24 on Motion in Limine 7, Count

2. Subsequent to Plaintiff’s opening, and as it explains above, the Court concluded that the

portion of the email Defendants introduced was now admissible. As the Court explains above,

the proposed use of the email as a means to rebut the argument that Dr. Lee was convinced her

work at BCCC was responsible for her illness before deciding to dismiss the suit put it outside

the scope of its ruling, since it was not to be used for the written opinion of the lawyer that the

21 email contains. Defendants subsequently used both the email and complaint as part of their

opening argument. See Trial Tr. 1 1/25/25 at 25:4-29:22.

The Court admitted an email from Dr. Lee’s prior attorney and a complaint Dr. Lee had

filed in prior litigation. As was the case with many of this Court’s evidentiary rulings during trial,

the Court did so in response to the trial as it was developing. Defendants had requested

admission of the email, which contained evidence that Dr. Lee’s counsel at the time believed Dr.

Lee developed her illness as a result of her work at Bucks County Community College, after

Plaintiff’s counsel had developed an argument during opening statements that Plaintiff had

considered BCCC as the source of her injuries but her attorneys had decided it was not availing.

Plaintiff disputes the admissibility of this email partly on the grounds that Plaintiff’s counsel had

made arguments involving Dr. Lee’s former lawyer during opening statements, which courts in

Pennsylvania have found should not be considered evidence. School District of Philadelphia v.

Board of Revision of Taxes, 217 A.3d 472, 485 (Pa. Cmwlth. 2019; Com v. Rose, 960 A.2d 149,

1 55 (Pa. Super. 2008). As mentioned above, however, a trial court also has discretionary

supervision over how counsel for a party may organize or present their argument, including how

counsel may use evidence to rebut facts proffered to discredit their case. Purcell v. Westinghouse

Broadcasting Co., 41 1 Pa. at 184, 191 (Pa.1963); Porter v. Com., 309 A.2d 709, 712-713 (Pa.

1973). This is partly a result of the trial court’s having been present as the record was being

made, and therefore being best placed to determine what a fair and impartial proceeding requires.

Purcell, op. cit. (Pa. 1963); Mitchell. V. Gravely, 698 A.2d at 620 (Pa. Super. 1997); Morrison v.

Com., 538 Pa. at 135-136 (Pa. 1994).

A similar conclusion applies to Plaintiff’s claim that Defendants designating a line of

questioning during Dr. Lee’s 201 8 deposition that involved why Dr. Lee had chosen Pittsburgh as

22 a venue and whether she was familiar with Pittsburgh. Plaintiffhad objected to the introduction

of this designation at trial. Trial Tr. 1 1/26/24 at 84:3-25. The Court’s aforementioned ability to

evaluate and make decisions regarding a party’s structuring or presentation of an argument

easily encompasses the decision to let stand this single reference to the venue in which Plaintiff

brought suit. Purcell v. Westinghouse, 411 Pa. op. cit. (Pa. 1963). Should the designation amount

to a prejudicial statement, the reference to Decedent’s residence was not proffered “solely by an

appeal to passion and prejudice” as would be required for a new trial. Narciso v. Mauch Chunk

Tp., 87 A.2d 233, 234 (Pa. 1952). At best, Defendants’ reference to venue and Decedent’s

residence would amount to a remark that “may or may not have had a prejudicial effect on the

jury”, and which is therefore left to the discretion of the trial court. Id.. Here again, the Court

cannot find evidence that this decision was so prejudicial or erroneous as to warrant a new trial.

This Court does not find that any of the testimony and evidence to which Plaintiff refers

exceeded the scope under which they were admitted. Defendants first sought to introduce a letter

and email from Plaintiff’s former lawyer expressing his opinion that Plaintiff’s work at Bucks

County Community College could have caused her illness. Defendants introduced these items as

rebuttal to Plaintiff’s claim during opening arguments that the same lawyer had investigated

Plaintiff’s time at BCCC and could not prove exposure to asbestos. This Court then admitted the

letter and email as within the scope of what Plaintiffhad put at issue during opening arguments,

admissible to rebut a claim made by a party opponent. Trial Tr. 1 1/25/2024 (PM) at 4:1 6-5:20).

Nothing this Court can find in the record makes this decision manifestly unreasonable,

prejudicial, outside this court’s discretion, or erroneous as a matter of law.

The same reasoning applies to this Court’s admission of Dr. Lee’s complaint in a dropped

suit against Bucks County Community College, which this Court admitted as an admission by a

23 party opponent Trial Tr. 11/15/2024 60:1-23, 73:1-74:2). The complaint contained averments by

Plaintiff that involved her employment at BCCC, a fact put at issue by Plaintiff when it was

argued that Dr. Lee’s prior legal action against entities associated with her time at BCCC was

evidence against Plaintiff’s having contracted her illness there. The Court determined an

authenticated document from prior legal proceedings arising out of the same occurrence remains

within the scope of rebuttal; it does not find evidence rendering that decision an error of law or

abuse of discretion.

In the case of Dr. Longo, the Court first conducted a full 104 hearing as to the

circumstances of the physical altercation Dr. Longo had with another scientist at a conference;

the Court ruled that Defendants had a good faith basis for raising the issue of the confrontation.

Trial Tr. 1 2/1 8/24 at 1 12:4-1 1 8:24. Specifically, the Court permitted Defendants to ask about the

incident as a means of questioning Dr. Longo about whether his methodology or reputation had

ever been criticized. Id. at 1 12:4-1 18:6. Defendants’ counsel had originally claimed they were

not intending to discuss anything related to Dr. Longo’s arrest during an April 2024 professional

conference. Trial Tr. 12/18/2024 at 4:14-10:3. During questioning about the confrontation, Dr.

Longo volunteered the information that he had been thrown down stairs after intending to

confront a colleague at a bar during the conference, had been unconscious and handcuffed to a

wheelchair, and was charged with trespassing. Id. at 130:3-135:2. Defendants then sought to

show Dr. Longo a picture of his arrest to impeach Dr. Longo’s claim that he had been handcuffed

to a wheelchair, which this Court allowed given Dr. Longo’s having made a reference to an

encounter with the police. Id. at 135:4-136:13. Defendants then presented Dr. Longo with the

picture and continued cross-examination. Plaintiff included the admission of testimony about the

24 arrest and of the picture of Dr. Longo with police as part of the errors she avers in her motion for

Post-Trial relief. Plaintiff’s Motion for Post-Trial Reliefat 20-21.

The Court permitted Defendants to introduce evidence of Plaintiff expert witness Dr.

Longo’s confrontation at a scientific conference and arrest as within the scope of cross-

examination. Specifically, this Court admitted the evidence to the extent that it related to Dr.

Longo s reputation. Trial Tr. 12/18/2024, 9:10-15. At trial, Defendants elicited testimony from

Dr. Longo about an altercation he had had during a professional conference that resulted in the

police being called and Dr. Longo being briefly detained. This Court had allowed questioning

regarding this incident in order to impeach Dr. Longo’s credibility as well as proper testimony

related to Dr. Longo’s reputation. Purcell v. Westinghouse, 41 1 Pa. op. cit. (Pa. 1963). Although

a trial court may properly bar evidence tending to call an expert’s qualifications or contradicting

the witness on a collateral issue rather than rebut or impeach the credibility of their testimony, a

party may nonetheless proffer evidence upon cross examination of a witness that has undergone

adverse direct examination if that evidence tends to diminish the effect of direct. Gustison v. Ted

Smith Floor Products, 679 A.2d 1304, 1310 (Pa. Super. 1996); Kemp v. Qualls, 473 A.2d 1369,

1371 (Pa. Super. 1984).

Assuming nevertheless that any of this Court’s evidentiary decisions amounted to error,

Plaintiff has not shown prejudice that would place said error outside the scope of the harml ess

error doctrine. This 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.” Harman ex rel. Harman v. Borah, 756 A. 2d at 1 122

(Pa. 2000). Bearing this standard in mind, this Court does not find any evidence of judicial

25 ccoixx ±3£ -ucid antre the kind of mistake courts have determined to be reversible error.

rads tie issse of this Court’s having committed a mistake. Plaintiff has not met the

berdea to thi: any of these alleged mistakes resulted in prejudice sufficient to reverse a

tn al cocn decisxKL

III. Conclusion

As noted above, and without referring to facts not in evidence, it is plain to this Court that

the jury in this case intended to find both that there was no causation between Defendants’ acts

and Plaintiffs injuries and that Defendants’ conduct warranted punitive damages. Because the

jury had found there to be no causal relationship between Defendant’s conduct and Plaintiff’s

injuries, however, Defendants were not subject to liability and therefore could not owe punitive

damages. The Court therefore decided to issue a molded verdict, one of the available remedies

within its discretion, and did so without the need to assume facts not in evidence. As such, the

Court’s finding for Defendants and awarding Plaintiff no damages did not amount to clear error

of law or abuse of discretion and was not unduly prejudicial so as to require a new trial.

Similarly, the evidence to which Plaintiff objects in the second and third errors averred was

admitted either as evidence rebutting prior testimony or as properly within the scope of what

Plaintiff herself had put at issue.

While reasonable minds may differ as to whether the decisions this Court took at trial and

in response to the jury’s verdict were optimal or preferable to other courses of action, the

standard of review at issue remains abuse of discretion by this Court. After careful review of the

26 facts and law involved, this Court finds no persuasive indication that it applied the law so

erroneously, or made decisions that were so unfounded and prejudicial to Plaintiff, that an abuse

of discretion was committed. Similarly, the record does not contain evidence that any of the

averred errors ensured a result other than what an unimpeded course of litigation would have

otherwise provided such that a new trial is required. For this and the foregoing reasons,

Plaintiff’s motion for post-trial relief in the form of a new trial is invalid.

Date