J-A09007-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CLARESSA FERGUSON, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
NEW JERSEY TRANSIT RAIL OPERATIONS, INC.,
Appellant No. 3369 EDA 2013
Appeal from the Judgment Entered February 6, 2014 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 100 December Term, 2011
BEFORE: BOWES, DONOHUE, AND STABILE, JJ.
MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 16, 2015
New Jersey Transit Rail Operations, Inc. (“New Jersey Transit”)
appeals from the judgment entered on the jury verdict in favor of Claressa
Ferguson and the trial court’s award of attorney’s fees and costs. Ms.
Ferguson, an assistant conductor for New Jersey Transit, commenced this
action under the Federal Employers’ Liability Act (“FELA”) to recover
damages for injuries she sustained when the train on which she was working
collided with a vehicle on the tracks. Her action was consolidated for
purposes of discovery and trial with a similar action brought by Bradford J-A09007-15
Larkin, the locomotive engineer on the train at the time of the accident. 1
After thorough review, we affirm in part and reverse in part.
On July 1, 2010, Ms. Ferguson was the assistant conductor on a train
traveling eastbound on the northeast corridor from Trenton, New Jersey, and
approaching the Hamilton, New Jersey station. Upon seeing a vehicle on the
tracks, Engineer Bradford Larkin pulled the emergency brake to stop the
train, a procedure referred to as dumping. Nonetheless, the train struck the
vehicle, which was later revealed to be stolen and abandoned. Ms. Ferguson
sustained injuries to her neck, left shoulder, knees and lower back in the
collision.
Ms. Ferguson filed this FELA action, alleging, inter alia, that New
Jersey Transit was negligent in failing to secure the tracks in the area of the
collision, an area known to be frequented by trespassers, and in failing to
properly operate the train. New Jersey Transit moved to consolidate the
instant case with that filed by engineer Bradford Larkin. In opposition to
consolidation, Ms. Ferguson argued that her interests and those of Mr. Larkin
were not aligned, as she believed that his actions or inactions in the
operation of the train may have contributed to her injuries. Nonetheless,
the two cases were consolidated.
____________________________________________
1 New Jersey Transit has filed an appeal in that case at No. 3409 EDA 2013, which has also been assigned to this panel for disposition.
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A jury trial commenced on June 10, 2013. During opening statements,
counsel for New Jersey Transit told the jury that, “Mr. Larkin’s own expert
will say the reason he’s not looking for work is because he’s receiving
disability.” N.T. Trial Vol I., 6/10/13, at 57. Ms. Ferguson promptly
objected to the reference to disability and the trial court sustained the
objection and ordered the comment stricken. She did not request a curative
instructive or move for a mistrial.
Mr. Larkin was the first witness for the plaintiffs. At 4:02 p.m., after
considerable direct examination, the court advised the jury that there would
be a short break and the jury was excused. At that time, counsel for Mr.
Larkin objected to defense counsel’s earlier reference to Mr. Larkin receiving
disability benefits and pointed out that this was the subject of a motion in
limine that had not been ruled upon. He argued that counsel’s reference to
this collateral source was so prejudicial as to be incurable and requested a
mistrial. The court declined to grant a mistrial. Instead, it prohibited any
further reference to disability benefits and advised the parties that it would
give very explicit instructions to the jury not to consider “any kind of
collateral source of benefit” at the close of the case. Id. at 105. While
acknowledging the reference was improper, the trial court stated that it
intended to cure it.
Defense counsel’s improper reference was revisited on June 13, 2013,
in light of a report that a male juror was overheard commenting to fellow
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jurors on June 11 that, “he’s on worker’s compensation.” N.T. Trial,
6/13/13, at 9. At that time, counsel for Mr. Larkin renewed his earlier
motion for a mistrial based on the assumption that this was a reference to
Mr. Larkin. The trial court deferred its ruling and permitted Plaintiffs’ two
expert witnesses to testify. After a hearing on the motion for mistrial,
during which it was confirmed by a witness that a juror was discussing
worker’s compensation during Mr. Larkin’s testimony and that the jurors had
disregarded the trial court’s instruction not to discuss the case until
deliberations, the trial court declared a mistrial. The court held the plaintiffs’
request for costs and fees in abeyance.
A new trial commenced on July 1, 2013 and concluded on July 15,
2013. The plaintiffs mounted a double-pronged offensive. They maintained
that the railroad was negligent in failing to secure the area of the collision or
warn the engineers of the danger presented by trespassers who frequented
that crossing. The plaintiffs also alleged that the railroad’s practice of
requiring its engineers to multitask, i.e., refer to special bulletins, timetables
and other paperwork while operating the train, violated Northeast Operating
Rules Advisory Committee (“NORAC”) Rule 958, which required engineers to
keep a constant lookout ahead and to regulate the speed of the train if
distracted. Plaintiffs’ expert, railroad safety consultant Paul Byrnes, testified
that New Jersey Transit was not teaching compliance with or enforcing
NORAC Rule 958.
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At the charging conference on July 11, 2013, the court advised of its
intention to instruct the jury in accordance with the standard Modern Federal
Jury Instruction 89-18, which provided that it could find the defendant
negligent if “it instructed its employees to perform tasks or procedures or
methods which it knew in the exercise of reasonable care should have known
would result in injuries.” N.T. Trial, 7/11/13, at 53. That charge led into
plaintiffs’ proposed charge regarding NORAC Rule 958 and the duty of the
railroad to enforce its own operating rules. New Jersey Transit duly noted an
exception to both charges. The court expressly declined to give a binding
instruction on negligence per se, reasoning that the testimony created a jury
issue on NORAC Rule 958. It did, however, advise of its intention to instruct
the jury that if it found that New Jersey Transit violated NORAC Rule 958, it
must determine that the railroad was negligent per se.
The jury subsequently returned with a verdict in favor of Ms. Ferguson.
As the jury foreperson was reading of the amount of the award, there were
murmurs from the jury. Counsel for Ms. Ferguson, realizing that the amount
of the award was approximately the same as the stipulated damages for
wage loss and did not include damages for pain and suffering, suggested to
the court in the presence of the jury that the jury misunderstood the
instructions. The jury foreperson verbally confirmed counsel’s suspicions.
Counsel then added that the jury did not award any damages for pain and
suffering.
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In light of the confusion, the trial court refused to accept Ms.
Ferguson’s verdict; the verdict as to Mr. Larkin was not revealed. Instead,
the trial court re-instructed the jury regarding damages and directed it to
resume its deliberations. New Jersey Transit requested a mistrial based on
counsel’s remarks. The mistrial was denied, and the jury ultimately returned
a $400,000 verdict in favor of Ms. Ferguson and a $679,334 verdict for Mr.
Larkin.
New Jersey Transit filed a post-trial motion seeking a new trial, which
was denied by the court on November 6, 2013. That same day, the court
granted Ms. Ferguson’s motion for counsel fees and costs incurred as a
result of the earlier June 17, 2013 mistrial, and awarded her $25,961.32.
New Jersey Transit appealed, complied with the trial court’s order to file a
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, and
the trial court authored its Rule 1925(a) opinion. New Jersey Transit
presents three issues for our review:
1. Whether the trial court erred in refusing to grant a mistrial following an inflammatory and prejudicial outburst towards the jury by counsel for Ferguson over his dis-satisfaction with the verdict that prejudiced the jury.
2. Whether the trial court erred in charging the jury that New Jersey Transit Rail Operations, Inc. was negligent per se for failing to train/enforce NORAC Operation Rule 958 under the Code of Federal Regulations because such claim is precluded by the Federal Railroad Safety Act.
3. Whether the trial court erred in awarding costs and attorney’s fees to Ferguson after declaring a mistrial.
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Appellant’s brief at 4.
New Jersey Transit first alleges that the trial court erred in refusing a
new trial due to Ms. Ferguson’s counsel’s verbal remarks during the reading
of the jury’s damage award. As we recently reiterated in Flenke v.
Huntington, 111 A.3d 1197, 1199-1200 (Pa.Super. 2015), “Trial courts
have broad discretion to grant or deny a new trial” and “we review the trial
court's decision for abuse of discretion.” 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.
Harman ex rel. Harman v. Borah, 756 A.2d 1116, 1121 (Pa. 2000). This
Court “will not reverse a trial court’s decision regarding the grant or refusal
of a new trial absent an abuse of discretion or an error of law.” Am. Future
Sys. v. Better Bus. Bureau, 872 A.2d 1202, 1210 (Pa.Super. 2005).
In responding to a request for a new trial, the trial court is charged
first with deciding whether there was a mistake at trial, and if so, whether
that mistake warrants a new trial. Since the harmless error doctrine
underlies every decision to grant or deny a new trial, the moving party must
demonstrate that he or she has suffered prejudice from the mistake.
Flenke, supra at 1199.
The following occurred. On Friday, July 12, 2013, the jury advised the
court that it had reached a verdict in the case. The court crier read aloud
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the interrogatories on the verdict form for Ms. Ferguson and the jury
foreperson answered in the affirmative that New Jersey Transit failed to
enforce NORAC Rule 958; that its failure to enforce the rule was the cause,
in whole or in part, of the injuries sustained by Ms. Ferguson; that New
Jersey Transit was negligent; that its negligence was the cause of Ms.
Ferguson’s injuries; and that Ms. Ferguson sustained damages in the amount
of $53,000. N.T., 7/12/13, at 95-6. As the foreperson read aloud the
amount of the verdict, however, there was a murmur from the jury,
prompting the trial court to ask the foreperson to read the number again.
The foreperson said “53 – 56,000.”2 Id. at 96. Noting the discrepancy, the
trial court asked to see the verdict slip. At that point, counsel for Ms.
Ferguson said, “Your Honor, I’m not sure that the jury quite understood.”
Id. at 97. The jury foreperson interjected, “We didn’t.” Id. Counsel
continued, “They just gave what the stipulated amount was. They did not
go into any pain and suffering issue.” Id. The court quelled any further
discussion, advised the jury that if there was confusion, “I’m going to send
you back to the jury deliberation room,” and the court suspended the taking
of the verdict. Id.
2 The parties stipulated that Ms. Ferguson’s wage loss totaled $53,000, and the jury was advised of the stipulation. There was no stipulation as to Mr. Larkin.
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After the jury exited the courtroom, counsel for Mr. Larkin posited that
the jury may have believed that the stipulation as to Ms. Ferguson’s wage
loss damages was a stipulation of the totality of her damages. He noted that
there was no such stipulation regarding Mr. Larkin. New Jersey Transit
requested a mistrial. Counsel for the railroad argued that there had been
direct dialogue between plaintiff’s counsel and the jury concerning the
damage award. Pain and suffering was mentioned and “[c]onfusion, I
guess, at that point broke out, and I believe that’s grounds for a mistrial.”
N.T. Trial, 7/12/13, at 98.
Shortly thereafter, the court received a note from the jury foreperson.
The jury asked the court to explain, “How do we determine Ms. Ferguson’s
pain and suffering,” and added that they had “assumed her claim is for
stipulation only.” N.T., 7/12/13, at 100. The court decided to recharge the
jury on damages and summoned them to the courtroom for that purpose.
The jury returned, the court re-read its damages instruction, and the jury
resumed its deliberations. At 4:30 p.m., approximately one hour later, the
court released the jurors and instructed them to return Monday to continue
deliberating.
On Monday, July 15, 2013, as the jury deliberated, argument resumed
on New Jersey Transit’s motion for mistrial. At its conclusion, the court
made the following findings. There was confusion displayed by members of
the jury when the Ferguson verdict was read. Counsel’s comments, “though
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out loud and inappropriate,” were made to the bench and not to any juror.
N.T. Trial, 7/15/13, at 9. The court explained that it suspended the
proceedings in order to cure any potential prejudice. The court found
confusion with respect to the Ferguson verdict slip but none demonstrated
as to Larkin. The court denied the mistrial and advised counsel that it
would direct the jury to finalize the verdict slip with respect to Ms. Ferguson,
but that it would receive the verdict slip that was completed Friday afternoon
with regard to Mr. Larkin. The trial court then redirected the jury to
continue its deliberations as to Ms. Ferguson only. Forty minutes later, the
jury returned with verdicts. The Larkin verdict was dated and signed on July
13, 2013,3 and awarded Mr. Larkin $679,334 in damages. The Ferguson
verdict slip dated July 15, 2013, awarded her $400,000. The jury was polled
regarding the Ferguson verdict and all twelve jurors agreed it represented
their verdict.
Since the trial court articulated a single mistake, our “review is narrow
and limited in scope to the stated reason or reasons, and we must review
that reason under the appropriate standard.” Flenke, supra at 1200
(quoting Harman, supra at 1122-23). In determining whether the trial
court abused its discretion in denying a mistrial based on counsel’s ____________________________________________
3 The verdict slip was actually dated July 13, 2013, which was Saturday. The court concluded that the date was in error and that it should have read July 12, 2013.
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comment, we examine the remark made, the circumstances under which it
was made, and the precautions taken by the court to remove its prejudicial
effects. Hill v. Reynolds, 557 A.2d 759, 765-66 (Pa.Super. 1989) (citation
and quotation marks omitted).
We held in Poust v. Hylton, 940 A.2d 380, 385 (Pa.Super. 2007),
that “a new trial is to be granted where the unavoidable effect of the
conduct or language was to prejudice the fact-finder to the extent that the
fact-finder was rendered incapable of fairly weighing the evidence and
entering an objective verdict." In that case, counsel’s reference to cocaine
in closing argument in clear violation of the court’s earlier order, “could not
be obliterated from the minds of the jurors.” Id. at 387. We held that grant
of a mistrial was required therein “to promote fundamental fairness, to
ensure professional respect for the rulings of the trial court, to guarantee the
orderly administration of justice, and to preserve the sanctity of the rule of
law.” Id.
The record confirms that counsel for Ms. Ferguson’s remarks were
directed to the trial court. The record also supports the trial court’s finding
that the jury displayed confusion, the foreperson acknowledged the same,
and all of this occurred before counsel’s mention of “pain and suffering.”
The subsequent question from the jury confirmed the court’s belief that it
did not understand the role of the wage loss stipulation in fashioning Ms.
Ferguson’s damages award. The trial court found that counsel’s comments
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were not prejudicial to New Jersey Transit and that the jury arrived at its
award “after reasoned and rational deliberations, and was not motivated or
prejudiced by counsel’s interruption.” Trial Court Opinion, 6/17/14, at 37.
On the record before us, we find no basis to disturb the trial court’s
conclusion that counsel’s comments did not render the jury incapable of
fairly weighing the evidence and entering an objective verdict. Thus, we find
no error in the court’s refusal to grant a mistrial, and no new trial is
warranted on that basis.
Next, New Jersey Transit offers several bases in support of its
contention that the trial court erred in charging the jury that the railroad
was negligent per se for failing to train employees in or enforce NORAC Rule
958 under the Code of Federal Regulations (“CFR”). First, it relies upon
Lombardy v. Norfolk Southern Ry., 2014 U.S. Dist. LEXIS 75244 (N.D.
Ind. 2014), in support of its position that such a claim is preempted by the
Federal Railroad Safety Act (“FRSA”). In Lombardy, partial summary
judgment was granted on a claim for negligent training, education, and
instruction where evidence was uncontroverted that the railroad had
complied with the FRSA regulations for training and education. The court
found that compliance with the FRSA precluded FELA relief on this basis.
Ms. Ferguson counters that New Jersey Transit waived any contention
that the FRSA pre-empted this FELA claim, and points out that the record is
devoid of any mention or reference to that statute. Furthermore, New
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Jersey Transit did not object to Mr. Byrnes testimony regarding the Code of
Federal Regulations and the NORAC rules.
Preliminarily, we note that New Jersey Transit’s statement of issue
implies that the trial court issued a binding instruction for plaintiffs on
negligence per se. The record reveals, however, that the trial court
instructed the jury that if it found that New Jersey Transit failed to train its
engineers in NORAC Rule 958, it must find New Jersey Transit negligent per
se. N.T. Trial, 7/12/13, at 56 (emphasis added). Thus, the issue of whether
New Jersey Transit failed to train its engineers was placed squarely before
the factfinder.
Second, as Ms. Ferguson correctly observes, New Jersey Transit did
not advance the preemption argument in the trial court. The Federal
Railroad Safety Act was mentioned for the first time on appeal. 4 Since New
Jersey Transit failed to articulate at trial the legal issue it raises herein, it is
waived for purposes of appeal. Dilliplaine v. Lehigh Valley Trust Co.,
322 A.2d 114, 116-17 (Pa. 1974) (“Appellate court consideration of issues
4 Furthermore, New Jersey Transit did not assign as error in a post-trial motion, or in its Pa.R.A.P. 1925(b) concise statement of issues complained of on appeal, that claims of inadequate training are precluded by federal regulations promulgated pursuant to the Federal Railroad Safety Act, 49 U.S.C. §§20101 et seq.
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not raised in the trial court results in the trial becoming merely a dress
rehearsal.”).
In somewhat of a non-sequitur, New Jersey Transit suggests that if
this Court rejects its preemption argument, then the trial court abused its
discretion in refusing to permit road foreman, Al Zahn, to testify that New
Jersey Transit enforced NORAC Rule 958 and to interpret the black box data
from the accident. Appellant’s brief at 33. In reviewing this claim, we are
mindful that, “The admissibility of evidence is a matter addressed to the
discretion of the trial court and may be reversed on appeal only upon a
showing that the court abused its discretion.” Buchhalter v. Buchhalter,
959 A.2d 1260, 1262 (Pa.Super. 2008). In addition, for a ruling on evidence
to constitute reversible error, it must have been harmful or prejudicial to the
complaining party.” Simmons, supra at 584-85.
New Jersey Transit called Al Zahn, its chief road foreman, to testify.
In response to plaintiffs’ request for an offer of proof, the railroad proffered
as follows. Mr. Zahn would testify “about the duties of an engineer while
operating the train” and the Major Incident Event Recorder, the so-called
“black box” data regarding this incident. N.T. Trial, 7/10/13, at 18.
Additionally, he would discuss the information contained on the data
recorder, namely speeds and braking, for the last thirty seconds prior to the
stopping of the train. He would also testify regarding the enforcement of
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NORAC rules generally, and in particular, as to Mr. Larkin during the relevant
time frame.
Contrary to New Jersey Transit’s representation, the court permitted
Mr. Zahn to testify that he reviewed data from the black box to “monitor
engineers for compliance [with] all kinds of NORAC rules,” from 2005 until
2011. Id. at 11. Mr. Zahn testified that New Jersey Transit enforces NORAC
rules and trains its engineers to comply with those rules and that he
personally observed train operations to ensure that the rules were followed
and would reprimand engineers who took their eyes off the track to read
bulletins or timetables. Mr. Zahn took issue with Mr. Byrnes’ conclusion that
looking down and reading bulletins constituted multitasking or that
multitasking required an engineer to take his eyes off the track ahead.
Although Mr. Zahn did not specifically reference NORAC Rule 958, the trial
court did not preclude him from doing so.5 The facts do not support this
assignment of error.
Next, the railroad alleges that the court committed reversible error in
precluding Mr. Zahn from interpreting data from the black box and providing
a second-by-second account of the speed of the train for the thirty-two ____________________________________________
5 Mr. Zahn was not permitted to testify that he reprimanded Mr. Larkin on two prior occasions for distractions while driving the train. The court found such evidence to be unfairly prejudicial in light of New Jersey Transit’s position that Mr. Larkin was in compliance with all operating rules on the day in question.
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seconds prior to the collision based on the absence of an expert report. The
trial court precluded Mr. Zahn from testifying about the meaning of the
event recorder readings in the five seconds leading up to Mr. Larkin’s
application of the brake since that would be “tantamount to expert
testimony” and Mr. Zahn was not identified as expert and had not provided a
report. Trial Court Opinion, 6/17/14, at 30; see Pa.R.C.P. 4003.5.
The railroad contends that the lack of an expert report should not have
been fatal since plaintiffs could not claim unfair surprise or lack of notice.
The railroad maintains that plaintiffs had the data and provided Mr. Byrnes
with a copy of the download for his review. Appellee’s brief at 34.
We find no merit in the railroad’s position. Absent an expert report,
the plaintiffs were not apprised of the scope of Mr. Zahn’s proffered
testimony and the need for their own expert. While Mr. Byrnes was provided
with a copy of the download, there is nothing in the record to suggest that
his expertise extended to black box data interpretation. Additionally, the
plaintiffs also objected at trial that the proffered testimony was irrelevant
and cumulative. Although the trial court did not exclude it on that basis, our
review of the record and briefs reveals that the railroad has yet to explain
the significance of the proffered data interpretation to its case.6 Thus, we
6 New Jersey Transit’s sole response to objections that the testimony was irrelevant and cumulative was that, since plaintiffs had advised the jury (Footnote Continued Next Page)
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find no basis for concluding that its exclusion constituted reversible error
that warrants a new trial.
New Jersey Transit’s final challenge is to the trial court’s award of
$25,961.32 in costs and attorney’s fees to Ms. Ferguson. The law is well
settled that “[t]he trial court has great latitude and discretion with respect to
an award of attorney's fees pursuant to a statute.” Scalia v. Erie Ins.
Exchange, 878 A.2d 114, 116-117 (Pa.Super. 2005) (citing Cummins v.
Atlas R.R. Construction Co., 814 A.2d 742, 746 (Pa.Super. 2002)). Our
review of a trial court's order awarding attorney's fees to a litigant is limited
solely to determining whether the trial court palpably abused its discretion in
making a fee award. Lucchino v. Commonwealth, 809 A.2d 264 (Pa.
2002); Miller v. Nelson, 768 A.2d 858 (Pa.Super. 2001). If the record
supports a trial court's finding of fact that a litigant violated the conduct
provisions of the relevant statute providing for the award of attorney's fees,
such award should not be disturbed on appeal. Thunberg v. Strause, 682
A.2d 295, 299-300 (Pa. 1996).
We examine in detail the events at the first trial that culminated in the
mistrial and the subsequent award of counsel fees and costs. On June 10,
2013, the trial court met with counsel to resolve some of the motions in _______________________ (Footnote Continued)
several times that, based on the download, “Mr. Zahn has come to the conclusion that Mr. Larkin did nothing wrong[,]” Mr. Zahn should be able to talk about it. N.T. Trial, 7/10/13, at 27.
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limine that would likely be implicated in counsel’s opening statements in the
case. Defense counsel took the lead in identifying those motions that
required immediate rulings. He did not mention a motion in limine filed by
Mr. Larkin seeking to preclude the defense from referencing the fact that Mr.
Larkin was on disability or a similar motion by Ms. Ferguson to preclude
reference to her prior claims.
Nonetheless, during New Jersey Transit’s opening statement, counsel
told the jury that although Mr. Larkin’s counsel provided a “big number” for
his client’s wage loss, “Mr. Larkin’s own expert will say the reason he’s not
looking for work is because he’s receiving disability.” N.T. Trial Vol I.,
6/10/13, at 57. Counsel for Ms. Ferguson promptly objected to the
reference to disability and the trial court sustained the objection and ordered
the comment stricken. No request for curative instructive or motion for
mistrial was made at that time.
A moment later, in reference to Ms. Ferguson, defense counsel told the
jury that she complained of pain in the same shoulder in several prior claims
against the railroad. He added, “In fact her own doctor will look at her
report and say, I wasn’t aware of the fact that her doctor from the last claim
permanently disabled her because of that shoulder.” Id. at 59. Ms.
Ferguson’s counsel objected and the trial court cautioned defense counsel
“We’re going to move on, counsel.” Id.
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Mr. Larkin was the first witness called to testify by the plaintiffs. At
4:02 p.m., after considerable direct examination, the court advised the jury
that there would be a short break and the jury was excused. Ms. Ferguson’s
counsel placed on the record an objection to defense counsel’s reference to
prior claims and asked the court to rule on the motion in limine. Counsel for
Mr. Larkin registered an objection to defense counsel’s earlier reference to
Mr. Larkin receiving disability benefits and pointed out that this was the
subject of an unresolved motion in limine. Counsel for Mr. Larkin argued
that defense counsel’s reference to this collateral source was so prejudicial
as to be incurable and requested a mistrial.
The trial court admonished defense counsel for failing to highlight the
motion in limine regarding disability benefits “as one that needed to be
resolved prior to openings.” Id. at 106. The court stated that it would
review the motion in limine and “[f]or now, we’re not going to have any
reference to claims as it relates to the injury.” Id. at 108.
Defense counsel, in an attempt to justify his reference to Mr. Larkin’s
receipt of disability benefits, advised the court that he “clearly would never
raise that unless I thought they had opened the door.” Id. He maintained
that Mr. Larkin’s expert opened the door when he opined at his deposition
that it made no financial sense for Mr. Larkin to find work since he was
receiving disability payments. The trial court rejected counsel’s excuse,
noting that the door could not have been opened because no evidence had
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been presented to the jury, and added that it might preclude the jury from
hearing such testimony. However, the court declined to grant a mistrial.
Instead, it prohibited any further reference to disability benefits and advised
the parties that it would give very explicit instructions to the jury not to
consider “any kind of collateral source of benefit” at the close of the case.
Id. at 109. The reference was improper but the trial court stated that it
Trial continued on June 11, 2013, was in recess on June 12, 2013, and
when it resumed on June 13, 2013, the court entertained additional
argument on the remaining motions in limine. At the conclusion of
argument, counsel for Mr. Larkin introduced the fact that a juror was
overheard by Attorney Robert Goggin making comments about worker’s
compensation on June 11, 2012, and that Mr. Goggin reported the situation
to the court. Counsel for Mr. Larkin advised the court that he believed
Defense counsel’s comment regarding Mr. Larkin’s receipt of disability
benefits and the juror’s reference to worker’s compensation were “tied
together,” and renewed his motion for mistrial. N.T., 6/13/13, at 39. The
court announced that it would entertain the motion for mistrial, but prior to
suspending trial, Plaintiffs’ expert witnesses Dr. Carl Berkowitz and Mr. Paul
Byrnes were permitted to present live testimony.
Both plaintiffs filed motions for mistrial and hearing on the motions
was held on June 17, 2013. Attorney Goggin reported the following. Mr.
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Larkin was on the stand. The court and counsel were at sidebar discussing
an objection. Mr. Goggin, located five to six feet from the jury box, was
leafing through a trial binder to find an exhibit. From that location, he
“distinctly heard one of the jurors say he’s on worker’s comp, assuming
talking about Mr. Larkin.” N.T. Mistrial Motion, 6/17/13, at 9. He was
unable to pinpoint the juror, but identified a male voice. Mr. Goggin added
that, after he sat down, he observed about half of the jurors turned toward
each other engaged in conversation and comparing notes. Anthony DiGiulio,
an associate of counsel for Ms. Ferguson, testified that he did not hear the
substance of any conversation but he did hear talking, particularly during Mr.
Larkin’s direct testimony. Juror No. 6, a male, was talking to Jurors Nos. 5
and 7, “showing notes and pretty animated in his conversation.” Id. at 11.
Following argument of counsel, the trial court concluded that it would
constitute reversible error to proceed with the trial under the circumstances,
and it granted the motion for mistrial. It stated on the record that “mere
mention” of collateral sources is “a fatal blow to the trial.” Id. at 28. That,
coupled with the fact that the juror’s discussion was a violation of the court’s
prohibition against sharing thought processes prior to deliberation, led to the
court’s conclusion that “to go further with this case would amount to
reversible error.” Id. at 29. The trial court held under advisement the
matter of plaintiffs’ costs and attorney’s fees. It later awarded counsel fees
pursuant to 42 Pa.C.S. § 2503(7), which permits such an award if a
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participant’s conduct during the pendency of the matter is “dilatory,
obdurate or vexatious,”7 and its own inherent power to control the
proceedings.
New Jersey Transit contends first that the trial court did not make the
requisite finding that counsel for the railroad’s conduct was “obdurate,
vexatious or acting in bad faith” to support an award of attorney’s fees
under § 2503(7). It maintains that the court merely stated that counsel
“erred” in referencing Mr. Larkin’s receipt of disability benefits.
The court first noted that “[i]t is well-settled law that collateral source
benefits should not be introduced absent a plaintiff offering information on
such a subject . . .” Trial Court Opinion, 6/17/14, at 14. Despite that fact,
and although a motion in limine had been filed to preclude reference to
collateral source benefits, defense counsel “forged ahead.” Id. at 15. The
court found that counsel’s “comments were the direct cause of an eventual
mistrial.” Id. at 16. Thus, the court concluded that counsel “interfered with
7 That statute provides in pertinent part:
The following participants shall be entitled to a reasonable counsel fee as part of the taxable costs of the matter:
(7) Any participant who is awarded counsel fees as a sanction against another participant for dilatory, obdurate or vexatious conduct during the pendency of a matter.
42 Pa.C.S. § 2503(7).
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the ordinary business of this Court when he gratuitously mentioned the
collateral source benefits of Plaintiff-Larkin in opening statements.” Id.
We agree with New Jersey Transit that an award of counsel fees
pursuant to 42 Pa.C.S. § 2503(7) must be supported by a trial court’s
specific finding that the conduct is vexatious, obdurate, or dilatory.
Township of South Strabane v. Piecknick, 686 A.2d 1297, 1299 (Pa.
1996); Kulp v. Hrivnak, 765 A.2d 796 (Pa.Super. 2000). Dilatory conduct
occurs "where the record demonstrates that counsel displayed a lack of
diligence that delayed proceedings unnecessarily and caused additional legal
work." In re Estate of Burger, 852 A.2d 385, 391 (Pa.Super. 2004).
Arguably, causing a mistrial and the delay associated with a new trial may
be considered dilatory.
The trial court also predicated its award on “its inherent power to
conduct its business . . . in an orderly manner, taking such action against
an Attorney, who after all is an officer of the court, as may be reasonably
necessary[.]” Trial Court Opinion, 6/17/14, at 11 (citing Coburn v.
Domanosky, 390 A.2d 1335, 1338 (Pa.Super. 1978)). In Coburn, we
vacated a compulsory nonsuit entered against a party, reasoning that if
unnecessary expenses were incurred due to counsel’s scheduling conflict,
perhaps costs should be assessed against counsel instead.
We are troubled by the sequence of events leading up to the
declaration of the mistrial. We observe that a mistrial would likely have
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been avoided if the trial court had ruled on all of the motions in limine prior
to trial. That said, defense counsel’s reference in opening statement to Mr.
Larkin’s receipt of disability benefits was improper and arguably so
prejudicial as to warrant a mistrial at that time. However, no one moved for
a mistrial at that time.8 Ms. Ferguson objected but apparently acquiesced in
the court’s decision to sustain her objection and strike the comment. She
did not request a curative instruction; Mr. Larkin did not even object. Given
the plaintiffs’ apparent lack of concern over defense counsel’s improper
comment, one can hardly fault the trial court for believing that it could cure
any prejudice.
Trial continued. Additional attorney’s fees were incurred, as well as
the substantial expenses attendant to two expert witnesses. Neither the
trial court nor the plaintiffs point to any further objectionable conduct on the
part of defense counsel. However, upon substantiating that a male juror
referenced worker’s compensation, the trial court declared a mistrial. Later,
counsel fees and costs were assessed against defense counsel based on the
8 The railroad contends that Ms. Ferguson did not have standing to object and move for a mistrial as the reference pertained only to Mr. Larkin although it cites no authority in support of that position. Actually, neither plaintiff sought a mistrial immediately after defense counsel’s objectionable comments. It was only later, well into Mr. Larkin’s direct testimony, that Mr. Larkin objected and sought a mistrial. The court denied the motion due to its belief that it could cure any prejudice with a proper jury instruction. N.T. Trial, 6/10/13, at 110.
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court’s apparent finding that the juror’s reference to worker’s compensation
was triggered by counsel’s reference to disability benefits in his opening
statement.
We cannot discern from the record whether the male juror’s remark
about worker’s compensation was made in reference to Mr. Larkin or
whether it was prompted by defense counsel’s objectionable reference to
disability benefits. The trial court held a hearing but did not question any of
the jurors. Additionally, we note that the trial court expressed frustration at
the jurors’ disregard of its instruction not to discuss the case or share notes,
and this conduct seemed to factor heavily into the court’s decision to grant
the mistrial. Thus, we find no basis for the court’s conclusion that Ms.
Ferguson “incurred costs associated with litigating a case that had to be cut
short due solely to error attributable to Appellant’s counsel[.]” Trial Court
Opinion, 6/17/14, at 15. Counsel’s conduct was not dilatory within the
meaning of § 2503(7), nor did it interfere with the trial court’s inherent
power to conduct its business in an orderly manner. For that reason, we
vacate the order awarding attorney’s fees and costs.
In light of the foregoing, we affirm the liability and damage award in
favor of Ms. Ferguson and vacate the award of attorney’s fees and costs.
Judgment affirmed in part and reversed in part.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/16/2015
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