Lewis, R. v. Reading Hosp.

2025 Pa. Super. 191

• Court: Superior Court of Pennsylvania
• Decided: September 2, 2025
• Docket: 986 MDA 2024
• Status: Published

Opinion

J-A07034-25

2025 PA Super 191

RONALD LEWIS : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : READING HOSPITAL, ROBERT Q. : LUO, M.D., AND TOWER HEALTH : MEDICAL GROUP : No. 986 MDA 2024 : Appellants :

Appeal from the Order Entered June 6, 2024 In the Court of Common Pleas of Berks County Civil Division at No(s): 22 13056

BEFORE: BOWES, J., OLSON, J., and STABILE, J.

OPINION BY STABILE, J.: FILED SEPTEMBER 02, 2025

In this medical malpractice action, Reading Hospital, Robert Q. Luo,

M.D., Tower Health Medical Group (defendants/Appellants) were found liable

for the injuries sustained by Ronald Lewis (plaintiff/Appellee) after he

underwent vascular surgery in 2021. A jury found that Appellants had

negligently deviated from the standard of care when providing post-operative

treatment. Appellee was awarded $869,000 in damages. Appellants now

contend that the verdict must be vacated because the trial court erred in (1)

excluding their expert witness on causation; (2) failing to grant a mistrial after

Appellee’s counsel told the jury that the defense was unable to retain an

expert on causation; (3) allowing Appellee’s expert witness to testify that he

had once been retained in an unrelated case as an expert by Reading Hospital;

and (4) giving an instruction and verdict form to the jury which equated the J-A07034-25

negligence element of factual cause with an “increased risk of harm.” Finding

merit in Appellants’ second and fourth claims, we vacate the order on review

and remand the case for a new trial on those grounds.

On April 6, 2021, Appellee, at the age of 72, underwent open vascular

surgery at Reading Hospital for the purpose of repairing abdominal aortic

aneurisms. Dr. Luo performed the surgery, and soon after it was completed,

Appellee reported severe pain, swelling, and discoloration in his left foot.

It would soon become evident that Appellee’s post-surgery symptoms

were due to a lack of blood flow (ischemia). One likely cause of that type of

ischemic injury was the loosening of plaque (micro-emboli) from Appellee’s

diseased arteries during his vascular surgery.

Rather than treat the ischemic injury immediately after the

manifestation of Appellee’s symptoms, Dr. Luo opted to monitor him to better

ascertain whether and to what extent tissue from his foot would have to be

removed. Dr. Luo believed that there was no viable surgical or medicinal

means of remedying the underlying ischemic injury. Appellee was only

prescribed an antibiotic medication to address a possible bacterial infection

resulting from an apparent burn on Appellee’s left foot which was unrelated to

the vascular surgery.1

Within three weeks of Appellee’s surgery, his left foot developed

gangrene and had to be amputated. Appellee filed a complaint on September ____________________________________________

1 Appellee disputed that he had a burn injury on his left foot at that time, arguing that Appellants had misdiagnosed the burn as a sign of ischemia.

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6, 2022, alleging that Dr. Luo had been negligent in treating his post-surgery

ischemic injury, resulting in the amputation. Reading Hospital and Tower

Health Medical Group were alleged to be vicariously liable for Dr. Luo’s

negligence. Appellants timely filed an answer and new matter. Appellee then

filed a reply to new matter.

One of the central trial issues was whether Appellants failed to treat

Appellee in accordance with the applicable standard of medical care. Prior to

trial, Appellants produced a report from their expert, Herrick Wun, M.D., a

board-certified vascular surgeon. Dr. Wun obtained an undergraduate degree

from Yale University; medical degrees from the New York University School of

Medicine; and a professorship at the Weill Cornell Medical College, where he

specialized in vascular medicine. He also worked as an attending physician at

the Weill Cornell Medical Center and maintained an active clinical practice.

In his report, Dr. Wun opined that there was no surgical option for

removing the clots in Appellee’s arteries; he further opined that a blood

thinning medication (anticoagulant) would not have prevented the need to

amputate Appellee’s foot:

Anticoagulation is not without its risks and an endpoint is needed once started. There are no guidelines for anticoagulation when the source is atheroembolic disease. In fact, some studies have shown a worse outcome when anticoagulation is given for these situations. Moreover, anticoagulation was not appropriate here because of the risks of bleeding after this open procedure.

Expert Report of Herrick Wun, M.D., December 14, 2023, at 3.

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The opinion of Dr. Wun differed from that of Appellee’s expert, Timothy

Wu, M.D., a vascular surgeon who opined in his own report that an

anticoagulant should have been administered as soon as Appellee’s symptoms

manifested in his foot. See Expert Report of Timothy Wu, M.D., 10/25/2023,

at 6.2 Dr. Wu stated that the failure to give Appellee such medication breached

the standard of care, increased the risk of harm, and played a role in causing

the need for the foot’s amputation. See id.

Appellee filed a motion in limine on February 23, 2024, to preclude

Appellants’ expert, Dr. Wun, from relying on the unidentified medical literature

referred to in his report. On March 12, 2024, the trial court entered an order

compelling Dr. Wun to name the studies he had relied upon.

Ten days later, on March 22, 2024, Dr. Wun submitted a supplemental

report which failed to comply with the trial court’s directive. He cited no

studies which supported his opinion that anticoagulants may produce a “worse

outcome.” Supplemental Expert Report of Herrick Wun, M.D., 3/22/2024, at

1. Instead, Dr. Wun stated that no particular studies had “come to mind,”

and that it was nevertheless his opinion, “as well as [that of] other experts[,]

that anticoagulation is not beneficial.” Id.

____________________________________________

2 Appellants and Appellee each retained an expert in the field of hematology.

Appellee produced a report by Samuel Berkman, M.D., who opined that an anticoagulant medication should have been given to Appellee; Appellants’ hematology expert, Henry Rinder M.D., opined that an anticoagulant would not have improved Appellee’s condition.

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On March 27, 2024, Appellee again moved to limit Dr. Wun’s testimony

as a sanction for flouting the trial court’s prior order. The trial court held a

hearing on the motion, and on April 2, 2024, the trial court entered an order

granting Appellee’s motion in limine to preclude Dr. Wun from testifying in

reliance on any medical studies. The trial court heard further argument from

the parties on April 9, 2024, as to whether Dr. Wun would be precluded from

testifying at all as an expert witness. The trial court then entered an order on

that date precluding Dr. Wun from giving any expert opinions.

A few days after that latter order, Appellants moved for reconsideration,

submitting a second supplemental expert report by Dr. Wun, dated April 11,

2024. Disavowing the previously referenced, but unnamed, medical studies

and opinions of other experts, Dr. Wun stated that he was relying only on his

own “education, training, and clinical experience”:

It is my opinion, based on my education, training, and clinical experience as a vascular surgeon and upon review of the medical records, documents provided, and facts in this case that anticoagulation is not appropriate or beneficial in situations like Mr. Lewis'. I reached this opinion without relying on opinions of any other experts or any specific medical studies. These opinions are rendered to a reasonable degree of medical certainty.

Memorandum of Law in Support of Motion for Reconsideration of the April 2

and 9, 2024 Orders Preluding Expert Testimony by Dr. Wun, 4/12/2024, at

Exhibit D (emphasis added).

On the first day of trial, April 17, 2024, the trial court indicated that it

had not read the final report of Dr. Wun, but nevertheless stressed that “[t]he

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error remains uncured[.]” N.T. Trial, 4/17/2024, at 25. When trial began,

Appellee seemed to suggest to the jury in the opening statement that

Appellants had no expert on vascular surgery because they could not find one

who thought that Dr. Luo had abided by the applicable standard of care:

[O]ver the next couple days, it's basically going to be a parade of MD's walking in here and telling you about the body's vascular system. You're going to hear from a vascular surgeon expert that we're going to call . . . . You’re going to hear from the defendant [Dr. Luo] who is a vascular surgeon. And there are, other than those two, 3,127 other vascular surgeons in the United States. At least that's what Google has told me. 3,129 minus these two. You are not going to hear from a single vascular surgeon expert —

N.T. Trial, 4/17/2024, at 219-20 (emphasis added).

Appellants’ counsel objected and moved for a mistrial or, alternatively,

a curative instruction. Id., at 220. The trial court called a side-bar and asked

Appellants’ counsel what form of relief was being sought; counsel clarified that

the comments referring to the lack of an expert were so prejudicial as to

warrant a mistrial. See id. Counsel then stated, “if Your Honor is not going

to grant a mistrial, I believe there has to be a curative instruction.” Id., at

221.

After confirming that Appellee’s comments related to the preclusion of

Dr. Wun’s testimony, the trial court stated, "I think there's a problem with this

Court precluding an expert on the basis of [Appellee’s] motion and then

because the motion is granted you take advantage of that in front of the jury.

That's a problem." Id., at 222.

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The trial court then denied Appellants’ motion for a mistrial, but agreed

to give a general cautionary instruction to the jury that the statements of

counsel are not evidence. Id., at 224. Further, the trial court advised that

more research on the issue was needed to determine if that relief was

sufficient: "[D]epending on what I find, I may have to give a more stringent

cautionary instruction or I may have to grant [defense counsel] leave to renew

his motion for a mistrial." Id., at 224-25.

Prior to Appellants’ opening statement the next day, the trial court

repeated the cautionary instructions given earlier:

Members of the jury, I want to take this moment just to remind you as I told you yesterday will happen, that I'm often repeating things. I'm reminding you that statements of counsel, opening statements, closing arguments from both sides are not evidence in the case. Okay. The evidence is what you hear from the witness stand[.]

****

Again, at this moment, the most important thing for you to remember is that the statements of counsel are not evidence. What they are is what they anticipate the case is going to look like.

Id., at 238-39.

After opening statements had concluded, the trial court ordered a brief

recess to research the issue, after which Appellants renewed their motion for

a mistrial. See id., at 257. Citing Siegal v. Stefanyszyn, 718 A.2d 1274

(Pa. Super. 1998), Appellants argued that a cautionary instruction, even one

more thorough and strongly worded than the one already provided by the trial

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court, was insufficient to cure the prejudice of an improper remark about the

lack of an expert opinion witness. See id., at 257-58.

The trial court denied Appellants’ renewed motion because it did “not

believe that anything has occurred up to this moment that results in manifest

injustice requiring . . . granting of a mistrial[.]” Id., at 265. The trial court

also reasoned that Siegal was factually and procedurally distinguishable, and

that the prejudice caused by counsel’s comment was adequately resolved by

the cautionary instruction, which Appellants did not object to. Id.; see also

Trial Court 1925(a) Opinion, at 23-25.

Once the trial commenced, Appellee presented his evidence, including

the testimony of its expert in vascular surgery, Dr. Wu. On direct

examination, when stating his qualifications, Dr. Wu was questioned about

past cases in which he participated as an expert witness. He explained that

he had testified on behalf of both plaintiffs and defendants in malpractice

actions. In fact, he had previously testified as an expert witness for Appellant,

Reading Hospital, in an unrelated case. Appellants objected that it was

improper for Dr. Wu to discuss his prior work for Reading Hospital because it

would be irrelevant, and confusing to the jury. See id., at 627-28.

The objection was overruled. The trial court found that Dr. Wu’s past

testimony for Reading Hospital was relevant to his qualifications as an expert

and to establish his lack of bias. The trial court also found that disclosing to

the jury Dr. Wu’s experience as an expert witness for Reading Hospital would

not be prejudicial to Appellants. See id., at 628. Dr. Wu went on to opine

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that Appellants were negligent in delaying certain treatments to Appellee,

increasing the risk that he would suffer medical complications from vascular

surgery, and ultimately causing the conditions that necessitated the

amputation of his foot.

Later, in closing argument, Appellee’s counsel focused on the second

question on the verdict form pertaining to the causal element in negligence

that advised the jury that Appellants could be held liable as long as their

negligent conduct increased the risk of harm to Appellee:

So the second question you're going to see on the verdict sheet is what we call cause. So we have to prove to you did the defendant increase the risk of harm to Mr. Lewis and an easier or another way I think about it when I'm talking about it is did he decrease the chance that Mr. Lewis would have his foot? And I think he absolutely did.

And the reason that there's this increased risk of harm test that says hey, if there is any significant possibility of avoiding this injury and the defendant didn't do something about it, then you have to check yes, 10 out of 12 of you have to check yes on that second question.

N.T. Trial, 4/23/2024, at 834 (emphasis added).

The description of the causation element of negligence by Appellee is

notable here because, prior to trial, portions of the jury instructions and

verdict form concerning that element had been hotly disputed. As to

causation, Appellants filed proposed points for charge and a verdict form that

materially differed from those that the jury received. See Appellants’

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Proposed Points for Charge, 4/8/2024, at 1-2; Appellants’ Proposed Jury

Verdict Form, 4/8/2024, at 1-2.3

As to the “factual cause” element of negligence in a medical malpractice

case, Appellants proposed the Pennsylvania Suggested Standard Jury

Instruction (Pa. SSJI) 14.20 (Civil), which described the element of causation

in part (A) as conduct by the defendants which was a “factual cause in bringing

about harm.” Part (B) of this proposed instruction reads in relevant part that

“[w]here the plaintiff presents expert testimony that the failure to act or delay

on the part of the physician has increased risk of harm to plaintiff, this

testimony, if found credible, provides sufficient basis from which you may find

that the negligence was a factual cause of the injuries sustained.” Pa. SSJI

14.20 (Civ).

During the charge conference, the trial court declined to adopt the points

for charge on the causation (factual cause) element proposed by Appellants.

The trial court instead modified the instruction to allow the jury to find factual

cause by determining that Appellants increased Appellee’s risk of harm. See

N.T. Trial, 4/23/2024, at 776-77. Specifically, the trial court's charge

repeatedly instructed that Appellants were liable if the jury found that their

negligent conduct resulted in actual harm to Appellee or an increased risk of

3 Appellee had also proposed Pa. SSJI 14.20 (Civ.). See Plaintiff’s Proposed Points for Charge, 4/9/2024, at para. 19; Plaintiff’s Updated Proposed Points for Charge, 4/21/2024, at p. 21. At some point during off-record proceedings, Appellee requested the factual cause instruction to be modified to include references to an “increased risk of harm.”

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harm. Appellants objected to the "addition of increased risk to the factual

cause discussions" on the record after the charge conference, and the

objection was overruled. Id., at 775-76.

At the conclusion of the trial, when instructing the jury on the element of

causation, the trial court advised the jury in relevant part as follows:

When a medical professional negligently fails to act or negligently delays in taking indicated diagnostic or therapeutic steps and their negligence is a factual cause of an increased risk of harm to the plaintiff, that negligent medical professional is responsible for the increased risk of harm.

Where the plaintiff presents expert testimony that the failure to act or delay on the part of a medical professional has increased the risk of harm to the plaintiff, this testimony, if found to be credible, provides a sufficient basis for which you may find that the negligence was a factual cause of the harm or the increased risk of harm sustained.

In order for the plaintiff to recover in this case, the defendants' negligent conduct must have been a factual cause in bringing about harm or an increased risk of harm.

Conduct is a factual cause of harm or an increased risk of harm when the harm or increased risk of harm would not have occurred absent the conduct.

To be a factual cause, the conduct must have been an actual, real factor in causing the harm or the increased risk of harm even if the result is unusual or unexpected.

Even though prior conditions or concurrent causes may have contributed to the harm or an increased risk of harm, if the defendants' negligence factually caused harm or an

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increased risk of harm, the defendants are liable for the full amount of damages sustained[.]

Id., at 860-61 (emphasis added).

Along the same lines as their dispute over the element of factual cause

in the jury instructions, the parties differed in how the issue should be

presented in the verdict form. Appellants submitted a proposed verdict form

mirroring section 14.160 of the Pennsylvania Suggested Standard Jury

Instructions (Civil), which asked whether “the negligence of [Appellants was]

a factual cause of the harm to Plaintiff Roland Lewis?"4

Conversely, Appellee submitted a proposed verdict form that omitted

any reference to factual cause, instead proposing the question, “Did the

negligence of Defendant Dr. Luo increase the risk of harm to Ronald Lewis?”

Appellants filed a written objection to that question, asserting that the trial

court should use the format in the Standard Instructions which referred to

factual cause. See Objections of Defendants to the Proposed Jury Verdict

Form of Plaintiff, 4/15/2024, at para. 2.

During the charge conference, a discussion about the verdict form was

held off the record. When the proceedings went on record, Appellants’ counsel

verbally objected to the language in Appellee’s proposed verdict form:

4 This was consistent with the recommended verdict form contained in Pennsylvania's Suggested Standard Jury Instructions (Civil), which include the following question on causation: “Was the negligence of those defendants you have found to be negligent a factual cause of any harm to the plaintiff?” Pa. SSJI (Civ) § 14.160, Medical Malpractice — Suggested Special Jury Interrogatories.

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Just out of an abundance of caution to ensure that this is on the record, we object to the language of increased risk on the verdict form Number 2 when it talks about cause. We believe that's included in the factual cause.

N.T. Trial, 4/23/2024, at 781. Appellants’ objection was overruled, and

consistent with the jury charge on the element of causation, Question 2 of the

verdict form asked:

Was the negligence of those Defendants you have found to be negligent, a cause of harm or an increased risk of harm to the Plaintiff?

Verdict Form, 4/28/2024, at 1. Ultimately, the jury entered a verdict finding

Appellants negligent, and liable for Appellee’s damages due to their negligence

being “a cause of harm or an increased risk of harm[.]” Id. (Emphasis

added).

Appellants filed a post-trial motion in which they sought a new trial.

They asserted that the trial court reversibly erred in precluding Dr. Luo from

testifying; allowing Appellee to mislead the jury about the reason for its lack

of an expert in vascular surgery; and allowing Appellants to be found liable

without a determination that their negligent conduct was a factual cause of

Appellee’s injuries. The motion was denied, and Appellants timely appealed.

Both Appellants and the trial court complied with Pa.R.A.P. 1925. See Trial

Court 1925(a) Opinion, 8/6/2024, at 5-37 (giving reasons why order on review

should be affirmed). In their brief, Appellants now assert four issues for our

consideration:

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1. Whether the Trial Court erred by precluding [Appellants’] liability expert, Dr. Wun, from testifying at trial and denying [Appellants’] post-trial motion for a new trial on that basis[.]

2. Whether the Trial Court erred by declining to grant a mistrial and/or failing to provide an appropriate curative instruction after [Appellee’s] improper suggestion that [Appellants were] unable to retain a vascular surgeon expert witness and denying [Appellants’] post-trial motion for a new trial on that basis[.]

3. Whether the Trial Court erred by permitting [Appellee’s] expert to reference at trial his prior retention and testimony in a case involving Reading Hospital and denying [Appellants’] post-trial motion for a new trial on that basis[.]

4. Whether the Trial Court erred by incorrectly charging the jury on causation and incorrectly constituting the verdict slip on causation by including confusing and legally incorrect references to increased risk of harm and denying [Appellants’] post-trial motion for a new trial on that basis[.]

Appellants’ Brief, at 3 (issues numbered and reordered, answers omitted).

Appellants’ first claim concerns whether the trial court erroneously

excluded their witness, Dr. Wun, from taking the stand as an expert on

vascular surgery.

We review a trial court's evidentiary decisions for an abuse of discretion.

See Schmalz v. Mfrs. and Traders Trust Co., 67 A.3d 800, 802–03 (Pa.

Super. 2013); see also Smith v. Paoli Mem'l Hosp., 885 A.2d 1012, 1016

(Pa. Super. 2005) (“Decisions regarding the admission of expert testimony,

like other evidentiary decisions, are within the sound discretion of the trial

court.”).

In this context, “[d]iscretion is abused when the course pursued

represents not merely an error of judgment, but where the judgment is

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manifestly unreasonable or where the law is not applied or where the record

shows that the action is a result of partiality, prejudice, bias or ill will.”

Schmalz, 67 A.3d at 803 (quoting Catlin v. Hamburg, 56 A.3d 914, 922

(Pa. Super. 2012)).

The purpose of our rules governing the discovery of expert testimony is

to prevent unfair surprise. See Miller v. Brass Rail Tavern, Inc., 664 A.2d

525, 530 n.3 (Pa. Super. 1995). Pennsylvania Rule of Civil Procedure 4003.5

provides in relevant part:

(1) A party may through interrogatories require

(1)(b) the other party to have each expert so identified state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. The party answering the interrogatories may file as his or her answer a report of the expert or have the interrogatories answered by the expert. The answer or separate report shall be signed by the expert.

Pa.R.Civ.P. 4003.5(a)(1)(b).

Compliance with the above rule requires a party to submit a summary

report of an expert's testimony upon request. See id. An expert's report is

sufficient as long as it enables the opposing party to respond. See Feden v.

Consol. Rail Corp., 746 A.2d 1158, 1163 (Pa. Super. 2000); Kaminski v.

Emp'rs Mut. Cas. Co., 487 A.2d 1340, 1344 (Pa. Super. 1985) (“By allowing

for early identity of expert witnesses and their conclusions, the opposing side

can prepare to respond appropriately[.]”). An expert is permitted to provide

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a reasonable explanation, or an enlargement of the report, if the expert’s

subsequent testimony remains within the report’s scope. See Hickman v.

Fruehauf Corp., 563 A.2d 155 (Pa. Super. 1989).

An expert may not testify “as a mere conduit or transmitter of the

content of an extrajudicial source.” Sheely v. Beard, 696 A.2d 214, 218 (Pa.

Super. 1997). Under Pennsylvania Rule of Evidence 705, “[i]f an expert states

an opinion the expert must state the facts or data on which the opinion is

based.” Pa.R.E. 705. “An expert may base an opinion on facts or data in the

case that the expert has been made aware of or personally observed." Pa.R.E.

703.

The usual test for qualifying a witness to testify as an expert is whether

the witness has a “reasonable pretension to specialized knowledge on the

subject under investigation.” Miller v. Brass Rail Tavern, Inc., 664 A.2d

525, 528 (Pa. 1995). "An expert opinion may be based on inadmissible facts

or facts not in evidence, including other expert opinions and hearsay

statements, as long as such facts are of a type reasonably relied on by experts

in that profession used to form an opinion." Carletti v Commonwealth

Dept. of Trans., 190 A. 3d 766, 778 (Pa. Cmwlth. 2018); see also Pa.R.E.

703 (same). The proper method for testing the bases of an expert’s opinion

is voir dire and cross-examination. See Primavera v. Celotex Corp., 608

A.2d 515, 520 (Pa. Super. 1992); see also Mitchell v. Shikora, 209 A.3d

307, 319 (Pa. 2019).

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In the present case, the record is insufficiently developed to allow for

meaningful merits review of Appellants’ first claim. The trial court precluded

Dr. Wu from testifying as an expert because, in his first two pre-trial reports,

he did not specify the source of the medical studies or other experts’ opinions

which informed his own conclusion that an anticoagulant medication would

have been more harmful than helpful to Appellee. However, at the hearing

on Appellants’ motion for reconsideration of the order precluding Dr. Wu’s

expert opinion, the trial court indicated that it had not read the most recent

supplemental report attached to Appellants’ motion. See N.T. Trial,

4/16/2024, at 42 (“As of this moment, apparently there's a third report that I

haven't seen[.]”).

Significantly, in that latter report, Dr. Wu stated that his expert opinion

regarding the efficacy of an anticoagulant was not based on any medical

studies or the opinions of other experts. He asserted that his opinions were

only based on his “education, training, and clinical experience as a vascular

surgeon and upon review of the medical records, documents provided, and

facts in this case[.]” Memorandum of Law in Support of Motion for

Reconsideration of the April 2 and 9, 2024 Orders Preluding Expert Testimony

by Dr. Wun, 4/12/2024, at Exhibit D.

Dr. Wu’s expertise in the field of vascular surgery has not been

challenged, and his testimony was not excluded for lack of credibility.

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Moreover, this was not a Frye case,5 in which Appellants would have had to

show that the methodology forming the basis of Dr. Wu’s opinion was

generally accepted in the scientific community.

It therefore seems that, under the applicable procedural rules, Dr. Wu

may have been able to testify as an expert about the efficacy of an

anticoagulant by drawing strictly on his own knowledge and experience, as

applied to the case facts. See e.g., Tillery v. Children's Hosp. of Phila.,

156 A.3d 1233, 1241 (Pa. Super. 2017) (approving of admission of physician’s

expert opinion formed after review of patient’s “records, results of his

radiological studies, the reports of other professionals in the case, deposition

testimony, and his own research and experience dealing with children in the

emergency department.”); Buttaccio v. Am. Premier Underwriters, Inc.,

175 A.3d 311, 318 (Pa. Super. 2017) (expert “permitted to base his opinion

on personal knowledge and experience, given his impressive credentials and

the wealth of scholarly literature on ergonomics, much of which is his own.”);

Catlin, 56 A.3d at 920-21 (“Here, [the expert] has been board certified in

obstetrics and gynecology since 1978. His failure to cite any medical literature

or treatise does not render his opinion inadmissible.”); Smith v. Grab, 705

5 Pennsylvania Courts have adopted the test for admitting expert opinions announced by the United States Supreme Court in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The test, which forms part of Pa.R.E. 702, allows for novel scientific evidence to be “admissible if the methodology that underlies the evidence has general acceptance in the relevant scientific community.” Grady v. Frito-Lay, Inc., 839 A.2d 1038, 1043-44 (Pa. 2003).

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A.2d 894, 900-01 (Pa. Super. 1997) (holding expert was permitted to rely on

“knowledge, education, reading and experience of 25 years as a practicing

oncologist” when opining on whether delay in cancer treatment increased

patient’s risk of harm).

The trial court, in its 1925(a) opinion, did not refer to the content of Dr.

Wun’s final report, much less indicate how it would have ruled on this issue

had it realized that Dr. Wun omitted the problematic references to authority

supporting his opinion. Ordinarily, to facilitate meaningful appellate review,

we would try to perfect the record by remanding the case back to the trial

court for additional findings or a supplemental 1925(a) opinion. Since, as will

be discussed in greater length below, a new trial is being granted on other

grounds, such directives are not needed.

Appellants’ second claim is that the trial court erred in denying a new

trial to remedy a comment by Appellee’s counsel in the opening statement

that Appellants did not, or more accurately, could not, produce a favorable

expert witness on the subject of causation.

“So long as no liberties are taken with the evidence, a lawyer is free to

draw such inferences as he wishes from the testimony and to present his case

in the light most suited to advance his cause and win a verdict in the jury

box.” Wagner v. Anzon, Inc., 684 A.2d 570, 578 (Pa. Super. 1996) (quoting

Contractors Lumber and Supply Co. v. Quinette, 126 A.2d 442, 444 (Pa.

1956)). Despite this latitude, counsel is precluded from discussing “facts not

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in evidence which are prejudicial to the opposing party.” Wagner, 685 A.2d

at 578 (quoting Millen v. Miller, 308 A.2d 115, 117 (Pa. Super. 1973)).

Consistent with that rule, our decisional law has drawn an important

distinction between the ways in which counsel may comment on the absence

of evidence. A party who succeeds in excluding evidence on legal grounds

may not mislead the jury by telling it that such evidence never existed in the

first place. See e.g., Siegal, 718 A.2d at 1277. But, where the absence of

evidence does not result from a court ruling, a party has more leeway to

emphasize that fact to the jury as being indicative of a weakness in an

opponent’s position. See e.g., Steltz v. Meyers, 265 A.3d 335, 348 (Pa.

2021).

The prejudicial remarks of counsel during argument may typically be

addressed “within the broad powers and discretion of the trial judge and his

actions will not be disturbed on appeal unless there is an obvious abuse of

discretion.” Wagner, 685 A.2d at 578 (quoting Wilf v. Phila. Modeling &

Charm Sch., Inc., 208 A.2d 294, 298–99 (Pa. Super. 1965)). “It is the duty

of the trial judge to take affirmative steps to attempt to cure the harm, once

an offensive remark has been objected to.” Siegal, 718 A.2d at 1277.

Courts presume that the jury will “follow cautionary instructions[,] and

appellant's failure to object to the instruction [may] indicate[] his satisfaction

with the instruction.” Commonwealth v. Jones, 668 A.2d 491, 504 (Pa.

1995). However, “there are certain instances where the comments of counsel

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are so offensive or egregious that no curative instruction can adequately

obliterate the taint.” Siegal, 718 A.2d at 1277; see also Martin v. Phila.

Suburban Transp. Co., 257 A.2d 535, 537 (Pa. 1969) (quoting McCune v.

Leamer, 119 A.2d 89, 90 (Pa. 1956)) (“Whether a court abuses its discretion

in [denying a motion for a mistrial] because of improper remarks of counsel

must be determined by the circumstances under which the statement was

made and by the precautions taken by the court and counsel to prevent it

having a prejudicial effect[.]”).

A new trial may therefore be appropriate where:

the unavoidable effect of [counsel's] conduct or language was to prejudice the factfinder to the extent that the factfinder was rendered incapable of fairly weighing the evidence and entering an objective verdict. If [counsel's] misconduct contributed to the verdict, it will be deemed prejudicial and a new trial will be required.

Poust v. Hylton, 940 A.2d 380, 385 (Pa. Super. 2007) (citation omitted,

emphasis in original).

Here, the trial court granted Appellee’s motion in limine to exclude Dr.

Wun as an expert witness. Appellee’s counsel then insinuated in the opening

statement that out of over 3,000 vascular surgeons in the country, Appellants

were unable to produce a single one who would have a favorable opinion of

Appellants’ post-surgery treatment of Appellee:

You're going to hear from a vascular surgeon expert that we're going to call . . . . You’re going to hear from the defendant [Dr. Luo] who is a vascular surgeon. And there are, other than those two, 3,127 other vascular surgeons in the United States. At least that's what Google has told me.

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3,129 minus these two. You are not going to hear from a single vascular surgeon expert —

N.T. Trial, 4/17/2024, at 219-20 (emphases added).

While Appellee’s counsel did not finish the last sentence in the quote

above, the point was made, and it could not have been lost on the jury.6

Appellants promptly objected, and the trial court acknowledged that it was a

“problem” for Appellee to “take advantage” of its evidentiary ruling. See N.T.

Trial, 4/17/2024, at 222. The trial court then gave a general cautionary

instruction which advised the jury that the statements of counsel were not

evidence. The trial court suspended argument, and the proceedings continued

until the parties revisited the issue the next day, after Appellants gave their

opening statement.

Rather than ask for more specific instructions, Appellants renewed their

motion for a mistrial. When doing so, Appellants cited an analogous medical

malpractice case, Siegal, in which the trial court gave more elaborate

curative, or cautionary, instructions than those given here, and which still had

been found insufficient to remedy the prejudice of counsel’s improper

6 Appellee has argued that this comment could not have been prejudicial because it was interrupted by an objection, but this is unpersuasive. We presume as a matter of law that juries will understand complex fact patterns and follow instructions on how to apply the law when entering their verdict. See Brown v. Halpern, 202 A.3d 687, 707 (Pa. Super. 2019) (“The law presumes that the jury will follow the instructions of the court.”). Accordingly, it must also be presumed that the jury was capable of grasping counsel’s basic point despite the interruption.

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comment about a party’s lack of an expert opinion. See Siegal, 718 A.2d

1274.7

In Siegal, the trial court precluded the plaintiffs’ treating physician from

offering expert opinion testimony against the defendant, who had been the

plaintiffs’ surgeon. Defendant’s counsel then suggested to the jury that the

witness did not give an expert opinion because the witness did not think the

defendant was negligent. See id., at 1276.

Plaintiffs’ counsel objected, and the objection was sustained. After a

recess, the trial court advised the jury that they were not permitted to "hold

it against" the plaintiffs that their treating physician had not opined as to

whether the defendant was liable. Id., at 1277. The jury found in the

defendant’s favor, and the trial court denied the plaintiffs' motion for a new

trial.

7 Both the trial court, in its 1925(a) opinion, and Appellee, in his brief, assert

that Appellants waived their challenge to the trial court’s curative instructions because they did not specifically object to them or propose alternative instructions. We find the lack of an objection to the curative instructions to be of no moment because in seeking a mistrial, Appellants clearly argued that no instructions would have been a sufficient remedy. There is no question, then, that Appellants conveyed dissatisfaction with the relief afforded to them by the trial court. As in the analogous Siegal case, we likewise find that Appellants’ claim – insofar as they are challenging the denial of their motion for a mistrial – is preserved for appellate review. See Siegal, 718 A.2d at 1277 (holding that party preserved challenge to improper comment, despite not objecting to trial court’s curative instruction, by thereafter seeking a ruling on motion for a new trial).

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On appeal, this Court vacated the verdict, finding that "[d]efense

counsel's reference to the absence of opinion testimony of [the plaintiffs']

witness was improper and outrageous, and so polluted the jury that the effect

could not be cured by the curative instruction that was given[.]" Id. This

Court reasoned that counsel's argument was "clearly improper, as it conveyed

to the jury something that counsel knew to be untrue, i.e., that [the plaintiffs’

treating physician had an] opinion [that] was not favorable to [the plaintiffs]."

Id. The only viable remedy was for the defendant to be granted a new trial.

See id.

The material facts of Siegal are indistinguishable from those in the case

at hand. Again, prior to trial, Appellants produced as their primary expert a

qualified vascular surgeon who agreed with Appellants that Appellee would

not have benefited from an anticoagulant medication. The trial court then

excluded that expert’s opinions on the ground that the basis for the opinions

had not been adequately disclosed.

Despite knowing that Appellants in fact had retained an expert,

Appellee’s counsel inexcusably took advantage of the order excluding the

expert’s opinion to suggest a highly prejudicial falsehood to the jury. In the

opening statement, counsel falsely represented that there was not a single

vascular surgeon in the country who was willing to opine in favor of Appellants.

This misrepresentation tainted the trial at its inception, as it conveyed to the

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jury that Appellants’ case was baseless and fatally flawed based on a premise

that was objectively untrue.

The jury could easily have attributed undue weight to counsel’s

comment from the outset before it heard any trial evidence. This was

especially so where the comment pertained to expert testimony. Courts have

long recognized that expert testimony regarding factual issues of causation

will often prove critical in medical malpractice actions because such matters

are typically far beyond a layperson’s understanding. See generally

Grossman v. Barke, 868 A.2d 561, 566-57 (Pa. Super. 2005). Indeed, in

cases where the plaintiff has alleged a breach of the standard of medical care,

an expert’s opinion is required, as the absence of such testimony would leave

the jury with “no basis other than conjecture, surmise or speculation upon

which to consider causation.” Toogood v. Owen J. Rogal, D.D.S., P.C., 824

A.2d 1140, 1149 (Pa. 2003) (quoting Woods v. Brumlop, 377 P.2d 520, 523

(N.M. 1962)).

Counsel’s suggestion that Appellants could not find a single expert to

rebut the opinion of their own expert most assuredly could have handicapped

Appellants’ ability to defend against Appellee’s claims.8 The jury may indeed

8 We also are troubled that counsel’s conduct did not comport with the obligation to not knowingly make a false statement of material fact to a tribunal. See Rules of Professional Conduct §§ 3.3 (candor towards the tribunal) and 1(m)(definition of “tribunal”).

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have been persuaded that every potential expert on vascular surgery in the

country would opine in Appellee’s favor, and not Appellants’. Accordingly, as

in Siegal, the prejudice of counsel’s remark in this case was too great to be

remedied by an instruction. See Siegal, 718 A.2d at 1277.9

Moreover, while the trial court correctly attempted to mitigate the

prejudice of counsel’s remark by telling the jury that statements by counsel

are not evidence, we do not find that the generic nature of that cautionary

instruction adequately compensated for the falsehood related by counsel. To

attempt to adequately mitigate counsel’s remarks, the trial court needed to

help the jury appreciate, at a minimum, that the statement was false. The

trial court did not do so, and regardless, since an instruction could not have

cured the prejudice of counsel’s improper remark, the trial court abused its

discretion in denying Appellants’ motion for a mistrial. See Siegal, 718 A.2d

at 1277; see also Poust, 940 A.2d at 385; Mirabel, 57 A.3d at 151.

9 In Steltz v. Meyers, 265 A.3d 335 (Pa. 2021), our Supreme Court distinguished the facts before it from those which Siegal and the present case have in common. The defendants’ counsel in Steltz asked a witness to confirm whether, out of over 5,000 radiologists in the country who interpreted musculoskeletal MRIs, the plaintiff “couldn’t find one of them to come into this courtroom to support [the plaintiff’s fact witness who had interpreted the MRI].” The Court found this question proper in large part because the plaintiff’s lack of an expert on that subject did not result from a ruling excluding such a witness. See Steltz, 265 A.3d at 348. “[The plaintiff] had not attempted to qualify [the fact witness] as an expert witness nor had [the plaintiff] presented a radiology expert to testify in support of [the fact witness].” Id. As the trial court had not precluded the plaintiff from presenting an expert, Siegal did “not support the . . . conclusion that the question was improper.” Id.

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Appellants’ third claim is that the trial court erred in permitting

Appellee’s expert witness, Dr. Wu, to disclose the fact that Appellant, Reading

Hospital, had once retained him as a witness in another trial.

The threshold test for the admissibility of evidence is relevance. See

Pa.R.E. 402. Evidence is relevant if “it has any tendency to make a fact more

or less probable than it would be without the evidence,” and “the fact is of

consequence in determining the action.” Pa.R.E. 402. Even where evidence

is relevant, it may only be admissible if its probative value is not outweighed

by the danger of “unfair prejudice, confusing the issues, misleading the jury,

undue delay, wasting time, or needlessly presenting cumulative evidence.”

Pa.R.E. 403. A trial court’s ruling on the admission or exclusion of evidence

is subject to an abuse of discretion standard of review. See Feldman v. CP

Acquisitions 25, L.P., 325 A.3d 691, 713 (Pa. Super. 2024).

Here, we find that the trial court did not abuse its discretion in allowing

Appellee to disclose to the jury the fact that Dr. Wu had been retained as an

expert by Reading Hospital in an unrelated matter. Dr. Wu’s experience in

that regard was relevant to his qualifications and experience. It also arguably

showed that he had no bias against Reading Hospital, making him more

credible as a witness giving testimony favorable to that party’s opponent.

With respect to the balancing test under Rule 403, it difficult to see how

the admission of this evidence could have unduly prejudiced Appellants. The

underlying facts of the prior case involving Reading Hospital were not disclosed

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to the jury. Moreover, Dr. Wu testified that he routinely served as an expert

on behalf of both plaintiffs and defendants in malpractice actions. So there

was nothing unusual about Dr. Wu testifying for Reading Hospital in one case,

and then for Appellee in another. There were no facts on the record which

would have reasonably led the jury to rely on that evidence to draw any

negative inferences against Appellants. As we discern no abuse of discretion

on the part of the trial court in admitting Dr. Wu’s testimony about his past

experience as Ready Hospital’s expert witness, no relief is due on that issue.

Appellants’ fourth and final claim is that the trial court erred in providing

the jury with instructions and a verdict form which misstated the causation

element of negligence, allowing Appellants to be found liable without a

determination by the jury that their negligent conduct was a factual cause of

Appellee’s injuries. Before evaluating the merits of this claim, we must

determine if it was sufficiently preserved for appellate review, or waived as

Appellee and the trial court have asserted.

Our Supreme Court, in Jones v. Ott, 191 A.3d 782 (Pa. 2018), outlined

the necessary steps for preserving a claim concerning challenges to jury

charges. Of relevance to the present case, a party may preserve such an

issue, in the absence of a contemporaneous objection, first “by filing a

proposed instruction with the prothonotary before trial and by later raising the

issue by post-trial motion.” Jones, 191 A.3d at 788 (citing Pa.R.Civ.P. 227.1).

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The party must also “secure a record ruling from the trial court upon the

proposed charge.” Id.; see also Pa.R.A.P. 302.

To keep the issue preserved, no further action is needed, but the issue’s

preservation is still contingent on the absence of an affirmative waiver. See

id., at 791-92. A party may waive or abandon an otherwise preserved issue,

for example, by declaring in response to the trial court’s inquiry that she has

“no issues with the charge.” Id., at 791.

In the present case, we find that Appellants have preserved their fourth

claim. At trial, they submitted proposed points for charge, as well as a

proposed verdict form. They also filed a post-trial motion seeking relief from

the asserted in error in the instructions and verdict form provided to the jury.

Appellants obtained a ruling on the record as to the disputed factual cause

instruction and the question about factual cause in the verdict form. See N.T.

Trial, 4/22/2024, at 776-77.

The trial court later noted, prior to deliberations, that the parties had

“discussed at length off the record . . . what the proposed verdict slip was

going to look like[.]” Id., at 778. When asked by the trial court if “there is

anything further we need to place on the record before [adjournment],”

Appellants again specifically objected to Question Number 2 on the verdict

form:

Just out of an abundance of caution to ensure that this is on the record, we object to the language of increased risk on the verdict form Number 2 when it talks about cause. We believe that's included in the factual cause.

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Id., at 781. The trial court did not reconsider its earlier ruling when, over

Appellants’ objection, it granted Appellee’s motion to modify the verdict form

by adding the language allowing a finding of liability based on “factual cause

or an increased risk of harm.” See id.

These steps were sufficient to preserve Appellants’ claims. Moreover,

Appellants did not at any point affirmatively waive their challenges to jury

instructions or the verdict form. The trial court and Appellee suggest that they

did so moments after the jury was charged, at which point the trial court asked

the parties if they had “any additions, corrections or deletions to the charge

that has been read to the jury?” N.T. Trial, 4/23/2024, at 878. Appellants’

counsel replied that it had “none.” Id.10

Viewing the record in context, Appellants’ response cannot reasonably

be construed as an affirmative waiver of their thoroughly litigated challenges.

The trial court’s question can only fairly be read as an inquiry into whether

there were any new issues that arose from the reading of the instructions that

10 Regrettably, in civil cases this seems to be a repeated scenario during charge conferences that creates ambiguity in the court’s inquiry and counsel’s response, leading to confusion and the potential waiver of claims. The wording used by the trial court here did not clarify whether the court was asking if there remained any objections or whether counsel had new objections in addition to what already had been ruled upon. To avoid this recurring “got ya” problem, both the court and counsel should be more precise when discussing whether there are other objections to be lodged subject to those already made and ruled upon, or whether all previous objections need to be renewed for preservation purposes.

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had not already been definitively ruled upon. Had the trial court intended to

revisit fully litigated issues, it would have explicitly asked for “objections,” as

it had done earlier in the proceedings.”11 Suggesting, based on their response,

that Appellants were at that point suddenly content with the trial court’s

formulation of “factual cause” is utterly specious.

We now turn to the merits of Appellants’ final claim.

“When a court instructs the jury, the objective is to explain to the jury

how it should approach its task and the factors it should consider in reaching

its verdict.” Tincher v. Omega Flex, Inc., 104 A.3d 328, 335 (Pa. 2014)

(internal citations omitted). On review of a challenge to a jury instruction, an

appellate court must “determine whether the trial court abused its discretion

or offered an inaccurate statement of law controlling the outcome of the case.”

Id. Relief may be proper if “the issues are not made clear, the jury was misled

by the instructions, or there was an omission from the charge amounting to a

fundamental error.” Id. (quoting Commonwealth v. Chambers, 980 A.2d

11 The trial court established the procedure, or nomenclature, to be used when

litigating the jury charges and verdict form. Specific “objections” to instructions and verdict questions were to be addressed separately from the parties’ “requests” to make “additions” or “deletions.” See N.T. Trial, 4/22/2023, 775. For example, when “objections” were prompted, “requests” were not entertained: “This is not the request. This is objections.” N.T. Trial, 4/22/2023, at 776; see also id., at 775 (“Go ahead. This is objecting to the ones I’m giving. We’ll get to the additions later.”). It logically follows that by only asking for any new “additions, corrections or deletions,” the trial court was not entertaining “objections,” or asking for renewed challenges to previously ruled upon “requests.”

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35, 49–50 (Pa. 2009)). A new trial must be granted if “an erroneous jury

instruction which amounted to a fundamental error or the record is insufficient

to determine whether the error affected the verdict.” Id.

Medical malpractice is a form of negligence that may be proven when

the following elements are satisfied:

(1) the physician owed a duty to the patient; (2) the physician breached that duty; (3) the breach of duty was the proximate cause of, or a substantial factor in, bringing about the harm suffered by the patient; and (4) the damages suffered by the patient were a direct result of that harm.

Corrado v. Thomas Jefferson Univ. Hosp., 790 A.2d 1022, 1030 (Pa.

Super. 2001) (emphasis added, citation omitted).

The causation element of a medical malpractice cause of action does not

require proof that the defendant’s conduct was a “but-for” cause of the

plaintiff's damages. See id.; see also Winschel v. Jain, 925 A.2d 782, 788-

89 (Pa. Super. 2007). Courts have referred to an “increased risk of harm”

analysis as a “relaxed standard” which lessens “the degree of certainty

ordinarily required of a plaintiff’s evidence to provide a basis for causation.”

Mitzelfelt, 584 A.2d at 894. “A plaintiff is entitled to an instruction on

increased risk where there is competent medical testimony that a defendant's

conduct at least increased the risk that the harm sustained by the plaintiff

would occur.” Klein v. Aronchick, 85 A.3d 487, 495 (Pa. Super. 2014).

Critically, though, an “increased risk of harm” should not be equated

with factual (proximate) cause. A finding of increased risk of harm instead

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functions as a means of allowing the fact-finder to link the defendant’s conduct

to the plaintiff’s harm, even in certain contexts, such as a medical malpractice

action, where it might be impossible to establish that an act or omission by a

physician directly caused, or was a “but-for” cause of a patient’s harm:

[S]uch evidence [of increased risk of harm] furnishes the basis for the fact-finder to go further and find that such increased risk was in turn a substantial factor in bringing about the resultant harm; the necessary proximate cause will have been made out if the jury sees fit to find cause in fact.

Sutherland v. Monongahela Valley Hosp., 856 A.2d 55, 60 (Pa. Super.

2004) (quoting Hamil v. Bashline, 392 A.2d 1280, 1288 (Pa. 1978)).12

As cogently stated in the passage quoted directly above, a finding of an

increased risk of harm is not equivalent to a finding of factual (proximate)

cause. See id. Once a finding of increased risk of harm has been made, the

fact-finder must “go further” and determine by a preponderance of the

12 In section 14.20 of the current version of the Pennsylvania Suggested Standard Civil Jury Instructions, it is not recommended for the jury to be charged on whether a party’s conduct is a “substantial factor” in bringing about the plaintiff’s harm. Rather, it is only recommended that the jury be advised instead on whether the defendant’s conduct was a “factual cause” of the harm. Pa. SSJI (Civ) § 14.20, Medical Malpractice — Suggested Special Jury Interrogatories. Similarly, section 14.160 provides that, in medical malpractice actions, the jury should only be asked in the verdict form whether the negligence of the defendants was “a factual cause of any harm to the plaintiff?” Pa. SSJI (Civ) § 14.160, Medical Malpractice — Suggested Special Jury Interrogatories. This suggestion attempts to avoid the confusion that might be created by attempting to explain to a jury the concept of a “substantial factor”. The use of “factual cause” however does not appear to be inconsistent with well-established law that refers to “substantial factor” in a negligence action.

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evidence whether the increased risk of harm was “in turn a substantial factor”

in bringing about the plaintiff’s injuries. See Winschel, 925 A.2d at 789

(citing Carrozza v. Greenbaum, 866 A.2d 369, 380-81 (Pa. Super. 2004));

see also Rohon v. Davies, 232 A.3d 773, 777 (Pa. Super. 2020) (to establish

proximate cause, an expert must show with a reasonable degree of certainty

that the defendant physician’s “conduct increased the risk of harm actually

sustained, and the jury then must decide whether the conduct was a

substantial factor in bringing about the harm.”).

This two-part inquiry by the fact-finder directly applies in the context of

medical malpractice actions in which the asserted negligence takes the form

of delayed treatment. See Winschel, 925 A.2d at 789. For example,

[a]lthough timely detection of breast cancer may well reduce the likelihood that the patient will have a terminal result, even with timely detection and optimal treatment, a certain percentage of patients unfortunately will succumb to the disease. This statistical factor, however, does not preclude a plaintiff from prevailing in a lawsuit. Rather, once there is testimony that there was a failure to detect the cancer in a timely fashion, and such failure increased the risk that the woman would have either a shortened life expectancy or suffered harm, then it is a question for the jury whether they believe, by a preponderance of the evidence, that the acts or omissions of the physician were a substantial factor in bringing about the harm.

Mitzelfelt v. Kamrin, 584 A.2d 888, 892 (Pa. 1990) (Emphasis added); see

also Cohen v. Kalodner, 345 A.2d 235, 237 (Pa. Super. 1975) (affirming

denial of instruction in malpractice case because it implied “that appellant can

recover by proving only negligence and increased risk of harm.”).

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In the present case, Appellee was entitled to an instruction on “increased

risk of harm” because he presented the competent expert testimony of Dr.

Wu that Appellants’ conduct increased the risk that the harm sustained by

Appellee would occur. However, while Appellee was entitled to this

instruction, it still was incumbent upon Appellee to prove, and upon the trial

court to so charge, that an increased risk of harm was a factual cause of his

injuries. By repeatedly equating an increased risk of harm with factual cause

in both the jury charges and the verdict form, the trial court’s instructions

were erroneous and improperly eased Appellee’s burden of proving Appellants’

liability, depriving them of a fair trial. See N.T. Trial, 4/23/2024, at 860-61;

Verdict Form, 4/28/2024, at 1.

Appellee argues nonetheless that the verdict may stand because it was

possible that the jury did not rely upon an increased risk of harm to find

Appellants liable, instead finding only that Appellants’ conduct was a factual

cause of his injuries. See Appellee’s Brief, at 47-50. Citing “the general-

verdict rule,” Appellee maintains that the verdict was valid because “when the

jury returns a general verdict involving two or more issues and its verdict is

supported as to at least one issue, the verdict will not be reversed on appeal.”

Id., at 48 (quoting Halper v. Jewish Family & Children’s Serv., 963 A.2d

1282, 1288-89 (Pa. 2009)) (internal quotations omitted). “[A] defendant who

fails to request a special verdict form in a civil case will be barred on appeal

from complaining that the jury may have relied on a factual theory

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unsupported by the evidence when there was sufficient evidence to support

another theory properly before the jury.” Id. (quoting Halper, 963 A.2d at

1289).

We find the general-verdict rule inapplicable here for two reasons.

First, the general-verdict rule only serves to bar challenges to a verdict

as to two or more issues when a defendant has failed to request a special

verdict form clarifying the factual theory on which its verdict is based. See

Cowher, 283 A.3d at 804 (citing Halper, 963 A.2d at 1288-89). Here,

Appellants in fact objected to the verdict form given to the jury precisely

because it equated a finding of increased risk of harm with factual cause. The

record also reflects that Appellants proposed a verdict slip, not accepted by

the trial court, that did not equate an increased risk of harm with factual

cause.

Second, this is not a case where the jury returned a general verdict

based upon multiple theories of negligence. Rather, Appellee alleged in his

complaint a single cause of action for negligence premised upon the sole

theory that “The negligence and recklessness of Defendants, acting

individually and by and through their agents, servants, and employees, as

described herein, increased the risk of harm to Ronald Lewis and was a

substantial factor in causing his catastrophic injuries and losses.” Complaint,

9/16/2022, at ¶76. Regrettably, as explained above, the instruction and

verdict form incorrectly reflected this theory because they allowed the jury to

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find liability based only upon an increased risk of harm without also requiring

the jury to find that the increased risk of harm was a factual cause of

Appellee’s injuries. See Cowher v. Kodali, 283 A.3d 794, 804 (Pa. 2022)

(citing Shiflett v. Lehigh Valley Health Network, Inc., 217 A.3d 225, 234

(Pa. 2019)) (general-verdict rule will only bar a challenge to a general verdict

where “the verdict rests upon valid grounds[.]”).

Thus, due to the trial court’s error in charging the jury on the element

of causation and the prejudicial remarks by Appellee’s counsel, Appellants

must be granted a new trial.

Order vacated. Case remanded for further proceedings. Jurisdiction

relinquished.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 09/02/2025

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