Melendez, D. v. Mo, G.

Opinions

J-A08039-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

DIANE MELENDEZ : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : GYI P. MO, M.D., ALBERT : D'ANGELANTONIO, D.P.M., THE : TRUSTEES OF THE UNIVERSITY OF : No. 196 EDA 2024 PENNSYLVANIA, UNIVERSITY OF : PENNSYLVANIA HEALTH SYSTEM, : PENN MEDICINE, CLINICAL : PRACTICES OF THE UNIVERSITY OF : PENNSYLVANIA, PERELMAN CENTER : FOR ADVANCED MEDICINE, : CLINICAL CARE ASSOCIATES OF THE : UNIVERSITY OF PENNSYLVANIA : HEALTH SYSTEM, INTERNAL : MEDICINE ASSOCIATES OF : DELAWARE COUNTY, P.C., INTERNAL : MEDICINE ASSOCIATES OF : DELAWARE COUNTY, HOSPITAL OF : THE UNIVERSITY OF PENNSYLVANIA, : PENN INTERNAL MEDICINE MEDIA, : PENNCARE INTERNAL MEDICINE : ASSOCIATES OF DELAWARE : COUNTY, CROZER-KEYSTONE : HEALTH SYSTEM, INC. D/B/A : INTERNAL MEDICINE ASSOCIATES : OF DELAWARE COUNTY AND/OR : INTERNAL MEDICINE ASSOCIATES : OF DELAWARE COUNTY AND/OR : INTERNAL MEDICINE ASSOCIATES : OF DELAWARE COUNTY, P.C. : : : APPEAL OF: GYI P. MO, AND : CLINICAL CARE ASSOCIATES OF THE : UNIVERSITY OF PENN HEALTH : SYSTEM : J-A08039-25

Appeal from the Judgment Entered December 21, 2023 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 180801939

BEFORE: LAZARUS, P.J., McLAUGHLIN, J., and SULLIVAN, J.

MEMORANDUM BY SULLIVAN, J.: FILED SEPTEMBER 11, 2026

Dr. Gyi P. Mo (“Mo”) and Clinical Care Associates of the University of

Pennsylvania Health System (“Clinical Care” or collectively, “Appellants”)

appeal from the judgment entered against them and in favor of Diana

Melendez (“Melendez”), in this medical malpractice action. Because

Appellants either failed to preserve their issues for appeal and/or the issues

lack merit, we affirm.

We take the underlying facts and procedural history in this matter from

the trial court’s opinion. See Trial Court Opinion, 10/2/23, at 2-15.

Mo is employed by Clinical Care, a part of the University of Pennsylvania

Health System. Beginning in October 2011 and continuing for several years,

Mo served as Melendez’s primary care physician. As early as February 2012,

Melendez complained to Mo about unexplained back pain that would cease

briefly and then return with increased intensity. Melendez’s clinical findings

were unremarkable except for her reflex scores, which were bilateral 4+ on

both her patella and Achilles reflexes. 4+ is indicative of a serious medical

condition. At trial, Mo claimed the recorded 4+ findings were typos or “click

errors” on his part and Melendez’s reflexes were 2+, a normal finding. Mo did

not recommend any additional testing but suggested Melendez take NSAIDs,

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stretch, and rest. Mo never tested Melendez’s reflexes again, even though

Melendez complained about increasing back pain, weakness, and leg problems

over the next three years. In March 2014, Mo examined Melendez and found

neurological weakness. At trial, Mo claimed the notation of neurological

weakness was a computer “glitch” (weakness glitch) resulting from a flaw in

a computer program, and he did not find neurological weakness but rather

constitutional weakness. Mo did not refer Melendez to a neurologist.

Melendez’s condition continued to deteriorate, and she began having

serious foot problems. In early 2016, Mo referred Melendez to a podiatrist,

Dr. Albert D’Angelantonio (“D’Angelantonio”).1 Melendez saw D’Angelantonio

in 2016, and he ultimately referred her for a neurology consultation. In

January 2017, Melendez began treatment with neurologist Dr. Sami Khella

(“Khella”). Khella ultimately diagnosed Melendez with spinal dural

arteriovenous (“AV”). This condition is curable if caught early. Here, it was

not caught early and following surgery, Melendez became an incomplete

paraplegic; she is both bowel-dysfunctional and incontinent, cannot walk

without a walker, falls regularly, and cannot do most activities of daily living

without assistance.

____________________________________________

1 Melendez filed the instant action against fourteen medical providers including

D’Angelantonio. The case went to trial solely against Mo and D’Angelantonio. However, the jury found in favor of D’Angelantonio and he is not a party to this appeal.

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At trial, of import to the instant appeal, along with her own testimony,

Melendez presented the expert testimony of Dr. Paul Genecin (“Genecin”), a

board-certified internal medicine specialist. In sum, Genecin testified that,

beginning in 2012, Mo breached the standard of care by not referring Melendez

to a neurologist, not referring her for an MRI, and not repeating the reflex

testing after Melendez showed abnormal results. Notably, Melendez’s counsel

did not ask him whether his opinions were given with “a reasonable degree of

medical certainty.”

Melendez also presented testimony from Dr. Carolyn Brockington

(“Brockington”), a vascular neurologist, and Dr. Ross Noble (“Noble”), who is

board certified in physical medicine, rehabilitation, and electrodiagnostic

medicine. Both testified to Melendez’s current medical condition and the

difference early diagnosis would have made and excluded other possible

causes than AV for the symptoms Melendez displayed. Noble explained how

Melendez’s current physical problems impact her daily life and about the on-

going care she will need in the future; he also testified Melendez is

permanently disabled.

Whitney Jackson, a records manager at Penn Medicine, testified

Melendez had been employed by the Hospital of the University of Pennsylvania

(“HUP”), which terminated her employment because her medical problems

rendered her permanently disabled.

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Melendez also presented two expert witnesses regarding damages,

Nadine Taniguchi (“Taniguchi”), a nurse life-care planner and David Hopkins

(“Hopkins”), an expert in economic forecasting.

In his defense case, Mo presented expert medical testimony from Dr.

Charles Christopher Smith (“Smith”), an internal medicine specialist, and Dr.

Phillip Dickey (“Dickey”), a neurosurgeon. Both experts disputed Melendez’s

experts’ testimony that there was a breach of the standard of care, and

disputed whether the symptoms Melendez complained to Mo were indicative

of AV, and when Melendez developed AV. Mo’s counsel elected not to call any

previously identified expert witnesses regarding damages, instead relying on

their cross-examination of Melendez’s experts.

The jury found in favor of Melendez but determined she was 6%

contributorily negligent. Its award to Melendez, taking into account the 6%

reduction, was $799,000 for past and future non-economic loss,

$9,321,666.98 for future economic loss, $1,156,811 for past and future lost

earnings, and $7,207,915.30 for future medical expenses. Subsequently, Mo

filed two motions for judgment notwithstanding the verdict (“JNOV”), three

motions for JNOV and/or a new trial, thirteen motions for a new trial, a motion

for remittitur, and a motion for a hearing on reduction of future medical

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expenses to present value.2 See Trial Court Opinion, 10/2/23, at 16.

Melendez also filed post-trial motions which are not the subject to the instant

appeal. The trial court issued a seventy-five-page opinion finding the majority

of Mo’s claims waived. The instant appeal followed. Mo filed a timely Pa.R.A.P.

1925(b) statement, and the trial court issued a statement adopting its decision

on post-trial motions as its Pa.R.A.P. 1925(a) decision.

On appeal, Appellants raise five issues for our review.

1. Whether the trial court erred in denying [Appellants’] request for JNOV after [Melendez] failed to present sufficient evidence to establish that [Appellants] breached an objective standard of care that caused [Melendez’s] harm?

2. Whether the trial court abused its discretion in failing to grant a new trial after [Melendez’s trial] counsel engaged in what the trial court described as “deplorable” conduct, when [trial counsel] injected irrelevant employment claims into this medical malpractice case, repeatedly violated court rulings, and continually disregarded Pennsylvania’s procedural and evidentiary rules, such that [trial] counsel was admonished by the trial court forty-eight times?

3. Whether the trial court abused its discretion in denying [Appellants’] new trial request after the trial court, at [Melendez’s] insistence, gave a highly prejudicial[,] mid-trial jury instruction that erroneously told the jury that [Appellants] withheld documents in discovery when, in fact, as [trial] counsel conceded, no such documents were withheld?

4. Whether the trial court abused its discretion in denying ____________________________________________

2 Appellants filed a single motion but within the motion labeled each section

as a separate and distinct motion. In the interests of clarity, we adopt the trial court’s citation method and refer to the motions as they were labeled. The trial court ordered briefing and, two months later, Appellants filed a single brief that does not align with their post-trial motions either in terms of the order of issues nor with respect to content.

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[Appellants’] request for a new trial, where the overwhelming weight of the evidence established that [Appellants] did not breach a standard of care by failing to diagnose [Melendez’s] condition earlier, [Melendez] did not have the complained-of medical condition during the time she was being treated by [Appellants] (such that earlier testing or intervention would have made no difference in Melendez’s outcome), and the staggering damages award is both excessive and unsupported?

5. Whether the trial court abused its discretion in failing to remit an almost-$20-million verdict where the award was returned without sufficient evidentiary basis and improperly influenced by [trial] counsel’s inflammatory insinuations that the jury should punish [Appellants] for alleged employment decisions over which they had no control?

Appellants’ Brief at 6-7.

Initially, this Court wishes to address its displeasure with Appellants’

brief and reproduced record in this matter. As discussed, the trial court found

Appellants waived most of their issues on appeal for a variety of reasons, most

having to do with deficiencies in their post-trial motions and/or brief in support

of their post-trial motions. See Trial Court Opinion, 10/2/23, at 16-75.

Despite the trial court’s clear indication of the deficiencies of their prior filings,

and in violation of Pennsylvania Rules of Appellate Procedure 2117(c) and

2119(e), Appellants do not state or even cite where they preserved most of

their issues. Moreover, Appellants generally fail to address waiver, and when

they do, they do so in the form of a bald denial of waiver without citing to the

record where the issue is preserved. Further, in violation of Pa.R.A.P.

2152(a)(2), Appellants’ reproduced record does not include any of their post-

trial motions, attached exhibits, or the brief in support of the post-trial motions

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in violation of Pa.R.A.P. 2152(a)(2). Appellants’ myriad failures place an

unreasonable burden on this Court: the certified record in this case includes

thirty-two volumes of transcripts and over thirty-thousand

documents. As has been colorfully stated, “‘[j]udges are not like pigs,

hunting for truffles buried in briefs’-or, for that matter, in the thousands of

pages of record that accompany them.” Langman v. Keystone Nat’l Bank

& Trust Co., 672 F.Supp.2d 691, 694 (E.D. Pa. 2009) (citation omitted).

Moreover, Appellants generally present the facts in the light most favorable to

themselves, do not sufficiently cite to either pertinent authority or the record,

continuously misstate the record beyond acceptable limits of zealous

advocacy, and engage in inflammatory argument in their brief.

An appellate court will address only those issues properly presented and

developed in an Appellants’ brief as required by our Rules of Appellate

Procedure, Pa.R.A.P. 2101. “Where defects in a brief impede our ability to

conduct meaningful appellate review, we may dismiss the appeal entirely or

find certain issues to be waived.” Sephakis v. Pennsylvania State Police

Bureau of Records and Identification, 214 A.3d 680, 686 (Pa. Super.

2019) (internal quotation marks and citation omitted).

Given the significant deficiencies noted above, it would be within our

discretion to dismiss this entire appeal based upon Appellants’ failure to

meaningfully discuss the trial court’s finding of waiver, include in the

reproduced record the post-trial motions, exhibits, and accompanying brief

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that served as a basis for many of its waiver findings, and indicate in the

record where it preserved its issues. However, we endeavor to address

Appellants’ issues.

In their first issue, Appellants argue the trial court erred in not granting

their motion for JNOV because the evidence was insufficient to show

Appellants: (1) breached an objective standard of care and (2) the alleged

breach caused Melendez harm. See Appellants’ Brief at 25-35.

We begin with our standards of review. We have explained:

Our standard[s] of review when considering the motions for a directed verdict and [JNOV] are identical. We will reverse a trial court’s grant or denial of a [directed verdict or JNOV]. only when we find an abuse of discretion or an error of law that controlled the outcome of the case. Further, the standard of review for an appellate court is the same as that for a trial court.

There are two bases upon which [JNOV] can be entered; one, the movant is entitled to judgment as a matter of law and/or two, the evidence is such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant. With the first, the court reviews the record and concludes that, even with all factual inferences decided adverse to the movant, the law nonetheless requires a verdict in [its] favor. Whereas with the second, the court reviews the evidentiary record and concludes that the evidence was such that a verdict for the movant was beyond peradventure.

Hall v. Episcopal Long Term Care, 54 A.3d 381, 395 (Pa. Super. 2012)

(citations omitted).

With respect to the sufficiency of the evidence in medical malpractice

actions, this Court has stated:

[t]o establish a prima facie cause of action for medical negligence, a plaintiff must demonstrate:

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(1) a duty owed by the physician to the patient; (2) a breach of that duty; (3) that the breach of duty was the proximate cause of the harm suffered by the patient; and (4) that the damages suffered were a direct result of that harm.

Determining whether there was a breach of duty involves a two- step process: first, a determination of the standard of care, and second, a determination of whether the defendant physician met that standard. To show causation, the plaintiff must show that the [defendant physician’s] failure to exercise the proper standard of care caused the plaintiff's injury.

A plaintiff in a medical negligence case must present an expert witness who will testify, to a reasonable degree of medical certainty, regarding the standard of care (duty); that the . . . physician deviated from the standard of care (breach); and that such deviation was the proximate cause of the harm suffered. Further, “[the expert’s] medical opinion need only demonstrate, with a reasonable degree of medical certainty, that [the defendant physician’s] conduct increased the risk of the harm actually sustained, and the jury then must decide whether that conduct was a substantial factor in bringing about the harm.

In determining whether the expert’s opinion is rendered to the requisite degree of certainty, we examine the expert’s testimony in its entirety. That an expert may have used less definite language does not render his entire opinion speculative if at some time during his testimony he expressed his opinion with reasonable certainty. Accordingly, an expert’s opinion will not be deemed deficient merely because he or she failed to expressly use the specific words, “reasonable degree of medical certainty.” Nevertheless, an expert fails this standard of certainty if he testifies that the alleged cause possibly, or could have[,] led to the result, that it could very properly account for the result, or even that it was very highly probable that it caused the result.

Mazzie v. Lehigh Valley Hospital ─ Muhlenberg, 257 A.3d 80, 87-88 (Pa.

Super. 2021) (internal citations and most quotation marks omitted, some

paragraph formatting altered, emphasis added).

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Appellants specifically contend Genecin: (1) failed to identify any

objective standard of care, (2) did not testify to any breach of an objective

standard of care, and (3) did not present his opinion to any degree of

reasonable medical certainty. See Appellants’ Brief at 25-31. They further

claim Brockington’s testimony did not prove causation. See Appellants’ Brief

at 31-34.

The trial court concluded Appellants waived all the above sub-issues,

except for the claim Genecin did not present his opinion to any degree of

reasonable certainty. See Trial Court Opinion, 10/2/23, at 21-22, 24-28. It

also concluded that Genecin’s testimony was sufficient to show his opinions

were made to a reasonable degree of medical certainty. See id. at 23. We

agree.

Regarding post-trial motions, Pennsylvania Rule of Civil Procedure 227.1

provides,

(b) Except as otherwise provided by Pa.R.E. 103(a), post-trial relief may not be granted unless the grounds therefor,

(1) if then available, were raised in pre-trial proceedings or by motion, objection, point for charge, request for findings of fact or conclusions of law, offer of proof or other appropriate method at trial; and

(2) are specified in the motion. The motion shall state how the grounds were asserted in pre-trial proceedings or at trial. Grounds not specified are deemed waived unless leave is granted upon cause shown to specify additional grounds.

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Pa.R.Civ.P. 227.1(b)(1)-(2). “The purpose for Rule 227.1 is to provide the

trial court with an opportunity to correct errors in its ruling and avert the need

for appellate review.” Chalkey v. Roush, 805 A.2d 491, 494 n.9 (Pa. 2002)

(citation omitted).

“[T]o preserve the right to request [JNOV], a party must first request a

binding charge to the jury or move for a directed verdict or compulsory

nonsuit. A motion for a directed verdict is appropriate even in the non-jury

trial context.” Bank of America, N.A. v. Scott, 271 A.3d 897, 902 n.4 (Pa.

Super. 2022) (citation omitted); see also Corvin v. Tihansky, 184 A.3d 986,

990 (Pa. Super. 2018) (“This Court requires a motion for directed verdict

during trial as a prerequisite to a post-trial motion for JNOV based on the state

of the evidence.”) (citation omitted).

Both Genecin and Brockington submitted pre-trial expert reports. See

Letter/Report of Paul Genecin, M.D., 5/5/20, at 1-14; Letter/Report of Carolyn

D. Brockington, M.D., 5/6/20, at 1-6 (unnumbered). Appellants did not seek

summary judgment on the basis the reports were not rendered to a sufficient

degree of medical certainty, did not demonstrate causation, and/or did not

discuss the standard of care or show a breach thereof. When Appellants did

file motions in limine to preclude certain testimony, the motions sought to

preclude testimony outside the experts’ fields of expertise and sought to

exclude testimony by Genecin regarding Mo’s failures to document and/or

correct Melendez’s medical records, any testimony regarding the (weakness

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glitch), and certain testimony regarding treatment by defendant

D’Angelantonio, who was represented by separate counsel. See Appellants’

Motion in limine to Limit the Report Testimony of [Genecin], 8/18/22, at 1-

12; Appellants’ Motion in limine to Limit the Report Testimony of

[Brockington], 8/18/22, at 1-4. These grounds are unrelated to those at

issue in this appeal. Thus, Appellants did not preserve their claims in pre-trial

motions.

Additionally, Appellants did not move to strike either Genecin’s or

Brockington’s testimony at the close of their trial testimony. See N.T.,

9/12/22 pm session, at 70, 129. At the close of Melendez’s case, Appellants

did move to strike Genecin’s testimony and for a compulsory nonsuit but did

so solely on the ground that he did not testify to a reasonable degree of

medical certainty. See N.T., 9/16/22 pm session, at 36. The trial court denied

the motion. See id. at 37.

Appellants maintain, without citation to the record, that they requested

a binding jury charge and a directed verdict because of the inadequacies of

Genecin and Brockington’s testimony. Appellants’ assertion is not borne out

by the record. See Appellants’ Brief at 25 n.7, 34. Our review shows that

while Appellants requested a general jury charge that Melendez had not

proven negligence, they never requested a specific jury charge that either

Genecin or Brockington’s testimony was insufficient. See Appellants’ Points

for Charge, 9/1/22 at 2; N.T., 9/19/22 pm session, at 93-140; N.T., 9/20/22,

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at 2-32. Moreover, while Appellants did move for a directed verdict during

the charge conference, the motion was identical to the one they had already

made asserting Genecin’s failure to testify to a reasonable degree of medical

certainty. See N.T., 9/19/22 pm session, at 134. Thus, the record

demonstrates that Appellants were not entitled to seek JNOV based on any

alleged deficiencies in Brockington’s testimony and were only entitled to seek

JNOV with respect to Genecin’s testimony on the limited ground he did not

state his opinions were based to a reasonable degree of medical certainty.

See Pa.R.Civ.P. 227.1(b)(1); Scott, 271 A.3d at 903 n.4. Accordingly, the

only issue preserved for our review is whether Genecin stated his opinions to

a reasonable degree of medical certainty.

Appellants’ claim that Genecin did not render his opinion based on a

reasonable degree of medical certainty has no merit. 3 See Appellants’ Brief

at 29-31.

In determining whether the expert’s opinion is rendered to the requisite degree of certainty, we examine the expert’s testimony in its entirety. That an expert may have used less definite language does not render his entire opinion speculative if at some time during his testimony he expressed his opinion with reasonable certainty. Accordingly, an expert’s opinion will not be deemed deficient merely because he or she failed to ____________________________________________

3 This Court would also be within our right to find Appellants waived the claim

with respect to Genecin’s testimony regarding reasonable degree of medical certainty because Appellants’ motion for JNOV does not comply with Pa.R.Civ.P. 227.1(b)(2). Appellants baldly state they preserved this claim before, during, and after trial but fail to cite to the record to state where and how they preserved that claim. See Appellants’ Motion for JNOV, 12/22/22, at 5-6; Appellants’ Fifth Motion for JNOV, 12/22/22, at 16.

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expressly use the specific words, “reasonable degree of medical certainty.” Nevertheless, an expert fails this standard of certainty if he testifies that the alleged cause possibly, or could have led to the result, that it could very properly account for the result, or even that it was very highly probable that it caused the result.

Vicari v. Spiegel, 936 A.2d 503, 510-11 (Pa. Super. 2007) (citations omitted

formatting altered, emphases added).

The trial court reviewed Genecin’s testimony in its entirety and

concluded it “was based on a reasonable degree of medical certainty and not

mere speculation.” Trial Court Opinion, 10/2/23, at 23. The court further

stated, “Genecin clearly and unequivocally established the standard of care

and its breach by [] Mo by failing to order imaging such as an MRI and a

referral to a neurologist.” Id. The trial court then referenced its earlier

summary of Genecin’s testimony where it stated Genecin testified Mo “did not

adhere to the appropriate standard of care because [Melendez] presented with

[neurological] symptoms” and Mo did not prescribe “[a] work[] up . . .

specifically . . . an MRI . . . and a referral to a neurologist.” Id. at 6 (internal

quotation marks and citation omitted). The trial court pointed out that

Genecin repeatedly testified regarding Mo’s breach of the standard of care,

failure to ensure Melendez’s medical records were correct, and failure to

recheck Melendez’s reflexes to ensure that the abnormal findings noted on her

chart were the result of a computer error rather than an accurate diagnosis.

See id. at 6-7.

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Appellants concede Genecin was not required to use “magic words.”

Appellants’ Brief at 30. However, they claim, without citation, Genecin’s

“overall testimony was vague, generic, equivocal, and fails [sic] to state the

standard of care in objective terms.” Id. Genecin testified for almost an

entire day; his testimony covers approximately one hundred and fifty pages.

See N.T., 9/12/22 am session, at 13-105; N.T., 9/12/22 pm session, at 6-70.

It is not this Court’s duty to scour the record searching for examples to

substantiate Appellants’ vague allegations that Genecin did not testify to a

reasonable degree of medical certainty. See 9795 Perry Highway

Management, LLC v. Bernard, 273 A.3d 1098, 1108 n.7 (Pa. Super. 2022)

(reiterating it is not the Court’s responsibility to comb the record to locate the

factual underpinnings of an Appellants’ claim); Krauss v. Trane U.S. Inc.,

104 A.3d 556, 584 (Pa. Super. 2014) (“We shall not assume the burden of

searching through the lengthy briefs and voluminous record in an attempt to

guess at the [facts] to which Appellant is referring”); Irwin Union Nat. Bank

and Trust Co. v. Famous, 4 A.3d 1099, 1103 (Pa. Super. 2010) (noting this

Court will not develop arguments on an Appellants’ behalf).

Our review of Genecin’s testimony finds support for the trial court’s

determination. While Genecin did not use the phrase “to a reasonable degree

of medical certainty,” he unequivocally testified in conformance with his expert

report, which was rendered with a reasonable degree of medical certainty,

how Mo breached the standard of care, why Mo’s actions and inactions

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constituted such a breach, and that Mo’s actions and inactions caused

Melendez’s delayed diagnosis and resulting harm. See e.g. N.T., 9/12/22 am

session, at 30, 32-36, 44-46, 56-58, 61-62, 66, 78-79, 89-91, 94-95; N.T.,

9/12/22 pm session, at 14-19; see also Letter/Report of Paul Genecin, M.D.,

3/5/20, at 1, 14. Because Appellants have not demonstrated that the facts

were not such that no reasonable minds could dispute the impropriety of the

verdict, their JNOV claim does not merit relief. See Tillery v. Children’s

Hospital of Philadelphia, 156 A.3d 1233, 1241-42 (Pa. Super. 2017)

(holding appellants were not entitled to JNOV where the record failed to

support their claim appellee’s expert testimony was based entirely on opinion

and conjecture and not supported by empirical evidence); Maya v. Johnson

and Johnson, 97 A.3d 1203, 1213 (Pa. Super. 2014) (stating “Pennsylvania

law makes clear that a judgment notwithstanding the verdict is proper only in

clear cases where the facts are such that no two reasonable minds could

disagree that the verdict was improper”). Appellants’ JNOV claim is thus

waived and meritless.

In their second issue, Appellants maintain the trial court erred in failing

to grant a new trial because trial counsel engaged in “deplorable conduct.”

See Appellants’ Brief at 6; see also id. at 35-48.

Our standard of review regarding a trial court’s denial of a motion for a

new trial is limited: “The power to grant a new trial lies inherently with the

trial court and we will not reverse its decision absent a clear abuse of discretion

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or an error of law which controls the outcome of the case.” Maya, 97 A.3d at

1224 (Pa. Super. 2014) (citation omitted). We employ a two-part analysis to

assess the denial of a mistrial: First, we determine if an error occurred. If so,

we ascertain “whether the error resulted in prejudice necessitating a new

trial.” Czimmer v. Janssen Pharmaceuticals, Inc., 122 A.3d 1043, 1051

(Pa. Super. 2015) (citation omitted). See Knowles v. Levan, 15 A.3d 504,

507 (Pa. Super. 2011) (citation omitted) (recognizing the consideration of all

new trial claims “is grounded firmly in the harmless error doctrine which

underlies every decision to grant or deny a new trial” and that a new trial is

not warranted merely because an irregularity occurred or another trial judge

would have ruled differently).

When the request for a new trial is based on a claim of attorney

misconduct:

Among the recognized reasons for granting a new trial is misconduct by counsel. The power to grant a new trial is inherent in the court, and the decision to grant or deny a motion for new trial rests within its sound discretion. The court’s decision will not be disturbed on appellate review absent an abuse of that discretion.

Garced v. United Cerebral Palsy of Philadelphia and Vicinity, 307 A.3d

103, 123 (Pa. Super. 2023) (citation omitted). Moreover,

[a] mistrial may be required where counsel makes irrelevant remarks . . . which are reasonably likely to have a direct and prejudicial effect on the award of damages. Whether a trial court has abused its discretion in refusing to grant a mistrial must be determined by assessing the circumstances concerning the improper question or statement and the precautions taken to prevent it from having a prejudicial effect on the jury. In

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determining whether misconduct by counsel is grounds for granting a new trial where a mistrial was not granted, the court should consider whether the trial court gave a curative instruction, the frequency and nature of the improper questions or statements, and whether the verdict shows any prejudicial effect from the improper conduct.

Livingstone v. Greyhound Lines Inc., 208 A.3d 1122, 1133 (Pa. Super.

2019) (internal quotation marks and citations omitted, emphasis added).

Lastly, we review a trial court’s denial of a request for mistrial for an

abuse of discretion. See Steltz v. Meyers, 265 A.3d 335, 345 (Pa. 2021).

Appellants’ contention regarding trial counsel’s behavior can be broadly

divided into two categories: (1) claims regarding trial counsel’s behavior

throughout trial (the “pervasive misconduct” claims); and (2) claims regarding

trial counsel’s alleged misuse of the fact HUP terminated Melendez (the

“termination” claims). See Appellants’ Brief at 35-48. We analyze them in

that order.

The trial court concluded Appellants waived their claim with respect to

counsel’s general conduct throughout the trial because although Appellants

raised the issue in a post-trial motion, they did not discuss it in their brief in

support of the motion. See Trial Court Opinion, 10/2/23, at 47. Moreover,

the court also found waiver because Appellants failed to cite the record in their

brief and it could not discern the specifics of what they were objecting to and

where it could be found in the enormous record in this case. See id. at 48.

We have thoroughly reviewed the post-trial motion brief, which

Appellants failed to include in their reproduced record. Having done so, the

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trial court’s confusion is understandable because, as the court pointedly but

accurately stated, Appellants’

post-trial motion[s] and brief are excellent examples of how not to present issues. The [post-trial motions] read[] as a scattershot, stream of consciousness list with request for JNOVs and new trials intermingled[,] and similar issues widely separated with no discernable order or plan. The [Appellants’ post-trial motion brief] never refers to the [post-trial motions themselves]. . .. The argument in the brief does not track the order of the issues in the [post-trial motions] making it difficult to determine whether the issues set forth in the brief[s] were preserved for review by also appearing in the [post-trial motions themselves].

Trial Court Opinion, 10/2/23, at 16 (emphasis in original).

Appellants’ presentation of both the pervasive misconduct and

termination misconduct claims exemplify the confusion their lack of

organization causes a reviewing court. Appellants raised their claims

regarding counsel’s alleged misconduct with respect to termination claims in

their first through fourth post-trial motions. 4 See Appellants’ First through

Fourth Post-Trial Motions, 10/3/22, at 6-15. By contrast, Appellants did not

raise their pervasive misconduct claims until their ninth post-trial motion. See

Appellants’ Ninth Post-Trial Motion, 10/3/22, at 21-22. However, in their brief

____________________________________________

4 As noted in our procedural history, Appellants confusingly divide their single

post-trial motion into thirteen separate motions, seeking overlapping relief and grounds. Again, to maintain consistency and avoid confusion (to the extent we can), we follow the trial court’s citation method. Their brief, filed two months after the twelve-part post-trial motion, exacerbates the confusion by not following the format of their post-trial motions and by raising new and different arguments in support of relief, while abandoning arguments raised in the post-trial motions.

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in support of their post-trial motions, as the trial court notes, Appellants do

not follow the order of issues raised in the post-trial motions. On pages 21-

34 of the brief, Appellants discuss the termination claims, they discuss the

“pervasive misconduct” claims on pages 35-37 of the brief, then return to the

termination issues on page 38-48 of the brief. See Brief, 12/22/22, at 21-40.

Moreover, while Appellants claim forty-eight instances of other improper

conduct by trial counsel as pervasive misconduct, they neither identify all

those instances nor cite any law to support their proposition that this conduct

merits a new trial. See id. at 35-37.

We agree with the trial court that Appellants waived their claim that

counsel engaged in pervasive misconduct based upon their failure to clearly

identify the specifics of their claim and where in the record they preserved the

claim, as well as their failure to support with citation to relevant legal

authority. See Trial Court Opinion, 10/2/23, at 45-46; see also Krauss,

supra.

Even if not waived, the pervasive misconduct claim would not merit

relief. Upon review of the record, we agree trial counsel consistently acted in

an aggressive, abrasive, and disrespectful manner to the trial court,

witnesses, and opposing counsel. However, such behavior does not

automatically entitle Appellants to a new trial, particularly where, as here,

Appellants’ counsel does not have clean hands. The record also shows

Appellants’ trial counsel also engaged in misconduct: making specious

- 21 - J-A08039-25

arguments, inaccurately claiming trial counsel was misstating events,

speaking over counsel, and basically also engaging in disrespectful conduct to

the court and opposing counsel. Moreover, as discussed supra and infra,

Appellants’ counsel continues to exaggerate, misstate the record, and

misinterpret the law both at oral argument and in their briefs.

The pervasive misconduct claim suffers two distinct deficiencies: lack of

organization and lack of merit. First, in their brief on appeal, as they did in

their post-trial motions, Appellants intertwine the deplorable conduct

argument with their distinct arguments on the termination misconduct issues

and only point to limited examples of counsel’s perceived misconduct. See

Appellants’ Brief at 35-44. However, through diligent examination of this

record, we have determined that Appellants attached to their post-trial

motions (which, again, are not included in their reproduced record), an exhibit

specifying each incident of counsel’s alleged misconduct. See Appellants’

Ninth Post-Trial Motion, 10/3/22, at Exhibit I.

Additionally, we have thoroughly scrutinized Appellants’ post-trial

motion, and despite Appellants’ vehement claims at oral argument, most of

the “pervasive misconduct” appears to be aggressive litigation tactics. For

example, the court admonished trial counsel for interrupting and/or talking

over witnesses, asking leading questions, making speaking objections, and

commenting on the evidence. See id. None of these behaviors rise to the

level of misconduct sufficient to compel the grant of a new trial, particularly

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where, as here, Appellants have made nothing more than an unsupported

allegation of prejudice. See Appellants’ Brief at 35; see also Eichman v.

McKeon, 824 A.2d 305, 319 (Pa. Super. 2003) (stating bald assertions of

prejudice will not be considered and do not provide a basis for relief). Thus,

even if not waived, this claim would not succeed.

Although intertwined and at moments indecipherable, we attempt to

disentangle the general “deplorable conduct” allegations from the

“termination” misconduct claims for clearer analysis. Appellants argue trial

counsel also committed misconduct by making inflammatory and

inappropriate references to HUP’s termination of Melendez’s employment and

taking “advantage of the similarity in names between the various corporate

entities to paint [Appellants] as [Melendez’s] employer and inject wrongfully,

wholly irrelevant termination issues into” this case. Appellants’ Brief at 36;

see id. at 35-44. Regarding the “termination” misconduct allegations,

Appellants contend counsel made inappropriate remarks during both his

opening and closing arguments which implied Melendez was employed and

terminated by Appellants, inappropriately questioned witnesses about her

termination, and used the word “fired” after the court had ordered him not to

use it. See id. at 36-37; 38-41; 44-48.

The trial court found Appellants’ claims relating to the termination

misconduct issue to be both waived and meritless. It explained Appellants

chose to contest the issue of whether Melendez was disabled, thus making the

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issue of her termination due to her disability relevant, and did not file any pre-

trial or written motions in limine seeking to preclude the use of the word “fired”

or to preclude evidence regarding Melendez’s employer and why it terminated

her. See Trial Court Opinion, 10/2/23, at 28-29. The court further notes

Appellants misstated the record. Despite Appellants’ contrary assertions the

trial record reflects: (1) there was no stipulation between the parties that

Melendez was unable to work; (2) Appellant did not contemporaneously object

to trial counsel’s opening statement and did not timely move for a mistrial;

(3) Appellants did not seek a mistrial or a curative instruction after the trial

court sustained an objection to a question regarding Melendez’s termination;

(4) the court never ordered trial counsel to cease using the word “fired” or

issued any other order which prohibited trial counsel from using a specific

word concerning Melendez’s termination;5 and (5) counsel for all parties and

____________________________________________

5 Our review of the record indicates trial counsel used the word “fired” twice,

once during opening statements and once during Dr. Quinn’s testimony. See N.T., 9/6/22 am session, at 101; N.T., 9/9/22, at 68. As the trial court stated, the record reflects there was no pre-trial or written motion in limine to preclude the use of the word “fired,” and no objection to the word “fired” following opening statements. See Trial Court Opinion, 10/2/23, at 28-29. Following Dr. Quinn’s testimony, during a conference outside the presence of the jury, trial counsel said that if the court wished, he would not use the word “fired” but instead say “terminated.” See N.T., 9/9/22, at 96. The court responded saying, “That’s fine. That’s all fair game.” Id. Trial counsel again reiterated he would not use the word “fired” going forward. Id. At the conclusion of the conference, the trial court summarized what had just occurred, including trial counsel’s agreement to not use the word “fired,” stating “Plaintiff is going to refrain from using the word ‘fired.’” Id. at 102. (Footnote Continued Next Page)

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various defense witnesses consistently referred to Melendez’s employer as

“Penn,” or “they.” Id. at 28-37, and n.12.

Our review of Appellants’ argument demonstrates Appellants’ use of the

“misconduct” language is, in essence, a veiled attempt to attack the

admissibility of the information regarding Melendez’s termination, which

Appellants continually claim was both irrelevant and prejudicial. See

Appellants’ Brief at 34-42, 44-48. However, Appellants failed to preserve any

such challenge below or in their Rule 1925(b) statement. See Trial Court

Opinion, 10/2/23, at 28-29; Appellants’ Rule 1925(b) Statement, 2/6/24, at

2.

Moreover, we agree with the trial court’s assessment that Appellants

chose to contest the issue of the degree of Melendez’s disability. See Trial

Court Opinion, 10/2/23, at 28-30; Expert Report of Dr. Phillip S. Dickey,

2/26/21, at 12-13; N.T., 9/9/22, at 101.

Appellants contend the trial court erred in denying their requests for a

mistrial because trial counsel made inappropriate references to Melendez’s

____________________________________________

Based on its statement in its 1925(a) opinion, the trial court did not consider this an order, and we agree with its interpretation, as it appears to be a stipulation, rather than a formal order. See Trial Court Opinion, 10/2/23, at 33. As we discuss infra, Appellants do not point to, and we have been unable to find any violations of this stipulation.

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termination both during opening6 statements and closing arguments.7 See

Appellants’ Brief at 37, 40-41. The trial court concluded Appellants waived

these claims because they did not make a timely request for a mistrial after

opening statements and never requested a mistrial at all after closing

arguments. See Trial Court Opinion, 10/2/23, at 30-31; 41-42.

Our review of the record supports the trial court’s findings concerning

Appellants’ failure to assert a timely objection to Melendez’s counsel’s opening

argument. Appellants did not object to the use of the word “fired” during or

____________________________________________

6 In their argument, Appellants fail to specify the objectionable statements made during opening argument, and do not cite to the record or the reproduced record regarding these statements, despite claiming the trial court’s waiver argument is incorrect. The trial court noted trial counsel stated that “Penn” fired Melendez because she was no longer able to do her job due to her disability. See Trial Court Opinion, 10/2/23, at 29; N.T., 9/6/22 am session, at 101. Trial counsel also made statements regarding Appellants’ lack of acceptance of responsibility. However, read in context, trial counsel was referring to Appellants not accepting responsibility for their medical errors, not for Melendez’s termination. See Trial Court Opinion, 10/2/23, at 30; N.T., 9/6/22 am session, at 90-91, 102.

7 During closing arguments, trial counsel made the following statements:

She was terminated by them because she can’t do any job. Did they march in one person to refute that, one witness to say that’s not true, we offered her this other desk job. She can do this or that. No. Why? Because she can’t. How big is Penn? If there is a job, they got it at Penn. Whether you’re sitting at the desk or you’re walking around, it's there. They didn’t offer her anything.

N.T., 9/20/22, at 63-64. In rebuttal closing argument, trial counsel concluded by arguing Appellants’ protestations of sympathy for Melendez were not genuine because, “[t]hey kicked her to the curb and now they dragged her through the mud. Don’t let them do this anymore.” Id. at 123.

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after trial counsel’s opening argument. See id. at 103. Thereafter, counsel

for both remaining defendants made their opening statements. See id. at

104-22. The trial court then excused the jury and asked counsel if there were

any issues. See id. at 122. Appellants still did not object or request a mistrial

based on the reference to Melendez’s firing. See id. at 123. The court then

recessed for lunch. See id. It was only after lunch that Appellants sought a

mistrial and even then, the basis of the motion was not an alleged improper

reference to Melendez’s firing, but to entirely separate remarks concerning

Appellants’ unwillingness to accept responsibility for their actions harming

Melendez. See N.T., 9/6/22 pm session, 4.

Additionally, Appellants did not object or move for a mistrial regarding

trial counsel’s remarks in his initial closing statement about HUP terminating

Melendez without offering her another position. See N.T., 9/20/22, at 64, 70-

71. Mo’s counsel then made a closing statement. See id. at 71-92. The

court recessed and discussed the verdict sheet with counsel, and counsel

again did not seek a mistrial. See id. at 92-96. Trial counsel for the other

defendant then gave a closing statement, and trial counsel delivered a rebuttal

statement to which Appellants again did not object. See id. at 96-123. The

court excused the jury for lunch. Again, upon return from lunch, Appellants

objected, but not to the specific term “fired” (because the word “fired” was

not used) or the use of that word versus “termination” in the closing. See id.

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at 124.8 The trial court asked if Appellants were moving for a mistrial and

they did not respond. See id. at 125-26. Following the lunch break, the

trial court informed the parties it was “going to give a curative instruction

when [the court gives] the jury charge.” Id. at 126-27. The court then

instructed the jury, as part of its jury charge, as follows:

[d]uring the course of the trial, you heard statements or comments regarding the plaintiff’s termination from her employment with the University of Pennsylvania. You heard it in the closing arguments[,] and I think you may have heard it in the opening arguments. I don’t want the jury to be confused. This is not a case against Penn as a corporate entity. This is not a case for wrongful termination. So that those comments or any evidence regarding that has nothing to do with those issues. This is a case about negligence for the two doctors that are part of this trial.

Id. at 140. Appellants did not object to the charge, request an additional

charge, or move for a mistrial. See id. at 143, 169.

It is settled law that a party “waive[s] its ability to ask for a new trial

. . . . ‘where the remedy sought was not timely pursued’.” Temple Estate of

Temple v. Providence Care Center, LLC, 233 A.3d 750, 760-61 (Pa. 2020)

(citation omitted) (discussing the history of the waiver rule regarding mistrials

and agreeing with trial court that appellant waived its ability to seek a new

trial in post-trial motions by failing to make a contemporaneous objection,

failing to make a request for a mistrial in response to a trial court’s question

regarding any additional matters, and failing to object to a trial court’s curative

____________________________________________

8 In that statement, counsel argued Melendez had been “kicked to the curb.”

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instruction). Nor is a party entitled to a new trial if it fails to make a

contemporaneous objection, fails to object to a trial court’s curative

instruction, and/or fails to move for a mistrial at all. Harman v. Borah, 756

A.2d 1116, 1126 (Pa. 2000) (affirming trial court’s denial of a request for a

mistrial as untimely, where appellants failed to contemporaneously object to

trial court’s action and waited for approximately one hour before requesting a

mistrial); Kaplan v. O’Kane, 835 A.2d 735, 739-40 (Pa. Super. 2003)

(holding trial court properly denied post-trial motion seeking a new trial where

appellee’s counsel made inappropriate remarks during closing statements, but

opposing counsel did not object until the following day and did not ask for a

mistrial at that time); Allied Elec. Supply Co. v. Roberts, 797 A.2d 362,

365 (Pa. Super. 2002) (reversing trial court’s grant of a mistrial on timeliness

grounds where appellant did not make a contemporaneous objection to a

witness’s testimony and did not move for a mistrial until after completion of

the witness’s direct, cross, re-direct, and re-cross testimony and waited until

the conclusion of a recess to ask for a mistrial). Thus, we agree with the trial

court that Appellants waived their claim that the trial court erred in not

granting a mistrial based on trial counsel’s opening and closing statements.

In the same vein, Appellants also contend they are entitled to a new

trial because trial counsel inappropriately questioned witnesses about

Melendez’s termination. See Appellants’ Brief at 40. This claim does not merit

relief.

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Initially, the only examples Appellants cite are a question asked to Dr.

Peter Quinn (“Quinn”), who testified as Chair of the Board of Clinical Care;

and questions to Melendez about whether her former employer had offered

her alternative employment. See id.

Quinn’s testimony largely concerned the corporate structure of the

University of Pennsylvania and Appellants’ claim of glitches in the computer

system. See N.T., 9/9/22, at 12-40, 59-66. Trial counsel asked Quinn if he

was aware Melendez had been “fired because she couldn’t do her job[.]” See

id. at 66. Appellants’ counsel objected and the trial court sustained the

objection; Appellants did not request a curative instruction or a mistrial. See

id. Trial counsel’s continued examination of Quinn occupies another five

transcript pages. Appellants did not ask for a curative instruction or a mistrial

at the close of trial counsel’s direct examination. See id. at 71. Appellants

then cross-examined Quinn. See id. at 71-80. Trial counsel then re-

examined Quinn. See id. at 80-86. The trial court dismissed the jury for

lunch and engaged in a discussion with counsel about various issues relating

to forthcoming witnesses. See id. at 86-91. At no point during this discussion

did Appellants request either a curative instruction or a mistrial. See id. It

was only after the luncheon recess that Appellants moved for a mistrial. See

id. at 91. After listening to argument, the trial court offered to give a curative

instruction, a request Appellants affirmatively rejected. The trial court denied

their request for a mistrial. See id. at 103.

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As noted previously, untimely requests for a mistrial waives the issue

on appeal. See Harman, 756 A.2d at 1126; Allied Elec., 797 A.2d at 365.

Further, concerning Melendez’s statement about her termination, Appellants

fail to specify the objectionable questions, do not cite to either the reproduced

or certified record as to where the testimony may be found, do not specify if

they objected to these questions, or asked for a curative instruction, or

requested a mistrial. They do not explain or clarify why these questions were

prejudicial and/or irrelevant to the issue of disability and damages, and do not

cite to any pertinent legal authority. Accordingly, Appellants waived this

claim. See Commonwealth v. Mulholland, 702 A.2d 1027, 1034 n.5 (Pa.

Super. 1997) (“In a record containing thousands of pages, this court will not

search every page to substantiate a party’s incomplete argument”).

Appellants’ final arguments that fall under the “termination” mis-

conduct category can be separated into two distinct claims: (1) trial counsel

took advantage of the similarity in names between Appellants’ employer and

Melendez’s employer to confuse the jury; and (2) referred to Melendez’s being

“fired” by Penn in contravention of the trial court’s order. See Appellants’

Brief at 37, 40, 44-47. We discuss these contentions separately.

We agree with the trial court’s assessment that all the parties referred

to various corporate entities making up the University of Pennsylvania as

“they,” “them,” or “Penn” without specifying to whom they were referring.

See Trial Court Opinion, 10/2/23, at 35-37 (citing the notes of testimony).

- 31 - J-A08039-25

But Appellants fail to assert anything more than a bald allegation that this

confused the jury or prejudiced them. See id. In his testimony, Quinn himself

described Penn as a corporate umbrella with different people working for

different entities. See N.T., 9/9/22, at 12-14.

As discussed supra, the trial court specifically instructed the jury that

Penn was not a defendant. It also gave clear instruction that this was not a

wrongful termination case, and the issue of Melendez’s termination was not

relevant with respect to the issue of negligence on the part of the doctors.

See N.T., 9/20/22, at 140. It is axiomatic that juries are presumed to follow

a trial court’s cautionary instruction. See Lewis v. Reading Hospital, 345

A.3d 257, 271 (Pa. Super. 2025). Here, Appellants have not demonstrated

the jury did not follow the court’s instruction.

Turning to trial counsel’s use of the word “fired,” as we note supra the

trial court stated that, at no point either prior to or during trial, did it order

trial counsel not to use the word “fired.” See Trial Court Opinion, 10/2/23, at

33-35. Instead, the record clearly shows, trial counsel, of his own volition,

agreed to use the word “terminated” after Appellants second objection to the

use of the word “fired”. See id. See also N.T., 9/9/22, at 96, 102. For all

intents and purposes, this amounts to a stipulation, not an order. Appellants,

while arguing otherwise, fail to point to any place in the record where trial

counsel used the word “fired” after verbally agreeing not to do so. See

Appellants’ Brief at 44-48. Instead, Appellant inaccurately suggests the trial

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court precluded not only the use of the word “fired” but any questions or

references to Melendez’s termination, that counsel repeatedly violated this

ruling, and “later apologized to the trial court for a similar violation.” Id. at

46, citing N.T., 9/20/22, at 129.

The record does not support Appellants’ representations. The discussion

Appellants cite occurred after the close of evidence, following closing

arguments, and outside the presence of the jury. During this post-trial

conference, the trial court admonished trial counsel for testing the limits of its

previous ruling on the general termination issue and counsel apologized. This

post-trial discussion was not related to the specific use of the word “fired” and

Appellants fail to cite where in the record trial counsel said the word “fired”

after agreeing to use the word terminated instead. See Appellants’ Brief at

44-48.

For the reasons discussed above, Appellants’ second issue concerning

pervasive misconduct by trial counsel and the termination issue are both

partially waived and/or do not warrant relief.

In their third issue, Appellants argue that the trial court gave a “jury

instruction” that was “akin to a spoliation charge.” See Appellants’ Brief at

49. This language is inaccurate and potentially misleading. Thus, to conduct

the appropriate legal analysis, we clarify some misapplications of concepts in

meaning, content, and timing to avoid any confusion.

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First, Appellants refer to the Court’s mid-trial instruction as a “jury

instruction” but given the context of the record this was clearly a cautionary

or curative instruction based on a previous evidentiary ruling the trial court

made regarding a discovery issue, not a “jury instruction” given by the trial

court after closing arguments but prior to jury deliberation. 9 Second, the

record clearly shows there was no spoliation jury charge, see infra, so

Appellant is not arguing that a spoliation jury instruction was improperly given

during the jury charge; rather, they argue the cautionary instruction given

mid-trial was like a spoliation jury instruction. Based on these clarifications,

we review the trial court’s cautionary instruction to the jury after witnesses

discussed evidence previously excluded by the trial court. Appellants’

challenge the denial of their motion for a new trial, claiming the trial court “in

the middle of trial and without basis ─ instructed the jury that [Appellants]

had improperly withheld documents from discovery.” Appellants’ Brief at 48;

see also Appellants’ Brief at 48-53. Appellants claim because “no document

was impermissibly withheld[,]” there was no fault, “rendering the instruction

improper.” Id.

____________________________________________

9 Our Supreme Court has stated the purpose of a jury charge “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) (citation omitted). By contrast, a cautionary instruction is a specific directive that alerts the jury to consider certain evidence only for a limited purpose, or to disregard particular information entirely. See 1 West’s Pa. Prac., Evidence § 123.

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Our ability to review this issue is hampered by the fact that neither the

trial court nor the parties give a clear chronology of the events surrounding

the discovery violation, the specific parameters of the trial court’s ruling with

respect to the issue, or the events leading up to the giving of the cautionary

instruction. See id.; see also Melendez’s Brief at 1-52; Trial Court Opinion,

10/2/23, at 49-55.

To the extent that we can determine from our review of the certified

record, the following occurred:

Following a March 2014 examination of Melendez by Mo, there was a

notation in Melendez’s chart stating she had neurological weakness. A critical

issue concerning that notation was whether Mo found a weakness or if the

notation resulted from a systemic, long-term software glitch, (“the weakness

glitch”), where the computer would arbitrarily move a notation of weakness

in one section of the chart to the neurology section.

On September 6, 2022, following jury selection and immediately prior

to the start of trial, trial counsel informed the court that, late the previous

afternoon, Appellants’ counsel provided him with a new defense exhibit: some

screenshots (“screenshots”) regarding the weakness glitch. See N.T., 9/6/22

am session, at 3-5. Trial counsel noted he had conducted extensive discovery

with respect to the weakness glitch, had never been given the screenshots,

and:

[n]ever had an opportunity to see [the screenshots] before. I don’t know who authored it. I obviously didn’t have an

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opportunity to question [at his deposition, Paul Maurer, an information systems specialist at Penn (“Maurer”)] about it. I obviously didn’t have an opportunity to question any witness about it. I have zero clue who created it. I don’t know when it was created.

Id. at 5. Appellants’ counsel conceded that they had not turned over the

screenshots until the previous day, claiming they had found them while doing

a Google search of Epic, the software vendor, (“Epic”), and wanted to cross-

examine Maurer with the screenshots. See id. at 6-7. Counsel further

claimed the screenshots were not generated by Penn but were just a sample

of an Epic medical record. See id. The trial court initially tabled the issue but

later returned to it. It noted it did not believe Appellants would be able to

authenticate the document. See id. at 67. The court ruled that it would not

permit admission of the screenshots because they were turned over at such a

late date and it had similarly barred trial counsel from introducing evidence

that was not turned over in a timely fashion. See id. at 67-68. Appellants’

counsel did not object to the ruling, and declared it was, “[f]air enough.” Id.

at 68.

Maurer, the Penn information systems specialist, was Melendez’s first

witness.10 See N.T., 9/6/22 pm session, at 11. During trial counsel’s direct

____________________________________________

10 It appears Maurer, although testifying in support of the defense case, testified during Melendez’s case-in-chief. While trial counsel did not specifically state it was calling Maurer as-of-cross or as a hostile witness, upon review of the record that accords with the tone of his testimony.

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examination, trial counsel elicited testimony Maurer was not hired by Penn

until two years after the chart note was created by Mo. See id. at 58. Trial

counsel then asked Maurer if he had any knowledge of how the Epic software

was configured in 2014. See id.11 Maurer began to discuss “screen prints”

from 2009 and 2015 which “showed how the Review of Systems was

configured.” See id. at 58-59. Trial counsel asked him to clarify if he had

screenshots relevant to the weakness glitch and where he had obtained them.

See id. Maurer said they were part of an e-mail chain he received. 12 See id.

at 59. Maurer testified he was unaware the screenshots had not been provided

to Melendez and equivocated about whether the screenshots corroborated his

testimony regarding the weakness glitch. See id. at 59-61, 85. Maurer also

admitted he had been in possession of the screenshots prior to his deposition

in January 2021.13 Id. at 63.

Following Maurer’s testimony, trial counsel stated he would be filing a

written motion for a spoliation instruction with respect to the screenshots.

____________________________________________

11 Appellants did not object to this question. See id.

12 Maurer later partially contradicted his initial testimony that the screenshots

were part of an e-mail chain, saying they might have been provided to him by Appellants’ counsel. See id. at 61.

13 Appellants’ counsel did not object to any of these questions. See id. at 59- 64.

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See id. at 96. The trial court asked the parties to brief the issue and stated

the court would decide the issue at the charging conference. See id.

The screenshot issue next arose during trial counsel’s direct examination

of Quinn.14 Immediately prior to Quinn’s testimony, trial counsel asked the

trial court to reiterate that the screenshots could not be mentioned or used

during Quinn’s testimony. See N.T., 9/9/22, at 4-5. The trial court again

stated the documents had not been produced during discovery and, therefore,

could not be used at trial. See id. at 5. Appellants’ counsel agreed they

would not use them. See id. at 5.

During direct examination, trial counsel asked Quinn a series of

questions regarding documentary proof of the weakness glitch, where Quinn

obtained the documents he relied upon both at his deposition and at trial, and

whether Quinn was aware of what documents had been provided to Melendez

in discovery, because Quinn signed multiple verifications of discovery

responses, including verifying answers in which Penn claimed they were not

in possession of requested information. See id. at 35-39.15 In response,

Quinn testified he met with Appellants’ counsel the day before his testimony

and immediately prior to his testimony, and they showed him unspecified

____________________________________________

14 Like Maurer, although testifying in support of Mo, trial counsel called him

during Melendez’s case-in-chief.

15 Appellants’ counsel did not object to any of the questions. See id.

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documents regarding the weakness glitch. See id. at 37-38.16 Counsel

again asked Quinn what documents supported his testimony regarding the

weakness glitch and Quinn mentioned the screenshots. See id. at 40.

A lengthy sidebar conference ensued. See id. at 40-57. During the

conference, one of Appellants’ attorneys admitted he had shown the

screenshots to Quinn that morning because counsel believed Quinn might be

shown the documents during his testimony. See id. at 43. Trial counsel

asserted Appellants’ counsel should not have done this because of the trial

court’s clear ruling that the screenshots were inadmissible. See id. at 43-44.

The attorney in question then claimed he had not been in court the previous

day and suggested he was unaware of the previous court ruling regarding the

exclusion of the documents. See id. at 44-45. The trial court stated this

issue had been discussed on two occasions and it had ruled the screenshots

were not to be referred to; the court indicated it was inclined to give a

cautionary instruction. See id. at 45-47. The trial court disagreed with

Appellants’ assertion Maurer’s and Quinn’s testimony regarding the

screenshots was not prejudicial. See id. at 50-57. Over Appellants’ objection,

the trial court gave the following cautionary instruction immediately following

the second violation of the trial court’s previous ruling:

[b]efore we left off, there was an objection. [The trial court is] sustaining that objection. Any testimony in regard to any screenshots are [sic] going to be stricken from the record and ____________________________________________

16 Again, Appellants’ counsel did not object to the line of questioning. See id.

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stricken from evidence in this case. The jury is to disregard this testimony or any testimony regarding screenshots. These documents were -- any documents in regards to this issue were supposed to be turned over by the defense to the plaintiff. They were not turned over. They’re not properly part of this case and not properly part of the evidence you need to consider.

As [the court] told you before we started this trial, the only evidence that you can consider is evidence that was admitted into evidence during the course of this trial, whether it’s testimony or it’s documents. These documents have not been admitted. They will not be admitted and are not part of this trial. So[,] you need not consider and you should not consider these documents.

[The trial court] may during the course of the trial or at the end of trial in my final charging instructions[,] address this issue further. So[,] for now, these documents should be out of your mind.

Id. at 57-58 (emphasis added).

This issue next arose at the charging conference where trial counsel

again requested a spoliation charge, and the trial court stated it would rule on

the request the following day. See N.T., 9/19/22 pm session, at 107-11. The

discussion resumed the following morning, and the parties stated they had

agreed to a stipulation being read to the jury regarding the screenshots, in

lieu of a spoliation jury charge. See N.T., 9/20/22, at 2-6, 30-31. During the

discussion, all parties agreed that screenshots were not turned over during

discovery and were the same screenshots testified to by both Maurer and

Quinn. See id. at 6, 30-31. Appellants’ counsel then read the following

stipulation to the jury:

The plaintiff and the defendants stipulate that the screenshots that Paul Maurer and Peter Quinn mentioned in their testimony do not

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corroborate Dr. Mo’s testimony that Dr. Mo entered “weakness” into the constitutional section and “weakness” repopulated into neurologic review of systems in the progress note.

Id. at 33. As a result of this stipulation, the trial court did not give a spoliation

instruction during its jury charge. See id. at 131-69. Moreover, Appellants

raised no objection. See id. at 169.

Appellants contend they are entitled to a new trial because the curative

instruction prejudiced them. See Appellants’ Brief at 48. Specifically,

Appellants fault trial counsel, claiming he elicited the testimony regarding the

screenshots, never identified any specific discovery requests he made for the

screenshots, and “conceded that the [screenshots] were not responsive to

any of [Melendez’s] discovery requests.” Id. Appellants maintain there “was

no substantive basis” for the cautionary instruction; “the timing of the

instruction” was not supported because Quinn’s testimony was not prejudicial;

and they were wrongly punished because trial counsel “orchestrated the

testimony with his questioning.” Id. at 49-50 (italics removed).

The trial court disagreed. It correctly noted, despite Appellants’

contentions, the cautionary instruction was not a spoliation charge because it

neither used the word “spoliation”, nor did it instruct the jury to draw an

adverse inference from Appellants’ actions. See Trial Court Opinion, 10/2/23,

at 49-50. The court further noted, in response to Appellants’ disputable claim

that trial counsel ultimately concluded the screenshots were not corroborative

of the weakness glitch, that Appellants based their claim on hindsight and not

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what was happening during trial. See id. at 54. The court concluded

Appellants failed to show they suffered any prejudice from the curative

instruction. See id. at 55.

We review a trial court’s denial of a motion for a new trial for a “clear

abuse of discretion” or “an error of law which controls the outcome of the

case.” Maya, 97 A.3d at 1224. Moreover,

[o]ur standard of review regarding jury instructions is limited to determining whether the trial court committed a clear abuse of discretion or error of law which controlled the outcome of the case. Error in a charge occurs when the charge as a whole is inadequate or not clear or has a tendency to mislead or confuse rather than clarify a material issue. Conversely, a jury instruction will be upheld if it accurately reflects the law and is sufficient to guide the jury in its deliberations.

James v. Albert Einstein Medical Center, 170 A.3d 1156, 1163–64 (Pa.

Super. 2017) (citation omitted). “Abuse of discretion may take one of three

forms. An abuse of discretion occurs only where the trial court renders a

judgment that is (1) manifestly unreasonable, arbitrary, or capricious; or (2)

fails to apply the law; or (3) was motivated by partiality, prejudice, bias, or ill

will.” Getting v. Mark Sales & Leasing, Inc., 274 A.3d 1251, 1259 (Pa.

Super. 2022) (citation and brackets omitted). Moreover, to obtain a new trial

a party must show “concrete, actual prejudice with regard to its ability to

defend the action.” Lockley v. CSX Transportation, Inc., 5 A.3d 383, 390

(Pa. Super. 2010). “Broad standards and bald assertions do not demonstrate

prejudice.” Moore v. Ericsson, Inc., 7 A.3d 820, 827 (Pa. Super. 2010).

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We begin the analysis by concluding that several of the arguments

raised by Appellants are not properly before us as they are irrelevant to the

issue of the propriety of the “jury instruction” (see clarification supra), and

are either not supported by the record or do not factor in Appellants’

concession that they failed to turn over documents in discovery, an issue they

conceded. See N.T., 9/6/22, at 3-7; N.T., 9/9/22, at 1-5; N.T., 9/20/22, at

1-6. Thus, we will not further discuss Appellants’ arguments that: (1)

Appellants turned over all documents in discovery, see Appellants’ Brief at

48; (2) trial counsel “never identified any discovery request to which the

alleged documents were responsive[,]” id.; and (3) trial counsel conceded

“the documents were not responsive to any of [Melendez’s] discovery

requests[,]” id.

As we turn to the issue of the trial court’s cautionary instruction, it is

not clear Appellants preserved the challenge to the cautionary instruction for

our review. In their Rule 1925(b) statement, Appellants contended, in part,

the trial court erred by giving a “spoliation or failure to produce evidence

charge.” Appellants’ Rule 1925(b) Statement, 2/6/24, at 2. However, in their

appellate brief, Appellants substantively modified this claim and assert the

mid-trial cautionary instruction was “akin” to a spoliation charge. Appellants’

Brief at 49. While it would be well within our remit to find Appellants waived

this claim, since the trial court was able to discern the issue and address it on

the merits, we will not find waiver in this instance.

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“‘Spoliation of evidence’ is the failure to preserve or the significant

alteration of evidence for pending or future litigation. When a party to a suit

has been charged with spoliating evidence in that suit . . . we have allowed

trial courts to exercise their discretion to impose a range of sanctions against

the spoliator.” Parr v. Ford Motor Co., 109 A.3d 682, 701 (Pa. Super. 2014)

(internal citations and some quotation marks omitted).

The doctrine applies where relevant evidence has been lost or destroyed. Where a party destroys or loses proof that is pertinent to a lawsuit, a court may impose a variety of sanctions, among them entry of judgment against the offending party, exclusion of evidence, monetary penalties such as fines and attorney fees, and adverse inference instructions to the jury. . . . [P]enalties for spoliation have been imposed since the early 17th century. The doctrine attempts to compensate those whose legal rights are impaired by the destruction of evidence by creating an adverse inference against the party responsible for the destruction.

Marshall v. Brown’s IA, LLC, 213 A.3d 263, 267 (Pa. Super. 2019) (internal

quotation marks and citations omitted).

Here, the trial court did not make a finding of spoliation and did not give

a spoliation charge. See N.T., 9/20/22, at 131-69. It gave a mid-trial

cautionary instruction after it excluded evidence as a sanction for a discovery

violation, and a second witness discussed the evidence despite the trial court’s

instruction that the information was excluded. The charge, quoted above,

never mentioned the word “spoliation” and did not direct the jury to make any

adverse inference against Appellant. See N.T., 9/9/22, at 57. It was a routine

cautionary instruction given to protect the record after two witnesses

discussed the excluded evidence. The trial court’s decision to give a

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cautionary instruction after a second witness discussed the screenshots the

trial court had excluded was not manifestly unreasonable, arbitrary, or

capricious. See Getting, 274 A.3d at 1259.

Further, the record demonstrates that, at the time of trial, Appellants

did not consider the charge to be a spoliation charge or “akin” to one. This is

demonstrated, as discussed above, by the discussion of whether Melendez

was entitled to a spoliation charge during the charge conference. See N.T.,

9/19/22 pm session, at 107-11. This is further confirmed by the fact that to

prevent the trial court from ruling on including a spoliation jury instruction,

the parties agreed to a stipulation regarding the screenshots, designed to cure

any lingering jury concerns regarding them. Appellants’ counsel read the

stipulation into the record immediately prior to the jury charge. See N.T.,

9/20/22, at 2-6, 30-33. The judge then charged the jury and clearly did not

give a spoliation charge or mention anything with respect to the screenshots.

See id. at 131-69. Appellants did not object to the charge. See id. at 169.

Lastly, Appellants did not provide any legal support for their argument

regarding the curative instruction. See Appellants’ Brief at 48-53. A party

must show “concrete, actual prejudice with regard to its ability to defend the

action.” See Moore, 7 A.3d at 827; Lockley, 5 A.3d at 390. Appellants make

nothing more than a bald allegation of prejudice. See Appellants’ Brief at 53.

Our review of the cautionary instructions shows no “clear abuse of discretion

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or error of law which controlled the outcome of the case.” James, 170 A.3d

at 1163–64. Appellants’ third issue lacks merit.

In their fourth issue, Appellants argue the verdict as to both liability and

damages was against the weight of the evidence.

We recognize:

The decision to grant or deny a motion for a new trial based upon a claim that the verdict is against the weight of the evidence is within the sound discretion of the trial court. Thus, the function of an appellate court on appeal is to review the trial court’s exercise of discretion based upon a review of the record, rather than to consider de novo the underlying question of the weight of the evidence. An appellate court may not overturn the trial court’s decision unless the trial court palpably abused its discretion in ruling on the weight claim. Further, in reviewing a challenge to the weight of the evidence, a verdict will be overturned only if it is so contrary to the evidence as to shock one’s sense of justice.

*****

A trial court’s determination that a verdict was not against the interest of justice is [o]ne of the least assailable reasons for denying a new trial. A verdict is against the weight of the evidence where certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice.

Tong-Summerford v. Abington Memorial Hospital, 190 A.3d 631, 659

(Pa. Super. 2018) (citations omitted).

When an appellant challenges the weight of the evidence with respect

to damages our Supreme Court has explained:

While a jury’s verdict and damages award are generally insulated from challenge, the grant of a new trial may be required to achieve justice in those instances where the original trial, because of taint, unfairness, or error, produces something other than a just and fair result, which is the principle goal of judicial proceedings. . . . [A]

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jury verdict may be set aside as inadequate when it appears to have been the product of passion, prejudice, partiality, or corruption, or where it clearly appears from uncontradicted evidence that the amount of the verdict bears no reasonable relation to the loss suffered by the plaintiff. Where the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice a new trial should be awarded. [The Court] cautioned that it was within the province of the jury to assess the worth of the testimony and to accept or reject the estimates given by the witnesses, and if the verdict bears a reasonable resemblance to the proven damages, it is not the function of the court to substitute its judgement for the jury’s. . . .

Mader v. Duquesne Light Company, 241 A.3d 600, 612-13 (Pa. 2020)

(citations omitted).

Appellants maintain the verdict is against the weight of the evidence

because the jury relied on Melendez’s “inadequate expert testimony and

unsupported speculations.” Appellants’ Brief at 54. Appellants argue the jury

should instead have credited their expert witnesses and discuss their

witnesses’ testimony in detail in their brief. See id. at 54-57.

The trial court found Appellants waived this claim because “the issue

stated in [the post-trial motion] is wholly different from the issue argued in

[the brief supporting it].” Trial Court Opinion, 10/2/23, at 65. 17 Our review of

the record supports this determination. In their eleventh post-trial motion,

Appellants argued the verdict was against the weight of the evidence because

____________________________________________

17Again, we note the time lag between the filing of the original post-trial motions and the briefing, as well as the numerous discrepancies between the motions and the briefs.

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there was no evidence showing Melendez had abnormal reflexes prior to late

2016. See Appellants’ Eleventh Post-Trial Motion, 10/3/22, at 24. However,

in their supporting brief, they claimed the jury should have credited their

experts’ testimony. See Brief, 12/22/22, at 49-52. It is settled that issues

raised in a post-trial motion must be briefed, and the failure to do so

constitutes waiver of the argument. See Jackson v. Kassab, 812 A.2d 1233,

1235 (Pa. Super. 2002) (en banc); see also Griffin v. Berdaoui, 260 A.3d

131 (Pa. Super. 2021) (unpublished memorandum at *5) (same). 18

Even if not waived, Appellants’ claim as to the verdict lacks merit. The

trial court explained it was neither surprised nor shocked by the verdict. See

Trial Court Opinion 10/2/23, at 67. As noted, it was for the jury as finder of

fact to weigh the credibility of experts, and the jury chose to credit Melendez’s

experts rather than Appellants’. See id. at 67-68.

Our review demonstrates the record supports the trial court’s analysis.

The court did not “palpably abuse its discretion” in denying Appellants’ weight

of the evidence claim with respect to the verdict. See Tong-Summerford,

190 A.3d at 659.

In their second argument in support of their weight claim, Appellants

contend the award of damages was excessive and against the weight of the

____________________________________________

18 See Pa.R.A.P. 126(b) (unpublished non-precedential memoranda decision

of Superior Court filed after May 1, 2019, may be cited for persuasive value).

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evidence. However, as noted above, an issue that is not specifically raised in

a post-trial motion is waived. See National Brokers of America, Inc. v.

Jordan, 307 A.3d 1206, 1218 (Pa. Super. 2023). Here, Appellants did not

raise this issue in their post-trial motion, and the trial court did not address it

in its opinion. See Appellants’ Eleventh Post-Trial Motion, 10/3/22, at 24-

25.19 While Appellants did raise the issue in their brief in support of post-trial

motions, see Brief, 12/22/22, at 52, that is insufficient to preserve the issue.

See Fletcher-Harlee Corp. v. Szymanski, 936 A.2d 87, 102 (Pa. Super.

2007) (holding issues raised only in the brief supporting a post-trial motion

cannot be considered on appeal). Thus, Appellants waived this claim.

Moreover, even if not waived below, Appellants’ argument on this issue,

consisting of five conclusory sentences asserting excessiveness, is

undeveloped. See Appellants’ Brief at 57-58. Appellants neither cite to the

record nor to any legal authority in support of their argument. See id. Thus,

the issue is waived for this reason as well. See In re R.D., 44 A.3d 657, 674

(Pa. Super. 2012) (“[I]t is an Appellants’ duty to present arguments that are

sufficiently developed for our review. The brief must support the claims with

pertinent discussion, with references to the record and with citations to legal

____________________________________________

19 Appellants do not cite to any place in the record where they preserved this

issue, and it is not this Court’s responsibility to attempt to locate it amid Appellants’ numerous and discursive post-trial motions.

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authorities.”) (citation omitted). Appellants’ fourth issue is both waived and

meritless.

In their fifth and final issue, Appellants contend the trial court erred in

denying their request for remittitur and/or granting a new trial on that basis.

See Appellants’ Brief at 59-61.

We begin with our well-settled standard of review:

Our standard of review in considering the reversal of a trial court’s order denying a remittitur is to determine whether the trial court abused its discretion or committed an error of law in reaching such decision. . . .

The grant or refusal of a new trial because of the excessiveness of the verdict is within the discretion of the trial court. This court will not find a verdict excessive unless it is so grossly excessive as to shock our sense of justice. We begin with the premise that large verdicts are not necessarily excessive verdicts. Each case is unique and dependent on its own special circumstances and a court should apply only those factors which it finds to be relevant in determining whether or not the verdict is excessive. A court may consider the following factors, inter alia:

(1) the severity of the injury; (2) whether the Plaintiff’s injury is manifested by objective physical evidence or whether it is only revealed by the subjective testimony of the Plaintiff (and, herein, the court pointed out that where the injury is manifested by broken bones, disfigurement, loss of consciousness, or other objective evidence, the courts have counted this in favor of sustaining a verdict); (3) whether the injury will affect the Plaintiff permanently; (4) whether the Plaintiff can continue with his or her employment; (5) the size of the Plaintiff’s out-of-pocket expenses; and (6) the amount Plaintiff demanded in the original complaint.

Spencer v. Johnson, 249 A.3d 529, 572 (Pa. Super. 2021) (internal citation

omitted).

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Initially, the only request for remittitur preserved for appeal is a claim

regarding future noneconomic loss. See Motion for Remittitur, 10/3/22, at

29-30; Brief, 12/22/22, at 49-50. To the extent Appellants challenge the

remainder of the damages award, they waived the claim because it was not

raised in their post-trial motion. See National Brokers of America, Inc.,

307 A.3d at 1218.

Moreover, concerning Appellants’ challenge to the award of non-

economic damages, their argument consists of boilerplate language on

excessive damages, and multiple citations to unpublished memoranda issued

prior to May 2, 2019. See Appellants’ Brief at 59-61. As such reliance violates

Superior Court O.P. 65.37(B) (providing that, with exceptions inapplicable

here, unpublished memorandum decisions filed prior to May 2, 2019 “shall not

be relied upon or cited by a Court or a party”), we shall not consider them.

Appellants fail to discuss the evidence adduced at trial, fail to apply the cited

six-part test quoted above, and instead rely on unsupported assumptions

about the jury’s reasoning, use conclusory language, and do not cite to any

appropriate supporting authority. See id. When an appellant cites no

authority supporting an argument, this Court is inclined to believe there is

none. See Pa.R.A.P. 2119(a) and (b) (requiring an appellant to discuss and

cite pertinent authorities); Commonwealth v. Antidormi, 84 A.3d 736, 754

(Pa. Super. 2014) (finding issue waived because the appellant “cited no legal

authorities nor developed any meaningful analysis”).

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Even if not waived, Appellants’ claim would not merit relief. The trial

court delineated the extent of the injuries suffered by Melendez, which

included chronic pain, urinary and fecal incontinence, inability to walk without

assistance, frequent falls, and pain and pressure on other joints because of

her unnatural gait. See Trial Court Opinion, 10/2/23, at 72. The court noted

Melendez went from being independent in all aspects of her life to needing

assistance with all activities of daily living, suffered a diminished social and

family life, and is mostly confined to her home. See id. Under these

circumstances, the court found the adjusted $9,321,666.98 award for

noneconomic damage was not excessive and did not shock its conscience.

See id.

We have thoroughly reviewed the record and the law and discern no

abuse of discretion on the part of the trial court. As this Court stated in

Spencer:

[I]t merits emphasis that large verdicts are not necessarily excessive verdicts, and each case is unique and dependent on its own special circumstances. . . . [The plaintiff] suffered catastrophic injuries as a result of the accident at issue and is wheelchair bound with additional loss of function of his right arm, unable to attend to his basic daily needs, and now suffers from recurring seizures and incontinence. Furthermore, according to [a medical expert], [the plaintiff] will require admission at an acute care facility for the rest of his life, he will need one-on-one supervision for the rest of his life, and he will require ongoing consultations with doctors over a variety of specialties during the course of his life. [The plaintiff] will also need ongoing medication, physical and cognitive therapies, a security system, a brain injury support day program, and testing. Lastly, it is obvious [he] can no longer maintain employment at the bank in which he previously worked . . ..

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*****

[Defendants] opted to not call their own medical expert [to testify on life care planning, [while plaintiff] did present the testimony of life care planning expert[.] . . . The jury was free to believe or reject this expert testimony. Here, it obviously credited [plaintiff’s] expert testimony.

*****

Accordingly, in light of the testimony offered by [plaintiff’s experts] the jury’s award is supported by the record and not excessive, arbitrary or unreasonable in relation to the evidence adduced at trial. Therefore, we conclude the trial court did not erred in denying the request for a remittitur.

Spencer, 249 A.3d at 574-75 (record citations and citations omitted).

Here, as in Spencer, Melendez suffered permanent, catastrophic injury.

She is unable to walk without a walker, falls frequently, has both urinary and

fecal incontinence, is in constant pain, and needs assistance with all activities

of daily living. She is unable to return to her former job. Melendez testified

at trial that she uses Meals on Wheels for food and needs a home health care

aide daily. See N.T., 9/16/22 pm session, at 14-15. She has problems

walking and cannot navigate stairs. See id. at 15-16.

At trial, Nadine Taniguchi, a nurse life care planner, testified Melendez’s

life expectancy was approximately twenty-eight years. For the remainder of

her life, Melendez will require medical supervision, various types of therapy,

medication, medical supplies and equipment, in-home care providers, and will

need to modify her housing. See Trial Exhibit 30b p. 6. Appellants elected

not to call their life care planner or any other expert with respect to damages.

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Given the above, the jury’s award for non-economic damages “is

supported by the record and not excessive, arbitrary or unreasonable in

relation to the evidence adduced at trial.” Spencer, 249 A.3d at 575. Thus,

even if not waived, Appellants’ fifth and final claim would not merit relief.

For the reasons discussed above, we affirm the judgment in this matter.

Judgment affirmed.

President Judge Lazarus files a concurring memorandum, in which

Judge McLaughlin joins.

Judge McLaughlin concurs in the result of this memorandum.

Date: 9/11/2026

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