Onyshko, M. v. National Collegiate Athletic

• Court: Superior Court of Pennsylvania
• Decided: January 8, 2021
• Docket: 1611 WDA 2019
• Status: Unpublished

Opinion

J-A20019-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MATTHEW ONYSHKO AND JESSICA : IN THE SUPERIOR COURT OF ONYSHKO, HIS WIFE : PENNSYLVANIA : Appellants : : : v. : : : No. 1611 WDA 2019 NATIONAL COLLEGIATE ATHLETIC : ASSOCIATION :

Appeal from the Judgment Entered October 21, 2019 In the Court of Common Pleas of Washington County Civil Division at No(s): 2014-3620

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

MEMORANDUM BY OLSON, J.: FILED JANUARY 08, 2021

Appellants, Matthew Onyshko and Jessica Onyshko, appeal from the

judgment entered on October 21, 2019, in favor of the defendant, the National

Collegiate Athletic Association (“the NCAA”). We affirm.

On June 27, 2014, Appellants filed a complaint against the NCAA. The

complaint, which sounded in negligence, alleged and averred the following.

“Plaintiff Matthew Onyshko was a student at California University of

Pennsylvania and played college football from 1999-2003. During his

[five-year] collegiate football career, he experienced numerous repeated

blows to the head. On three specific occasions, he lost consciousness for at

least [30] seconds.” Appellants’ Complaint, 6/27/14, at ¶ 13. “After

graduation, Mr. Onyshko progressively experienced frequent severe

headaches, numbness, twitching, muscle atrophy, fatigue, loss of mobility, J-A20019-20

slurred speech, difficulty swallowing, weakness and other neurological

symptoms.” Id. “Mr. Onyshko was recently diagnosed with a progressive

brain and spinal cord injury with ALS-like symptoms caused by repeated head

trauma during his college football career in the NCAA.” Id.

“The NCAA has known or should have known for many years . . . that

football players who sustain repetitive head impacts while playing the game

have suffered and continue to suffer brain injuries that result in any one or

more of the following conditions: early-onset Alzheimer’s Disease, ALS [],

dementia, depression, deficits in cognitive functioning, reduced processing

speed, attention, and reasoning, loss of memory, sleeplessness, mood swings,

personality changes, and the debilitating and latent disease known as Chronic

Traumatic Encephalopathy (‘CTE’).” Id. at ¶ 36. “Despite this knowledge,

the NCAA failed to act reasonably by developing appropriate means to identify

at-risk players and guidelines or rules regarding return to play criteria. The

NCAA’s inaction prior to 2003 increased the risk of long-term injury and illness

in student-athletes, including” Mr. Onyshko. Id. at ¶ 40. Further, the NCAA

has repeatedly recognized that it has “a duty to care and protect the

well-being of” student-athletes such as Mr. Onyshko – and Mr. Onyshko “relied

on the NCAA to disclose relevant risk information and protect his health and

safety.” Id. at ¶¶ 26 and 38.

Appellants’ first count alleged that the NCAA breached its duty of care

to Mr. Onyshko by doing such things as: “failing to educate [Mr. Onyshko]

concerning symptoms that may indicate a concussion has occurred;” “failing

-2- J-A20019-20

to warn [Mr. Onyshko] of the risk of unreasonable harm resulting from

repeated concussions;” “failing to disclose to [Mr. Onyshko] the special risks

of long-term complications from repeated concussions and return to play;”

“failing to disclose to [Mr. Onyshko] the role of repeated concussions in

causing chronic life-long cognitive and neurological decline;” “failing to

promulgate rules and regulations to adequately address the dangers ot [Mr.

Onyshko] of repeated concussions and failing to implement a return-to-play

policy to minimize long-term chronic cognitive and neurological problems for

which [he] was at an increased risk;” “misrepresenting pertinent facts that

[Mr. Onyshko] needed to be aware of to make determinations of the safety of

return to play;” “concealing pertinent facts necessary for [Mr.Onyshko] to

make an informed decision about participating in football;” “failing to adopt

rules and reasonably enforce those rules to minimize the risk of [Mr. Onyshko]

suffering debilitating concussions;” and, “increasing the risk of harm to [Mr.

Onyshko].” Id. at ¶ 63 (some capitalization omitted). Appellants’ second

count claimed that Plaintiff Jessica Onyshko suffered loss of consortium due

to the NCAA’s negligent conduct. Id. at ¶¶ 68-69.

The case proceeded to a jury trial on May 3, 2019. On May 23, 2019,

the jury returned its verdict in favor of the NCAA. Specifically, the jury

concluded that the NCAA was not negligent. N.T. Trial, 5/23/19, at 2851. The

trial court denied Appellants’ post-trial motion on October 1, 2019 and, on

October 21, 2019, judgment was entered on the verdict. Appellants filed a

timely notice of appeal and now raise four claims to this Court:

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1. Whether the trial court erred by not complying with Washington County Local Rule 221 in relation to the parties’ exercise of peremptory challenges?

2. Whether the trial court erred in precluding expert opinion evidence in relation to CTE-ALS and/or CTME, their etiology, and state-of-the-art knowledge concerning these conditions?

3. Whether the trial court erred in admitting the testimony of Dr. William Biddington when his testimony was not based on personal knowledge?

4. Whether the trial court erred in admitting evidence relating to the actions of California University of Pennsylvania?

Appellants’ Brief at 4 (some capitalization omitted).

We have reviewed the briefs of the parties, the relevant law, the certified

record, the notes of testimony, and the opinion of the able trial court judge,

the Honorable Michael J. Lucas. We conclude that Appellants are not entitled

to relief in this case, for the reasons expressed in Judge Lucas’ October 1,

2019 opinion. Therefore, we affirm on the basis of Judge Lucas’ thorough

opinion and adopt it as our own. In any future filing with this or any other

court addressing this ruling, the filing party shall attach a copy of Judge Lucas’

October 1, 2019 opinion.

Judgment affirmed. Jurisdiction relinquished.

-4- J-A20019-20

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/08/2021

-5- Received 11/21/2019 4:28:00 PMCirculated Superior Court 12/07/2020 Western 10:32 District AM

Filed 11/21/2019 4:28:00 PM 1-14,Superior Court Western District X4SC.- 1//c., 1611 WDA 2019

IN THE COURT OF COMMON PLEAS OF WASHINGTON COUNTY, PENNSYLVANIA CIVIL DIVISION

MATTHEW ONYSHKO and JESSICA ONYSHKO,

PLAINTIFFS, VS. NO. 2014-3620

NATIONAL COLLEGIATE ATHLETIC eINTRY OF OPINION, c RDE , DECRE ASSOCIATION, A.DJUDICATION OR JUDGMENT FM !IAMBI) / 0-1- I DEFENDANT.

OPINION AND ORDER ADDRESSING POST-TRIAL MOTIONS

At issue are the post-trial motions of the Plaintiffs, Matthew and Jessica

Onyshko (Onyshko's), who challenge multiple rulings of this trial court. On June

27, 2014, Mr. Onyshko, a former California University of Pennsylvania football

player who is afflicted with Amyotrophic Lateral Sclerosis (ALS), filed this

negligence action against the National Collegiate Athletic Association (NCAA).

He and his wife allege that repetitive head trauma, Mr. Onsyshko sustained while

playing college football, is a factual cause of his diagnosed ALS and related

symptoms. On May 23, 2019, following a trial that spanned four weeks, a jury

determined that the NCAA was not negligent.

11Page The Onyshko's filed timely post-trial motions that assert multiple' grounds

for relief. They specified the following errors:

1. The exclusion of testimony and evidence regarding CTE 2, related

scientific and medical literature to include the opinions of Dr. Bennet

Omalu that Mr. Onyshko's future autopsy will reveal that he has suffered

CTE and that he has a presumptive diagnosis of CTE-ALS and/or

CTME;

2. Permitting the NCAA to offer evidence of the athletic training practices

of California University of Pennsylvania during the years 1999 to 2003,

to include allowing the testimony of Dr. William Biddington;

3. The denial of Frye challenges to the testimony and opinions of the

NCAA's medical experts Dr. Robert Hargbaugh and Dr. Stanley Appel;

4. The failure to provide any agency, non-delegable duty and "heeding

presumption" instructions to the jury;

5. Not granting the Onyshko's directed verdict motion concerning the

NCAA's assumption of the risk defense and not providing a "no

assumption of the risk" jury instruction;

The Onyshko's motion detailed seven errors, however, in their brief and at argument they also contended that the process of jury selection was flawed, non-compliant with Wash L.R.C.P. 221 and deprived them of a fair and unbiased panel. 'Chronic Traumatic Encephalopathy. 21Page 6. Not permitting the Onyshoko's leave to present deposition testimony of

Mr. Onsyhko's college teammates;

7. Not declaring a mistrial after the closing argument of the NCAA and/or

failing to provide limiting instructions regarding arguments which

introduced facts not evidence; and

8. Conducting jury selection contrary to Wash L.R.C.P. 221 and depriving

the Onyshko's of a fair and unbiased jury panel.

The Onyshko's seek a new trial.

POST-TRIAL MOTIONS NEW TRIAL STANDARD

In order to obtain a new trial, however, the moving party must demonstrate

in what way trial error caused an incorrect result. Clack v. Commonwealth of Pa..,

Dept of Transp,, 710 A.2d 148 (Pa.Cmwlth.1998). To determine whether a

Plaintiff is entitled to a new trial follows a two step process. First, a court must

decide whether one or more mistakes occurred at trial. Harman ex rel. Harman v.

Borah, 562 Pa. 455, 756 A.2d 1116 (2000). Second, if a mistake occurred, a court

must determine whether the mistake is a sufficient basis for granting a new trial.

Com., Dept of Gen. Servs. v. U.S. Mineral Products Co., 927 A.2d 717, 723

(Pa.Cmw1th. 2007), affd, 598 Pa. 331, 956 A.2d 967 (2008). Further, post-trial

relief may not be granted unless the grounds therefore were raised at trial. Pa.

Wage R.C.P. 227.1(b)(1), supra, post-trial relief may not be granted unless the motion

states how the grounds for relief were asserted at trial. Bennyhoff v. Pappert, 790

A.2d 313, 317 (Pa. Super. 2001)

EXCLUSION OF CTE EVIDENCE - FRYE

This trial court's April 12, 2019 Opinion and Order addressed, at length, a

Frye challenge to Dr. Bennet I. Omalu, a board certified anatomic, clinical,

forensic and neuropathologist who also holds a Master Degree in Public Health in

Epidemiology. 3 The 23 page Opinion and Order is incorporated by reference

herein.

To reiterate briefly, in a May 26, 2016 report, Dr. Omalu indicated that Mr.

Onyshko's exposure to repetitive blunt force traumas and blows of the head while

playing college football was a "significant contributory factor" to his development

of symptoms and a "presumptive diagnosis" of ALS. Dr. Omalu further offered

that based on his prior experience and discovery of CTE in football players, "if and

when" Mr. Onyshko dies, Dr.Omalu's examination will reveal a "definitive

diagnosis of CTME."4 Dr. Omalu then concluded that Mr. Onyshko is suffering

from CTME or CTE-ALS. (See Ex. D, p. 6 of Plaintiff's Brief in Opposition to

NCAA Motion to preclude testimony of Dr. Omalu)

Dr. Omalu's qualifications are extraordinary and well demonstrated that he has led the field in CTE research. Chronic Traumatic Myelo-Encephalopahty. Wage Where a party seeks to introduce novel scientific evidence, Frye requires

that party, the proponent, to "demonstrate to the trial court that the relevant

scientific community has reached general acceptance of the principles and

methodology employed by the expert witness before the trial court will allow the

expert witness to testify regarding his conclusions. Stange v. Janssen Pharm., Inc.,

179 A.3d 45, 53-54 (Pa. Super. 2018), reargument denied (Mar. 16, 2018) and

Betz v. Pneumo Abex, LLC, 615 Pa. 504, 547, 44 A.3d 27, 54 (2012).

In this instance, the Frye hearing record did not permit this trial court to

conclude that Dr. Omalu utilized a generally accepted methodology for the

diagnosis of CTME or CTE-ALS in Mr. Onyshko, a living person. Dr. Omalu did

not testify at the Frye hearing. The Onyshko's offered no testimony from its

other experts that supported Dr. Omalu's methodology for diagnosing CTE in the

living. The reports and scientific articles presented by the Onyshko's confirmed

the testimony of Dr. Stanley Appel that CIE is an autopsy diagnosis. According to

Plaintiff's expert Dr. Julie Scwartzbard, a neurologist whose report included a

review of 53 scientific articles concerning ALS and its causal link to repetitive

head trauma, "predictions" of C lh pathology are "moot" because pathology is not

available. The studies and peer reviewed articles, cited by Dr. Schwartzbard, well

5IPage established, that in the aggregates: there is a lack of large scale clinicopathologic

studies and consensus regarding diagnostic criteria for CTE in a living person; that

identifying biomarkers to aid in the pre-mortem diagnosis of CIE remains a work

in progress and that an "in vivo" diagnosis of CTE is not considered accurate or

reliable. 6

The Plaintiffs' claim that this trial court's Frye ruling precluded them from

explaining the true mechanism of Matthew Onyshko's injury. Factually, the trial

record does not support this assertion. At an April 25, 2019 evidentiary argument,

this trial court ruled "...I'm not going to eliminate references to materials that

experts relied upon simply because they mention the word CTE." (H.T. 4/25/19 p.

41 lines 22-24)7 Consistent with this ruling, this trial court permitted the

s An expert witness may rely upon scientific literature "in the aggregate" to support the existence of a causal relationship. See Walsh, 191 A.3d 847-848 6 See pages 20-22 of this trial court's 4/12/19 Opinion and Order. See also p. 5465 to S466 of Ex. T to Plaintiffs Brief in Opposition to Defendant NCAA's Motion to Preclude, a portion of an article entitled "Long-term Consequences of Repetitive Brain Trauma: Chronic Traumatic Encephalopathy" which included as authors Dr. Robert Cantu, a testifying expert for the Onyshko's and Dr. Ann McKee of Boston University. The article included the following comment" ...it should not be surprising that many critical questions remain regarding CTE. These questions include...How can CTE be detected and diagnosed accurately during life?" 7Counsel for the Onyshko's understood the distinction this trial court drew and well articulated it in argument. Counsel summarized: So at least when you were talking, Your Honor, you were saying you were concerned about the label. It sounded like you were saying originally about the breadth of studies, that they overlap, talk about neurodegenerative diseases in general, but what I understand you to be doing is saying we can't say Matt Onyshko is or should be diagnosed with CTE, but you're not precluding all the historical studies and discussions about neurodegenerative disease that include CTE. See H.T. 4/25/19 p. 57 Lines 6-16. Wage Onyshko's to offer extensive argument and evidence regarding the mechanism of

Mr. Onsyhko's injury. At a sidebar regarding scientific literature to be discussed

as part of Dr. Omalu's testimony, this trial court reiterated:

We haven't sanitized this trial of everything regarding CTE. I'm trying to keep it so it doesn't become the focus of this trial because it shouldn't be, but there is a crossover in the science, and in that particular article, they reference both CTE and ALS in the same sentence.

(T.T. 5/8/19, p. 781 lines 9-15).

The Onyshko's were permitted to offer evidence concerning repetitive

trauma in football to include concussive and sub-concussive impacts and their

causal relationship to the development of long-term neurodegenerative disease.

The following is a list of some but not all of the argument and evidence the

Onyshko's offered regarding the mechanism of Mr. Onsyshko's injury:

a) In opening statement to argue that the NCAA's Chief Medical Officer

Brian Hainline's statement that ALS and CTE are both

neurodegenerative diseases and there is a link between football and

degenerative brain disorders like CTE and ALS. (See T.T. 5/3/19 p. 41-

42);

b) In opening to refer to Dr. Hainline's testimony regarding repetitive

impacts on the brain of a football player and to argue "That's why we

7IPage have 52 NFL players with ALS. That's why we have Matt Onyshko with

ALS." (See TT 5/3/19 p. 43 lines 9-21);

c) In opening to share with the jury in great detail the impact repetitive head

trauma, including but not limited to subconcussive blows from football,

cause the human brain (TT. 5/3/19, p. 68-74, 79-88,);

d) To utilize an animation during the testimony of Dr. Julie Schwartzbard to

demonstrate the mechanism of injury Mr. Onyshko sustained (T.T. 5/7/19

p. 454-473);

e) To cite scientific studies and peer reviewed articles that demonstrate a

link between trauma and ALS (T.T. 5/7/19 p. 474-486);

f) To present expert opinions that playing college football increases the risk

of ALS and did so for Mr. Onyshko (T.T. 5/7/19 p. 486 lines 17-19, 500

lines 18-20, TT 5/8/19 p. 852-853);

g) To provide a historical summary starting with Hippocrates in 400 B.C.

regarding "the knowledge about neurodegenerative disease and repetitive

head trauma" that included references to "commotion cerebri,"

concussion, "punch drunk syndrome," "dementia pugilistica," ALS, and

Parkinson's Disease, motor neuron disease, and chronic traumatic

encephalopathy (CTE) and the reasonableness of the NCAA' s response

Wage to such information; (T.T. 5/8/19, p. 802-815, T.T. 5/9/19 p.1039-1041,

and 1044-1049);

h) To discuss scientific literature that addressed the impact of repetitive

head injury and "what happens to the brain and spinal cord as a result" to

include pathology findings of TDP-43 (mis-folded) and abnormal Tau

proteins pathology (T.T. 5/7/19 p. 486-492, 5/8/19 p. 762 Lines 17-25,

p.817 line 16 — 819 line 14, p. 822- 825, and 839 lines 6-24);

i) To offer expert opinion concerning repetitive head trauma, an ensuing

"prion like process" and the development of neurodegenerative diseases

(T.T. 5/7/19 p. 522-526);

j) To offer expert opinion testimony concerning the mechanism of a

concussion for a football player and the permanent damage caused to the

brain (T.T. 5/9/19, p. 1000-1003);

k) To offer expert opinion that concussions increase the risk of long-term

neurodegenerative disease (T.T. 5/9/19, p. 1028);

I) To offer expert testimony explaining the difference between concussive

and sub-concussive hits (T.T. 5/9/19, p. 1029);

m) To offer evidence as to the number of sub-concussive blows a college

football player encounters in an average season (T.T. 5/9/19, p. 1029);

Wage n) To discuss studies that found post-mortem evidence of Clh, in athletes

who never reported having a concussion during their lifetime (T.T.

5/9/19, p. 1030-31);

o) To explain that sub-concussive blows cause metabolic and structural

changes in the brain (T.T. 5/9/19, p. 1031 lines 8-12);

p) To offer expert opinion that the NCAA failed to educate, supervise and

protect Mr. Onyshko and other athletes to know, understand and

appreciate the risks of repetitive head impacts (T.T. 5/9/19, p. 1076-1077

and 1163-1164);

q) To cross-examine defense experts with regard to CTE resulting from

recurrent blows to the head, that Dr. Omalu was awarded a medal from

the AMA for his work on chronic traumatic encephalopathy and with

regard to literature establishing a causal link between concussions and

later in life neuropathologies to include Cl'E and ALS (T.T. 5/13/19, p.

1474-1478, 1481, and 1483, T.T. 5/16/19 p. 2077-78, 2086-2089, and

2093-2094);

r) To impeach defense experts with the use of scientific articles that

described the "molecular cascade" that results in ALS (T.T. 5/13/19, p.

1484);

10IPage s) To offer rebuttal that included expert testimony that the repetitive nature

of trauma to Mr. Onyshko's brain and spine put him at a higher risk of

developing neurodegenerative diseases like ALS (T.T. 5/20/19, p. 2287-

2290); and

t) To make closing arguments that discussed the higher incidence and

increased risk of neurodegenerative disease in football players, the

increased markers of neuronal and axonal Tau injury in non-concussed

athletes as revealed through many studies and scientific papers (T.T.

5/22/19 p. 2682-2698).

Clearly, the trial was not sanitized of all references to CTE. As the above cited

portions of the trial transcript indicate, the Onyshko's had a full and fair

opportunity to present their evidence regarding the "state of the art", the NCAA's

alleged negligence, the mechanism of injury to Mr. Onyshko and expert opinions

regarding the cause of Mr. Onyshko's ALS.

The Onyshko's presently assert that the limits this trial court placed on CTE

evidence hampered Dr. Omalu in responding to cross-examination that confronted

him with "Fact Sheets" from the CDC, Cleveland Clinic and the NIH. However,

the Onyshko's did not object to the use of such "Fact Sheets." (H.T. 5/8/19 p. 873

lines 16-25, p. 877 lines 1-23, 885-886) Second, on cross-examination, Dr. Omalu

explained that a 2016 paper published by the NIH established the "work" he had 11IPage done regarding the link between physical trauma and neurodegenerative diseases

that included ALS. (H.T. 5/8/19, p. 890) Third, on re-direct of Dr. Omalu, the

Onyshko's made no proffer of the 2016 NIH article or other CDC publications that

the Onyshko's now contend address MB, and support Dr. Omalu's testimony. (See

H.T. 5/8/19, p. 921-924) 8

Under these circumstances, the Onyshko's claims appear undeveloped,

waived and lacking a specific proffer. As Justice Wecht recently commented:

Trial lawyers waive claims, objections, and issues all the time, and do so upon all sorts of rationales. 14 These waivers may occur for countless strategic or tactical reasons, or may be based upon intervening developments in the trial record, or may reflect simple inadvertence or error. Our trial courts must be free to accept such unequivocal statements of counsel as consequential and binding.

Jones v. Ott, 191 A.3d 782, 791-92 (Pa. 2018) (Emphasis Added). Without a more

specific indication of where in the voluminous trial record such grounds for relief

were asserted, this trial court is unable to conclude that it committed such error at

The Onyshko's also argue that materials on the NIH and CDC websites support Dr. Omalu's opinion that CTE may be diagnosed in the living. The Onyshko's reference in footnotes 12 and 13 of their motion are very broad. In an effort to further explore the citation this trial court did find in a CDC "Heads Up" article titled Chronic Traumatic Encephalopahty (CTE) the following statement "To diagnose CTE, doctors check the brain of a person after he or she dies." Further, the Onyshko's do not point to any portion of the voluminous trial record that includes this court's ruling that the materials cited in footnotes 12 and 13 of their motion are inadmissible.

12 1Page trial. Post-trial relief must be denied on this assignment of error regarding Dr.

Omalu's cross-examination.

For these reasons, this trial court finds that no error occurred with regard to

the admission and exclusion of "CTE" evidence such that a new trial should be

granted.

ADMISSION OF TESTIMONY DR. HARBAUGH AND DR. APPEL

At trial, the Onyshko's raised Frye challenges to both Dr. Robert Harbaugh,

Chair of the Department of Neurosurgery at Penn State Hershey Medical Center,

and Dr. Stanley Appel, Chairman of the Department of Neurology at Houston

Methodist Hospital. (T.T. 5/16/19 p. 1526, and T.T. 5/16/19, p. 2134-2135)

Though both expert witnesses testified at a pre-trial Frye hearing on January 25,

2019, the Onyshko's Frye objections were not made or filed until trial was

underway. In denying the Onyshko's motions, this trial court relied upon the

complete record to include the Frye hearing, the trial testimony of both experts and

written filings of the parties.

The Onyshko's broadly challenge both Dr. Harbaugh's qualifications and the methodology he employed to reach his conclusions. Pennsylvania adheres to a

liberal standard for the qualification of an expert witness. When determining

whether a witness may testify as an expert, a trial court is to examine whether the

witness has any reasonable pretension to specialized knowledge on the subject

131Page under investigation that will aid the trier of fact and has used a methodology

generally accepted in the "relevant" field. Callahan v. Nat'l R.R. Passenger Corp.,

979 A.2d 866, 875-76 (Pa. Super. 2009) and Pa.R.E. 702.

In this instance, Dr. Harbaugh is a board certified neurosurgeon who: i) is

the academic chair overseeing clinical research in neurosurgery at Penn State's

Hershey Medical College; ii) is experienced in utilizing biostatistics and

epidemiological reports; iii) was a member of the NFL's Head, Neck and Spine

Committee for which he headed the subcommittee on data analysis; iv) serves on

the NIH Federal Interagency Traumatic Brain Injury Research Informatics and

strategic vision committee; and v) has written scientific articles concerning the

recording of brain activity "real-time" in football players. (T.T. 5/13/19, p. 1333-

1353)

Further, Dr. Harbaugh used the Bradford-Hill9 methodology in arriving at

his opinion that the cause of ALS is unknown and that existing data did not make it

"reasonable" for the NCAA to have told Mr. Onyshko that he was at an increased

risk of developing ALS. (H.T. 1/25/19 p. 39 - 46, T.T. 5/13/19 p. 1383 - 1384). Such methodology has been recognized as being generally accepted. See Walsh v.

"The Bradford—Hill criteria were developed as a means of interpreting an established association based on a body of epidemiologic research for the purpose of trying to judge whether the observed association reflects a causal relation between an exposure and disease." Soldo v. Sandoz Pharms. Corp., 244 F.Supp.2d 434, 514 (W.D.Pa. 2003)

14 IP a ge BASF Corp., 191 A.3d 838, 844 (Pa. Super. Ct. 2018), reargument denied (Aug.

21, 2018), appeal granted, 203 A.3d 976 (Pa. 2019) and Hutz v. Workers' Comp.

Appeal Bd. (City of Philadelphia), 147 A.3d 35, 43 (Pa.Cmwlth. 2016).

For these reasons, the admission of Dr. Harbaugh's testimony was not error.

Dr. Harbaugh possessed specialized knowledge that assisted the jury in

understanding matters of general causation and "state of the art." Dr. Harbaugh

employed a generally accepted methodology to determine whether an association

reflects a causal relationship.

The Onyshko's charge that no methodology or explanation supports Dr.

Appel's opinions. However, at trial, an adequate foundation was laid to establish

both Dr. Appel's methodology and explanation. Dr. Appel reviewed numerous

medical records regarding the diagnosis and treatment of Mr. Onsyhko's ALS.

(T.T. 5/15/19, p. 2029-2031) Dr. Appel's testified regarding his extensive

experience with diagnosis and treatment of ALS patients. He holds an endowed

Chair for the treatment and research of ALS at the Houston Methodist Neurologic

Institute. He has held numerous faculty appointments and positions at university

hospitals to include the Duke Medical Center and Houston Methodist. He actively

participates in ALS research and treats approximately 25 ALS patients per week.

(T.T. 5/16/19 p. 2004,-2007)

151Page Where a physician analyzes a patient's medical records and relies upon his

personal expertise to reach a conclusion regarding the source of the patient's

injuries, such methodology is "generally accepted" and Frye is not applicable.

Tucker v. Cmty. Med. Ctr., 833 A.2d 217, 224 (Pa.Super.2003) (review of medical

records to reach conclusion regarding source of plaintiffs injuries not novel as

cited in Cummins v. Rosa, 846 A.2d 148, 151 (Pa. Super. 2004).

Having a thorough knowledge of Mr. Onshyko's medical history and relying

upon on his extensive training and experience with ALS, Dr. Appel reached an

opinion on where Mr. Onyshko's symptomology started and whether it could be

related to his playing college football. Such methodology is generally accepted and

admissible. See Cummins v. Rosa, 846 A.2d at 151.

CALLING DR. HARBAUGH OUT OF TURN

At trial and in their post-trial motion brief, the Onshyko's assert this trial

court erroneously permitted Dr. Harbaugh to be called to testify out of order. After

six days of testimony from the Onyshko's and before they rested, this court

allowed Dr. Harbaugh to be called out of turn. (See T.T. 5/13/19) Permitting an

expert witness to be called out turn is not grounds for error. Pa.R.Civ.P. 223,

Bunting v. Sun Co., Inc., 434 Pa.Super. 404, 413, 643 A.2d 1085, 1090 (1994) and

Pa.R.E. 611. In this instance, the Plaintiffs' three (3) medical expert witnesses, Drs.

Schwartzbard, Omalu and Cantu had all testified. Dr. Harbaugh's testimony was

161Page received on Monday after a weekend recess. Accepting Dr. Harbaugh' s testimony

"out of turn" was not a surprise to the Onyshko's. (T.T. 4/29/19 p. 25 and T.T.

5/10/19 p. 1308-1311) Prior to the testimony, this trial court instructed the jury of

the ruling, its necessity and that the Onyshko's would be offering more evidence.

(T.T. 5/13/19, p. 1331)

No error on this point is evident.

LATE DISCLOSURE OF DR. APPEL'S TESTIMONY

Immediately prior to Dr. Appel taking the stand, the Onsyshko's objected to

slides the NCAA. intended to use and Dr. Appel's opinion that Matthew Onyshko's

ALS started in his hands. (T.T. 5/16/19, p. 1969-1970). Following an extended

argument that included a review of slides to be published during Dr. Appel's

testimony, this trial court permitted Dr. Appel to explain how Mr. Onyshko's

clinical presentation supported the view that football did not cause Mr. Onyshko's

ALS. (T.T. 5/16/19 p. 1971-2001 and 2039-2040) The Onyshko's objected that Dr.

Appel was offering a new opinion that was not within the "four corners" of his pre-

trial report. (T.T. 5/16/19 p. 2043)

Specifically, Dr. Appel stated that ALS may start in the lower motor neuron

out at the neuromuscular junction. (T.T. 5/16/19 p. 2040) Dr. Appel indicated that

Mr. Onyshko's symptoms began in his hands. (T.T. 5/16/19 p. 2043-44) In a pre-

trial narrative report, Dr. Appel stated "His (Mr. Onyshko' s) first symptoms were

17IPage likely those of fasciculations noted in his arms and chest in 2001, and complaints

of 'his hands not being particularly strong as a junior in college." (Ex. 4 to 1/25/19

Hearing) (Emphasis Added)

In determining whether an expert's trial testimony falls within the fair scope

of his pre-trial report, a trial court must determine whether the report provides

sufficient notice of the expert's theory to enable the opposing party to prepare a

rebuttal witness. Feden v. Consol, Rail Corp., 746 A.2d 1158 (Pa.Super.2000).

Under this analysis, an expert's trial testimony may be found unobjectionable

whenever it could reasonably have been anticipated from the content of the expert's

pre-trial report. Butler v. Kiwi, SA, 412 Pa.Super. 591, 604 A.2d 270 (1992). An

expert's trial testimony that constitutes a reasonable explanation or even an

enlargement of the expert's written words may be deemed to fall within the

coverage of "fair scope." Daddona v. Thind, 891 A.2d 786, 805-06 (Pa.Cmwlth.

2006). Dr. Appels' testimony regarding where Mr. Onyshko's ALS

symptomology began is clearly within fair scope of Dr. Appel's July 14, 2016

report.

Further, Dr. Appel's testimony was fair rebuttal to the opinions and

testimony provided by Plaintiffs' experts, Dr. Schwartzbard and Dr. Omalu. This

trial court permitted Dr. Schwartzbard to use an animation that had only been

shared with the NCAA after trial began. The animation Was used to explain the

18IPage mechanism of Mr. Onyshko's injury and how his ALS progressed from the brain to

rest of the body. (T.T. 5/7/19 p. 463-473) Similarly, Dr. Omalu described the

cause and course of Mr. Onyshko's ALS. (T.T. 5/8/18 p. 818-825)

Where a plaintiff introduces certain evidence in his case-in-chief, he cannot

later deprive his opposition of the privilege of denying it. See Leaphart v. Whiting

Corp., 387 Pa.Super. 253, 564 A.2d 165 (1989). Thus, an expert's opinion offered

in response to other testimony presented at trial need not be addressed in the

expert's report. Earlin v. Cravetz, 264 Pa.Super, 294, 399 A.2d 783 (1979) as cited

in Daddona v. Thind. supra.

For these reasons, this trial court finds that no error, that amounts to a

sufficient basis for granting a new trial, occurred with regard to the admission of

Dr. Harbaugh and Dr. Appel's testimony.

DR. BIDDINGTON AND CALIFORNIA UNIVERSITY PRACTICES

The Onyshkos argue that the NCAA impermissibly proffered evidence of

California University's athletic training practices from 1999-2003, to include the

testimony of Dr. William Biddington. The Onyshko's sought to preclude any

testimony that would suggest that California University used the "gold standard"

for athletic training and management of concussions during the years Mr. Onyshko

played. Specifically, the Onyshkos argue that such evidence lacks relevance

pursuant to Pa.R.E. 401 and 403. The Onyshkos specifically challenged the

19 IP age admission of Dr. Biddington's testimony due to a lack of personal knowledge

pursuant to Pa,R.E. 602, and a "lack of expert support" pursuant to rule 702. 1°

Regarding relevance, the Onyshkos reiterate their argument asserting that

"the actions and/or inactions of California University of Pennsylvania have

absolutely nothing to do with this case." (Motion for Post-Trial Relief ¶52)

Plaintiffs assert that the introduction of the actions or inactions of California

University were "empty chair" arguments. (Motion for Post-Trial Relief ¶57)

Pa.R.E. 401 establishes that evidence is relevant if "(a) it has any tendency

to make a fact more or less probable than it would be without the evidence; and (b)

the fact is of consequence in determining the action." To be relevant and

admissible, evidence need not be conclusive. Com. v. Foley, 2012 PA Super 31,

38 A.3d 882, 890 (2012). Evidence offered for one purpose need not be excluded

merely because it is inadmissible for another purpose. Orlando v. Herco, Inc., 351

Pa. Super. 144, 505 A.2d 308 (1986) Under Pa.R.E. 403 "the court may exclude

I° These arguments were preserved both prior to and during trial. At a pre-trial limine argument on March 8, 2019, the Onyshko's objected to testimony regarding documents that could not be produced. At that time, the Onyshko's Counsel stated "I'm talking about a specific document that simply doesn't exist, They can testify to what they did, what they recall doing, but to say that this was based on some document that we had a policy on, it's just not there." (H.T. 3/8/19 p. 113) On April 5, 2019, the Onyshko's Counsel expanded their relevancy objection to preclude any testimony that would suggest that California University used the "gold standard" for athletic training and management of concussions during the years Mr, Onyshko played. (H.T. 4/5/19, p. 26-43) The Onyshko's renewed their objections the day prior to Dr. Biddington's testimony. (T.T. 5/14/19 p. 1588-1622) Again on May 15, 2019 Onyshko's objected to Dr. Biddington's testimony prior to, during and immediately after his testimony. (T.T. 5/15/19 p. 1698-1754)

201Page relevant evidence if its probative value is outweighed by a danger of one or more

of the following: unfair prejudice, confusing the issues, misleading the jury, undue

delay, wasting time, or needlessly presenting cumulative evidence." Virtually all

evidence is prejudicial to one party or another, but the prejudice must be unfair to

be excluded under PaR.E. 403. Com . V. Treiber, 582 Pa. 646, 874 A.2d 26 (2005).

"Exclusion of evidence on grounds that is prejudicial 'is limited to evidence so

prejudicial that it would inflame the jury to make a decision based upon something

other than the legal propositions relevant to the case" Coin. v. Flamer, 2012 PA

Super 186, 53 A.3d 82, 89 (2012) (citing Commonwealth v. Foley, 38 A.3d 882,

891 (Pa.Super.2012))

Throughout this case, the Onyshkos argued that the NCAA failed to have

"return to play" guidelines and failed to provide warnings to athletes regarding the

risks of concussions and repetitive head trauma. The Onyshkos argued such

failures increased the risk for Mr. Onyshko to develop ALS. However, NCAA's

counsel argued that,

if they're claiming that the failure to have a concussion management protocol, which is the implication of all the testimony, was a proximate cause of this injury, this takes away factual cause if that's their claim.... That's what Cantu was on the witness stand for hours testifying about, there should have been a concussion management protocol. Well, there was. And if that's a causative factor in this injury, then that comes out of the case, because there was a concussion management protocol there that was being followed.

211 Page (May 14, 2019 Trial Transcript pages 1616-1617) In this instance, the claim that

the NCAA proffered California University as an "empty chair defendant" is not

supported by the record) 1 In other words, the NCAA argued that this evidence

was relevant to causation, an essential element of negligence.

For a party to prevail in a negligence action, a plaintiff must prove that the

defendant "owed a duty of care to the plaintiff, that duty was breached, the breach

resulted in the plaintiff's injury, and the plaintiff suffered an actual loss or

damages." Merlini ex rel. Merlini v. Gallitzin Water Authority, 602 Pa. 346, 980

A.2d 502, 506 (2009) as cited in Collins v. Philadelphia Suburban Dev. Corp., 179

A.3d 69, 73 (Pa. Super. Ct. 2018) (Emphasis Added). Evidence that shows an

alleged breach of a duty of care resulted in a plaintiff's injury is more or less

probable is of consequence in determining a negligence action.

Here, the actions of California University are relevant to causation, The

Plaintiffs assert that the NCAA's failure to warn Mr. Onyshko and the NCAA's

lack of return to play guidelines and concussion management programs increased

" Nonetheless, authority exists to permit such defenses to be offered at trial. "An 'empty chair' defendant may exculpate the other tortfeasors totally if they show the 'empty chair' defendant was solely liable. However, someone not sued cannot be considered a joint tortfeasor for purposes of reducing the verdict," Dorothy Rothermel, Ex'x of the Estate of Leland Rothermel, decd. v. Owens-Illinois, Inc. et al., 070946., 1992 WL 1071407 (Pa. Corn. Pl. July 8, 1992)

22IPage the risk that Mr. Onyshko could develop a neurodegenerative disease such as ALS.

Mr. Onyshko played at California University of Pennsylvania between 1999 and

2003. Accordingly, what warnings were given to Mr. Onyshko and what return to

play or concussion management protocols were in place is relevant to determine

causation. The arguments made by the Onyshko's are similar to a litigant in a

motor vehicle case asserting that a trucking company is negligent for failing to

equip a truck with a governor that prevents the truck from traveling over 50 mph,

but then tries to exclude testimony that the truck never traveled higher than 30 mph

at all times material to the collision.

The NCAA's evidence regarding California University training practices

was admissible on grounds other than causation. Evidence not otherwise

admissible, may be introduced if the opposing party "opens the door" by

presenting evidence that creates a false impression to the contrary. Duchess v.

Langston Corp., 709 A.2d 410, 412 (Pa.Super.1998), affirmed, 564 Pa. 529, 769

A.2d 1131 (2001). Once the door is opened, a party may introduce evidence

reasonably related in scope to the substance of the offending testimony. Gaudio v.

Ford Motor Co., 976 A.2d 524, 544 (Pa.Super.2009), appeal denied, 989 A.2d 917

(Pa.2010).

The Onyshko's offered testimony about the lack of education and warnings

California University football players received when Mr. Onyshko played there.

23(Page Dan Smith, Mr. Onyshko's teammate, indicated that Coach Mike Kolakowski

addressed the team regarding safety through "the handbook and stuff like that,"

(T.T. 5/8/19 p. 630) Mr. Smith testified that Coach Kolakowski did not address

concussions with the team. (T.T. 5/8/19, p. 631) Mr. Smith stated that the

assigned athletic trainer, Mr. Michael Steinagel, did not discuss concussions with

the team. (T.T. 5/8/19, p. 633-634) However, on cross-examination, Mr. Smith

recalled preseason meetings where injuries were discussed and the California

University Training Staff was present. (T.T. 5/8/19, p. 646-650). Mr. Onyshko

testified to similar matters.'

The NCAA' s evidence that supported its "gold standard' argument rebutted

the testimony of Mr. Smith and Mr. Onyshko. Mr. Steinagel testified that during

preseason for the football team he specifically read instructions to the football team

concerning concussions in their preseason meeting. (Steinagel Deposition Pages

34-35) Mr. Steinagel testified that while serving as the assigned athletic Trainer

for California University, he followed the established consistent with those found

in the Principles of Athletic Training. (Steinagel Deposition Pages 36-38). Dr.

" Mr. Onyshko testified that California University trainers and coaches did not tell him about concussion symptoms, or brain disease or ALS. (T.T. 5/6/19 p. 277-278) Mr. Onyshko indicated that the player's handbook did not discuss concussions or brain disease. (T.T. 5/6/19, p, 278) However, on cross-examination, Mr. Onyshko, testified that he recalled Mr. Steinagel, preseason team meetings discussing training, the handbook from Coach Kolakowski, and that the handbook included a requirement to report all injuries. (T.T. 5/6/19, p. 302-303)

241Page Biddington, the Chairman of the Athletic Training Program during those years,

testified that California University's athletic training practices were "based on the

Principles of Athletic Training, and included following tools recommended by Dr.

Robert Cantu. (T.T. 5/15/19, p. 1732 and 1737) Dr. Biddington also recalled, that

in 1997 he went over responsibilities of being a head athletic trainer with Mr.

Steinagel. Those responsibilities included reviewing with the football team the

"practices or policies, unwritten policies specifically discussing management of

concussion issues, what our relationship was with the team physician and dealing

with those."' (T.T. 5/15/19, p. 1731 and 1735)

Being evidence that tended to corroborate Mr. Steinagel, Dr. Biddington's

testimony was relevant. A party is generally entitled to introduce additional

evidence of material facts as to which evidence has already been produced

provided that such evidence tends to confirm, corroborate, or otherwise strengthen

and add force and probability to the prior evidence. Duffy v. Griffith, 134 Pa.

Super. 447, 4 A.2d 170 (1939).

In summary, the evidence submitted by the Onyshko's regarding California

University's inaction made the evidence of the NCAA regarding California

University's training practices relevant. For these reasons, this trial court finds that

no error occurred with regarding the admission of such evidence.

REBUTTAL DEPOSTION TESTIMONY OF TEAMMATES

25 The Onyshko's argue that this trial court erred by excluding evidence that

would have rebutted Dr. Biddington and Mr. Steinagel's testimony. During

rebuttal, the Onyshko's sought to introduce the deposition testimony of three

teammates, Robert Jurkiewicz, Brandon LeDonne and Christopher McKnight.

(T.T. 5/20/19, p. 2332)

Though the deposition testimony of several witnesses was "read in" by both

parties during their respective cases in chief, the testimony of former California of

University football players Jurkiewicz, LeDonne and McKnight were not included,

The NCAA objected to the Onyshko's "reading in' such witness testimony during

rebuttal. The Onyshko's responded that counsel had a stipulation that permitted

the witnesses' transcripts to be offered if the teammates did not appear. However,

the agreement, set forth in an April 15, 2019 email, did not indicate the NCAA's

specific consent to the Onyshko's admission of deposition testimony from these

three teammates. Further, no showing was made as to the unavailability of these

teammates. (T.T. 5/20/19 p. 2340-2344)

This trial court sustained a hearsay objection finding that the witnesses were

not shown to be unavailable. Pa.R:E. 804 allows hearsay testimony if the declarant

is unavailable. To be unavailable, the declarant may be exempted by privilege,

refuses to testify despite court order, testifies to not remembering, cannot be

present due to illness, or absent and the proponent has not been able to procure

26IPage their attendance or testimony. Pa.R.E. 804(a). If the declarant is unavailable,

former testimony may be admitted. Pa.R.E. 804(b)(1). Before using former

testimony, a party must first attempt to enforce a properly served subpoena.

Turzai v. Corn., Unemployment Compensation Bd. of Review, 102 Pa. Commw.

645, 519 A.2d 567 (1986). The trial court has the discretion to determine the

sufficiency of proof of unavailability. Corl v. Kacmar, 391 Pa. Super. 376, 378,

571 A.2d 417, 418 (1990) (citing Katz v. Montague, 181 Pa.Super. 476, 124 A.2d

506 (1956)).

However, at the time, this trial court should have given primary

consideration to Pa.R.C.P. 4020 which provides:

At the trial, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had notice thereof if required, in accordance with any one of the following provisions: (3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds (a) that the witness is dead, or (b) that the witness is at a greater distance than one hundred miles from the place of trial or is outside the Commonwealth, unless it appears that the absence of the witness was procured by the party offering the deposition, or (c) that the witness is unable to attend or testify because of age, sickness, infirmity or imprisonment, or (d) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena, or (e) upon application and notice that such exceptional circumstandes exist as to make it desirable, in the interest of justice and with due

27 IPage regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used,

Pa.R.C.P. 4020. 13 Where the requirements of Pa.R.C.P. No. 4020 are satisfied, a

court "must admit" the deposition. Kuntz v. Firth, 216 Pa.Super. 155, 158, 264

A.2d 432, 433 (1970).

In this instance, the Onyshko's had the burden to meet the Pa.R.C.P. 4020

(a)(3) requirements as to teammates Jurkiewicz, LeDonne and McKnight. Having

reviewed the trial record, this trial court is not able to conclude that such burden

was met. A trial court commits error by admitting deposition testimony without a

showing that one of the conditions under Pa.R.Civ.P. 4020(a)(3) apply. Missett v.

Hub Intl Pennsylvania, LLC, 6 A.3d 530, 544 (Pa. Super. 2010) Where no

showing of unavailability or exceptional circumstance is made, a trial court

Compare Pa.R.E. 804 which provides: 13 A declarant is considered to be unavailable as a witness if the declarant: (1) is exempted from testifying about the subject matter of the declarant's statement because the court rules that a privilege applies; (2) refuses to testify about the subject matter despite a court order to do so; (3) testifies to not remembering the subject matter, except as provided in Rule 803.1(4); (4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; or (5) is absent from the trial or hearing and the statement's proponent has not been able, by process or other reasonable means, to procure: (A) the declarant's attendance, in the case of a hearsay exception under Rule 804(b)(1) or (6); o r (B) the declarant's attendance or testimony, in the case of a hearsay exception under Rule 804(b)(2), (3), or (4).

28 1page commits error by admitting deposition testimony into evidence. Hall v. Owens

Coming Fiberglass Corp., 779 A.2d 1167, 1171 (Pa.Super.2001)

In conclusion, on this point of asserted error, a mistake occurred. The record

shows this trial court considered only Pa.R.E. 804 and not the specific text of

Pa.R.C.P. 4020 when determining the admissibility of the proffered depositions.

This mistake is not a sufficient basis for granting a new trial because the record

demonstrates that the Onyshko's did not meet their burden pursuant to Pa.R.C.P.

4020.

DIRECTED VERDICT

At the close of all evidence, the Onyshko's moved for directed verdict.'

Their Counsel argued that "a party cannot assume a risk of which he has no

knowledge." (T.T. 5/20/19, p. 2406) The Onyshko's Counsel reasoned that the

NCAA did not warn Mr. Onyshko regarding the risk of developing a

neurodegenerative disease. The Onyshko's Counsel requested that the jury not be

allowed to take into account Mr. Onyshko's assumption of the risk. (T.T. 5/20/19,

p. 2407)

Though the Onyshko's motion was denied on this issue, no assumption of

the risk instruction was given to the jury because it was not an issue for them to

14 The first motion for directed verdict addressed the NCAA's statute of limitations defense. Such motion was denied. (T.T. 5/20/19, p. 2399-2406). 29IPage decide. (T.T. 5/22/19 p. 2764-2766) Because this dispute involved a claim of

negligence, the affirmative defense of assumption of the risk was not for the jury to

decide.' 5 In a negligence action, a jury is properly not charged on the doctrine of

assumption of the risk and that issue should not be submitted to the jury. Struble v.

Valley Forge Military Acad., 445 Pa.Super, 224, 232, 665 A.2d 4, 8 (1995) 16 Prior

to this directed verdict motion by the Onyshko's this court had denied the NCAA's

nonsuit motion.

Having done so, a binding instruction to the jury that assumption of the risk

was not a defense to the action was unnecessary. This trial court instructed the jury

as to the NCAA's duty of care. (T.T. 5/20/19, p. 2766-2768) The jury could not

and should not have been invited by this court to consider "assumption of the risk."

Such instruction could have confused and distracted the jury from deciding the

factual question whether the NCAA breached its duty of care to Mr. Onyshko. In

"See Pennsylvania Suggested Standard Civil Jury Instructions, 13.220. 16 "In Howell v. Clyde, 533 Pa. 151, 620 A.2d 1107 (1993) , the Supreme Court abolished

assumption of risk as an affirmative defense decided by the jury. The court concluded "to the extent that an assumption of risk analysis is appropriate in any given case, it shall be applied by the court as a part of the duty analysis, and not as part of the case to be determined by the jury," Id. at 162, 620 A.2d at 1112-13. The court preserved the doctrine as an affirmative defense "in cases involving express assumption of risk, or cases brought pursuant to 402A (strict liability theory), or cases in which assumption of risk is specifically preserved by statute." Id. at 162 n, 10, 620 A.2d at 1113 n. 10." Duquesne Light Co, v. Woodland Hills Sch. Dist., 700 A,2d 1038, 1053-54 (Pa.Cmwlth. 1997) See also Staub v. Toy Factory, Inc., 2000 PA Super 87, 1 6, 749 A.2d 522, 526 (Pa, Super. Ct. 2000),

30 (Page this instance, the Onsyhko's Counsel appeared to argue that this court direct the

jury that Mr. Onyshko could not assume a risk of developing ALS because the

NCAA had "failed to warn" him of the risk that his participation in college

football could result in his developing ALS."

Binding instructions may not be given if there is a question of fact properly

submitted to the jury. Where there is any evidence, which alone would justify an

inference of the disputed fact, it must go to the jury, no matter how strong or

persuasive may be the countervailing proof Duquesne Light Co. v. Woodland

Hills Sch, Dist., 700 A.2d 1038, 1046 (Pa.Cmwlth. 1997) Such an instruction to

the jury could be viewed as a comment on the factual merit of the NCAA's alleged

negligence, being its failing to warn of the dangers of repetitive head trauma, This

trial court decided not to usurp the jury's authority to determine if the NCAA was

negligent.

NON DELEGABLE DUTY AND HEEDING PRESUMPTION -

The Onsyhko's assert this trial court should have instructed the jury

regarding the heeding presumption, "agency and non delegable duty." Claims of -

trial court error in jury instructions may be a sufficient ground for a new trial,

where a charge as a whole is inadequate or not clear or has a tendency to mislead

17Counsel stated "...this jury cannot be allowed to take into account Mr. Onyshko's assumpti on of the risk which is a risk he was not warned about." (T.T. 5/20/19, p. 2407)

311Page or confuse rather than clarify a material issue. Glider v. Corn. Dept. of Hwys., 435

Pa. 140, 151-52, 255 A.2d 542, 547 (1969). A charge will be found adequate

unless "the issues are not made clear to the jury or the jury was palpably misled by

what the trial judge said or unless there is an omission in the charge which amounts

to fundamental error." Voitasefski v. Pittsburgh Rys. Co., 363 Pa. 220, 226, 69

A.2d 370, 373 (1949). A new trial should not be granted on the ground of

inadequacy of the charge unless there is a prejudicial omission of something basic

or fundamental. Sweeny v. Bonafiglia, 403 Pa. 217, 221, 169 A.2d 292, 293

(1961); Giorgianni v. DiSanzo, 392 Pa. 350, 356, 140 A.2d 802, 805 (1958) as

cited in Maya v. Johnson & Johnson, 97 A.3d 1203, 1218-19 (Pa. Super. 2014).

This trial court did not instruct the jury on the "heeding presumption." The

heeding presumption has been employed in certain toxic tort product's liability

disputes. Recently, the Superior Court has explained:

"[Uri cases where warnings or instructions are required to make a product non-defective and a warning has not been given, the plaintiff should be afforded the use of the presumption that he or she would have followed an adequate warning, and that the defendant, in order to rebut that presumption, must produce evidence that such a warning would not have been heeded." Coward v. Owens—Corning Fiberglas Corp., 729 A.2d 614, 621 (Pa.Super.1999), appeal granted, 560 Pa. 705, 743 A.2d 920 (1999). "If the defendant produces evidence that the injured plaintiff 'was fully aware of the risk of bodily injury, or the extent to which his conduct could contribute to that risk,' the presumption is rebutted and the burden of production shifts back to the plaintiff to produce evidence that he would have acted to avoid the underlying hazard had the defendant provided an adequate warning." Coward, 729 A.2d at 622 (quoting Pavlik v. Lane Limited/Tobacco

3 2 !Page Exporters International, 135 F.3d 876, 883 (3d Cir.1998)). Lonasco v. A—Best Products Co., 757 A.2d 367, 377 (Pa.Super.2000), appeal denied, 566 Pa. 645, 781 A.2d 145 (2001).

Maya v. Johnson & Johnson, 97 A.3d 1203, 1218 (Pa. Super. 2014). However, the

use of the heeding presumption has been very limited in its application by

Pennsylvania Courts. See Viguers v. Philip Morris USA, Inc., 837 A.2d 534, 537

(Pa. Super. Ct. 2003), affd, 584 Pa. 120, 881 A.2d 1262 (2005), Gronniger v. Am.

Home Products Corp., 3584 JUNE.TERM 2003, 2005 WL 3766685, at *5 (Pa.

Corn. PI. Oct. 21, 2005) and Moroney v. Gen. Motors Corp., 850 A.2d 629, 634

(Pa. Super. Ct. 2004). 18

The Onyshko's claim is one of negligence and is not a case involving

workplace exposure to asbestos. Though the Onyshko's make a novel and

compelling argument that the facts of this case meet the basic requirements of the

heeding presumption, they do not address the policy implications involved by

extending such a presumption to an "increased risk of harm" negligence action,

" "In Coward a distinction was made between other failure-to-warn cases and those involving toxic torts where plaintiffs faced exposure during their employment. It was held that a toxic tort plaintiff need not demonstrate failure-to-warn defect causation by introduction of affirmative evidence. The Court reasoned these plaintiffs are exposed in the course of their employment under circumstances that provided them no meaningful choice of whether to avoid exposure. This so called "heeding presumption" has been authorized in Pennsylvania only in cases -

involving workplace exposure to asbestos. Viguers v. Philip Morris USA, Inc., 837 A.2d 534, 537 (Pa.Super.2003)" as cited Moroney v. Gen. Motors Corp., 850 A.2d 629, 634 (Pa. Super, 2004)

33IPage "[B]efore a change in the law is made, a court, if it is to act responsibly must be

able to see with reasonable clarity the results of its decision and to say with

reasonable certainty that the change will serve the best interests of society."

Seebold v. Prison Health Servs., Inc., 618 Pa, 632, 654, 57 A.3d 1232, 1245 (2012)

In the context of this action, these considerations remain unclear and uncertain for

this trial court.

With regard to agency and non-delegable duty instructions, during a

charging conference, the Onyshko's Counsel argued:

...the NCAA is a principal and the California University and the rest of the institutions are agents so they have to take into account that they are subject to direct liability of Matt Onyshko, they have undertaken the duty to provide for the health and welfare of student athletes or college athletes. They have endeavored to provide information to these schools about that. Their failure to do so and failure to provide information to the schools makes their conduct, or if they take issue with the conduct of the schools, responsible for the injuries sustained. (T.T. 5/20/19, p. 2538-2539). A requested charge that would convey these

arguments was denied.

The Onyshko's did not establish the existence of a principal agent

relationship between the NCAA and California University of Pennsylvania. Actual

agency exists when a principal, in this case now alleged to be the NCAA, and an

agent, here alleged to be California University of Pennsylvania, enter into an

34IPage agency relationship. Such a relationship exists with the (1) manifestation by the

principal that the agent shall act for him; (2) the acceptance of the undertaking by

the agent; and (3) the control of the endeavor in the hands of the principal. Basile

v. H & R Block, Inc., 563 Pa. 359, 761 A.2d 1115 (2000) as cited in Tribune-

Review Pub. Co, v. Westmoreland Cty. Hous. Auth., 574 Pa. 661, 674, 833 A.2d

112, 119-20 (2003). No such evidence was offered regarding the NCAA and

California University of Pennsylvania.

For that reason, a "non-delegable duty" instruction was not necessary. The

term "non-delegable duty" merely means that the principal retains legal

responsibility for the undertaking of the person/entity to which the principal

assigned the non-delegable duty if the entity acted negligently. Scampone v. Grane

Healthcare Co., 2017 PA Super 257, 169 A.3d 600, 621 (Pa. Super. Ct. 2017),

reargument denied (Oct. 11, 2017), appeal denied, 188 A.3d 387 (Pa. 2018), and

appeal denied, 188 A.3d 388 (Pa. 2018) Because no principal agent relationship

was established between the NCAA and California University of Pennsylvania, a

non-delegable duty instruction was not necessary.

In summary, a new trial should not be granted because this trial court

did not mislead the jury or omit from the final charge something basic or

fundamental. The Onyshko's neither pleaded nor proved at trial that

351Page California University of Pennsylvania was the agent of the NCAA. This

trial court did not committ error in refusing to instruct the jury on "agency

and non-delegable duty." Further, the "heeding presumption" is not

applicable in a negligence action claiming that the defendant's conduct

increased the risk of harm for the plaintiff.

CLOSING ARGUMENT OF THE NCAA

The Onyshko's assert a mistrial should have been declared after closing

argument from the NCAA. In closing argument, counsel may not present facts to

the jury which are not in evidence and which are prejudicial to the opposing party.

Further, counsel may not comment on evidence to the effect that it removes an

issue of credibility from the jury." Young v. Washington Hosp., 761 A.2d 559,

561 (Pa. Super. Ct. 2000). The trial court has the duty to take affirmative steps to

attempt to cure harm, once an offensive remark has been objected to. Where the

comments of counsel are so offensive or egregious that no curative instruction can

adequately obliterate the taint a mistrial is necessary. Siegal v. Stefanyszyn, 718

A.2d 1274, 1277 (Pa.Super.1998) (citations omitted), appeal denied, 559 Pa. 693,

739 A.2d 1059 (1999). In this instance, the Onyshko's point to several portions of

the NCAA's closing as grounds for a mistrial. The challenged portions included

361Page commentary on evidence presented and a statement of personal opinion by the

NCAA' s lead trial counsel.

With regard to comments on the evidence presented, this trial court found

such argument to be fair comment on the evidence. First, NCAA Counsel argued

that California University of Pennsylvania Athletic Trainer, Michael Steinagel read

the symptoms of concussion to student athletes, to include Mr. Onyshko, before

each season. (T.T. 5/22/19 p. 259, and 2618-2619) By video deposition, Mr.

Steinagel testified that he read instructions to the football team regarding the signs

and symptoms of concussions and the reporting process and that he and the

football training staff followed guidelines as outlined in the Principles of Athletic

Training Tenth Edition (Steinagel Depo. P. 34-38). Second, in the context of

discussing the testimony of Dr. Ellen Staurowsky, the Onyshko's NCAA

governance expert, 19 NCAA counsel stated:

"They're talking about baseball, wrestling, hockey, pole vaulting, boxing and track. Also football, soccer and rugby. Maybe we should outlaw them all.."

(T.T. 5/22/19, p. 2587). Such argument was fair comment on the

body of published information regarding the dangers of head trauma to

athletes, Dr. Staurowksy identified as being available to the NCAA prior to

19 (IT. 5/3/19, p. 139-254) 37IPage 1999, the start of Mr. Onyshko's participation in college football. Third, in

this context of discussing Dr. Robert Cantu's testimony, counsel for the

NCAA made the following statement:

if it's not concussions, as defined by Dr. Cantu's scale, which there is no evidence he ever had, then they're going to talk about repetitive head injury, which is, basically, playing football will be the claim. (T.T. 5/22/19 p. 2621). This argument was a fair response to the Onyshko's

testimony and argument regarding sub-concussive trauma sustained in football. (T.

T. TT. 5/3/19, p. 68-74, 79-88 and T.T. 5/9/19, p. 1029). Fourth, with regard to

NCAA revenues, NCAA counsel argued:

One of the things they don't support with that money is football. Football, Division I football. They support Division II and Division III. Division I is run by the conferences, the Southeast conference...that money stays with the conference." (T.T. 5/22/19 p. 2642-2643) At trial the NCAA presented the testimony of Terry

Gronau, Vice President NCAA Division II, who indicated that between 1999 and

2003 the source of NCAA funding was the Division I Men's Basketball

Tournament which had yearly revenues of "roughly 360 million." With the

exception of five percent of those revenues, such funds were then distributed back

to member institutions at the Division I, II and III levels. (T.T. 5/15/19 p. 1793-

1796). The argument that the NCAA drew no revenue from football was supported

by the evidence presented at trial.

38 'P ag e These arguments were not misleading or overly prejudicial. As such, a

mistrial was not warranted. Schweikert v. St. Luke's Hosp. of Bethlehem,

Pennsylvania, 886 A.2d 265, 270 (Pa. Super. 2005).

The Onyshko's also assert that the NCAA's Counsel improperly interjected

his personal opinion and invited the jury to consider wholly irrelevant issues.

When addressing punitive damages, the NCAA's counsel stated:

"they are going to make a big deal about the president got a letter and he let his secretary handle it or they wrote back in 1905 that football is dangerous and there are concussions, I don't know whether they're thinking you should outlaw football or the NCAA should do something about not allowing people to play football in college, I'm not sure what their theory is exactly, but they are saying that the way the NCAA acted was in such a way as that you should punish them."

(T.T. 5/22/19 p. 2610). At another point when addressing the testimony of Drs.

Schwartzbard and Omalu regarding the causal relationship between antecedent

head trauma and ALS, NCAA counsel stated:

...they came up with a new disease. You have never seen it in print other than a slide made up by counsel, football ALS.

challenge anyone to find that in the diagnostic manual or any medical book. Then they changed it a little bit at one point and said trauma ALS. Same challenge. Same question.

If there is such a thing as football ALS, then football should go away. But thankfully there isn't.

(T.T. 5/22/19, p. 2640-2641)

39IPage Trial counsel must be expected to advance a spirited argument to support his

client's cause, but he may not take unwarranted liberties with the evidence or

arouse prejudices by exaggerated accusations. Purcell v. Westinghouse

Broadcasting Co., 411 Pa. 167, 184-85, 191 A.2d 662, 671 (1963). In this,

instance, the expressions of personal opinion by the NCAA's counsel amount to no

more than oratorical flair that is coincident with the adversarial process and

attendant to a long trial involving complex science. No liberties were taken with

the evidence by these arguments, 20

Whether to grant a mistrial because of improper remarks of counsel

must be determined by the circumstances under which the statement was

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

having a prejudicial effect." Martin v. Philadelphia Suburban Transportation

Co. 435 Pa. 391, 394, 257 A.2d 535, 537 (1969) quoting McCune v.

Learner, 383 Pa. 434, 437-38, 119 A.2d 89, 90 (1956). See also: Smith v.

20As Justice Musmanno well stated: There is nothing in the law, and certainly nothing in the history of American forensic appeal, which remotely suggests that a lawyer's summation must be a prosaic and dull affair, devoid of metaphor, empty of simile, and stranger to dramatic, poetical, or sentimental allusion. So long as no liberties are taken with the evidence, a lawyer is free to draw such inferences as he wishes from the testimony and to present his case in the light most suited to advance his cause and win a verdict in the jury box. Contractors Lumber and Supply Co. v. Quinette, 386 Pa. 517, 522, 126 A.2d 442, 444 (1956) as cited in Ruffing v. 84 Lumber Co., 410 Pa.Super. 459, 474, 600 A.2d 545, 552 (1991).

40IPage Evans, 421 Pa. 247, 250-51, 219 A.2d 310, 312 (1966); Easter v. Hancock,

237 Pa.Super. 31, 36-37, 346 A.2d 323, 327 (1975). Prior to closing

arguments, the jury was instructed that closing arguments were not evidence

but should be carefully considered. (T.T. 5/22/19, p. 2579) In closing

instructions, the jury was instructed, at the outset, that counsel's personal

opinions or beliefs should be disregarded. (T.T. 5/22/19 p. 2762) The jury

was further directed to disregard social and political issues and public

opinion regarding college athletics. (T.T. 5/22/19 p. 2763)

For these reasons, this trial court finds that a new trial is not warranted

due to comments made during the NCAA' s closing argument.

JURY SELECTION •

The Onyshko's assert this trial court committed error 21 in utilizing an

individual voir dire method for jury selection. 22 Instead, the Onyshko's assert this

trial court should have utilized the "list method" of selection. 23 The Onyshko's

21Such objections were preserved prior to voir dire. (H.T, 4/25/19 p. 2-12) 22This is a method in which peremptory decisions are made one juror at a time, without knowledge of those jurors to come, and the other in which they are made after all jurors have been examined, Com. v. Noel, 629 Pa. 100, 124, 104 A.3d 1156, 1171 (2014)

23When the list system is chosen, a battery of potential jurors shall be compiled, the number of which shall be no less than twelve, plus the number of alternatives the trial court has determined should be selected, plus the total number of peremptory challenges for the parties. Initially, no peremptory challenges are permitted. Rather, upon the receipt of the juror questionnaires and 41 IP a ge contend the individual method does not comply with Washington County Local

Rule L-221. In particular, the Onyshko's charge this trial court should not have

required them to utilize peremptory challenges until the jury panel was individually

interviewed and all challenges for cause heard and detemined.

As a starting point, neither method is constitutionally mandated. For

instance, the Pennsylvania Supreme Court has found no constitutional deprivation

where a "hybrid" approach combining the individual and list methods was utilized.

In so doing, the Majority explained:

...the United States Supreme Court explained, "[a]lthough peremptory challenges are valuable tools in jury trials, they 'are not constitutionally protected fundamental rights; rather they are but one state-created means to the constitutional end of an impartial jury and a fair trial.' " J.E.B. v. Alabama ex rel. T.11, 511 U.S. 127, 137 fn. 7, 114 S.Ct. 1419, 1426 fn. 7, 128 L.Ed.2d 89 (1994) (citing Georgia v. McCollum, 505 U.S. 42, 57, 112 S.Ct. 2348, 2358, 120 L.Ed.2d 33 (1992)). See also Commonwealth v. Wharton, 530 Pa. 127, 144, fn. 6, 607 A.2d 710, 719 fn. 6 (1992); Commonwealth v. Lesko, 553 Pa. 233, 253, 719 A.2d 217, 227 (1998). States may withhold peremptory challenges "altogether without impairing the constitutional guarantee of an impartial jury and a fair trial." McCollum, 505 U.S. at 57, 112 S.Ct. at 2358; Commonwealth v. Henderson, 497 Pa. 23, 30-31, 438 A.2d 951, 954 (1981).

Corn. v. Noel, 629 Pa, 100, 121, 104 A.3d 1156, 1169 (2014).

examination of the prospective jurors, only "for cause challenges" may be made by either side. Corn. v. Noel, 629 Pa. 100, 126, 104 A.3d 1156, 1172-73 (2014)

42IPage Further, the "list method" is not mandated by statewide civil procedural rule.

Pa.R.C.P. 221 mandates that each party shall have four peremptory challenges to

be exercised in turn starting with the Plaintiff. 24 In this instance, this trial court

afforded the parties five peremptory challenges for the seating of the 12 primary

jurors and two further peremptory challenges for the seating of four alternate

jurors. No violation of the violation of the statewide rule occurred. Importantly,

the Onyshko's did not exhaust all of their peremptory challenges. (T.T. 4/30/19 p.

309-310).

Finally, Wash. L-221 does not foreclose this trial court from utilizing a

proper individual voir dire method. L-221 does not expressly state that only the

"list method" may be sued. Instead, L-221 provides that:

"After examination of jurors is completed, counsel...shall report to the Court those jurors whom they agree may be stricken for cause. If counsel are unable to agree that a juror be stricken for cause, the Court shall make the just cause determination and may question the prospective juror to resolve the challenge for cause. Thereafter, counsel...shall proceed to exercise their respective peremptory challenges..."

See Wash. L - 221 (Emphasis Added) The language of L - 221 contemplates an "examination" of all jurors and if deemed necessary further individual questioning

24"Each party shall be entitled to four peremptory challenges, which shall be exercised in turn beginning with the plaintiff and following in the order in which the party was named or became a party to the action." Pa.R.C.P. No. 221

43IPage to deteimine a challenge for cause. At that point, the parties are to proceed to

utilize peremptory challenges. Critically, L-221 does not state that after all

examinations, including follow-up individual examinations, of all empaneled

jurors is complete, only then shall peremptory challenges be utilized. Wash. L-

221clearly contemplated the need for the court and the parties to conduct

additional questioning of individual jurors after an examination of all jurors.

For the "examination" of jurors, the requirements are addressed in both

Pa.R.C.P. 220.3 "Voir Dire" and L-220.3. Pa.R.C.P. 220.3 (c) provides:

The court may provide for voir dire to include the use of a written questionnaire. However, the use of a written questionnaire without the opportunity for oral examination by the court or counsel is not a sufficient voir dire. Pa.R.C.P. No. 220.3. Wash L-220.3 similarly provides:

(2) Examination of potential jurors shall be conducted by the Court or its designee. The Court may permit counsel to supplement the Court's examination by such further inquiry as it deems appropriate. (3) The Court may direct, or permit, the use of a written questionnaire....

Id. These rules clearly require that either the trial court or counsel conduct an oral

examination during voir dire that may be augmented by the use of a questionnaire.

In this case, before either party was put to the task of exercising a

peremptory challenge, examination of the jury panel included three forms. First,

all jurors completed two questionnaires, the statewide form that includes

44IPage information required by Pa.R.C.P. 220.3(b) and a separate questionnaire submitted

by the parties, approved by this court and which consisted of 49 short answer

questions. Second, this trial court conducted group voir dire, which included an

examination of all jurors regarding all mandated components of Pa.R.C.P. 220.3

and additional matters requested by the parties. (T.T. 4/29/19 p. 29-68) Following

these steps, the parties and this trial court then proceeded to individually examine

each of the 66 jurors who indicated that serving in this case would cause a

hardship. (T.T. 4/29/19, p. 67-234) During the course of individual "hardship"

examinations, this trial court excused 44 jurors from service.

Third, this trial court and the parties then proceeded to a second day of voir

dire, in which 27 jurors were individually interviewed by both court and the

parties. This trial court questioned each of these 27 jurors regarding any

affirmative responses each may have given in group voir dire. The parties were

permitted a broad range of questioning that embraced topics beyond those asked in

group voir dire or the questionnaires. This group of 27 was interviewed without

either party being put to the task of first asserting a challenge for cause. After each individual interview, the parties were then asked to state any challenge for cause.

In all, seven additional jurors were individually removed from the panel due to a

sustained challenge for cause. If no challenge for cause were stated or sustained for

an interviewed juror, the parties were then required to exercise a peremptory

451Page challenge as to that juror. Each side was afforded time to "caucus" with their legal

team which included individuals who only participated in jury selection. (T.T.

4/30/19)

After 12 jurors were seated, the selection of alternates then proceeded in a

similar manner with each side receiving an additional two peremptory challenges.

(T.T. 5/1/19, p. 2-68)

In summary, recognizing that "the impartiality and integrity of the jury" are

critical, this trial court utilized the individual voir dire method for jury selection.

Colosimo v. Pennsylvania Elec. Co., 513 Pa. 155, 518 A.2d 1206, 1209 (1986) and

Bruckshaw v. Frankford Hosp. of City of Philadelphia, 619 Pa. 135, 148, 58 A.3d

102, 109 (2012). Such an effort was done to efficiently and effectively empanel fair

and impartial jurors without either party being confronted with "a cracker jack

box" seating of a juror who had not been subjected to an individual interview.

Each juror seated in this case was examined multiple times. In this trial court's

view, such a process does not offend Wash. L-221, which accommodates both the

"individual" and "list" methods of jury selection. Such view matters because "the

application, construction, and interpretation of a local rule of court are matters

primarily to be determined by the court promulgating the local rule." Daddona v.

Thind, 891 A.2d 786, 799-800 (Pa.Cmwlth. 2006). More importantly, such a

process does not offend Pa.R.C.P. 220.3 and 221 and Federal and State

461Page Constitutional requirements. Possessing broad discretion in determining the scope,

manner and procedure of the voir dire examination, this trial court discerns no

error, palpable or otherwise, in the utilization and execution of the individual voir

dire method. Wytiaz v. Deitrick, 954 A.2d 643, 646 (Pa. Super. 2008). 25

ORDER AND NOW, this 30th day of September, for the reasons set forth above the

Plaintiffs' post-trial motions are DENIED.

Copies to: J. Luckasevic, Esq., M. Petrunya; Esq., G. Egdorf, Esq., J. Shrader, Esq., A. Hanlcin, Esq., L. Shtasel, Esq., L. Schlossberg, Esq., and R. Dapper, Esq.

"As to the Onyshkos' bare claim that this trial court "did not adequately take into account the hesitation, doubt and nervousness" of seated jurors and their ability to be fair, this trial court respectfully disagrees. Consistent with the requirements of Trigg v. Children's Hospital, 187 A.3d 1013, 1018 (Pa. Super. Ct. 2018), reargument denied (July 12, 2018), appeal granted, 201 A.3d 145 (Pa. 2019) this trial court contemporaneously observed all examined jurors' responses, prior to ruling on challenges for cause. Though this trial court's impressions from those observations may be very different from those advocated by counsel, Trigg does not require this trial court to surrender its honest assessment of an individual juror because counsel well states his position.

47 'Page