Standard for New Trial; Prejudice caused by Statement of Trial Counsel

Steltz v. Meyers, 2020 WL 1867021 (Pa. Super. 2020) (unreported), allocatur granted March 2, 2021, appeal docket 10 EAP 2021

This case arises from former Chicago Bears defensive back Craig Steltz’s lawsuit against William C. Meyers, M.D., Vincera Core Institute, and Vincera Institute (collectively, the “surgeon”) who allegedly failed to disclose the existence of a muscle tear in his leg.

Following the surgeon’s treatment for a hernia, Steltz returned to playing for the Bears, but contended that the undiagnosed muscle tear impeded his ability to cut sideways on the field and compromised his performance. Steltz was subsequently cut from the Bears and not hired by any other NFL team.

During trial, the surgeon presented Adam Zoga, M.D., as an expert witness in the field of musculoskeletal radiology. During Dr. Zoga’s testimony, the following exchange occurred:

[Appellants’ counsel:] [H]ow many musculoskeletal radiologists do you think there are in this country[,] ballpark?

[Dr. Zoga:] So if the definition is radiologists who interpret musculoskeletal imaging, it has to be five thousand.

[Appellants’ counsel:] Five thousand. Five thousand of those radiologists and [Steltz] couldn’t find one of them to come into this courtroom to support Dr. Read, did you know that?

[Steltz’s counsel:] Your Honor —

[Appellants’ counsel:] Not one, couldn’t find one?

Slip op. at 6 (footnote omitted). Steltz objected and orally moved for a mistrial after the jury was excused. The trial court] denied Steltz’s motion for a mistrial and the court issued a cautionary instruction to the jury that questions by counsel are not facts to be considered as evidence. After jury returned a verdict for the surgeon, Steltz filed a motion seeking a new trial, arguing that the trial court erred in denying the motion for a mistrial because the effect of defendants’ counsel’s question was so prejudicial that no instruction could have cured it. The trial court granted Steltz’s motion for a new trial. The surgeon appealed to Superior Court, arguing that the trial court erred in granting a new trial based upon a single unanswered question in the 1,400-page trial transcript where the question did not raise an improper subject and because Steltz had the opportunity to address why he did not call a radiology expert in his closing argument. The surgeon further argued that there could be no prejudice as a result of the question because the trial court sustained the objection before the witness answered the question and then provided a curative instruction, which the jury is presumed to follow.

Superior Court held that the record supported the trial court’s reasons and factual basis for its decision, and found no abuse of discretion on the part of the trial court in granting Steltz a new trial. In so holding, Superior Court found that when the hospital’s counsel stated that Steltz “couldn’t find” versus “did not find” another radiologist who would agree with Dr. Read’s findings, his comment was analogous to the statement made by counsel in Siegal v. Stefanyszyn, 718 A.2d 1274 (Pa. Super. 1998), appeal denied, 739 A.2d 1059 (Pa. 1999), explaining:

In Siegal, defense counsel, during his closing argument, asked the question “Do you think if [plaintiff’s medical fact witness] really felt that [defendant doctor] had done something wrong that [plaintiff] would have let him walk out of this court room without saying so? The answer is no.” Siegal, 718 A.2d at 1276. Counsel knew the statement to be untrue because the trial court had granted a motion to preclude plaintiff’s medical fact witness from testifying, as an expert witness, that defendant doctor’s treatment fell below the applicable standard of care. Id. The Siegal court found counsel’s statement to be “clearly improper, as it conveyed to the jury something that counsel knew to be untrue.” Id. at 1277 (emphasis added) and n.4 (quoting Demosthenes, “What greater crime can an orator be charged with than that his opinions and his language are not the same?”).

Slip op. at 11-12. Superior Court concluded:

The record demonstrates that counsel knew his questions involving the words “couldn’t find” were untrue and misleading when, in fact, Steltz did find a radiology expert, Dr. Checkoff, who agreed with Dr. Read’s findings. Counsel emphasized the point of his question by asking it not once but, over Steltz’s counsel’s objection, asking it a second time when he stated, “Not one, couldn’t find one?” These questions were an attempt to remove the issue of whether Dr. Read’s testimony was credible from the jury. See Young, 761 A.2d at 561. While counsel is generally free to present his or her case in the light most suited to advance the client’s position, counsel is not free to take liberties with the evidence and misconstrue it for the jury. See Ferguson, 84 A.3d at 723. Moreover, the curative instructions only generally informed the jury that counsel’s statements and arguments were not evidence, and did not address the specific questions by appellants’ counsel and the fact that Steltz not only could have found but did find a radiology expert who concurred with Dr. Read’s findings. See Siegal, 718 A.2d at 1277 (finding curative instruction insufficient to cure harm when instruction did not convey to jury what was true).

Slip op. at 13-14.

In dissent, Judge Bowes acknowledged that while “this Court’s standard of review over a trial court’s award of a new trial is deferential, this case presents that rare circumstance in which the trial court has abused its discretion.” Dissent slip op. at 1. Judge Bowes disagreed with all three of the trial courts underlying findings that: “(1) that defense counsel’s question was inappropriate; (2) that the question was also prejudicial as it undermined the validity of the entire trial; and (3) that the prejudice was of such a type and magnitude that it could not be remedied via a curative instruction.” Id. at 8.

In concluding that the trial court and the Majority “mischaracterized the context of the question posed by Appellant’s counsel and overstated the existence of prejudice,” Judge Bowes disagreed with the Majority’s application of Siegal, reasoning that:

With all due respect to the learned Majority, Siegal is inapposite. By focusing solely upon the verb utilized by defense counsel to the exclusion of all other substance, the Majority has mischaracterized the basic import of counsel’s question. In relevant part, defense counsel’s statement betrayed no misrepresentation, but drew valid attention to the indisputable fact that Mr. Steltz had not presented expert testimony regarding the correctness of Dr. Read’s interpretation of the June 30, 2014 MRI, a critical issue in this case. In contrast to Siegal, there was no ruling from the trial court precluding Mr. Steltz from presenting Dr. Checkoff’s expert testimony. Hence, defense counsel was not exploiting an adverse ruling, but properly referring to an unforced error: that Mr. Steltz offered no testimony from a musculoskeletal radiologist corroborating Dr. Read’s interpretation of the June 30, 2014 MRI.

As such, I do not perceive defense counsel’s question to be the flagrant misrepresentation of a fact outside of the jury’s knowledge as identified by the Majority, but a question duly predicated upon: (1) the lack of expert radiology testimony presented by Mr. Steltz; and (2) Dr. Zoga’s testimony that there were approximately 5,000 musculoskeletal radiologists potentially available for such consultations. Both of these facts were of-record. Moreover, Dr. Read’s interpretation of the June 30, 2014 MRI was both the subject upon which Dr. Zoga was called to testify, and the lynchpin of Mr. Steltz’s case. Although inartfully phrased, I do not believe that defense counsel’s question here is in the same disfavored category as the statement identified in Siegal.

Dissent slip op. at 12-13. Furthermore, Judge Bowes reasoned “the fair response doctrine applies quite aptly to these circumstances,” where “Mr. Steltz’s counsel’s pursued an inflammatory and inappropriate line of interrogation with Dr. Zoga regarding both his credibility, and that of Dr. Read.”  Id. at 14. Specifically, Judge Bowes emphasized that “[c]ounsel’s remarks do not constitute reversible error where they are ‘a reasonable response, in both scope and force, to trial counsel’s attack on the witness’ credibility.’ Commonwealth v. Hanible, 30 A.3d 426, 470 (Pa. 2011).” Id.

Finally, Judge Bowes disagreed with the Majority’s reliance on Siegal in support of its conclusion that the trial court’s curative instruction was insufficient, concluding that:

In Siegal, the trial court’s curative instruction was found to be insufficient because it “did not accurately convey to the jury what was true, i.e., that [defense] counsel knew that Dr. Shore’s opinion would have favored [plaintiff’s] position.” Siegal, supra at 1277.

As explained above, I do not find Siegal to be an adequate parallel to the instant case. Here, the trial court issued a curative instruction directing the jury to disregard the contents of defense counsel’s question. See N.T. Trial, 8/7/18 (Part II), at 4-5. Accordingly, I also fail to see why this curative instruction was insufficient to dispel any potential for prejudice. See Ferguson, supra at 725 (“Jurors are presumed to obey the court’s instructions, and, if ever an inappropriate comment could be cured by sufficient correction and admonition from the bench, the trial court’s efforts in this case would suffice.”); see also In re Smith, 579 A.2d 889, 896 (Pa.Super. 1990) (“[T]he jury is presumed to have acted within the legal parameters established by the court and with a proper evaluation and weighing of the evidence.”).

Dissent slip op. at 17.

The Supreme Court granted allocatur as to the following issue:

Whether the Superior Court misapplied and fundamentally altered Pennsylvania’s settled standard for prejudice caused by statements or questions of trial counsel, which forbids a new trial on a record like this, where defense counsel’s question was based on the record, the trial court issued a curative instruction, the jury was repeatedly instructed that statements and questions of counsel are not evidence, and the closing arguments of both counsel fully addressed the subject matter of defense counsel’s question?

For more information, contact Kevin McKeon or Dennis Whitaker.

For more information, contact Kevin McKeon or Dennis Whitaker.