Waiver and the trial court’s right to sua sponte grant a new trial

Temple v. Providence Care Center, 194 A.3d 659 (Pa. Super. 2018), 2018 WL 3358598 (Pa. Super. July 10, 2018), allocatur granted March 26, 2019, appeal docket 21 WAP 2019

In 2011 at the age of 81, Ms. Temple, a Providence nursing facility resident with Alzheimer’s disease and a history of falling, fell and fractured her arm and pelvis while walking unaccompanied towards a facility ramp during lunch. In 2012, Ms. Temple’s son and attorney-in-fact filed a complaint on her behalf, alleging negligence and corporate negligence, and seeking punitive damages.  The complaint recited that Ms. Temple required supervision to ambulate, transfer, and perform daily activities; the facility and staff knew or should have known of her needs due to her history of falling; and the understaffed facility failed to provide safety measures to prevent her from falling. After the jury returned a verdict of $2 million compensatory and $250,000 in punitive damages, the trial court granted a new trial on liability and compensatory damages  stating it “did not believe the trial was fair,” because of plaintiff’s counsel’s “failure to follow the rules, and his co-mingling of arguments regarding compensatory and punitive damages, despite the court’s admonition against this.” Slip Op. at 7.  Specifically, the trial court had expressly ordered plaintiff’s counsel not to discuss the facility’s “star rating” (a nursing home rating system), and had warned counsel to save references to the defendant’s assets to the punitive damages phase. However, plaintiff’s counsel discussed the star rating system with a witness and the defendant’s profits in his closing argument.  .

On appeal, Superior Court affirmed, reasoning that Temple’s attorney’s failure to follow court rules relating to questioning and his closing argument were prejudicial and required a new trial, even though there was no immediate objection nor was there a request for mistrial, because the judge has the discretion to grant a new trial sua sponte:

We agree with the trial court that these comments were prejudicial and in contravention of the trial court’s instruction. In light of the foregoing, we determine that the trial court had a basis to believe that the trial was unfair, given the cumulative effect of Appellant’s improper conduct, along with other errors that prejudiced Providence. Accordingly, we conclude that the trial court did not abuse its discretion in ordering a new trial for Providence on liability and compensatory damages.

Slip Op. at 15-16.

In order to further define the “other errors that prejudiced Providence,” Superior Court elaborated in a footnote that “errors” included:

Along with the improprieties discussed above, the trial court also stated in its Rule 1925(a) opinion that ‘[i]n addition to the trial not being fair, we also do not believe [Appellant’s] claim of inadequate staffing was properly supported by expert testimony.’(citation omitted). While we do not delve into whether expert testimony is required to support such claims in the case at bar, we believe that the sole testimony of Katherine McCombs, a former employee of Providence, was insufficient to establish Appellant’s understaffing claim as Ms. McCombs did not work on Ms. Temple’s unit at or near the time of her fall.

Slip Op. at 15 n.8.

The Supreme Court has granted allocatur on a single issue, which was rephrased for clarity:

Did the Superior Court disregard decades of controlling Supreme Court precedent by affirming the grant of a new trial based upon errors that were not preserved properly at the time of the trial?