J-A01017-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DEMETRIUS FLAHN 

Appellant

v.

KEVIN PARKS

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1144 EDA 2020

Appeal from the Judgment Entered February 24, 2020

In the Court of Common Pleas of Philadelphia County Civil Division at 

No(s): No. 180300083

BEFORE: BENDER, P.J.E., OLSON, J., and STRASSBURGER, J.*

MEMORANDUM BY OLSON, J.: Filed: April 14, 2021

Appellant, Demetrius Flahn, appeals from the judgment entered on 

February 24, 2020, following a jury verdict returned in favor of Kevin Parks 

(Parks) and the denial of Appellant’s post-trial motions. We affirm.

The trial court summarized the facts of this case as follows:

Appellant was stopped at the light on westbound Lindbergh 

Boulevard, near Island Avenue, at April Walk, which enters the 

Penrose shopping center in Philadelphia. Appellant waited at the 

intersection for the light to change. When the green arrow for a 

left turn came on, Appellant proceeded to make the left turn. As 

he travelled through the intersection, he was struck on the 

passenger side of his vehicle by an oncoming vehicle driven by 

Parks. 

Parks testified that he saw the light was red at the intersection 

from about 300 feet away while travelling at about 25 miles per 

hour. Parks started to brake as he approached the intersection,

but let off the brake at the intersection when he says the light 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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turned green. Parks vehicle struck Appellant’s vehicle, causing an 

impact which moved Appellant’s car some.

Appellant alleges the collision was hard enough to break the axle 

on the car he was driving. Photographs of the vehicle were 

introduced [into evidence]. 

Appellant testified that he felt pain in his hips as he exited the 

vehicle, causing him to drop to the “floor.” Appellant testified that 

he was feeling lightheaded. An ambulance came and transported 

him to Presbyterian Hospital. The ambulance EMS officer recorded 

that Appellant was complaining of leg pain. At the hospital[,]

Appellant described left hip pain and a headache. He reported to 

hospital staff that he struck his head when he fell after getting out 

of the car following the collision. The hospital examination 

revealed no neck pain, weakness or numbness, or back pain, with 

no other complaints. Appellant was discharged after [six or 

seven] hours. 

On March 28, 2016, Appellant saw Dr. [Mark] Allen, of Allied 

Medical Associates. The examination indicated complaints of 

lower back pain and left hip pain. The examination revealed spine 

and left hip tenderness. The medical impression was “[p]ost 

traumatic strain/sprain of the lumbar spine, post traumatic left hip 

pain.” [Dr. Allen, Appellant’s proffered expert, prepared a written 

report which was introduced at trial, wherein, to a reasonable 

degree of medical certainty, Dr. Allen opined t]hose conditions 

were a direct result of the accident[.]

Appellant was prescribed therapy at that facility for almost seven 

months. Appellant was also given a back brace which he wore 

for two months after discharged from therapy. Appellant was out 

of work for about two weeks, after which he returned to work full 

time, on what he described as informal light duty. Appellant 

testified that he was able to resume his normal activity after eight 

months. Examination on April 19, 2016, was similar. Dr. Allen’s 

discharge summary on October 13, 2016, described on-going 

lumbosacral pain, with an impression of chromic post[-]traumatic 

sprain of lumbar spine, disc bulge and bilateral lumbar 

radiculopathy. 

Appellant was involved in a prior rear end collision in 2009, where 

he was treated for injury to his neck and back. Appellant was also 

involved in a rear[-]end hit[-]and[-]run collision on June 14, 2016, 

four months after the collision in this case. 
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Trial Court Opinion, 8/3/2020, at 1-3.

On March 5, 2018, Appellant filed a civil complaint against Parks, 

alleging Parks was negligent and that such negligence caused injuries to 

Appellant. The case proceeded to a two-day jury trial commencing on January 

22, 2020. At trial:

Parks’ defense presented an expert report of radiologist Michael 

Brooks, which state[d]:

Review of the lumbar imaging study demonstrates no focal 

disc herniation, bulging or bony stenosis. There is disc 

degeneration at L-3/L-4 level consistent with a chronic 

degenerative process.

No fracture is seen, no vertebral body collapse is seen. No 

bone displacement is seen. No bone destruction is seen. No 

bleeding or swelling is seen within the core or the 

surrounding soft tissue. No compression of] the spinal cord 

or nerve root is noted.

It is, therefor (sic), my opinion, within a reasonable degree 

of medical certainty, after review of the lumbar imaging 

study as described above to state the following in relation 

to a traumatic event dated [March 11, 2016]:

One; chronic and longstanding preexisting 

degenerative changes are present at L-3/L-4, which is 

described in detail above.

This finding is consistent with chronic degenerative 

process which would predate and be unassociated 

with the traumatic event in question.

There are no findings in the lumbar imaging study 

which would be caused by the traumatic event in 

question or represent a super imposition of an acute 

process on chronic disc degeneration.

There is no compression of the spinal cord or nerve 

roots seen in the examination. Therefor (sic), there 

are no abnormalities which would correspond to 

findings of myelopathy or radiculopathy.
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Dr. Daniel Goldstein, an orthopedic surgeon retained by the 

defense to conduct an [independent medical examination], 

reported:

The medical documentation does not support the causal 

relationship between the accident and the injury.

[Appellant] stated he did have a car accident approximately 

four to five years prior. He stated he also had prior low back 

pain for which he did physical therapy for his low back.

Currently he's not undergoing any current treatment and I 

would not recommend any further treatment related to this 

accident.

If [Appellant] were to have complaints about the 

lumbosacral pain or lower extremity radiculopathy, I would 

attribute that to degenerative process and not acute or 

traumatic in nature.

Id. at 3-4 (record citations omitted).

At the conclusion of trial on January 23, 2020, the jury ultimately found 

Parks negligent, but determined that Parks’ negligence was not a factual cause 

of Appellant’s injuries. On January 29, 2020, Appellant filed a timely post-trial

motion. Therein, Appellant requested that the trial court enter judgment 

notwithstanding the verdict (JNOV) in his favor and grant a new trial on 

damages. In the alternative, Appellant requested a new trial. The trial court 

denied relief by order entered on February 24, 2020. Appellant filed a praecipe 

to enter judgment and this timely followed.

1

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1 On March 12, 2020, Appellant filed a notice of appeal. Upon review of the 

record, it does not appear that the trial court ordered Appellant to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). 

On August 3, 2020, the trial court issued an opinion pursuant to Pa.R.A.P. 

1925(a).
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On appeal, Appellant presents the following issue for our review:

Did the trial court err in denying Appellant's motion for post[-]trial 

relief where the jury verdict shocked the conscience by going 

against the clear weight of the evidence, when the jury was 

presented with evidence from [Park]'s own orthopedic expert that 

Appellant's injuries were causally related to the collision at issue 

and the jury found no causation?

Appellant’s Brief at 4 (superfluous capitalization omitted).

In sum, Appellant argues:

Where there is no dispute that the defendant is negligent and both 

parties' medical experts agree the accident caused some injury to 

the plaintiff, the jury may not find the defendant's negligence was 

not a substantial factor in bringing about at least some of plaintiff's 

injuries. Andrews [v. Jackson], 800 A.2d [959 (Pa. Super. 

2002).] Such a verdict is contrary to the weight of the evidence 

adduced at trial. In other words, “a jury is entitled to reject any 

and all evidence up until the point at which the verdict is so 

disproportionate to the uncontested evidence as to defy common 

sense and logic.” Andrews, 800 A.2d at 962.

In the instant trial[,] Appellant's doctor[, Dr. Allen, opined] that 

he sustained injury as a result of the motor vehicle collision. So 

did Dr. Goldstein, the doctor who performed the defense medical 

examination. The courts have recognized instances where both 

parties' medical experts agreed that Appellant suffered injury and 

that defendant's negligence was a substantial factor in causing the 

injury, but the injuries were not serious enough to award 

compensation. See Majczyk v. Oesch, 789 A.2d 717 (Pa. Super. 

2001). However, when that type of situation arose, the proper 

[result] was to for the jury to find that the accident was a 

substantial cause of at least some injury, "where both parties 

medical experts agree the accident caused some injury. While the 

jury may then find the injuries caused by the accident were 

incidental or noncompensable and deny damages on that basis, 

the jury may not simply find the accident did not 'cause' an injury, 

where both parties' medical experts have testified to the 

contrary." Andrews, 800 A.2d at 964.
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Appellant’s Brief at 13-14. Citing our subsequent decisions following 

Andrews, specifically, Smith v. Putter, 832 A.2d 1094 (Pa. Super. 2003), 

Kraner v. Kraner, 841 A.2d 141 (Pa. Super. 2004), and Bostanic v. 

Barker-Barto, 936 A.2d 1084 (Pa. Super. 2007), Appellant argues the trial 

court “did not apply the correct standard as outlined in Andrews and its 

progeny, and instead, focused on other factors such as [] Appellant's other 

medical records and credibility, which are not factors in an Andrews

analysis.” Id. at 16. In support of his argument, Appellant relies heavily on 

the written report of defense expert, Dr. Goldstein, wherein Dr. Goldstein 

opined that Appellant’s injuries were causally related to the accident.

2

 

Appellant notes, however, that when defense counsel read portions of Dr. 

Goldstein’s report into the record at trial, counsel misread the report and 

incorrectly stated that Dr. Goldstein opined that Appellant’s injuries were not

causally related to the accident.

3

 Id. at 8-9; 16 (emphasis supplied).

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2

 By stipulation, the parties agreed that counsel for each side would read their 

respective expert opinions into the record in lieu of calling expert witnesses 

for live testimony or introducing expert testimony through videotaped 

deposition.

3

 Appellant did not object to any alleged misrepresentation of Dr. Goldstein’s 

expert report at trial. “Under prevailing Pennsylvania law, a timely objection 

is required to preserve an issue for appeal.” Samuel-Bassett v. Kia Motors 

Am., Inc., 34 A.3d 1, 45 (Pa. 2011) (“the object of contemporaneous 

objection requirements respecting trial-related issues is to allow the court to 

take corrective measures and thereby to avert the time and expense of 

appeals or new trials.”). Moreover, Appellant did not raise this specific aspect 

of his current claim in his post-trial motion. If an issue is not raised in a 

post-trial motion, it is waived for purposes of appeal. See Pa.R.C.P. 
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We adhere to the following standard of review:

[A]ppellate review of a weight claim is a review of the [trial 

court's] exercise of discretion, not of the underlying question of 

whether the verdict is against the weight of the evidence. Because 

the trial judge has had the opportunity to hear and see the 

evidence presented, an appellate court will give the gravest 

consideration to the findings and reasons advanced by the trial 

judge when reviewing a trial court's determination that the verdict 

is against the weight of the evidence. One of the least assailable 

reasons for granting or denying a new trial is the lower court's 

conviction that the verdict was or was not against the weight of 

the evidence and that a new trial should be granted in the interest 

of justice.

We stress that if there is any support in the record for the trial 

court's decision to deny the appellant's motion for a new trial 

based on weight of the evidence, then we must affirm. An 

appellant is not entitled to a new trial where the evidence 

presented was conflicting and the fact-finder could have decided 

in favor of either party.

Corvin v. Tihansky, 184 A.3d 986, 992–993 (Pa. Super. 2018) (internal 

citations omitted).

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227.1(b)(2); Agostinelli v. Edwards, 98 A.3d 695, 705 (Pa. Super. 2014). 

Moreover, an appellant cannot raise an issue for the first time on appeal. See

Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived and cannot 

be raised for the first time on appeal.”). In the absence of a contemporaneous 

objection, the record is devoid of factual development and counseled advocacy 

explaining how and why defense counsel’s alleged misstatement occurred. 

Hence, Appellant’s omission has impaired our ability to undertake meaningful 

appellate review of this claim. Therefore, because Appellant failed to properly 

preserve this aspect of his appeal, we find it waived. Regardless, as discussed 

at length below, Appellant’s reliance on the purported mistake does not entitle 

him to relief because Dr. Goldstein was not the only defense expert at trial

and another defense expert testified that Appellant’s medical complaints could 

be explained by chronic degeneration and not accident-related trauma.
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In Andrews, our Court held “[w]here there is no dispute that the 

defendant is negligent and both parties' medical experts agree the accident 

caused some injury to the plaintiff, the jury may not find the defendant's 

negligence was not a substantial factor in bringing about at least some of 

plaintiff's injuries.” Andrews, 800 A.2d at 962 (emphasis in original). In

Andrews, however, we distinguished the facts of that case with our decisions 

in Henery v. Shadle, 661 A.2d 439 (Pa. Super. 1995), Holland v. Zelnick, 

478 A.2d 885 (Pa. Super. 1984), and Majczyk v. Oesch, 789 A.2d 717 (Pa.

Super. 2001) (en banc):

The[] cases, in which both parties' experts agree the accidents 

caused some injury, are distinguishable from Henery [] and 

Holland[.] In Henery and Holland, the experts for both sides 

disagreed that the accidents in question caused the soft tissue 

injuries alleged. Although the defense experts in both cases 

conceded that a soft tissue injury “could have” or “may have” been 

caused by the accidents, neither expert conceded the accident 

actually caused any soft tissue injuries. Thus, the juries in 

Henery and Holland were justified in finding the accidents did 

not cause the plaintiffs' injuries, as this finding did not contradict 

a consensus among the medical experts that the accident caused 

some injury.

On the other hand, in the cases where the experts agreed the 

accidents caused some injury, but the jury found to the contrary, 

that finding was determined to have contradicted all the evidence 

of the medical experts. A new trial on damages was warranted, 

because such a verdict bears no rational relation to the evidence

adduced at trial.

[T]his Court considered the issue in Majczyk v. Oesch, 789 A.2d 

717 (Pa. Super. 2001) (en banc). In that case, the defendant's 

medical expert conceded the plaintiff had some sore muscles after 

the accident. The jury, however, did not award the plaintiff 

damages. This Court concluded that the jury may decide, based 

on their experience and common sense, that a claimed injury is 
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not serious enough to award compensation. In other words, the 

jury is permitted to find the defendant's negligence caused an 

“injury,” but that the “injury” caused was not compensable. Thus, 

this Court held, “that the determination of what is a compensable 

injury is uniquely within the purview of the jury.” Id. at 726. Our 

reading of Majczyk, however, does not lead us to conclude that 

a jury may disregard uncontroverted expert witness testimony 

that the accident at issue [caused] some injury. Rather, we 

conclude the jury must find the accident was a substantial cause 

of at least some injury, where both parties[’] medical experts 

agree the accident caused some injury. While the jury may then 

find the injuries caused by the accident were incidental or 

non-compensable and deny damages on that basis, the jury may 

not simply find the accident did not “cause” an injury, where both 

parties' medical experts have testified to the contrary.

Andrews, 800 A.2d at 963–964.

From our review of the record in this case, the parties’ medical experts 

did not agree that the accident at issue caused Appellant to sustain some

injury. Here, as noted by the trial court, the defense relied upon the expert

report of “Michael Brooks, M.D., J.D., board certified diagnostic radiologist,” 

who opined:

It is [] my opinion, within a reasonable degree of medical 

certainty, after review of the lumbar imaging study as described

above to state the following in relation to a traumatic event dated 

[March 11, 2016]:

One; chronic and longstanding preexisting degenerative changes 

are present[.]

This finding is consistent with chronic degenerative process which 

would predate and be unassociated with the traumatic event in 

question.

There are no findings in the lumbar imaging study which would be 

caused by the traumatic event in question.
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N.T., 1/22/2020, at 133; see also Trial Court Opinion, 8/3/2020, at 3-5 

(“Defense radiologist, Dr. Michael Brooks, found that Appellant’s condition was

part of a chronic degenerative process, unrelated to and unexacerbated by 

the collision.”). On appeal, Appellant does not challenge the trial court’s 

reliance on Dr. Brooks opinion. Accordingly, we reject Appellant’s suggestion 

that both parties’ medical experts agreed that the accident caused injury. 

Hence, it was not error for the jury to find that the accident was not the cause 

of Appellant’s injuries.4 As such, Appellant is not entitled to a new trial where 

the trial evidence presented was conflicting and the jury could have decided 

in favor of either party. 

Order affirmed.

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4

 Finally, we briefly respond to Appellant’s assertion that the trial court erred 

when it opined that the jury’s finding could have been based on other factors 

such as Appellant's medical records, an assessment of Appellant’s credibility 

at trial and when reporting his injuries, as well as a subsequent rear-end 

collision involving Appellant after the accident at hand. After determining, 

based upon Majczyk, that the jury’s verdict in this case reflected its finding 

that the parties’ experts did not agree that Appellant’s injuries were caused 

by the accident in question, the trial court went on to state that it was also 

within the jury’s province to determine whether the injuries were compensable 

and that the jury could properly consider the aforementioned factors. As we 

explained at length above, the jury may not disregard agreement between 

competing experts that an accident caused some injury to the plaintiff. In 

certain instances, however, the jury may find that claimed injuries were 

incidental or unworthy of compensation. We need not examine which of these 

scenarios manifested in this case, however, because the trial court here 

properly applied Andrews when it determined that the experts for both 

parties did not reach a consensus. We affirm the trial court’s decision on this 

basis. See Generation Mortg. Co. v. Nguyen, 138 A.3d 646, 651 (Pa. 

Super. 2016) (“As an appellate court, we may uphold a decision of the trial 

court if there is any proper basis for the result reached; thus we are not 

constrained to affirm on the grounds relied upon by the trial court.”).
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Judge Strassburger did not participate in the consideration or decision 

of this case.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/14/21