J-A11037-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JENNA MARIE SCOTT, A MINOR BY AND 

THROUGH HER GUARDIAN AD LITEM, 

JUDITH ALGEO, ESQUIRE

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

LOWER BUCKS HOSPITAL, 

AMY L. HARVEY, M.D., MARK D. KUHN, 

M.D., LAURA CASTNER, RN, JO ANN 

BUTRICA, RN, AND MARY (BOYLE) 

ROMOLINI, RN

APPEAL OF: AMY L. HARVEY, M.D., AND 

MARK D. KUHN, M.D. No. 1140 EDA 2015

Appeal from the Order Dated April 10, 2015

In the Court of Common Pleas of Bucks County

Civil Division at No(s): 2010-01193

JENNA MARIE SCOTT, A MINOR BY AND 

THROUGH HER GUARDIAN AD LITEM, 

JUDITH ALGEO, ESQUIRE

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

LOWER BUCKS HOSPITAL, 

AMY L. HARVEY, M.D., MARK D. KUHN, 

M.D., LAURA CASTNER, RN, JO ANN 

BUTRICA, RN, AND MARY (BOYLE) 

ROMOLINI, RN

APPEAL OF: LOWER BUCKS HOSPITAL, 

LAURA CASTNER, RN, JO ANN BUTRICA, 

RN, AND MARY (BOYLE) ROMOLINI, RN No. 1306 EDA 2015
J-A11037-16

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Appeal from the Order Dated April 10, 2015

In the Court of Common Pleas of Bucks County

Civil Division at No(s): 2010-01193

BEFORE: SHOGAN, J., MUNDY, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.: FILED JULY 21, 2016

Appellants, Amy L. Harvey, M.D. and Mark D. Kuhn, M.D. (collectively 

Doctors)1and Lower Bucks Hospital, Laura Castner, RN, Jo Ann Butrica, RN, 

and Mary (Boyle) Romolini, RN (collectively Hospital), appeal from the April 

10, 2015 order awarding a new trial to Appellee, Jenna Marie Scott (Scott), 

a minor by and through her guardian ad litem, Judith Algeo, Esquire (Algeo). 

After careful review, we dismiss Hospital’s appeal in part, affirm the award of 

a new trial, and vacate the order awarding fees to the guardian ad litem.

We adopt the facts and procedural history set forth in the trial court’s 

opinion. Trial Court Opinion, 8/10/15, at 1-7. Briefly, Scott brought this 

medical malpractice action against Doctors and Hospital, alleging that they 

were negligent during her birth. This negligence resulted in permanent 

injuries, including a hypoxic brain injury, cerebral palsy, and blindness. On 

September 24, 2014, after a four-week jury trial, the jury found Dr. Harvey 

negligent, but found that her negligence did not increase the risk of harm to 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 Doctors’ appeal was docketed at 1140 EDA 2015, and Hospital’s appeal 

was docketed at 1306 EDA 2015. This Court sua sponte consolidated the 

appeals because they involve related issues and parties. See Pa.R.A.P. 513 

(permitting sua sponte consolidation).
J-A11037-16

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Scott. The jury found the remaining Appellants not negligent. On October 

3, 2014, Scott timely filed a post-trial motion for a new trial. On October 9, 

2014, Hospital filed a post-trial motion for judgment notwithstanding the 

verdict (JNOV). On March 31, 2015, the trial court filed an order granting 

Scott’s motion for post-trial relief, but the court did not serve that order until 

April 10, 2015. On April 15, 2015, Doctors filed a timely notice of appeal.2 

Subsequently, on April 28, 2015, Hospital filed its timely notice of appeal.3

On appeal, Hospital raises the following issues for our review.

1. Is a Hospital entitled to a JNOV on 

[Appellee’s] claim of Hospital ostensible liability for 

the conduct of [Appellant] physicians where there is 

no evidence that the Hospital did anything to “hold 

out” to the patient that the physicians its [sic] 

agents; where there is no evidence that the patient 

ever believed or thought, in fact, that the physicians 

were Hospital agents; and where any such mistaken 

thought would have been unreasonable and 

unjustified, because physician communications to the 

patient would have informed any reasonable person 

that the physician was not a Hospital employee?

2. On a contention that a nurse misinterpreted external fetal monitoring strips, is the 

nurse entitled to a JNOV where the discharging 

physician based her discharge decision on her own 

review of the strips, her own assessment of the 

clinical data, all independent of the nurse, with 

____________________________________________

2 See In re L.M., 923 A.2d 505, 508-509 (explaining appeal period does not

begin to run until the trial court gives Pa.R.C.P. 236(b) notice of the entry of 

an order).

3 Appellants and the trial court complied with Pennsylvania Rule of Appellate 

Procedure 1925.
J-A11037-16

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whom she did not even discuss the EFM strips, and 

thus there was no evidence that any nurse conduct 

had any causal relation to the physician’s decision to 

discharge the patient from the Hospital?

3. Should a new trial be ordered on the basis 

of the collateral source of payment rule, where there 

was no evidence of any collateral source of payment 

of the child’s medical expenses received at trial, and 

the only time the jury was told about this was during 

the court’s charge to jury, to which [Appellee’s] 

counsel explicitly agreed as proper?

4. Should a new trial be ordered on the basis 

of “fundamental unfairness” of allegedly 

objectionable questions asked by counsel, where any 

objections thereto were sustained, no requests for 

curative instructions were made, no motion for 

mistrial was ever made, and the court has not 

identified any error in its rulings below?

Hospital’s Brief at 2-4.

Further, Doctors present the following issues for our review.

1. Whether any of the conduct of defense 

counsel mentioned by the trial court is sufficient to 

justify the award of a new trial, where all questions 

were properly related to admissible evidence and/or 

where all objections thereto were waived[?]

2. Whether the questions concerning damages 

incurred by [Appellee] were in violation of the 

collateral source rule, in a manner justifying a new 

trial[?]

3. Whether [Appellants] can be forced to pay 

for minor, incapacitated [Appellee’s] guardian ad 

litem’s fees, and whether the claim for those fees is 

proper where both the hourly rate and the time 

incurred are unreasonable and excessive, and the 

services compensated are not compensable as 

guardian ad litem services[?]
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Doctors’ Brief at 4.

Hospital’s first two issues challenge the denial of its post-trial motion 

for JNOV.4 In its motion for JNOV, Hospital admits “this is a wholly 

protective motion filed by verdict winners.” Brief of Hospital in Support of 

Cross-Motion for Post-Trial Relief, 1/30/15, at 3. Hospital was the prevailing 

party at trial because the jury returned a verdict in its favor, finding no 

negligence. Nonetheless, Hospital contends that because the trial court 

granted a new trial, it should have considered Hospital’s motion for JNOV. 

Id. Hospital argues it is entitled to JNOV because Scott did not present 

evidence at trial that made out a claim against Hospital. Id. at 14. 

However, in awarding a new trial to Appellee, the trial court vacated the 

jury’s verdict. The award of a new trial did not resolve the case in favor of 

____________________________________________

4 Even though the trial court did not expressly dispose of Hospital’s post-trial 

motions, Hospital’s October 9, 2014 post-trial motions were denied by 

operation of law after 120 days, on February 6, 2015. See Morningstar v. 

Hoban, 819 A.2d 1191, 1195 (Pa. Super. 2003) (explaining that 

“[Pennsylvania] Rule [of Civil Procedure] 227.4(b) recognizes that post-trial 

motions may be deemed resolved when the trial court does not enter an 

order disposing the motions within 120 days[]”), appeal denied, 844 A.2d 

553 (Pa. 2004). Typically, when post-trial motions are denied by operation 

of law, a party may praecipe for entry of judgment to obtain a final, 

appealable order. See id. at 1195-1196 (noting a party’s right to praecipe 

for judgment after post-trial motions have been pending for more than 120 

days); Pa.R.C.P. 227.4(b) (authorizing the prothonotary to enter judgment 

upon praecipe of any party when the trial court does not dispose of post-trial 

motions within 120 days). However, in this case, because the trial court 

awarded a new trial in Appellee’s favor, Hospital could not praecipe for the 

entry of judgment against itself and in favor of Appellee. Therefore, because 

Hospital’s motion for JNOV was denied by operation of law, we decline to 

quash Hospital’s appeal.
J-A11037-16

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either Scott or Hospital, and it did not enter a verdict in favor of Scott nor 

confirm the verdict in favor of Hospital. Therefore, any issues in Hospital’s 

motion for JNOV are premature until the conclusion of the new trial.

5

Hospital’s final two issues and Doctors’ first two issues challenge the 

award of a new trial. Initially, Appellants argue Scott waived the request for 

a new trial by not moving for a mistrial during trial when the trial court 

sustained her objections to Appellants’ improper questions. Hospital’s Brief 

at 48; Doctors’ Brief at 13. However, a trial court may sua sponte grant a 

new trial if sufficient cause exists. See Armbruster v. Horowitz, 813 A.2d 

698, 704 n.6 (Pa. 2002) (noting “a trial judge has the power to grant a new 

trial sua sponte if [the trial judge] determines that the interests of justice so 

require[]”) (citations omitted); Commonwealth v. Powell, 590 A.2d 1240, 

1245 (Pa. 1991) (affirming a trial court’s sua sponte award of a new trial 

following the jury verdict and stating “[w]here it will result in the attainment 

of justice, a trial court may grant a new trial without the initiation of the 

defendant[]”) (citations omitted); Getz v. Balliet, 246 A.2d 108, 110 (Pa. 

1968) (noting “[i]t has long been established that if sufficient cause exists, a 

court may grant a new trial sua sponte[]”), citing Trerotola v. City of 

Phila., 29 A.2d 788 (Pa. 1943); Read v. Shu, 615 A.2d 109, 110 (Pa. 

Super. 1992) (affirming trial court’s sua sponte award of new trial due to the 

____________________________________________

5 We note that after the new trial, Hospital may file post-trial motions.
J-A11037-16

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inadequacy of the jury’s damages award). Because the trial court has the 

inherent authority to order a new trial, a party’s actions cannot waive the 

trial court’s exercise of that power. Therefore, Scott did not waive this 

issue.

On the merits of Hospital’s and Doctors’ issues relating to the award of 

a new trial, we adopt the thorough and well-reasoned opinion of the 

Honorable Robert J. Mellon. Therein, Judge Mellon details “[t]he cumulative 

effect of [Appellants’] conduct[, which] created insurmountable and undue 

prejudice towards [Appellee.]” Trial Court Opinion, 8/10/15, at 10. 

Specifically, during the four-week jury trial, Appellants’ improper questioning 

forced the trial court to issue at least 23 warnings to Appellants “regarding 

their incessant attempts to elicit inadmissible and prejudicial testimony.” 

Id. at 24. Further, the trial court concluded that “despite its numerous 

warnings and instructions, [Appellants’] conduct caused the jury to speculate 

about other alleged causes of injury through inadmissible evidence which 

resulted in a verdict for [Appellants].” Id. (emphasis added). The trial 

court was in the best position to view how the repeated prejudicial 

questioning influenced the jury, and we give great deference to the trial 

court’s observations. Judge Mellon concluded that “where [Appellants] 

intentionally violated pre-trial orders, the only remedy is a new trial, in 

order to promote fundamental fairness, to ensure professional respect for 

the rulings of the trial court, to guarantee the orderly administration of 
J-A11037-16

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justice, and to preserve the sanctity of the rule of law.”6 Id. (emphasis in 

original). 

The trial court’s August 10, 2015 opinion fully and accurately disposes 

of Hospital’s and Doctors’ issues on appeal. The trial court did not abuse its 

discretion in awarding a new trial in the interests of justice. See Powell, 

supra. Therefore, we affirm the trial court’s order granting a new trial.

In Doctors’ third issue, they contend that the trial court erred in 

directing them to pay one-third of the guardian ad litem’s fees.7 Doctors’ 

Brief at 51. Scott responds that the trial court appointed Algeo at 

Appellants’ request, over Scott’s opposition. Scott’s Brief at 52-53.

The award of fees to a guardian ad litem implicates the Pennsylvania 

Rules of Civil Procedure. “Issues regarding the operation of procedural rules 

of court present us with questions of law. Therefore, our standard of review 

is de novo and our scope of review is plenary.” Green Acres Rehab. & 

Nursing Ctr. v. Sullivan, 113 A.3d 1261, 1267-1268 (Pa. Super. 2015) 

(citations and internal quotation marks omitted).

____________________________________________

6 After Appellants’ egregious disregard for the trial court’s repeated 

instructions and rulings, their assertions of waiver, and justification of their 

actions are disingenuous.

7 The trial court also ordered Scott to pay one-third of Algeo’s fees and 

Hospital to pay the remaining one-third. Hospital did not appeal the award 

of guardian ad litem fees.
J-A11037-16

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“A guardian ad litem is appointed by the court to represent a minor 

child in particular litigation. The function of the guardian is to represent and 

protect unrepresented minors and their interests.” C.W. v. K.A.W., 774 

A.2d 745, 748-749 (Pa. Super. 2001) (citations omitted). Pennsylvania Rule 

of Civil Procedure 2039 provides that a guardian for a minor party in a case 

may be compensated upon the completion of the case as follows.

Rule 2039. Compromise, Settlement, 

Discontinuance and Distribution

...

(b) When a compromise or settlement has been so 

approved by the court, or when a judgment has been 

entered upon a verdict or by agreement, the court, 

upon petition by the guardian or any party to the 

action, shall make an order approving or 

disapproving any agreement entered into by the 

guardian for the payment of counsel fees and other 

expenses out of the fund created by the 

compromise, settlement or judgment; or the court 

may make such order as it deems proper fixing 

counsel fees and other proper expenses. ...

Pa.R.C.P. 2039(b).

Because Rule 2039(b) authorizes payment only when a compromise, 

settlement, or judgment has been reached, the trial court’s order directing 

payment of the guardian ad litem’s fees was premature. See id. The Rule 

does not permit a guardian ad litem to recover fees when the case is still 

pending, as when a new trial is ordered. See id. Therefore, the trial court 
J-A11037-16

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erred as a matter of law in awarding guardian ad litem fees at this stage, 

and we vacate that order.8 See Sullivan, supra.

Based on the foregoing, we dismiss Hospital’s appeal in part as 

premature. Further, we affirm the trial court’s April 10, 2015 order awarding 

a new trial. Finally, we vacate as premature the December 26, 2014 order 

awarding fees to the guardian ad litem.

Appeal 1306 EDA 2015 dismissed in part. April 10, 2015 order 

affirmed. December 26, 2014 order vacated.

Judge Shogan joins the memorandum.

Justice Fitzgerald files a concurring and dissenting statement.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/21/2016

____________________________________________

8 Our decision is without prejudice to the right of the guardian ad litem or 

any party to petition for fees under Rule 2039 upon the entry of a 

compromise, settlement, or judgment.
A.l 

,· 

! 

i 

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i·· 

that her negligence did not increase the risk of harm to Jenna. The jury found Defendants Mark 

Defendants. Specifically, thcjury found Defendant Amy L. Harvey, M.D. negligent (11-1), but 

On September 24, 2014, after four weeks of trial, the jury returned a verdict in favor of 

.I 

Pleas. 

On August 28, 2014, a jury trial commenced in the Bucks County Court of Common 

include a hypoxic brain injury, cerebral palsy and blindness. 

Defendants' failure to promptly deliver her in the fact of evident distress. Jenna's injuries 

Marie Scott suffered severe, permanent and profoundly disabling injuries during her birth due to 

her Guardian Ad Litem, Judith Algeo, Esquire ("Plaintiff'), wherein Plaintiff alleges that Jenna 

This case is a, medical malpractice action brought by Plaintiff Jenna Marie Scott, by and through 

speculative and prejudicial evidence in violation of the Court's Orders and Pennsylvania Law. 

Granted Plaintiffs Motion because of Defendants numerous intentional attempts to introduce 

Defendants appeal from the Grant of Plaintiff's Motion for a New Trial. The Court 

OPINION 

Lower Bucks Hospital, Amy L. Harvey, 

M.D., Mark D. Kuhn. M.D., Dr. Pallurne, 

Laura Castner, R.N., Mary Boyle, 

R.N., and Joann Butrica, R.N. 

vs. No. 2010-01193 

Jenna Marie Scott, by and through her 

Guardian Ad Litem, Judith Algeo, Esquire 

CIVIL ACTION 

IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA 

Circulated 07/14/2016 09:23 AM
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2 

I Notes of Testimony (hereinafter "N. T."), 3/24/ 15, 91 :2-3 ("Therefore on the issue of a new trial, I om granting a 

new trial."). 

2 "Rule 1925 is intended to aid trio] judges in identifying and focusing upon those issues which the parties plan to 

raise on appeal. Rule 1925 is thus a crucial component of rhe appellate process." Commonwenlth v. Seiben. 799 

A.2d 54, 62 (Pa. Super. 2002). 

) N.T., 9/1J/14, 3-13. 

~ N.T., 9/5/14, 6: 16-21. 

~ N.T., 9/4/14, 32-52. 9/5/14, 39-57, 9/9/14, 56-62, 9/16/14, 129-152, 9/17/14, 114-129. 

dilated and 50% effaced. 5 Plaintiff alleges that during Jennifer Soco Scott's morning admission, 

Soco Scott's contractions were two (2) to three (3) minutes apart and her cervix was one (l) cm 

Scott's care when she was admitted to the Hospital." Upon admittance to the Hospital Jennifer 

5:00 a.m.' Mark D. Kuhn, M.D ("Dr. Kuhn") was the obstetrician assigned to Jennifer Soco 

Hospital (the "Hospital") with a term pregnancy and complaining of labor pains at approximately 

On the morning of February 11, 2008, Jennifer Soco Scott was admitted to Lower Bucks 

FACTUAL AND PROCEDURAL BACKGROUND 

opinion follows pursuant to Pennsylvania Rule of Appellate Procedure 1925(b).2 

May 18, 2015, the above appeals were Consolidated Suet Sponte by the Superior Court. This 

"Hospital Defendants") filed their Notice of Appeal to the Pennsylvania Superior Court. On 

Hospital, Laura Castner, R.N., Jo Ann Butrica, R.N. and Mary (Boyle) Romolini, R.N (the 

Appeal to the Pennsylvania Superior Court. On April 28, 2015, the Defendants Lower Bucks 

On April 15, 2015, Amy L. Harvey, M.D. and Mark D. Kuhn, M.D filed their Notice of 

fundamentally unfair trial. 1 

Plaintiff was insurmountably prejudiced through Defendants' willful and intentional creation of a 

the Court Granted Plaintiffs Motion for Post Trial Relief, granting Plaintiff a new trial because 

On October 3, 2014, Plaintiff filed a Motion for Post-Trial Relief. On March 24, 2015, 

negligent. 

D. Kuhn, M.D, Laura Castner, R.N., .To Ann Butrica, R.N. and Mary (Boyle) Romolini, R.N. not 
A.3 

!

I ; 

3 

6 N.T., 9/4/14, 47-128, 9/9/14, 121-123. 

7 N.T., 9/2/14, 297-303, 99111/14, 63-65, 9/16/14, 163. 

'N.T., 9/5/14, 56-57. 

9 N.T., 9/5/14, 62. 

1o N.T., 915114, 75:4-9. 

II N.T., 9/11/14, 42-45. 

12 N.T., 915114, 44-47, 9/11/14, 6, 10-14. 

n N.T., 9/5/14, I 13:22-25, 9/17/14 85-84. 

14N.T., 9/3/14, 124-145. 

IS N.T., 9/3/14, 197: 19-25. 

readmitted to Labor and Delivery at Lower Bucks Hospital.' s Plaintiff's expert testified that 

R.N. (''Nurse B utrica ") were responsible for the care of Jenni fer Soco Scott when she was 

Hospital around 9 p.m.!" Mary (Boyle) Rornalini, R.N. ("Nurse Rornalini") and Joann Butrica, 

On the evening of February 11, 2008, Jennifer Soco Scott returned to Lower Bucks 

Soco Scott from Lower Bucks Hospital, there were no signs of fetal comprise.'? 

delivered Jenna during the morning admission.12 At the time Dr. Harvey discharged Jennifer 

instead of being given medication to attempt to stop labor, Jennifer Soco Scott could have 

contractions were four (4) to five (5) minutes apart.11 Dr. Harvey and Dr. Kuhn agreed that 

and told Jennifer Soco Scott and her family that she was not in labor, but to return when her 

approximately 1 :00 p.m. Dr. Harvey discharged Jennifer Soco Scott from Lower Bucks Hospital 

Soco Scott with Dr. Kuhn; Dr. Harvey then took over Jennifer Soco Scott's care.!? At 

At approximately 10:00 a.m., Amy L. Harvey, M.D ("Dr. Harvey") assessed Jennifer 

to show evidence of uterine contractions consistent with labor," 

she was in true labor. 8 After the administration of the Terbutaline, Jennifer Soco Scott continued 

Dr. Kuhn ordered a tocolytic, Terbutaline, for Jennifer Soco Scott to determine whether 

decelerations. 

7 

heart rate, which warranted closer monitoring.6 Defendants failed to further investigate the fetal 

the fetal monitoring strips showed episodes of diminished variability and deceleration in the fetal 
A.4 

. 

. 

i

4 

16 N.T., 9/9/14, 147-152. 

17 N.T., 9/9/14. 153-179, 9/16/14, 223-234. 

II N.T .• 9/3/14, 130:5-9, 190:11-14. 

19 N.T., 9/11/ 14, 82:5-7, 9/3/14, 212: 11-15. 

1~N.T .• 9/11/14, 97:4-12. 

11 N.T., 9/11/14,79:6-14. 

l1 N.T., 9/11/14, 113. 

1' N.T., 9/11/14, 80-85. 

14 N.T., 9111/14, 64-66. 

u N.T., 9/15/14, 8:1-7. 

16 N.T., 9/10/14, 17:21-24. 

care.26 Jenna is a spastic quadriplegic, she has some control over her arms and legs, but does not 

facility for children. is Jenna is unable to speak and is entirely dependent on other people for her 

cerebral palsy and blindness. 

24 Jenna now resides at KenCrest, a full-time residential care 

an abrupt hypoxic brain injury occurring at or about the time of her birth and herinjuries include 

When Jenna was delivered she had no heartbeat and was not breathing.23 Jenna suffered 

Dr. Harvey called for a non-urgent C-section at approximately 9:49 p.m.20 Dr. Harvey 

called for an emergency C-section between 9:57 p.m. and 10:03 p.m.21 Jenna Marie Scott 

("Jenna") was delivered at 10:20 p.m.22 

arrive.19 

admission, but Nurse Romalini testified that at 9:29 p.m. she was still waiting for Dr. Harvey to 

she arrived at Labor and Delivery shortly after she was notified of Jennifer Soco Scott's 

after her readmission, between 9: 13 p.m. and 9: 16 p.m.18 Dr. Harvey testified that she believed 

Dr. Harvey was notified of Jennifer Soco Scott's admission to Labor and Delivery shortly 

decelerations, Jenna was able to repeatedly recover her heart rate." 

significance of the findings.!" Plaintiffs expert testified that despite the evidence of 

evidence of fetal distress, however, Nurse Burtica and Nurse Romalini failed to appreciate the 

upon Jennifer Soco Scott's return to the Hospital, the fetal monitoring strips immediately showed 
A.5 

' ,. 

5 

?7 N.T., 9/10/14, 20:21-24. 

21 N.T., 9/10/14, 10:12-19. 

Post-Trial Relief. 

On February 2, 2015, Plaintiff filed a Brief of Law in Support of Plaintiff's Motion for 

for Post-Trial Relief. 

On October 20, 2014, Hospital Defendants filed a Motion to Strike the Plaintiff's Motion 

for Post-Trial Relief. 

On October I 0, 2014, Dr. Harvey and Dr. Kuhn filed an Answer to Defendants' Motion 

On October 3, 2014, Plaintiff filed a Motion for Post-Trial Relief. 

Ann Butrica and Mary (Boyle) Romolini not negligent. 

not increase the risk of harm to Jenna. The jury found Defendants Dr. Kuhn, Laura Castner, Jo 

Defendants. Specifically, the jury found Dr. Harvey negligent() 1-1 ), but that her negligence did 

On September 24, 2014, after four weeks of trial, the jury returned a verdict in favor of 

Pleas. 

On August 28, 2014, a jury trial commenced in the Bucks County Court of Common 

Pleas. On November 4, 2013, the Court declared a mistrial. 

On October 28, 2013, a jury trial commenced in the Bucks County Court of Common 

Algeo was appointed as the Guardian ad Lttem for Jenna. 

On March 27, 2012, this Court removed Jennifer Soco Scott as Guardian and Judith A. 

guardian Jennifer Soco Scott by filing a Complaint in Trespass for Medical Malpractice. 

On February 4, 20 I 0, the Plaintiff commenced this lawsuit by and through her legal 

nutrition is via a feeding tube inserted into her stomach.28 

do much purposeful movement of her arms and legs.2' Jenna is unable to feed herself, all of her 
A.6 

·,

6 

Complained of on Appeal, no later than twenty-one (21) days from the date of this order. 

' On Apri '· l 29, 20 I 5, the Court ordered Hospital Defendants to file a Statement of Errors 

Superior Court. 

On April 28, 2015, Hospital Defendants filed their Notice of Appeal to the Pennsylvania 

days from the date of this order. 

Kuhn, M.D. to file a Statement of Errors Complained of on Appeal, no later than twenty-one (2 I) 

On April 24, 2015, the Court ordered Defendants Amy L. Harvey, M.D. and Mark D. 

Appeal to the Pennsylvania Superior Court. 

On April 15, 2015, Amy L. Harvey, M.D. and Mark D. Kuhn, M.D. filed their Notice of 

Plaintiff a new trial. 

On March 24, 2015, the Court Granted Plaintiffs Motion for Post-Trial Relief, granting 

Plaintiff's Motion for Post-Trial Relief. 

On March 24, 2015, the Court Denied Hospital Defendants' Motion to Strike the 

M.D's Brief in Opposition to Plaintiffs Post-Trial Motion. 

On March 18, 2015, Plaintiff filed a Reply to Amy L. Harvey, M.D. and Mark D. Kuhn, 

Plaintiff's Post· Trial Motion. 

On March 18, 2015, Plaintiff filed a Reply to Hospital Defendants' Brief in Opposition to 

Opposition to Plaintiffs Post-Trial Motion. 

On March 2, 2015, Amy L. Harvey, M.D. and Mark D. Kuhn, M.D filed a Briefin 

Trial Motion. 

On March 2, 2015, Hospital Defendants filed a Brief in Opposition to Plaintiffs PostMotion for Post-Trial Relief. 

On February 4, 2015, Plaintiff filed a Supplemental Brief of Law in Support of Plaintiffs 
A.7 

7 

2. Assuming that the court intended to grant a new trial only, the court's order did not 

specify as to which verdicts or against which parties. To the extent the court intended to 

order a new trial, as to all parties and verdicts, it did not state any grounds therefore in the 

order. 

1. In plaintiffs motion for post-trial relief, plaintiff requested a judgment 

notwithstanding the verdict, although not specifying as to what verdicts, or against what 

defendants, or on what grounds. Nonetheless the court by its order granting this motion 

without limitation, and presumably including this requested relief, did so erroneously, 

again without stating any grounds therefore. 

(Boyle) Romolini are as follows: 

verbatim by Defendants Lower Bucks Hospital. Laura Castner, Jo Ann Butrica, and Mary 

Complained of on Appeal on May 6, 201 S. The Matters Complained of on Appeal as alleged 

Hospital, Laura Castner, Jo Ann Butrica, and Mary (Boyle) Romolini filed a Statement of Errors 

Pursuant to Pennsylvania Rule of Appellate Procedure l 925(b), Defendants Lower Bucks 

l. Defendants assert that their counsel did not violate any pre-trial or trial ruling of the 

Court, there was no unfair prejudice to Plaintiff caused by any act of Defendants' counsel, and 

that Plaintiff's post-trial motions and in oral argument on those motions, which are incorporated 

herein by reference. 

Bucks Hospital, Laura Castner, Jo Ann Butrlca and Mary (Boyle) Romolini are as follows: 

May 5, 2015. The Matters Complained of on Appeal as alleged verbatim by Defendants Lower 

~:·, Harvey, M.D. and Mark D. Kuhn, M.D. filed a Statement of Errors Complained of on Appeal on ·, 

Pursuant to Pennsylvania Rule of Appellate Procedure l 925(b), Defendants Amy L. 

,. 

" 

STATEMENT OF MA TIERS COMPLAINED OF ON APPEAL 

On May 18, 2015. the Superior Cou11 Sua Sponte Consolidated the above appeals. 

Appeal. 

On May 6, 2015, Hospital Defendants filed a Statement of Matters Complained of on 

Matters Complained of on Appeal. 

On May 5, 2015, Amy L. Harvey, M.D. and Mark D. Kuhn, M.D. filed a Statement of 
A.8 

8 

29 Harman ex rel. Hannan v. Bornh, 756 A.2d 1116. 1121 (Pa. 2000). 

trial is an effective instrumentality for seeking and achieving justice in those instances where the 

"Trial courts have broad discretion Lo grant or deny a new trial. "29 "The grant of a new 

I. The Court Did Not Err in Ordering n New Trial. 

DISCUSSION 

8. The court erred in ruling that, without any motion for mistrial made, it can order a new 

trial for what it characterized as "fundamental unfairness" of questions asked by 

physicians counsel. 

7. To the extent that objectionable questions resulted in the court sustaining the 

objection, but the court found the posing of the question itself created "fundamental 

unfairness" which required a new trial, that was in error because in those cases, plaintiffs 

counsel either did not request a curative or cautionary instruction, or did so and it was 

granted, but in no case did plaintiff's counsel ever move for a mistrial because the 

offending question was asked, and therefore any issues thereto has been waived. 

6. To the extent the questions were objectionable, the court erred in granting a new trial 

based thereon, because at trial, whenever an objection was made to such a question, the 

court sustained the objection, and the evidence was not received or herd by the jury. To 

the extent an objection was not raised to any offending question, that issue was waived 

and cannot provide grounds for the court ordering a new trial. 

·,· 

'·· 

5. As to grounds for ordering a new trial as stated by the court during oral argument, 

namely that some questions asked by the physicians' counsel where in violation of pretrial rulings, again errors claimed can only be stated herein generally, because the court 

did not specify which rulings were violated by precisely which questions. The Hospital 

defendants generally assert error here because the questions either were not in violation 

of the court pre-rulings and were otherwise proper questions regarding admissible 

evidence. 

4. The court erred in ordering a new trial as to Dr. Kuhn, who was exonerated from 

liability by the jury verdict, where the plaintiff's assignments of error in the admission of 

evidence all related to issues of damages and causation, and did not raise any questions as 

to the veracity of the Dr. Kuhn's liability verdicts, or question any evidence admitted on 

the issues of his liability. 

3. The court erred in ordering a new trial as to any nurse defendant, all of whom were 

exonerated from liability by the jury verdict, where the plaintiffs assignments of error in 

the admission of error in the admission of evidence all related to issues of damages and 

causation, and did not raise any question as to the veracity of the nurse liability verdicts, 

or question any of evidence admitted on the issues of nurse liability. 

~-: 
A.9 

9 

lO Id. 

11 Deeds v. U. of Pennsylvania Med. Ctr., 110 A.3d I 009, IO 12 (Pa. Super.2015), reargumcnt denied (Apr. 7. 

2015)(citing Maya v. Johnson & Johnson & McNeil-PPC, Inc. {(n re McNciU-PPC. Inc.), 97 A.3d 1203, 1224 

(Pa.Super.20 I 4)). 

32 f-111rman ex rel. Hannan. 756 A.2d at 1122. 

H Deeds v. U. of Pennsylvania Med, Ctr., 110 A.3d 1009, 1012 (Pa. Super. 2015), reargument denied (Apr. 7, 2015) 

34 Lee v, S.E. Pennsylvania Transp. Auth., 704 A.2d 180, 183-84 (Pa. Cmmw. 1997)(citations emitted). 

JS Mirabel v Morales, 57 A.3d 144, 151 (Pa. Super. 2012). 

36 Stevenson v. Pennsylvania Sports & Enterprises. 93 A.2d 236, 240 (Pa. 1952) . 

discretion for the court below to refuse a new trial. ''36 

to the discretion of the trial judge. Where the remark is obviously prejudicial, it is an abuse of 

..... ~ .•. 

r~ 

motion for a new trial for alleged misconduct or improper remarks of counsel is directed largely 

the orderly administration of justice, and to preserve the sanctity of the rule of law."35 "A 

fundamental fairness, to ensure professional respect for the rulings of the trial court, to guarantee 

intentionally violates n pre-trial order, the only remedy is a new trial, in order to promote 

counsel may have prejudiced the jury. "34 The Superior Court bas "held that when a party 

,, 

... ,.; 

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I· 

"[A) trial judge may grant a new trial if he finds that ... improper statements made by 

:J 

,:,: 

trial. "33 

admitted testimony may have affected a verdict, the only correct remedy is the grant of a new 

whether the mistake was a sufficient basis for granting a new trial."32 "Further, when improperly 

matters. [l]f the trial court concludes that a mistake (or mistakes) occurred, it must determine 

more mistakes occurred at trial. These mistakes might involve factual, legal, or discretionary 

,'. the case.'?' In determine whether to grant a new trial "the trial court must decide whether one or 

its decision absent a clear abuse of discretion or an error of law which controls the outcome of 

"The power to grant a new trial lies inherently wit~ the trial court and we will not reverse 

result, which, after all, is the primary goal of all legal proceedings.vl? 

original trial, because of taint, unfairness or error, produces something other than a just and fair 

~ 

... -. 

r 

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; 

: 

~ ,. 

, .. 
A.10 

• 

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t

10 

discretion for this Court to refuse a new trial. 

improper questioning was obviously prejudicial, and therefore it would have been an abuse of 

the only appropriate remedy. Defendants' statements and the testimony elicited through 

created insurmountable and undue prejudice towards Plaintiff and is the reason why n new trial is 

harm to Jenna which resulted in a defense verdict. The cumulative effect of Defendants' conduct 

basis. The conduct by Defendants caused the jury to speculate about other possible causes of the 

to Defendants' conduct which allowed the jury to hear inadmissible evidence with no evidentiary 

was fundamentally unfair for Plaintiff This Court finds this trial to be fundamentally unfair due 

demonstrated a blatant indifference for the rulings of this Court and created an environment that 

Despite the warnings and instructions from this Court, Defendants repeatedly 

5. That resulted in at least twenty-three (23) warnings and instructions from 

this Court to Defendants. 

4. That Jennifer Soco Scott intended to give Jenna up for adoption following 

her birth; 

3. That the placenta had a chornngioma lesion with no evidence or expert 

opinion to support this conclusion; 

2. That baby suffered a speculative brain injury prior to mother's admission 

to care of Defendants; 

1. That the mother's alleged inadequate prenatal care is to blame for 

Plnintiff's injuries; 

Court's Orders: 

Throughout the trial Defendants attempted to introduce evidence in violation of the 

n. Plaintiff is Entitled to a New Trial Because Plaintiff Suffered 

Insurmountable Prejudice Due to the Cumulative Effect of the Testimony 

Elicited by Defendants in violation of this Court's Orders. 
A.11 

11 

;, N.T., 9/2/14, 21: 7-21. 

33 N.T., 9/2114, 22-23: 24-25, 1-2 (emphasis added). 

The Cou11: .... Its scope says, limited to, that you're being precluded with regard 

to inadequacy and number of prenatal visits and that is grantcd.38 

The Cou11: To the extent something occurred on a specific date that you want to 

explore, that's fine. But you can't, for example, you went to the doctor on this date 

and this date and that's the only doctors that you saw. That would be improper. 

lf there's a historical event that occurred on a particular visit, you should 

reference the visit, not first, second, third or that's all or the only ones, and say on 

this visit you were given this information and whatever the historical event is, the 

factual event that's relevant.. .. 

37 

Limited and/or Inadequate Prenatal Care Throughout her Pregnancy with Jenna. 

Evidence, Reference, Argument, Suggestion and/or Innuendo that Jennifer Soco Scott Received 

This Court made a clear and precise ruling on Plaintiff's Motion in /imine to Exclude any 

1. Defendants lntentionallv Violated the Court's in Llmine Ruling by 

Repeatedly Attempting to Blame Plnintifrs Injuries on the Allegedly 

Inadequate Prenatal Cnre by Jennifer Soco Scott. 

4. Defendants Intentionally Violated the Court's Rulings by Repeatedly Eliciting 

Irrelevant Testimony Regarding the Intended Adoption of Jenna. 

3. Defendants Intentionally Violated the Court's in Limlne Ruling by Repeatedly 

Attempting to Elicit Speculative Testimony that the Placenta had a Chorangtoma 

Lesion. 

2. Defendants Intentionally Violated the Court's in Limine Ruling by Repeatedly 

Eliciting Inadmissible Testimony Concerning a "Unpredictable Brain Injury." 

1. Defendants Intentionally Violated the Court's i11 Limine Ruling by Repeatedly 

Attempting to Blame Plaintiff's Injuries on the Allegedly Inadequate Prenatal Care 

by Jennifer Soco Scott. 

creation of a fundamentally unfair trial for the following reasons: 

Plaintiff was insurmountably prejudiced through Defendants' willful and intentional 
A.12 

12 

39 N.T., 9/8/14, 178, 234-238, 244, 291, 301-309. 

~0 Bosci11 v. Mossoro, 529 A.2d 504, 505 (Pa. Super. I 987)(cilotions omitted). 

~, Mirabel, 57 A.3d at 151 (citations omitted)(cmphasis added). 

42 N. T., 9/8/14, 74-75, 178-180, 236, 292, 303-309: 9/19/14, 242-243, 271-276; 9/12/14, 66-67; 9/15/14). 70-72, 89- 

91. 

Joan Orsini-Ford, Esq.: And were you aware that she wenl there on a Saturday night 

because she had complaints of lack of fetal movement? 

Garofalo, Jennifer Soco Scott's cousin by marriage: 

Defense counsel violated the Court's ruling on cross-examination of Michael A. 

atmosphere through innuendo that Jennifer Soco Scott was comparatively negligent. 

created a fundamentally unfair trial by attempting to prejudice the Plaintiff by creating an 

regarding prenatal care and created a fundamentally unfair situation for Plaintiff '12 Defendants 

' ' t 

slightest respect for the rulings of this Court resulted in the introduction of prejudicial evidence 

attempt to preserve a fair trial. Defendants' aggravating inability and unwillingness to show the 

instructions and warnings about prenatal care to both the jury and Defendants in its unsuccessful 

was not an isolated incident. Throughout the trial this Court was forced to offer ten (10) 

Defendants' deliberate effort to continually introduce speculative, inadmissible evidence 

the orderly administration of justice, and to preserve the sanctity of the rule of law. "'41 

fundamental fairness, to ensure professional respect for the rulings of the trial court, to guarantee 

insurmountable prejudicial references, "the only remedy is a new trial, 'in order to promote 

improper statements made by counsel may have prejudiced the jury."40 When an attorney makes· 

"A trial judge may grant a new trial if he finds that improperly admitted evidence or 

for this Court's rulings resulted in an environment which made a fair trial impossible. 

were due to a lack of prenatal care.39 The numerous examples of Defendants' flagrant disrespect 

overwhelming prejudicial evidence to the jury in an attempt to suggest that Plaintiff's injuries 

Defendants willfully ignored the ruling of the Court by repeatedly introducing 
A.13 

13 

~J N.T., 9/8114, 178-180. 

The Court: Ladies and gentlemen, you should disregard anything-I think I've said 

this before-with regard to Orange County Medical Center, other than what's been 

testified to, that she went there on a date and that an estimated date of delivery was 

given for the purpose of a cesarean section, because that's the only information that 

the doctors had in this case at the time of treatment, and there's no allegation 

otherwise. 

Again l'll tell you the focus of this case is what occurred when they arrived 

at the hospital on February 8, 2008. If the doctors had information, that would be 

different, but for no fault of their own they didn't have information about Orange 

County. So we can't suddenly start considering it, because that would be not fair to 

the doctors or anyone else:13 

Christine Giordano, Esq.: I'd like to make a motion to strike counsel's questions, 

Your Honor. 

.

. 

The Court: I have already given prior to this examination a cautionary instruction 

about this. You want to make a motion, feel free, but, otherwise, we'll continue and 

make your objections and I' II continue to instruct the jury. 

Christine Giordano. Esq.: May we see you at side-bar? 

The Court: Sustained. 

Christine Giordano, Esq.: Objection, Your Honor. 

Joan Orsini-Ford, Esq.: Do you recall why she went to Orange County Regional 

Medical Center that night? 

The Court: Sustained means don't answer. Ladies and gentlemen, you should 

disregard that last question because it has nothing to do with what happened on 

February 11 of 2008. 

Michael A. Garofalo: Sorry. 

The Court: Excuse me, sir. When I say sustained you don't have to answer the 

question. Okay? 

Michael A. Garofalo: l don't recall that. 

The Court: Sustained. 

Christine Giordano, Esq.: Objection, Your Honor. 
A.14 

... 

"'··· :~ 

... 

::;: 

, .. .. 

14 

4~ N.T., 9/8/14, 235:24-236: 1-1 I. 

Christine Giordano, Esq.: Objection. Your Honor. 

Michele Garofalo: Not that I recollect. 

Joan Orsini-Ford, Esq.: Did you talk to any doctors in New York about scheduling 

this C-section date? 

Michele Garofalo: Sorry. 

The Court: Excuse me, ma'am. You don't have to answer that question. 

Michele Garofalo: I would imagine they are - 

The Court: Sustained. 

Christine Giordano, Esq.: I'm going to object to it, Your Honor. 

Joan Orsini-Ford, Esq.: When Jennifer visited with you she had the typical 

complaints of a woman at an advanced stage of pregnancy' correct? 

Garofalo, Jennifer Soco Scott's cousin. 

this Court was forced to offer instructions to the jury during their cross-examination of Michele 

Defendants once again attempted to elicit extremely prejudicial testimony and once again 

The Court: I just instructed the jury it's not relevant and you should disregard it.44 

Christine Giordano, Esq.: Your Honor, I make a motion to strike Ms. Ford's 

question. 

The Court: Sustained. It's not relevant what happened in New York. [ previously 

instructed you. 

Christine Giordano, Esq.: Objection, Your Honor. 

Joan Orsini-Ford, Esq.: And do you recall that the doctor - she had talked to the 

doctor about wanting to deliver the baby in New York? 

fundamentally unfair. 

to shape a trial that extremely prejudiced Plaintiff and to create an environment that was 

Despite this warning from the Court, Defendants still persisted in their successful attempt 
A.15 

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15 

•S N.T., 9/8/14, 291 :9-25-292: 1-21. 

4"N.T., 9/8/14, 302:21-303:1-16. 

The Court: Ms. Ford, could you please tell me if you are having some difficulty 

understanding my orders - have a seat everyone - with regard to the prenatal issue 

that you in my view right now are in direct violation of multiple orders about the 

time or the frequency of visits of prenatal care?" 

JosephL. Messa, Jr., Esq.: But Your HonorChristine Giordano, Esq.: I have an objection, Your Honor, and a motion to strike. 

The Court: Counsel for plaintiff, anything you want to add? 

(The jmy withdraws from the courtroorn.) 

*** 

The Court: Ladies and gentlemen, will you leave us for a moment, please. 

Joan Orsini-Ford, Esq.: Do you know how many times Jennifer had seen a doctor 

at Middletown Community Hospital? 

previous rulings. 

strictly reminded the Defendants that their actions were in direct violation of the Court's many 

elicit insurmountably prejudicial testimony, this Court removed the jury from the courtroom and 

Following Defendants' relentless attempts to circumvent the rulings of this Court and 

The Court: Sustained. Ladies and gentlemen, I've given you multiple instructions 

on this issue. I don't think I need to say it again, but you can disregard any testimony 

about anything that occurred, medical findings, anything else before the date of 

delivery, because the test in this case is what did these physicians know when 

treating the child and the mother. That's the test. Not what other people knew. What 

they knew." 

Christine Giordano, Esq.: Objection Your Honor. 

Joan Orsini-Ford, Esq.: And when Jennifer-when you brought Jennifer back to 

her home in the Philadelphia area in early February of 2008, did you have an 

understanding as to when the baby was due? 

The Court: She's already answered it. 
A.16 

16 

~7 N. T., 9/ I 2/14AS, 66: 19-25-67: 1-2. 

48 N.T., 912il 4, 62-66. 

testimony that would unduly prejudice Plaintiff. Defendants continued their conscious decision 

issue the Court was forced to admonish Defendants two times as a result of their attempt to elicit 

be outside his or her area of expertise and therefore was not admissible during trial." On this 

Expertise. This Cou11 clearly ruled that this neurological testimony from an obstetrician would 

Speculative and Misleading Testimony at the time of Trial that is Beyond the Scope of His 

Limine to Preclude Defendant's Expert, Andrew Gerson, M.D. from Offering Unsubstantiated, 

Defendants directly violated this Court's pretrial ruling granting Plaintiffs Motion in 

2. Defendants Intentionally Violated the Court's i11 Limine Ruling by 

Repeatedly Eliciting Speculative Testimony Concerning an "Unpredictable 

Brain Injury" Before Jennifer Soco Scott's Re-admission to Lower Bucks 

Hospital. 

trial deliberately created by Defendants, the only remedy is to grant Plaintiff a new trial. 

prejudiced Plaintiff. As a result of the extremely prejudicial and fundamentally unfair 

Inadequate Prenatal Care Throughout her Pregnancy with Jenna insurmountably 

Argument, Suggestion and/or Innuendo that Jennifer Soco Scott Received Limited and/or 

this Court's orders on the Motion in limine to Exclude any Evidence, Reference, 

Defendants' disrespectful conduct throughout the trial in blatantly disregarding 

The Court: Sustained. Ladies and gentlemen, we've been over this issue of prior 

treatment. It's just not relevant."? 

Joseph L. Messa, Jr., Esq.: Objection, Your Honor. 

Joan Orsini-Ford, Esq.: Did you think that it would be relevant to your opinions to 

review any of the prior treatment records? 

in their examination: 

Defendants intentionally violated the Court's previous rulings and this strict warning later 
A.17 

.. 

: .. 

.. 

.. , 

t": 

17 

•19 N.T., 9/17/14, 107; 9/12114AS, 85. 

so N.T., 9/17/14, 107:16-108:16. 

neonatology, Andrew M. Steele, M.D. ("Dr. Steele"). 

prejudicial and inadmissible evidence in their cross examination of Plaintiffs expert in 

Defendants once again blatantly violated the rulings of this Cm111 and elicited similar 

The Court: Well, I'm going to sustain the objection. Also, I don't believe that is in 

his report. So go ahead. 50 

Joseph L. Messa, Jr., Esq.: Objection, Your Honor. Now he's definitely getting out 

of his area of expertise. 

Dr. Gerson: I said that I do have an opinion. The time frame from decision to 

incision, delivery of the baby, the condition of the baby wouldn't have changed. 

We know the baby had a cord pH of 6.79, I believe. 

Joan Orsini-Ford, Esq.: I'm sorry. I - 

Dr. Gerson: The time frame from when the decision was made to deliver to delivery 

wouldn't have impacted if the delivery had occurred earlier, quicker. 

Joseph L. Messa, Jr., Esq.: Yes, Your Honor. 

The Court: He can give an obstetrical opinion. 

Joseph L. Messa, Jr., Esq.: Objection. 

Joan Orsini-Ford, Esq.: And, Doctor, do you have an opinion to a reasonable degree 

of medical certainty as to whether earlier delivery would have changed this 

outcome? 

gynecology expert, Andrew G. Gerson, M.D. ("Dr. Gerson"). 

Defense counsel elicited the following prejudicial testimony from her obstetrics and 

maintain a fair trial. 

insurmountably prejudice Plaintiff and to form an environment in which this Court could not 

basis. 49 Throughout this testimony Defendants continued their aggressive effort to 

to ignore the rulings of this Court and elicited inadmissible testimony that had no evidentiary 
A.18 

... 

l 

.

.

I I 

18 

SI N.T .• 9/12/14, 84-85: 9-25, 1-20. 

effort of this Cou11, the conduct of Defendants led to the introduction of overwhelming 

demonstrated a flagrant intent to violate the pretrial rulings made by this Court. Despite every 

nature and therefore inadmissible during the trial. However, Defendants once again 

The Court clearly ruled that it found the testimony shown above to be speculative in 

The Court: The objection is sustained. There has Lo be a good-faith basis for these 

questions. 51 

Joseph L. Messa, Jr., Esq.: Judge, I would ask for move to strike and ask for 

instruction. I mean, really, this has been repetitive and there's nobody that says 

anything about this or evidence of it. 

Joan Orsini-Ford, Esq.: Yes, there's no - it was not completed. 

The Court: Do you have a good-faith basis for this question? 

Joan Orsini-Ford, Esq.: I just want to establish - 

The Court: Do you have a good-faith basis for this question, Counsel? 

Joseph L. Messa, Jr., Esq.: Objection, Your Honor. ReallyJoan Orsini-Ford, Esq.: And did you see any evidence of that testing done? 

Mr. Steele: Yes. 

Joan Orsini-Ford, Esq.: And, in fact, in your review of the records did you note 

that there-was recommendation for genetic testing? 

Dr. Steele: That's correct, 

Joan Orsini-Ford, Esq.: And in your report you note that there's no evidence of 

coagulation disorder, infectious conditions or genetic disorders, correct? 

Dr. Steele: I did say that the baby did not have any evidence of infection, did not 

have a metabolic disorder and did not have any brain malformations identified. 

Joan Orsini-Ford, Esq.: I believe, according to your testimony, you said that you 

could rule out certain things. ls that correct, as I understood your testimony. 
A.19 

19 

)? N.T., 9/2114, 53-58. 

S) N.T., 9/10/l4am, 80, 93-95; 9/18/14, 192-196. 

Joan Orsini-Ford, Esq.: She's explaining her report, Your Honor. 

Joseph L. Messa, Jr., Esq.: Your Honor, r object. This tumor did not rupture, so 

she's just talking about something that is not here. 

Ms. Salafia: These tumors can rupture because the flow is not normal. And they 

can bleedJoan Orsini-Ford, Esq.: and you state that histologically this is a lobulated 

chorangioma with congestion, but no hemorrhage or necrosis appreciated in the 

samples. What specifically does that mean? 

Dr. Salafia: Yes. 

Joan Orsini-Ford, Esq.: Doctor, in your report you note that there is an area inside 

A3 and A4 that contain the hemorrhagic area. And is that the chorangiorna that you 

were showing us? 

of Dr. Salafia, Defendants purposefully attempt to elicit prejudicial evidence. 

severe prejudice for Plaintiff and to the fundamental unfairness of this trial. In their examination 

Defendants' intentional violations of this Court's rulings contributed to the environment of 

ignoring its rulings and three warnings and instructions in regards to this issue. 

53 The 

of expertise as a placental pathologist.S Defendants continued to aggravate this Court by 

Court ruled that Carolyn Salafia, M.D. 's ("Dr. Salafia") testimony would be limited to her area 

Trial on the Issue of Jenna Scott's Neonatal Outcome as Incompetent and Speculative. This 

Plaintiff filed a Motion in limine lo Preclude the Testimony of Carolyn Salafia, M.D. at 

3. Defendants Intentionally Vlolated the Court's i11 Limine Ruling by 

Repcntedlv Attempting to Elicit Speculative Testimonv that the Placenta had 

a Chorangioma Lesion. 

ensure professional respect for the rulings of the trial court Plaintiff must be granted a new trial. 

prejudicial evidence to the jury. Therefore, in order to promote fundamental fairness and lo 
A.20 

20 

14 N.T., 9/18/14, 182-183: 4-25, 1-22. 

.Joan Orsini-Ford, Esq.: That was not stricken, Your Honor. 

The Court: It goes beyond her areas of expertise. She's already - and her report 

acknowledges that. 

Joan Orsini-Ford, Esq.: It's in the report, Your Honor. 

The Court: Sustained. 

Joseph L. Messa, Jr., Esq.: Objection. 

Joan Orsini-Ford, Esq.: And are they associated with certain outcomes? 

Dr. Salafia: No. 

Joan Orsini-Ford, Esq.: Doctor, are chorangiomas common? 

Defendants continued to introduce speculative and misleading evidence to the jury. 

Defendants intentionally raised this issue again in their examination of Dr. Salafia as 

The Court: Excuse me, excuse me. To the extent we need a general background, 

Doctor, please make sure you're differentiating between things you say that could 

happen and what happened in this case. Okay?s4 

Joan Orsini-Ford, Esq.: It's with regard to placental pathology. 

Joseph L. Messa, Jr., Esq.: Again, objection, Your Honor. 

Joan Orsini-Ford, Esq.: And Dr. Salafia, let me ask you, in terms of the fact that 

this was a living tumor and it had not died, what significance does that have? 

Dr. Salafia: This is entirely living tumor mass. There is not any part of this tumor 

mass that's dead. 

The Court: So you're not saying that what you're testifying about has any particular 

findings in this case. 

Dr. Salafia: I'm just saying- she asked me to explain what not necrotic meant and 

I was trying to do that. 

The Court: You're just giving us a general background at this point in time, ma'am? 

Joseph L. Messa, Jr., Esq.: She said they can rupture. They didn't happen here. 
A.21 

21 

55 N.T., 9/18114b, 188: 8-23. 

JG N.T., 9/17/14, 108-109: 24-25, 1-3. 

The Court: I would imagine that you'll take care of it, because this motion is denied 

and you can argue adoption any way you want. Besides there's the historical fact it 

could go to bias, and the probative value on bias, J still don't understand the 

Mr. Messa: However, it can be viewed the other way. And it can be viewed in a 

way that is negative towards the mother, towards this child, and it goes to zero, no 

issue in this caseAll Evidence Relating to the Potential Adoption of Plaintiff Jenna Marie Scott. 

Jenna Marie Scott. This Court originally denied Plaintiff's Motion in limine to Preclude Any and 

Plaintiff filed a Motion in limine to preclude the mention of the planned adoption of 

4. Defendants Intcntlonnllv Violated the Court's Rulings by Repeatedly 

Eliciting Irrelevant Testimony Regnrding the Intenc.Jcd Adoption of Plaintiff. 

grant of a new trial. 

testimony, Defendants deliberately prejudiced Plaintiff and left the Court's only remedy to be the 

testimony to her area of expertise as a placental pathologist. Through the elicitation of this 

the Issue of Jenna Scott's Neonatal Outcome as Incompetent and Speculative which limited her 

on Plaintiff's Motion in limine to Preclude the Testimony of Carolyn Salafia, M.D. at Trial on 

Defendants intentionally elicited prejudicial evidence in violation of this Court's ruling 

The Court: Sustained. It's not in his report.56 

Joseph L. Messa, Jr., Esq.: Objection. 

Joan Orsini-Ford, Esq.: And did you see that there was evidence of a chorangiorna? 

prejudicial evidence to the jury's attention in their direct examination of Dr. Gerson. 

Plaintiff as a result of the flagrant conduct of Defendants. Defendants willfully brought further 

This speculative testimony directly contributed to the insurmountable prejudice that faced 

The Cou11: Ladies and Gentlemen, will you leave us for a few minutes, please." 
A.22 

::. 

22 

n N.T., 9/2/14, 48-49: 12-25, I. 

n N. T., 918114, 290-291; 9117/14, 59-60 . 

.19 N.T., 918/14, 233: 16-20. 

Christine Giordano, Esq.: Your Honor, I make n motion to strike Ms. Ford's 

question. 

The Court: Sustained. It's not relevant what happened in New York. I previously 

instructed you. 

Christine Giordano, Esq.: Objection, Your Honor. 

Joan Orsini-Ford. Esq: And do you recall that the doctor-she had talked to the 

doctor about wanting to deliver the baby in New York? 

*** 

Allison Knueppel: I came to visit my parents. 59 

Joan Orsini-Ford, Esq: I want to ask you a little bit about some of your recollections. 

You went home from Virginia to New York when you knew that your parents were 

going to adopt a baby, correct? 

and innuendo: 

fundamentally unfair by attempting to discredit Jennifer Soco Scott through prejudicial evidence 

utilized the issue of adoption in a wrongful manner to create an environment that was 

continued their flagrant conduct in ignoring the rulings and warnings of this Court. Defendants 

Defendants two times against using this issue." Despite these clear warnings, Defendants 

changed its position and began ruling against the inclusion of this issue. This Court admonished 

Plaintiff. As Defendants' intention became clear during the course of the trial, this Court 

value on bias," instead they elicited testimony with the sole purpose of further prejudicing 

Defendants in this trial. Defendants did not intend to use the issue of adoption as a "probative 

This Court originally denied this Motion for it did not foresee the intentions of 

prejudice that it would outweigh the bias or outweigh the probative value. So 

therefore this motion is denied.57 
A.23 

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. . 

23 

~0 N.T., 918/14, 235:25-236: 11. 

61 N.T., 9/8/14, 289-:25-290: 25. 

Joan Orsini-Ford, Esq: Yes. There's the issue of the adoption. Shewarnings to Defendants as to what was relevant and not relevant to this case: 

type of conduct by Defendants to be unacceptable. Again, this Court was forced to issue 

simply to cast a negative and extremely prejudicial light over Plaintiff. This Court found this 

It became apparent to this Court that the purpose of the elicitation of this testimony was 

The Court: Sustained. Counsel, this has nothing to do with anything of what her 

hope is.61 

Christine Giordano, Esq.: Objection Your Honor. 

Michele Garofalo: That was my hope. 

Joan Orsini-Ford, Esq: And your hope was that the baby would be able to delivered 

in New York, is that correct? 

Michele Garofalo: She didn't give me a due date, no. 

The Court: I don't know the relevance of it, but did she tell you the due date? 

Christine Giordano, Esq.: Objection, Your Honor. 

Joan Orsini-Ford, Esq: And would I be correct that when Jennifer was with you in 

New York she couldn't tell you what her due date was? 

Michele Garofalo: I didn't have a due date, no. 

Joan Orsini-Ford, Esq: And when you first were approached you had no idea when 

the baby was due, is that right? 

Michele Garofalo: Absolutely. 

Joan Orsini-Ford, Esq: and the thought was that it would be an open adoption, so 

that Jennifer would have the ability to see the baby, correct? 

Plaintiff further later during the trial: 

Defendants continued their blatant and persistent attempt to insurmountably prejudice 

The Court: I just instructed the jury it's not relevant and you should disregard it.60 
A.24 

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=.:.: 

~. ·-

.,. 

24 

61 N.T., 9/17/14, 59-60: 24-25, 1-12. 

justice, and to preserve the sanctity of the rule of law. 

professional respect for the rulings of the trial court, to guarantee the orderly administration of 

trial orders, the only remedy is a new triul, in order to promote fundamental fairness, to ensure 

remedy is to grant Plaintiff a new trial. Here, where the Defendants intentionally violated preinsurmountably prejudiced Plaintiff As a result of Defendants flagrant conduct, this Court's only 

the Defendants. Defendants' willful and incessant violations of the many rulings of this Court 

about other alleged causes of injury through inadmissible evidence which resulted in a verdict for 

despite its numerous warnings and instructions, Defendants' conduct caused the jury to speculate 

their incessant attempts to elicit inadmissible and prejudicial testimony. This Court finds that 

parties of the case. This Court gave at least twenty-three (23) warnings to Defendants regarding 

Throughout this trial the Court attempted to preserve an environment that was fair for all 

fundamental unfairness for Plaintiff. 

and Defendants intentionally misused this opportunity to create an environment of complete 

Court gave Defendants an opportunity to use the issue of adoption for its probative value on bias 

this irrelevant evidence heard by the jury played no role other than prejudicing Plaintiff. This 

Like most of the testimony elicited by Defendants through their conduct during this trial, 

The Court: I made pre-trial rulings on that-and this is the difficulty I'm having. 

I've made rulings and you continue and repeatedly continue to avoid them and try 

to go around them and circumvent them, which is why I always ask do you have a 

good-faith basis. Adoption is ot1t.62 

Joan Orsini-Ford, Esq: She made the arrangementsThe Court: There's absolutely no issue of adoption. 
A.25 

25 

63 H;wasy v. Rcsnjck. 609 A.2d I 326. 1334 (Pa. Super. 1992). 

t>i See~. I IO A.3d at JO 12 ("further. when improperly admitted testimony may have affected a verdict, the 

only correct remedy is the grant of a new trial."). 

M Id. (internal quotations omitted)( citations omined). 

br, Id. at 1013. 

61 JsL at 1013-14. 

6x Lobalzo v. Yarolj, I 85 A.2d 557, 560 (Pa. 1962). 

69Nigra v. Walsh, 797 A.2d 353. 361 (Pa. Super. 2002). 

the jury found the defendant not negligent. 69 The Superior Court ordered a new trial in Nigra 

In Nigra v. Walsh, the Superior Court remanded the case for a new trial, despite the fact 

such a basic character that even if unobjected to [entitle] the plaintiff to a new trial."68 

Statements made in violation of the law and Cou11 rulings can be "reversible error and of 

it is impossible to conjecture what influence the [collateral source evidence] had in 

bringing the jury to the conclusion it reached. When an error in a trial is of such 

consequence that, like a dash of ink in a can of milk, it cannot be strained out. the 

only remedy, so that justice may not ingest a tainted fare, is a new trial.67 

In a case such as this where there is a violation of the collateral source rule, 

While the primary focus of the collateral source rule is to avoid the preclusion or 

diminution of the damages otherwise recoverable from the wrongdoer based on 

compensation recovered from a collateral source, in some instances, the violation 

of the collateral source rule can affect the jury's deliberation and decision on the 

issue ofliability.66 

recoverable from the wrongdoer.?" 

rule provides that payments from a collateral source shall not diminish the damages otherwise 

sources of payment may have improperly influenced the jury's verdict. 64 "The collateral source 

compensated by a collateral source."63 A new trial is necessary where evidence of collateral 

"As a general rule, it is error for the jury to be informed that the plaintiff has been 

:·.- 

b. Plaintiff is Entitled to n New Trial Because Defendants Rcpeatcdlv Introduced 

Obiectlonnble Collateral Source Evidence in Violation of this Court's Pre-Trial 

Rulings Throughout the Trial. 
A.26 

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26 

70 l:iiwl, 797 A.2d at 360. 

71 iQ., at 358. 

72 N.T. 9/23/14, 37: 17-38: 12 (emphasis added). 

And we are comforted to know that this child is well cared for at KenCrest. And 

everyone that came in from KenCrest, her nursing care, her therapist, by aJJ 

accounts are giving her everything that she needs. And it was funny because 

Nurse Buchanan was a bit critical of the case manager, that lovely young woman 

who came in and talked about how she oversees the care of Jenna, meets with the 

doctors weekly, every two weeks. And Nurse Buchanan says Oh, well, you need 

an independent voice. And Mr. Messa, the voice that Jenna doesn't have. Well, 

that's part of why we presented some of that evidence, because Nurse Buchanan is 

adding things that this child gets that are appropriate. So consider, if you get to 

that, is that a fair estimation of what she needs or is she getting everything that 

she needs?" 

following is an expert from the closing of Dr. Harvey and Dr. Kuhn: 

Defense counsel closing blatantly violated the collateral source rule. The 

Jenna's receipt of public assistance benefits. 

including questions, testimony, argument, commentary, and/or innuendo regarding 

Motion in llmine which precluded any evidence of payment from a collateral source, 

Defendants repeatedly and willfully violated this Court's ruling on Plaintiffs 

[b)ased on the above excerpts and our review of the record, we conclude that the 

questions by Appellee's counsel when combined with his opening statements did 

indeed suggest to the jury that Appellee was receiving social security disability 

benefits, and that his wife, Kathleen was, or had been receiving social security 

disability benefits. The cumulative effect of counsel's questions and comments is 

that the jury was informed that Appellant was receiving social security disability 

benefits for the same injury which is the subject of the litigation.71 

ordered a new trial because, 

negligence was not the proximate cause of [the plaintiffs) iniuries."?? The Court in Nigra 

int1uence this violation had in the bringing the jury to the conclusion that (the defendant's] 

that the defendant "violated the collateral source rule and that it is impossible to conjecture what 

because of the violations of the collateral source rule by the defendant. The Superior Court held 
A.27 

27 

7J N.T., 9/J5/14, 175:13-17. 

Joseph L. Messa, Jr., Esq.: This one goes to collateral source -- 

The Court: Basis? 

Joseph L. Messa, Jr., Esq.: Objection, your Honor. 

Joan Orsini-Ford, Esq: And would you agree that the law provides that educational 

programs provide programs to maximize the potential for students? 

. 

' . 

Lorraine B. Buchanan: Yes. 

Joan Orsini-Ford, Esq.: The ADA. 

Lorraine B. Buchanan: The ADA? 

Joan Orsini-Ford, Esq.: And are you familiar with the Individuals with Disabilities 

Act? 

Lorraine B. Buchanan: Yes. 

Joan Orsini-Ford, Esq.: And would I be correct that in your review of the KenCrest 

records, Jenna is getting all of the care that has been prescribed for her by her 

physicians? 

The improper questioning was continued: 

Lorraine B. Buchanan: She is.73 

Kurt Straub, Esq.: Now, as I read through your report and your life care plan, am I 

correct that at KenCrest Jenna is actually receiving all of the healthcare treatment 

and services which she needs or from which she might benefit? 

expert, Defendants elicited testimony in violation of the collateral source rule. 

collateral source rule. While cross-examining Lorraine B. Buchanan, Plaintiffs life care 

There are numerous places in the record in which Defendants violated the 

require any additional compensation. 

source rule, suggest to the jury that Jenna had all the care she needed and that she did not 

The above comments made by defense counsel, in clear violation of the collateral 
A.28 

c-. 

. . 

28 

"N.T., 9115114, 180:24-182: 14 (emphasis added). 

75 N.T. 9il2/1<1, 23:7-13 (emphasis added). 

Patricia Rooney: Yes. There's speech, OT and PT. 

Joan Orsini-Ford, Esq.: And the therapies that she receives, in addition to school, 

does KenCrest provide therapies at home? 

Additionally, defense counsel asked: 

Patricia Rooney: Yes." 

Joan Orsini-Ford, Esq: The educational services, is that something that nil 

children are entitled to receive? 

Patricia Rooney: Sure. 

Joan Orsini-Ford, Esq.: Good morning. I just wanted to clarify some of the 

services that Jenna receives. 

Patricia Rooney, who is one of Jenna's pediatric nurses at KenCrest: 

The following testimony was elicited by defense counsel on cross-examination of 

The Court: Sustained. Asked and answered. Sustained." 

Joseph L. Messa, Jr., Esq.: I would reallyThe Court: Sustained. 

Joseph L. Messa, Jr., Esq.: Objection, your Honor. 

Joan Orsini-Ford, Esq: So every child Iike Jenna is entitled to receive those 

services'? 

Lorraine B. Buchanan: They're required to provide whatever services are necessary 

to give Jenna access to education. That might be the nurse that's with her, it might 

be the aide that's with the nurse, it might be the speech therapy, PT, OT on a 

minimal level. But again, yes, they are required to provide it. 

Joan Orsini-Ford, Esq.: In terms of schools, what specifically are the schools 

required to provide for Jenna? 

The Court: She's already testified that if she's in school there are certain benefits. 

She's already testified to it. 
A.29 

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29 

76 N.T. 9112114, 24:17-23. 

77 N.T. 9/10/14, 33:11-16. 

11 N.T., 9/18/14, 69:23· 7 I: I 7. 

The Court: Ladies and gentlemen, you're going to take a walk. 78 

Susan Davis, R.N.: Just give me a moment. 

Joseph L. Messa, Jr., Esq.: Objection, Your Honor. 

Susan Davis, R.N.: I just have to grab the report. 

Joan Orsini-Ford, Esq.: And the cost for residential placement under that scenario 

was how much? 

Susan Davis, R.N.: For Medical Assistance, correct. 

Joan Orsini-Ford, Esq.: Now, you also came up with a cost, a yearly cost applying 

the reimbursement rates, correct? 

Susan Davis, R.N.: My opinion is that Jenna is receiving the quality of care and 

services in the residential facility and would remain there. 

Joan Orsini-Ford, Esq.: Did you have an opinion as to whether it would be -- 

whether you agreed with home placement with skilled support in this case? 

yearly cost of residential placement: 

Defendants violated the collateral source rule by inquiring about reimbursement rates for the 

On direct examination of Susan Davis, R.N., Defendant's life care planning expert, 

Joan Orsini-Ford, Esq.: Thank you. That's all I have." 

Michael Cellucci, M.D.: Yes. 

Joan Orsini-Ford, Esq.: Dr. Cellucci, good afternoon. Am r correct that Jenna is 

receiving all the care that you prescribe? 

Defense counsel only asked a single question of Jenna's treating pediatrician: 

Patricia Rooney: Yes. 

76 

Joan Orsini-Ford, Esq.: And I take it that all of the therapies that are prescribed 

for Jenna she does receive? 
A.30 

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,.· 

, . 

..... 

30 

79 Deeds, 110 A.Jd at 1014. 

10 kl, at 1012. 

DATE: 25' /0· ;/..a/..5' 

BY THE COURT: 

Relief and Granted a New Trial. 

For the foregoing reasons. this Court properly Granted Plaintiffs Motion for Post Trial 

CONCLUSION 

verdict."80 Therefore, the only proper remedy is to grant Plaintiff a new trial. 

through magic or chemistry."?" Here "improperly admitted testimony may have affected a 

the collateral source rule it is clear that "[t]he ink was in the milk; we cannot now extract it 

Due to Defendants repeated willful violations of this Court's Motion in limine ruling and 

The Court: Ladies and gentlemen, strike the last answer and I'll give you a detailed 

instruction as to why in my closing charge to you. 

Joseph L. Messa, Jr., Esq.: Your Honor, I'm going move to strike the last answer. 

Joseph L. Messa, Jr., Esq.: Ma'am, can you answer my question? 

Susan Davis, R.N.: Because it's allocated through the Individuals With 

Disability Act. And therapy, physical therapy, occupational therapy, speech 

therapy, recreation therapy, psychology is provided through the IDA 

program, okay. Federally-funded state program. 

Joseph L. Messa, Jr., Esq.: But what you didn't do, ma'am, was you didn't make any 

allocation whatsoever, not a nickel, for Jenna to receive occupational therapy that 

she's receiving now, right? 

occurred: 

During Plaintiffs cross-examination of Susan Davis, R.N., the following testimony