### 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, ESQUIR E 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, ESQUIR E 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

- 2 - 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) 1 

### and Lower Bucks Hospital, Laura Castner, RN, Jo Ann Butrica, RN, and Mary (Boyle) Romolini, RN (collectively Hosp ital), 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 aw ard 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 acti on 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

- 3 -

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 Apr il 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 believ ed 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 mis interpreted 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 assessmen t 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

- 4 - 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 du ring 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 t he 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[?]

### J - A11037 - 16

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Doctors’ Brief at 4. Hospital’s first two issue s 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. Hospit al 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 no t 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 h ave 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 appe al.

### J - A11037 - 16

- 6 -

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 fo llowing 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 n ew 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 “regar ding 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 ca uses 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 t o 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 tria l 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 conten d 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 awa rd 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. Th e 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 fun d 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 rec over 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 foregoi ng, 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 20 15 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 a ny party to petition for fees under Rule 2039 upon the entry of a compromise, settlement, or judgment.

## A.l , · ! i i • 

## ! i · ·

that her negligence did not increas e the ri sk of harm to Jenna . The j ury found D efendants Mark Defendants . Specifically, 

### thcjury found Defendan t Amy L. H arvey, M . D. neg l igen t ( 1 1-1) , b ut On September 24, 2014, after four weeks of trial, the ju ry return e d a v erdict i n fav o r o f

. I Pleas . On August 28 , 2014, a jury tri al c ommenced in th e Buck s Cou nty Court o f Comm o n include a hypoxic brai n i n j u ry, cerebral palsy and b lin d n ess . Defendants' failure to promptly deliver h er in the fact of evident distress . Jenna ' s i njuries Marie Scott s u ffered seve r e, 

### permanen t and pro fo un dl y d is abling i njuries during her b irth due to her Guardian Ad Litem , Judith A l geo , E s quire (" Plai n ti ff ') , where i n Plainti ff alleg e s that J e n n a This case is a , medical malpractice ac tion brough t 

### b y Plain ti ff Jen n a Marie 

### Scott , by and throug h speculative and pre

j udic i al evidence in v i olation of the Court' s Orders and Pe nns ylvania Law . Granted P l aintiffs Motion because of Defe n dants numerous intentional attempts to i n trodu c e Defendants appeal from the Grant of Plai ntiff's Mo tion fo r a New Tri al. The Court 

### O P INION Lower Bucks Hospital, Amy 

### L. H arvey, 

### M . D. , Mark 

### D. Kuhn . 

### M . D . , Dr . Pallurne, Laura Cas tn er, R.N., Mary Boyle , 

### R.N . , an d Joann 

### Butrica , R . N . No . 20 1 0-0 1 193 vs . Jenna M arie S c ott, by and through her Guardi an Ad 

### Litem, Judith Algeo, Es quir e CIVIL ACTION IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PEN N SYLVANIA Circulated 07/14/2016 09:23 AM

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2 I Notes of T estimony (hereinaf t er "N . T.") , 3/24/ 15, 91 :2-3 ("The r efore o n the issue of a new trial , I om granti ng a new tri al."). 2 "Ru l e 1 925 i s in t ended to aid trio] judges in i de n ti fying an d focusing upon th ose is s ues which the parties plan to r ai se on appeal. Ru l e 1925 is thus a crucial componen t of rhe appellate process . " Commonwen l th v. 

### Seib e n. 799 A.2d 54 , 62 ( P a . Super . 2002). ) N.T . , 9/ 1J/1 4 , 3- 1 3. ~ N . T . , 9/5/14, 6: 16-21. ~ N.T . , 9/4/14 , 32-52 . 9 / 5/14, 39

- 57 , 9/9/1 4, 56

- 62 , 9/16/14, 129-152 , 9/17/ 1 4, 114- 1 29 . d il at ed a n d 50% effaced. 5 Plai n ti ff alleges that durin g Jennif e r Soco Scott's morning admiss i on, Soco Scott's co n tr ac ti o n s w e re two (2) t o thr e e (3) mi nutes ap art and her cervix was one ( l ) cm Scott's c are wh e n she was admitted to the H ospital . " Upon admittance to the Hospi t al Jennifer 5 : 0 0 

### a.m . ' Mark D. Kuhn, M.D ( " D r. Ku hn") was the obste trician assigned to Jennifer Soco Hospi t al ( the " H ospital") with a t e rm pregna n cy an d comp l ai ni ng of l abor pains at app r oximate l y O n the mo rn i ng of February 11, 2008, Je nnifer Soco Scott was admi tte d to Low e r Buck s



### FACTU A L AND P ROC E DURAL BACKGROU N D o p i n ion fo l lows pursuant to Pe nn sylvan ia Rule of Appellate Procedure 1925(b) . 2 May 1 8 , 2015 , the above appeal s were Co n solidated 

### Suet Sponte by the Superior Court . This "Hosp it al D efen d ants") filed th e ir Notice of Appeal to th e Pe n nsylvania Sup e rio r Court. On H osp it al , Laura Castner , R.N., Jo Ann Bu tri ca , R .N . and Mary (Boyle) Romolini , R.N (th e A ppeal to the P e n n sylvan ia Supe rior Co u rt. On Ap ri l 28, 2015, the Defen d ants Lower B u cks On April 1 5 , 20 1 5, A my 

### L. H arv e y , M . D . an d Mark D. Kuhn, M . D fil e d the i r Notice of fundame n tally unfair tria l. 1 Plainti ff was insurmountably prejudiced through Defendan t s ' w i llfu l and intentional creation of a the Court Granted Pl ai n tiffs Motion for Pos t Tri al Re li ef, g ran ting Plaintiff a new trial becaus e On Oc t ober 3, 2014 , Plai ntiff filed a Moti on for Post-Trial Relief . On March 24, 20 1 5, neg li ge n t. D. Kuhn, M . D , Laura Castner , R.N. , .To Ann Butrica, R . N. and Mary (Boyle ) Romolini, R.N. not

## A.3 !. 

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### 3 6 N.T . , 9 / 4 /1 4 , 4 7-1 28, 9 /9/14, 12 1 -123. 7 N .T . , 9/2/1 4, 297

- 303, 99111/1 4 , 6 3- 6 5 , 9/16/14, 1 63 . 'N . T ., 9 /5 /14 , 56- 5 7. 9 N .T., 9/5/1 4 , 62 . 1 o N . T . , 9 1 5114, 75 : 4

- 9. I I N .T . , 9/11/1 4, 4 2

- 4 5. 12 N . T., 91 5 11 4, 44

- 4 7 , 9/ 11/14, 6, 10

- 1 4 . n N . T . , 9/5/1 4, I 1 3 : 22-2 5 , 9/17/1 4 85 -84 . 1 4 N .T . , 9 / 3 /1 4, 12 4 -14 5 . I S N . T ., 9/3/14 , 1 97 : 19-2 5 . 

### re a d mi tt e d t o L ab or an d D eliv ery at Lo w e r B u c k s Hos p i tal .' 

### s Plai n tiff's e x pe rt 

### te s tified that R .N . ('' Nurs e B utrica " ) w ere r e s p onsib l e for the care o f Jen ni fe r S oc o S co tt w h en sh e was Hos pi tal around 9 p . m . !" Mary ( Bo y l e ) R o rnalini, R . N . ( " N u r se Rorn al ini " ) an d J oan n Butri c a, O n the evening of F ebruary 11, 2008 , Je nnifer So c o Scott r e tu rne d to L ower B ucks Soc o S c o tt from L ower Bu c k s Ho s p i tal, th er e w er e n o si g ns of f etal co mp ri se . ' ? 

### deli v er e d Je nna duri n g the m o rn i n g a dmissio n. 1 2 

### At the tim e D r. H arvey d i sch arged Jenn ife r ins t e ad of bein g g i v en m e dic ation t o att e mp t t o st op labor, Jennife r Soco S c ott c o uld h ave contra ctions wer e four ( 4) to five ( 5) minut es apart. 11 

### D r. Harve y and D r . Kuhn agr eed th at and told J e nn ifer So c o Scott an d her fami l y that sh e was n ot i n lab o r, but t o re tu rn wh e n h er appr oximately 1 :0 0 p . m. D r . Harv e y disc harg e d Jen n i fe r S oco S cott fro m Low er Buc ks Hosp i t al So co Scott with Dr. Kuhn; Dr . Harvey the n t oo k over J enn i f e r So co S cott ' s c ar e.!? At 

### A t approxi m atel y 10:00 a . m ., Amy L . Harvey, M .D (" D r . Harvey" ) assessed Je nn i fe r to sh o w ev i den ce of ut e ri ne contr ac ti on s c o n s istent wi th l abo r , " she was i n true l ab or. 8 

### A ft er th e adm in istrati on of th e T e rb utalin e , Je nni fer S oco Scott c on ti nu ed Dr. Ku h n o rdere d a toco l yti c, Te rb u t a line , fo r Jen nif er So co Sco tt to d ete rmine whe th er de ce le ration s . 7 he art rat e , which w arr an ted c l oser monitorin g . 6 

### D efendants fail ed t o furth er investigate the fetal the fetal m o nit orin g stri p s s h o w e d e p i s o d es o f di mini s hed variab il i ty an d d ec e l erati o n i n the fe tal

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- 23 4 . II N.T .• 9 /3/14, 130:5-9, 190:11

- 1 4. 19 N.T., 9/11/ 14, 82 : 5

- 7, 9/3/14, 212 : 11-15 . 1 ~N.T .• 9/11/14, 97:4

- 12. 1 1 N. T., 9/1 1 /1 4 ,79: 6- 14 . l1 N. T . , 9/1 1/14 , 1 13 . 1 ' N . T., 9 /11/14 , 80

- 8 5 . 14 N.T. , 9111/14, 6 4 -66 . u N.T. , 9/15/14, 8:1-7. 1 6 N .T. , 9 /10/14 , 17 : 21-24 . 

### c ar e . 2 6 

### J enn a is a spastic qua dripl egic, she has some control ov e r h er arms and legs, bu t does no t fa cili ty fo r c h ildren. i s 

### J e nna is unab l e to sp e ak and i s en ti r e ly dep e n de nt on o ther peop l e fo r he r cerebral palsy an d blindness . 24 

### Jen n a n o w resides at KenCrest, a fu ll -tim e residential care an abrupt hypo x ic brai n injury oc c urring at or ab out th e ti m e of h e r birth and heri njurie s i nc l u de When J e nna w a s de li vere d she ha d n o he artbeat and was not bre athing. 23 

### J e nn a suffe r ed Dr. H arvey called for a n on- u r g ent C

- s e c tion at approximately 9 :49 p.m . 20 

### Dr. Harv e y called for an em e rg e ncy C

- s e c tion betwe en 9:57 p.m. and 10 : 03 p . m . 21 

### J e nna Marie S c ott (" Jen n a") w as deliver e d at 10 : 20 p. m . 2 2 

### arri ve. 19 

### a dmission , b ut Nurse Romalini t es ti fi ed that at 9 :29 p . m . s he was still wai ting for Dr . Harv e y to she arri ve d at Labo r an d D e liv e ry sho rtly after she was noti fi ed of Jen nifer S oco Scott's a ft e r her re a dmi ssion , between 9: 1 3 p.m . an d 9: 16 p.m . 18 

### Dr. Harvey te stified th at sh e belie ved D r. Harve y was noti fi e d of J ennifer Soco Scott's admis si on to Labor 

### and Deli v ery shortl y d e celeration s, Jenna 

### w a s able to r e p eatedly r e c o v er 

### he r h eart rate ." sig n i fi c an ce of the finding s .!" 

### Pl aintiffs expert t e stifi e d th at des pit e the 

### e vid ence of evidence of fet al distr ess , however, Nurse B u rtic a and N urse Rom a lini failed t o app reci at e the upo n J en nife r S o co Scott's r e turn to th e Hosp it al, the fetal mon i tori n g s tri p s immediat e l y showe d

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### 5 ? 7 N.T., 9/10/14, 20:21

- 24. 21 N .T ., 9 / 10/14, 10: 12-1 9. 

### Post-Trial Rel i ef

. On Feb ruary 2 , 2015 , Plai nti ff fil e d a 

### Brief of Law in 

### S u ppo rt of P laintiff's M o tio n for for Post

- Tri al R e li e f. On Octo ber 2 0, 20 1 4, H osp it al De fendants fil ed 

### a Mo tio n to Stri ke the Plaintiff's Motion for P ost-Tri al Reli e f. On Octob er I 0, 201 4, D r. 

### H arv ey an d D r . Kuhn 

### filed an Answer to Defendan ts' Mo tion On Octobe r 3, 20 1 4, 

### Plain tiff fil e d a Moti on for Post- Trial R e lief. 

### Ann Butrica and Mary ( B o y l e ) R o m olin i n o t n e g ligent. not in c re ase the risk of harm to J enna. Th e jury found Defendants Dr . Kuhn, Laura Castne r , Jo Defe ndant s. Sp ecifically , the j ury fo u n d Dr. H arvey ne gligen t() 1 - 1 ), bu t that h e r n egli gen ce did On Septembe r 24, 2014, 

### aft e r four weeks 

### of trial, the jury returned a ve r dict in favo r of P l ea s . On August 2 8, 20 1 4 , a jury trial commenced in the Bucks County Court of Common P l ea s. On N o vember 4 , 2 0 13, 

### the Co u rt decl ar e d a mi stri al. On Oc t ober 28, 2013, 

### a j ury trial commenc e d i n the 

### Bucks County Court of C o mmon Al ge o w as appo int e d as th e Guard ian a d L ttem for Jenn a. On March 2 7, 2012, 

### this Cou rt r e moved J ennifer So c o Scott as Guar d i an and Jud i th A. guar d i an J e nn i fer 

### S o c o S cott by filin g 

### a Complaint in Trespass fo r Medi c al M a lp ra c tice . On February 4, 20 I 0 , 

### the Plain ti ff comme n ced th is lawsuit by and through he r legal n u tri tion i s vi a a feedin g tu b e in se rt ed into he r sto ma ch. 28 do much purposeful movemen t of he r arms and legs. 2 ' 

### Jenna is u n able to feed h erself, all of her

## A.6 · ,, 6 Co mp lai ne d o f on A p p eal , n o l at er than twe n ty-one ( 2 1) days from th e date of this ord e r . ' '· On A pri l 29, 2 0 I 5, th e Court o rd e red Hospi tal Defe ndants to file a Stat e m ent of Error s Sup erior Court . O n A p ril 28 , 20 1 5, Ho sp i t al De fenda n ts fil e d their Notice of Appea l to th e P en nsylvania day s fr om the date of thi s o rder . Ku hn , M . D. to fi l e a S t atement of Erro r s Complai ned of on A ppea l, no later than tw e nty - one (2 I) On April 24, 2 015, th e Court orde r ed D e fen d an ts Amy L. Harvey , M.D . and Mark D. A p pe al t o the P e nnsyl vani a S u peri o r C o urt. On April 15 , 2015 , A my 

### L. H arvey, M. D . an d M ark D . Kuh n, M . D. file d thei r Notice of Plai nti ff a n e w tri al. O n Mar c h 24, 2 0 1 5 , the Co urt Gr an t ed P l ai ntif fs Moti on fo r P os t -T rial Re lief, grantin g Pl ai n tiff's Mo tio n for P os t- Tri al Re lie f. O n March 24, 2015 , the Court De nie d Hosp it a l Defe n dan ts' Motion to Strik e the M . D's B rief in Op position to Pl ai n ti ff s Pos t- T rial M o ti o n . O n M ar ch 1 8 , 2 015 , Pl ai n ti ff fil ed a Repl y to Amy L. H arve y, M .D. and Mark D. Ku h n, Pl a inti ff' s P o st· Tri al M oti on. O n M ar ch 18, 2 0 15 , P lai ntiff filed a R ep ly to Hosp it al Defen d ants' B ri ef in Op p osition t o Op po si tio n t o P l a intiff

s P o st-T rial Motion. On M arch 2, 20 1 5, Amy 

### L. Harvey, M . D . an d Mark D. Kuhn, M.D filed a B ri e fin T ri al M o tio n . O n Mar ch 2, 2015, Hospital Def e ndan t s filed a Brief in Oppositi o n to Pl ai n t if fs Pos tM otion for Post-T ri al R el i ef. O n F e bruary 4, 2015 , Plainti ff filed a Su pple m ent al Bri e f of Law in Support of Plai ntiffs

## A .7 7 2. Assumin g that the court int e nded to gran t a new trial only , the co urt's order did not specify as to which ve r dicts or against which parties. To the extent the court intended to order a new trial, as t o al l parties and ve r dicts, it did not state any grounds ther e fore in the order. 

### 1. I n plaintiffs motion for post-trial relief, plaintiff requested a judgment no t w i thsta n ding th e verdic t , although no t specifying as to what ver d icts, or against what defe n dan t s, or on what grounds. Noneth eless the court by its order g r anting this motion with out limitati on, and presumabl y i ncluding this requested relief, di d so erroneously, again wi thout stati n g any grounds therefore. ( B o y le) Romo li ni are as follows: verbatim by Defendants Lower Bucks Hospital. Laura Castne r, Jo Ann Butrica, and Mary Complained of on Appeal on May 6, 201 

### S. The Matters Complained of on App e al as alleged H ospital , L aura Castner, Jo Ann Butri c a, and Mary (Boyle) Romolini filed a S t atement of Errors Pu r suan t to P e n nsylvania Rule of Appellate P r oc e dure l 925(b), Defendants Low e r Bucks l . De f e nd an t s assert that thei r counsel did no t violate any pre - trial or trial ruling of the Cou rt , th e re was n o u n fair p r ejudice to Plai n tiff caused by any act of Defendants' counse l , and th at P l ai n tiff's post-trial motions an d in oral argument on those motio n s, which are incorporated h e r e in by refer en ce. Bucks Hospital , L aura Cas tn er, Jo Ann Butrlca and Mary (Boyle) Romolini are as follows: May 5 , 20 1 5. The Matt er s Complained of on App e al as alleged verbatim by Defendants L ower ~ : · , ·, Harvey, M.D. and Mark D. Kuhn, M.D. filed a Statement of Errors Complained of on Appeal on Pursuant to P enn sylvan i a Rule of Appellat e Procedure l 925(b), Defendants Amy 

### L. , . 

## " ST A TEM EN T O F MA TI ER S CO M P LAI N ED O F O N APP EA L On May 18 , 20 1 5. the S u pe ri or Cou11 Sua 

### Sponte Consolidated the above appeals. Appeal. On May 6, 2 015, Hospital Defendants filed a Statement of Matters Complained of on Matte r s Complain e d of on Appeal. O n M ay 

### 5, 20 1 5, 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 1 1 16. 1 1 2 1 (Pa . 2000) . trial is an effective instrumentality for seeking and achieving j ustice in those i nstances where the "Trial courts have broad discretion Lo grant or deny a new trial. " 29 " T he 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 cauti onary 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 objecti onable, 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 j u ry. To the extent an objection was not raised to any offending questi on , that issue was waived and cannot provide grounds for the court ordering a new tri al. · ,· ' ·· 

### 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 vio l ation of p r etrial rulings, again errors claimed can only be stat ed here i n generally, because the 

### co u rt did not specify which rulings were violated by precisely which questions. The Hosp i tal defendants generally assert error here because the questions e i ther were not in vio l ation 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 i n 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 verd i cts, or ques tion any evidence a dmitted 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 verdic t , where the plaintiffs assignments of error i n the admi ssion of error in the admission of evidence all related to i ssues 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 I d. 11 Deeds v . U . of Pennsy l vania Med . Ctr., 1 10 A . 3d I 009 , I O 12 (Pa . Super . 20 1 5) , reargumcnt denied (Ap r . 7 . 20 1 5)(citi ng M aya v . Johnson & Johnson & McNe il -PPC , Inc . {(n re McNciU-PPC. I nc . ), 97 A . 3d 1203, 1 2 24 (Pa . Super . 20 I 4)) . 32 f-111rman ex rel. Hannan . 756 A . 2d at 1 1 22. H Dee d s v . 

### U . of Pennsylvania Med, C tr., 1 1 0 A . 3d 1 009, 1 012 (Pa . Super. 2015), reargument denied (Ap r . 7, 20 1 5) 3 4 L ee v, 

### S.E . P ennsylvania Transp . Auth . , 704 A . 2d 1 80, 183

- 84 (Pa. Cmmw . 1997)(c i tations emi tted) . JS M irabel v Morales, 57 A .3 d 1 44, 15 1 (Pa. Super . 2012) . 3 6 S tev e n son v . Pe nn sylvania Sports & E n terprises. 93 A . 2d 2 3 6 , 240 (Pa . 1952) . discr e ti o n for th e court be l ow t o refuse a new tria l. ' ' 3 6 to the di s cr e ti o n of the trial judg e . Wher e th e remark is obvio u sly prejud i cial , it is an abuse of . . . .. ~ .•. 

# r~ motion fo r a new trial for alleg e d mi sconduc t or imp r oper remarks of co u nsel i s dir e cted l arge l y th e orderl y adm in istr ation ofjustic e, and to pr e se rv e the sanctity of the rule of law . " 3 5 "A fu n d am ental fa irn ess, to ensur e professional respect for the ruli n gs of the tri al court, t o guarantee in t e ntio n ally v i o l ates n pre - trial order, the onl y r e m edy i s a ne w tria l, in order to p romote co u nse l m ay have p re

j udi ce d the jury . " 34 The Superior Court bas "held that when a party ,, 

## . .. , .; 

### t , 

### i . ~ L 

## , . I · 

### " [ A) trial judge may grant a n ew trial i f he fi n ds that ... improper stat eme n ts made by :J ,:,: tri al. " 33 a d mi tted testi mo n y m ay hav e affe ct ed a verdict, th e only correct remedy i s the g rant of a new whe th e r the m istake was 

### a sufficie nt b asis for g r anti n g a new trial." 32 

### "Further, when improp e rly m atte r s. 

### [l] f the trial court conclude s that a mis t ake ( or mistakes) occurr e d, it mus t de t ermine m o r e mistakes occurred at tri al. Th e s e mistakes m igh t involve factual, legal, or disc r etionary , '. the case . '?' In det e rmin e whether t o gran t a n ew trial " the trial court must d e c i de whether one or i ts decis i on abse n t a cl e ar ab us e of discre tion o r an error of l aw which controls th e outcome of "The power to gra n t 

### a n ew trial lies inherentl y 

### wit~ the trial court and we 

### will not reverse r e su l t, w hi ch, after all, is the pri mary goal of all legal proceedings . vl? original trial , b e cause of tain t , unfairness or error, produces something other than a just and fair ~

... -. 

# r ;: : : ; :

~ ,. , ..

## A. 1 0 I • 

## 1 · t ,



### 10 discre tion fo r this Co u rt to r e f us e a new trial. imp r oper question i ng was obviously prejudicial, and th erefore it would have been an abuse of the o nl y ap p r o priate rem edy . D efen d ants' st atements and th e testimony elicited thr ough created insu rm ountabl e and u ndue p re jud i ce t o wards P lai nti ff and is the reason why n n ew trial is h arm t o Je n na which resulted i n a def e nse v e rdict. Th e cumulative effect of Defendants' 

### conduct basis. The conduct by Defen d an ts caused th e jury t o speculat e about other possible causes of the to Def e nd ants' cond u c t w h i ch all ow e d the j u ry t o h ear in a d mis s i b le ev i de n c e with no ev ide ntiary was fundamental ly unfair 

### fo r Plaintiff Th i s Court finds this trial to be fundamentally unfair due d e monstrat ed a blatant indiff e r e nce for th e rulings of th i s Court and created an env ir onment that Des p i t e th e w arn i n g s an d ins tru cti o n s fr om thi s Co u rt , D efendants rep e atedly 5 . T hat r e s ulted in at le ast tw e n ty - th ree (23 ) warni n g s and i n s tru ctions fr o m th i s Court t o De f

en d ant s. 4. T h at Jen n ife r Soco Sc ott i nt e n d e d t o g i ve J e n na u p for ad o pti on followi n g he r b irth; 3. T h at the pl a centa h a d a ch orn n gi o ma l esi o n w ith no ev idenc e o r exp e rt o pi n io n t o s up p o rt thi s co n c lu s i o n ; 2 . T h at b ab y s u ffer ed a spec ul ati ve b rain in j ury pri o r t o m o th e r 's ad mi ssio n to c ar e o f D e f

e n dan t s ; 1. 

### T h at th e m oth er ' s all ege d ina dequ ate p r e n atal car e i s t o bl ame fo r Pln in tiff' s in

j uri e s; 

### Co u rt ' s Ord er s: Thr oug h out the trial De f

endants attempted to introduce evidence in violation of the n. Pl a intiff i s En title d to a New T ri al Because P laintiff S u f fe red I n s urmo unt abl e P re

j udice D ue to th e Cu mu l ative Effect of th e Tes tim o ny Elic it ed by 

### D e f

endan t s i n v iol ati o n o f this Court 's Or ders.

## A . 11 1 1 ;, N . T., 9/2/1 4 , 2 1 : 7-21. 33 N.T. , 9/2114, 22-23: 24-25, 1

- 2 (emphasis added). 

### T h e Cou11: .... 

### Its scope 

### says, limited t o, that you' re b e in g pre clu de d wi th regar d to inadequacy and number of p r enatal vi s its and that i s grantcd . 3 8 T h e C ou11: T o the exte nt so meth ing 

### occurr e d o n 

### a s pe cifi c date that you wa n t to exp l ore, that's fine. B ut you c an't, for exampl e , you went to the doc t o r on this date and th i s date and that ' s the only doctors that you saw. That w ould 

### be imprope r . 

### l f th ere 's a h isto ri c al e v e nt th at 

### occurred o n a particular visit, you should refere n ce the visit, n ot first, s e cond , third or that's all or th e only ones, and say on this visit you were given this 

### information and whatever the h isto rical event is, the factu al ev e n t that's relevant.. .. 37 Limi t ed and/or Inadequat e P r e n atal Care Throughout her Pregnancy with Jenna. Ev i dence, Reference, Argument, Suggestion and/o r Innuendo that Jennife r Soco Scott Received T h i s C ourt ma d e 

### a cl ear a n d p r e c i s e ruling o n 

### Plainti ff' s Motion in /imine to Exclude any 

### 1. Defe n d a nts l n tentio nallv V iol ated the Co urt 's 

### in L lmin e Ruling by Repeat edly Att e mptin g to Blame Plnintifrs Injurie s on the A ll e ged l y I na dequ ate Pren atal Cnre by Je nn ifer Soco Scott. : ' 4 . Defendants Intentionally Violated the C o urt' s Ruling s by Repeatedly Elicitin g I rr e leva n t T esti mony R egar d in g the Int e nde d Adoption o f Jen na. ;,. 

### 3 . Defendant s Intentionally Vi olated th e Court 's 

### i n L i m ln e Ru li ng b y R e p e atedly Attempting to Elicit Speculative Testim o ny that the Placenta had a Ch o rangt o ma Les ion. 2. Defe n d a nt s I n te n ti ona ll y V iol ate d th e Co urt 's 

### in Lim i ne Rulin g b y R ep e ate d ly Elicitin g Inadmis s i ble Testimony Concerning a "Unpr e dictable B r ain Inju ry. " 

### 1. Defend an t s I n te n ti o nall y Viol at e d the 

### Co urt's 

### i11 Limine Ruling by Repeate d l y A ttempti n g to B lame 

### Pl a inti f f' s I n juries o n th e A llegedly In a dequate P r e n atal Car e b y Jenni f

er So c o S cott. creation 

### of a f

undam e ntally u nfair trial for the follow i ng reaso n s: Plaintiff was insurmountab ly prejud i c e d through Defendants' willful and intentional

## A . 12 1 2 39 N.T., 9/8/14 , 178, 23 4- 238, 244 , 291 , 301-309 .

~ 0 Bosci11 v. Mo ssoro, 5 2 9 A .2d 504 , 505 (Pa. Super . I 987)(cilotions o mitted). ~, Mirabel, 57 A . 3d at 151 (citations omitted)(cmphasis added) . 42 N. T., 9/8/ 1 4, 74

- 75, 1 7 8-180, 236, 292 , 303-309: 9 /1 9/14, 242-243, 27 1- 276 ; 9/12 /1 4 , 66-67 ; 9/15/14). 70

- 72 , 89- 91. 

### Joan Orsini-Ford , Esq.: And wer e you aware that sh e wenl there on a Saturday night because she had complaints of lack of fetal movement ? G arofalo , Jennifer Soco Scott's cousin by marriage: Defense counsel violat ed the Court's rul i ng on cross-exami n ation of Michae l A. 

### atm osphere through innuendo that Jennifer Soco Sco tt was comparati vely negligent. cre at ed a fun dame nt all y un fai r tri al b y att emp ti n g t o pr e ju di ce the Plai ntiff b y cr e atin g an regard i ng prenatal care and created a fu n damentally unfai r situation for Plaintiff ' 12 

### Defendants 

# ' ' t , 

### s l igh tes t respec t for the rulings of this Court r esulted in th e introduc ti on of prejudicial evidence att empt t o p r eserve a fair trial. Defe n dants' aggravati n g inability an d unwilli n gness to show th e in structio n s and warnings abou t prenatal care to both the jury and Defendants in its unsuccessful wa s no t an iso l ate d i n cident. Thr oug ho ut th e trial this Co u rt was for c ed t o offe r t en (10) Defendants' deliberate effort to continually introduce speculative, inadmissible evidence the orderl y admin istration ofju stice , and to preserve the sanctity of the rul e of law. "' 41 

### fundamental fairness, to ensure professional respect for the rulings of the trial court, to guarantee i n surmou nt abl e prejudicial references, "the o nly remedy is a new trial , ' in order to promote impr oper state m e nts m ade b y c o u nsel m ay have prejud iced th e ju ry. " 4 0 

### When an att orne y make s · "A trial judge may g r an t a new trial if he finds that i mproperly admitted evidence or fo r this C ourt's rul in gs resul te d i n an e n vir o nm e nt wh i ch made a fai r trial imp ossib l e. were due to a lack of prenatal care . 39 

### The numerous examples of D e fendants' flagrant disrespect overwhelming prejudicial evidence to the j ury in an attempt to suggest that Plaintiff's injuries D e fendants w i llfu ll y ignored the ruling of the Court b y r epeat e dly i ntr oducing

## A . 1 3 13 ~J N . T ., 9 / 8114 , 17 8- 180 . 

### T h e Court: Ladies and ge ntlemen , 

### you s h o u ld d is r e g ard any thing

- I thi nk I 've said this b e fore-with re gard to Orang e Cou n ty Medical Ce nt er, other than what 's been testified to, that she w ent there on a date an d that an es ti mated date o f delivery was given for the purp os e of a c e s arean sec ti o n , because that ' s th e o nl y i nform ati o n th at th e doctors h ad in th is ca s e at the 

### time of treatment, and the r e' s no allegation otherwise . Again l' l l tell yo u th e focus of this case is what occurred w he n they arrived at 

### th e h os pital on Febru ary 8 , 2 008 . If the d oct ors h a d inform ati on , that 

### w o uld b e d iffer e nt, b ut for no fau lt of the ir own they d idn't hav e informati on about Orange Cou n ty. So we can't s ud denl y start c onsiderin g it, because that would be not fair to the docto r s or anyo n e el s e : 13 Christine Giordano , E sq .: I ' d like to m ake a moti o n to stri ke counsel's questions, Your Ho n o r. 

# . . . T he Court: I have already giv e n prio r t o th i s exami n ation 

### a cau tionary instruction ab ou t th is . You want to make a mo tion, fee l fre e, but , o th e rwise, we' ll continu e and make y o ur o b

j e cti o n s and 

### I' II conti n ue t o in struct the jury . Chri s tine Giordan o . 

### Esq .: M ay we se e you at side

- bar ? The Court: Sustained. Chri s tine Gi or d a n o, Esq . : Ob j e ction , Y o u r Hon o r . Jo an Orsi ni

- F ord, Esq.: Do you recall why s he wen t to O r ange C o unty Regional Medical Ce nter that nigh t ? Th e Court: Sustained means don't answer . La di es and gentlem e n, you s h ould disregard that l ast questi on because it ha s n o thing to do with what happe n ed on F eb ru ary 

### 1 1 of 

### 2008. M ichae l A. G arofalo : So rry . The Court: Exc u se me , 

### sir. When I say sus tai ned yo u don' t have t o an swe r th e question . Ok ay? M ichael A. Garofal o: 

### l don ' t r ec all that. Th e Court: Su stai ned . Chris tin e Gio r da n o, Esq .: Objectio n , Your 

### Honor.

## A . 14 .. . "'··· 

### : ~ . . . ::; : , .. 

## . .

14 4 ~ N.T . , 9/8/14, 235:24

- 236: 1

- 1 I . Chri sti n e Giordano, Esq . : Objection. You r Honor. M ichel e Garo fa lo: N ot that I reco l l ect. Joan Orsini

- Fo r d, Esq.: Did you talk to any doctors in New York about schedu li ng th i s C-section date? Michele Gar ofalo: Sorry . The Court: E xcuse me, ma'am. You don't have to answer that questi on. M i che l e Garofalo: I would i magine the y ar e - T h e Court: Sus t ained . C hris ti ne G i ordano , E s q . : I 'm going to obje c t to it, Your Honor. Joan Ors i ni

- F or d , Esq . : Wh e n Jennife r visited w i th you she had the ty p ical comp l ain t s of a woman at an a d vanced stage o f preg n ancy ' co rrect? Garofal o , Je nn ife r Soco Scott ' s cousin. this C o u rt wa s fo r ced to offe r i ns tructi ons t o the j u ry du ri ng thei r cross - examinatio n of Miche l e Def e ndants o n ce again attemp t ed to elicit extremely prej u dicial testi mony and once again The Court : I just instructed the jury i t' s not relevant and you shou l d disregard it. 44 Chri sti ne Giordan o, Esq. : Y ou r Honor, I make a motion to strike Ms . Ford's qu e s tion . The Cou rt : Sustained . It ' s not r elevant what happened in New York . [ previous l y instructe d you. Ch ri stine G i ordano , Esq . : Ob j ection, Your Honor. Joan Ors i ni

- Fo r d, Esq . : And do you recall that the doctor - she had tal ked to the doctor about wan ting t o deliver th e baby in New York? fundam e n t ally unfair. t o shape a trial that extremely prejudic e d P l ai ntiff and to c r eate an environment that was Desp i te th i s warning from th e Co u rt, Defendants s till p ersi s ted i n their successfu l attempt

## A.15 : : . : ,• L ' : ; 

### : : , · .,» 

# r . , .. 

# - · , · . 

### . . " '.,_( ~~



### 15 •S N . T., 9/8/14, 291 : 9-25-292: 1-21. 4 "N.T . , 9/8/14 , 302 : 21-303:1- 1 6. The Court : Ms . Ford , could you p l ease 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 Honor Christine Giordano, Esq.: I have an objection, Your Honor, and a motion to strike. The Court: Counsel for plaintiff, anything you want to a dd? (The jmy w i thdraws 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 instruction s 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 o f delivery, because the test in this case is what did these phys i c i ans know when treating the child and the mother. That's the t est. 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 Phi l adelphia 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: 1 9

- 25-67: 1

- 2 . 48 N.T. , 912il 4, 62

- 66. 

### tes timony that wo u ld undu l y prejudice Plaintiff. Defendants continued their conscious decision i ssue the Court was forced to admonish Defendants two times as a result of their attempt to elic i t be outside his or her area of expertise and th erefore was not admissible during trial." On this Expertise . This Cou11 clearly ruled that this neurological testimony from an obstetrician would Specu l ative and Mislead i ng Testimony at th e 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 Plainti ffs Motion in 

### 2. Defe nda n ts Int e nti o n a lly V i o l at e d the C o urt' s 

### i11 L imine Ruling by R e peat ed ly E lici ting Spec ulati ve Te s ti m o n y C onc e rning 

### an " U n p re d ict abl e Brai n Injury" 

### B e for e J enn ife r Soc o Sco tt ' s Re -admiss i o n to L owe r Bu ck s 

### H os pit al . trial deliberatel y creat ed by Defendants, the only rem e dy is to grant Plaintiff a n ew trial. preju d iced Plaintiff. As a result of the extremely prejudicial and fundamentally unfai r I nad e quate Prenatal Care Throughout h e r Pregnancy with Jenna insurmountably A r gume n t, Suggestion and/or Innuendo that Jennifer Soco Scott Received Limited and/or th i s Court's orde r s on the Motio n in limine 

### to Exclud e any 

### Evidence, Refe r ence, D e fendan t s' disrespec tful conduct throughout the trial in blatantl y disregarding The Court: Sustained. Lad i es and gentlemen, we've been over this issue of prior treatment. It ' s 

### just not relev ant."? 

### Joseph L . M essa , J r ., Esq. : Objection, Your Honor. Joan Orsini-Ford , Es q .: Did you think that it would be re l evant to your opinions t o review an y of the prior treatmen t reco r ds? in their e xamination: D e fendants 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 vio l ated 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 de l ivery 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.1 8 . .. l · 

# .. .. I I . .



### 18 SI N . T .• 9/12/14, 8 4- 8 5: 9 -25, 1-20. effort of this Cou1 1, the co n duct of De f en d ants led to the introduction of overwhelming demo n strat e d a fl agr an t inte n t t o v io l ate the pretrial rul i ngs made by this Court. Des pit e e v e ry n ature and therefor e inadmissible during the trial. However, Defendants once again T h e Court c learl y ru le d that it foun d the tes ti m o n y show n above t o b e speculati v e i n The Court: The objecti on is sustained. There has Lo be a good-faith basis for these questi ons. 51 Joseph 

### L . Messa, Jr., Esq.: J u d ge, I would ask for move to strike and ask for instruc tio n . I mean, r e a lly, this h as been r e pe titive and there's n obody th at says an ythi ng abou t this o r e v id en c e of 

### i t. Joan O rsin i -Ford, E s q. : Y es , there ' s n o - i t w as n o t co mp leted. The Court: Do you have a goo d -faith basis fo r th i s question? Joan Orsini- Fo r d , E sq.: I jus t want to e s t ablish - The Court: D o you have a good-faith bas i s for this question , Cou n s e l? Jo sep h L. M essa, J r., Esq . : Obj ecti o n , Yo ur H on o r . R eall yJoan Orsi n i

- Fo r d, Esq.: And did you see any evidence of that testing done? Mr . S t e ele: Y es. J oan Orsini-Fo r d, Esq.: And, in fa c t, in you r re view of the records did you note that there-w a s recommendation for ge n e tic testing? D r . Steel e : T hat's corr e ct, Jo an O r si ni-F o r d, E sq .: And i n yo u r re p o rt y ou n ote th at th ere's no ev i dence o f coagulation d i sorder , in fectious con d itions or genetic d i sorders, co rr ect? D r. S t ee le : I did say that the baby did not hav e any eviden c e of infecti on, d i d not h ave a metabolic diso r der and di d n ot have any brain malformations iden ti fied. Joan Orsi n i-Ford, Esq.: I believe, according to your testi mony, you sai d th at you cou l d ru le ou t cert ain thi n gs. l s th at co rrect, as I underst o od your t es ti m ony.

## A. 1 9 1 9 ) ? N . T . , 9/2 114, 5 3

- 58 . S) N . T., 9/ 1 0/l4am, 8 0, 93

- 95; 9/18/14, 192

- 196 . J oan Orsini

- Ford, Esq.: She's explaining her r e port, You r Hono r . Josep h 

### L. Messa , Jr . , Esq.: Your Honor, 

## r object. This tumor di d not ruptu re, so she's just talki ng about something that is not here . Ms . Sal a fi a: These tumors can rup ture because the flow i s not normal. And they can bleedJo an Orsi n i- F ord, Esq . : and you state that histologically this is a lob u lat ed chora ng ioma w i th congestion , but no hemorrhage or necrosis apprec i ated in the samples . W h at sp e cifically does that mean? Dr . Sal afia: Yes. Joan Orsini-Ford, Esq .: Doctor, in your report you note that th ere is an area i nside A3 and A 4 that contai n the hemorrhagic area . And i s that the chorang i orna that yo u we re showi n g us? of D r. Salafia , Defendants purposefully attempt to e li cit prejud i cial evidence. severe prejudice fo r P l ainti ff and to the fundamental unfairness of this trial. In the i r exami nation D e fendan ts' int en ti onal v i o l ati ons of this Court's rulings contributed to the e n viro n me n t of i gnoring its rulings and three warnings an d instruc ti ons in regards to this issue . 53 The of expertise as a placental 

### patho l ogis t . S Defendan ts continued t o aggravate this Court by Cou rt ruled that Caro l yn Salafia, M . D . ' s ("Dr. Sala fi a") testimony would be limite d to her area Trial on the Issue of Jenna Scott's Neonatal Outcome as Incompe t e nt and Speculative. Th i s Plainti ff fil ed a Motion in limine lo Prec l ude the Testimony of Carolyn Salafia, M.D . at 

### 3 . Defen dants I ntenti onall y V l o l at e d th e Cou rt ' s 

### i11 Limine Ru ling b y 

### Rep cnte d l v Att emptin g t o E li cit Spe cul ati ve Te s timo nv th at the Pl acenta ha d a Ch orangi o m a L esio n . ensu r e professional respect for th e rulings of the trial court P laintiff must be gran t ed a new trial. prejud i cial evidence to the jury . T h erefore, in order to promo t e fundamental fairness and l o

## A.2 0 ; . •, · ' · 

## . ..

20 14 N . T. , 9/1 8 /14, 182-1 83 : 4-25, 1

- 22. 

### .Joan Orsini-Fo rd , E sq.: T hat was n o t stri c k en, Your H o nor . T h e Court: I t goes b e yond her areas of expertis e . S h e ' s already - and h e r report acknow l edges that. Joan Or s ini-Ford , Esq. : It 's in the report, Yo u r Honor . T h e Court : Sust ai ned. Joseph L. Messa , Jr . , Esq.: Objection. Joan Or s i ni

- Ford , Esq. : A n d are they a sso c i at e d with c ert ain ou t co mes ? Dr . Salafia: No. Joan Or s in i

- Ford, Esq.: Doctor, ar e c horan g i o mas comm o n? Defendants continu e d to introduc e specul ati ve and mi sl e ading ev i dence to the jury. D e fendants intentiona lly raise d this issue again in their examinatio n of Dr. Sa la fia as T he Court : Excuse 

### m e , excuse 

### m e. To th e ex te n t we ne e d a general backgr o und, Doctor, please make sure you' r e d i fferentiating between things you say that cou l d h app en and what happe n ed in this case . Ok ay ? s 4 

### Joan Ors i ni-Ford , E sq. : It' s w i th r eg ard to pl a cental path ol ogy . Joseph 

### L. Messa, Jr . , 

### Esq. : Again, o bjecti on, Your Honor. Joan O r sini-Ford, Esq.: And D r . S a lafia, let me ask you , i n t e rms of the fact th at this was a liv i ng tumor and it had not died, what significan ce does that h a ve? D r . Salafia: T his is entire l y li ving tumor mass. Th e re is n ot any part 

### of this tumor mass th at's d e ad . The Court: So you ' re n ot saying that what you ' r e t estifying about has any particular fi n ding s i n this c ase. Dr. Salafia : I'm just saying - she a s ked me to explain w h at not nec r otic meant an d 

### I w as try i ng to d o th at. Th e C o urt: Yo u 'r e j us t g ivi n g u s a ge ne r al ba c k gr o u nd at th i s p oin t i n time, ma ' am ? Joseph L . Messa , J r., Esq.: Sh e said th e y can rupture . They didn't h app e n 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 Co u rt: I would i magine that you'll take care of it, 

### because th i s 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 

### s till don't understand the Mr. Messa : Howev e r, it can be viewed the other way. And it can be viewed in a way that is negative towards th e mother, towards this child, and i t goes to zero, no issue in th is caseAll Evidence Relating to the Potential Adoption of Plaintiff Jenna Mari e Scott. J enna Marie Scott. This Court originally denied Plaintiff's Motion in limine 

### to Preclude Any and P l ainti ff filed a Mo ti on in limine 

### t o precl u de the mention of the p lanned ado p tion of 4 . 

### Defe n d an ts In tc n tlo nnll v Vi ol ate d th e Cou rt ' s Ru li n gs 

### b y Rep eat edl y Eli c iting Irr e l e va nt T es ti mo ny 

### Re gn rdi ng th e I nte nc.Jc d 

### A dopti on of Plain tiff. :=· 

### grant of a n ew trial. t e stimo n y, Defendan t s de l ib e rat ely p rejudiced Plaintiff and left the Court's only r emedy to be 

### the te stimony to her area of ex p ertis e a s a plac e n t al patho l ogist. T hrough th e elic i tation of this the I ssue of Jenna Scott's Neo n atal Outcome as Incompetent an d 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 ev i dence in vio l ation of this Court's ruling The Court: Su s taine d . It's n ot in his r eport . 56 

### J oseph L. 

### Messa, Jr., Esq.: Objec tion . Joan Orsini

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

### prejud i cial 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 T h is speculative tes timony directl y contributed to the i n surmountable prejudice that faced The Cou11: La di es and Ge n tlemen, 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 . .1 9 N.T., 918/14, 233: 16

- 20 . Christine Giordano, Esq. : Your Honor, I make n motion to stri ke 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 t alked 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 reco ll ections. 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 inc l usion 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 w i th the sole purpose of further prejudicing Defendants in this trial. Defendants d i d 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 ; . . ... • '•, 

### r~ 

# . . 

## . .

23 ~ 0 N.T., 918/14, 235:25-236: 11. 6 1 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 Plainti ff. 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 Chris tine 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 .. . , . = . :.: ~ ·- ' 

### . .,.



### 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 th i s Court about other alleged causes of injury through inadmissible evidence which resu l ted 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 . 1 334 (Pa . Supe r . 1 992) . t>i See~ . I IO A . 3d at JO 1 2 ("fu rther. when improperly admi tted testimony may have affected a verd i ct , the only correct remedy is the g r ant o f a new tri al. "). M Id . (int e rnal quotations omitted ) ( citations omi n ed) . br , Id. at 1013 . 61 

### JsL at 1 0 1 3

- 14 . 6 x L obalzo v. Yarolj, I 85 A.2d 557 , 560 (Pa. 1962). 69 Nigra v . Walsh, 797 A.2d 353. 361 (Pa . Super. 2002). the jury found the defendant not negligent. 69 The Superi or 

### Court ordered 

### a new trial 

### in Nigra 

### In Nigra v. Walsh, the Superior Court remanded the case for 

### a new tria l, despite the fact such a basic character that even if unobjected to [entitle] the plaintiff to a new trial." 68 Stat e men t s made in violation of the l aw and Cou11 rulings can be "reversible error and of i t is i mpossible to conjecture what influence the [collateral 

### source evidence ] had in bringing the jury to th e conclusion it reached. When an error in a trial is of such consequence th at, like a dash of i nk in a can of mi l k, it cannot be strained o u t . the on l y remedy , so that justic e may not ingest a tainted fare, i s a new trial. 67 In a case such 

### as this where there is 

### a violation of the collateral source ru l e, Whi l e the primary focus of the collateral source rule i s to avoid 

### the preclusion or diminution of the damages otherwise recoverable from the wrongdoer based on comp ensation recovered from a collateral source, in some i nstances, the violation of the collateral source rule can affect the jury's deliberation and decision on the issue ofliability. 66 recoverable from the wrongdoer.?" ru l e provides that paymen t s from 

### a collateral 

### source shall not dimin i sh the damages othe r wise sources of payment may have improperly influe n ced the jury's verdict. 64 "The collateral source compensated by 

### a collateral source." 6 3 A new 

### trial is necess ary where evi d ence of collateral "As a general rule, i t is error for the jury to be informed that the plaintiff has been : · .- b . P l ain tiff i s E ntitl ed t o n Ne w Trial Because D efen dants Rc p eatc dl v I n troduced Ob i ectlo n nbl e Collateral S ource Ev i dence in V i olati on of th i s Cou rt 's Pre

- T rial Rulin gs T hr oughout the Trial.

## A.26 . . ' .



### 26 70 

### l:iiwl, 797 A.2d at 360. 7 1 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 wa s 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 w i th 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?" fo ll owing 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 h is 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 receiv i ng social securi ty 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 plai nti ffs) in i u ries. " ?? The Court in Nigra int1uence this violation had in the bringing the 

### jury to the conclusio n that (the defendant's ] that the defendant "violated the collateral source rule and that 

### i t is i mpossible to conjecture what because of the violations of the collateral source rule by the defendant. The Superior Court held

## A.27 27 7 J N . T ., 9/J5/14 , 1 75 :13

- 1 7 . 

### Jos e ph L . Messa , Jr ., E sq.: T h i s o ne goes to co ll ateral sour c e - - The Court : Basis? J o seph L . Messa , J r . , E sq .: Ob j ection, you r Honor . Joan Ors i n i- Fo rd , Esq: And w o ul d you agree that th e l aw pro vide s that e ducatio nal program s prov i de programs to maximi z e the potential for students? 

# . ' 

## . . Lo rraine B . B u c hanan : Yes. Joan Orsini-Ford, Esq.: Th e ADA. 

# . , • 

### Lorrai n e B . B u chan an: The ADA? Jo an O r s ini -Fo r d, Es q .: A n d ar e you famil iar w ith th e I nd ividu a ls with D isab il i ties Act ? Lo rraine B. 

### B uc hanan : Yes . Joan O r sin i- Ford, Esq . : And woul d I be c o rrect that in your rev i ew of th e KenCrest r ecor ds, Je n n a i s gettin g all of th e car e that has be en pr e scri bed fo r 

### her by her physicians? Th e imp ro p er qu e stioning was conti nued: L o rr aine 

### B . B u chana n : She is. 73 

### Kurt Straub, E sq .: No w , as I r ead thro ug h y ou r report and your life care p lan, am I correc t that at Ke nCr e st Jen n a is actuall y receiving all 

### of the h ealthcare tre atm ent an d serv ice s whic h s he ne eds or from which she might benefit ? exp ert , Defe ndan t s el ic i te d tes tim on y i n v i olati o n of the coll at e r al so urce ru le. co ll ater al so urce rule . W h ile cr oss -e xamini n g Lo rraine B . B uc han an, Plai nti ff s li fe c are T he re are num e rous p l aces i n the r e co rd in w h ic h D efe n d ants v io l at e d the r equ i re any addi tional c ompe n satio n . source rule, sugg e st to the jury 

### th at J enna had all the care sh e need e d an d that she did no t Th e above comme n ts made by defense counsel, i n clear violation of the collat e ral

## A.28 c - . 

### . .



### 28 "N.T., 9115114, 180:24-182 : 14 (emphas i s 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 rece i ves, in addition to schoo l , does KenCrest provide therapies at home? Additionally, defense counsel asked: Patricia Rooney : Yes." Joan Ors i ni-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 rece i ves . Patricia Rooney, who is one of Jenna's pediatric nurses at KenCrest: The following testimony was e l icited by defense counsel on cross-examination of The Court: Sustai ned. 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 educati on . That mi ght 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 specificall y are the 

### schools req u ired 

### to provide for Jenna? The Court: She's already testified that if she's in school there are certai n benefits. She ' s already testified to it.

## A.29 :· ~ -



### 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 .3 0 ~ - . ·.: ~- .. , •, , . · 

### , . .. .. .

30 79 Deeds, 1 10 A . Jd at 1014 . 10 kl, at 1 012 . DATE : 

# 25' 

# / 0 · ;/..a / ..5' B Y TH E C OURT: R elief and Granted a New T rial. For the foregoi n g reasons . this Court properly Granted P l aintiffs Motion for Post Trial C ON C LU S IO N ve r dic t. " 80 The r efo r e, th e o nly proper r emedy is to g r ant Plaintiff a new tri al. th ro ugh magic or 

### che mi stry . "?" H e r e "imprope rl y admitted testi m ony may hav e affected a th e co ll ateral so u r c e ru le it is c le ar that " [ t ] he ink was in the mi lk; we c annot now extract it Due t o Defendants re p eated willful violati ons of this Court's Motion in limine ruling and T he Court: Ladies and g e ntlemen , s trike th e l ast answer and I'll give yo u a detailed i nstruc tion as to why i n my closing charge t o you . J os e p h L . Messa , Jr . , Esq.: Your H onor , I' m going move t o strike the las t answer. Joseph L. Me ssa, 

### Jr. , Esq . : Ma'am, can you answer my question? S u san Dav is, 

### R. N.: B e cau s e it 's a ll oc at ed th ro u g h th e I n di v idu al s W ith Dis ab ility Act . And the rap y , physical th e r apy , o cc upati o nal th e rap y , s pe ec h therap y , re c reati o n the r apy , psych o l o gy i s p r o v i d e d thr o u g h th e ID A p rogr am, okay. Fed e r a ll y -fun de d s tate progr am. J os e ph L. M e ssa, J r ., E s q . : Bu t what you didn't do, ma'am , was you didn ' t mak e any allo c ati on what s oe ve r, no t a nicke l , for Jenna to receiv e occu p atio n al therapy that s he 's r eceiv i ng n ow, right? o c curred: During Plaintiffs cross - examination of Susan Davis , R . N ., the following t estimony