J. A21024/16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOIE DIGIOVANNI : IN THE SUPERIOR COURT OF

Appellant : PENNSYLVANIA

:

:

:

v. :

JOHN B. MURPHY :

:

: No. 2902 EDA 2015

Appeal from the Judgment Entered September 15, 2015

In the Court of Common Pleas of Philadelphia County 

Civil Division at No(s): November Term, 2013 No. 01291

BEFORE: Bender, P.J.E., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY DUBOW, J.: FILED SEPTEMBER 22, 2016

Appellant, Joie DiGiovanni, plaintiff below, appeals from the Judgment 

entered in the Philadelphia County Court of Common Pleas on September 

15, 2015, in favor of Appellee, John B. Murphy, defendant below, following a 

jury trial. After careful review, we affirm.

We summarize the facts, as gleaned from the detailed trial court 

opinion, as follows. On February 5, 2012, Appellant was the passenger in a 

car, which was rear-ended. Appellee was the driver of the striking vehicle, 

and was travelling at approximately 45 miles per hour. Appellant did not 

wait for an ambulance to take her to the hospital following the accident, but 

rather travelled there in her boyfriend’s car. 

Appellant presented at the hospital with a scrape on her chin and a cut 

lip, and complaining of pain in her ankles, wrist, leg, hip, neck, and back. 
J. A21024/16

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Hospital staff performed x-rays and a C-T scan, both of which came back 

negative. Appellant subsequently experienced swelling and bruising.

Appellant sought treatment for her injuries from five different medical 

professionals. Ultimately, she received a diagnosis of fibromyalgia and 

rheumatoid arthritis. Her doctor prescribed Appellant the drug Humira, 

which Appellant described as a “miracle drug.” See Trial Ct. Op., 2/25/16, 

at 1-3 (citations omitted).

On November 14, 2013, Appellant filed an arbitration Complaint 

against Appellee raising claims arising from injuries she alleged she 

sustained in the February 4, 2012 collision. Specifically, Appellant claimed 

that, at the time of the accident she suffered from asymptomatic 

fibromyalgia and rheumatoid arthritis, which conditions were made 

symptomatic by the trauma of the accident. Appellee filed an Answer with 

New Matter on October 20, 2014. That same day, the arbitration panel 

entered an award for Appellant in the amount of $41,500. 

Appellee filed an appeal from the Arbitration Award on October 30, 

2014. A three-day jury trial commenced on August 10, 2015. Following the 

trial, the jury concluded that Appellee’s negligence was not a factual cause 

of Appellant’s injuries, and, thus, returned a verdict for Appellee on August 

12, 2015. 

Appellant filed a Post-Trial Motion on August 21, 2015, in which she 

alleged the jury’s verdict was against the weight of the evidence and that 
J. A21024/16

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the court erred in permitting the jury to receive medical expert reports and 

internet articles produced by Appellee’s counsel in cross-examination of 

Appellant’s expert witness. On August 25, 2015, Appellee filed an Answer to 

Appellant’s Post-Trial Motion. Appellant filed a “Reply in Support to PostTrial Motion” on September 1, 2015.

Appellant filed a Notice of Appeal from the jury’s August 12, 2015 

verdict in favor of Appellee on September 4, 2015.1 The trial court denied 

Appellant’s Post-Trial Motion on September 14, 2015, and simultaneously 

entered Judgment in Appellee’s favor.2 Appellant and the trial court have 

complied with Pa.R.A.P. 1925. 

Appellant raises the following issues for our review:

1. Whether the jury’s finding that [Appellee’s] negligence 

was not a factual cause of the injuries sustained by 

[Appellant] was against the weight of the evidence 

requiring the court to remand for a new trial.

2. Whether the court erred in sending portions of hearsay 

internet articles, which directly addressed the medical 

 

1 We note that Appellant’s September 4, 2015 Notice of Appeal was 

premature as a final order had not yet been entered in the case. See PA 

Energy Vision, LLC v. South Avis Realty, Inc., 120 A.3d 1008, 1012 n.3 

(Pa. Super. 2015) (an appeal of a final order in a civil case lies from the 

entry of judgment). However, the trial court entered judgment following 

denial of Appellant’s Post-Trial Motion on September 14, 2015, thus 

perfecting Appellant’s appeal. See Prime Medica Assocs. V. Valley Forge 

Ins., 970 A.2d 1149, 1154 n.6 (Pa. Super. 2009) (a final judgment entered 

during the pendency of an appeal is sufficient to perfect appellate 

jurisdiction). 

2 The court mailed the parties Pa.R.C.P. 236 Notice of Entry of Judgment on 

September 15, 2015.
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causation issues and therefore likely [a]ffected the 

outcome of the case, into the jury room requiring the court 

to remand for a new trial.

Appellant’s Brief at 6.

In her first issue, Appellant claims that the jury’s conclusion that 

Appellee’s negligence was not a factual cause of the harm Appellant suffered 

was against the weight of the evidence where neither Appellee’s negligence, 

nor the fact that Appellant now suffers from fibromyalgia and rheumatoid 

arthritis, are in dispute. Id. at 21, 24. Appellant avers, that “[i]n light of 

the high speed collision together with the objective and undisputed evidence 

of injury, the verdict was against the weight of the evidence and justice 

requires a new [t]rial.” Id. at 24. 

When considering challenges to the weight of the evidence, we note 

that, “[t]he weight of the evidence is exclusively for the finder of fact[,] who 

is free to believe all, none or some of the evidence and to determine the 

credibility of witnesses.” Commonwealth v. Talbert, 129 A.3d 536, 545 

(Pa. Super. 2015). “A jury is entitled to believe all, part or none or the 

evidence presented.... A jury can believe any part of a witness’ testimony 

that they choose, and may disregard any portion of the testimony that they 

disbelieve.” Martin v. Evans, 711 A.2d 458, 463 (Pa. 1998) (citation and 

quotation omitted). Where a jury has made credibility determinations 

regarding the testimony and evidence presented, those determinations are 

rarely overturned. Armbruster v. Horowitz, 744 A.2d 285, 287 (Pa. 
J. A21024/16

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Super. 1999). Further, “[i]n order for a defendant to prevail on a challenge 

to the weight of the evidence, the evidence must be so tenuous, vague and 

uncertain that the verdict shocks the conscience of the court.” Talbert,

supra at 546 (internal quotation marks and citation omitted).

The trial court cogently and comprehensively addressed Appellant’s 

weight of the evidence claim in its Rule 1925(a) Opinion. Accordingly, with 

respect to this issue, we affirm on the basis of the trial court’s well-reasoned 

Opinion. See Trial Ct. Op. at 5-7.

In her second issue on appeal, Appellant claims the trial court erred in 

permitting limited portions of internet articles from the Mayo Clinic, the 

National Institute of Health (“NIH”), and the Cleveland Clinic about 

rheumatoid arthritis into the jury room. Appellant’s Brief at 24. Appellant 

claims that it was inappropriate to provide the jury with these documents 

because counsel had not moved them into evidence and they are hearsay 

documents.3 Id.

At trial, both parties’ expert witnesses testified at trial by way of 

videotaped deposition. The transcripts of those depositions, and the internet 

 

3 To the extent that Appellant challenges the trial court’s decision to permit 

the jury to view the articles during deliberation on hearsay grounds, we find 

this argument waived. Our review of the record, including the deposition 

transcripts of Dr. Whalen and Dr. Derk, and the trial transcript, indicates 

that Appellant did not preserve this issue by making a specific, timely 

objection before the trial court. See Boykin v. Brown, 866 A.2d 1264, 

1267 (Pa. Super. 2006) (holding that in order to preserve the application of 

a hearsay objection for appellate review, that specific exception must first be 

raised before the trial court).
J. A21024/16

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articles used by counsel to question the witnesses attached thereto, were 

entered into evidence. 

During deliberation, the jury asked the court to send back to the 

deliberation room the articles used by Appellee’s counsel during crossexamination of Appellant’s expert, Dr. Whalen. Following colloquy with 

counsel, and over Appellant’s objection that the documents had not been 

moved into evidence, the trial court permitted the jury to receive “only the 

relevant pages [of the internet articles] that were touched upon from the 

testimony by the two experts[, Drs. Whelan and Derk].”4 N.T., 8/12/15, at 

68. 

Notwithstanding Appellant’s claim on appeal that the articles were not 

moved into evidence, our review of the record confirms that, “the articles 

were attached to Dr. Whalen’s deposition transcript, Exhibit P-13, and were 

admitted into evidence [Exhibits D-5, D-7, and D-8].” Trial Ct. Op. at 8.

Moreover, Appellant represented to the court during an in camera

discussion that the articles used by Appellee’s counsel to cross-examine Dr. 

Whalen were “part of the transcript[,]” and “part of what we introduced as 

Dr. Whalen’s testimony. We have the whole transcript and the tape 

introduced. And, in fact, [the NIH article] is Exhibit D-5 of [Appellant’s] 

Exhibit, I think it’s 13.” N.T., 8/11/15, at 75-76. Appellant’s counsel 

 

4

Pages 1, 3, 4, and 9-11 of the National Institutes of Health article, pages 1, 

2, and 7 of the Mayo Clinic article, and page 1 of the Cleveland Clinic Article.
J. A21024/16

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conceded that he “moved [into evidence] the entire transcript and this was 

attached to the transcript.” Id. at 76. 

During a jury trial, the court “may make exhibits available to the jury 

during its deliberations.” Pa.R.C.P. 223.1(d)(3). The trial court has 

discretion to determine which exhibits should be permitted to be viewed by 

the jury during deliberations. Wagner by Wagner v. York Hosp., 608 

A.2d 496, 503 (Pa. Super. 1992) (noting that “the trial court has the 

discretion to determine which exhibits should be permitted to go out with 

the jury.”).

Accordingly, the trial court did not abuse its discretion in permitting 

the jury to view the articles during deliberation.

Judgment affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/22/2016

 
J. A21024/16

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2 TI1is Court was instructed by the Superior Court that the plaintiff's premature appeal was to be considered as if it were 

timely filed after the denial of the plaintiffs post-trial motions. 

I The ph1intiff was represented by James Famiglio, Esquire, and the defendant was represented by Ronald 1-farrero, 

Esquire. 

Digiovanni Vs Murphy-OPFLD 

111111111 I II 1111 I 111111111 If Ill 

hour, when he was approaching the bend in Interstate 76 where Roosevelt Boulevard and City Line 

Id. at 50-S 1. The defendant was driving a sport utility vehicle (SUV), at approximately 45 miles per 

in traffic, when the defendant's vehicle collided with the vehicle in which the plaintiff was traveling. 

8/10/15 at 46, 49-50. The plaintiff and her friend were facing each other talking, as they were stuck 

vehicle, traveling cast on Interstate 76 towards Center City Philadelphia. Notes of Testimony (N.T.) 

On February 4, 20l2, at around 6:00 P.M., the plaintiff was a passenger in her friend's 

FACTS: 

motions. 

notice of appeal.' Subsequently, on September 14, 2015, this Court denied the plaintiff's post-trial 

Timely post-trial motions were filed on August 21, 2015. On September 1, 2015, the plaintiff filed a 

John .13. Murphy (hereafter, the defendant), and against Joie DrGiovanni (hereafter, the plaintiff).' 

On August 12, 2015, following a jury trial before this Court, verdict was entered in favor of 

-- s. 

r .. 

-i . PROCEDURAL HISTORY: 

OPINION 

, .. 

c. 

, .. 

. .,, 

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C:,) 

r-s 

o, 

JOHN B. MURPHY 

C:T\ 

Superior Court Docket Ni?<>. 

r},.,. 

2902 EDA 2015 ~:_,_.· 

tt,c 

(·;· 

~:·+' Sarmina, J. 

February 25, 2016 

v. 

November Term, 2013 

No. 1291 

JOIE DIGIOVANNI, 

PHILADELPHIA COURT OF COMMON PLEAS 

CIVIL TRIAL DIVISION 

Circulated 08/31/2016 02:49 PM
2 

Avenue meet. Id. at 125. The defendant did not immediately notice that the cars in front of him 

were stopped, and consequently he "rear-ended" the vehicle the plaintiff was traveling in, which was 

in front of him. kl The car the plaintiff was traveling in hit the car in front of it, and that car hit 

the car in front of it as well. Id. at 51. 

A frcr the collision, the defendant exited his vehicle, walked over to the plaintiff, and risked if 

eve1:7onc was okay. Id. at 51. The plaintiff stated that she was not okay, and called her boyfriend to 

come to the scene of the accident. hi, at 52. The police also arrived at the scene. Id. at 5l. The 

plaintiff's boyfriend then rook her to Lankenau Hospital; she did not wait for an ambulance to 

arnve. Id. The defendant was able to drive his vehicle away from the accident scene. Id. at 132. 

When the plaintiff arrived at the hospital, she was complaining of pain in her ankles, wrist, 

leg, hip, neck, back. Id. at 53. She also presented with a scrape on her chin, and a busted open lip. 

Id. The hospital staff performed x-rays and a CT scan, both of which came back negative. Id. at 54. 

The plaintiff was not admitted to the hospital, and was given Tylenol with codeine. Id. at 54-55. 

That same day, the plaintiff left the hospital and immediately traveled with her boyfriend to her 

parent's shore house in Margate, New Jersey. N.T. 8/10/15 at 54-55. 

\Xlhco the plaintiff returned from the shore, she began to swell and bruise. hi at 55. 'Thus, 

the plaintiff sought treatment from Dr. Brent \Xleinennan, who treats people who have been in car 

accidents. Id. at 56. 13ecause she did not like the area in which Dr. Wcinerman's office was located, 

the plaintiff sought treatment from a different doctor about a week later - Dr. Harding, a 

chiropractor. Id. at 57. After being seen by Dr. Harding, the plaintiff then went to her family 

doctor, Dr . Alexander Ricciutti, who worked at Medical Rehabilimtion Center of Philadelphia, with 

complaints of swollen wrists, arms, ankles, and a changing color sensation in her hands. Id. at 59. 

These symptoms never subsided following the motor vehicle accident the plaintiff was involved in, 

and they were not controlled by medication. kl at 60. 
3 

'The plaintiff restified th:lt while under the care of ~fain Line Rhcumatology, she was prescribed Humira, Methatrexare, 

Cyclobcnzaprine, as well as folic add and a muscle relaxer. i'\ .T. 8/ 10/1 S at 77- 79. 

plaintiff sustained injuries to her wrists and ankles as a direct result of this motor vehicle accident, 

against longstanding Pennsylvania law. The plaintiff claims that there was no dispute that the 

The plaintiffs first claim is that the verdict was against the weight of the evidence and 

1) The verdict was against the weight of the evidence and against longstanding 

Pennsylvania law. 

2. The Court erred in permitting the jury to receive in the jury room all expert medical reports and 

internet articles produced by defense counsel in the cross-examination of plaintiff's expert. 

I. The verdict was against the weight of the evidence and against longstanding Pennsylvania law. 

The plaintiff raises two issues on appeal: 

LEGAL ANALYSIS: 

described as a "miracle drug." Id. at 79-81. 

and the plaintiff testified that her symptoms arc controlled, particularly by the Humira, which she 

Id. at 77- 78. Dr. Whalan kept the plaintiff on the same drugs that she was previously prescribed, 

different rheumatologist - Or. Thomas Whalan - who was treating the plaintiff at the time of trial. 

A ftcr treating at Main Line Rheumatology for rough I}' one year, the plaintiff began seeing a 

Humira every two weeks. Id. 

responsive. Td. at 73. The plaintiff testified that she injects herself in her stomach or her thigh with 

plaintiff was treated with the drug Humira, and a number of other drugs,' to which she was 

Rheumarology, where she was diagnosed with fibromyalgia and rheumatoid arthritis. Id. at 72. The 

referred the plaintiff to a rheumarologist, N.T. 8/ t 0/ 15 at 71. The plaintiff went to Main Line 

Dr. Ricciutti referred the plaintiff to Dr. Yang, a physiatrist, who took an ElvfG and then 
4 

I Tn support of this proposition, the plaintiff cites to Cn:;selli v. Powlen, in which rhe Superior Court found that the 

jury's award of zero damages was against the weight of the evidence presented at trial. 937 ,-\.2d 1137, 1140 (Pa.Super. 

~007). In Casselli, the plaintiff \V<IS injured when he srumbled and fell oil a sidewalk outside of the defendant's home. 

hl .11 I 138. It was undisputed at trial that the plaintiff fell and broke his foot, and there was no dispute that the medical 

expenses incurred by the plaintiff were reasonable. hl The jmy found chat the defendant was 50% negligent, that the 

plaintiff was 50% negligent, and rhat each party's negligence was a substantial factor in causing the plaintiff's injuries. lrl. 

at 1139. Nevertheless, the jury did not award damages to the plaintiff I.Ii The Superior Court concluded that the ju1y's 

verdict of zero d:\mages. when there was no dispute as to the defendant's negligence and causation was ngainst die weight 

of the evidence, and remanded die case for :1 new trial ,1~ to damages. Id, at 1141. Casselli, however, is not on point, us 

there was ,1 dispute in the instant case .1$ to the causatlon oi the pl:lintiffs injuries, and the jmy ultimately found rhar rhe 

plnintift's injuries were not caused by rhe defendant's negligence. 

Armbruster, 74·1 A.2d at 287. 

This Court has repeatedly emphasized that it is not only al J court's inherent fundamental 

and salutary power, but its duty to grant a new trial when it believes the verdict was against 

the weight of the evidence and resulted in a miscarriage of justice. Although a new trial 

should not be granted because of a mere conflict in testimony or because the [court] on the 

same facts would have arrived at a different conclusion, a new trial should be awarded when 

the jury's verdict is so contrary to the evidence as to shock one's sense of justice and the 

award of a new trial is imperative so that right may be given another opportunity to prevail. 

Ma1111110/'t.tO ,,. 1818 M(lrkel Pad11e1:chip, 734 A.2d 23, 28 (Pa.Supcr.1999) (citations omitted). 

The standard by which a trial court should review a weight of the evidence claim is as follows: 

Martin v. Evans, 71 ·1 A.2d 458, 463 (Pa. 1998). 

Credibility determinations are within the sole province of the jury. 'A jury is entitled to 

believe all, part or none of the evidence presented .... A jury can believe any part of a witness' 

testimony that they choose, and may disregard any portion of the testimony that they 

disbelieve.' Randt, at 234, 671 A.2d at 233 (citation omitted). 

Annbrustcr v. Horowitz, 744 1\.2d 285, 287 (Pa.Super. 1999), affd, 813 A.2d 698 (Pa. 2002). 

where a jury has made credibility determinations regarding the testimony and evidence presented. 

Issues of credibility are for the jury to determine, and factual findings are rarely overturned 

conflicting testimony, the verdict was not against the weight of the evidence, and this claim fails. 

causation. As it is within the sole province of the jury to make credibility determinations regarding 

injuries, was disputed, and the medical experts for both sides offered conflicting testimony as to 

negligence was not disputed in this case, the plaintiffs injuries, as well as the causation of those 

and thus the plaintiff was entitled to damages for those injuries.' Although the defendant's 
5 

In Martin, the plaintiff brought a personal injury lawsuit against a truck driver whose tractortrailer truck backed into the plaintiff when pulling out of a parking spot at a rest stop. 711 A.2d at 

460 (Pa. 1998). The jury returned a verdict in favor of the defendant, and the trial court granted a 

new trial based on a determination that the verdict was against the weight of the evidence. Id. at 

461. Because there was conflicting testimony presented by the parties regarding the defendant's 

negligence, and the jury made a credibility determination regarding such testimony, our Supreme 

Court held that the trial court could not usurp the jury's factual determination that the defendant 

was not negligent. Id. at 459. Where there arc conflicting facts in evidence, it is for the jury to make 

credibility determinations regarding the evidence, and the trial court ma)' only reverse the jury's 

verdict where the verdict was "so contrary to the evidence so as to shock one's sense of justice." hi 

at 463. As there was conflicting testimony regarding the defendant's negligence, our Supreme Court 

found that there was equally enough evidence to support a finding in favor of the defendant, and 

reinstated the jury's verdict. Id. 

At trial, the videotaped depositions of the plaintiffs expert, Dr. Thomas Whalen, and the 

defendant's expert, Dr. Chris Derk, were played for the jury. Dr. \XlhaJen, a board certified 

physician in rheumatology, began treating the plaintiff in July of 2013. Dr. \'Xlhalen Deposition, 

4/23/15, at 10-11, 23. In addition to treating the plaintiff for two years, Dr. Whalen reviewed the 

following materials in order to prepare a report for the plaintiff: medical records and images from 

J .ankenau Hospital, Dr. \Xleinerman, Dr. Harting, Main Linc Rheumatology, and photographs of the 

plaintiff's ankles and feet. hl at 25-26. Having reviewed these materials and treated the plaintiff, 

Dr. Whalen opined, ro a reasonable degree of medical certainty, thnt as a result of the motor vehicle 

accident the plaintiff was involved in, the plaintiff suffered "cervical and lumbar strains and sprains, 

strains and sprain of her ankles, post-traumatic onset of rheumatoid arthritis, post-traumatic 

fibromyalgia syndrome, and possible RSD, which is reflex sympathetic dystrophy." Id. at 27-28. Dr. 
6 

So when I examined the patient, this was July 10 of 2014, on that examination, that day, she 

presented with her mother. Her vitals were normal. She had slight tenderness over the 

trochantcric and anserine bursas. There was full range of motion of her joints, with no 

swelling of the joints. There was no limitation in motion of the joints. There was [sic] no 

joint deformities. Patient did not have rheumatoid nodules. There was no warmth or 

redness or fullness of nny of her joints. She had slight paraspinal muscle pain in the cervical 

region. Her grip was very good in both hands. She had good range of motion of her ankles, 

knees, toes, hips, lower back, cervical spine, elbows, shoulders, hands, and wrists. I 

examining the plaintiff, Dr. Derk found no abnormalities: 

report. Id. at 26-27. Dr. Derk examined the plaintiff himself on july 10, 2014. Id. at 27-28. Upon 

Whalen Rheumatology Group, Mitchell Harding, D.C., and Penndel Rehab, as well as Dr. Whalen's 

\'(fellness, Lankenau Hospital, Main Line Rhcumatology, Open iv1RI Center,Jefferson Imaging, 

deposition transcript, photos of the plaintiff, medical records and images from \'Xleincrnrnn Pain and 

coming to his conclusion, Dr. Derk reviewed all of the documents provided to him: the plaintiff s 

the car accident that was the subject of this trial. Dr. Derk Deposition, 4/29/15, at 8, 24~25. In 

a reasonable degree of medical certainty that the plaintif f's rheumatoid arthritis was not caused by 

Dr. Derk, a board certified physician in rheumarology, examined the plaintiff and opined to 

testified that the plaintiff could have had genetic susceptibility to rheumatoid arthritis. Id. at 92-93. 

double-blinded studies to prove it." Dr. Whalen Deposition, 4/23/15, at 42. Dr. Whalen also 

personal experiences with post-traumatic onset of rheumatoid arthritis, there are no "well-controlled 

cause" of rheumatoid arthritis. Id. at 62. AdditionnUy, Dr, Whalen testified that, aside from his 

rheumatoid arthritis was triggered by the motor vehicle accident, as no one really knows the "full 

Id. at 41. Later on in his deposition, Dr. Whalen clarified that what he really meant was that the 

vehicle accident, Dr. \X'halen admitted that the causes of rheumatoid arthritis arc not well-known. 

Although Dr. Whalen testified that the plaintiffs injuries were a direct result of the motor 

plaintiff was involved. Id. at 36-37. 

occurred as a result of some sort of trauma, particularly the motor vehicle accident in which the 

Whalen testified that by post-traumatic, he meant that the rheumatoid arthritis and fibromyalgia 
7 

the weight of the evidence, and this claim fails. 

jmy, and there was evidence presented at trial ro support this conclusion, the verdict was not against 

expert, Dr. Derk, to be more credible. As this determination was within the sole province of the 

plaintiff s injuries, the jury made a credibility determination, and found the testimony of the defense 

4/29/15 at at 3L Dr. Derk also testified that there is no known cause for ftbromyalgia. 1J.L at 37. 

although she had recently quit, the plaintiff had smoked for about five years. Dr. Derk Deposition, 

Having heard conflicting testimony from both experts regarding the causation of the 

plaintiff possessed some of the risk factors - her grandmother had rheumatoid arthritis, and, 

Id. at 31, 33. Upon familiarizing himself with the plaintiff's history, Dr. Derk learned that the 

arthritis, there are certain risk factors: genetics, being female, being young, and smoking tobacco. 

at 30-31. Contrarily, Dr. Derk testified that, although there is no known cause for rheumatoid 

rheumatoid arthritis," is not a term used or defined by the American College of Rheumatology. hl 

arthritis can be caused by a car accident, and testified that Dr. Whalen's term, "post-traumatic 

Id. at 39-40. Dr. Derk testified that there is no scientific data or research to suggest that rheumatoid 

plaintiff lacked inflammatory markers that are typically elevated in patients with rheumatoid arthritis. 

plaintiffs bone scan was normal, and blood work that was done before his examination of the 

Dr. Derk questioned the plaintiffs diagnosis of rheumatoid arthritis altogether, because the 

Id. at 28-30. 

examined her for carpal tunnel. She did not have that. I examined her for swollen lymph 

nodes or thyroid enlargement. She did not have that. I looked for oral ulcers and decreased 

moisture in her gums or her mouth and she did not have any issues with that. Her lung 

fields were dear. Her cardiovascular exam was normal. Because of the history of possible 

Raynaud's, I looked at the capillaries with a nailfold capillaroscopy and the nailfold capillaries 

were normal. ... Her motor exam was good. The only abnormality that I could find was she 

had a venous malformation of her left shoulder chat the mother told me was there since 

birth, which was a birthmark on the left shoulder. Otherwise, the neurological examination, 

as well as the motor examination, was completely normal. 
1' Dr. \X!J1:1len'$ report was attached to Dr. \v'h:1len's video deposition transcript as Exhibit W1rnlcn· I. Dr. Derk's report 

was attached to Dr. Derk's video deposition transcript as Exhibit Derk-Z, and his supplemental report was attached as 

Exhibit Dcrk-3. 

; 111c plaintiff incorrectly states that this Court allowed the jury to view all internet articles produced by defense counsel 

on cross-examination of plaintiff's expert, Dr. Whalen, as this Court limited the articles to only those pages that were 

mentioned in the testimony. N.'l'. 8/12/15 at 68. 

counsel's objection, this Court sent only relevant portions of the articles, which were touched on in 

transcripts of Dr. Whalen and Dr. Derk. Exhibits P-13, D-4.<' Upon consideration of plaintiff's 

Whalen and Dr. Derk, which were also moved into evidence, as attachments to the video deposition 

into evidence. Exhibits 0-5, 0-7, 0-8. The jurors also requested to sec the expert reports of Dr. 

The articles were attached to Dr. Whalen's deposition transcript, Exhibit P-13, and were admitted 

defense counsel during cross-examination of plaintiffs expert, Dr. Whalen. N.T. 8/12/15 at 53. 

During deliberations, the jurors asked to see particular articles which were utilized by 

Hospital, 608 A.2d 496, 503 (Pa.Super. l 992). 

should be permitted to be viewed by the jury during deliberations. Wagner by Wagnct; v. Yoxk 

deliberations." Pa.R.C.P. 223.1 (d)(.1). 111e trial court has discretion to determine which exhibits 

During a jury trial, the court may "make exhibits available to the jut}' during its 

8 

deliberations. Thus, this claim foils. 

reports and internet articles' - rhar were all introduced into evidence at trial - during their 

the jury during deliberations, this Court did not err in permitting the jur>' to view expert medical 

examination of the plaintiffs expert. As the trial court is permitted to make trial exhibits available to 

jut)' room all expert medical reports and internet articles produced by the defense counsel in crossThe plaintiff's second claim is that this Court erred in permitting the jury to receive in the 

2) This Court erred in permitting the jury to receive in the jury room all expert medical 

reports and internet articles produced by the defense counsel in cross-examination of 

plaintiffs expert. 
9 

7 Punicuiarly, p,1ges 1, 3, 4, 9, and 10 from the NIH article, entitled "Rheumatoid Arthritis," were sent to the jury. N.T. 

8/ 12/ 15 at 74; Exhibit D-S. Pages l , 2, and 7 from the ;\fayo Clinic article, entitled "Diseases and Conditions: 

Rheumatoid Arthritis," were scot to the jury. IJ.; Exhibit D-7. Finally, page I from the Cleveland Clinic article, entitled 

"Rheumatoid Arthritis," was sent to the jury. IJ.; Exhibit D-8. 

.M. TERESA SA!lliIINA, J. 

BY THE COURT: 

For the foregoing reasons, the verdict entered in favor of the defendant should be affirmed. 

deliberations, this claim fails. 

and the experts' reports - which were all properly admitted into evidence at trial - during 

As this Court acted within its discretion in allowing the jurors to view portions of the articles 

Dr. Derk and Dr. Whalen to be sent to the jury, as they were also admitted into evidence. ML 

the experts' testimony, to the jury. 

7 N .T. 8/ 12/ 15 at 68. This Court allowed the expert re pons of