Decision Drives Home Importance of Preserving Objections and Issues for Appeal

In its non-precedential decision in the case of Munoz v. Children’s Hospital of Phila., 1388 EDA 2024 (Pa. Super. May 27, 2025 Stevens, P.J.E., Panella, P.J.E., and Lane, J.) (Op. by Stevens, P.J.E.), the Pennsylvania Superior Court affirmed a trial court’s denial of post-trial motions following a medical malpractice verdict in the amount of over $11.5 million dollars in favor of the Plaintiff.

Of note, the court ruled that a prior waiver of a preservation of an issue cannot be overcome by the trial court later addressing a waived issue in response to post-trial motions.

In this matter, the court ruled that, even though the Defendant hospital had not physically taken over the care of the decedent, who was still at a different facility, the Defendant hospital had funtionally done so by instructing the other facility’s staff on treatment measures. The Superior Court found that this was sufficient to create an assumed duty under the Restatement (Second) of Torts §323.

The weight of the evidence claimed was found to have been waived by the defense by the failure of the defense to specifically identify the challenges to the weight of the evidence in the Defendant’s Rule 1925(b) statement.

The Superior Court additionally noted that, relative to the Plaintiffs’ emotional outbursts during the course of the trial, the Defendant neither asked for a curative instruction or a mistrial.  As such, that issue was deemed to have been waived as well.

Lastly, the court on appeal ruled that the $14 million dollar verdict was not excessive under the facts presented.

Anyone wishing to review a copy of this non-precedential decision may click this LINK.

I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Commentary:  This decision reminds one of the importance of making sure all issues for appeal are preserved on the record.  

Issues that one wishes to take up on appeal should be repeatedly preserved during the pre-trial course of the matter and again at trial and again during the post-trial proceedings wherever possible and even if the issues were previously preserved.  Repeatedly confirm on the record, at every stage of the matter, that objections are continuing and that issues are being preserved for appeal.  

Don't worry about irking the trial court judge with repeated statements of a preservation of an issue for appeal by objection or otherwise.  Just keep going to bat for your client.

Keep in mind that trial court judges and appellate court judges will proactively look for opportunities to rule that an issue has been waived as part of their effort to avoid having to address an issue which may, in the end, require a matter to be tried all over again.

An attorney owes it to his or her client, and to herself or himself (in an effort to avoid any claims of legal malpractice), to repeatedly state on the record at every stage of the proceeding that you are preserving an objection or an issue for appeal so that there can be no finding by any judge that the issue has been waived. 

Plaintiff Waived Issues At Trial that Were Raised in an Undecided Pre-Trial Motion in Limine

In its decision marked Non-Precedential in the case of Wingate v. McGrath, No. 2879 EDA 2023 (Pa. Super. April 10, 2025 Panella, P.J.E., Stabile, J., and Nichols, J.) (Op. by Panella, P.J.E.), the Superior Court reviewed various post-trial issues and confirmed that a pre-trial Motion In Limine filed by the Plaintiff that was not decided prior to trial and which was not revisited until after trial was waived.

According to the Opinion, the Plaintiff filed a Motion In Limine to exclude the Defendant’s causation expert. However, the trial court did not resolve that motion prior to trial.

The record confirmed that, during trial, the Plaintiff did not re-raise the issues from the pre-trial motion in limine until after testimony was heard and the jury had retired to deliberate.

When the issue was raised again at that point, the trial court held that the issues regarding the Defendant’s expert had been waived. However, after a defense verdict was handed down by the jury, the trial court granted the Plaintiff a new trial.

On appeal, the Superior Court rejected the Plaintiff’s argument that the Defendant had failed to properly preserve his argument that the Plaintiff had waived the issues regarding the defense expert.

The Pennsylvania Superior Court ruled that issues raised in an undecided pre-trial motion in limine must be re-raised at trial in order to be preserved. Here, the Plaintiff did not raise the issues again until after the relevant testimony was already in evidence. As such, the Superior Court held that the admissibility of the Defendant’s expert issue had been waived by the Plaintiff.

Accordingly, the Superior Court ruled that the trial court had erred by granting the Plaintiff a new trial on this issue after a defense verdict had been entered.

Anyone wishing to review a copy of this Non-Precedential decision may click this LINK.


I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

ARTICLE: A CAUTIONARY LESSON TO AVOID WAIVER OF ISSUES RAISED AT TRIAL

The below article of mine was published in the Summer of 2024 edition of the Civil Litigation Update (Vol. 27, No. 3) put out by the PBA Civil Litigation Section and is republished here with permission.

A CAUTIONARY LESSON TO AVOID A WAIVER OF ISSUES  RAISED AT TRIAL


By


Daniel E. Cummins, Esq.


A recent decision out of the Philadelphia County Court of Common Pleas serves as a cautionary lesson that, if heeded, will avoid a waiver of issues on appeal in a civil litigation matter.

Not All Pre-Trial Objections Are Preserved

In the case of Wingate v. McGrath, April Term 2019, No. 04637 (C.P. Phila. Co. March 28, 2024 Powell, S.J.), the trial court found that the plaintiffs in this motor vehicle accident litigation had waived their objections to the testimony of the defendant’s medical expert witness by failing to restate the objections that were previously raised plaintiff’s pre-trial motion in limine until after that expert for the defense had testified at trial.

A copy of the Wingate decision can be secured on the author’s Tort Talk blog by going to www.TortTalk.com and typing “Wingate '' into the Search box near the upper right hand corner of the home page of the blog.

According to the Opinion, during the discovery phase of this personal injury litigation, the defendant produced reports from a medical expert who offered an opinion that the plaintiff’s back problems were unrelated to the accident.

As the case approached trial, the plaintiff filed a motion in limine seeking to exclude the defendant’s expert from testifying. At that point, the trial court issued an Order deferring a decision on the pre-trial motion until the time of trial.

However, at trial, the plaintiff did not restate the issues raised in their motion in limine until after the jury had heard the testimony from the defendant’s medical expert. The case proceeded to a verdict and the defense prevailed.

Thereafter, post-trial motions were filed by the plaintiff. In its initial ruling on the post-trial motions, the trial court ruled in part that it had committed error by failing to conduct an analysis of the admissibility of the defense expert’s opinions before the presentation of that testimony at trial.

However, in its later Rule 1925 Opinion further reviewing this issue, the trial court reversed its own decision. The trial court in Wingate stated that “[t]he reason this Court failed to conduct the analysis required…prior to the start of [the defense expert’s] testimony is not because this Court was derelict in its duty; rather, this Court failed to conduct the…analysis because Plaintiffs failed to renew the issue prior to the presentation of [the defense expert’s] testimony at trial.”

In so ruling the court in Wingate relied upon the Pennsylvania Superior Court decision in the case of Blumer v. Ford Motor Co., 20 A.3d 1222 (Pa. Super. 2011), appeal denied 49 A.3d 441 (Pa. 2012). In Blumer, the Superior Court had ruled that “if the trial court defers ruling on a motion in limine until trial, the party that brought the motion must renew the objection at trial or the issue will be deemed waived on appeal.”

As a result, in its Rule 1925 Opinion addressed to the Superior Court, the trial court in Wingate requested the Superior Court to reverse the trial court’s previous decision to grant the plaintiffs a new trial.

The Lesson

The Wingate is just one of many examples of judges seeking to find a waiver of an issue that has been presented for appellate review.

Surely, the filing of pre-trial written motions in limine should ordinarily be sufficient to deem an issue as preserved for appeal. However, if a decision on the motion is deferred by the Court until the time of trial, it is only fair that the burden of making sure a decision on that motion is secured before the issue occurs at trial be placed upon the party who filed that motion.  That party is in the better position to remember to make sure the issue is decided as opposed to the judge with hundreds and hundreds of cases on her or his docket and who is presented with many other issues at the very trial taking place.

The lesson for litigators to recall here is that trial court and appellate court judges are trained to actively look, as a matter of first instance, for waivers of issues as a matter of course in the review of matters before them. Finding a waiver not only allows a judge to avoid additional work, but also serves an important purpose as another way for a judge to preserve a result such that a case does not have to be tried a second time.

Accordingly, litigators should view it as a challenge to raise and re-raise objections as many times as possible so as to make it free and clear from any doubt that the issue has been preserved for further review.

The Wingate decision confirms that issues raised in pre-trial motions that have been deferred for a decision until the time of trial must be raised again. Yet, even if a pre-trial motion limine was decided prior to trial, out of an abundance of caution, the trial attorney should reiterate any rulings therefrom on the record at trial prior to jury selection in order to emphasize favorable rulings or to confirm the plan to appeal adverse rulings. If such pre-trial issues dealt with the testimony of a particular witness, the objections should be restated again prior to the commencement of the testimony of that witness.

Closer to the end of any trial, out of an abundance of caution and with the possibility of irking the judge, a trial attorney should confirm on the record both before closing arguments, and again during that time after the presentation of the jury instructions and before the jury is excused to deliberate, that any and all verbal and written pre-trial and trial objections and issues raised are preserved for appeal.

In the end, the represented client is entitled to have their attorney go above and beyond in the effort to prevail in the case, including with respect to preserving all objections as to how the case has proceeded.

Daniel E. Cummins, Esquire is the managing partner of the Clarks Summit, PA law firm of Cummins Law. Attorney Cummins is a trial attorney who focuses on insurance defense matters.  Attorney Cummins was also one of the Attorney Advisors for the 2024 National Champion High School Mock Trial Team from Abington Heights High School (Clarks Summit, PA), a team that also won the Pennyslvania State Title three out of the last four years. 

Judge Nealon of Lackawanna County Addresses Issues With Zero Verdict For Pain and Suffering Claim

In the case of Fertig v. Horace Mann Ins. Co., No. 16-CV-4801 (C.P. Lacka. Co. Jan. 18, 2022 Nealon, J.), the court granted in part and denied in part a Plaintiff’s Motion for Post-Trial Relief in a case involving an uninsured motorist claim against a carrier.

According to the Opinion, the jury in this UIM benefits trial rendered a verdict awarding the Plaintiff $75,000.00 for future medical expenses but $0 for past and future non-economic damages.

The jury entered this verdict even though the defense medical expert testified that the Plaintiff had unresolved injuries to her head, neck, and knee that were casually related to the accident. The court noted that the jury had been instructed, without objection, that it must award at least some damages for those uncontested injuries in this admitted liability case.  Nevertheless, the jury awarded $0 for pain and suffering.

After the verdict was molded to $0 to reflect the stipulated credit for the tortfeasor’s liability insurance coverage of $100,000.00, the Plaintiff filed a post-trial motion seeking a new trial on the issue of non-economic damages on the grounds that the verdict was against the weight of the uncontroverted medical evidence. The Plaintiff additionally requested an award of delay damages based upon the verdict of $75,000.00, that is, on the amount before the verdict was molded to zero.

The Defendant contended that the Plaintiff waived her right to secure a new trial by failing to object at the time the verdict was announced and by failing to request that the jury be sent back to resume its deliberations to correct a $0 verdict. The Defendant also asserted that the Plaintiff was not entitled to a new trial even if she did preserve her weight of the evidence challenge.

The defense additionally asserted that the Plaintiff cannot recover delay damages on a verdict that was molded to $0.

In addressing whether or not the Plaintiff had waived any arguments against the $0 verdict, the court cited, in part, to the article entitled “Litigating the Zero Verdict,” written by Daniel E. Cummins and Stephen T. Kopko which appeared in the Pennsylvania Lawyer magazine for the proposition that one option a party has in a case involving a $0 verdict is to request the court to send the jury back out to deliberate further in an effort to avoid any post-trial issues that may be created by the entry of that $0 verdict.  However, as noted below, where a claim is made that a verdict was against the weight of the evidence, it is not required that such a request be made for the issue to be preserved.

The court in this case emphasized that the Plaintiff was asserting that the jury’s award was contrary to the weight of the evidence and shocked one’s sense of justice. The court noted that, where a party has asserted a weight of the evidence challenge, an objection filed of record before the jury is discharged is not required in order to preserve the issue for review during post-trial motions.

The court found that, since a verdict must bear some reasonable relation to the harm suffered as demonstrated by the uncontroverted medical evidence, and given that an award of $0 for past and future non-economic damages was found to be so disproportionate to the uncontested medical evidence so as to the defy common sense and logic, the court granted the Plaintiff’s request for a new trial non-economic damages.

On the issue of delay damages, Judge Nealon ruled that, given that delay damages under Rule 238 are to be calculated based upon a molded verdict, and given that the verdict in this case was molded to $0 following the stipulated offset for the liability insurance coverage limit, the Plaintiff was not entitled to any delay damages under Rule 238 and that, as such, this request was denied.

Anyone wishing to review a copy of this decision may click this LINK.

If you wish to read the article entitled “Litigating the Zero Verdict,” written by Daniel E. Cummins and Stephen T. Kopko which appeared in the Pennsylvania Lawyer magazine please click HERE.

Source of image: Photo by TBS 44 on www.unsplash.com.

Jurisdictional Issue Found To Have Been Waived

In the case of Murray v. Am. LaFrance, LLC., No. 2020 Pa. Super. 149 (Pa. Super. June 25, 2020) (Op. by Bowes, J.), the Pennsylvania Superior Court that the Plaintiffs had waived the effort to establish general personal jurisdiction over a Defendant based upon the Defendant’s registration as a foreign corporation in Pennsylvania.  

The appellate Court found that the Plaintiff failed to raise the issue in response to the Defendant’s Preliminary Objections on the issues presented. 

This matter arose out of claims by the Plaintiff against a foreign corporation for negligence and strict products liability under claims that the Plaintiff suffered injuries due to excessive sound exposure from fire engine sirens that the Defendant company, which was a Delaware company, had manufactured in Illinois, which was where its principal place of business was located. 

The Defendant filed Preliminary Objections to personal jurisdiction and submitted documents to show that only four (4) of its employees resided in Pennsylvania and that only 3.5% of its total sales in 2015 were made to Pennsylvania buyers. 

The trial court had sustained the Preliminary Objections and dismissed the claim after finding that the foreign corporation’s alleged contacts with Pennsylvania were not so continuous and symptomatic to support the exercise of general personal jurisdiction. 

On appeal, the Plaintiffs argued that general personal jurisdiction over the Defendant was proper given the Defendant’s registration as a foreign corporation in Pennsylvania. However, given that the Plaintiff had failed to raise this issue at the trial court level, the Pennsylvania Superior Court affirmed the trial court’s ruling on the separate basis that the issues presented had not been preserved for appeal. 

Anyone wishing to review a copy of this decision may click this LINK.

Source: “Digest of Recent Cases.” Pennsylvania Law Weekly (July 6, 2020).

Important Issue of Jurisdiction Found To Have Been Waived

In the case of Murray v. American LaFrance, 2020 Pa. Super. 149 (Pa. Super. June 25, 2020) (en banc) (Op. by Bowes, J.), the en banc Pennsylvania Superior Court addressed whether Pennsylvania has general personal jurisdiction over a Delaware company with its principal place of business in Illinois exclusively due to the Defendant’s 1969 registration with the Pennsylvania Department of State as a foreign corporation pursuant to 15 Pa. C.S.A. §411(a). 

The en banc panel ruled that the Plaintiff failed to properly preserve this issue of jurisdiction before the trial court and, as such, the en banc panel found that the issue was not preserved. 

This was a case that many were watching to determine the validity of the argument that the Pennsylvania’s business registration law was, in and of itself, sufficient to establish jurisdiction over an out-of-state company where that company has registered with the state to do business in Pennsylvania. Based on this decision, litigants will have to await another day for the issues to be decided.

Anyone wishing to review a copy of this decision may click this LINK.

Source: “Waiver Issue Sinks Dispute Over Whether Pa.’s Registration Law Establishes Jurisdiction” by Max Mitchell, Pennsylvania Law Weekly (June 25, 2020).

Pennsylvania Supreme Court Finds That Issue of Whether It Is Proper For a Trial Court Judge To Leave The Bench During Jury Selection Was Not Preserved

Tort Talkers may recall that we have been waiting for the Pennsylvania Supreme Court to voice its opinion on the propriety of the practice of some trial court judges choosing to leave the bench during jury selection and allowing the litigating attorneys to conduct voir dire on their own.

The Pennsylvania Supreme Court was positioned to answer this question in its decision in the case of Trigg v. Children's Hospital of Pittsburgh of UPMC, No. 3 WAP 2019 (Pa. April 22, 2019) (Op. by Todd, J.)(Donohue, J., Concurring)(Wecht, J., Concurring).  However, in its decision issued yesterday, the Court found that the issue had not been preserved for appeal and that the Superior Court had, therefore, improperly addressed the merits of the question presented.  (The Tort Talk Blog post on the Superior Court's decision, along with other posts pertaining to this Trigg decision, can be viewed HERE).

Note however that, in their Concurring Opinions, Justice Donohue and Justice Wecht expressed their misgivings with regards to any practice whereby a trial court judge would leave the bench during the jury selection proceedings.

Justice Wecht also provides some cogent advice in his Concurring Opinion with regards to properly stating objections at appropriate times, creating and preserving objections on the record before trial and at trial, and even the merits of making objections that an attorney knows will be overruled if only to preserve the issue on appeal.

While most of the Majority Opinion focuses on the law of waiver of objections and not so much on the merits of the question of whether it is proper for a trial court judge to leave the bench during voir dire, both Concurring Opinions are worth reading relative to the jury selection question.

To read the Majority Opinion, please click HERE.

To read Justice Donohue's Concurring Opinion, please click HERE.

To read Justice Wecht's Concurring Opinion, please click HERE.


Commentary:  Now that it has been brought to the Supreme Court's decision that there is a practice in some trial courts around the Commonwealth of Pennsylvania where trial judges leave the bench during jury selection, and now that some of the Justices have vocalized their disdain for the practice, it remains to be seen if the Court will now effectuate a change in the Pennsylvania Rules of Civil Procedure to mandate that trial court judges remain on the bench for the entirety of voir dire.

If such changes are to be made, perhaps the Court would also consider mandating, through an amendment to the Rules, that a Court Reporter also be required to transcribe the entirety of voir dire.  Oftentimes, there is pressure on litigants from the trial court to agree to forgo the need for a court reporter to record the voir dire.

There is no question that it is a better practice to have a court reporter take down what is happening in voir dire as it happens as opposed to having no court reporter present and then later summoning a court reporter and attempting to rehash what happened with respect to an objection previously raised during voir dire.

Verdict Overturned As Excessive

The non-precedential decision of Kimble v. Laser Spine Institute, No. 617 EDA 2019 (Pa. Super. April 9, 2020 Nichols, J., Murray, J., and Colins, J.) (Mem. Op. by Murray, J.)(Nichols, J., Dissenting), arose out of a case in which a $10 million dollar verdict was entered in a medical malpractice matter.  The Pennsylvania Superior Court remanded the case for a new trial on the issue of damages based upon a finding that the verdict may have been excessive under the case presented.

The appellate court faulted the trial court for allegedly not fully examining the evidence in the record against the applicable shocks the consciousness standard of review.

Significantly, the appellate court also appeared to overturn the verdict below, in part, based upon a finding that the reversal was appropriate after comparing the verdict in this case to verdicts in other cases.

The decision is also noteworthy in its reaffirmation that trial court judges and appellate court judges will look for and rely upon waivers of appellate issues in order to preserve the validity trial court rulings during the course of a trial.

For example, this case provides the valuable lesson that counsel should not only submit proposed points for charge but should also seek out concrete rulings from the trial court on whether or not the trial court judge is granting or denying such proposed points for charge.

In this case, propose points for charges were submitted but the trial court generally noted that it only used standard suggested jury instructions.  No ruling was requested or made on certain proposed points for charge that were submitted for the court's review.  On appeal, any issues raised with respect to these proposed points for charge were found to have been waived as there was no concrete trial court decision granting or denying these proposed points.

In another example of the court looking for and finding a waiver of certain issues on appeal, this decision is additionally notable for the lesson it provides that, in order to confirm the right to pursue a motion for a judgment notwithstanding the verdict at the conclusion of a trial, a defendant should (1) submit a proposed point for charge for a binding instruction in favor of the defense, (2) move for a non-suit at the close of the Plaintiff's case, and (3) move for a directed verdict at the close of the entire case in order to pursue a motion for a judgment notwithstanding the verdict.

Anyone wishing to review this decision may click this LINK.

Source:  Article - "Pa. Appeals Court Slashes Award;  Finds Jury Went Too Far With $10 Million Dollar Verdict" by Max Mitchell in the Pennsylvania Law Weekly (April 9, 2020).