Harman ex rel. Harman v. Borah

• Decision Date: 21 August 2000
• Citation: 756 A.2d 1116,562 Pa. 455
• Parties: Robert D. HARMAN and Dorothy E. Harman on Behalf of Christopher HARMAN, a minor and in their own right, Appellees, v. Bishnu C. BORAH, M.D. and Children's Hospital of Philadelphia and Judy Bernbaum, M.D. and Jeanne Parks, M.D., Appellants. Appeal of Children's Hospital of Philadelphia and Jeanne Parks, M.D.
• Court: Pennsylvania Supreme Court

756 A.2d 1116

562 Pa. 455

Robert D. HARMAN and Dorothy E. Harman on Behalf of Christopher HARMAN, a minor and in their own right, Appellees, v. Bishnu C. BORAH, M.D. and Children's Hospital of Philadelphia and Judy Bernbaum, M.D. and Jeanne Parks, M.D., Appellants.

Appeal of Children's Hospital of Philadelphia and Jeanne Parks, M.D.

Supreme Court of Pennsylvania.

Argued January 31, 2000.

Decided August 21, 2000.

Allan H. Starr, Ronald A. Krauss, Philadelphia, for C.H.O.P. & Jeanne Parks, M.D.

Thomas R. Kline, Derek R. Layser, Philadelphia, for Robert & Dorothy Harman.

Alan Focht, Plymouth Meeting, for Judy Bernbaum, M.D.

Donald Camhi, Philadelphia, for Bishnu C. Borah, M.D.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.

OPINION

NEWMAN, Justice.

Appellants, Children's Hospital of Philadelphia (CHOP), Jeanne Park, M.D.,¹ and Judy Bernbaum, M.D., claim that the Superior Court committed an error of law by vacating, in part, the Judgment of the Court of Common Pleas of Philadelphia County (trial court) and remanding the matter for a new trial. The sole issue presented for our review is whether the Superior Court erred by creating a per se rule that a trial court commits reversible error, and has no discretion to deny a motion for a mistrial, whenever the judge engages in an off-the-record discussion with a witness in the presence of the jury.

FACTS AND PROCEDURAL HISTORY

On January 10, 1986, Appellee Dorothy Harman took her eighteen-month-old son Christopher to Dr. Bishnu Borah for a measles, mumps, and rubella (MMR) vaccination. About a week later, Christopher developed a fever, and Mrs. Harman took Christopher back to Dr. Borah's office. Dr. Borah diagnosed Christopher with left otitis media (inflammation of the middle ear) and prescribed an antibiotic. Two days later, Mrs. Harman and her husband, Appellee Robert Harman, rushed Christopher to the Lower Bucks County Hospital Emergency Room, where he was admitted and diagnosed with left otitis media and encephalitis (inflammation of the brain). Mr. and Mrs. Harman transferred Christopher to CHOP, where he received treatment for encephalitis from Dr. Park and Dr. Bernbaum. As a result of the encephalitis, Christopher Harman suffered permanent neurological damage, which caused him cognitive and physical impairment.

On January 11, 1988, the Harmans commenced a civil action against the manufacturer of the MMR vaccine and various employees of the manufacturer, related entities, and Dr. Borah, alleging breach of warranty, strict liability, failure to warn, lack of informed consent, misrepresentation, negligence, recklessness, and fraud. On October 14, 1988, the Harmans filed an amended complaint that named CHOP, Dr. Park, and Dr. Bernbaum as additional defendants. After that, the Harmans petitioned the trial court to dismiss the action without prejudice, which the trial court granted. On May 10, 1994, the Harmans praeciped to have their complaint reinstated, and the matter proceeded against Dr. Borah, CHOP, Dr. Park, and Dr. Bernbaum.² Prior to trial, Dr. Borah made a motion for summary judgment to dismiss him from the case, which the trial court granted.

A jury trial commenced on April 10, 1996. The jury returned a verdict finding CHOP, Dr. Park, and Dr. Bernbaum not liable. The Harmans filed a timely appeal to the Superior Court, raising four issues.³ The Superior Court reviewed two of the four issues. First, the Superior Court found that the trial court committed no error in granting summary judgment in favor of Dr. Borah. Harman v. Borah, 720 A.2d 1058, 1064 (Pa.Super.1998). Second, the Superior Court determined that the trial court should have granted the Harmans' motion for a mistrial after the trial court engaged in an off-the-record discussion with an expert defense witness in front of the jury. Id. Consequently, the Superior Court affirmed the Order of the trial court as to the summary judgment but vacated its judgment in favor of CHOP, Dr. Park, and Dr. Bernbaum and remanded for a new trial on the basis that the trial court erred by not declaring a mistrial.

DISCUSSION

On April 18, 1996, CHOP and Dr. Park called Dr. Roy Douglas Strand to testify as an expert witness. Dr. Strand took the stand and provided his opinion as an expert in the field of pediatric neuroradiology. Immediately after Dr. Strand completed his testimony concerning information from various CAT scans and related reports, the trial court judge announced, in open court, that he wished to speak with Dr. Strand. The full text of the recorded conversation follows:

THE COURT: Doctor, may I see you a minute? It has nothing to do with this case.

N.T., 04/18/00, at 70 (R.R. 2450). The discussion between the judge and the witness continued off-the-record and out of the range of hearing of the jury. It is the effect on the jury of that private conversation that is at issue.

After reconvening after the lunch break recess, counsel for the Harmans approached the trial court, objected to the judge's discussion with the witness, and moved for a mistrial. N.T., 04/18/00, at 107-109 (R.R. 2487-89). The Harmans argued that the judge's consultation with an expert for the defense on a personal matter gave the prejudicial appearance that the trial court found Dr. Strand more credible than it found any of their witnesses. The trial court overruled the objection and denied the Harmans' motion for a mistrial. The following morning, the trial court asked counsel for the Harmans whether he desired a curative instruction to address the contested conversation. N.T., 04/19/00, at 5-6 (R.R. 1528-29). Despite the requests by the Harmans' counsel not to issue an instruction,⁴ the trial court started the day's proceeding with the following curative instruction:

One thing I wanted to mention to you is this: During the course of this trial, I am not concerned or favor either the plaintiff or the defendant. That's not my job nor am I intending to leave that impression to you. Now, if I at any time talk to either the lawyer for the plaintiff or the lawyer for the defendant, if I talk to a witness for the plaintiff or a witness for the defendant, other than when they're sitting here in the witness stand, if I talk either to the defendant or to the plaintiff, that does not mean that I am favoring one side or the other, that you say the Judge is talking to one side or not the other side.

So don't interpret that I'm favoring one side or the other. If I just so happen to talk to one or the other, that's fine. In fact, I think one of the jurors was walking down the hall the other day and said "good morning" and I said "good morning" and said "nice weather." I'm glad she did not talk to me rather than counsel, but all we said was "good morning" and, you know, "nice weather," that's it.

But I am not favoring one side or the other. I am not against one side or the other. So I just wanted to let you know so you at least get the correct impression what my job is. My job is to give you the law. You're the ones who have to make the decisions on the facts.

N.T., 04/19/00, at 14-15 (R.R. 1537-38).

Appellants claim that the Superior Court erred on several grounds. Among their chief assertions of error, they contend that the Superior Court failed to apply the abuse of discretion standard of review and the associative harmless error doctrine. In a brief analysis, the Superior Court first reasoned that any time a jury observes a conversation between the judge and the witness, the jury may perceive that discussion as a judicial endorsement of that witness' credibility. Borah, 720 A.2d at 1064. Relying exclusively on another Superior Court case, the court stated that judges should refrain from speaking to witnesses, except in "rare situations where such intervention is demanded in the interests of justice." Id. (quoting Fudala v. Leedom, 270 Pa.Super. 322, 411 A.2d 548, 550 (1979)). Next, citing McKown v. Demmler Properties, Inc., 419 Pa. 475, 214 A.2d 626 (1965), the Superior Court found, that we have "held that a curative instruction is insufficient to rectify the appearance of impartiality in this instance." Id. The Superior Court ruled that the conduct of the trial court judge compelled it to grant a new trial. We agree that the Superior Court conducted an improper review of the decision of the trial court and misinterpreted our holding in McKown, and we reverse the Superior Court's decision to remand for a new trial.

Trial courts have broad discretion to grant or deny a new trial. Martin v. Evans, 551 Pa. 496, 711 A.2d 458, 461 (1998); Morrison v. Commonwealth, Dept. of Public Welfare, 538 Pa. 122, 646 A.2d 565, 570 (1994); Coker v. S.M. Flickinger Co., Inc., 533 Pa. 441, 625 A.2d 1181, 1184 (1993). "The grant of a new trial is an effective instrumentality for seeking and achieving justice in those instances where the original trial, because of taint, unfairness or error, produces something other than a just and fair result, which, after all, is the primary goal of all legal proceedings." Domon v. McCarthy, 412 Pa. 595, 195 A.2d 520, 522 (1963). Although all new trial orders are subject to appellate review, it is well-established law that, absent a clear abuse of discretion by the trial court, appellate courts must not interfere with the trial court's authority to grant or deny a new trial. Morrison, 646 A.2d at 570; Coker, 625 A.2d at 1187; Spang & Co. v. U.S. Steel Corp., 519 Pa. 14, 545 A.2d 861, 865 (1988); Atene v. Lawrence, 456 Pa. 541, 318 A.2d 695, 697 (1974); Kralik v. Cromwell, 435 Pa. 613, 258 A.2d 654, 656 (1969).

In Coker, we provided a comprehensive discussion of the standard that appellate courts must use when reviewing new trial orders. Coker, 625 A.2d at 1185-88. We recognized the historical existence of what appeared to be two standards: (1) abuse of discretion and (2) inquiry into the legal merits of the reasons of the trial court. Id. at 1184-86. However, we...