affect the substantial rights of the parties.
It should be noted that the burden of proving harmful error rests on
the party moving for a new trial. Ryther v. KARE 11, 864 F. Supp. 1510,
1521 (D.Minn. 1994), aff'd, 84 F.3d 1074 (8th Cir. 1996), rehearing
granted, opinion vacated on other grounds, 108 F.3d 832 (8th Cir. 1997),
cert. denied, 521 U.S. 1119, 117 S.Ct. 2510, 138 L.Ed.2d 1013 (1997).
In this case, while the defendant asserts that his motions for mistrial
on the basis of the improper comments and actions of Plaintiff's counsel
should have been granted, he does not make any showing that the admission
of this evidence in any way influenced the outcome of the trial. We thus
cannot find that any of the defendant's substantial rights were affected
or that a refusal to grant a new trial would be inconsistent with
substantial justice. Accordingly, defendant has failed to meet his burden
of proving that the admission of this evidence was not harmless and his
motion for new trial on this basis must also be denied.
Similarly, Defendant Davne contends that the plaintiff should not have
been permitted to raise evidence of his financial relationship with
Acromed, the manufacturer of the pedicle instrumentation used in the
March 5, 1992 surgery as it was barred by Judge Bechtle's Pre-Trial Order
No. 117 approving the settlement agreement for the class (of which
plaintiff was a part). Specifically, Defendant relies upon the following
language of Order No. 117:
All settlement class members . . . are permanently BARRED and ENJOINED
from initiating, asserting, or prosecuting any actions presenting Settled
Claims against any party. Settlement Class Members . . . may not
initiate, assert, or prosecute Orthopedic Bone Screw related claims,
unless:. . . (b) the claim does not (i) rest in whole or in part on any
product liability-related theory of recovery, including without limitation
. . . the regulatory status of any AcroMed Orthopedic Bone Screw, or
alleged failure to warn, nondisclosure, or inaccurate or incomplete
disclosure, of the regulatory status of any AcroMed Orthopedic Bone Screw
or (ii) have as an element of the claim financial relationships with
AcroMed and/or an alleged conflict of interest based upon any such
financial relationship (impeachment shall not be considered an element of
Thus, defendant argues, any claim based upon the financial relationship
between himself and AcroMed has been released and Plaintiff was barred
from pursuing such a claim.
We do not disagree with Defendant's argument that the plaintiff was
barred from pursuing a claim against him based upon his financial
relationship with AcroMed. However, we fail to see how Ms. Corrigan's
elicitation of evidence of the financial relationship between Dr. Davne
and Acromed equated to pursuit of an action against him on this basis.
Rather, it appears that the evidence was elicited for the purpose of
showing that Dr. Davne's decision to utilize Acromed's pedicle screw
instrumentation in Plaintiff's surgery may have been influenced by this
financial connection and thus may have caused him to deviate from the
duty of due care which he owed to his patient. While this evidence may
have proven prejudicial to the defendant's case, it was nevertheless
probative and we do not find that its prejudicial value outweighed its
probative value such that it would have been appropriately excluded under
Fed.R.Evid. 403. Accordingly, the defendant's motion for new trial on
this ground is likewise denied.
Finally, Dr. Davne challenges the admission of the testimony of Royal
Bunin in support of Plaintiff's claim for lost wages on the grounds that
Plaintiff did not establish that she would have been gainfully employed
notwithstanding the 1992 surgery. Stated otherwise, Defendant Davne
contends that Plaintiff was unable to establish that "but for" the 1992
surgery, she would have been gainfully employed.
In establishing a cause of action in negligence, plaintiffs bear the
burden of demonstrating that there was a duty or obligation recognized by
law, breach of that duty by the defendants, a causal connection between
the defendants' breach of that duty and the resulting injury, and actual
loss or damage suffered by the complainants. Summers v. Giant Food
Stores, Inc., 743 A.2d 498, 509 (Pa.Super. 1999), citing Reilly v.
Tiergarten, Inc., 430 Pa. Super. 10, 633 A.2d 208, 210 (1993). See Also:
Ellis v. Sherman, 512 Pa. 14, 18, 515 A.2d 1327, 1328 (1986); Waddell v.
Bowers, 415 Pa. Super. 469, 609 A.2d 847, 849 (1992), appeal denied,
533 Pa. 613, 618 A.2d 402 (1992). While the Pennsylvania Supreme Court
has had difficulty defining exactly what constitutes the nexus between
wrongful acts or omissions, i.e., causation, it is beyond dispute that in
Pennsylvania causation involves two separate and distinct concepts-cause
in fact and legal or proximate cause. Id. Cause in fact or `but for'
causation provides that if the harmful result would not have come about
but for the negligent conduct then there is a direct causal connection
between the negligence and the injury. Legal or proximate causation
involves a determination that the nexus between the wrongful acts or
omissions and the injury sustained is of such a nature that it is
socially and economically desirable to hold the wrongdoer liable. First
v. Zem Zem Temple, 454 Pa. Super. 548, 686 A.2d 18, 21 (1996), citing
Stewart v. Aitken Products, Inc., 607 F. Supp. 883, 889 (E.D.Pa. 1985).
Thus, to recover damages in a negligence action, a plaintiff must
establish that a particular defendant's negligence was the proximate
cause of his or her injuries. Gutterodge v. A.P. Green Services, Inc.,
804 A.2d 643, 654 (Pa.Super. 2002). The test for proximate causation is
whether the appellees' acts or omissions were a "substantial factor" in
bringing about appellant's harm. First, supra.
Section 433 of the Restatement of Torts, Second (1965) sets forth
a method of determining whether negligent conduct is a substantial
factor in producing injury. It provides:
§ 433. Considerations Important in Determining
Whether Negligent Conduct is Substantial Factor in
The following considerations are in themselves or in combination with
one another important in determining whether the actor's conduct is a
substantial factor in bringing about harm to another:
(a) the number of other factors which contribute in
producing the harm and the extent of the effect which
they have in producing it;
(b) whether the actor's conduct has created a force or
series of forces which are in continuous and active
operation up to the time of the harm, or has created a
situation harmless unless acted upon by other forces
for which the actor is not responsible;
(c) lapse of time.