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Cheng v. Septa and MV Transportation

August 6, 2009

LAMHA WINNIE CHENG, AS PARENT AND NATURAL GUARDIAN OF JASON ZOU CHENG
v.
SEPTA AND MV TRANSPORTATION, INC. AND JESUS RODRIGUEZ AND ZONG LIANG ZOU
APPEAL OF: MV TRANSPORTATION, INC. AND JESUS RODRIGUEZ



The opinion of the court was delivered by: Senior Judge Kelley

Argued: November 11, 2008

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE JOHNNY J. BUTLER, Judge, HONORABLE JAMES R. KELLEY, Senior Judge.

OPINION

MV Transportation, Inc. (MV) and Jesus Rodriquez (Rodriguez; collectively with MV, the Defendants) appeal from an order of the Court of Common Pleas of Philadelphia County (Trial Court) denying Defendants' Motion for Post Trial Relief.

On March 1, 2006, Lamha Winnie Cheng, as the parent and natural guardian of Jason Zou Cheng (collectively, Cheng) filed a Complaint in the Trial Court alleging negligence against the above-captioned Defendants. Cheng alleged, in relevant part, that Cheng, a five-year-old boy, had been struck and run over by a paratransit mini-bus while crossing the street at a Philadelphia intersection. Cheng sued the Southeastern Pennsylvania Transit Authority (SEPTA), MV, who performed transportation services under a contract with SEPTA, and Rodriguez, the driver of the mini-bus. The Defendants thereafter joined, as an additional defendant, Zong Liang Zou (Zou), the victim's uncle, alleging negligent supervision.

Following the close of the parties' pleadings,*fn1 a trial was scheduled for July 16-18, 2007. At Trial, Cheng introduced evidence showing, inter alia, that at 3:00 p.m. on October 19, 2005, Cheng was walking home from school with Zou when the pair crossed at a traffic intersection cross walk. Zou testified that Cheng was approximately one meter in front of him in the crosswalk when MV's mini-bus came quickly around the intersection's corner and struck Cheng.

Cheng testified as to her son's injuries and prolonged hospital stay following the accident, including testimony that Cheng continues to walk with a limp due to lingering pain from his injuries. Cheng further testified that her son has trouble controlling his bladder and bowels since the accident and has come home from school having soiled his pants.

Cheng's medical expert, Dr. Stepanuk, was qualified as an expert in orthopedics and trauma, and testified as to the extent of Cheng's injuries which included a fractured right hip, fractured pelvis, separation of the sacroiliac, lumbar sprain and strain, hematoma, nocturia and bowel injury resulting in ongoing bowel problems, and cephalgia.

As the driver of the van, Rodriguez testified, inter alia, that he saw Cheng and Zou waiting at the corner crosswalk, and began to turn when they did not proceed to cross. He testified that he did not try to communicate with them, via hand gesture or by honking the horn, prior to beginning his turn. Rodriguez further testified that as he proceeded into the intersection he did not see Cheng but felt a bump in his mini-bus as a passenger began screaming that he had hit the child. Rodriguez agreed that photographs taken at the scene showed that his turn had been very sharp and had resulted in his mini-bus driving partly on the wrong side of the yellow line. The defense also offered an accident reconstruction expert who testified as to a number of opinions, including that the driver of the mini-bus had acted reasonably.

The defense had also scheduled a medical expert, Dr. Berger, to testify. As the trial came to a close, the Trial Court was prepared for Dr. Berger's testimony near the end of the second scheduled day on July 17, 2007, at which time defense counsel informed the Trial Court that they had not scheduled Dr. Berger to testify until the following day. The Court adjourned to accommodate Dr. Berger's appearance the next day. On the next morning, however, defense counsel informed the Trial Court that Dr. Berger was not available until later the afternoon. Having no additional witnesses to offer, the defense requested that the Court adjourn and reconvene later that afternoon for Dr. Berger's appearance. The Trial Court refused, and ordered counsel to begin their closing arguments. Following the parties' closings, the jury found for Cheng in the amount of $250,000, finding MV 5% negligent and Zou 95% negligent.

Both parties thereafter filed Post Trial Motions. Cheng sought delay damages, which were granted by the Trial Court. The Defendants sought relief from the Trial Court's judgment, namely, either a new trial and/or a judgment notwithstanding of the verdict (JNOV), both of which were denied by the Trial Court by order dated October 11, 2007. The Defendants now appeal to this Court.*fn2*fn3

This Court's scope of review of a decision of a trial court denying motions for judgment notwithstanding of the verdict or a new trial is limited to a determination of whether the trial court abused its discretion, or committed an error of law controlling the outcome of the case. Williams v. Southeastern Pennsylvania Transportation Authority, 741 A.2d 848 (Pa. Cmwlth. 1999), petition for allowance of appeal denied, 563 Pa. 680, 759 A.2d 925 (2000).

Defendants present four issues*fn4 for review: (1) whether the Defendants are entitled to a new trial due to the Trial Court's failure to allow the Defendants' medical witness to testify; (2) whether the Defendants are entitled to a new trial due to the Trial Court's failure to charge the jury regarding the duty of a pedestrian in a crosswalk; (3) whether the Defendants are entitled to a new trial due to the Trial Court's abuse of discretion in precluding the video deposition of independent witness Shirley Harris, and; (4) whether Defendants are entitled to JNOV because the verdict was contrary to law and the weight of the evidence presented.

We first address Defendants' argument that the Trial Court erred in refusing a short continuance of several hours for the purpose of allowing the appearance of Defendants' medical expert, Dr. Berger, as a damages witness. In its Opinion in support of its order denying Defendants' Post-Trial Motions and entering judgment for Chou, the Trial Court recounted its reasoning in denying Defendants' an opportunity to present Dr. Berger's testimony:

Defense scheduled a medical expert, Dr. Berger, to testify regarding Jason [Chou]'s injuries but was not prepared to have him testify when the Court was ready to proceed. [Transcript of the proceedings (hereinafter, N.T.)] 7/17/07, 181-185]. The Court was prepared for Dr. Berger's testimony at 4:00 P.M. on July 17, 2007, as he would have been the last witness offered by the Defense but counsel informed the Court at that time that he had not scheduled Dr. Berger to testify until the following day. Discontentedly, the Court adjourned early on July 17, 2007 in order to accommodate Dr. Berger the following morning. Unfortunately, however, the following morning Defense counsel informed the Court that Dr. Berger would not be available until that afternoon. Having no additional witnesses to offer, Defense counsel asked the Court to adjourn and reconvene when the doctor was available later in the day. The Court refused Defense counsel's request to delay trial any further and ordered counsel to make closing arguments. N.T. 7/18/07, 5.

Trial Court Opinion dated January 25, 2008 (hereinafter Tr. Ct. Op.) at 5.

The transcript of proceedings before the Trial Court for July 17, 2007, contained the following passage regarding this issue, which occurred at the end of the second day of the three-day trial after Defendants had presented their other witnesses in support of their case-in-chief:

Mr. Green [Defendants' counsel]: Your Honor, our next witness is not scheduled to be here until tomorrow. The Court: Who scheduled him?

Mr. Green: Excuse me? It was done by agreement with counsel, Your Honor.

The Court: Is it going to be video?

Mr. Green: It's [sic] going to be live, Your Honor. It's [sic] the defense medical expert.

The Court: Excuse the jury. [The jury is excused from the courtroom]

The Court: Are you presenting any evidence?

Mr. DePasquale [Zou's counsel]: I am not, Your Honor.

The Court: Counsel, I don't know why you think you can presume to schedule people. You know we work here until 5 o'clock. It's only 4 o'clock and you're going to have to have witnesses ...


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