United States District Court, W.D. Pennsylvania
IAN HARKER, CORRANDINA BALDACCHINO, and GH, a minor, Plaintiffs,
JOHN O. CHAN, M.D., and CONEMAUGH MEMORIAL MEDICAL CENTER, Defendants.
GIBSON UNITED STATES DISTRICT JUDGE
sued Dr. John O. Chan and Conemaugh Memorial Medical Center
("Conemaugh") for medical malpractice.
(See ECF No. 1.) Plaintiffs alleged that Dr. Chan
negligently treated GH, their newly-born daughter, by
wrapping her head tightly with an ACE bandage shortly after
birth, causing her to suffer permanent disfigurement to her
head and scalp. (Id.) Defendants denied liability.
case proceeded to trial, resulting in a jury verdict for
Plaintiffs. (ECF No. 72). The jury awarded Plaintiffs over
$47, 000, 000-$43, 750, 000 for past and future non-economic
damages and $3, 283, 579 in future medical
Chan and Conemaugh filed a Motion for Post-Trial Relief (ECF
No. 77). Defendants move for a new trial or, in the
alternative, for remittitur of the jury's verdict.
(Id.) The Motion has been fully briefed
(see ECF Nos. 86, 88, 91, 94) and is ripe for
reasons that follow, the Court will GRANT in PART,
and DENY in PART, Defendants' Motion. The Court
DENIES Defendants' request for a new
trial. But the Court GRANTS the Defendants'
request for remittitur, and remits $27, 750, 000 of the
compensatory damage award, resulting in a compensatory damage
award of $16, 000, 000 and an overall verdict of $19, 283,
579.The reduced compensatory damage award of
$16, 000, 000 represents "the highest possible recovery
that would not 'shock the judicial conscience.'"
Dee v. Borough of Dunmore, 474 Fed.Appx. 85, 88 (3d
Cir. 2012) (internal citation omitted); Evans v.
PortAuth. of N.Y. & N.J., 273 F.3d 346, 355 (3d Cir.
2001) (internal citation omitted) (holding that
"remittitur should be set at the 'maximum
recovery' that does not shock the judicial
stated in the order following this Memorandum Opinion,
Plaintiffs shall have fourteen days
to accept the reduced award or opt for a new trial on
damages. See Cortez v. Trans Union, LLC, 617 F.3d
688, 716 (3d Cir. 2010) ("[A] court must afford a
plaintiff the option of a new trial when it attempts to
reduce a jury award because it believes the amount of the
verdict is not supported by the evidence.").
born at Conemaugh on December 27, 2012. Because she was
premature, she was brought to the neonatal intensive care
unit and placed under the care of Dr. Chan.
Chan observed minimal swelling on GH's head, a normal
finding for a newborn baby.Dr. Chan believed that the
swelling was either a caput, a cephalohematoma, or a
subgaleal hemorrhage. The standard treatment for these
conditions is either observation-in the case of
caput and cephalohematoma-or observation
and, if necessary, blood transfusion, in the case of
subgaleal hemorrhage. However, Dr. Chan directed his nurse
to wrap GH's head with an ACE bandage,  a treatment
that Dr. Chan learned while in medical school in the
Philippines in the 1980s. The nurse applied an ACE
bandage wrap to GH's head around 1:00 p.m. on December
27. The wrap remained on GH's head until
11:00 a.m. on December 29. By the time a nurse removed
the ACE bandage wrap, GH's head was bruised and swollen,
and had abrasions that were oozing blood and
serum. Both sides of GH's head, "all
the way around," were discolored due to
transferred to Texas Children's Hospital in Houston,
Texas. After arriving at Texas Children's,
GH was treated by Dr. Laura Monson, a pediatric plastic and
craniofacial surgeon. Dr. Monson noted "significant
soft tissue loss" on GH's head and substantial hair
loss.Fat oozed out of her scalp. Her skull
bone was also compromised. To treat GH's injuries,
Dr. Monson peeled away the dead tissue from GH's scalp,
in a process called "debridement." This painful
peeling procedure took place over several days.
February 6, 2013, GH was discharged from Texas
Children's. But her medical treatment did not end
when she left the hospital. GH immediately began physical
therapy for wound care. In 2017, GH underwent reconstructive
surgery of her scalp, which entailed placing a tissue
expander underneath her skin. This reconstructive surgery
has dual goals: to grow new skin to replace the damaged
skin-which will decrease the likelihood of infection-and to
stretch the hair-growing skin to recreate a hairline across
GH's forehead. The tissue expanders limit GH's
activities and require that GH's head remain covered when
GH goes outside in the sun. If no complications arise, GH
will have tissue expanders in her head for three more years,
but Dr. Monson expects complications and testified that GH
may have tissue expanders for five or even ten more
years. In either event, GH will require
additional surgeries, multiple hospitalizations, and
countless visits to the hospital. She may also need a bone
graft. And despite her doctors' best
efforts, GH will be permanently disfigured.
also suffered emotional distress; she is aware that she is
"different" and has been teased by other
children. She will require psychological
counseling as she ages and becomes increasingly aware of her
The Court Will Deny Defendants' Motion for a New Trial
Because a Reasonable Jury Could Not Have Found for Defendants
on the Question of Liability
argue that the Court should vacate the jury verdict and order
a new jury trial on all issues because the Court erred in
granting Plaintiffs' Motion for Judgment as a Matter of
Law on the issue of liability. (See ECF No. 86 at
14.) Defendants contend that the Court erred for two reasons;
first because a reasonable jury could have found that Dr.
Chan did not violate the standard of care (id. at
15) and, second, because a reasonable jury could have
concluded that Dr. Chan's treatment did not cause
GH's injuries. (Id. at 18.) The Court rejects
for Judgment as a Matter of Law
of the Federal Rules of Civil Procedure provides that:
If a party has been fully heard on an issue during a jury
trial and the court finds that a reasonable jury would not
have a legally sufficient evidentiary basis to find for the
party on that issue, the court may:
(A) resolve the issue against the party; and
(B) grant a motion for judgment as a matter of law against
the party on a claim or defense that, under the controlling
law, can be maintained or defeated only with a favorable
finding on that issue.
Fed. R. Civ. P. 50.
should grant a motion for judgment as a matter of law only if
"'there is no legally sufficient basis for a
reasonable jury' to find in favor of the non-moving
party. In making this determination, the District Court
'must draw all reasonable inferences in favor of the
non-moving party, and it may not make credibility
determinations or waive evidence.'" Sullivan v.
Cty. of Allegheny, Pa., 112 Fed.Appx. 176, 178 (3d Cir.
2004) (quoting Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 149 (2000)); see Trabal v. Wells
Fargo Armored Serv. Corp., 269 F.3d 243, 249 (3d Cir.
2001) (internal quotation marks omitted) (quoting Powell
v. ].T. Posey Co., 766 F.2d 131, 133-34 (3d Cir. 1985))
(stating that a court should grant a motion for judgment as a
matter of law "only if, as a matter of law, the record
is critically deficient of that minimum quantity of evidence
from which a jury might reasonably afford relief.").
When deciding a motion for judgment as a matter of law, a
district court "must refrain from weighing the evidence,
determining the credibility of witnesses, or substituting
[its] own version of the facts for that of the jury."
Marra v. Philadelphia Hous. Auth., 497 F.3d 286, 300
(3d Cir. 2007) (citing lightning lube, Inc. v. Witco
Corp., 4 F.3d 1153, 1166 (3d Cir. 1993)).
"[f]ederal courts do not follow the rule that a
scintilla of evidence is enough" to defeat a motion for
judgment as a matter of law. Sullivan, 112 Fed.Appx.
at 178 (citing Walter v. Holiday Inns, Inc., 985
F.2d 1232, 1238 (3d Cir. 1993)). As the Third Circuit has
repeatedly held, "[t]he question is not whether there is
literally no evidence supporting the party against whom the
motion is directed but whether there is evidence upon which
the jury could properly find a verdict for that party."
Id. at 178 (quoting Walter, 985 F.2d at
1238); Foster v. Nat'l Fuel Gas Co., 316 F.3d
424, 428 (3d Cir. 2003) (quoting Walter, 985 F.2d at
1238); Vincler & Knoll v. Paul, 54 Fed.Appx. 66,
68 (3d Cir. 2002) (quoting Walter, 985 F.2d at
1238); Ambrose v. Twp. of Robinson, Pa., 303 F.3d
488, 493 (3d Cir. 2002) (quoting Patzig v.
O'Neil, 577 F.2d 841, 846 (3d Cir. 1978)).
malpractice consists of a negligent or unskillful performance
by a physician of the duties which are devolved and incumbent
upon him on account of his relations with his patients, or of
a want of proper care and skill in the performance of a
professional act." Quinby v. Plumsteadville Family
Practice, Inc., 907 A.2d 1061, 1070 (Pa. 2006) (citing
Mutual Ben. Ins. Co. v. Haver, 725 A.2d 743 (Pa.
establish medical malpractice under Pennsylvania law, a
plaintiff must establish "(1) a duty owed by the
physician to the patient[;] (2) a breach of duty from the
physician to the patient[;] (3) that the breach of duty was
the proximate cause of, or a substantial factor in, bringing
about the harm suffered by the patient[;] and (4) damages
suffered by the patient that were a direct result of that
harm." Thierfelder v. Wolfert, 52 A.3d 1251,
1264 (Pa. 2012) (quoting Mitzelfelt v. Kamrin, 584
A.2d 888, 891 (Pa. 1990)); see Aughenbaugh v.
Dejulia, No. 3:09-CV-159, 2013 WL 12293453, at *15 (W.D.
Pa. Mar. 27, 2013) (Gibson, J.) (quoting Kamrin, 584
A.2d at 891). "With all but the most self-evident
medical malpractice actions there is also the added
requirement that the plaintiff must provide a medical expert
who will testify as to the elements of duty, breach, and
causation." Quinby, 907 A.2d at 1070-71 (citing
Hightower-Warren v. Silk, 698 A.2d 52, 54 (Pa.
prove the first two elements -duty and breach -"the
plaintiff must show 'that the act of the physicians or
hospital fell below the standard of care' owed to the
plaintiff as a patient." Thierfelder, 52 A.3d
at 1264 (quoting Brannan v. Lankenau Hosp., 417 A.2d
196, 199 (Pa. 1980)). The Supreme Court of Pennsylvania has
repeatedly held that to comply with the standard of care, a
physician must treat a patient with "the skill and
knowledge usually possessed by physicians in the same or a
similar locality, giving due regard to the advanced state of
the profession at the time of the treatment; and in employing
the required skill and knowledge he is also required to
exercise the care and judgment of a reasonable
[person]." Thierfelder, 52 A.3d at 1265
(quoting Donaldson v. Maffucci, 156 A.2d 835, 838
third element-proximate causation -"is a term of art,
and may be established by evidence that a defendant's
negligent act or failure to act was a substantial factor in
bringing about the harm inflicted upon a plaintiff."
Jones v. Montefiore Hosp., 431 A.2d 920, 923 (Pa.
1981); Hamil v. Bashline, 392 A.2d 1280, 1284 (Pa.
Reasonable Jury Could Not Have Found that Dr. Chan Met the
Standard of Care
acknowledge that Dr. Chan owed GH a duty of care. (ECF No. 86
at 17.) But they contend that a reasonable jury could have
concluded that Dr. Chan did not violate the standard of care
in his treatment of GH. (ECF No. 86 at 16.) First, they argue
that a reasonable jury could have found that Dr. Chan acted
properly in diagnosing GH with a subgaleal hemorrhage
because, though the radiologist's report did not indicate
any signs of a subgaleal hemorrhage-the radiologist diagnosed
GH with a cephalhematoma-Dr. Chan diagnosed GH with a
subgaleal hemorrhage based on his own clinical evaluation.
(Id.) They argue that this diagnosis is consistent
with Dr. Chan's testimony that a subgaleal hemorrhage can
develop spontaneously, and thus supports a determination that
Dr. Chan acted reasonably. (Id.) Second, they argue
that a reasonable jury could have found that Dr. Chan did not
violate the standard of care when he treated what he thought
was a subgaleal hemorrhage with an ACE bandage wrap around
GH's scalp. (Id.) Defendants note that Dr. Chan
learned the ACE bandage treatment for a subgaleal hemorrhage
in medical school and previously used it several times
without incident. (Id. at 17.) They also note that
no literature or practice guidelines expressly prohibit using
an ACE bandage wrap to treat a subgaleal hemorrhage.
response, Plaintiffs argue that no reasonable jury could have
found that Dr. Chan met the standard of care. (See
ECF No. 88 at 7-9.) They argue that they presented unrebutted
expert testimony from Dr. Victoria Niklas, M.D., that Dr.
Chan's treatment of GH fell below the standard of care.
(Id. at 7.) They contend that they offered
undisputed expert testimony that the standard of care for
treating a subgaleal hemorrhage is to observe and, if
necessary, treat with blood transfusions, and that wrapping a
newborn's head in an ACE bandage is clearly not within
the standard of care. (Id. at 7-8.) They further
contend that Dr. Chan admitted during his testimony that he
failed to follow the standard of care when treating
GH. (Id. at 8.)
explained below, the Court finds that no reasonable jury
could have found that Dr. Chan met the standard of care.
expert in pediatrics and neonatology, Dr. Niklas, testified
that the standard of care for treating a subgaleal hemorrhage
is to observe and, if necessary, treat with
transfusions.Dr. Niklas testified that this standard
of care is "very clear." Further, she testified
that the standard of care "is not to apply an ACE
bandage." In fact, she testified that she did not
know of a single other neonatologist in the United States who
treats a subgaleal hemorrhage by wrapping a baby's head
with an ACE bandage. She had never even heard of any
neonatologist propose using an ACE bandage to treat a
subgaleal hemorrhage. And, to the best of her knowledge, no
textbook or peer-reviewed article recommends treating
subgaleal hemorrhage by wrapping an ACE bandage around the
ii. Dr. Chan
Dr. Niklas, Dr. Chan testified that the standard of care for
treating a subgaleal hemorrhage is observation and, if
necessary, transfusion. Dr. Chan did not include wrapping the
head with an ACE bandage in his articulation of the standard
of care. Dr. Chan also testified that the
textbooks he considers to be reliable in the field -and that
he uses to teach-do not recommend treating a subgaleal
hemorrhage by applying an ACE bandage wrap. In fact, he
testified that no literature exists anywhere that states that
the standard of care for treating a subgaleal hemorrhage is
to wrap the head with an ACE bandage.
Chan further testified that no clinical trials have tested
his methodology for treating subgaleal hemorrhage with an ACE
bandage. He also stated that the neonatologists
he has practiced with at Conemaugh do not treat subgaleal
hemorrhage with head wraps. In fact, Dr. Chan testified
that, as far as he knows, he is the only doctor in the United
States who treats subgaleal hemorrhage by wrapping the head
with an ACE bandage.
Chan testified that he learned the head-wrapping technique
while in medical school in the Philippines in the
1980s. He stated that he is aware of two
articles that advocate using compression wraps to treat
subgaleal hemorrhage. But these articles are from Canada
and Australia, not the Untied States. Also, these
articles advocate for using compression wraps-not an ACE
bandage wrap like that applied by Dr. Chan. Furthermore,
these articles do not mention how long a compression wrap
should be applied. Finally, these articles acknowledge that
the medical profession does not know if a compression wrap is
actually effective at treating a subgaleal
Court Did Not Err in Determining that No Reasonable Jury
Could Conclude that Dr. Chan Followed the
Standard of Care
presented unequivocal evidence-both through Dr. Niklas's
testimony and through Dr. Chan's own testimony - that the
standard of care for treating a subgaleal hemorrhage is
observation and, if necessary, transfusion. No
witness-not even Dr. Chan-testified that the standard of care
involved wrapping the head with an ACE bandage. Furthermore,
neither Dr. Niklas nor Dr. Chan is aware of any peer-reviewed
literature that endorses this tactic, nor knows of any other
doctor in the United States who treats subgaleal hemorrhage
with an ACE bandage wrap. Accordingly, no reasonable
jury could have concluded that Dr. Chan's treatment of GH
fell within the standard of care. Therefore, the Court did
not err in concluding that, as a matter of law, Dr. Chan
breached the standard of care.
A Reasonable Jury Could Not Have Found that Dr. Chan's
Treatment Did Not Cause GH's
Chan and Conemaugh next assert that a reasonable jury could
have concluded that Dr. Chan's negligence did not cause
GH's injuries. (ECF No. 86 at 18.) They note that Dr.
Chan applied an ACE bandage on at least ten other newborns
suspected of having a subgaleal hemorrhage without incident.
(Id.) They further observe that one of
Plaintiffs' experts testified that GH's
cephalohematoma could have been caused by pressure caused by
GH's head resting on her mother's pelvic bones during
labor and delivery. (Id.) They argue that this
testimony establishes that GH's scalp may have been
damaged by a natural physical process that occurred before
GH's birth, not by the ACE bandage ordered by Dr. Chan.
response, Plaintiffs contend that unrebutted testimony
conclusively established that the ACE bandage was a
substantial factor in causing GH's injuries. (ECF No. 88
at 9.) Plaintiffs argue that Dr. Chan's testimony
corroborated the testimony offered by Plaintiffs' experts
because Dr. Chan stated that when a head wrap is compressed
too tightly, it can cut off blood supply, causing the skin
tissue to become necrotic and die. (Id. at 11.)
Plaintiffs further argue that Dr. Chan admitted that GH's
skin showed signs of compression after the wrap was applied.
(Id.) Plaintiffs also note that Dr. Chan failed to
offer any alternative explanation for GH's injuries.
explained below, the Court finds that no reasonable jury
could have concluded that the head wrap ordered by Dr. Chan
did not cause GH's injuries.
Niklas testified that the ACE bandage wrap was a substantial
factor in causing GH's injuries. Dr. Niklas stated that
the major risk of wrapping a newborn's head with a tight
wrap is "to compromise all of the tissues that underlie
that ACE bandage," such as the scalp and skull
bones. Dr. Niklas testified that, though born
prematurely, GH was "essentially a healthy newborn baby
with good color" at birth. But after the wrap was
applied, GH showed numerous signs and symptoms of
compression: her right eye became "remarkably
swollen;" GH became irritable and
inconsolable; and GH's scalp showed abrasions,
which oozed and drained fluid, which is "clear
evidence" that the underlying tissue had been
compromised and was becoming necrotic. Dr. Niklas
testified that the wrap "was extremely tight and was
compromising the tissue causing it to break down and
essentially to start dying." According to Dr. Niklas,
the ACE bandage wrap "led to the injuries [GH] suffered
. . . and will continue to suffer for the rest of her
Dr. Niklas, Dr. Monson, GH's threating physician and
expert in the fields of pediatric plastic surgery and
craniofacial reconstruction, testified that Dr. Chan's
head wrap clearly caused GH's injuries. Dr. Monson
testified that "[s]hortly after birth, [GH] had a very
tight wrap placed around her head circumferentially, which
cut off blood supply to the skin, the scalp, the underlying
tissue," and the skull bone, causing "impaired
blood flow and necrosis or death of that
Chan testified that he was "baffled" that GH
experienced swelling, oozing, and tissue death because he
had previously wrapped approximately ten other babies'
heads with ACE bandages and none of those babies had
sustained injuries. But Dr. Chan agreed that if a head wrap
creates compression, there can be "catastrophic
consequences." He explained that "if you
compressed it too tightly you could cut off blood supply like
a tourniquet." Dr. Chan further explained that if a
head wrap cuts off blood flow, the tissue loses oxygen
"and the tissue dies"and turns black due to
Chan testified that, if a wrap is applied too tightly,
certain signs will present. He stated that one of these
signs is swelling in the area of the wrap. Dr. Chan
admitted that there is no documentation in any of the nursing
records of any eye swelling prior to GH's head being
wrapped.And he stated that five or six hours
after the wrap was placed on GH's head, GH started to
develop significant swelling in the right eye. In fact, her
right eye was swollen shut.
Chan also testified that, according to the nursing records
from 8:00 p.m. on the evening of December 28 -approximately
31 hours after the wrap was applied -GH was irritable and
inconsolable. Dr. Chan testified that the nursing
records from that evening also indicate that a large swollen
area above the head wrapping had developed and was oozing
fluid. Dr. Chan explained that the scalp oozes
fluid "when you have a break down" of the
Chan further testified that when the wrap was removed at
10:00 a.m. on December 29, GH had bruising and abrasions on
her head that required the administration of an
antibiotic. He also stated that the oozing from the
abrasions was so bad that it stained GH's
linens. After the wrap was removed, Dr. Chan
consulted a plastic surgeon because eschar had formed
"all the way round" both sides of GH's
head. Dr. Chan admitted that there is no
documentation of any abrasions on GH's scalp prior to the
application of the wrap. He also acknowledged that, when the
wrap was removed, he realized that it had caused
Court Did Not Err in Determining that No Reasonable Jury
Could Conclude that the Head Wrap Did Not
Cause GH's Injuries
reasonable jury could have concluded that the head wrap did
not cause GH's injuries. Both of Plaintiffs' experts
testified that the head wrap categorically caused the
injuries that GH suffered. Dr. Chan-Defendants' only
witness -did not offer an alternative theory of
causation. Rather, he stated that he was
"baffled" by the injuries that appeared on GH's
head and scalp after the head wrap was applied. But, as noted
above, he acknowledged that the injuries that GH suffered
were the type of injuries that would develop if a head wrap
were applied too tightly, cutting off blood flow and causing
the underlying skin tissue to die.
that both of Plaintiffs' experts testified unequivocally
that the head wrap caused GH's injuries, that Dr. Chan
offered no alternative theory of causation, and that Dr. Chan
himself testified that a head wrap, if applied too tightly,
could cause the exact injuries that GH suffered, the Court
affirms its previous determination that no reasonable jury
could have found that the head wrap did not cause GH's
injuries. See Sullivan, 112 Fed.Appx. at 178.
Court rejects Defendants' argument that the Court erred
in granting Plaintiffs' Motion for Judgment as a Matter
of Law because Dr. Chan testified that he followed the
standard of care for treating a subgaleal hemorrhage.
(See Defendants' Brief in Support of Motion for
a New Trial, ECF No. 86 at 17.) Defendants correctly point
out that Dr. Chan testified that he "observed" GH
and did not give her transfusions because they did not appear
necessary. (Testimony of Dr. Chan, ECF No. 81 at 107). But
Defendants conveniently ignore the fact that, while Dr.
Chan's observation and decision not to utilize blood
transfusions fell within the standard of care for treating a
subgaleal hemorrhage, his decision to order a head wrap with
an ace bandage clearly did not. The Court declines
Defendants' invitation to insulate doctors from liability
when they take actions that clearly fall outside the standard
of care, simply because they also took actions that fell
within the standard of care.
Court similarly rejects Defendants' contention that the
Court improperly granted Plaintiffs' Motion for Judgment
as a Matter of Law because Plaintiffs' expert, Dr.
Niklas, testified that GH's labor and delivery process
could have caused her cephalohematoma. (See
Defendants' Brief in Support of Motion for a New Trial,
ECF No. 86 at 17.) Contrary to Defendants'
characterization, Dr. Niklas did not testify that the
significant scalp injuries that GH suffered could have been
caused by labor and delivery. Rather, as noted above, she
testified that the head wrap caused GH's
injuries. The Court rejects Defendants'
mischaracterization of Dr. Niklas's testimony and finds
no legal error in its decision to grant Plaintiffs'
Motion for Judgment as a Matter of Law.
The Court Will Deny Defendants' Motion for a New Trial on
Damages Because Defendants Waived Any Objections to
Plaintiffs' Counsel's Opening Statement and Closing
Argument and Because There Is No Reasonable Probability that
the Jury Was Prejudiced
next argue that the Court should vacate the jury award and
order a new trial on damages because the jury impermissibly
relied on passion and prejudice in reaching its verdict. (ECF
No. 86 at 10-12.) Defendants complain that during his opening
statement, Plaintiffs' counsel characterized Dr.
Chan's conduct as "outrageous" and
"crazy." (Id. at 11.) They also claim that
Plaintiffs' counsel improperly implored the jury to
"send a message." (ECF No. 86 at 11; ECF No. 91 at
4-5.) Specifically, Defendants point to the following portion
of Plaintiffs' counsel's opening statement:
[The Plaintiffs] came to the courtroom for justice. They came
to the courtroom to ask you as members of this community to
tell Dr. Chan no more head wraps, to tell Dr. Chan listen to
your experts, to tell Dr. Chan don't be a cowboy, do what
every other neonatologist in this country does. That's
why they're here.
(ECF No. 86 at 11, quoting Opening Statement of Dominic
Guerrini, ECF No. 81 at 34-35.) Defendants also argue that
Plaintiffs' counsel made inappropriate remarks during his
closing argument by stating:
Conemaugh thinks it's not that bad. Help them understand.
You tell Conemaugh and you tell Dr. Chan it is that bad ...
Ladies and gentlemen, use your power. Tell those folks at
Conemaugh it is that bad.
(ECF No. 91 at 4, quoting Closing Statement of Dominic
Guerrini, ECF No. 80 at 23-24.) According to Defendants,
these statements inflamed the jury and caused it to reach a
verdict based on passion and prejudice rather than on the
facts. (ECF No. 86 at 11.) They ask that the Court vacate the
jury verdict and grant them a new trial.
Defendants Waived Any Objection to Plaintiffs' Opening
Statement and Closing Argument by Failing to Object at
object to Plaintiffs' opening statement and closing
argument for the first time in their Post-Trial Motion.
Because their counsel failed to object at trial and because
"exceptional circumstances" do not exist, the Court