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Harker v. Chan

United States District Court, W.D. Pennsylvania

July 27, 2018

IAN HARKER, CORRANDINA BALDACCHINO, and GH, a minor, Plaintiffs,
v.
JOHN O. CHAN, M.D., and CONEMAUGH MEMORIAL MEDICAL CENTER, Defendants.

          MEMORANDUM OPINION

          KIM R. GIBSON UNITED STATES DISTRICT JUDGE

         I. Introduction

         Plaintiffs 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.

         The 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[1] and $3, 283, 579 in future medical expenses.[2]

         Dr. 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 disposition.

         For the 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.[3]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 conscience.").

         As 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.").

         II. Background

         GH was born at Conemaugh on December 27, 2012.[4] Because she was premature, she was brought to the neonatal intensive care unit and placed under the care of Dr. Chan.[5]

         Dr. Chan observed minimal swelling on GH's head, a normal finding for a newborn baby.[6]Dr. Chan believed that the swelling was either a caput, a cephalohematoma, or a subgaleal hemorrhage.[7] The standard treatment for these conditions is either observation-in the case of caput[8] and cephalohematoma[9]-or observation and, if necessary, blood transfusion, in the case of subgaleal hemorrhage.[10] However, Dr. Chan directed his nurse to wrap GH's head with an ACE bandage, [11] a treatment that Dr. Chan learned while in medical school in the Philippines in the 1980s.[12] The nurse applied an ACE bandage wrap to GH's head around 1:00 p.m. on December 27.[13] The wrap remained on GH's head until 11:00 a.m. on December 29.[14] By the time a nurse removed the ACE bandage wrap, GH's head was bruised and swollen, [15] and had abrasions that were oozing blood and serum.[16] Both sides of GH's head, "all the way around," were discolored due to eschar.[17]

         GH was transferred to Texas Children's Hospital in Houston, Texas.[18] After arriving at Texas Children's, GH was treated by Dr. Laura Monson, a pediatric plastic and craniofacial surgeon.[19] Dr. Monson noted "significant soft tissue loss" on GH's head and substantial hair loss.[20]Fat oozed out of her scalp.[21] Her skull bone was also compromised.[22] To treat GH's injuries, Dr. Monson peeled away the dead tissue from GH's scalp, in a process called "debridement."[23] This painful peeling procedure took place over several days.[24]

         Around February 6, 2013, GH was discharged from Texas Children's.[25] But her medical treatment did not end when she left the hospital. GH immediately began physical therapy for wound care.[26] In 2017, GH underwent reconstructive surgery of her scalp, which entailed placing a tissue expander underneath her skin.[27] 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.[28] The tissue expanders limit GH's activities and require that GH's head remain covered when GH goes outside in the sun.[29] 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.[30] In either event, GH will require additional surgeries, multiple hospitalizations, and countless visits to the hospital.[31] She may also need a bone graft.[32] And despite her doctors' best efforts, GH will be permanently disfigured.[33]

         GH has also suffered emotional distress; she is aware that she is "different" and has been teased by other children.[34] She will require psychological counseling as she ages and becomes increasingly aware of her disfigurement.[35]

         III. 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

         Defendants 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 both arguments.

         A. Legal Standards

         1.Motion for Judgment as a Matter of Law

         Rule 50 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.

         A court 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)).

         Still, "[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)).

         2.Medical Malpractice

         "Medical 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. 1999)).

         To 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. 1997)).

         To 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 (Pa. 1959)).

         The 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. 1978).

         B.A Reasonable Jury Could Not Have Found that Dr. Chan Met the Standard of Care

         Defendants 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[36]-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. (Id.)

         In 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.[37] (Id. at 8.)

         As explained below, the Court finds that no reasonable jury could have found that Dr. Chan met the standard of care.

         1.Testimony at Trial

         i. Dr. Niklas

         Plaintiff's 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.[38]Dr. Niklas testified that this standard of care is "very clear."[39] Further, she testified that the standard of care "is not to apply an ACE bandage."[40] 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.[41] She had never even heard of any neonatologist propose using an ACE bandage to treat a subgaleal hemorrhage.[42] And, to the best of her knowledge, no textbook or peer-reviewed article recommends treating subgaleal hemorrhage by wrapping an ACE bandage around the head.[43]

ii. Dr. Chan

         Like Dr. Niklas, Dr. Chan testified that the standard of care for treating a subgaleal hemorrhage is observation and, if necessary, transfusion.[44] Dr. Chan did not include wrapping the head with an ACE bandage in his articulation of the standard of care.[45] 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.[46] 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.[47]

         Dr. Chan further testified that no clinical trials have tested his methodology for treating subgaleal hemorrhage with an ACE bandage.[48] He also stated that the neonatologists he has practiced with at Conemaugh do not treat subgaleal hemorrhage with head wraps.[49] 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.[50]

         Dr. Chan testified that he learned the head-wrapping technique while in medical school in the Philippines in the 1980s.[51] He stated that he is aware of two articles that advocate using compression wraps to treat subgaleal hemorrhage.[52] But these articles are from Canada and Australia, not the Untied States.[53] Also, these articles advocate for using compression wraps-not an ACE bandage wrap like that applied by Dr. Chan.[54] Furthermore, these articles do not mention how long a compression wrap should be applied.[55] Finally, these articles acknowledge that the medical profession does not know if a compression wrap is actually effective at treating a subgaleal hemorrhage.[56]

         2.The Court Did Not Err in Determining that No Reasonable Jury Could Conclude that Dr. Chan Followed the Standard of Care

         Plaintiffs 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.[57] 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.[58] 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.

         C. A Reasonable Jury Could Not Have Found that Dr. Chan's Treatment Did Not Cause GH's Injuries

         Dr. 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. (Id.)

         In 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. (Id.)

         As 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.

         1.Testimony at Trial

         i. Dr. Niklas

         Dr. Niklas testified that the ACE bandage wrap was a substantial factor in causing GH's injuries.[59] 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.[60] Dr. Niklas testified that, though born prematurely, GH was "essentially a healthy newborn baby with good color" at birth.[61] But after the wrap was applied, GH showed numerous signs and symptoms of compression:[62] her right eye became "remarkably swollen;"[63] GH became irritable and inconsolable;[64] 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.[65] Dr. Niklas testified that the wrap "was extremely tight and was compromising the tissue causing it to break down and essentially to start dying."[66] According to Dr. Niklas, the ACE bandage wrap "led to the injuries [GH] suffered . . . and will continue to suffer for the rest of her life."[67]

         ii. Dr. Monson

         Like 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.[68] 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 tissue."[69]

         iii. Dr. Chan

         Dr. Chan testified that he was "baffled" that GH experienced swelling, oozing, and tissue death[70] because he had previously wrapped approximately ten other babies' heads with ACE bandages and none of those babies had sustained injuries.[71] But Dr. Chan agreed that if a head wrap creates compression, there can be "catastrophic consequences."[72] He explained that "if you compressed it too tightly you could cut off blood supply like a tourniquet."[73] Dr. Chan further explained that if a head wrap cuts off blood flow, the tissue loses oxygen "and the tissue dies"[74]and turns black due to "necrosis."[75]

         Dr. Chan testified that, if a wrap is applied too tightly, certain signs will present.[76] He stated that one of these signs is swelling in the area of the wrap.[77] 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.[78]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.[79] In fact, her right eye was swollen shut.[80]

         Dr. 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[81] -GH was irritable and inconsolable.[82] 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.[83] Dr. Chan explained that the scalp oozes fluid "when you have a break down" of the skin.[84]

         Dr. 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.[85] He also stated that the oozing from the abrasions was so bad that it stained GH's linens.[86] 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.[87] Dr. Chan admitted that there is no documentation of any abrasions on GH's scalp prior to the application of the wrap.[88] He also acknowledged that, when the wrap was removed, he realized that it had caused compression.[89]

         2.The Court Did Not Err in Determining that No Reasonable Jury Could Conclude that the Head Wrap Did Not Cause GH's Injuries

         No 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.[90] Dr. Chan-Defendants' only witness -did not offer an alternative theory of causation.[91] Rather, he stated that he was "baffled" by the injuries that appeared on GH's head and scalp after the head wrap was applied.[92] 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.[93]

         Given 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.

         The 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.

         The 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.[94] 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.

         IV. 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

         Defendants 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.

         A. Defendants Waived Any Objection to Plaintiffs' Opening Statement and Closing Argument by Failing to Object at Trial

         Defendants 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 ...


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