Gold, D. v. Plesset Properties
1178 WDA 2016
| Pa. Super. Ct. | Sep 18, 2017Background
- On July 8, 2011, Debra Gold slipped and severely injured her leg while exiting the Shadyside Inn Suites (Plesset Properties Partnership, "PPP").
- PPP installed skid-resistant adhesive strips on the step after Gold’s fall (subsequent remedial measure).
- Gold sued PPP for negligence on September 26, 2012. A jury trial was held May 9–12, 2016; jury found PPP not negligent.
- Pretrial motions: PPP moved to exclude evidence of subsequent remedial measures; the court granted the motion in part and barred photos/exhibits showing recent paint/remedial items. Gold moved to preclude PPP’s expert (Dr. Andrew Rentschler); that motion was denied.
- Post-trial, Gold argued she was improperly prohibited from cross-examining PPP’s owner (Jonathan Plesset) and the expert about the subsequent remedial measures and that the expert’s testimony constituted unfair surprise; the trial court denied relief and entered judgment for PPP. Gold appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Whether cross-examination of owner about subsequent remedial measures should be allowed | Gold: Plesset’s dismissive answers opened the door and justified impeachment with evidence of remedial measures | PPP: Evidence of subsequent remedial measures is inadmissible to prove negligence and the trial court properly limited inquiry | Court: Exclusion was not an abuse of discretion; no basis to impeach under Rule 407 rationale |
| 2. Whether expert could be cross-examined about remedial measures because his site visit occurred after changes | Gold: Expert relied in part on a site visit after strips installed, so cross-examination on that basis was appropriate | PPP: Expert’s opinions were based on the July 8, 2011 videotape, not the post-change site visit | Court: No basis for cross-examination on remedial measures; expert relied on the video |
| 3. Whether allowing Dr. Rentschler to testify was unfair surprise | Gold: Expert testimony was a late disclosure and ambushed her on eve of trial | PPP: Expert report was provided a month before trial and included with the pretrial statement as required by rules; Gold sought no continuance or rebuttal expert | Court: No unfair surprise; disclosure complied with procedural rules |
| 4. Whether cumulative errors warranted a new trial | Gold: Aggregate effect of alleged errors prejudiced her right to a fair trial | PPP: Individual rulings were correct, so no cumulative error exists | Court: No merit in individual claims; no cumulative error; new trial denied |
Key Cases Cited
- Stapas v. Giant Eagle, Inc., 153 A.3d 353 (Pa. Super. 2016) (standard of review for evidentiary rulings and abuse of discretion analysis)
- Stumpf v. Nye, 950 A.2d 1032 (Pa. Super. 2008) (discussion of appellate review for evidentiary rulings)
- Smalls v. Pittsburgh-Corning Corp., 843 A.2d 410 (Pa. Super. 2004) (permitting impeachment with subsequent remedial measures where witness testimony directly contradicted later product warnings)
- Duchess v. Langston Corp., 769 A.2d 1131 (Pa. 2001) (explaining policy behind exclusion of evidence of subsequent remedial measures under Rule 407)