In its non-precedential decision in the case of Munoz v. Children’s Hospital of Phila., 1388 EDA 2024 (Pa. Super. May 27, 2025 Stevens, P.J.E., Panella, P.J.E., and Lane, J.) (Op. by Stevens, P.J.E.), the Pennsylvania Superior Court affirmed a trial court’s denial of post-trial motions following a medical malpractice verdict in the amount of over $11.5 million dollars in favor of the Plaintiff.
Of note, the court ruled that a prior waiver of a preservation of an issue cannot be overcome by the trial court later addressing a waived issue in response to post-trial motions.
In this matter, the court ruled that, even though the Defendant hospital had not physically taken over the care of the decedent, who was still at a different facility, the Defendant hospital had funtionally done so by instructing the other facility’s staff on treatment measures. The Superior Court found that this was sufficient to create an assumed duty under the Restatement (Second) of Torts §323.
The weight of the evidence claimed was found to have been waived by the defense by the failure of the defense to specifically identify the challenges to the weight of the evidence in the Defendant’s Rule 1925(b) statement.
The Superior Court additionally noted that, relative to the Plaintiffs’ emotional outbursts during the course of the trial, the Defendant neither asked for a curative instruction or a mistrial. As such, that issue was deemed to have been waived as well.
Lastly, the court on appeal ruled that the $14 million dollar verdict was not excessive under the facts presented.
Anyone wishing to review a copy of this non-precedential decision may click this LINK.
I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.
Commentary: This decision reminds one of the importance of making sure all issues for appeal are preserved on the record.
Issues that one wishes to take up on appeal should be repeatedly preserved during the pre-trial course of the matter and again at trial and again during the post-trial proceedings wherever possible and even if the issues were previously preserved. Repeatedly confirm on the record, at every stage of the matter, that objections are continuing and that issues are being preserved for appeal.
Don't worry about irking the trial court judge with repeated statements of a preservation of an issue for appeal by objection or otherwise. Just keep going to bat for your client.
Keep in mind that trial court judges and appellate court judges will proactively look for opportunities to rule that an issue has been waived as part of their effort to avoid having to address an issue which may, in the end, require a matter to be tried all over again.
An attorney owes it to his or her client, and to herself or himself to avoid any claims of legal malpractice, to repeatedly state on the record at ever stage of the proceeding that you are preserving an objection or an issue for appeal so that there can be no finding by any judge that the issue has been waived.