source: Caselaw Access Project

author: COHEN, G.D., J.,

license: Public Domain

text:
    Czech v. Gordon

      Barry Penn, for plaintiff Czech.

      Andrew Allison for defendants.
    September 27, 2004 —
   COHEN, G.D., J.,

The court has before it the defendants’ motion for summary judgment in this lawsuit in which the plaintiff made claims of “malicious defamation” (Count I of the complaint); “slander per se” (Count IT); “tortious interference with contract” (Count III); “tortious interference with prospective economic relations” (Count IV); and “commercial disparagement” (Count V).

The court will grant the defendants’ motion and dismiss the plaintiff’s complaint with prejudice.

FACTUAL BACKGROUND

The foregoing charges arose from business dealings between the plaintiff and defendants. In 2002, the plaintiff, in addition to his law practice, ran a business called YB Entertainment Group. YB Entertainment Group was devoted to promoting the careers of entertainers. Plaintiff Paul Czech, as the principal in YB Entertainment Group, conducted negotiations with representatives of the defendants, principally defendant Geoffrey Gordon, an employee of Clear Channel Entertainment Inc., for the purpose of placing entertainers in favorable venues. The back story of this lawsuit focused on a group known as the Prophets of the Ghetto. After an initial, successful performance at smaller venues, the Prophets of the Ghetto sought, through YB Entertainment Group, to perform at larger theaters run by the defendants Electric Factory Concerts Inc. and Clear Channel Entertainment Inc., such as the Electric Factory and the Tweeter Center. On or about September 3, 2002, an exchange of e-mails took place between Elisabeth Colbath, a co-owner of YB Entertainment Group, and Geoffrey Gordon, an official of Electric Factory Concerts Inc., which in turn is a subsidiary of Clear Channel Communications Inc. The e-mail exchange between Ms. Colbath and Mr. Gordon concerned whether the group Ms. Colbath’s business represented — Prophets of the Ghetto — could perform on the same show bill as the group Public Enemy, which was to appear at the Electric Factory on September 21, 2002. To capsulizethe e-mail exchange, once Ms. Colbath proposed that the Prophets of the Ghetto appear on the September 21 program, Mr. Gordon inquired how many tickets the group could guarantee. Mr. Gordon suggested a guarantee of 500 tickets at $20 a ticket. Ms. Colbath objected to this presumed condition and wrote Mark Schultz, executive director of the Philadelphia Chapter of the National Academy of Recording Arts and Sciences. In her e-mail to Mr. Schultz, Ms. Colbath cited Mr. Gordon’s expectation that the Prophets of the Ghetto would sell $ 10,000 worth of tickets as “a perfect example of how all EFC [Electric Factory Concerts] does is stagnate local artists.” To this Mr. Schultz responded with an e-mail defending Electric Factory Concerts. The dialogue between Mr. Gordon and Ms. Colbath deteriorated in tone. Ms. Colbath addressed an e-mail to Mr. Gordon that read as follows:

“We are just going to have to find another way to handle this . . . This looks and sounds like anti-trust to me... I am sure our attorney will be interested in this. I think that a jury will not like your business practices ... We know who to go to and will be glad to tell them how independent you think you are in a major corporation. This alone may be excellent grounds for an anti-trust suit.”

Mr. Gordon responded to Ms. Colbath’s message with a note reminding her that she had asked what it would take for the Prophets of the Ghetto to perform in the show. Pie added:

“IF YOU’RE TPIREATENING ME AT LEAST PIAVE TPIE GUTS TO DO IT IN PERSON. LOSE MY NUMBERS AND E-MAIL ADDRESS. YOU ARE UNBELIEVABLY UNPROFESSIONAL AND BECAUSE OF THIS BEPIAVIOR YOU LEAVE ME NO CHOICE BUT TO NEVER EVER DEAL WITH YOU IN MY LIFETIME. GOOD LUCK. I NEVER SAID NO ONE IS OVER ME. AGAIN, I CHALLENGE YOU TO ‘GO OVER MY HEAD. ’ I WROTE THIS IN CAPITALS SO MAYBE THIS TIME YOU WOULD SEE IT. I PIOPE THIS PIELPS....”

(The foregoing e-mails are collected in full as exhibits to the plaintiff’s third amended complaint — see exhibit B to the defendants’ memorandum of law in support of summary judgment.)

At this point, the plaintiff, Paul Czech, got involved in the contretemps. Geoffrey Gordon called YB Entertainment on the telephone to speak with Ms. Colbath. Mr. Gordon explained the ensuing events as follows:

“I remember calling and asking for Lisa [Ms. Colbath] and Paul [plaintiff] picked up. I said is Lisa there, Paul? He said, Can I put you on the speaker? I said, No, please don’t put me on the speaker. I was put on the speaker and I think it was more of — I don’t remember the exact specifics, but it was more of the same tone of threatening lawsuits and so on and so forth----” (See deposition of Geoffrey Scott Gordon, id., exhibit F, p. 161.)

Mr. Gordon denies putting the speakerphone on at his end, but acknowledges that others were within range of his conversation. Mr. Gordon acknowledges becoming “inflamed” (id., p. 165), and, after receiving what he characterized as further threats from Mr. Czech, specifically threats of an anti-trust lawsuit, Mr. Gordon called Mr. Czech a “moron” and “idiot” and “incompetent.” (Id, p. 167.)

The parties essentially agree on the central components of the exchange between Mr. Czech and Mr. Gordon other than in one aspect. The plaintiff claims that Mr. Gordon asked to be put on the speakerphone. The defendants deny that Mr. Gordon elected to be on the speakerphone.

The exchange between Mr. Czech and Mr. Gordon is one hemisphere of the plaintiff’s lawsuit. The plaintiff also bases his claims of tortious interference with contract and commercial disparagement on the alleged contents of a broadcast on radio station WIOQ on March 22 and 23, 2003. This broadcast read in full:

“Are you a new musician or artist trying to get your big break but you can’t seem to get anyone to listen to your stuff? (Phone rings.) Hi, big record label, can I help you? Hi, I’m in a band and I was wondering if you listen (laughing), but we are really good. Yeah kid, that is what they all say. Then, check out the Clear Channel new music network at Q102Philly.com. It is the newest industry hot spot for up and coming artists to get noticed. Whether it is rock, pop, hip-hop or dance. The Clear Channel new music network is your link to the rest of the world and it is free to join. Post a bio and upload your song for others to check out, get reviews or critique others or maybe you are just a fan of new music and wanna hear what is out there. It is the Clear Channel new music network at Q102Philly.com.”

The plaintiff advised the defendants of a witness, one Thomas Keiser, a 19-year-old student at the University of the Arts in Philadelphia and a friend and roommate of plaintiff’s photographer. Mr. Keiser said under oath that he heard the foregoing promotion when it aired on both nights and that the words “YB Entertainment” were substituted for the terms “big record label.” (Defendants’ memorandum of law in support of summary judgment at p. 9.)

Mr. Keiser said that his opinion of Mr. Czech, whom he knew, did not change as a result of hearing the claimed advertisement.

LEGAL STANDARD

Pennsylvania Rule of Civil Procedure 1035 governs summary judgment and it provides, in relevant part:

“After the relevant pleadings are closed but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law.
“(1) Whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or
“(2) If, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.” Pa.R.C.P. 1035.2.

In Ertel v. Patriot-News Co., 544 Pa. 93, 102, 674 A.2d 1038, 1042 (1996), the Supreme Court of Pennsylvania articulated the evidentiary burden a plaintiff must meet in order to defeat a motion for summary judgment in a defamation action as follows:

“We hold that a rion-moving party must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law.”

Pennsylvania law further requires a plaintiff to satisfy the following elements in order to meet his burden of proving the elements of a defamation case:

(1) The defamatory character of the communication;

(2) Its publication by defendant;

(3) Its application to the defendant;

(4) The understanding by the recipient of its defamatory meaning;

(5) The understanding by the recipient of it as intended to be applied to him;

(6) Special harm resulting to him from its publication; and

(7) Abuse of a conditionally privileged occasion. (See 42 Pa.C.S. §8343(a).)

If plaintiff can adduce sufficient evidence on each of the elements, summary judgment may still be entered against him if defendants can establish the following:

(1) The truth of the defamatory communication;

(2) The privileged character of the occasions on which it was published; and

(3) The character of the subject matter of the defamatory comment as of public concern.

DISCUSSION

1. Was It Defamatory to Call Mr. Czech an “Idiot, ” a “Moron, ” and “Incompetent"?

The answer to the foregoing question is no. If the answer to the question were yes, then obeisance to the law would require ordinary individuals engaged in commerce, domestic matters, or casual acquaintances to communicate with antiseptic caution or in monkish silence.

The statute requires this court to determine whether Mr. Gordon’s communication is capable of a defamatory meaning. See Maier v. Maretti, 448 Pa. Super. 276, 671 A.2d 701 (1995). A communication is defamatory if it tends to harm the reputation of another and lower him in the estimation of the community or to deter third persons from associating or dealing with him. Elia v. Erie Insurance Exchange, 430 Pa. Super. 384, 634 A.2d 657 (1993). In deciding whether a statement is capable of a defamatory meaning, this court must view the statement in its context and determine whether the statement was maliciously published and tended to “blacken [the plaintiff’s] reputation or to expose him to public hatred, contempt or ridicule, or to injure him and his business or profession.” Cor abi v. Curtis Publishing Co., 441 Pa. 432, 441, 273 A.2d 899, 904 (1971).

A statement which is an expression of opinion is not defamatory. See Walker v. Grand Central Sanitation Inc., 430 Pa. Super. 236, 243, 634 A.2d 237, 240 (1993), and Baker v. Lafayette College, 350 Pa. Super. 68, 504 A.2d 247 (1986).

All the plaintiff has shown is that his business associate in a fit of pique called him names. In order for these names to be defamatory under the law, they would have to be directly addressed to Mr. Czech’s capacity to carry out his trade or business. For example, had Mr. Gordon approached a judge in the jurisdiction in which Mr. Czech practices as an attorney and expressed an untrue opinion as to Mr. Czech’s ability as a lawyer based upon unfounded facts, that would be defamation. Had Mr. Gordon further approached a local popular music figure and told that person untruths or expressed factually unfounded opinions about Mr. Czech’s conduct or performance as a popular music entrepreneur, that may be defamation. As it was, Mr. Gordon blew his stack and called Mr. Czech names. While other people may have inadvertently overheard Mr. Gordon, this conduct alone is legally undifferentiated from any common outburst of anger directed by one person to another person.

The plaintiff, in order to meet his burden, would have to show that, in expressing his opinion, Mr. Gordon implied “the existence of undisclosed defamatory facts justifying the opinion.” See Baker v. Lafayette College, 350 Pa. Super, at 79, 504 A.2d at 252. A loose fusillade of epithets without more merely falls to the ground like an aimless handful of the proverbial sticks and stones.

This court holds that it need not explore the publication of the allegedly defamatory material because it has held that the statements declaimed were not defamatory. However, the plaintiff appears to make the argument that the statements Mr. Gordon uttered were “slander per se” in that they adversely affected him in his lawful trade or business. See Thomas Merton Center v. Rockwell International Corp., 497 Pa. 460, 442 A.2d 213 (1981), cert. denied, 457 U.S. 1134 (1982); see also, Restatement (Second) of Torts §573. Under Pennsylvania law, a defendant who publishes a statement which can be considered slander per se is liable for the proven actual harm the publication causes. See Walker v. Grand Central Sanitation Inc., 430 Pa. Super. at 250, 634 A.2d at 244. Viewing the record in the light most favorable to the plaintiff as the non-moving party, and without wavering from its holding that the epithetical statements were not defamatory, this court finds as a fact that the plaintiff has failed to prove any causative link between Mr. Gordon’s statements and any damages he may have suffered. Indeed, the plaintiff has placed exhibits in the record showing that, as early as November 14, 2002, he was having difficulty maintaining contractual relations with the Prophets of the Ghetto. (See exhibits W and X to plaintiff’s memorandum of law in opposition to defendants’ motion for summary judgment.)

Notwithstanding the obviously non-defamatory content of the modest imprecations Mr. Gordon hurled at the plaintiff, the plaintiff mightily seeks to show through his proof that these words injured his business. For example, exhibit M to the plaintiff’s response to the defendants’ motion for summary judgment consists of a “Preliminary, initial report and opinion” by one Bernard M. Resnick, Esquire. Mr. Resnick identifies himself in an attached resume as a person active in the entertainment business. (E.g., he has managed the boxer Bernard “The Executioner” Hopkins and several of his clients have won the Bi llboard No. 1 Award, including Big Pun for “Yeeeah, Baby” and Trina for “Da Daddest Bytch.”) Mr. Resnick concludes that since the incident which gave rise to the lawsuit “entertainment attorneys and music industry professionals have refused to sit with or to converse with Mr. Czech at industry events. Entertainment attorneys have revoked their co-counsel arrangements with Mr. Czech’s law firm and also have refrained from referring new legal matters to Mr. Czech’s law firm. Newspapers which used to regularly and favorably mention Mr. Czech (for example, the Philadelphia Daily News) have conspicuously failed to mention him____” Mr. Resnick also highlights in boldface his finding that “Mr. Czech’s law firm earned $119,759 less in 2002 than it did in 2001.”

This court need not further dissect Mr. Resnick’s report and the other proof that the plaintiff offers to show a purported connection between Mr. Gordon’s words and his loss of fortune to illustrate that such proof is at best speculative (Mr. Resnick’s report is phrased entirely in the subjunctive), and, at worst, far-fetched and self-serving. For example, the year 2002 — Mr. Resnick’s lodestar year — was almost three-quarters over by the time Mr. Gordon made his remarks. Other than using exemplary figures in the section of his report entitled “Financial value/loss to plaintiff YB Entertainment Group,” Mr. Resnick does not specifically relate any of Mr. Czech’s earnings from his law firm in prior years directly to his entertainment management activities. Combined with its overall speculative nature and lack of real hard facts, Mr. Resnick’s report veers close to fiction.

Summarizing the court’s disposition of the plaintiff’s defamation claim, this court has held that the statements made by Mr. Gordon are not defamatory in character and therefore not actionable. Further, they do not blacken the plaintiff’s reputation or injure him in his business. See Green v. Mizner, 692 A.2d 169, 172 (Pa. Super. 1997); Baker v. Lafayette College. To paraphrase Pennsylvania law, the statement was not calculated to produce any deleterious effect in the mind of the ordinary person hearing it and would not naturally engender any harm to the plaintiff’s reputation. See also, Wendler v. DePaul, 346 Pa. Super. 479, 482, 499 A.2d 1101, 1103 (1985). The statements Mr. Gordon made clearly were not meant in the literal sense nor based on fact, but were no more than vigorous epithets. See Kryeski v. Schott Glass Technologies Inc., 426 Pa. Super. 105, 626 A.2d 595 (1993); and Parano v. O’Connor, 433 Pa. Super. 570, 641 A.2d 607 (1994).

Accordingly, judgment will be granted to the defendants on plaintiff’s claims of defamation (Count I) and slander per se (Count II).

2. Plaintiff’s Remaining Claims — Did Defendants Do Anything to Interfere With His Current or Prospective Contractual Relations?

A successful cause of action for tortious interference with contractual relations requires the plaintiff to plead and prove: “(1) the existence of a contractual relationship; (2) an intent on the part of the defendant to harm the plaintiff by interfering with that contractual relationship; (3) the absence of a privilege or justification for such interference; and (4) damages resulting from the defendant’s conduct.” See Small v. Juniata College, 452 Pa. Super. 410, 417, 682 A.2d 350, 354 (1996), appeal denied, 547 Pa. 731, 689 A.2d 235 (1997).

Section 767 of the Restatement (Second) of Torts enumerates the factors the court should examine to determine whether the plaintiff has met his proof befitting the allegation of interference with contractual relations:

(a) The nature of actor’s conduct,

(b) The actor’s motive,

(c) The interest of the other with which the actor’s conduct interferes,

(d) The interest sought to be advanced by the actor,

(e) The social interest in protecting the freedom of action of the actor and the contractual interest of the other,

(f) The proximity or remoteness of the actor’s conduct to the interference, and

(g) The relations between the parties.

Applying the foregoing matrix to the facts of this case, the court would immediately stress factor (e), “the social interest in protecting the freedom of action of the actor and the contractual interest of the other.” It seems that, in this context, there is a higher social interest attached to protecting the freedom of Mr. Gordon to say whatever he wants harmlessly on the telephone to Mr. Czech so long as Mr. Gordon’s words do not disturb any contractual relationship Mr. Czech may at that time have had in place. The plaintiff has made utterly no showing that the conversation between himself and Mr. Gordon undermined any of his existing contractual relations. On the contrary, the defendants have proven and the plaintiff has confirmed that the contracts Mr. Czech had and YB Entertainment had with the Prophets of the Ghetto were faltering at the time Mr. Czech and Mr. Gordon spoke.

Furthermore, there is nothing within Mr. Gordon’s remarks specifically directed to any existing contract Mr. Czech may have had with either the Prophets of the Ghetto or any other group or artist. Importantly, Mr. Gordon did not circulate or publish his statements to any third parties who would base contractual judgments upon those words and anything they might imply. The identical reasoning applies to the plaintiff’s claim of tortious interference with prospective contract. As the defendant states in his memoi'andum, it is not sufficient that a plaintiff allege mere hope that a contract will be executed; the plaintiff must establish “a reasonable likelihood or probability that an anticipated business arrangement would have been consummated.” Cloverleaf Development Inc. v. Horizon Financial F.A., 347 Pa. Super. 75, 82, 500 A.2d 163, 167 (1985). There is no evidence in this record that Mr. Czech was engaged in any prospective contract or about to negotiate a contract that would have been or was in any way affected by Mr. Gordon’s expressed sentiments. Nor did anything Mr. Gordon say tend to resemble commercial disparagement in that nothing he said was intended to cause pecuniary loss and no pecuniary loss resulted. While there is little law that defines commercial disparagement, what there is requires more proof of actual loss than the plaintiff has mustered.

3. The WIOQ Commercial

The plaintiff has shown that one individual heard a commercial that may have invoked the name of the plaintiff’s business in an arguably disparaging way. While much ambiguity centers upon the existence of the offending words in the commercial, this court, viewing the evidence in the light most favorable to the plaintiff, holds (1) the offending commercial is not defamatory in its content, and (2) that, even had the commercial been aired, its airing had no effect on the plaintiff’s business.

The commercial as reported by Mr. Keiser — and corroborated by no other witness — strikes this court as the mere invocation by one business party of another business party’s name in a competitive context. This is a quaint and familiar advertising technique, exemplified by certain automobile and beverage concerns who mention their competitors’ names in advertisements. Hence, if Mr. Keiser is to be believed — and there is no reason at this juncture not to believe him — the language he heard was fair competitive comment and not defamatory.

Additionally, the plaintiff cannot show that the aired comment caused damage to its business. The most reliable — if the court can call it that — evidence of the plaintiff’s business loss occurs on page 7 of Mr. Res-nick’s report (see exhibit M to plaintiff’s memorandum of law in opposition to defendants’ motion for summary judgment) and that assessment only takes the reader up to 2002. The claimed commercial was aired in March of 2003. By February of 2003 the plaintiff was in a contractual dispute with the Prophets of the Ghetto. (See id., exhibits W and X.) What is more, the solitary person who heard or claims to have heard the commercial candidly admits that his opinion of Mr. Czech’s reputation did not budge even after hearing the commercial. Thus, the court holds that the WIOQ commercial was not defamatory in any way and caused no damages to the plaintiff under any other count of this complaint and, thus, insofar as the WIOQ commercial relates to any of the other counts, those counts are dismissed pursuant to this court’s order granting summary judgment.

4. Other Defendants

It is the intention of the attached order to grant summary judgment against the plaintiff and on behalf of all defendants to this action. The foregoing reasoning in support of the court’s grant of summary judgment applies not only to Mr. Gordon but all the defendants listed in the caption of the complaint.

CONCLUSION

For the reasons set forth in the foregoing memorandum, this court will grant summary judgment to the defendants on all the counts of the complaint. The plaintiff’s complaint will be dismissed. An appropriate order will issue.

ORDER

And now, September 27,2004, upon consideration of the defendants’ motion for summary judgment, and plaintiff’s response thereto, it is hereby ordered and decreed that said motion is granted. It is further ordered that plaintiff’s complaint is dismissed.

      . See also, Restatement (Second) of Torts §566, specifically comment (c) to section 566 clarifying the distinction between non-actionable pure opinion and potentially actionable mixed opinion.


author: CORBETT, J.,

text:
    Alt v. Franceski

      C.P. of Lackawanna County,
    no. 02-CIV-5474.

      John R. Lenahan Jr., for plaintiffs.

      Kevin M. Conaboy, for defendant.
    September 29, 2004
   CORBETT, J.,

— And now, after consideration of the defendant’s motion for post-trial relief, the plaintiffs’ answer, the briefs of both parties and oral argument, it is the decision of this court that the motion for post-trial relief is denied for the reasons set forth herein:

I. BRIEF FACTS

Trial in this matter began on January 6,2004, and concluded two days later on January 8,2004, with a verdict in favor of the plaintiffs. The jury awarded a total of $154,000, $137,000 to Rosemary Alt and $17,000 to Arthur Alt. The jury awarded damages to Rosemary Alt for pain and suffering in the amount of $6,850 (past), $0 (present) and $27,000 (future). The jury also awarded her damages for emotional distress, past and future, loss of life’s pleasures, past and future, and loss of household services, past and future.

Defendant filed a timely motion for post-trial relief and on May 14,2004, he filed his brief in support thereof. Defendant raises the following nine issues:

(a) whether it was error or abuse of discretion to grant a motion in limine finding injuries sustained by plaintiff were compensable;

(b) whether it was error and abuse of discretion to instruct the jury that it must award some amount of damages;

(c) whether it was error to preclude certain photographs or make their admission contingent upon plaintiffs’ admission of evidence regarding force of impact;

(d) whether it was error to preclude defendant from testifying in his own defense or making it contingent upon plaintiffs’ admission of evidence regarding the force of the impact or mechanism of injury;

(e) whether it was error or abuse to allow plaintiffs’ medical expert to testify;

(f) whether it was error or abuse to allow admission of evidence which depicted an artist’s rendition of the plaintiff’s post-impact spine;

(g) whether it was error and abuse to allow expert testimony on the value of household services;

(h) whether it was error and abuse to allow plaintiff to testify that she never sued anyone before; and

(i) whether it was error and abuse to allow plaintiffs’ counsel to discuss and argue during closing argument an injury sustained by plaintiffs’ counsel.

Oral argument on the plaintiffs’ motion was conducted on July 1,2004. After an attempt at settlement, this matter is now ripe for decision.

II. DISCUSSION

Whether to grant a new trial is within the sound discretion of the trial court. Mano v. Madden, 738 A.2d 493 (Pa. Super. 1999). The appellate court will not disturb the trial court’s decision unless there is a clear abuse of discretion or an error of law. Id. at 495. “An abuse of discretion is not merely an error in judgment; rather it occurs when the law is overridden or misapplied, or when the judgment exercised is manifestly unreasonable or the result of partiality, prejudice, bias or ill will.” Majczyk v. Oesch, 789 A.2d 717, 720 (Pa. Super. 2001), quoting Pilon v. Bally Engineering Structures, 435 Pa. Super. 227, 233, 645 A.2d 282, 285 (1994). (additional cites omitted)

A. Whether It Was Error or Abuse of Discretion To Grant Plaintiffs ’ Motion in Limine Finding Injuries Sustained by Plaintiff Were Compensable

B. Whether It Was Error or Abuse of Discretion To Instruct the Jury That It Must Award Some Amount of Damages

While the defendant admits he conceded he was negligent and that his negligence caused the injury, he argues that he never conceded that his conduct was the cause of the plaintiff’s “complaints at trial.” Defendant recognizes that his medical expert witness diagnosed that plaintiff sustained a “cervical and lumbar strain from the motor vehicle accident.” Defendant points out, however, that his expert’s testimony did not correlate the plaintiff’s complaints of pain to an objective finding. Defendant claims his expert did not testify that the plaintiff suffered any pain that could be attributable to the accident, therefore, a jury is permitted to find that the injury is not compensable even though his negligence did cause some injury.

Defendant argues it was error and an abuse of this court’s discretion to grant plaintiffs’ motion in limine finding that the injuries sustained by the plaintiff were compensable. Defendant argues that by granting the motion in limine, the jury was prohibited from determining if the injury was one which was compensable, or just a “rub of life.”

Defendant maintains it is for a jury to determine if an injury is compensable even when one concedes his negligence caused some injury. Defendant argues that the jury could have found that the plaintiff’s complaints were due to injuries and conditions other than the accident. He claims the jury could have found that the injuries were insignificant as well. Defendant claims that based upon the ruling in Majczyk v. Oesch, 789 A.2d 717 (Pa. Super. 2001), it was inappropriate to instruct the jury that it had to award damages.

Plaintiffs could not disagree more with this argument. They claim that when the defendant’s expert’s evidence shows that the plaintiff was injured in a vehicle accident as a result of the defendant’s negligence, the question of causation is uncontroverted. In such cases, plaintiffs maintain the jury cannot find that the defendant’s negligence was not a substantial factor in bringing about the injury. Plaintiffs claim that under Pennsylvania law if an injury is sustained as a result of defendant’s negligence, damages must be awarded.

In Majczyk v. Oesch, 789 A.2d 717 (Pa. Super. 2001), the court addressed whether it was appropriate for a jury to find in favor of a defendant despite “obvious negligence because it does not believe that plaintiff’s pain and suffering ... are compensable.” Id. at 721. In Majczyk the plaintiff claimed that the defendant’s vehicle bumped the plaintiff’s vehicle after he eased his foot off the brake when a red light changed to green. The defendant’s vehicle drifted forward at less than five miles per hour and struck the rear of the plaintiff’s vehicle. The plaintiff claimed that as a result of the accident, she suffered a herniated disk and was forced to undergo surgery. Plaintiff also claimed she was unable to work, unable to do housework, and could not engage in any activities with her children. The jury found against the plaintiff and for the defendant]

After the verdict, the plaintiff in Majczyk, supra, filed a motion for a new trial claiming, among other things, that the verdict was contrary to the evidence presented. The plaintiff argued that since two of the defendant’s experts “conceded” injury from the accident, awarding no damages was contrary to the evidence. The trial court denied a new trial and the appellate court affirmed.

The appellate court pointed out that the plaintiff in Majczyk was seeking to recover compensation for “her ongoing pain and suffering from a herniated disk, not for a few days or weeks of discomfort.” Majczyk, 789 A.2d at 721. She was seeking recovery for a serious injury and the ongoing pain and suffering from those serious injuries.

The court disagreed with plaintiff’s contention that the defendant’s medical experts conceded her injuries. Id. at 721. One of the defendant’s experts in that case testified that her complaints just days after the accident were different than those reported eight months after the accident. The second expert concluded that the plaintiff’s injuries were not consistent with a disk herniation. Id. at 725. In fact, the second expert testified that “while [plaintiff] had some subjective symptoms in the form of sore muscles after the accident, these symptoms had resolved within three weeks of the accident.” Id. The record showed that the defendant’s expert did not concede the injury and, in fact, at least one of the experts indicated that the plaintiff only suffered from soreness after the accident. Since the defendant’s expert did not concede injury, the Superior Court found no abuse of discretion by the trial court in refusing to grant a new trial.

In several cases after Majczyk, supra, the Superior Court clarified its opinion in that case. In a footnote in Smith v. Putter, 832 A.2d 1094 (Pa. Super. 2003), the court wrote that while a jury can find that a plaintiff’s injury is a mere rub of life, the “jury is not free to find no causation where the defense expert concedes as much.” Id. at 1098 n.l. In Smith, supra, the defense expert conceded that the “aggravation of [the plaintiff’s] hip condition was caused by the accident in question.” Id. at 1099. (emphasis in original) Since both the plaintiff and defendant’s medical experts agreed that the accident “caused some injury, [the court said] the jury was not free to disregard this evidence.” Id.

In Hyang v. Lynde, 820 A.2d 753, 754 (Pa. Super. 2003), the jury found that the “accident was not a substantial contributing factor” to plaintiff’s injuries and the trial court granted a new trial. The appellate court affirmed. It found that the defendant’s medical expert conceded that the plaintiff suffered “neck and back strain from the accident that lasted approximately six weeks.” Id. at 754. The court affirmed the granting of a new trial in order to provide “compensation for [the] neck and back strain.” Id.

In Hyang, supra, the defendant argued that “it was well within the jury’s province to disbelieve ... the plaintiff’s doctors____” Defendant argued that awarding a new trial forces the assumption that the jury would find the plaintiff and her doctors credible. Id. at 755. He also claimed the jury was justified in believing that plaintiff was merely “puffing” her injuries and that her doctors “were just saying what needed to be said . . . .” Id. The court pointed out, however, that the defendant’s own expert conceded the injury. The expert testified that the plaintiff “sprained her neck and back.” Hyang, 820 A.2d at 755. The court said that because the defendant conceded these minor injuries, “the jury must at least award damages for the uncontroverted limited pain from the sprain and strain.” Id. at 756. It granted a new trial to address the issue of damages on these minor injuries.

The decision in Hyang, supra, is supported by the Supreme Court’s ruling in Neison v. Hines, 539 Pa. 516, 653 A.2d 634 (1995). In Neison, the Supreme Court stated:

“[I]t is within the province of the jury to assess the worth of testimony, which it may then accept or reject. We agree that the jury is free to believe all, some or none of the testimony presented by a witness. However, this rule is tempered by the requirement that the verdict must not be a product of passion, prejudice, partiality, or corruption, or must bear some reasonable relation to the loss suffered by the evidenced [sic] as demonstrated by uncontroverted evidence presented at trial. The synthesis of these conflicting rules is that a jury is entitled to reject any and all evidence up until the point at which the verdict is so disproportionate to the uncontested evidence as to defy common sense and logic.” Hyang, 820 A.2d at 756-57, citing Neison, 539 Pa. at 520-21, 653 A.2d at 636-37. (citations omitted)

Importantly, the court in Majczyk, supra, pointed out that the defendant’s experts claimed the plaintiff suffered “subj ective pain.” In Boggavarapu v. Ponist, 518 Pa. 162, 542 A.2d 516 (1988), the Pennsylvania Supreme Court wrote that “there are injures to which human experience teaches there is accompanying pain.” Id. at 167, 542 A.2d at 518. These injuries include among other things, the stretched muscle, twist of the skeletal system, and “all the consequences of any injury traceable by medical science and common experience as sources of pain and suffering,” among other things. Id. These objective injuries cannot be ignored. As the Supreme Court pointed out, subjective pain is only compensable if a jury believes and accepts that it actually exists. Boggavarapu, 518 Pa. at 167, 542 A.2d at 518.

In this case, unlike Majczyk, supra, the plaintiffs suffered injury. The defendant’s medical expert diagnosed the plaintiff as having a “cervical and lumbar strain from the motor vehicle accident.” (See Dr. Allardyce trans., p. 30, 11.4-6.) He admitted that the plaintiff suffered “traumatic injury” in the accident. (Allardyce trans., p. 74, 11. 6-10.) During his closing argument, the defendant’s counsel admitted the plaintiff suffered a “strain and sprain injury” as a result of the accident. (See trans., 6/8/04, p. 8.) The defendant’s expert also agreed that the plaintiff would need “continued treatment.” (See trans. 6/8/04, p. 34.) In fact, the defendant’s counsel specifically stated that the plaintiff “should be fairly compensated for only the injuries that she sustained as a result of the October 15, 2001 accident....” (Trans. 6/8/04, p. 34.)

The court’s ruling in this case was that damages had to be awarded to the plaintiff. This was a proper ruling since both parties admitted plaintiff’s injuries were caused by the accident. Since this was conceded, it would have been an error for the jury to ignore this important point. See Hyang, 820 A.2d at 754 (“Because it was conceded that Mrs. Shin suffered neck and back strain from the accident that lasted approximately six weeks, the jury ignored the uncontroverted medical testimony, and the verdict was against the weight of the evidence.”); Boggavarapu, 518 Pa. at 167, 542 A.2d at 518 (injuries which human experience teaches there is accompanying pain includes “the stretched muscle” and the “twist of the skeletal system,” among other things.) Based upon same, it was proper for this court to rule that the plaintiff’s injuries were compensable and there is nothing in the Superior Court’s ruling in Majczyk, supra, which indicates to the contrary.

The defendant’s claim that the jury could have found plaintiff’s complaints were the result of something else is not correct. As the court has shown, the Superior Court has consistently held that if an injury is caused by the negligence of the defendant and the experts agree, the jury is not “free to disregard this evidence.” Smith v. Putter, 832 A.2d 1094, 1099 (Pa. Super. 2003). The concession by defendant that the plaintiff’s suffered injury, namely a sprained and strained neck and back, requires damages to be awarded for the pain from that injuiy. (See Hyang, supra.) A “stretched muscle” and a “twist of the skeletal system” is the type of injury which has accompanying pain. (See Boggavarapu, supra.) The jury “must at least award damages for the uncontroverted limited pain from the sprain and strain.” Hyang, 820 A.2d at 756.

Moreover, the court finds the defendant’s argument regarding damages to be strained. During closing argument, defendant’s counsel specifically stated that plaintiff “should be fairly compensated” for the injuries she suffered. This was an apparent attempt to compel the jury to award damages only for the sprained and strained neck and back and nothing more. Now, the defendant claims it was error for the court to instruct the jury that damages must be awarded. He cannot have it both ways. The defendant cannot make the argument that some damages must be awarded during his closing argument when it suits his strategy, but then claim it was error because the court instructs the jury regarding same.

The defendant also objects to a portion of the instruction given to the jury which was read as follows:

“Ladies and gentlemen, I have to make it clear, you must find an amount of money damages you believe will fairly and adequately compensate the plaintiff for all the physical injuries she has sustained as a result of the accident.”

First, it is the opinion of this court that this instruction was proper. The defendant conceded he was negligent and that his negligence caused the accident. The defendant’s expert also diagnosed the plaintiff with a “cervical and lumbar strain from the motor vehicle accident” making the question of causation of these injuries uncontroverted. Under the law, the jury was not permitted to disregard this evidence. As indicated, a strained neck and strained back are injuries that are not the type of transient rub of life discussed mBoggavarapu, supra.

Even if that were not the case, the instruction being objected to by the defendant was proper. In Zeigler v. Detweiler, 835 A.2d 764 (Pa. Super. 2003), plaintiff sued defendants for injuries she claimed she suffered as a result of an accident. Plaintiff’s experts testified that the accident aggravated pre-existing injuries. The defendant’s expert did not concede any injury or the aggravation of any existing condition. At trial, the defendants’ experts argued that the plaintiff’s present condition was just the natural advancement of plaintiff’s existing condition.

Even though causation was not conceded, the trial court gave the following jury instruction:

“Now, if you find that the defendants are liable to the plaintiff, you must then make a determination as to the amount of money damages which you believe will fairly and adequately compensate the plaintiff for all physical and all emotional injuries which she has sustained in this case.
“The amount that you would award in such a matter must compensate the plaintiff completely for the damages sustained in the past, as well as any damages that you might find she would sustain into the future, if any.” Zeigler, 835 A.2d at 769-70. (emphasis added)

The Superior Court found this charge to be proper. Id. at 769.

The instruction given in this case was substantial^ similar to that in Zeigler, supra. The objected to instruction was that the jury “must find an amount of money damages [it] believe[s] will fairly and adequately compensate the plaintiff. . . .” The Superior Court already ruled this language was a “proper,” instruction in a case where causation was not conceded, but was in fact vigorously contested. See Zeigler, supra. If this instruction is “proper” in a case where causation was emphatically disputed, it is clearly appropriate in a case where causation was conceded and the defendant’s expert testified that the plaintiff suffered a “cervical and lumbar strain in the accident.” Defendant’s argument that he never conceded that plaintiff’s injuries resulting from the accident were the cause of her complaints of pain at trial does not change the fact that the instruction was proper.

For the reasons set forth herein, it is the decision of this court that the instruction given to the jury and granting the plaintiffs’ motion in limine was proper and defendant’s motion regarding same is denied. >

C. Error and Abuse of Discretion To Preclude Evidence of Photographs of the Damage or Lack of Damage to the Vehicle and That It Was Error To Make the Admission of the Photographs Contingent Upon Plaintiff’s Admission of Evidence Regarding Force of Impact

Defendant next argues that he is entitled to a new trial because this court abused its discretion and misapplied the law when it precluded him from producing “any evidence of the severity of the impact.” This, he claims, was done by precluding photographs of the vehicle and by not allowing the defendant to give testimony. Defendant claims precluding this evidence prejudiced the defendant since it prevented him from “proving that the [plaintiff’s] complaints were not related to this accident.”

“Relevance is a threshold consideration in determining the admissibility of evidence.” Henery v. Shadle, 443 Pa. Super. 331, 340, 661 A.2d 439, 444 (1995). Evidence is relevant if it “tends to establish facts in issue or in some degree advances the inquiry at hand . . . .” Id. at 341, 661 A.2d at 444. It is relevant if something is made “more or less probable.” Id. Trial courts in Pennsylvania “enjoy broad discretion regarding the admissibility of potentially misleading and confusing evidence.” Henery, 443 Pa. Super. at 340, 661 A.2d at 444. Trial courts may “exclude evidence if its probative value is ... outweighed by the danger of unfair prejudice.” Id. For purposes of this evidentiary rule, “prejudice” is defined as “an undue tendency to suggest a decision on an improper basis.” Id.

After the trial court decides that evidence is relevant, it must also “balance the probative value of evidence against any prejudicial effect of that evidence.” Henery, 443 Pa. Super. at 341, 661 A.2d at 444. This balancing is a “particular specialty” of the trial judge. Id. For that reason, rulings of admissibility are committed to the sound discretion of the trial court and will not be overturned in the absence of an abuse of discretion. Id. at 341, 661 A.2d at 444.

The defendant sought to admit photographs of the vehicles. Defendant claims it was common sense that these photographs were admissible since they show no damage to the vehicle and are relevant evidence as to the plaintiff’s alleged injuries. Specifically, defendant claims the photographs of the plaintiffs’ vehicle in this case were “relevant, admissible evidence necessary for the jury’s verdict on damages.”

The photographs were being offered to “indicate that there was no, or minor, damage to the bumper, the rear end vehicle of the plaintiff.” (See trial trans., p. 8.) However, prior to trial the defendant conceded that there was damage to the vehicle that was not depicted in the photographs. (See trans., p. 8.) This damage was to the undercarriage of the vehicle.

At the time of trial and presently, it is the opinion of this court that the photographs are not relevant because they fail to show the actual damage to the plaintiffs’ vehicle. Since the photographs do not show the true damage to the vehicle, it is the opinion of the court that their probative value is outweighed by the unfair prejudice that would result by their admission. The photographs were misleading and, as a result, did not advance inquiry. In fact, by failing to show the undercarriage of the vehicle, the admission of the photographs would have caused confusion because they failed to show the entire picture.

Defendant’s argument that it was error to make the admission of the photographs contingent upon plaintiff’s admission of evidence regarding force of impact is misleading. In fact, the court ruled that the photographs were not admissible. However, if the plaintiff attempted to admit evidence regarding force of the impact to the rear of her vehicle caused her significant injury, the photographs would be allowed. It is the opinion of this court that this ruling was correct and proper since, as aforementioned, the damage to the vehicle was to the undercarriage, not the rear of the vehicle when impact occurred. If the plaintiff tried to claim differently, then the photographs would be relevant.

For the reasons set forth herein, the defendant’s motion as it relates to failure to allow the admission of the photographs is denied.

D. Whether It Was Error To Preclude Defendant From Testifying in His Own Defense and Making It Contingent Upon Plaintiff’s Admission of Evidence Regarding the Force of the Impact or Mechanism of Injury During the Accident in Question

Evidence is relevant if it tends to prove or disprove a material fact in issue. Moroney v. General Motors Corp., 850 A.2d 629 (Pa. Super. 2004). Evidence is relevant if the inference sought to be raised by it bears on the matter at issue and if the evidence renders the desired inference more probable than it would be without the evidence. Farine v. PennDOT, Bureau of Motor Vehicles, 831 A.2d 1266 (Pa. Commw. 2003). A trial court has wide discretion in ruling on the relevancy of evidence and its rulings will not be reversed absent an abuse of discretion. B.K. v. J.K., 823 A.2d 987 (Pa. Super. 2003).

“It is well established that evidence is admissible if [it is] ‘relevant to the fact sought to be proved.’ ” Koletas v. Pezzotta, 1996 WL 1358445 (Pa. Com. PI. 1996), citing Martin v. Soblotney, 502 Pa. 418, 466 A.2d 1022 (1983). “Evidence is relevant if it tends to malee a fact at issue more or less probable.” Id. at 204, citing Martin, 502 Pa. at 422, 466 A.2d at 1024. “Admitting or excluding evidence is within the discretion of the court.” Id. A court may “refuse to admit evidence that might ‘confuse, mislead or prejudice the jury.’” Id. citing Lewis v. Mellor, 259 Pa. Super. 509, 515, 393 A.2d 941, 944 (1978).

Defendant claims, as he did above, that his testimony regarding the force of impact was important in evaluating plaintiff’s injuries and complaints. He claims this evidence was relevant to the jury’s determination of the effect the impact had on Mrs. Alt.

However, as previously stated, the defendant conceded he was negligent. He conceded he was negligent and that his negligence caused plaintiff to suffer injury. Thus, as we have previously shown, the question of causation of injuries is uncontroverted. Since the jury was not permitted to disregard this uncontroverted evidence, the defendant’s testimony related to “force of impact in attributing to plaintiff’s injuries” is not relevant testimony.

This court granted the plaintiff’s motion in limine regarding defendant’s testimony because defendant had no “relevant or admissible testimony to provide on the subject of liability or damages ....” (See trans., p. 5.) The defendant did not examine the plaintiffs’ vehicle, did not speak with Mrs. Alt and apparently did not even know she was in the car. Again, since injury was uncontroverted, defendant’s testimony regarding the force of impact “in attributing a plaintiff’s injuries” is not relevant.

Defendant’s characterization that this court made his testimony contingent upon plaintiff’s admission of evidence by plaintiff regarding the force of impact or mechanism of injury during the accident in question is, if not entirely wrong, certainly misleading. After the court excluded the irrelevant testimony of the defendant, the court properly gave a precautionary instruction that if plaintiff opened the door on this subject, defendant would be allowed to admit evidence regarding same. To the extent the defendant’s argument indicates anything to the contrary, he has misinterpreted this court’s ruling.

For the reasons set forth, defendant’s motion as it relates to preclusion of his testimony is denied.

E. Whether It Was Error or Abuse of Discretion To Allow the Testimony of One of Plaintiffs ’ Medical Experts

Pennsylvania Rule of Civil Procedure 223(1) states:

“Subject to the requirements of due process of law and of the constitutional rights of the parties, the court may make and enforce rules and orders covering any of the following matters, inter alia:
“(1) Limiting the number of witnesses whose testimony is similar or cumulative;....”

It is within the discretion of the trial court to preclude cumulative evidence. Pennsylvania Rule of Evidence 403; Unisys Corp. v. Eritex Information Services Inc., 45 D.&C.4th 405 (2000); see also, Gustison v. Ted Smith Floor Products Inc., 451 Pa. Super. 442, 458, 679 A.2d 1304, 1313 (1996). Evidentiary questions are left to the sound discretion of the trial court, and an appellate court will not disturb the trial court’s rulings on evidentiary questions absent an abuse of that discretion. Morrison v. Commonwealth, Department of Public Welfare, Office of Mental Health, 538 Pa. 122, 646 A.2d 565 (1994); Jones v. Prudential Property and Casualty Insurance Co., 2004 Pa. Super. 284, 2004 WL 1632689 (2004).

Pennsylvania Rule of Evidence 403 states:

“Although relevant, evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

In this case, the defendant claims allowing the testimony of plaintiff’s two doctors amounted to cumulative testimony which was prejudicial to the defendant. He claims the two doctors basically stated the same thing and it was error to allow both to testily. Specifically, he states that Dr. William Prebola “testified extensively on every aspect of Mrs. Alt’s treatment, complaints, future needs for surgery and other treatment; essentially everything contained in Dr. [Michael] D’Ambrosio’s report.” (See defendant’s brief, p. 21.)

Dr. Prebola was the plaintiff’s treating physician. An examination of his testimony shows that he did speak extensively on the injuries the plaintiff suffered and the treatment he provided to her. He did not speak extensively on surgery or the need for surgery. In fact, an examination of his direct testimony shows that he only mentioned surgery on two occasions. The first comes when asked about another doctor’s failure to “perform nor recommend surgery at the time [Dr. Thompson] had seen her.” (See trans., 1/6/04, pp. 85-86.) The next time it is discussed is when he was asked if the plaintiff was a candidate for surgery. (See trans., 1/6/04, p. 157.) Both the questions and answers were very brief.

Dr. D’Ambrosio was accepted as an expert in neurology. After discussion of Dr. D’Ambrosio’s qualifications, plaintiffs began their direct testimony of him by stating:

“Doctor, at the outset I want to let you know, because you don’t know this, that we have had extensive testimony already today about the patient, Mrs. Alt, and her medical background, so I’m going to ask you not to going [sic] into the same type of detail that I would ordinarily ask you to do because it will be repetitive.”

Dr. D’Ambrosio then testified to the pain one would suffer as a result of six herniated discs (see trans., 1/6/ 04, pp. 251-54); his diagnosis of the patient (see trans., 1/6/04, pp. 254-55,260-63); why the plaintiff is a surgical candidate, the particular surgery(ies) she is a candidate for and how those surgical procedures are conducted. (See trans., 1/6/04, pp. 255-60.)

At the time of trial and after reviewing the record, it is the opinion of this court that testimony of the two doctors was not cumulative. The plaintiffs made significant efforts to assure that there was little repetition in the two doctors’ testimony. While there is a certain amount of overlap, it is the opinion of this court that any overlap was necessary to prevent confusion and/or prevent the testimony from being immediately discredited during cross-examination for not indicating his understanding of the plaintiff’s history and treatment. For these reasons, the defendant’s motion for a new trial based upon his claim of cumulative testimony is denied.

F. Whether It Was Error or an Abuse of Discretion To Allow Admission of Artist’s Rendition of Plaintiff’s Post-Impact Spine

“Generally, demonstrative evidence is admissible if its probative value outweighs the likelihood of improperly influencing the jury.” Pascale v. Hechinger Co. of PA, 426 Pa. Super. 426, 437, 627 A.2d 750, 755 (1993) (citations omitted); Jackson v. Spagnola, 349 Pa. Super. 471, 503 A.2d 944 (1986). The conditions ofthe demonstration must be sufficiently close to those involved in the accident to make the probative value outweigh the likely prejudicial effect. Pascale, 426 Pa. Super. at 437, 627 A.2d at 755.

The Pennsylvania Superior Court acknowledged the use of demonstrative evidence, even if not completely accurate, can still be admissible. Jackson, 349 Pa. Super. at 476, 503 A.2d at 946-47, citing to Zurzola v. General Motors Corp., 69 F.R.D. 469 (E.D. Pa. 1975) (Video of a reconstructed accident was proper even though plaintiff complained it was inaccurate and prejudicial since it failed to show all the factors involved.). In Jackson, supra, the video was not used to try to re-create the accident, but instead was used to show how a specific part of the car (i.e., the seats) operated. The court said the use of the video for that limited purpose was not prejudicial.

In this case, defendant objected to the use of two exhibits. The first exhibit was called “Rosemary Alt, pain management epidural injections.” (See trans., 1/6/04, p. 92.) Defendant objected, claiming the exhibit misrepresented the size of the needle used on the plaintiff. He argued that the graph made the needle look much bigger than it was. However, as the plaintiffs properly pointed out, the court had counsel put the needle up to the exhibit to compare the size. In fact, the court was of the opinion that the needle in the exhibit was smaller than the actual needle used on plaintiff.

The second objection was the exhibit labeled “Rosemary Alt post-impact condition of spine.” Defendant claimed this violated the best evidence rule. Defendant had no objection to the actual MRI film which was actually on the exhibit. However, it objected to the “herniations in the disc bulge” which he claimed were misrepresentations of what is depicted in the actual MRI. (See trans., 1/6/04, p. 93.) He claimed some or all of the herniation appeared larger and one of the depictions on the exhibits was inaccurate.

The court does not agree that the graphic made the herniations larger or depicted anything inaccurately. The herniations appeared to be equal size with the MRI which was part of the evidence presented. The court allowed the graphics as long as the proper foimdation was laid that it would assist the medical expert in his testimony. (See trans., 1/6/04, p. 95.) Moreover, like in Johnson, supra, the defendant in this case was aware they would be used, had an opportunity to cross-examine the medical experts on same and had an opportunity to point out any inaccuracies that he believed existed. It is the opinion of this court that the graphics assisted the jury in understanding the arguments being made by both parties. Thus, to the extent that any prejudice existed, the probative value of the exhibits outweighed same. For these reasons, defendant’s motion based upon the allowance of these exhibits is denied.

G. Whether It Was Error and Abuse To Allow Expert Testimony on the Value of Household Services

“In Pennsylvania, the threshold of expertise necessary to qualify a witness to give expert testimony is relatively modest.” Wexler v. Hecht, 847 A.2d 95, 105 (Pa. Super. 2004); see also, Miller v. Brass Rail Tavern Inc., 541 Pa. 474, 480-81, 664 A.2d 525, 528 (1995). “The witness must have sufficient skill, knowledge, or expertise in the field at issue ‘as to make it appear that his opinion or inference will probably aid the trier [of fact] in his search for truth.’ ” Id., 847 A.2d at 105, citing W. Phila. Therapy Ctr. v. Erie Ins. Group, 751 A.2d 1166, 1168 (Pa. Super. 2000). An expert “need only possess ‘more knowledge than is otherwise within the ordinary range of training, knowledge, intelligence or experience’ of the average juror.” Id., 847 A.2d at 106, quoting Miller, 541 Pa. at 481, 664 A.2d at 528. (additional cites omitted)

Pennsylvania courts have allowed and recognized the need for expert testimony for damages related to a party plaintiff’s inability to perform household services in the future. Cotterman v Allstate Insurance Co., 446 Pa. Super. 202, 666 A.2d 695 (1995). Experts can give their opinion of the value of household services. Id. at 213-14, 666 A.2d at 701.

While the defendant maintains the value of household services was within the purview of the jury, he cites no case law which states that an expert cannot testify to household services. Our review of the law on this subject clearly shows that the appellate court has allowed such expert testimony. Even so, it is the opinion of this court that the value of household services is more appropriately determined when viewed by an expert, household services have forever been overlooked and undervalued.

For some time, society has viewed such services as a woman’s work or chores. These titles have come to indicate that this work or service is somehow less important. It is only recently that this work has started to receive the appreciation and understanding that it deserves. That understanding, however, does not necessarily include a value for these services. Generally speaking, only those who have experienced a loss of these services for one reason or another understand the true value of these services.

For this reason, the court disagrees with defendant’s argument that the value of household services is within the understanding of the jury. Quite to the contrary, the court believes that an expert is appropriate and oftentimes necessary to provide the jury with the value for household services. Defendant’s motion based upon the expert testimony on the value of household services is denied for that reason.

H. Whether It Was Error and Abuse To Allow Plaintiff to Testify That She Never Sued Anyone Before

Evidentiary questions are within the sound discretion of the trial court and will not be disturbed absent an abuse of that discretion. Jones v. Prudential Property and Casualty Insurance Co., 2004 Pa. Super. 284, 2004 WL 1632689 (2004). Evidence is relevant if it tends to establish a material fact in the case, tends to make a fact at issue more or less probable, or supports a reasonable inference or presumption regarding the existence of a material fact. Commonwealth v. U.S. Mineral Products Co., 2002 WL 31444326 (Pa. Commw. 2002).

During trial, defendant objected to two questions asked of plaintiff: “[hjave you ever been involved in a lawsuit” and “[hjave you ever sued anyone before?” To both questions defendant objected. (See trans., 1/7/04, p. 44.) The next and final question asked on direct was why she sued in this instance. (See trans., 1/7/04, p. 44.)

At the time of trial, and now, it was the opinion of the court that this testimony was being offered to show that the injuries in this case were so significant that she felt compelled to do something. It allowed a better understanding of the plaintiff’s state of mind. The court did not then, nor now believe that it was being offered to show she was somehow “virtuous.” For this reason, plaintiff’s motion for a new trial based upon the admission of this testimony is denied.

I. Whether It Was Error and Abuse To Allow Plaintiffs ’ Counsel to Discuss and Argue During Closing Argument Regarding an Injury Sustained by Plaintiffs ’ Counsel During a Slip and Fall in New York City

“While counsel usually has great latitude in his closing argument, he may not present facts [at closing which are] not in evidence and which are prejudicial.” Coffey v. Minwax Co. Inc., 764 A.2d 616, 620 (Pa. Super. 2000); Millen v. Miller, 224 Pa. Super. 569, 572, 308 A.2d 115, 117 (1973). At closing, counsel should “advance a spirited argument to support his client’s cause ..." O’Malley v. Continental Insurance Co., 305 Pa. Super. 302, 309, 451 A.2d 542, 546 (1982). This does not mean counsel is allowed to take unwarranted liberties with the evidence or exaggerate accusations. Id. at 309, 451 A.2d at 546. Nevertheless, a new trial is not required where the remarks made by counsel in closing arguments are neither inflammatory nor prejudicial. Mansour v. Linganna, 787 A.2d 443 (Pa. Super. 2001).

In this case, defendant objected to plaintiffs’ counsel’s use of a personal experience during closing based upon facts not in evidence. Specifically, counsel objected to plaintiffs’ counsel’s story about a time when he claims he fell, did not seek immediate treatment and two days later could not even breathe. (See trans., 1/8/04, pp. 51, 52.) The court during trial overruled the objection and defendant now raises the same argument in this motion.

Defendant’s objection to the closing based upon facts not in evidence was overruled because, as defendant points out in his brief, the plaintiff testified that she did not immediately go to the doctor and waited to seek treatment to see if she felt better. There was evidence presented regarding this key issue and counsel’s use of personal experience was done only to introduce the issue during closing. It is the opinion of this court that such discussion is not beyond the bounds of latitude given to counsel during closing argument.

Even if it were beyond the proper bounds of closing argument, allowing same was not inflammatory nor prejudicial. Plaintiffs’ counsel addressed his personal experience only briefly and by no means based his closing on counsel’s personal experience. Instead, he simply mentioned it along with numerous other arguments counsel believed supported the theory that waiting to seek medical attention in this case was meaningless (i.eimmediate symptoms (trans. 1/8/04, p. 50); Alt’s personal experience (trans. 1/8/04, p. 52); significant findings in first MRI reports taken after accident (see trans., 1/8/04, p. 55), among other things). There was nothing inflammatory nor prejudicial about the plaintiffs’ closing argument and defendant’s motion as it relates to same is denied. An appropriate order follows.

ORDER

And now, September 29, 2004, after consideration of the defendant’s motion for post-trial relief, his supporting brief, the plaintiffs’ response and supporting brief, and oral argument, it is hereby ordered and decreed that the motion for post-trial relief is denied for the reasons set forth in the accompanying memorandum.

      . The court certified the case for en banc review to address this issue.

      . It was based upon this testimony that the appellate court ruled that “while the jury may have concluded that appellant suffered some painful inconvenience for a few days or weeks after the accident, it may also have concluded that appellant’s discomfort was the sort of transient rub of life for which compensation is not warranted.” Majczyk, 789 A.2d at 726.

      . This is the type of injury which “common experience” tells us is a “source of pain and suffering.” Boggavarapu, supra.

      . The expert maintained the “continued treatment” was noninvasive and mainly consisted of exercise and stretching.

      . The court’s ruling was merely that damages had to be awarded for the plaintiff’s injuries. The jury could believe the plaintiff’s injuries were merely a minor strain or it could have found them to be a more serious sprain. Either way, it was for the jury to determine the appropriate damages. Neither the court’s ruling or instruction had any impact on the amount of damages the jury could award.

      . Defendant makes the argument that the instruction and the motion in limine prohibited the jury from finding that the injury of the plaintiff was a mere “rub of life” and therefore not compensable. Clearly, since the jury awarded $137,000 in damages in this case to the injured plaintiff, Rosemary Alt, the jury determined the injury was something more than a transient rub of life. Moreover, if defendant’s argument was correct regarding the jury instruction, it seems the jury would have issued damages in each category of pain and suffering on the verdict slip. The jury awarded zero damages for present pain and suffering. It is the opinion of this court that the jury’s award defeats defendant’s argument

      . In the defendant’s closing argument he stated, “your job is to decide what you believe is fair compensation to Mr. and Mrs. Alt for the damages that she sustained as a result of the accident.” The court’s instruction was almost identical.

      . This was originally addressed through motion in limine and then again during trial at the end of plaintiffs’ case.

      . Again, defendant conceded that the photographs did not show the damage to the undercarriage of the vehicle. (See transcript, p. 8.)

      . Defendant claims he objected to this testimony at tidal instead of in motion in limine because he was unaware that Dr. Prebola would provide testimony regarding surgery. He claims Dr. Prebola did not testily about surgery prior to trial. The first time defendant claims he learned Dr. Prebola would offer testimony regarding surgery was during the trial itself. It was only after this testimony was given that defendant claims the cumulative argument arose.

      . It was also briefly addressed three times during cross-examination.

      . It was the opinion of the court at trial, and now, that the best evidence rule is inapplicable since the MRI is part of the evidence and depicted in the graphic itself. Here, the graphic was being offered to allow the jury to better understand what damages they claimed. Plaintiff was not and did not offer the graphic in place of the MRI.

      . The court does not agree that any prejudice resulted from the photographs.

      . In Cotterman, supra at 213, 666 A.2d at 701, the court acknowledged the fact that an “expert testified as to Cotterman’s inability to perform household services” and “opined as to the dollar value of such household services.” Cotterman is cited merely for its acknowledgement that the expert testimony on the value of household services was not deemed improper. While the appellate court was reviewing the decision of the trial court as to an arbitration decision, it clearly acknowledged the use of expert testimony for household services was acceptable.

      . These two questions came at the very end of a lengthy direct examination. (See trans., 1/7/04, pp. 7-44.) The plaintiff gave one word responses to each. Even if this evidence was not relevant to the plaintiff’s state of mind, there is no prejudice to the defendant by allowing same in this instance.