J-A03038-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 MITCHELL LAZORKA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : UPMC BEDFORD D/B/A UPMC : No. 1509 WDA 2021 BEDFORD MEMORIAL AND UPMC, : INC. : Appeal from the Judgment Entered December 15, 2021 In the Court of Common Pleas of Bedford County Civil Division at No(s): 2017-00753

BEFORE: BOWES, J., KUNSELMAN, J., and MURRAY, J.

CONCURRING STATEMENT BY BOWES, J.: FILED: April 25, 2024 I join the Majority’s decision to remand this matter for a new trial. I write separately to address the admission of evidence pertaining to Appellant’s chronic use of alcohol and marijuana at his new trial.

It is well-settled that “evidence of a plaintiff’s chronic history of substance abuse, while prejudicial, is probative of his or her life expectancy where permanent personal injury is alleged.” Callahan v. Nat'l R.R. Passenger Corp., 979 A.2d 866, 878 (Pa.Super. 2009) (citations omitted).

However, the court must first determine whether the evidence proffered by the defendant indeed amounts to a history of chronic use. Id. at 878 (affirming the trial court’s conclusion that two isolated instances of drug use did not amount to a history of chronic use). Additionally, if the court determines that the evidence establishes chronic use of something that is not J-A03038-24

commonly considered a health hazard, the trial court may require an expert to present the evidence in order to explain its impact upon the plaintiff’s future damages. Id. at 878-89 (discerning no “abuse of the trial court’s discretion in requiring Amtrak to present its purported evidence of Callahan’s dependence on prescription medications through a medical expert, since an opinion that such constituted substance abuse necessarily required specialized knowledge beyond that of a lay juror” (cleaned up)). Finally, relevant evidence of this kind may nonetheless “be excluded if its probative value is substantially outweighed by danger of unfair prejudice or confusion.” Kraus v. Taylor, 710 A.2d 1142, 1144 (Pa.Super. 1998) (cleaned up).

Thus, before deeming any such evidence admissible at the new trial, I remind the trial court that it must: (1) assess whether UPMC’s evidence sufficiently establishes that Appellant’s use of alcohol or drugs was chronic; (2) determine whether expert testimony is required to explain its impact; and (3) balance the “potential prejudice against [its] probative value[.]” Id.

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