The defendants ultimately objected to these statements as violations of their golden rule motion in limine.

On January 6, 2025, the Pennsylvania Superior Court held in Delavern, et al. v. Health Services of Clarion Inc., et al., that defendants in medical malpractice suits must not only object at trial to any allegations of systemic failures in their healthcare systems as violations of the “golden rule,” they must also request a curative instruction or move for a mistrial. In doing so, the court upheld a $7 million medical malpractice verdict in this Clarion County suit claiming that the defendants had failed to timely diagnose a man’s rectal cancer. Given this ruling, healthcare provider defendants should carefully consider strategies for crafting pre-trial motions to prohibit plaintiffs from making such arguments before trial, object to any such statements at trial and either request curative instructions or move for a mistrial before the jury renders a verdict—regardless of how the court rules on their objections.

Background

The “golden rule” prohibits a lawyer from “appeal[ing] to the jury to place itself in the shoes of one of the parties and ask themselves what each would have done under the circumstances of the case.” Millen v. Miller, 308 A.2d 115, 117 (Pa. Super. 1973). These appeals to the jury are directed to a subjective rather than an objective view of the issues in the case. E-Z GO Div. of Textron, Inc. v. Lindsay Golf Grp., Ltd., No. 1814, at *7 n.5 (Pa. Super. Oct. 10, 2018). Statements that violate the golden rule are objectionable “because [they] constitute an appeal to the jury to abandon their position of impartiality and to exercise their discretion in the guise of an interested party.” Id. (quoting Boop v. Baltimore & Ohio R.R. Co., 193 N.E.2d 714, 717 (Ohio App. 1963)). Accordingly, courts have found that asking jurors to put themselves in the defendant’s position is improper and inherently prejudicial—it encourages the jury to decide the case on personal interest and emotion rather than on the evidence. Austin v. Hill, No. 11-2847, at *4 (E.D. Pa. July 7, 2014); see also Waite v. Neal, 918 F.Supp. 133, 134 (E.D. Pa. 1996) (“Remarks which are not supported by the evidence and which [are] designed to appeal to the jury’s prejudice or passion such as the golden rule argument are [] improper.”).   

The Delavern Decision

The plaintiffs in Delavern had asked jurors several times during closing arguments to address failures in the healthcare system in their county. For example, plaintiffs’ counsel had said:

We try cases in the community where they occur for a reason—because it is the jury’s job to decide how people act within the walls of their community. In this case, you have to decide the level of care that you want for Clarion County relative to family medicine.

Opinion at 18.

Counsel then argued: “We have the complete system here in this county that needs to be fixed from the top to the bottom. That’s what we had. And that’s what we need to do.” Id. at 19.

The defendants ultimately objected to these statements as violations of their golden rule motion in limine. The trial court sustained their objection, but the defendants did not request a curative instruction, and none was given. The defendants also failed to move for a mistrial before the jury rendered a verdict. After the verdict, the defendants filed a post-trial motion arguing for a new trial because plaintiffs had repeatedly violated their golden rule motion and the court’s corresponding order. The trial court declined to award the defendants a new trial, and the defendants appealed.

The plaintiffs insisted on appeal that the challenged statements did not violate the golden rule because defense counsel had pointed out in their closing argument that the defendant providers grew up in the Clarion County community and “chose to return to provide medical care for people in the community.” Id. at 22. Therefore, the statements made by plaintiffs’ counsel were simply in response to defense counsel’s assertions. The Pennsylvania Superior Court did not credit that argument, but nonetheless held that the defendant healthcare providers had waived their argument that the plaintiffs had violated the court order granting defendants’ golden rule motion in limine because the defendants had failed to request a curative instruction or move for a mistrial. The court noted that defendants had “opted to sit back and allow [plaintiffs’] counsel to move on with his argument, the court to instruct the jury, and the jury to return its verdict, without suggesting to the court that a curative instruction was necessary or that the remarks caused such prejudice that the trial could not continue.” Id. at 24. The court did not rule on the merits of the defendants’ argument regarding the golden rule violations, though it did comment in a footnote that the challenged remarks “did not squarely constitute ‘golden rule’ arguments.” See id. at 25 n. 8 (“[W]e cannot conclude that the statements plainly, let alone defiantly, violated the court’s order by asking the jury to do unto the [plaintiffs] what they would wish to have done unto themselves if they were in their shoes.”).

Implications

The Delavern decision makes clear that defendants facing these types of arguments must not only object to claimed violations of motions in limine—such as the golden rule arguments regarding claimed systemic failures in the healthcare systems—at trial, but also request a curative instruction and/or move for a mistrial before the jury returns a verdict. While the Superior Court did not reach the merits of whether plaintiff counsel’s statements about these systemic failures violated the golden rule, its comment that the challenged remarks “did not squarely constitute ‘golden rule’ arguments” makes clear that motion in limine arguments must be carefully and persuasively crafted to inform the court of the prejudice and specific commentary to be barred. In addition, defense counsel in medical malpractice cases must be mindful of the evidence they offer to humanize their clients for the jury because that evidence may open the door for admissible allegations of systemic failure, as the Delavern decision suggests. Taking these steps before and during trial will help keep the jury’s focus on the evidence rather than decide a case on personal interest or emotional golden rule-type tactics.

For More Information

If you have any questions about this Alert, please contact Sharon L. Caffrey, Anne A. Gruner, J.J. Larkins, any of the attorneys in our Trial Practice Group or the attorney in the firm with whom you are regularly in contact.

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