Greenwood Gaming, Aplts. v. Dept. of Rev.

                          [J-18-2023] [MO:Donohue, J.]
                  IN THE SUPREME COURT OF PENNSYLVANIA
                                MIDDLE DISTRICT


GREENWOOD GAMING AND              :             No. 76 MAP 2021
ENTERTAINMENT, INC.; MOUNTAINVIEW :
THOROUGHBRED RACING               :             Appeal from the Order of the
ASSOCIATION, LLC; CHESTER DOWNS   :             Commonwealth Court at No. 571
AND MARINA, L LC; WASHINGTON      :             MD 2018 dated September 8, 2021.
TROTTING ASSOCIATION, LLC; STADIUM:
CASINO LLC; VALLEY FORGE          :             ARGUED: April 19, 2023
CONVENTION CENTER PARTNERS, LP,   :
DOWNS RACING, LP                  :
                                  :
                                  :
           v.                     :
                                  :
                                  :
COMMONWEALTH OF PENNSYLVANIA,     :
DEPARTMENT OF REVENUE; PAT        :
BROWNE, SECRETARY OF THE          :
DEPARTMENT OF REVENUE, IN HIS     :
OFFICIAL CAPACITY                 :
                                  :
                                  :
APPEAL OF: GREENWOOD GAMING AND :
ENTERTAINMENT, INC., MOUNTAINVIEW :
THOROUGHBRED RACING               :
ASSOCIATION, LLC, AND CHESTER     :
DOWNS AND MARINA, LLC             :


                    CONCURRING AND DISSENTING OPINION


JUSTICE MUNDY                                       DECIDED: December 19, 2023

      I join the majority’s holding concerning the standard the Commonwealth Court is

to apply on remand. See Majority Op. at 19-23. I also agree that the Casinos’ present

weight-of-the-evidence claim has been rendered moot. See id. at 24.

      My only reservation is with the majority’s decision not to reach the question of

whether the Commonwealth Court erred in denying the Casinos’ motion to strike portions
of Mr. Lightman’s testimony. Without a ruling on that question, this controversy will be

set up for a possible subsequent appeal on that same issue, which will waste judicial

resources. Also, if this Court eventually holds that the motion to strike should have been

granted, that could lead to a second remand, which would, again, be wasteful of time and

judicial resources. Cf. Parsowith v. Dep’t of Revenue, 

 (Pa. 1999)

(deciding an issue in the interest of judicial economy that could have been decided on

remand). In resolving the question, I would affirm the Commonwealth Court’s denial of

the Casinos’ motion to strike, which in turn would instruct the Commonwealth Court on

remand that it is permitted to consider all of Mr. Lightman’s testimony consistent with its

earlier ruling, discussed below, in which the court sustained in part the Casinos’ objection

to the proffer at trial.

        Mr. Lightman was disclosed as an expert in the design and development of slot-

style games, internet slot games, and iLottery games. While his expert report is not in

the record, the proffer is. In the parties’ joint pretrial statement, Mr. Lightman was listed

as an expert witness for Appellees, who stated that he

        has been involved in the design and development of slot-style casino games
        and internet instant games for nearly 30 years. He holds 4 patents. Mr.
        Lightman may be offered as an expert in the development and design of
        slot-style games, internet slot games and iLottery games. Mr. Lightman
        may testify about the history of the online gaming industry and the online
        Lottery industry; the development of games for both industries; the
        differences between the two industries; and the customer base for both
        industries. Mr. Lightman’s CV and report are attached.
Joint Pretrial Statement at 23, reprinted in RR. 666a. 1

        Notably, the limitation the Commonwealth Court placed on his trial testimony was

consistent with the above. When the Department proffered Mr. Lightman at trial as an


1 See also N.T. Trial, at 416, reprinted in RR. 531a; Amended Joint Pretrial Statement at

23, reprinted in RR. 831a.


                             [J-18-2023] [MO: Donohue, J.] - 2
expert witness, it asked him if he had already been qualified as an expert in the

development and design of slot games, internet slot games, and lottery products. See

N.T. Trial, at 912, reprinted in RR. 1901a. The Casinos objected and the court sustained

the objection in part, ruling Mr. Lightman would be “bound by how he was disclosed.” Id.

at 916, reprinted in RR. 1906a. The court then took a brief recess to review the transcript

of the preliminary injunction hearing and the parties’ joint pretrial statement, both of which

contained information about Mr. Lightman’s expertise.

       After the recess, the court clarified that Mr. Lightman would be qualified to testify

concerning traditional lottery products to the extent knowledge of those products was

germane to the design and development of iLottery games and was relevant to the history

of the online lottery industry, as well as the differences between the online gaming

industry and the online lottery industry and their customer bases. See id. at 924, reprinted

in RR. 1914a. Thereafter, Mr. Lightman testified concerning his experience with slot

machine games and iLottery games, the design and development of such games, and

how iLottery games have innovated based on traditional lottery games and have

incorporated some of their features. He also gave his opinion concerning the sine qua

non of slot machines and what it means to simulate casino-style slots. At the conclusion

of Mr. Lightman’s testimony, the Casinos moved to strike his testimony on the grounds it

exceeded his qualifications as an expert, and furthermore, his description of what

constitutes the essence of a slot machine could not be found in any statute, regulation,

or published industry standard, but comprised his own opinion based solely on his

experience in the industry. See id. at 1072-75, reprinted in RR. 2062a-65a.

       The court deferred ruling on the motion pending post-trial briefs. See id. at 1075,

reprinted in RR. 2065a; see also Majority Op. at 9 & n.9. In their post-trial brief, the

Casinos argued Mr. Lightman should not have been allowed to testify concerning the




                             [J-18-2023] [MO: Donohue, J.] - 3
design of lottery products distinct from iLottery products, and that his testimony should

have been subject to a Frye hearing as a condition of admissibility inasmuch as he relied

on his own definition of the essence of a slot machine which, the Casinos claimed, was

his own “fanciful creation” based solely on his subjective experience. 2

       In denying the motion to strike, the Commonwealth Court observed that trial courts

retain discretion to admit or exclude expert testimony, which must be supported by

reference to some scientific authority, whether facts, empirical studies, or the expert’s

own research. Referring to Rule of Evidence 702 and judicial decisions interpreting it, the

court expressed that an expert who has specialized knowledge, skill, experience, training,

or education may testify in the form of an opinion or otherwise if the expert’s knowledge

surpasses that of the average layperson and will help the trier of fact understand other

evidence in the case or determine a fact in issue, and if the methodology used is generally

accepted in the relevant field. The court continued that the absence of a treatise or study

directly on point goes to the weight of the testimony, not its admissibility. Further, the

court stated, an expert’s opinion may be based on the expert’s years of experience in the

relevant field.

       Reviewing the trial transcript, the court found that Mr. Lightman’s testimony did not

exceed the scope of the court’s limiting instruction as recited above – namely, that he

could testify concerning traditional lottery products to the extent such testimony related to

the development of iLottery games and to the history of the online lottery industry, as well

as the differences between the online gaming industry and the online lottery industry and

their customer bases:



2 See Frye v. United States, 

 (D.C. Cir. 1923) (holding that novel scientific

evidence based on a particular scientific technique is only admissible if the technique has
gained general acceptance in the relevant scientific community).


                            [J-18-2023] [MO: Donohue, J.] - 4
      In designing iLottery games, Mr. Lightman explained he: “helped lotteries
      innovate [] their traditional products, to expand them into new technologies”;
      in that process, he became familiar and worked with those lottery products;
      and that the iLottery games he designed incorporated concepts from
      traditional lottery instant games.
Greenwood Gaming & Entm’t v. Commonwealth, No. 571 M.D. 2018, slip op. at 7 (Pa.

Cmwlth. May 25, 2021) (quoting N.T. Trial, at 927, 929, 939-40) (alteration in original).

On this basis, the court concluded Mr. Lightman’s testimony regarding traditional lottery

products was sufficiently linked to his development of iLottery games and online lottery

products to have complied with the court’s earlier ruling which sustained in part the

Casinos’ objection at the time Mr. Lightman took the witness stand, and which clarified

the scope of the permissible testimony after the court’s in camera review.

      The court also rejected the portion of the Casinos’ motion to strike challenging Mr.

Lightman’s conclusion that to simulate a slot machine an online offering would have to

include spinning reels and pay lines. In this respect the court found such testimony

admissible as having been based on Mr. Lightman’s vast experience in designing slot

machines for casinos and online lottery products for lotteries. The court added that such

testimony was no different than that of David Schultz, a gaming industry executive who

was one of the Casinos’ experts. The court also observed that, in any event, its decision

of whether the Department had improperly simulated casino-style slots would be decided

based on the court’s own interpretation of the Gaming Act and the Lottery Law as

amended. See id. at 7-8.

      The Casinos presently renew the arguments they made to the Commonwealth

Court. See Brief for Appellants at 61-70. They characterize the Commonwealth Court’s

statement, made before its in camera review, that Mr. Lightman would be “bound by how

he was disclosed,” as a ruling that subsisted in full, separate and apart from its later

clarification concerning the scope of his permissible testimony. The Casinos conclude




                           [J-18-2023] [MO: Donohue, J.] - 5
Mr. Lightman should not have been permitted to testify about lottery products distinct from

iLottery products. See id. at 64-65.

       Separately, the Casinos repeat their objection to Mr. Lightman’s testimony

regarding slot machines, suggesting it lacked adequate scientific support, and such

testimony should have been subjected to a Frye hearing. Although the Department

disagrees that Frye was implicated and argues the Frye issue is waived regardless as the

Casinos did not raise it until after trial, see Brief for Appellees at 30, 55, the Casinos

dismiss that argument, asserting they objected to the testimony at trial as being based on

Mr. Lightman’s own private definition of a slot machine, and they were not required to use

“magic words” to preserve a Frye-based objection. Reply Brief for Appellants at 28.

       In my view the Commonwealth Court acted within its discretion in overruling the

Casinos’ motion to strike with regard to Mr. Lightman’s testimony relating to traditional

lottery products. It is self-evident that to understand the design of online lottery products

an expert must first have some familiarity with the original products and have the ability

to describe them and explain how the online versions were derived from them. Given trial

courts’ “broad discretion in evidentiary matters,” Bayview Loan Servicing v. Wicker, 

 (Pa. 2019), the Commonwealth Court’s decision not to strike such

testimony should not be disturbed. 3

       The second part of the Casinos’ argument as they present it to this Court primarily

focuses on the alleged need for a Frye hearing. See Brief for Appellants at 66-70. I would

credit the Department’s contention that the issue is waived. The Casinos made a timely

3 Nor is the Casinos’ argument well taken to the extent they suggest the Commonwealth

Court’s statement that Mr. Lightman would be “bound by how he was disclosed” should
be construed as more broadly exclusive than the court’s subsequent clarification after it
had completed its in camera review. The court itself explained that it was the other way
around, i.e., that Mr. Lightman would be generally bound by his disclosure, but he could
still testify consistent with the court’s subsequent explanation. See Greenwood Gaming
& Entm’t, No. 571 M.D. 2018, slip op. at 3.


                            [J-18-2023] [MO: Donohue, J.] - 6
motion to strike at trial upon the conclusion of Mr. Lightman’s testimony, in which they

alleged two specific grounds: that he had exceeded his qualifications as an expert, and

that his slot-machine testimony lacked an adequate foundation. See N.T. Trial, at 1072,

reprinted in RR. 2062a. Neither ground invoked Frye, and it is established that “if the

ground upon which an objection is based is specifically stated, all other reasons for its

exclusion are waived.” Commonwealth v. Arroyo, 

 (Pa. 1999) (internal

quotation marks and citation omitted). The Casinos’ present attempt to avoid waiver on

the basis that it was not required to use “magic words” is unpersuasive. Pennsylvania is

known to be a Frye jurisdiction, and if the Casinos believed a Frye hearing was warranted,

they could have said so at trial when the court was in a position to screen the expert

evidence accordingly. 4

       For the reasons given above, I would affirm the Commonwealth Court’s denial of

the Casinos’ motion to strike. I therefore respectfully dissent from this Court’s present

ruling to the extent it elects not to resolve that issue. I join the ruling in all other respects.




4 Regardless, this portion of the motion pertains to Mr. Lightman’s description of the

supposed two quintessential slots features: spinning reels and pay lines. This Court
presently rejects that description, and the Commonwealth Court on remand will be bound
by our holdings in this regard. It thus seems the gravamen of the Casinos’ objection to
Mr. Lightman’s testimony – that he made use of his own definition of a slot machine
unconnected with any statute, regulation, or industry standard – is now of little moment.


                              [J-18-2023] [MO: Donohue, J.] - 7