Tuesday, February 1, 2011

Judge Terrence Nealon of Lackawanna County Weighs in on Zero Verdict Issue

In his Opinion handed down on January 28, 2011, in the case of Bulger v. Pennsylvania American Water Company, No. 07 CV 236 (Lacka. Co. 2011, Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas weighed in on the somewhat recurring issue of the propriety of a jury entering a zero defense verdicts in negligence cases where both the defense expert and the plaintiff's expert agree that the plaintiff sustained some form of injury.

Some attorneys out there (like myself) may have previously been under the misconception that once a defense IME doctor agrees that the plaintiff has indeed sustained some form of injury, the jury must give some award in favor of the injured party. Not so fast.

By way of background, the Standard Jury Instructions were revised a few years ago to change the causation inquiry on verdict slips to now read whether the defendant's negligence was "a factual cause of the plaintiff's harm" (rather than the factual cause of the "accident" or "fall").

Since that time, in cases where the defense medical expert acknowledges some form of injury, plaintiff's counsel would routinely object to a factual cause inquiry or finding even though the cause of the accident or fall was hotly contested by the defense at trial.

In Bulger, Judge Nealon was faced with this very issue as presented by the plaintiff in in post-trial motions.

In Bulger, Defendant Pennsylvania American Water Company denied that it was liable for the plaintiff's trip and fall event on a residential street. On the liability issues, evidence was offered that not only called the plaintiff's credibility into question but which also showed that the plaintiff had pre-existing medical conditions that left him with blurred vision and even balance issues. It was also established that the plaintiff's incident happened under dark conditions. The Defendant additionally disputed the allegation that it had actual or constructive notice of the the allegedly dangerous condition at issue.

At the conclusion of the presentation of the evidence, the plaintiff's request for a directed verdict on the grounds that the medical experts agreed on an injury or injuries as well as the plaintiff's objections to the verdict slip were all overruled.

The jury went on to enter a defense verdict despite the agreement of the medical experts that the plaintiff sustained some form of injury.

In addressing the plaintiff's post-trial motions, Judge Nealon held that notwithstanding the "harm" wording of the Standard Jury Instructions' causation question, under the current status of Pennsylvania law, the jury was still required decide whether or not the defendant's negligence was the factual cause of the accident/fall as part of its causation analysis and determination. The court ultimately denied the plaintiff's motion for a new trial on this issue.

Judge Nealon's opinion in Bulger provides a nice analysis on the issue and confirms that, where the liability question remains in dispute at trial, the defense can still pursue a defense verdict even where the defense medical expert confirms all or part of the plaintiff's claims of injury.

Anyone desiring a copy of this decision may contact me at dancummins@comcast.net.

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