ARTICLE: Recurring Issues With Verdict Slips Continue to Divide Parties

The following article of mine appeared in the May 14, 2013 edition of the Pennsylvania Law Weekly and is republished here with permission from American Law Media (ALM).

 

Recurring Issues With Verdict Slips Continue to Divide Parties

by

Daniel E. Cummins, Esq.
Pennsylvania Law Weekly
May 14, 2013

 

A common dispute between plaintiffs and defendants at any civil trial is how many lines should be placed on the verdict slip for the jury to put down dollar amounts for awards.

Typically, plaintiffs want as many lines as possible, one for each element of damages, such that a jury could possibly require a calculator to tally up all of the numbers in the end. In contrast, defendants push for a single, catch-all line for damages at the end of the verdict slip with the idea that one line will prevent the dollars from adding up.

Multiple Lines Allowed

The current law on the issue in Pennsylvania state courts appears to opt for a middle ground.
Pennsylvania law generally provides that, with respect to verdict slips, "if special findings would add to a logical and reasonable understanding of the issue, it is within the discretion of the trial judge to grant such a request," as the court held in Krock v. Chroust, 330 Pa.Super. 108, 478 A.2d 1376, 1381 (1984). Generally speaking, itemized damages are recognized and acceptable under Pennsylvania law.

For example, in Catalano v. Bujak, 537 Pa. 155, 642 A.2d 448 (1994), the Pennsylvania Supreme Court affirmed a verdict for the plaintiff in a personal injury matter where there were nine separate categories of damages itemized on the verdict slip. Similarly, in DeVita v. Durst, 167 Pa.Cmwlth. 105, 647 A.2d 636 (1994), the Commonwealth Court affirmed a verdict in favor of the plaintiff in an automobile accident case where the verdict slip itemized 10 separate damage categories.

A Line of Cases

The issue of the permissible number of lines on a verdict slip came to the forefront in the now-overruled case of Carpinet v. Mitchell, 853 A.2d 366 (Pa. Super. 2004). In Carpinet, the Pennsylvania Superior Court found that a jury verdict slip utilized by the trial court judge containing an itemized list of potential damages was impermissible. The relevant jury verdict interrogatory in Carpinet contained six lines, one for each of the following elements of damages caused to plaintiff, Robert J. Carpinet, as a result of an accident:

• For past, present and future pain and suffering.
• For past, present and future loss of the pleasures and enjoyments of life.
• For past, present and future emotional distress and anxiety.
• For past, present and future embarrassment and humiliation.
• For the past, present and future loss of feeling of wellbeing.
• For scarring and disfigurement.

The Superior Court in Carpinet ruled that the jury instructions in that case were prejudicial to the defendant "as the charge and the jury verdict interrogatory flowing from it impermissibly instruct that the catalog of misfortunes are separate compensable elements of damages."

The court additionally noted that the first, third and fifth of the above categories of the jury verdict interrogatory were "clearly duplicative." Also, with respect to the second item above, the Superior Court in Carpinet stated that "the law has not been particularly clear whether loss of life's pleasures is separate from, rather than a component of, pain and suffering."

Significantly, the Superior Court in Carpinet further noted that "it appears that piecemeal awards for various forms of pain and suffering have never been the law of Pennsylvania and we see no authority which would allow juries to break into separate, individual compartments that which has been long considered a single item of damages."

Accordingly, the Carpinet court found that the trial court was in error by inviting the jury to enter six separate awards for pain and suffering types of damages.

The Superior Court said in Carpinet that the better practice is for the trial court to generally charge the jury on pain and suffering and then allow counsel to argue the various components or elements of pain and suffering damages within reason. In the Carpinet case, given the prejudicial nature of the jury verdict form, the Superior Court granted the defendant a new trial limited to damages.

According to the more recent Superior Court decision in Gillingham v. Consol Energy, 51 A.3d 841 (Pa. Super. 2012), the Carpinet decision has since been supplanted by Pa. R.C.P. 223.3, which was adopted August 4, 2004, and went into effect December 1, 2004. That rule governs the conduct of the trial for causes of actions for bodily injury or death and specifically outlines the proper jury instructions for noneconomic loss (i.e., pain and suffering) claims.

The rule provides, in pertinent part, as follows: "In any action for bodily injury or death in which a plaintiff has raised a claim for a damage award for noneconomic loss that is viable under applicable substantive law, the court shall give the following instructions to the jury: The plaintiff has made a claim for a damage award for past and for future noneconomic loss. There are four items that make up a damage award for noneconomic loss, both past and future: (1) pain and suffering;(2) embarrassment and humiliation; (3) loss of ability to enjoy the pleasures of life; and (4) disfigurement."

In the Gillingham case, the Superior Court upheld a verdict slip that contained itemized categories of damages that apparently included separate lines for past and future disfigurement, loss of life's pleasures and embarrassment and humiliation. The opinion is not clear on exactly how many lines were permitted on the verdict slip in this regard.

In so ruling, the Gillingham court relied upon the case of McManamon v. Washko, 906 A.2d 1259 (Pa. Super. 2006), as supporting line items on a verdict sheet consistent with the categories noted in Pa. R.C.P. 223.3.

In McManamon, the Pennsylvania Superior Court had previously upheld a verdict slip that contained the following itemization of potential damages to be decided by a jury:

"State the amount of damages sustained by the plaintiff, Theresa McManamon, as a result of this accident, without regard to and without reduction by the percentage of causal negligence, if any, that you have attributed to the parties."

The verdict slip asked for six items:

• Past medical expenses.
• Future medical expenses.
• Past lost earnings.
• Future lost earning capacity.
• Past, present and future pain and suffering, embarrassment and humiliation and loss of enjoyment of life.
• Disfigurement.

In McManamon, the court therefore upheld the verdict slip, which presented the jury with a single line item for past, present and future pain and suffering, embarrassment and humiliation and loss of enjoyment of life. That court therefore found that there was no improper separation of categories as alleged in the Carpinet case.

Accordingly, the Superior Court in McManamon rejected the defendant's reliance on Carpinet as being misplaced. Furthermore, as noted above, the ruling of Carpinet has since been supplanted by Rule 223.3.

Still Grounds for Disagreement

The above law answers most questions but leaves some room for dispute with respect to the proper framework of civil litigation verdict slips.

A review of the above cases and Rule 223.3 appears to support the allowance of a single line on the verdict slip for the noneconomic damages claims, with all of those types of damages (past, present and future pain and suffering, embarrassment and humiliation and loss of enjoyment of life) being permitted to be noted in that single line item of the damages portion of the verdict slip.

However, others may read Rule 223.3 in conjunction with the most recent Gillingham decision as still supporting an argument that separate lines should be utilized for the elements of past and future disfigurement, loss of life's pleasures and embarrassment and humiliation.

All of the cases and Rule 223.3 can be read in support of the notion that the element of disfigurement is entitled to its own line on a verdict slip.

Arguably, separate lines may be warranted for economic damages claims at issue in a personal injury matter. Whether economic damages claims for wage loss and medical expenses should be set forth in the verdict slip with separate lines for the past and future aspects of those damages remains a common area of dispute.

Although that separation of lines was not denied in the McManamon case, trial courts have a history of allowing this separation of damages on the verdict slip at times and denying it at times.

Overall, it is well settled that the drafting of the verdict slip, and whether to use a single line for damages or allow for an itemized list of damages on that document, remains well within the court's broad discretion. Oftentimes, the court will attempt to have the parties agree to a particular verdict slip on the record in order to avoid any appellate issues in this regard.

The hope of the courts is that the defense's fear of too many lines on the verdict slip versus the plaintiff's fear of ending up with too few lines on the verdict sheet will result in a verdict slip satisfactory to all parties and without any appellate issues preserved on the record.

Of course, with the law still being somewhat in a state of flux in this regard, counsel should remember to place their objection on the record before the jury is excused to its deliberations if this issue is to be preserved to take up on appeal. •


Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Comerford &Cummins. His civil litigation blog, Tort Talk, may be viewed at www.torttalk.com.