Thursday, February 10, 2022

Judge Nealon of Lackawanna County Addresses Issues With Zero Verdict For Pain and Suffering Claim

In the case of Fertig v. Horace Mann Ins. Co., No. 16-CV-4801 (C.P. Lacka. Co. Jan. 18, 2022 Nealon, J.), the court granted in part and denied in part a Plaintiff’s Motion for Post-Trial Relief in a case involving an uninsured motorist claim against a carrier.

According to the Opinion, the jury in this UIM benefits trial rendered a verdict awarding the Plaintiff $75,000.00 for future medical expenses but $0 for past and future non-economic damages.

The jury entered this verdict even though the defense medical expert testified that the Plaintiff had unresolved injuries to her head, neck, and knee that were casually related to the accident. The court noted that the jury had been instructed, without objection, that it must award at least some damages for those uncontested injuries in this admitted liability case.  Nevertheless, the jury awarded $0 for pain and suffering.

After the verdict was molded to $0 to reflect the stipulated credit for the tortfeasor’s liability insurance coverage of $100,000.00, the Plaintiff filed a post-trial motion seeking a new trial on the issue of non-economic damages on the grounds that the verdict was against the weight of the uncontroverted medical evidence. The Plaintiff additionally requested an award of delay damages based upon the verdict of $75,000.00, that is, on the amount before the verdict was molded to zero.

The Defendant contended that the Plaintiff waived her right to secure a new trial by failing to object at the time the verdict was announced and by failing to request that the jury be sent back to resume its deliberations to correct a $0 verdict. The Defendant also asserted that the Plaintiff was not entitled to a new trial even if she did preserve her weight of the evidence challenge.

The defense additionally asserted that the Plaintiff cannot recover delay damages on a verdict that was molded to $0.

In addressing whether or not the Plaintiff had waived any arguments against the $0 verdict, the court cited, in part, to the article entitled “Litigating the Zero Verdict,” written by Daniel E. Cummins and Stephen T. Kopko which appeared in the Pennsylvania Lawyer magazine for the proposition that one option a party has in a case involving a $0 verdict is to request the court to send the jury back out to deliberate further in an effort to avoid any post-trial issues that may be created by the entry of that $0 verdict.  However, as noted below, where a claim is made that a verdict was against the weight of the evidence, it is not required that such a request be made for the issue to be preserved.

The court in this case emphasized that the Plaintiff was asserting that the jury’s award was contrary to the weight of the evidence and shocked one’s sense of justice. The court noted that, where a party has asserted a weight of the evidence challenge, an objection filed of record before the jury is discharged is not required in order to preserve the issue for review during post-trial motions.

The court found that, since a verdict must bear some reasonable relation to the harm suffered as demonstrated by the uncontroverted medical evidence, and given that an award of $0 for past and future non-economic damages was found to be so disproportionate to the uncontested medical evidence so as to the defy common sense and logic, the court granted the Plaintiff’s request for a new trial non-economic damages.

On the issue of delay damages, Judge Nealon ruled that, given that delay damages under Rule 238 are to be calculated based upon a molded verdict, and given that the verdict in this case was molded to $0 following the stipulated offset for the liability insurance coverage limit, the Plaintiff was not entitled to any delay damages under Rule 238 and that, as such, this request was denied.

Anyone wishing to review a copy of this decision may click this LINK.

If you wish to read the article entitled “Litigating the Zero Verdict,” written by Daniel E. Cummins and Stephen T. Kopko which appeared in the Pennsylvania Lawyer magazine please click HERE.

Source of image: Photo by TBS 44 on

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