Decision Drives Home Importance of Preserving Objections and Issues for Appeal

In its non-precedential decision in the case of Munoz v. Children’s Hospital of Phila., 1388 EDA 2024 (Pa. Super. May 27, 2025 Stevens, P.J.E., Panella, P.J.E., and Lane, J.) (Op. by Stevens, P.J.E.), the Pennsylvania Superior Court affirmed a trial court’s denial of post-trial motions following a medical malpractice verdict in the amount of over $11.5 million dollars in favor of the Plaintiff.

Of note, the court ruled that a prior waiver of a preservation of an issue cannot be overcome by the trial court later addressing a waived issue in response to post-trial motions.

In this matter, the court ruled that, even though the Defendant hospital had not physically taken over the care of the decedent, who was still at a different facility, the Defendant hospital had funtionally done so by instructing the other facility’s staff on treatment measures. The Superior Court found that this was sufficient to create an assumed duty under the Restatement (Second) of Torts §323.

The weight of the evidence claimed was found to have been waived by the defense by the failure of the defense to specifically identify the challenges to the weight of the evidence in the Defendant’s Rule 1925(b) statement.

The Superior Court additionally noted that, relative to the Plaintiffs’ emotional outbursts during the course of the trial, the Defendant neither asked for a curative instruction or a mistrial.  As such, that issue was deemed to have been waived as well.

Lastly, the court on appeal ruled that the $14 million dollar verdict was not excessive under the facts presented.

Anyone wishing to review a copy of this non-precedential decision may click this LINK.

I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Commentary:  This decision reminds one of the importance of making sure all issues for appeal are preserved on the record.  

Issues that one wishes to take up on appeal should be repeatedly preserved during the pre-trial course of the matter and again at trial and again during the post-trial proceedings wherever possible and even if the issues were previously preserved.  Repeatedly confirm on the record, at every stage of the matter, that objections are continuing and that issues are being preserved for appeal.  

Don't worry about irking the trial court judge with repeated statements of a preservation of an issue for appeal by objection or otherwise.  Just keep going to bat for your client.

Keep in mind that trial court judges and appellate court judges will proactively look for opportunities to rule that an issue has been waived as part of their effort to avoid having to address an issue which may, in the end, require a matter to be tried all over again.

An attorney owes it to his or her client, and to herself or himself (in an effort to avoid any claims of legal malpractice), to repeatedly state on the record at every stage of the proceeding that you are preserving an objection or an issue for appeal so that there can be no finding by any judge that the issue has been waived. 

Zero Verdict For Pain and Suffering Sent Back Down For a New Trial

In its non-precedential decision in the case of Banasiak v. Robinson, No. 2041 EDA 2023 (Pa. Super. Feb. 24, 2025 Olson, J., Dubow, J., and Lane, J.) (Op. by Olson, J.), the Superior Court sent a zero verdict case back down the appellate ladder for a new trial.

According to the Opinion, the Plaintiff was run over by the Defendant’s truck and eventually had to have a leg amputated.

At trial, a jury awarded the Plaintiff his medical expenses but award zero for pain and suffering.

The appellate court ruled that the zero award for pain and suffering was against the weight of the evidence. The court also found that the zero award to the Plaintiff’s wife for loss of consortium was likewise against the weight of the evidence.

Here, the court confirmed that the Defendant did not offer any expert evidence contesting the causation of the Plaintiff’s injury. The Superior Court also reiterated the rule of law that a jury cannot disregard an obvious injury.

The court found that there was no reasonable basis for the jury to believe either that the Plaintiff did not suffer pain or that the Plaintiff's pain was not caused by the Defendant’s negligence.

As such, the case was remanded to the trial court for a new trial.

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


I send thanks to Attorney James M. Beck of the Reed Smith office in Philadelphia for bringing this case to my attention.

Link for the Marhunova v. Fitler Constr. Group Case

Here is the LINK  for the case of Marhunova v. Fitler Constr. Group, May Term, 2022, No. 01520 (C.P. Phila. Co. Dec. 24, 2024 Foglietta, J.), which was highlighted in yesterday's Tort Talk blog post.  In this case, the trial court rejected a challenge by a Defendant to a $68.5 million dollar verdict in a case involving a construction site accident that resulted in the death of the Plaintiff construction worker.

Apologies for any confusion or consternation caused by the Link not being included in yesterday's post.

Thanks for reading Tort Talk.

Multi-Million Dollar Jury Verdict Upheld By Philadelphia Court

In the case of Marhunova v. Fitler Constr. Group, May Term, 2022, No. 01520 (C.P. Phila. Co. Dec. 24, 2024 Foglietta, J.), the trial court rejected a challenge by a Defendant to a $68.5 million dollar verdict in a case involving a construction site accident that resulted in the death of the Plaintiff construction worker.

According to the Opinion, the Plaintiff's decedent fell from the fifth floor of a building to his death.  Among the claims presented was that the Plaintiff's decedent was not presented with fall protection equipment.

In reviewing post-trial motions, the trial court judge wrote in his Rule 1925 Opinion that the Plaintiff had presented sufficient evidence to support the jury's verdict.  The court noted that the Plaintiff had presented sufficient evidence to enable the jury to make a determination as to who the alleged general contractor on the job was and who, therefore, was responsible for the provision of safety equipment on the site. 

In response to the challenges to the amount of the award, the court otherwise held that there was no evidence that the jury's award resulted from bias, impartiality, prejudice or ill will.  The court instead found that the verdict was supported by the evidence presented and that the verdict was not grossly excessive under the circumstances and, therefore, did not shock the court's conscience.

Anyone wishing to review this decision may click this LINK.

Source:  Article - "Phila. Judge Upholds $68.5M Verdict Over Construction Worker's Death" by Aleeza Furman of The Legal Intelligencer (Dec. 27, 2024).

Source of above image:  Photo by Sylvia Brazzoduro on www.unsplash.com.

Defense Verdict Upheld Where Evidence Was Disputed On Whether Plaintiff Was Injured At All

In the non-precedential decision by the Pennsylvania Superior Court in the case of Smith v. Nguyen, No. 1312 EDA 2022 (Pa. Super. March 28, 2023 Panella, J., Bender, P.J.E., and Sullivan, J.) (Op. by Sullivan, J.), the court affirmed a trial court’s denial of a Plaintiff’s post-trial motions seeking a new trial after a jury found that a Defendant driver did not cause injury to a Plaintiff in a motor vehicle accident case.

After reviewing the record before it, the appellate court found that the trial court did not err by failing to grant a new trial under an argument that the jury’s finding of no causation of any harm was against the weight of the evidence.

In so ruling, the Superior Cour noted that the jury’s finding of no liability on causation for the Plaintiff’s injuries confirmed that the jury had rejected the Plaintiff’s expert witness’ testimony.

The court noted that the Plaintiff’s experts and the Defendant’s experts disputed one another on the issue of causation.  

The court also noted that the fact that the defense radiologist expert did not dispute the Plaintiff’s “subjective” reports of pain resulting from the collision did not constitute an agreement by the defense expert that the collision caused injury.

The court otherwise found that the jury’s decision that the Defendant’s negligence did not cause harm to the Plaintiff could properly have been based upon the evidence that the collision occurred at a relatively low speed, that the Plaintiff had pre-existing similar problems and degenerative conditions and/or that the Plaintiff did not complain of neck pain until four (4) years after the collision.

Overall, the court found that the Plaintiff did not show that the trial court abused its discretion in finding that the jury’s verdict did not shock the judicial conscience given that the post-trial claim was found to lack merit, the trial court’s denial of the same was affirmed on appeal.

This decision is also notable for the court’s ruling that a party is not entitled to adverse inference related to the failure of an opposing party to call a witness at trial where that witness was equally available to each party to be called as a witness.

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


I send thanks to Attorney Paul Gambone of the King of Prussia office of the Forry Ullman law firm for bringing this decision to my attention.

New Trial Granted After Jury Awarded Zero Damages

In the case of Giko v. Calgiano, No. 1262 EDA 2022 (Pa. Super. March 29, 2023 Lazarus, J., Nichols, J., and McCaffery, J.) (Op. by Lazarus, J.) [non-precedential], the Pennsylvania Superior Court concluded that a jury’s award of $0 damages was against the weight of the evidence and, as such, the appellate court remanded the case for a new trial limited to damages.

According to the Opinion, this case arose out of a rear-end motor vehicle accident.

At trial, the jury found that the Plaintiff had sustained injuries in the accident and that the Defendant was 75% liable. However, the jury awarded $0 in damages.

According to the Opinion, the Plaintiff declined treatment at the scene and proceeded to work. Later that day, however, the Plaintiff’s supervisor suggested that the Plaintiff leave work early and get treatment for complaints of neck and back pain.

The Plaintiff reported to an Urgent Care Center and was prescribed medication and advised to use ice and heat. Shortly thereafter, the Plaintiff began a course of physical therapy.

The Plaintiff also eventually underwent bilateral sacroiliac joint injections. She additionally had EMG and MRI testing for complaints of neck and back pain. The Plaintiff’s overall medical bills were noted to be in excess of $26,000.00.

Based upon the evidence in the record, the Superior Courtfound that the jury’s finding that the Plaintiff’s harm was not compensable was against the weight of the evidence. The court held that the award of $0 damages bore no reasonable relationship to the alleged losses suffered.

While the court recognized that not every injury results in compensable pain and that a jury may decline an award of compensation for pain and suffering if the jury determines that the discomfort suffered by the Plaintiff was the sort of “transient rub of life” for which compensation is not warranted, here, the court found that the record confirmed that the Plaintiff had indeed sustained pain and suffering and that the general proposition that victims of accidents must be compensated for all that they suffer from the tort of another warranted the granting of a new trial.

Accordingly, the Superior Court found that the jury’s award of $0 damages was against the weight of the evidence. As such, the court reversed the trial court’s decision and remanded the case for a new trial limited to damages only.

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


I send thanks to Attorney Dale G. Larrimore of the Philadelphia law firm of Larrimore & Farnish, LLP, for bringing this case to my attention.

Court Addresses Admissibility of Photographs at Trial

In the case of Saahir v. Albert Einstein Med. Center, December Term 2017, No. 03298, (C.P. Phila. Co. Aug. 25, 2022 Foglietta J.), the court found that photographs documenting a decedent’s painful injuries while the decedent was in the hospital were relevant to the Plaintiff’s wrongful death and survival claims. The court, in this Rule 1925 Opinion, recommended affirmance of its ruling in favor of the admission of the photographs at trial.

In its Opinion, the court noted that the Defendant’s argument regarding a discrepancy in the date of the photos went to the weight of such evidence and not the admissibility of the evidence.

The court in its Opinion provides a nice summary of the law of admissibility at trial in this regard, including with respect to whether the prejudicial effect of the evidence outweighs any probative value of the evidence.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 29, 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 www.unsplash.com.

Post-Trial Motions Denied in Zero Verdict Personal Injury Case

In the case of Kim v. Weishaupt, No. 2018-C-1698 (C.P. Lehigh Co. Jan. 11, 2021 Johnston, J.), the court denied a Plaintiff’s post-trial motions after a defense verdict in a rear-end motor vehicle accident litigation.

According to the Opinion, at trial, the Defendant stipulated to negligence but denied causing the injuries and damages alleged by the Plaintiff. The jury returned a verdict in favor of the Defendant.

The Plaintiff filed post-trial motions asserting that he was entitled to either a new trial or judgment notwithstanding the verdict. The Plaintiff claimed that the weight of the evidence overwhelmingly established that the Defendant’s negligence caused the Plaintiff’s injuries.

After reviewing the applicable standard of review, the court noted that, a jury was entitled to believe some, all, or none of the evidence presented. The court additionally noted that, if the jury did not believe the expert testimony presented at trial, it was free to disregard such testimony. The court noted that “[f]or example, the experts base their opinions, in part, on subjective information provided by Plaintiff and, if the jury does not find Plaintiff credible, the jury is free to disregard the expert testimony.” See Op. at p. 3.

The court also noted that a jury was not obligated to resolve the question of causation in the Plaintiff’s favor simply because a Defendant had stipulated to liability. 

The court reviewed the evidence presented and stated that the jury’s decision had a reasonable relationship to the evidence presented and did not shock the judicial conscience. 

 The court otherwise noted that there was contradictory evidence regarding the existence and the cause of the Plaintiff’s injuries, which also served to support the jury's verdict.

As noted, the Plaintiff’s post-trial motions were denied.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Aug. 24, 2021).

Source of image:  Photo by Bernard Hermant on Unsplash.com.

Post-Trial Motions Denied in Lackawanna County Fatal Boating Accident Case

 
In the case of Loomis v. Bomba, No. 18-CV-930 (C.P. Lacka. Co. March 12, 2021 Nealon, J.), the court addressed a number of post-trial motions filed by a Plaintiff after a defense verdict was entered in a boating fatality litigation.

In the end, after review of the record before it, the court noted that, as the ultimate triers of fact and the judges of credibility, the jury was free to accept or reject the witnesses presented.  The jury’s verdict was found to be not so contrary to the evidence as to shock one’s sense of justice.

With regards to the Plaintiff’s objection that the investigating State Trooper allegedly violated the hearsay rule by referring to a statement that he obtained from a non-testifying witness, the court found that the Trooper’s reference to this statement was permitted to explain his course of conduct in the investigation, rather than any admission of hearsay statement for the truth of the matter asserted. The judge additionally emphasized that he had provided the jury with a cautionary instruction advising the jury that the statement could only be considered for the limited purpose for which it was admitted.

Judge Nealon also rejected any contention by the Plaintiff that his jury instructions were deficient in the court’s failure to charge the jury based upon certain information from a handbook published by the Pennsylvania Fish and Boat Commission. The court noted that the jury was provided by appropriate instructions regarding a boat operator’s duties of care under the Fish and Boat Code as well as under the regulations promulgated by the Fish and Boat Commission. Judge Nealon otherwise noted that the jury instruction charged, as a whole, was not inadequate, unclear, misleading, or confusion. He also noted that the instructions did not omit any basic or fundamental principals of law.

Anyone wishing to review this Opinion may click this LINK.

Pennsylvania Superior Court Provides Guidance to Trial Courts on What To Do (And What Not To Do) if Jury Returns a Zero Verdict

In the case of Avery v. Cercone, 2019 Pa. Super. 366 (Pa. Super. Dec. 23, 2019 Kunselman, J., Bender, J., and Musmanno, J.) (Op. by Kunselman, J.), the court reversed in part and vacated in part the lower court’s decision on the Plaintiff’s post-trial motions in a case in which the jury awarded damages for economic damages but zero dollars for the Plaintiff’s pain and suffering claim. 

The court reaffirmed the rule of law that a jury is always free to award zero dollars on a pain and suffering claim. However the court noted that, in some instances, such a verdict can be against the weight of the evidence, particular where the injury is not contested by the defense. 

The appellate court noted that the trial court erred by providing an additional jury instruction suggesting that the weight of the evidence did not support the jury’s initial verdict. Providing the jury with such an instruction invades the province of the jury. 

The Superior Court held that the trial court should have let the verdict stand and left it to the Plaintiff to file post-trial motions to challenge the verdict as being against the weight of the evidence. 

 As such, the revised verdict was found to be in error and was vacated. The case was remanded back to the trial court to determine whether the verdict was indeed against the weight of the evidence under the “shocks the judicial conscience” standard. 

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

Jury Comes Back with $20,000 Verdict After First Handing Down Zero Verdict

Here is a case that highlights the uncertainty associated with sending a jury back out to deliberate further after they have entered a zero ($0) in an admitted liability case.

In the case of Vella v. Hopkins, No. 16-S-1314 (C.P. Adams Co. Aug. 12, 2019 Campbell, J.), the court denied a Plaintiff’s Motion for a New Trial after finding that the jury did not ignore the court’s jury instructions and that the verdict was not against the weight of the evidence.

This matter arose out of a motor vehicle accident. At trial, the Defendant admitted liability such that the only issue at trial was on damages. The court also noted that, although medical experts for both the Plaintiff and the Defendant agreed that the Plaintiff had sustained some level of injury, the experts disagreed on the extent of injury.

The jury initially returned a verdict of zero ($0) for all damages alleged.

The court ordered the jury to return to its deliberations because the parties had stipulated that the Defendant was at fault for causing the accident and, in the eyes of the court, the jury had to award at least some damages.

After a further short deliberation, the jury returned with a verdict in favor of the Plaintiff for Twenty Thousand Dollars ($20,000.00). The verdict included damages for past, present, and future pain and suffering but did not provide any award for loss of earning capacity or disfigurement.

In a post-trial motion, the Plaintiff sought a new trial on damages under an argument that the jury had ignored the court’s instructions and that the final verdict was so low that it was against the weight of the evidence. The Plaintiff argued, in part, that the jury did not carefully consider damages the second time around during deliberations because it spent no more than fifteen (15) minutes before returning with its $20,000.00 verdict.

The court held that the length of time that the jury spent deliberating did not serve to nullify the award. The trial court also noted that it had polled the jurors after they returned from their final deliberations and that the required number of jurors were in agreement regarding the amount of damages.

The court otherwise found that the verdict did not shock one’s sense of justice and, therefore, the Plaintiffs claim that it was entitled to a new trial based upon the weight of the evidence was rejected. The court found that the verdict had a reasonable relationship to the evidence presented, particularly where the experts differed on the extent of injury.

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


To review an article on the law of litigating a zero verdict, please click HERE.

ARTICLE: "Litigating the Zero Verdict" by Daniel E. Cummins and Stephen T. Kopko

Here is a LINK to the Pennsylvania Lawyer magazine article written by Daniel E. Cummins and Stephen T. Kopko both of the Scranton insurance defense firm of Foley, Comerford & Cummins entitled "Litigating the Zero Verdict."

The article provides an overview of the propriety or impropriety of zero verdicts by juries under different circumstances in personal injury matters.  The article also reviews the variety of arguments that can be raised by both sides in support of either affirming or overturning such a verdict based upon the facts of the case.

We thank Patricia Graybill, the editor of the Pennsylvania Lawyer magazine for selecting this article for publication.

To review additional zero verdict cases here on Tort Talk, please click HERE.

Federal Judge Rules That Expert Testimony is Required to Assert That Smoking Impacts Life Expectancy

A number of notable civil litigation issues were reviewed by Chief District Judge Mark R. Hornak of the United States District Court for the Western District of Pennsylvania in the case of Kirkpatrick v. Geico, No. 2:17-cv-00236 (W.D. Pa. Jan. 8, 2019).  

According to the Opinion, this matter arose out of a motor vehicle accident after which the Plaintiff sued Geico on a UIM claim. The case proceeded to trial and the jury entered the verdict in favor of the Plaintiff.  After the trial, Geico filed a Motion for Relief from a Judgment or, Alternatively, for a New Trial.  In the end, the court denied that motion.  

The carrier raised several issues in its post-trial motion.  One of the issues raised was an argument that the Plaintiffs’ substantial award for past and future earnings was not supported by the evidence. 

According to the Opinion the Plaintiff presented an expert in support of the claims as well as provided his own testimony regarding his work in his car restoration business, as well as the testimony of his wife who managed the finances for that business.  

Geico asserted that the evidence revealed that the Plaintiff admitted that he had not yet finished or sold any cars in that business by the time of the subject accident such that any award by the jury was not based upon reliable evidence and should therefore be overturned.

The carrier argued that the lack of any profits in the business prior to the accident foreclosed any finding by the jury that the accident diminished the Plaintiff’s future earning capacity.  

The court rejected this argument by indicating that the earnings of a Plaintiff subsequent to an injury, as compared with his or her earnings at the time of the injury, are merely evidence, and not conclusive evidence, as to whether the Plaintiff’s earning capacity as been diminished by the accident.  

In his Opinion, Western District Federal Court Judge Hornak emphasized that damages for loss of earning capacity arise out of an impairment of that capacity, and not out of loss of earnings.   The court emphasized that the determination of whether there was a loss of earning capacity requires the jury to ask whether there was a loss of earning power, and of the ability to earn money.  

Stated otherwise, the question is whether the economic horizons of the injured party have been shortened because of the injuries resulting from the accident.    The court emphasized that the evidence presented at trial indicated that to his injuries, the Plaintiff was unable to work in the same capacity as he had prior to the accident.  

More specifically, the Plaintiff asserted that his ability to perform his work at the same pace that he performed prior to the accident was reduced by half due to his injuries.  He additionally testified that his inability to work to the same capacity as he did prior to the accident caused him to have less money in the business which prevented him from buying additional cars to restore.  

Overall, the court found that the jury had sufficient evidence from which to conclude that the Plaintiff’s injuries from the accident led to a shorter economic horizon for the Plaintiff’s business.  

On another issue, the Defendant carrier objected to the court’s preclusion of any reference to the Plaintiff’s smoking habit on the grounds that such evidence was unfairly prejudicial.  The Defendant asserted that this ruling was in error because the jury should have been able to consider the Plaintiff’s smoking habits when they contemplated the Plaintiff’s personal habits and other factors in order to determine the Plaintiff’s life expectancy.  Geico argued that it is common knowledge that there is no safe level of smoking such that the jury did not need any medical testimony to properly incorporate that evidence into its deliberations.

The court rejected this argument and ruled that evidence of a smoking habit unaccompanied by any competent medical evidence that such habit reduces a particular individual’s life expectancy has little probative value.   See Op. at 10 [other citations omitted].  The court stated that, although it is common knowledge that smoking has adverse health consequences, “it is far from common knowledge what impacts smoking a pack of cigarettes a week for an unknown period of time would have on [this particular Plaintiff’s] life expectancy.”  Id. 

Given that the UIM carrier Defendant had not presented any expert testimony on this issue of the Plaintiff’s smoking habit, the court found that the risk of both prejudice and confusion from such evidence substantially outweighed any probative value of the evidence found in the Plaintiff’s social history comment with regards to his smoking to his own doctor.   As such, the court felt that it did not err in precluding any reference to the Plaintiff’s smoking habits.  

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

I send thanks to Attorney Scott Cooper of the Harrisburg, Pennsylvania office of Schmidt Kramer for bringing this case to my attention.  

New Trial Granted in Post-Koken UIM Zero Verdict Case

In the Post-Koken case of Singer v. State Farm Mut. Ins. Co., No. 2015-CV-2859 (C.P.  Lacka. Co. Jan. 24, 2019 Gibbons, J.), the court addressed a Plaintiff's post-trial motion for a new trial after the entry of a zero verdict by the jury.

According to the Opinion, the Plaintiff had previously settled with the third party tortfeasor and this matter involved a jury trial on the Plaintiff's claims against the UIM carrier.  The Plaintiff asserted that the jury's verdict of $0 bore no rational relationship to the evidence produced at trial, and defied common sense and was shocking.

The court noted that liability was admitted in this rear end accident matter.  The court also noted that it was uncontested by both the Plaintiff's experts and the Defendant's experts that the Plaintiff had sustained a cervical sprain strain as a result of the accident.  The Plaintiff's experts additionally testified that this type of injury resulted in pain for the Plaintiff.  The Defense expert also agreed that this type of injury ordinarily takes six to twelve months to resolve.

The court reviewed other zero verdict cases and noted that under the law, a cervical sprain/strain injury is a type of objective injury that normally involves pain and suffering.  Without noting any of the other evidence that was presented at trial, the court in Singer concluded that, based on the experts' testimony, the jury had no reason to believe that [the Plaintiff] did not suffer pain.  The court also noted that there was no evidence that the Plaintiff had a pre-existing condition or injury prior to the accident which could have been a cause of his alleged pain.

As such, the court ruled that the jury's decision to disregard what the trial court judge viewed as the uncontested evidence of the Plaintiff's injury and to award zero damages for pain and suffering constituted, in the court's eyes a decision that bore no rational relationship to the evidence produced at trial.  Accordingly, the trial court judge found that the jury's verdict was contrary to the weight of the evidence.

The court therefore set aside the jury's verdict and awarded the Plaintiff a new trial.

Anyone wishing to review this Opinion may click this LINK.

Pennsylvania Superior Court Finds that Defense Verdict in Trip and Fall Case Was Not Against the Weight of the Evidence

In its recent decision in the case of Koziar v. Rayner, 2018 Pa. Super. 331 (Pa. Super. Dec. 7, 2018 Strassburger, Stabile, and Stevens, J.) (Op. by Strassburger, J.), the court reversed a trial court’s decision granting the Plaintiff a new trial under a rationale that the jury’s verdict was against the weight of the evidence in a trip and fall case.  

The Superior court ruled that the jury’s verdict that the Defendant’s negligence was not the cause of the Plaintiff’s alleged injuries should not have been reversed by the trial court as against the weight of the evidence. The Superior Court noted that the Plaintiff gave several different versions of the accident such that the jury could have disbelieved the Plaintiff as to how the accident occurred.  

The Superior Court also noted that the jury could have believed that the Plaintiff was contributorily negligent to the point that recovery was not permitted.  

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

I send thanks to Attorney James M. Beck of the Philadelphia offices of Reed Smith law firm for bringing this case to my attention. 

Request for New Trial Denied Where Defendant Driver Found Negligent But Jury Found Causation Element Not Met in Fatal MVA Case

In the case of Steudler v. Keating, No. 8795 - CV - 2013 (C.P. Monroe Co. March 20, 2018 Williamson, J.), Judge David J. Williamson ruled that Plaintiffs were not entitled to a new trial based upon the jury’s failure to find causation even though it found the Defendant driver negligent in an auto accident case. 

The court ruled in this fashion after finding that it was possible for the jury to determine that the Defendant was negligent but that his negligence was not the factual cause of a fatal accident.  

According to the Opinion, the Plaintiffs, Erika Steudler and Victor Resto, were walking along a road in Monroe County when Resto was struck by a motor vehicle driven by the Defendant.  

The court noted that the accident occurred at night on a country back road with no street lighting.   Neither Plaintiff was carrying a flashlight at the time of the accident.  

Plaintiff Steudler did not see the accident but felt Resto brush against her the darkness when he was thrown in the air.  

Steudler filed a lawsuit against the Defendant seeking emotional damages due to witnessing the accident while Resto’s estate filed a wrongful death claim.

As noted, the matters proceeded to trial where the jury found the Defendant negligent but also found that his actions were not the factual cause of the Plaintiffs’ injuries.  

In the post-trial motions, the Plaintiffs asserted that the verdict was against the weight of the evidence and shocking to one’s sense of justice.   The Plaintiffs argued that, because the jury found that the Defendant was negligent, the jury should have found that he was also the factual cause of their injuries since it was undisputed that Resto died from the accident.  

The court ruled that a verdict is not against the weight of the evidence simply because the evidence at trial was conflicting or that a reasonable fact-finder could have decided the case in favor of either party.  

The trial court distinguished this case from the line of cases which suggest that when a Defendant is found negligent and both parties admit that there was some injury, then the Defendant must be found to have caused at least some portion of the injuries alleged.   Here, the court noted that the most distinguishable factor between that line of cases and this case was the issue of the Plaintiffs’ contributory negligence.   The court noted that, in the line of cases cited the Plaintiffs, the Defendants had admitted negligence and there was no difference in opinion that the Defendants’ negligence had caused those accidents, which cause some personal injury.  

In the Steudler matter, the Defendant never admitted negligence and there were claims of contributory negligence pursued.   The defense argued that the sole cause of the accident was the Plaintiffs’ own acts or omissions.   It was the Defendant’s defense that he operated his vehicle within the posted speed limit, stayed within his lane of travel, and never saw the Plaintiffs prior to the impact.  

The court also noted that the parties presented experts with different opinions on the theory of the cause of the accident in this matter.

In the end, the court found that the jury’s verdict in this matter could have been based upon the jury’s belief that Resto was in the roadway, together with Steudler, and that, if he was not, he may not have been struck and killed. 

As such, the court denied the Plaintiff’s request for a new trial under the case presented.

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

Source:  “Digest of Recent Opinions” Pennsylvania Law Weekly (April 10, 2018).