Pennsylvania Superior Court Affirms Granting of New Trial in Zero Award for Pain and Suffering Where Medical Expenses Awarded

In the case of Mazzie v. Lehigh Valley Hospital-Muhlenberg, No. 473 EDA 2020 (Pa. Super. April 16, 2021 Kunselman, J., Nichols, J., and Pellegrini, J.) (Op. by Nichols, J.), the court ruled that a trial court did not abuse its discretion in granting a Plaintiff a new trial limited to damages in her medical malpractice action after finding that the liability issues were fairly determined and were not intertwined with the damages issues.

The case arose out of a medical malpractice action following a laparoscopic surgery to repair multiple hernias. After the surgery, the Plaintiff allegedly suffered septic shock and required additional surgeries and treatment to safe her life.

The appellate court also found that the trial court had correctly granted the Plaintiff a new trial on damages for pain and suffering even though the jury entered a verdict for $0 on the Plaintiff’s non-economic damages claims. The court found that there was significant testimony and evidence to confirm the Plaintiff’s alleged pain and suffering to the point that the Plaintiff almost died following the treatment.

In another notable part of this opinion, the Court reviewed the validity of an expert's opinion where the expert did not use the words "to a reasonable degree of medical certainty" during his or her testimony.  The Court found that, viewing the expert's testimony as a whole, the testimony was sufficiently certain even though the magic words were not used.    

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (May 4, 2021).

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.

Zero Verdict for Pain and Suffering Upheld Even Though Medical Expenses Awarded

In the case of Rabuh v. Hoobrajh, No. 3:17-CV-15 (W.D. Pa. Sept. 19, 2019 Gibson, J.), the court affirmed a verdict in favor of the Plaintiff in which a jury did not enter an award to the Plaintiff for pain and suffering damages even though it awarded medical expenses.

The court in Rabuh confirmed that a jury need not award pain and suffering damages every time it awards medical expenses. Rather, a jury, under Pennsylvania law, is free to reject the Plaintiff’s testimony on pain and suffering as a credibility determination.

The record before the court confirms that there were both credibility problems for the Plaintiff and also that the Plaintiff had a pre-existing condition that was put into evidence.

This decision is also notable in that the court denied an untimely Motion for Delay Damages after applying the ten (10) day deadline for such motions under Pa. R.C.P. 238.

Anyone wishing to review a copy of this 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.

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.

Compromise Verdict Upheld Even Though Parties Stipulated to Amount of Economic Damages

In its recent decision in Kinderman v. Cunningham, No. 1604 EDA 2013, 2015 Pa. Super. 30 (Pa. Super. Feb. 11, 2015 Bowes, Ott, Jenkins, J.J.) (Op. by Bowes, J.)(Ott, J., Dissenting), the Pennsylvania Superior Court ruled that a new trial ordered by the lower court on the issue of damages was improper where the jury’s award of only a fraction of the uncontested economic damages presented at trial likely represented a compromise verdict based upon the substantial conflict over the issue of liability.

This case arose out of a fractured ankle that allegedly resulted from a boating accident.   In its Opinion, the court noted that the issue of liability was hotly contested and witnesses provided conflicting accounts as to how the accident happened and who was at fault.  

At trial, the Plaintiff’s medical bills and lost wages were stipulated to by both parties.  More specifically, the parties agreed that the Plaintiff's medical expenses amounted to $28,541.15 and his wage losses totalled $8,872.50.  As such, going into the trial, the parties had stipulated that the Plaintiff's economic damages claims amounted to a total sum of $37,413.65.

Nevertheless, the jury returned a verdict finding the Plaintiff and the Defendant equally negligent (i.e., 50-50) and awarded damages only in the amount of $10,000.00, which were reduced to $5,000.00 to reflect the Plaintiff’s 50% contributory negligence.  

On appeal, the Plaintiff argued that the jury’s award was arbitrary and contrary to the uncontested evidence of the economic damages presented.  

The defense argued that the jury was permitted to compromise its award of damages in light of the contested issues of liability. 

The Pennsylvania Superior Court recognized that compromise verdicts were permissible under Pennsylvania law.   The appellate court again emphasized that there were contested arguments and conflicting testimony on the liability issues.   It appeared to the Pennsylvania Superior Court that it was likely that the jury reached an impasse and compromised on the verdict to reach an agreement on the question of liability.  Ultimately,  the Superior Court found that the jury’s verdict was sufficiently supported by the record.    

As such, the Pennsylvania Superior Court found that, where a substantial conflict on the issue of liability indicated that the jury reached a compromise verdict, it would have been an abuse of discretion for the trial court to grant a new trial on the issue of damages.   As such, Superior Court ruled that the trial court properly denied a request for a new trial in this regard.


Anyone wishing to review the Majority Opinion of the Superior Court written by Judge Bowes may click this LINK.

The Dissenting Opinion by Judge Ott can be viewed HERE.