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.

Trial Court Addresses Fair Scope of Expert Report Rule

In the case of Hamari v. Ford, No. Feb. Term, 2021, 210201504 (C.P. Phila. Co. Jan. 18, 2024 Jacquinto, J.), the court addressed the fair scope rule relative to expert testimony at trial as compared to the pre-trial expert report.

According to the Opinion, in this case, the Plaintiff’s medical expert testified at trial with regards to the Plaintiff’s need for a fusion surgery. The defense asserted that such testimony regarding spinal surgery was outside of the Plaintiff’s expert’s pre-trial report and was therefore in violation of the fair scope rule.

The doctor’s pre-trial expert report provided, “I would recommend that the patient see a spine surgery for further evaluation of his neck symptoms and possible pain management.”

During the doctor’s trial deposition, on direct examination, the doctor testified that, “…the main treatment for this would be a spinal fusion, with plates and screws, at 5 different levels.”

On cross-examination, the expert was questioned with regards to the line quoted above from his expert report. In response to that question, the expert stated that, “Well it’s – that may not be stated clearly. It would be pain management and also seeing a spine surgery. When I send someone to a spine surgery, it’s not just for medication. It’s because I think the patient will ultimately require surgical intervention.”

In determining whether or not the expert’s trial testimony was within the fair scope of his pre-trial report, this trial court relied upon guidance from the Pennsylvania Superior Court case of Woodard v. Chatterjee, 827 A.2d 433, 440 (Pa. 2003) and the terms of Pa. R.C.P. 4003.5(c), for the law on the fair scope rule.

The trial court in this case noted that the fair scope rule favors the liberal discovery of expert witnesses and disfavors unfair and prejudicial surprise at trial. 

However, no specific rule exists as to determining when expert testimony exceeds the fair scope of a pre-trial expert report and that the determination of this issue is to be on a case by case basis.

In this case, the trial court found that it did not abuse its discretion in finding that the Plaintiff’s expert’s trial testimony complied with the fair scope rule. The court held that the testimony did not go beyond the report and was not inconsistent with the report. Rather, the doctor provided a reasonable explanation as to what was contained in the report, which explanation fell under the fair scope rule.

Here, the court felt that the Defendant could have and should have reasonably anticipated the Plaintiff’s expert testimony regarding future spinal surgery from the relevant language in the expert report.

The court also seemingly placed a burden on the defense to conduct additional discovery to gather more information on the Plaintiff’s expert report when the court wrote in this Opinion that the Defendant “failing to conduct discovery to obtain a full explanation of the relevant portion of [the expert’s] report is not the trial court’s error, but the [the Defendant’s]. See Op. at 6.

The trial court ruled that the allowance of the Plaintiff’s expert testimony as the spine surgery was fair under the law cited because any discrepancy between the expert report and the trial testimony did not prevent the Defendant from making any meaningful response and did not mislead the Defendant. The trial court reiterated that the Defendant could have sought clarity of the relevant portion of the expert report in discovery before receiving such elaboration during the cross-examination at the trial deposition. 

The trial court did not provide any further guidance on how such discovery on an expert's opinion could have been completed under the Pennsylvania Rules of Civil Procedure.

In concluding its statements on this issue, the trial court stated that the allowance of the Plaintiff’s expert’s testimony complied with the fair scope rule and Pennsylvania law such that there is no mistake made at trial by the court.  The trial court ruled that there was, therefore, no need for a new trial as requested by the defense.

In this decision, the trial court otherwise ruled that it did not abuse its discretion or err when it denied the Defendant’s post-trial motions seeking a new trial due to an allegedly excessive verdict and/or with regards to the trial court’s denial of the Defendant’s request for an remittitur.

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


Source: The Legal Intelligencer Court of Common Pleas Case Alert at www.law.com

(July 10, 2024).

Source of above image:  Photo by Sora Shimazki on www.pexels.com.

Verdict Overturned As Excessive

The non-precedential decision of Kimble v. Laser Spine Institute, No. 617 EDA 2019 (Pa. Super. April 9, 2020 Nichols, J., Murray, J., and Colins, J.) (Mem. Op. by Murray, J.)(Nichols, J., Dissenting), arose out of a case in which a $10 million dollar verdict was entered in a medical malpractice matter.  The Pennsylvania Superior Court remanded the case for a new trial on the issue of damages based upon a finding that the verdict may have been excessive under the case presented.

The appellate court faulted the trial court for allegedly not fully examining the evidence in the record against the applicable shocks the consciousness standard of review.

Significantly, the appellate court also appeared to overturn the verdict below, in part, based upon a finding that the reversal was appropriate after comparing the verdict in this case to verdicts in other cases.

The decision is also noteworthy in its reaffirmation that trial court judges and appellate court judges will look for and rely upon waivers of appellate issues in order to preserve the validity trial court rulings during the course of a trial.

For example, this case provides the valuable lesson that counsel should not only submit proposed points for charge but should also seek out concrete rulings from the trial court on whether or not the trial court judge is granting or denying such proposed points for charge.

In this case, propose points for charges were submitted but the trial court generally noted that it only used standard suggested jury instructions.  No ruling was requested or made on certain proposed points for charge that were submitted for the court's review.  On appeal, any issues raised with respect to these proposed points for charge were found to have been waived as there was no concrete trial court decision granting or denying these proposed points.

In another example of the court looking for and finding a waiver of certain issues on appeal, this decision is additionally notable for the lesson it provides that, in order to confirm the right to pursue a motion for a judgment notwithstanding the verdict at the conclusion of a trial, a defendant should (1) submit a proposed point for charge for a binding instruction in favor of the defense, (2) move for a non-suit at the close of the Plaintiff's case, and (3) move for a directed verdict at the close of the entire case in order to pursue a motion for a judgment notwithstanding the verdict.

Anyone wishing to review this decision may click this LINK.

Source:  Article - "Pa. Appeals Court Slashes Award;  Finds Jury Went Too Far With $10 Million Dollar Verdict" by Max Mitchell in the Pennsylvania Law Weekly (April 9, 2020).

Trial Judge's Reduction of Punitive Damages Award Overturned by Third Circuit Court of Appeals

In the case of Jester v. Hutt, 2019 U.S. App. Lexis 25998 (3d Cir. Aug. 28, 2019 Hardiman, J., Porter, J., Cowen, J.), the Third Circuit Court of Appeals vacated a granting of a motion for remittitur by the trial court that served to substantially reduce an award in favor of the Plaintiff.

According to the Opinion, the trial court had found that an award of $90,000.00 for punitive damages in a defamation case was constitutionally excessive where the jury only awarded $1.00 in actual damages.  The punitive damages award was reduced to $5,500.00.

The Third Circuit overturned the trial court and ruled that the constitutional ratio test for punitive damages does not apply to awards of nominal damages.  Higher ratios between nominal awards and punitive awards are to be expected. 

The Third Circuit reiterated that the touchstone for constitutional scrutiny of punitive damages awards is reasonableness.  The Court in Jester also noted that a comparison to similar cases is an accepted method of judging excessiveness of awards.

The Jester decision may be reviewed HERE.

I send thanks to Attorney James M. Beck, of the Philadelphia office of the Reed Smith law firm and the writer of the excellent Drug and Device Law blog for bringing this case to my attention.

Motion for Remittitur of Punitive Damages Granted

In the case of Jester v. Hutt, No. 1:15-CV-00205 (M.D. Pa. Aug. 29, 2018 Kane, J.), the court granted a Motion for Remittitur of Punitive Damages.  

According to the Opinion, the court found that an award of $90,000.00 for punitive damages in a defamation case was constitutionally excessive where the jury only awarded $1.00 in actual damages.  

The court also noted that the level of reprehensibility with regards to the Defendant was low under the facts presented.   The court also emphasized that there was no risk of physical injury or danger to the safety of others relative to the underlying event. 

The court cut the punitive damages down to $5,500.00.  

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 and the writer of the excellent Drug and Device Law blog for bringing this case to my attention.

UPDATE:  The trial court's decision in this case was overturned by the Third Circuit Court of Appeals in a decision handed down by that Court on August 28, 2019.  Click HERE to view that decision.

Recoverability of Future Medical Expenses in an Auto Accident Case Addressed

A number of civil litigation trial issues were reviewed in the case of Farese v. Robinson, No. April Term 2015 1084 (C.P. Phila. Co. Sept. 6, 2018 Kennedy, J.), including the issue of how to handle a claim for future medical expenses in a motor vehicle accident matter.  

The case arose out a rear-end motor vehicle accident.   The case proceeded to trial and a jury entered a verdict in excess of $2.5 million dollars in favor of the Plaintiff.   The Defendants filed post-trial motions which brought about this Rule 1925 Opinion by the trial court judge.  

With respect to the Plaintiff’s claims for future medical expenses, defense asserted that a new trial on damages was necessary given that the Plaintiffs introduced evidence concerning future medical costs without reducing those costs in accordance with the cost containment provisions of the Pennsylvania Motor Vehicle Financial Responsibility Law (“MVFRL”), or Act 6.  

The trial court rejected the Defendant’s position as well as the defense’s reliance upon the case of Pittsburgh Neurosurgery Assoc’s v. Danner, 733 A.2d 1279 (Pa. Super. 1999), as the court found that that case was limited by the Superior Court to an application to past medical bills that had already been incurred by an injured party for treatment that had already been provided.  

Instead, the trial court relied upon the case of Moorehead v. Crozer Chester Medical Center, 765 A.2d 786 (Pa. 2001).  Also, the trial court also noted that the medical bills in this case that were presented to the jury had apparently already been subjected to the cost containment provisions of the MVFRL.   

The trial court in this case of Farese noted that its Opinion was that future medical costs are not considered “payable” within the meaning of §1722 or §1797 of the MVFRL.    The court believed that to claim that bills for medical services not yet performed should be considered “capable of being paid” in this context, “creates an unpersuasive logical fallacy.”   The court noted that, to rule otherwise, would create confusion as any medical service not yet performed would be considered “payable.”  

This particular court believed that future medical costs can only exists as being “not payable” under §1797.  

Practically speaking, the trial court found that the Plaintiff’s expert life care planner had properly opined as to the future cost of medical care under the “usual and customary charge(s)” mandated by 75 Pa. C.S.A. §1797(a).   The expert offered his opinion at trial that life care planners base protections on future medical care upon the usual and customary costs going into future because it is too speculative to know what reimbursements will be from month-to-month.

In entering its ruling, the Farese court pointed to the Federal Middle District Court decision of Kansky v. Showman, No. 3:09-cv-1863, 2011 WL 1362245 (M.D. Pa. April 11, 2011 Munley), in which that Federal District Court held that future medical bills are not “payable” as future medical payments are not currently outstanding and able to be paid and given that Defendants cannot guarantee that any future medical expenses will in fact be paid.    That court ruled that the payment of future medical expenses is merely speculative as a carrier could become bankrupt or could deny future medical bills for a variety of reasons.  [However, neither the Farese court nor the Kansky court pointed out that whether a Plaintiff will actually undergo future medical treatment once they settle their case or secure a verdict is speculative as well].   

The Kansky court held that, because the insurance benefits are not necessarily due and owing at the time of a trial and given that nothing could compel a carrier to pay a lump sum for future medical expenses, a Plaintiff’s future medical bills cannot be considered to be “payable” under Act 6.  

The Farese court followed this reasoning in its own decision and denied the defense’s request for a new trial based upon the handling of the future medical expenses claim at trial.  

Here is a LINK to the "Future Medical Expenses" Label, which can always be freely access down the right hand column of the Tort Talk Blog at www.TortTalk.com to access blog posts on this particular troublesome and unsettled topic.

The Farese decision is also notable in that the trial court held that the expert testimony offered by the Plaintiff from a neuro-radiologist was not considered to be cumulative when compared to the other expert medical evidence offered by the Plaintiff.   The court felt that the expert’s expertise in the area of neuro-radiology allowed that doctor to provide a nuanced opinion of the injuries sustained by the Plaintiff that better explained the injuries to the jury in a manner different then that from the Plaintiff’s other medical experts.  

The Farese court also addressed the issue of Defendant’s Motion for Remittitur against the Plaintiff’s substantial verdict.   In this regard, the court provided a detailed analysis of the current state of Pennsylvania law in addressing claims that a jury’s verdict is allegedly excessive.  

In the end, this court found that the jury’s award for damages was not excessive and did not shock the judicial conscience.  

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

Source:  “Digest of Recent Opinions” Pennsylvania Law Weekly (Oct. 16, 2018).   

Several Notable Decisions by Pennsylvania Superior Court on Civil Litigation Issues Handed Down in a Single Case

In the case of Hammons v. Ethicon, Inc., 2018 Pa. Super. 172 (Pa. Super. June 19, 2018 Ott, J., Stabile, J., Stevens, P.J.E.) (Op. by Stabile, J.), the Pennsylvania Superior Court reviewed several civil litigation issues of interest in this products liability case.   In the end, the court affirmed a judgment in favor of the Plaintiffs on appeal.  

With regards to issues pertaining to personal jurisdiction over Defendants, the court reaffirmed the rule that a Defendant challenging personal jurisdiction has the burden of supporting that objection.   See Op. at 15.

The court provided a detailed summary of the current status of the law pertaining to personal jurisdiction based upon a review of several notable United States Supreme Court Opinions, the most recent of which was in the case of Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County, __ U.S. __, 137 S. Ct. 1773 (2107).   Concisely, after the Bristol-Myers case, the following three (3) elements must be met in order for specific personal jurisdiction to lie over a defendant:  

First, a defendant must have purposefully conducted activities within the forum state, or must have purposefully directed its conduct towards the forum state.  

Second, the plaintiff’s claim must arise out of or relate to the defendant’s activities in the forum state or directed towards to the forum state.  

Third, overall, a finding of jurisdiction over the defendant must be fair and reasonable.  

Here, the court found that the Defendant’s suit-related contacts justified jurisdiction in that the particular Defendant supervised the design and manufacturing process of its product in Pennsylvania in collaboration with a Pennsylvania company.  The court additionally noted that this particular Defendant also worked with a Pennsylvania physician in developing and marketing the product which, in this case, was a medical product used to treat prolapsed pelvic organs.  

In another notable decision on a separate issue, the Pennsylvania Superior Court ruled evidence of spoliation may be admitted at trial under principles of relevance and prejudice even where a spoliation-related sanction is not issued by the court.   See Op. at 56.  The court found that evidence of document destruction in this case was highly relevant under the case presented and that the probative value of that evidence outweighed any prejudice to the Defendant.  

In this decision, the court also addressed the Defendant’s Motion for Remittitur, seeking a reduction of the substantial verdict.  Applying Pennsylvania law, the Pennsylvania Superior Court affirmed the trial court’s decision denying the Defendant’s Motion in this regard.

The Superior Court reaffirmed that, under Pennsylvania law, the decision to grant a remittitur depends on whether the award of compensatory damages lies beyond “the uncertain limits of fair and reasonable compensation” or whether the verdict “so shocks the conscience as to suggest that the jury was influenced by partiality, prejudice, mistake, or corruption.”  See Op. at 69.  

The Pennsylvania Superior Court in this Hammons case also reaffirmed the law of Pennsylvania that Rule 238, pertaining to the imposition of delay damages, limits the calculation of the delay damages to compensatory damages.   The court stated that, even after amendments to Rule 238 from back in 1988, Rule 238 delay damages are not to be applied to the punitive damages aspects of a jury’s verdict.  

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

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

Motion for Remittitur Granted in Med Mal Case

In the case of Harker v. Chan, No. 3:15-CV-277 (W.D.Pa. July 27, 2018 Gibson, J.), Judge Kim Gibson of the Western District Federal Court granted a Defendant's Post-Trial Motion for remittitur in a case in which the jury entered a verdict in excess of $47 million dollars in a medical malpractice case.

The case arose out of allegations of medical malpractice associated with the infant Plaintiff suffering disfigurement when his head was wrapped in ACE bandage shortly after birth.  The court noted that while there was evidence that the infant was permanently disfigured and that hair would not grow in certain spots, there was evidence that such conditions could improve with time and that there was no brain damage or cognitive impairment suffered by the child.

After reviewing the standards applicable to motions for remittitur, the court found that the jury's verdict shocked the judicial conscience.  The court noted that, under the law, if the motion to remit is granted, the award cannot be lowered to below an amount that does not shock the judicial conscience.
It was also noted by the court that the law requires that the Plaintiff be given the option of a new trial on damages in conjunction with the order on the reduced amount of the verdict that will be allowed by the court.

The court reduced the $43.75 million dollar non-economic damages portion of the verdict to $16 million and gave the Plaintiff's 14 days to consider whether to accept the Court's ruling or to proceed to a new trial on damages.

Anyone wishing to review this decision may click this LINK.

Source:  Article:  "Judge Cuts $47M Med Mal Verdict by Half, Finding It 'Shocks the Judicial Conscience."  By Max Mitchell.  The Legal Intelligencer (July 30, 2018).

Superior Court Affirms Analysis for Motion For Remittitur

Some Tort Talkers may recall that the Montgomery Court of Common Pleas decision in the case of Carassai v. Echelmeier, No. 2007-CV-04081 (C.P. Mont. Co. Dec. 8, 2014, Rogers, J.), outlining the standard of review for a motion for remittitur, was summarized in a Tort Talk post at this LINK.  In that case, the jury had awarded a personal injury plaintiff $1 million dollars.

UPDATE:  The Pennsylvania Superior Court has affirmed the trial court's decision in a non-precedential opinion at Carassai v. Echelmeier, 2993 EDA 2014 (Pa.Super. Oct. 16, 2015 Bowes, Mundy, and Fitzgerald, J.)(Mem. Op. by Bowes, J.).  That decision, which outlines the current status of the law on such motions, can be reviewed HERE.

I send thanks to Attorney Charles W. Campbell, a solo practitioner in Norristown, PA for bringing this update to my attention.

Standard for Deciding Motion for Remittitur Reviewed

In the Montgomery County Court of Common Pleas case of Carassai v. Echelmeier, No. 2007-CV-04081 (C.P. Mont. Co. Dec. 8, 2014, Rogers, J.), the trial court denied a Defendant’s Motion for a New Trial and For Remittitur in an automobile accident case where a Defendant appealed from a $30,000.00 Arbitration Award and a jury entered a verdict of $1,000,000.00.  

This matter involved a Plaintiff who was a 19 year old passenger in a vehicle being driven by her boyfriend at the time of the accident.   Prior to the accident, the Plaintiff enjoyed running, riding a bike, jet skiing, and snowboarding.   She had no prior medical history with respect to her knees before the accident.  

During the course of the accident, the Defendant’s vehicle allegedly turned in front of the Plaintiff’s vehicle, allegedly resulting in the collision.  The Plaintiff flew forward in the vehicle with her knees breaking the dashboard and her head cracking the windshield.   Thereafter, the Plaintiff treated primarily for complaints of ongoing pain in both knees.    

In his Opinion, Judge Thomas P. Rogers described the current status of the law regarding the Motion for a New Trial based upon the weight of the evidence.  In that regard, the court noted that a new trial is not warranted where there is a mere conflict in testimony or because the trial judge on the same facts may have arrived at a different conclusion.   Rather, where there is conflicting evidence that it properly presented and weighed by a jury, it is not an abuse of discretion for the trial court to deny a Motion for a New Trial.

Judge Rogers also set forth the current status of the law governing the resolution of a Motion for Remittitur.   The court noted that the granting of a motion for remittitur is only appropriate when an award is plainly excessive and exorbitant.   Judge Rogers also stated that the assessment of damages, including pain and suffering damages, is within the province of the jury and should not be interfered with unless the amount of the award resulted from prejudice, partiality, corruption, or some other improper influence. 

 This case is currently up on appeal and was just argued in the Pennylvania Superior Court. 

 

Anyone wishing to review the Carassai decision my click this LINK.