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.

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.

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).

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.

Zero Verdict in Dog Bite Case Upheld on Appeal (Non-Precedential)

In a non-precedential decision issued by the Pennsylvania Superior Court in the case of Anthony v. Rizzo, No. 1067 M.D.A. 2017 (Pa. Super. April 3, 2018 Bowes, J., Murray, J., and Blatt, J.) (Non-precedential Op. by Murray, J.), the Pennsylvania Superior Court affirmed the trial court decision by the Honorable Lesa S. Gelb following an appeal from the judgement entered in favor of the Defendants after a jury awarded the Plaintiff $0 damages in this negligence cause of action arising out of an alleged dog bite by a poodle.  

According to the Opinion, the Plaintiff was employed as a house cleaner for the Defendants.   The Plaintiff had walked up to the Defendant’s car in which a poodle was located, unrestrained and in the rear seat with the windows opened.  As the Plaintiff approached the car, the dog “came into contact” with the Plaintiff’s right forearm. 

 The Opinion indicates that the Plaintiff was treated for what was described as a dog bite which involve an avulsion, or tearing of the skin, on the Plaintiff’s right forearm. The Plaintiff treated with her family doctor who cleaned the area, applied steri-strips, prescribed antibiotics, and administered a tetanus shot.    The Plaintiff had a follow-up visit with the family doctor one (1) month later at which point the Plaintiff's injury was noted to appear to be healing. The Plaintiff was not referred to any plastic surgeon to discuss any scarring-related issues.

As reflected on the verdict slip, the jury found that the Defendants were negligent and that the negligence of the Defendant was a factual cause of the Plaintiff’s harm.   However, the jury also attributed 50% of the causal negligence to the Plaintiff.  As for damages, the jury wrote down $0 on the verdict slip.  

The Plaintiff raised two (2) issues on appeal, first the Plaintiff asserted that the trial court committed an error in denying the Plaintiff’s Motion to Preclude a Verdict Slip Question and Jury Instruction on factual cause when it was not disputed that the Plaintiff had suffered some injury as a result of the accident.

The Plaintiff’s second issue was whether the trial court committed an error of law in denying the Plaintiff’s Motion for a new trial on damages since the jury’s verdict was so contrary to the evidence that it shocked one’s sense of justice.  

As to the first issue, the Superior Court stated that its review of the trial court’s jury instruction on factual cause revealed that that instruction was nearly identical to the Pennsylvania Standard Jury Instruction.   As such, the Superior Court found that the trial court provided an adequate instruction for factual cause to sufficiently guide the jury in its deliberation.   The Superior Court also noted that, even if an error had occurred in this regard, such error would be harmless because the jury found that the Defendant’s negligence was indeed a factual cause of the Plaintiff's harm in any event.  

 The appellate court also rejected the Plaintiff’s contention that the jury’s verdict was against the weight of the evidence.   Given that the appellate court agreed that the Plaintiff did not offer sufficient evidence in support of a claim for “compensable” pain, there was no need to overturn the decision below.   This was particularly so in this case where the Plaintiff had not presented any expert medical testimony about her alleged pain and suffering and where the Defendants asserted that the Plaintiff had suffered a mere scratch that represented a minor injury.  

As such, the Plaintiff’s appeal was denied and Judge Gelb’s decision below was affirmed by the Pennsylvania Superior Court. 

Anyone wishing to review this non-precedential decision by the Pennsylvania Superior Court, may click this LINK.

The trial court decision in this matter by Judge Lesa Gelb of the Luzerne County Court of Common Pleas may be viewed at this LINK.

I send thanks to Attorney Stephen T. Kopko of my office for bringing this decision to my attention.