No Right To a New Trial Found After Trial Court Re-Opened Evidence After First Non-Jury Verdict And Then Entered Identical Second Non-Jury Verdict

In the non-precedential decision in the case of Graffia v. Thomas, No. 1497 WDA 2023 (Pa. Super. Dec. 30, 2024 Murray, J, McLaughlin, J., and King, J.) (Op. by King, J.), the court affirmed a trial court’s verdict in a non-jury case following the entry of a default judgment against the Defendant.

In this non-jury trial matter, the trial court issued a verdict prior to rendering a decision on whether the rebuttal testimony of the Plaintiff’s expert was admissible.

The trial court ultimately found that the rebuttal testimony was admissible.  As such, the trial court vacated its original verdict in order to take all of the evidence into consideration.

The trial court then issued a second verdict that was identical to the first verdict.

The Plaintiff appealed and argued that the trial court did not have the authority to vacate the first verdict after forty-three (43) days. The Plaintiff requested a new trial.

The Superior Court found that the trial court committed harmless error. The court noted that, since all of the evidence was taken into consideration prior to the rendering of the second verdict, the Plaintiff failed to demonstrate any prejudice.

Anyone wishing to review a copy of this non-precedential decision may click this LINK.


I send thanks to Attorney Kasey E. Cahill of the Pittsburgh, PA office of Summers, McDonell, Hudock, Guthrie & Rauch P.C. for bringing this case to my attention.

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.

Defense Verdict Secured by Cummins Law in Lackawanna County Rear End Accident Case

Pleased to report that I secured a defense verdict in a rear end auto accident case yesterday in Lackawanna County.  

Negligence was admitted, causation was disputed.  The details follow:

Cholewka v. Restaino


Defense Verdict in a Rear End Accident Case


Date of Verdict: May 13, 2021


Court and Case No: C.P. Lackawanna, No. 2016-CV-3842


Judge: Margie Bisignani-Moyle


Type of Action: Third Party Auto Negligence


Injuries: Plaintiff alleged bilateral shoulder injuries.


Defense Counsel: Daniel E. Cummins of Cummins Law


Comment:


This personal injury civil litigation trial was held with Covid-19 social distancing measures in place in the Lackawanna County Court of Common Pleas.

The jury selection took place in a ballroom at the Scranton Cultural Center. All of the participants wore masks at these proceedings and the jurors were spread out in the large room. Attorneys were permitted by the Court to take off their masks when asking questions of the jurors. Sheriff’s deputies carried a microphone on a long handle and held the microphone up to the jurors’ mouths when they answered questions.

Once the jury of 12, plus two alternates, was selected the trial moved to Judge Margie Bisignani-Moyle’s courtroom on the second floor of the Lackawanna County Courthouse. The jurors were spread out in the area that used to be the gallery of the courtroom. The witness testified from what was the jury box. The jurors could either look at the witness directly or also see the witness more close up from TV monitors in the courtroom. The witnesses were allowed to take off their masks when testifying and the attorneys were allowed to take off their masks when speaking.

There were six men and six women on the jury.  Most of the jurors appeared to range in age from 45-59.  Two of the jurors appeared to be in their 30s.

One of the out-of-town lay witnesses for the defense was not able to get out of work to attend the trial.  The court accomodated the request to allow for that witness to be presented via Zoom.  The digital trial presentation company, Exhibit A, who was retained by the defense at trial assisted with that Zoom presentation.

This third party personal injury litigation matter arose out of a minor low speed, low impact rear-end tap of a motor vehicle incident that occurred almost (7) years ago at approximately 11:57 a.m. on July 2, 2014 on Jefferson Avenue in Scranton, Lackawanna County, Pennsylvania.

The then 55 year old Full Tort Plaintiff, Ronald Cholewka, was a front seat restrained passenger in a 2014 Chrysler 300 driven by a Paul Phillips. The Plaintiff’s vehicle was on Jefferson Avenue in Scranton, Pennsylvania and was stopped at a red light at the intersection of Mulberry Street. The Plaintiff was being driven by a car service to a medical appointment relative to his prior history of over 30 years of treatment for neck and back pain complaints dating back to a 1988 motor vehicle accident. The Plaintiff’s pre-existing conditions had also been aggravated as a result of a prior 1995 accident as well. 

At the same time and place, the Defendant, Theresa Restaino, was stopped in her 1999 Buick LeSabre on Jefferson Avenue behind the vehicle in which the Plaintiff was located. When the light turned green, Ms. Restaino thought that the vehicle(s) ahead of the one in which the Plaintiff was located had started to move. The Defendant took her foot off her brake but did not apply the gas. The Defendant allowed her vehicle to roll forward and the front of her vehicle tapped the rear of the vehicle in which the Plaintiff was located.

The Defendant described the impact as minimal and confirmed that her airbag did not deploy. Ms. Restaino also confirmed that she did not see any damage to the front of her vehicle or the rear of the vehicle in which the Plaintiff was located. The Defendant also confirmed that she did not require any repairs to her vehicle after the accident. Moreover, Ms. Restaino was not injured and required no treatment.

At the time of the accident, two friends of the Defendant located in a vehicle to the rear of the Defendant as they were following the Defendant to a location at the time. Those two witnesses testified at trial that they saw the Defendant’s vehicle roll forward but that any contact was so subtle that they asked each other if the Defendant's vehicle had even contacted the vehicle ahead. Those witnesses testified that they got out of their vehicle and went up to the two involved vehicles and confirmed that neither vehicle had any visible damage.

Photographs confirmed that there was no visible damage to either vehicles.

The driver of the vehicle ahead described the impact as significant but admitted that there was no damages to the vehicles as a result. That witness, who was admittedly not injured in the accident, passed away prior to trial from unrelated conditions. His deposition was read to the jury at trial.

The Plaintiff never got out of the vehicle at the scene. He asserted that he felt a pop in his back from the impact which he described as significant. He alleged that he could not feel his legs and thought that he had been paralyzed. He was removed by an ambulance crew and transported to the local emergency room. He was eventually treated and released.

At trial, the Defendant accepted responsibility for causing the accident but challenged the issues of causation and disputed whether the Plaintiff had been injured at all.

This Plaintiff had an extensive prior medical history that includes unrelated, multiple surgeries to many parts of the Plaintiff’s body and extremities. The Plaintiff’s prior medical history was also positive for conditions of an insulin dependent diabetes and coronary artery disease.

The Plaintiff confirmed that he had been totally disabled since 1988 for his persistently painful and limiting neck, back, and knee conditions, which disability continued up to the time of the subject accident. It was the Plaintiff’s allegation at his deposition in this matter that his neck and mid-back conditions had quieted down in the years leading up to this subject 2014 accident. However, he admitted that he was still having significant issues with regards to his low back in terms of pain and limitations by the time this accident occurred.

As noted, after the accident, the Plaintiff remained in the vehicle until help arrived. He was eventually assisted by the ambulance crew, placed on a stretcher and transported to the nearby Community Medical Center emergency room, a few blocks away.

Following the accident, the Plaintiff continued with his same pre-accident treaters for his ongoing neck and back pain.

Approximately two years and four months after the accident, the Plaintiff visited an orthopedic surgeon for treatment of left shoulder complaints. At that visit, the Plaintiff advised that doctor that his shoulder complaints had begun a few weeks before that visit. The Plaintiff also confirmed that he had not had any recent injuries.

Although the Plaintiff alleged in his Complaint that he was making claims for neck and back injuries, and did not mention any shoulder injuries in his Complaint, at trial, he stipulated to the granting of the Defendant’s non-suit motion on his neck and back claims as he wanted to instead pursue a claim for shoulder injuries.

After he rested his case at trial, the Plaintiff was allowed to amend his Complaint over the Defendant’s objection to instead state that he was pursuing a claim for bilateral shoulder injuries that required multiple surgical procedures which did not resolve his complaints. The Plaintiff’s theory was that he had sustained a left shoulder injury in the subject car accident but that his shoulder pain had been masked by his neck pain. The Plaintiff also asserted that his right shoulder problems, which had allegedly developed from overuse due to his left arm being in a sling from his surgeries, was also related back to the car accident.

The court denied the defense’s motion for a non-suit on the Plaintiff’s claims of shoulder injuries and allowed the case to proceed.  The court noted that the defense had defended against the Plaintiff's claims of shoulder injuries during the Plaintiff's case-in-chief and was, therefore, not prejudiced by the allowance of this amendment.

The Plaintiff relied upon the office notes of his shoulder surgeon as well as upon the reports of a PIP IME doctor, both of whom had opined in multiple records that the Plaintiff’s shoulder complaints were due to the subject accident. Rather than calling those out-of-state doctors as experts at trial, Plaintiff’s counsel retained a local physiatrist, Dr. Michael Wolk, to testify for the Plaintiff.

The defense confirmed on cross-examination of the Plaintiff’s medical expert that the Plaintiff’s surgeon, the PIP IME doctor, and the Plaintiff’s expert were all advised by the Plaintiff that the subject accident involved a high speed rear end accident. The defense also confirmed that the Plaintiff’s expert had not been provided with all of the medical records and also had not been provided with any films to review. It was additionally confirmed that the Plaintiff’s expert was not provided with any photographs of the vehicles to review or any of the deposition transcripts of the parties or witnesses.

The defense also asserted at trial that the Plaintiff regularly treated with his many pre-accident doctors following this accident and, for two and half years, never mentioned his shoulders as being problematic. With respect to the Plaintiff’s theory that his left shoulder pain being masked by his neck pain, the defense showed through the records that the Plaintiff’s primary complaints of pain were not only to the right side of his body but were also down in the mid-back area.

The defense called orthopedic surgeon, Dr. Thomas Allardyce, as an expert witness. Dr. Allardyce had issued an IME report in which he opined that the Plaintiff had sustained a soft tissue back injury as a result of the accident. The defense medical expert also opined that the Plaintiff’s alleged shoulder injuries and treatment were not related to the incident. The defense expert also confirmed that right-sided mid-back pain would not mask left shoulder pain or prevent a person from realizing that they had a left shoulder injury.

At trial, neither the Plaintiff’s expert nor the defense expert were questioned with respect to whether the subject accident impacted the Plaintiff’s neck and back condition. Rather, the Plaintiff’s expert limited his opinion to confirming that the Plaintiff’s shoulder complaints and concluded that they were related to the accident. The Plaintiff’s expert also testified that, due to the Plaintiff’s ongoing shoulder problems, the Plaintiff would require ongoing treatment into the future that would cost over $875,000.00.

The defense purposely avoided having the the IME doctor testify as to his IME opinion that the Plaintiff had sustained a minor soft tissue injury to his mid-back as a result of the incident.  Plaintiff's counsel did not bring this out on cross-examination.  Rather, the defense focused the questioning of the defense expert on that expert's opinion that the Plaintiff's shoulder injuries were not related to this accident.

The defense medical expert expanded upon his opinion that the Plaintiff’s shoulder complaints, treatments and surgeries were not related to the subject accident. The defense expert additionally opined that the Plaintiff’s bilateral shoulder conditions instead involved degenerative joint disease and degenerative rotator cuff tears that were all unrelated to the subect accident.

At trial, it was the defense assertion that this matter arose out of a tap incident from seven years ago.  The defense theory was that this matter involved a fender bender incident as a result of which neither fender was bent and no one was injured.  

The defense also asserted that it defied common sense to assert that the Plaintiff's shoulder complaints, which did not appear in the records until a first note that was from two years and four months after the accident, were related to this minor incident.

In terms of the Plaintiff's argument that the Plaintiff was an Eggshell Plaintiff, the defense argued in closing argument that even Humpty Dumpty sat on a high wall and had a great fall.  Analogizing to this case involving a tap of an incident and an over 2 year gap in any complaints by the Plaintiff, it would have been as if Humpty Dumpty were sitting on the ground and rolled onto his side and was attempting to assert that two cracks on his shoulders that had appeared two years after the fact related back to the time he had rolled onto his side two years before.

The Defendant was covered by an automobile insurance liability policy providing liability limits of $100,000 per person, $300,000 per occurrence.

Over the years prior to trial, the Plaintiff continually demanded the policy limits. On the eve of trial, the Plaintiff demanded $75,000. The defense had a long-standingin offer of $20,000 to settle on the table.

At trial, liability was admitted. The jury deliberated for only 35 minutes before returning its verdict in favor of the Defendant after finding that the Defendant’s negligence was not a factual cause of the Plaintiff’s alleged injuries.

The defense retained Exhibit A to assist with a visually compelling powerpoint presentation to drive the defense theory home to the jury.  I thank Leah Kane, JP Cardoni, and Joe Cardoni for their excellent work and highly recommend their services for digital trial presentations and videotaped trial depositions.

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 Supreme Court Addresses Proper Application of Fair Share Act

In the case of Roverano v. John Crane, Inc., No. 26 EAP 2018 (Feb. 19, 2020 Mundy, J.), the Pennsylvania Supreme Court addressed the issue of whether the Fair Share Act, 42 Pa. C.S.A 7102, required a factfinder to apportion liability on a percentage, as opposed to per capita, basis in strict liability asbestos actions.

According to the Opinion, the Plaintiff, William Roverano, was allegedly exposed to a variety of asbestos products from 1971 to 1981 in the course of his employment as a helper and a carpenter with PECO Energy Company. Additionally, he allegedly smoked cigarettes for approximately thirty years. In November 2013, Roverano was diagnosed with lung cancer in both lungs. 

In 2014, Roverano brought a strict liability lawsuit against various defendants asserting that exposure to their asbestos products caused his lung cancer. His wife, Jacqueline Roverano, filed a loss of consortium claim. 

Before trial, several defendants filed a Motion In Limine seeking a ruling that the Fair Share Act applied to asbestos cases. The issues raised in that Motion gradually made its way up the appellate ladder to the Pennsylvania Supreme Court. 

The Supreme Court concluded the Act’s plain language was consistent with per capita apportionment in asbestos cases, the Act does not specifically preempt Pennsylvania common law favoring per capita apportionment, and percentage apportionment in asbestos cases was impossible to execute. 

Accordingly, the Supreme Court reversed the Superior Court’s Order, which had vacated the trial court’s judgment and remanded this case for a new trial to apportion damages on a percentage basis. 

Additionally, the Supreme Court considered whether the Act required a factfinder to apportion liability to bankrupt entities that had previously entered into a release with the Plaintiff. In this regard, the Court concluded that, upon appropriate requests and proofs, bankruptcy trusts that were either joined as third-party defendants or that had entered into a Release with the plaintiff should be included on the verdict sheet for purposes of liability only. 

In the end, this case was remanded to the trial court to consider whether the parties submitted sufficient requests and proofs to apportion liability to the settled bankruptcy trusts.

The Majority Opinion can be viewed HERE.

Justice Wecht's Concurring Opinion can be viewed HERE.

Chief Justice Saylor's Concurring and Dissenting Opinion can be viewed HERE.

I send thanks to Attorney Kenneth Newman of the Pittsburgh Office of Thomas, Thomas & Hafer for noting this case.

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.

Zero Verdict Overturned by Superior Court (Non-Precedential)

In the non-precedential Memorandum decision in the case of Hernandez-Lerch v. Gray, No. 842 MDA 2015 (Pa. Super. May 17, 2016 Panella, Lazarus, Platt, J.J.)(Op. by Lazarus, J.), by Pennsylvania Superior Court ruled that a trial court erred in denying the Plaintiff’s Motion for a New Trial on the issue on damages after the jury awarded an automobile accident Plaintiff damages for medical bills and wage loss but nothing for pain and suffering.  The court found that uncontested evidence of the Plaintiff’s injuries showed that she had suffered compensable pain that amounted to more than a mere transient rub of life.  

According to the Opinion, the Plaintiff alleged soft issue injuries along with wage losses and medical expenses.   The Superior Court noted that uncontested evidence revealed that the Plaintiff’s injuries were treated with an epidural steroid injection, physical therapy, along with the use of a TENS unit and a home traction unit.   The court reiterated that the evidence of the injury was uncontested and that the Plaintiff’s treating doctor and physician’s assistant offered testimony in records to substantiate the Plaintiff’s alleged injuries.  

More specifically, the court noted that the evidence showed that the Plaintiff suffered cervical and lumbar sprain and strain injuries with resultant pain, along with an aggravation of a pre-existing back injury.  The court also noted that the injuries took at least four (4) months to heal.  

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

Source:  “Digest of Recent Opinions.”  Pennsylvania Law Weekly (May 31, 2016).  

Pennsylvania Superior Court Affirms Trial Court's Molding of Post-Koken Verdict (Non-Precedential)

In the non-precedential decision in the case of Pusey v. Allstate Insurance Company, No. 888 EDA 2015 (Pa. Super. May 20, 2016 Ford Elliot, P.J.E. Stabile, and Strassburger, JJ.) (Mem. Op. by Stabile, J.), the Pennsylvania Superior Court affirmed a trial court’s handling of the molding of a verdict after an underinsured motorist trial.  

In this case, the trial court addressed the proper procedure for applying credits and comparative negligence in an underinsured motorist benefits trial.  

This matter arose out an incident during which a minor Plaintiff was struck by a vehicle while the minor was riding a bicycle. 

Prior to trial, the tortfeasor’s carrier tendered its $25,000.00 policy limits to the Plaintiff.   The Plaintiff then brought suit against the UIM carrier for underinsured motorist coverage.  

At trial, the jury awarded the Plaintiff $58.600.00.   However, the jury also attributed 41% of the negligence to the minor Plaintiff.  

When a post-trial dispute arose on how to apply the credit for the tortfeasor’s limits as well as the comparative negligent percentage, the trial court ruled that the comparative negligence percentage should be applied first, followed by the application of the credit owed from the tortfeasor’s liability limits.  

In its non-precedential Opinion, the Superior Court affirmed and found no abuse of discretion by the trial court in its decision.   In so ruling, the Superior Court rejected the Plaintiff’s argument that the Allstate policy language pertaining to the phrase “legally entitled to recover” was ambiguous as to how the net verdict was to be determined.  

The court stated that, “[t]o the contrary, it is clear that the amount [the Plaintiff] is “legally entitled to recover” is only reasonably interpreted as the amount she is entitled to collect according to the jury’s verdict.”  See Op. p. 6.  

As noted, the Superior Court affirmed the trial court’s application of the comparative negligence percentage of the Plaintiff first followed by the application of the credit owed from the tortfeasor’s liability limits.   Accordingly, the judgement entered by the trial court below was affirmed.  

Anyone wishing to review a copy of this non-precedential decision by the Pennsylvania Superior Court in the case of Pusey v. Allstate, may click this LINK.

ARTICLE: Recurring Issues With Verdict Slips Continue to Divide Parties

The following article of mine appeared in the May 14, 2013 edition of the Pennsylvania Law Weekly and is republished here with permission from American Law Media (ALM).

 

Recurring Issues With Verdict Slips Continue to Divide Parties

by

Daniel E. Cummins, Esq.
Pennsylvania Law Weekly
May 14, 2013

 

A common dispute between plaintiffs and defendants at any civil trial is how many lines should be placed on the verdict slip for the jury to put down dollar amounts for awards.

Typically, plaintiffs want as many lines as possible, one for each element of damages, such that a jury could possibly require a calculator to tally up all of the numbers in the end. In contrast, defendants push for a single, catch-all line for damages at the end of the verdict slip with the idea that one line will prevent the dollars from adding up.

Multiple Lines Allowed

The current law on the issue in Pennsylvania state courts appears to opt for a middle ground.
Pennsylvania law generally provides that, with respect to verdict slips, "if special findings would add to a logical and reasonable understanding of the issue, it is within the discretion of the trial judge to grant such a request," as the court held in Krock v. Chroust, 330 Pa.Super. 108, 478 A.2d 1376, 1381 (1984). Generally speaking, itemized damages are recognized and acceptable under Pennsylvania law.

For example, in Catalano v. Bujak, 537 Pa. 155, 642 A.2d 448 (1994), the Pennsylvania Supreme Court affirmed a verdict for the plaintiff in a personal injury matter where there were nine separate categories of damages itemized on the verdict slip. Similarly, in DeVita v. Durst, 167 Pa.Cmwlth. 105, 647 A.2d 636 (1994), the Commonwealth Court affirmed a verdict in favor of the plaintiff in an automobile accident case where the verdict slip itemized 10 separate damage categories.

A Line of Cases

The issue of the permissible number of lines on a verdict slip came to the forefront in the now-overruled case of Carpinet v. Mitchell, 853 A.2d 366 (Pa. Super. 2004). In Carpinet, the Pennsylvania Superior Court found that a jury verdict slip utilized by the trial court judge containing an itemized list of potential damages was impermissible. The relevant jury verdict interrogatory in Carpinet contained six lines, one for each of the following elements of damages caused to plaintiff, Robert J. Carpinet, as a result of an accident:

• For past, present and future pain and suffering.
• For past, present and future loss of the pleasures and enjoyments of life.
• For past, present and future emotional distress and anxiety.
• For past, present and future embarrassment and humiliation.
• For the past, present and future loss of feeling of wellbeing.
• For scarring and disfigurement.

The Superior Court in Carpinet ruled that the jury instructions in that case were prejudicial to the defendant "as the charge and the jury verdict interrogatory flowing from it impermissibly instruct that the catalog of misfortunes are separate compensable elements of damages."

The court additionally noted that the first, third and fifth of the above categories of the jury verdict interrogatory were "clearly duplicative." Also, with respect to the second item above, the Superior Court in Carpinet stated that "the law has not been particularly clear whether loss of life's pleasures is separate from, rather than a component of, pain and suffering."

Significantly, the Superior Court in Carpinet further noted that "it appears that piecemeal awards for various forms of pain and suffering have never been the law of Pennsylvania and we see no authority which would allow juries to break into separate, individual compartments that which has been long considered a single item of damages."

Accordingly, the Carpinet court found that the trial court was in error by inviting the jury to enter six separate awards for pain and suffering types of damages.

The Superior Court said in Carpinet that the better practice is for the trial court to generally charge the jury on pain and suffering and then allow counsel to argue the various components or elements of pain and suffering damages within reason. In the Carpinet case, given the prejudicial nature of the jury verdict form, the Superior Court granted the defendant a new trial limited to damages.

According to the more recent Superior Court decision in Gillingham v. Consol Energy, 51 A.3d 841 (Pa. Super. 2012), the Carpinet decision has since been supplanted by Pa. R.C.P. 223.3, which was adopted August 4, 2004, and went into effect December 1, 2004. That rule governs the conduct of the trial for causes of actions for bodily injury or death and specifically outlines the proper jury instructions for noneconomic loss (i.e., pain and suffering) claims.

The rule provides, in pertinent part, as follows: "In any action for bodily injury or death in which a plaintiff has raised a claim for a damage award for noneconomic loss that is viable under applicable substantive law, the court shall give the following instructions to the jury: The plaintiff has made a claim for a damage award for past and for future noneconomic loss. There are four items that make up a damage award for noneconomic loss, both past and future: (1) pain and suffering;(2) embarrassment and humiliation; (3) loss of ability to enjoy the pleasures of life; and (4) disfigurement."

In the Gillingham case, the Superior Court upheld a verdict slip that contained itemized categories of damages that apparently included separate lines for past and future disfigurement, loss of life's pleasures and embarrassment and humiliation. The opinion is not clear on exactly how many lines were permitted on the verdict slip in this regard.

In so ruling, the Gillingham court relied upon the case of McManamon v. Washko, 906 A.2d 1259 (Pa. Super. 2006), as supporting line items on a verdict sheet consistent with the categories noted in Pa. R.C.P. 223.3.

In McManamon, the Pennsylvania Superior Court had previously upheld a verdict slip that contained the following itemization of potential damages to be decided by a jury:

"State the amount of damages sustained by the plaintiff, Theresa McManamon, as a result of this accident, without regard to and without reduction by the percentage of causal negligence, if any, that you have attributed to the parties."

The verdict slip asked for six items:

• Past medical expenses.
• Future medical expenses.
• Past lost earnings.
• Future lost earning capacity.
• Past, present and future pain and suffering, embarrassment and humiliation and loss of enjoyment of life.
• Disfigurement.

In McManamon, the court therefore upheld the verdict slip, which presented the jury with a single line item for past, present and future pain and suffering, embarrassment and humiliation and loss of enjoyment of life. That court therefore found that there was no improper separation of categories as alleged in the Carpinet case.

Accordingly, the Superior Court in McManamon rejected the defendant's reliance on Carpinet as being misplaced. Furthermore, as noted above, the ruling of Carpinet has since been supplanted by Rule 223.3.

Still Grounds for Disagreement

The above law answers most questions but leaves some room for dispute with respect to the proper framework of civil litigation verdict slips.

A review of the above cases and Rule 223.3 appears to support the allowance of a single line on the verdict slip for the noneconomic damages claims, with all of those types of damages (past, present and future pain and suffering, embarrassment and humiliation and loss of enjoyment of life) being permitted to be noted in that single line item of the damages portion of the verdict slip.

However, others may read Rule 223.3 in conjunction with the most recent Gillingham decision as still supporting an argument that separate lines should be utilized for the elements of past and future disfigurement, loss of life's pleasures and embarrassment and humiliation.

All of the cases and Rule 223.3 can be read in support of the notion that the element of disfigurement is entitled to its own line on a verdict slip.

Arguably, separate lines may be warranted for economic damages claims at issue in a personal injury matter. Whether economic damages claims for wage loss and medical expenses should be set forth in the verdict slip with separate lines for the past and future aspects of those damages remains a common area of dispute.

Although that separation of lines was not denied in the McManamon case, trial courts have a history of allowing this separation of damages on the verdict slip at times and denying it at times.

Overall, it is well settled that the drafting of the verdict slip, and whether to use a single line for damages or allow for an itemized list of damages on that document, remains well within the court's broad discretion. Oftentimes, the court will attempt to have the parties agree to a particular verdict slip on the record in order to avoid any appellate issues in this regard.

The hope of the courts is that the defense's fear of too many lines on the verdict slip versus the plaintiff's fear of ending up with too few lines on the verdict sheet will result in a verdict slip satisfactory to all parties and without any appellate issues preserved on the record.

Of course, with the law still being somewhat in a state of flux in this regard, counsel should remember to place their objection on the record before the jury is excused to its deliberations if this issue is to be preserved to take up on appeal. •


Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Comerford &Cummins. His civil litigation blog, Tort Talk, may be viewed at www.torttalk.com.

Defense Verdict Secured in Recent Luzerne County Auto Accident Trial

I recently finalized the resolution of a matter of mine that was tried to a defense verdict back in June.  Here's a synopsis of the case:


Name of Case: Nicholas Marino v. Brianna L. Lizza and Linda Ann Lizza

Trial Verdict: Zero defense verdict returned by jury in favor of Defendant

Date: June 12, 2012

Court/Docket No: Luzerne County Court of Common Pleas/1939 of 2010 Civil

Judge: Judge Michael T. Vough

Type of Action: Personal Injury

Defense Attorney: Daniel E. Cummins of Foley, Comerford & Cummins, Scranton, PA

Plaintiff’s Expert: Dr. David S. Sedor, neurosurgeon, Wilkes-Barre, PA

Defense Expert: Dr. Thomas A. Allardyce, orthopedic surgeon, Wilkes-Barre, PA



Summary:

This matter involves a motor vehicle accident that occurred under wintry on February 12, 2008 at approximately 1:00 p.m. on Main Street in Old Forge, Lackawanna County, Pennsylvania. The Plaintiff, Nicholas Marino, came to a stop to make a turn and the vehicle of the Defendant, Brianna Lizza, slid on the ice and snow into the rear of the Plaintiff’s vehicle.

At trial, the Plaintiff testified that he continued to experience pain from his neck, upper back, and shoulder injuries, which disrupted his activities of daily living both at work and outside of work. The Plaintiff sought to recover damages for pain and suffering and for past medical expenses.

At trial, the defense admitted liability and conceded, through the defense medical expert, that the Plaintiff had sustained, at most, a soft tissue cervical spine sprain injury.

At trial, on cross-examination of the Plaintiff, the defense pointed out that, although the Plaintiff repeatedly denied any prior neck or back complaints in his Answers to Interrogatories and during his deposition testimony, the prior medical records confirmed extended prior complaints and treatment for both neck and upper back issues.

The defense also offered evidence at trial that the rear-end impact at issue was minimal in nature from the perspective of the Defendant. The Defendant testified that her vehicle did not need to be repaired after the accident.

The jury was also informed that, as a result of the accident, the Plaintiff did not sustain any loss of consciousness, was not bleeding, and did not sustain any broken bones. The Plaintiff was able to exit his vehicle under his own power at the scene of the accident.

The Plaintiff also refused an ambulance and did not report to any emergency room. Rather, the Plaintiff drove himself from the scene of the accident to his family doctor, who did not order any x-rays. The Plaintiff was then able to drive himself home from his family doctor’s office.

Following the Plaintiff’s initial treatment with the family doctor, the Plaintiff primarily treated with a chiropractor and then saw a physiatrist, Dr. Albert Janerich, and the neurosurgeon, Dr. David S. Sedor.

The jury was also informed that the Plaintiff did not miss any time from his employment as a supervisor in a business that assisted local supermarkets with their various displays in stores. The Plaintiff also agreed, on cross-examination, that he remained capable of continuing to perform most of his activities of daily living with modifications, including his ongoing involvement in Little League baseball coaching every year since the accident.

By way of videotape deposition, the Plaintiff’s neurosurgeon, Dr. David S. Sedor opined that the Plaintiff sustained neck, upper back, and shoulder injuries as a result of the accident. Dr. Sedor further testified that the Plaintiff’s cervical spine injuries were permanent and could progress to require surgery in the future possibly followed by the need for a spinal cord stimulator.

The defense presented the videotape testimony of Dr. Thomas Allardyce, an orthopedic surgeon who completed the IME of the Plaintiff. It was Dr. Allardyce’s opinion that the records confirmed that the Plaintiff sustained a cervical spine strain injury as a result of the accident. The doctor also testified that this type of injury would ordinarily resolve within 12 weeks. The defense expert also opined that the positive findings on the Plaintiff’s post-accident MRI studies were degenerative in nature and not traumatic in nature.

Despite this testimony, the IME doctor also conceded that, if the Plaintiff’s ongoing subjective cervical spine complaints were believed, the doctor would have to relate them to the subject accident in the absence of any other trauma or conditions.

During closing arguments, the defense confirmed to the jury that liability was admitted and that the defense medical expert had confirmed that the Plaintiff sustained a soft tissue cervical spine sprain injury, the kind of which that should have resolved within several months of the accident. The defense requested the jury to enter an award consistent with the evidence presented, including the evidence of the minimal impact of the Plaintiff’s alleged injuries on his activities of daily living.

During the court’s provision of instructions to the jury, the jury was advised that given, the fact that the defense had admitted liability and conceded an injury, the Plaintiff was entitled to an award.

Nevertheless, after deliberating for approximately 35 minutes, the jury returned a zero (0) verdict.

After the jury was dismissed, and given the possibility of an appeal of the zero verdict entered, the parties remained in the courthouse and eventually negotiated a settlement of the case for $15,000.00. The last settlement offer prior to the commencement of the trial was $34,400.00.

[Past results are no guarantee of future results and each case must be handled on its own merits.]

New Jury Verdict Roundup Launched on Lawyers.com Blog

I have been advised of a New Jury Verdict Roundup Launched on Lawyers.com Blog.  This FREE weekly feature will cover the latest news in personal injury awards.  Click the link below for more information, including how to have any verdicts, plaintiff or defense, you generate listed in this news source:

http://www.lexisnexis.com/media/press-release.aspx?id=1320683906528601

Update Regarding Reporting of Recent Defense Verdict in Columbia County Medical Malpractice Case

Here is an update in regard to article about defense verdict in case of Kowalski vs Bloomsburg Hospital and Dr. Meloy out of Columbia County. It was learned from public sources that the case against Hospital was discontinued for reasons that are confidential and that the plaintiffs proceeded with the case at trial only against the physician defendant. No evidence was introduced by the Plaintiffs against the Hospital Defendant at trial but the verdict slip required the jury to assess the negligence claims against both Defendants for comparative negligence purposes.

$95 Million Dollar Jury Verdict in Lehigh County Against the 'Angel of Death'

On Friday, March 12, 2010, a Lehigh County jury of seven women and five men awarded $95 million to the decedents of eight people that serial killer Charles Cullen, the so-called "Angel of Death," allegedly murdered from 2000 to 2002 while working as a nurse at St. Luke's Hospital in Bethlehem, Pennsylvania. Plaintiffs' attorneys were Mark Altemose and Kelly Rambo.

According to an article by JD Malone in the Bethlehem Area News, the is the first civil judgment against Cullen, who has admitted to killing 29 people and attempting to kill 6 others by administering lethal doses of medication over 16 years at hospitals across the Lehigh Valley and western New Jersey.

Cullen did not participate in the civil trial. He currently is serving a life sentence in New Jersey. According to the article, Cullen has no assets to pay such a monumental verdict. In his criminal trials to date, he qualified for a public defender.

For more info on this case, click on this link to view JD Malone's article in the Bethlehem Area News: http://www.lehighvalleylive.com/bethlehem/index.ssf?/base/news-2/126837035246750.xml&coll=3.

Thanks to William Byrne, Esquire of Hoegen and Associates, located in Wilkes-Barre, PA, for bringing this article to my attention.

An Update on Pike County Jury Verdicts

I recently began recieving copies of the Pike County (Pennsylvania) Legal Journal, a weekly publication pertaining to matters in that county located in the Northeastern corner of the state where Pennsylvania meets up with New York and New Jersey. Among the items reported on are jury verdicts. I have summarized the information on those recent verdicts for you below.

Please note that it is my intention periodically update you on the reportings of these Pike County verdicts as part our ongoing efforts to keep you apprised on how juries are evaluating claims in this rural county that has a continuing influx of former New York and New Jersey residents. Perhaps a knowledge of Pike County jury verdicts in civil litigation matters may assist you in coming to a proper evaluation of claims arising in that county and the other surrounding rural counties in that area.

To my knowledge, none of the other surrounding counties provide this information in their legal journals. Should that change, I will include that additional information in later updates.

In the meantime, I will reach out to the writers of the legal journals of Lackawanna and Luzerne Counties to see if there is any interest in providing such information on a regular basis. I will also suggest to the writers of the Pike County Journal that it may be helpful to provide the attorney information so that attorneys can contact them for more detailed information or even to send a note of congratulations (or sympathy!).

The information secured on the recent Pike County verdicts is, as follows:

PIKE COUNTY VERDICTS
(Updated 5/4/09)

MCGINNIS V. CHERASARO
No. 202-08-Civil
Verdict Recorded 4/17/09
The Plaintiff sought damages for injuries sustained in a motor vehicle collision which occurred in Milford, Pennsylvania. The Defendant stipulated that his own negligence caused the collision, but disputed the allegation that the collision was a factual cause of the Plaintiff ’s injuries. Specifically, the Defendant argued that the Plaintiff suffered from a pre-existing condition. Following a two-day jury trial, the jury found in favor of the Defendant.
Presiding Judge: Hon. Gregory H. Chelak, J.


BARAK v. RESORTS USA
No. 1304-06-Civil
Verdict Recorded 4/7/09
Plaintiffs filed a negligence action against Resorts USA d/b/a Fernwood Hotel for a slip and fall that occurred in December of 2005 on the walkway leading to one of the resort buildings. After checking in at the hotel, the Plaintiff drove to the building his family was assigned. While walking around the building, the Plaintiff slipped and fell on ice on the sidewalk. As a result of this slip and fall, the Plaintiff sustained a broke ankle and underwent two surgeries to repair it.

Following a two day jury trial, the jury found for the Plaintiff. More specifically, the jury concluded that the Plaintiff was 40% negligent and that the hotel was 60% negligent in causing the Plaintiff’s injuries. Without consideration of, or a reduction for the attributed percentage of causal negligence, the jury awarded the Plaintiff, $12,378.28 in medical expenses and only $2,500.00 for pain and suffering for a total award of $14,878.28.
Presiding Judge: Hon. Gregory H. Chelak, J.