Wright v. Residence Inn by Marriott, Inc. ( 2019 )

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2019 PA Super 110BRYAN WRIGHT : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
RESIDENCE INN BY MARRIOTT, INC. : No. 3607 EDA 2017
Appeal from Judgment Entered October 23, 2017,
in the Court of Common Pleas of Philadelphia County,
Civil Division at No(s): November Term, 2015 03381.
BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.
OPINION BY KUNSELMAN, J.: FILED APRIL 09, 2019
Bryan Wright appeals from the judgment entered following a jury verdict
in his favor in this slip-and-fall case. Although Wright succeeded in his claim,
he requested a new trial on damages only based on the trial court’s erroneous
preclusion of testimony from Wright’s sole medical expert. For the reasons
that follow, we reverse the trial court’s denial of a new trial.
Briefly, the relevant facts and procedural history are as follows. On
January 5, 2014, Wright was staying at the Residence Inn by Marriott—
Philadelphia Willow Grove, located in Horsham, Pennsylvania. That morning,
as Wright walked outside on a paved pathway from one building to another at
the hotel, Wright slipped on a four to six foot patch of ice and fell. As a result
of the fall, Wright injured his left shoulder and bruised his hip and shoulder.
He underwent treatment for his shoulder, including arthroscopic surgery. Trial
Court Opinion, 4/17/18 at 1-2.
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Wright filed suit against Marriott seeking damages for his injuries. A
two day jury trial was held in August 2017. On the eve of trial, during jury
selection, Marriott filed a motion in limine seeking to preclude the expert
report and video testimony of Wright’s sole medical expert, Paul Sedacca,
M.D., along with five other motions in limine. Plaintiff intended to have Dr.
Sedacca testify regarding the nature of Wright’s injuries, the cause of his
injuries, and his resulting treatment. The trial court granted Marriott’s motion
in part, but allowed limited testimony from Dr. Sedacca concerning Wright’s
medical bills. The next day, Wright asked the trial court to reconsider this
issue, but the trial court again denied his request. Consequently, Wright could
not present any testimony about Dr. Sedacca’s qualifications, or the objective
findings of Dr. Sedacca’s physical examination of Wright. He also had no
expert testimony regarding the nature of his injuries, the cause of those
injuries, or the resulting treatment and prognosis.
After presentation of all of the evidence, the jury entered a verdict
finding Marriott was negligent and Marriott’s negligence was the sole cause of
Wright’s injuries. The jury awarded Wright $8,896.44 for his medical
expenses and $55,000 for non-economic damages.
Dissatisfied with the amount, Wright filed post-trial motions arguing for
a new trial. He claimed the trial court erred when it ruled that his only medical
expert, Dr. Sedacca, was unqualified, because he was not an orthopedist, and
prohibited him from testifying at trial. This further precluded Dr. Sedacca
from introducing Wright’s medical records at trial. Given the timing of
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Marriott’s motion, the eve of trial, Wright could not obtain another medical
expert. Moreover, Marriott used the lack of medical testimony and medical
records against Wright during its closing argument. Wright believed that these
circumstances severely prejudiced him and warranted a new trial on damages.
The trial court denied Wright’s post-trial motions, and he timely appealed.1
Wright raises the following issues for our review:
Did the trial judge abuse her discretion by precluding the
testimony of Paul J. Sedacca, M.D. when he was qualified to
render opinions about plaintiff’s shoulder injuries?
Should Plaintiff be granted a new trial on damages when the trial
judge’s order precluding Plaintiff’s only medical expert was
prejudicial?
Appellant’s Brief at 3.
Our standard of review regarding a trial court’s ruling on a motion for
new trial is as follows: “The Court will not reverse a trial court’s decision
regarding the grant or refusal of a new trial absent an abuse of discretion or
an error of law.” Reott v. Asia Trend, 7 A.3d 830, 839 (Pa. Super 2010),
aff’d, 55 A.3d 1088 (Pa. 2012). Specifically, “‘[d]ecisions regarding admission
of expert testimony, like other evidentiary decisions, are within the sound
discretion of the trial court’ and ‘[w]e may reverse only if we find an abuse of
discretion or error of law.’” Hyrcza v. West Penn Allegheny Health Sys.,
Inc., 978 A.2d 961, 972 (Pa. Super. 2009) (quoting Smith v. Paoli Memorial
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1Being well acquainted with the issues in this case, the trial court did not
order a Pa. R.A.P. 1925(b) statement.
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Hosp., 885 A.2d 1012, 1016 (Pa. Super. 2005)), appeal denied, 987 A.2d 161(Pa. 2009). “The trial court abuses its discretion when it misapplies the law
or when a manifestly unreasonable, biased or prejudiced result is reached.”
Girard Trust Bank v. Remick, 258 A.2d 882 (Pa. Super. 1969).
Additionally, “for such evidentiary ruling to constitute reversible error, it must
have been harmful or prejudicial to the complaining party. A party suffers
prejudice when the trial court's error could have affected the verdict.” Reott,
7 A.3d at 839 (internal citations omitted). With this standard in mind, we
address Wright’s issues.
In his first issue, Wright contends that the trial court erred by refusing
to qualify Dr. Sedacca as an expert. Wright maintains that Dr. Sedacca
possessed the necessary qualifications and experience to offer his expert
opinion about the nature of Wright’s injuries, the cause of those injuries,
Wright’s treatment, and prognosis. Wright claims this ruling prejudices him.
Consequently, he seeks a new trial, but only on the question of damages. See
Wright’s Brief at 15, 35.
Marriott strongly contests Dr. Sedacca’s qualifications to testify. Also, it
claims that Wright waived his issue regarding expert testimony because he
failed to raise the issue of prejudice in his post-trial motion. Marriott’s Brief
at 19. Wright disagrees. He references several places in the record where he
addressed how he was prejudiced. See Wright’s Brief at 35.
Indisputably, “in order to preserve an issue for review, litigants must
make timely and specific objections during trial and raise the issue in post-
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trial motions.” Allied Elec. Supply Co. v. Roberts, 797 A.2d 362, 364 (Pa.
Super. 2002), appeal denied, 808 A.2d 568 (Pa. 2002). The purpose of
requiring that an issue be raised in post-trial motions is, in part, to give the
trial court an opportunity to correct any errors after it has made its initial
decision. See Benson v. Penn Central Transp. Co., 342 A.2d 393, 395 (Pa.
1975).
Our review of the record indicates that Wright objected to the preclusion
of Dr. Sedacca’s testimony at the time Marriott presented its motion in limine.
Additionally, Wright asked for reconsideration of the matter the next day.
Wright subsequently raised the issue in his post-trial motion.
However, Marriott contends that Wright must show that he was harmed
by the trial court’s ruling. Marriott thus argues that Wright needed to raise
prejudice as a separate issue in his post-trial motion.
We find that Wright did raise the issue of prejudice in his post-trial
motion. Wright specifically stated that “[d]uring oral argument on defendant’s
[m]otion in limine and the subsequent oral [m]otion for [r]econsideration,
counsel for [Wright] informed the trial court that Paul J. Sedacca, M.D. was
[Wright’s] ‘only medical expert witness’ and that [Wright] would be severely
prejudiced by the court’s [p]reclusion [o]rder.” Wright’s Post-Trial Motion at
12. Wright argued in his post-trial motion that the ruling was particularly
prejudicial given the lateness of Marriott’s motion to preclude Dr. Sedacca’s
testimony. Wright could not obtain a substitute expert.
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Wright further argued that he was prejudiced in his supplemental brief2
in support of his motion for post-trial relief. He claimed he “suffered severe
prejudice as a result of the trial [c]ourt’s decision to preclude his only medical
expert”, Dr. Sedacca. Wright’s Supplemental Brief at 21-23. The trial court’s
decision also affected Wright’s ability to introduce his medical records at trial.
Wright argued that this prejudiced him because Marriott used the lack of
expert testimony and medical records against him during its closing argument,
negatively affecting the jury’s verdict.
Moreover, in deciding Wright’s post-trial motions, we note that the trial
court did not find waiver. Rather, the trial court dedicated two entire sections
of its Pa.R.A.P. 1925(a) Opinion to address how its decision to preclude Dr.
Sedacca’s testimony did not prejudice Wright. See Trial Court Opinion,
4/17/18 at 5, 9. Thus, the record shows Wright raised the issue of prejudice
in his post-trial motion. The trial court had the opportunity to reconsider the
issue and correct any errors, satisfying the purpose of the rule regarding issue
preservation. Thus, we conclude that Wright adequately preserved this issue
for appeal. We now turn to the merits of Wright’s first appellate issue—
whether Dr. Sedacca was qualified to offer expert medical testimony in this
case.
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2 Even though this brief is titled “supplemental”, this is the only brief he
submitted in support of his post-trial motion. Marriott’s brief is likewise titled
“supplemental”.
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Pennsylvania Rule of Evidence 702 provides that an expert may testify,
“if scientific, technical or other specialized knowledge beyond that possessed
by a layperson will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training or education may testify thereto in the form of an opinion
or otherwise.” Pa.R.E. 702 (emphasis added).
The law regarding the qualification of an expert witness is well settled.
In Pennsylvania, the standard for qualification of an expert witness is a liberal
one. Miller v. Brass Rail Tavern, 664 A.2d 525, 528 (Pa. 1995). The test
to be applied when qualifying a witness “is whether the witness has any
reasonable pretension to specialized knowledge on the subject under
investigation.” Id. (emphasis added). The witness need not possess “all of
the knowledge in a given field” but must only “possess more knowledge than
is otherwise within the ordinary range of training, knowledge, intelligence or
experience. If he does, he may testify and the weight to be given to such
testimony is for the trier of fact to determine in view of the expert’s particular
credentials.” Id.Regarding medical experts, we have observed that “experts in one area
of medicine may be found to be qualified to address other areas of
specialization where the specialties overlap in practice, or where the specialist
has had experience in a selected field of medicine.” Chanthavong v. Tran,
682 A.2d 334, 338 (Pa. Super. 1996). In Chanthavong , the plaintiff sought
damages following a motor vehicle accident. The trial court precluded two of
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the plaintiff’s doctors from testifying at trial as expert witnesses, concluding
that they were not qualified as such. One doctor was the plaintiff’s family
physician, a board-certified general practitioner, who was offered to testify
regarding plaintiff’s spinal injury and the necessary treatment. On appeal, we
concluded that, because of the doctor’s training and experience, “he had a
reasonable pretension to specialized knowledge in the use of CAT scan reports
to diagnose and treat patients. The combination of his training and experience
with patients who have sustained personal injuries, qualified him to aid the
jury in its deliberations.” Id. at 339. In support of this proposition, we cited
Miller, supra. Similarly, the plaintiff’s second doctor was a board-certified
radiologist with a subspecialty in neuroradiology, who also had teaching
experience in this area. We concluded that he was qualified to offer an expert
opinion regarding the pain associated with the herniated disc that the plaintiff
had sustained. Id. As to both doctors, we held that the trial court should not
have excused either of them merely because a more specialized doctor (i.e.,
an orthopedist or neurologist) would have been more qualified. Id.
However, we recognize that there are times when the subject matter is
particularly specialized that a doctor from the field cannot offer opinions about
a different field of practice. See Dambacher by Dambacher v. Mallis, 485
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A.2d 408, 419 (Pa. Super. 1984), appeal dismissed, 500 A.2d 428 (1985).3
As we stated,
the scope of [a] witness’s education and experience may embrace
the subject in question in a general way, but the subject may be
so specialized that even so, the witness will not be qualified to
testify. Thus, every doctor has a general knowledge of the human
body. But an ophthalmologist, for example, is not qualified to
testify concerning the causes and treatment of heart disease.
Id. at 419. Both Marriott and the trial court believed this case was so
specialized that it warranted preclusion of Dr. Sedacca’s testimony. We
disagree.
Wright intended to offer Dr. Sedacca as a medical expert and disability
evaluating physician. Dr. Sedacca was to offer his opinions about Wright’s
injuries, particularly to his shoulder, their relation to his fall, and his
treatment, including the minor surgery on Wright’s shoulder and his
prognosis. In its motion in limine, Marriott argued that Dr. Sedacca did not
qualify, because he lacked any experience, education, or training in the
specific subject matter at issue – orthopedic surgery. Marriott stated,
“[s]imply, an internist is not qualified to testify as an expert witness of
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3Dambacher is a products liability case involving several experts. There, we
concluded that the proposed experts’ general knowledge about tires did not
qualify them to testify in that case where they had no education or experience
on the specific subject at issue of mixing radial tires with non-radial tires.
Although that case did not involve a medical expert, the Court, nonetheless,
went on to cite many cases where doctors were not qualified to testify in
certain circumstances, including cases from other jurisdictions. Id. at 420.
Additionally, we note that Dambacher was abrogated on other grounds
by Donoughe v. Lincoln Elec. Co., 936 A.2d 52 (Pa. Super. 2007).
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orthopedics”, relying on Dambacher. When ruling on the motion in limine
and post-trial motions, the trial court agreed, citing Wexler v. Hecht, 847
A.2d 95, 99-100 (Pa. Super. 2004) aff'd, 928 A.2d 973 (Pa. 2007) (holding
podiatrist not qualified to opine regarding standard of care for a malpractice
case against an orthopedic surgeon). Wexler references Damabacher to
support its conclusion.
Reliance on Wexler and Dambacher for the proposition that Dr.
Sedacca was not qualified to testify in this case, because he had only general
medical knowledge, is misplaced. Unlike Wexler, and many of the cases cited
in Dambacher, this case is not a medical malpractice case. In medical
malpractice cases, typically, our courts require a heightened standard for
medical expert testimony on the standard of care for a specialized area of
practice, if the defendant is a specialist.
On appeal, Marriott also relies on Kovalev v. Sowell, 839 A.2d 359(Pa. Super. 2003). There, this Court affirmed a trial court’s finding that
Kovalev, who represented himself in his personal injury trial, was not qualified
to testify as an expert witness about his own orthopedic injuries; Dr. Kovalev
only had general unrelated medical experience in the military and as a
psychiatrist in a substance abuse facility. Kovalev, 839 A.2d at 364.
However, in reaching this conclusion, even though Kovalev involved a motor
vehicle accident, the Court likewise relied on medical malpractice cases to
support its conclusion. Id. at 363.
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Because the test is whether a potential expert witness has any
reasonable pretension, the heightened standard of admissibility applicable in
medical malpractice cases does not apply in cases like this, where the
proffered expert is a medical doctor who routinely treats patients with the type
of injuries at issue. Moreover, Kovalev is distinguishable on its facts. Unlike
Dr. Sedacca, Dr. Kovalev’s training and experience were wholly unrelated to
any medical subspecialty pertinent to his case. Dr. Kovalev was experienced
in general internal medicine and the diagnosis and treatment of substance
abuse problems. Dr. Kovalev was not even able to prescribe medication in
the United States as he had not yet completed the requisite training to be able
to practice in this country. He did not routinely treat accident victims with
injuries like his own; Dr. Sedacca does. See id. at 363-64. We therefore
conclude that the trial court misapplied the standard for qualifying an expert
witness.
Applying the standard correctly, our review of Dr. Sedacca’s
qualifications shows, contrary to the trial court’s conclusion, that Dr. Sedacca
was qualified to testify in this case, as he possessed a reasonable pretension
to specialized knowledge regarding the Wright’s medical issues sufficient to
assist the trier of fact. See Miller, 664 A.2d at 528; Chanthavong, 682 A.2d
at 338-39.
At the time of trial, Dr. Sedacca was a licensed medical doctor in
Pennsylvania, who had been practicing for over thirty-seven (37) years. Dr.
Sedacca practiced in the area of internal medicine, which “encompasses all
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aspects of medicine”. As part of his internal medicine residency, Dr. Sedacca
rotated through all of the different subspecialties and surgical subspecialties
in medicine, where he was exposed to orthopedics and general surgery,
including neurosurgery. The practice of internal medicine includes dealing
with the musculoskeletal system and requires him to recognize potential
surgical problems with his patients, so he can refer them to an appropriate
subspecialist. Although he is not an orthopedic surgeon, Dr. Sedacca has dealt
with patients in his practice who have orthopedic or shoulder-type injuries.
He routinely refers patients for diagnostic tests, such as MRIs, and although
he is not a radiologist, he and other internal medicine physicians customarily
review and rely on the reports of those diagnostic tests to assist them in
formulating their own opinions about a patient’s diagnosis or conditions.
In addition, Dr. Sedacca is on staff at two hospitals. He also sits on a
physicians’ panel under the Heart and Lung Act, through which he evaluates
police officers and firefighters who sustain injuries in the course of their
employment. He sees Philadelphia police officers and firefighters on a weekly
basis who have muscular types of injuries to different joints. Dr. Sedacca also
performs medical evaluations for the Social Security Administration.
Notably, Dr. Sedacca has been qualified as an expert in the field of
internal medicine and disability evaluations in various courts. In these cases,
he evaluated and discussed orthopedic type injuries.
Based on these credentials, it is evident that Dr. Sedacca had more
knowledge than is otherwise within an ordinary layman’s range of training,
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knowledge, intelligence, or experience. That an orthopedist may have been
more qualified does not mean Dr. Sedacca was totally unqualified to serve as
an expert on causation and damages in this personal injury case. A witness
having “any reasonable pretension to specialized knowledge on a given
subject should be allowed to testify as [an] expert witness[] even though they
are not the ‘best possible witnesses’ available”. Chanthavong at 387-88
(quoting Taylor v. Spencer Hospital, 292 A.2d 449, 453 n. 2 (Pa. Super.
1972)) (emphasis added). Instead, the strength of Dr. Sedacca’s credentials,
relevant to the issues in this case, goes to the weight of his testimony, not its
admissibility. Consequently, we are constrained to conclude that the trial
court abused its discretion in precluding Dr. Sedacca from testifying at trial.
This, however, does not conclude our review. As discussed above, the
mere exclusion of evidence does not necessitate a new trial unless the
aggrieved party can demonstrate prejudice. “Evidentiary rulings which did
not affect the verdict will not provide a basis for disturbing the jury’s
judgment.” Detterline v. D'Ambrosio's Dodge, Inc., 763 A.2d 935, 938
(Pa. Super. 2000). Thus, notwithstanding our conclusion regarding the trial
court’s ruling on Dr. Sedacca’s testimony, Wright must demonstrate that the
ruling prejudiced him to the extent that the verdict would have been different.
Wright claims that the preclusion of his sole medical expert so late in
the litigation process prejudiced him, particularly with respect to the amount
of damages awarded. The trial court’s decision to grant Marriott’s motion in
limine enabled Marriott to emphasize Wright’s failure to present any medical
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expert at trial to the jury during its closing argument. Wright’s Brief at 36-
37. Wright further claims that, although he presented some medical records
under an exception to the hearsay rule, these records were not an adequate
substitute for expert testimony. Id. at 42. Despite these arguments, the trial
court concluded that Wright did not suffer impermissible prejudice as a result
of the preclusion of Dr. Sedacca’s testimony. Trial Court Opinion, 4/17/18 at
10-11.
The trial court based its conclusion on the fact that the evidence
presented at trial enabled the jury to find causation between the accident and
Wright’s injuries as well as the extent of the damages he sustained. The trial
court observed: Wright “testified at trial about the location and nature of his
injuries, his self-diagnosis, the different medical treatments he received and
their various successes or failure, and his ongoing pain and lifestyle
consequences of the injury. The jury clearly found this sufficiently provided
injury, causation, and damages.”4 Id. Because the jury found in favor
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4 In a personal injury case, when there is no obvious causal relationship
between the accident and the injury, medical testimony is necessary to
establish the causal connection. Smith v. German, 253 A.2d 107, 109 (Pa.
1969). Where, however, the cause of the injury is clear and the subject matter
is within the common experience and understanding of lay jurors, expert
testimony is not required. Montgomery v. Bazaz-Sehgal, 798 A.2d 742,
752 (Pa. 2002).
The instant case required expert medical causation testimony. The causal
connection between Wright’s fall and his injuries, especially the shoulder
injury that was diagnosed much later and that required surgery, was not
obvious. After the trial court erroneously precluded Wright’s medical expert
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Wright, concluding that Marriott was 100% liable for Wright’s accident, and
awarded Wright $55,000 in non-economic damages in addition to over $8,000
for his medical expenses without the aid of Dr. Sedacca’s testimony or Wright’s
medical records, the trial court determined that Wright was not prejudiced.
Id. at 10-11. Here, we find that the trial court abused its discretion.
Although Wright was successful on his claim, Wright did not get a fair
trial on damages due to the preclusion of Dr. Sedacca’s testimony. Without
Dr. Sedacca’s testimony, Wright could not offer a credible medical perspective.
Wright himself did not have any medical training or knowledge; he could only
explain his personal experience—what happened, how he felt, and the
treatments he received. However, there was no objective expert medical
testimony to corroborate his subjective testimony. Dr. Sedacca’s testimony
was critical to fully explaining to the jury what happened to Wright physically,
how his injuries affected him and the extent to which they affected him. Most
significant though is that Wright was not able to present evidence of his
prognosis and the impact this injury would have on him into the future.
These errors in Wright’s case were further compounded by Marriott’s
emphasis during closing argument on Wright’s failure to produce a medical
doctor at trial to tell the jury about Wright’s injuries or the effect on Wright.
Clearly, these errors could have affected the jury’s determination on damages
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from testifying regarding causation, it compounded the error by denying
Marriott’s motion for nonsuit. Wright’s testimony about his injuries and
treatment was legally insufficient to make out a prima facie case of negligence
for the jury.
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suffered by Wright. Consequently, we agree with Wright that the admission
of Dr. Sedacca’s testimony could have an effect on the outcome of this case
in a significant way. Crespo v. Hughes, 167 A.3d 168, 188-89 (Pa. Super.
2017) (granting appellant a new trial on damages only, where erroneous
evidentiary ruling on admission of testimony to show severity of injury and
future wage loss directly and adversely affected damages claims but not
liability claims), appeal denied, 184 A.3d 146 (Pa. 2018).
We therefore conclude that Wright was prejudiced, and the trial court’s
error is reversible. Wright is entitled to a new trial.
We now must determine the scope of the new trial. Wright argues in
his second issue on appeal that a new trial should be limited only to damages.
Marriott contends that granting a new trial on damages only would be unfair.
Marriott further argues that, since no request for a new trial on both causation
and damages was made, this Court cannot grant a new trial on both issues.
Contrary to Marriott’s argument, the law governing the scope of a new
trial, and not a party’s request, controls the issues on whether a new trial shall
be awarded. Catalano v. Bujak, 642 A.2d 448, 450 (Pa. 1994). Under
certain circumstances, the award of a new trial may be limited solely to the
issue of damages. Lambert v. PBI Indus., 366 A.2d 944, 955 (Pa. Super.
1976). A new trial solely on damages may be granted where: 1) the question
of liability is not intertwined with the question of damages, and 2) the issue
of liability has been fairly determined or free from doubt so that no substantial
complaint may be made with regarding that. Id.- 16 -
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In this case, the parties had a fair opportunity to litigate the issues of
negligence and contributory negligence. Both parties were represented by
counsel. Wright presented three witnesses: Wright, personally, who testified
as to what happened the day of the incident and what he observed about the
conditions of the property and the weather; the hotel manager, who testified
regarding the layout of the property, management of the premises, the hotel’s
policies and procedures to handle inclement weather, and the report of
Wright’s incident; and an expert witness in the area of engineering and human
factors who testified regarding Marriott’s compliance with industry standards
to reduce slip-and-fall hazards and compliance with township code,
particularly in snowy and icy conditions. Similarly, Marriott presented an
expert witness in the area of engineering who testified regarding compliance
with industry standards and the township code, and the presence of evidence
to support Wright’s theories of the formation of the ice patch. Each side had
the opportunity to cross-examine the other’s witnesses. Of particular note,
Marriott’s cross-examination of Wright included questions about how his
actions may have contributed to the accident. In short, each side had a full
and fair opportunity to present its case on liability.
The jury concluded that Marriott was negligent, i.e., that Marriott had
a duty to keep the sidewalk clear of ice, that Marriott failed to do so, and that
this failure caused Wright to fall. The jury further found that Wright was not
contributorily negligent. Neither party raised an issue regarding liability on
appeal.
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Further, the issue of damages is easily separable from the issue of
liability. The preclusion of the expert medical testimony solely relates to the
connection between Wright’s fall and the damages resulting from it. This case
is factually similar to our decision in Cooper v. Burns, 545 A.2d 935 (Pa.
Super. 1988), appeal denied, 563 A.2d 888 (Pa. 1989). In Cooper, the trial
court erred by allowing one medical expert witness to corroborate his own
expert medical opinion with that of another doctor through improper hearsay.
This error directly affected the evidence presented regarding the extent of
plaintiff’s injuries suffered in the accident. Because of this prejudicial hearsay,
we granted the appellant in Cooper a new trial. Since the issue of liability
was fairly determined, we limited the new trial to the issue of damages only.
Id. at 288-89; see also Crespo, supra.
Similarly, here, the trial court’s misapplication of the law directly
concerned the issues of Wright’s injuries and corresponding damages. Wright
complains that he was unable to introduce all of his evidence related to his
injuries due to Dr. Sedacca’s preclusion. But for Dr. Sedacca’s preclusion,
Marriott was prepared to move forward with its own medical expert testimony
disputing the relationship between Wright’s fall and his injuries. Because the
extent of Wright’s injuries resulting from the fall must be proven again, both
parties may present evidence of the damages Wright sustained as a result of
his fall. In other words, both parties will have the opportunity to present a
full and fair case on the question of damages.
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As we did in Cooper and Crespo, we will limit Wright’s new trial to
damages only. The trier of fact shall rehear and determine Question Six as
set forth on the verdict slip:5
State the amount of damages, if any, sustained by the Plaintiff
Bryan Wright as a result of the accident.
Economic Damages (medical expenses) $_______
Non-Economic Damages (pain and suffering, et cetera) $_______
Total $_______
R.R. at 178a; N.T. at 104
Judgment in favor of Wright vacated in part as to Wright’s award of
damages. Order denying grant of new trial reversed in part as to damages
only. Case remanded for a new trial on damages consistent with this Opinion.
Jurisdiction relinquished.
Judge Bowes joins the Opinion.
Judge Shogan concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/9/19
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5 The new verdict slip can omit reference to the causal negligence of Wright
since the jury already determined that Wright was not at fault in this accident.
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