Polett, M. v. Public Communications, Inc. ( 2017 )

J-A23030-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MARGO AND DANIEL POLETT : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PUBLIC COMMUNICATIONS, INC., :
ZIMMER, INC., ZIMMER USA, INC. :
AND ZIMMER HOLDINGS, INC., : No. 80 EDA 2017
:
Appellants :
Appeal from the Judgment December 2, 2016
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): No. 02637, August Term, 2008
BEFORE: PANELLA, DUBOW, and RANSOM, JJ.
MEMORANDUM BY DUBOW, J.: FILED DECEMBER 15, 2017
Appellants, Public Communications, Inc., Zimmer, Inc., Zimmer USA,
Inc., and Zimmer Holdings, Inc., appeal from the December 2, 2016 Judgment
entered in favor of Margo Polett (“Mrs. Polett”) and Daniel Polett (“Mr. Polett”),
her husband (collectively “Appellees”) following remand to the trial court for
remittitur of the jury’s June 10, 2011 verdict. We affirm.
The parties are familiar with the facts and we will not restate them at
length here. Briefly, in August, 2008, Appellees commenced this litigation,
resulting in a jury verdict of $26,000,000 in favor of Mrs. Polett and
$1,000,000 in favor of Mr. Polett. The jury found Mrs. Polett to be 30%
contributorily negligent, so the court reduced the jury’s award accordingly,
and also added delay damages. The court entered Judgment on the verdict
in the amount of $19,602,141.23 for Mrs. Polett, and $700,000 for Mr. Polett.
J-A23030-17
Appellants moved for a remittitur, which the trial court denied. On appeal,
this Court, citing Murray v. Philadelphia Asbestos Corp, 640 A2d 446, 450
(Pa. Super. 1994), concluded that the jury’s verdict was “excessive—if not
punitive—and clearly beyond what the evidence warrants.” We remanded the
case for the trial court to remit the verdict. Polett v. Public
Communications, Inc., et al., No. 1865 EDA 2011 (Pa. Super. filed June 6,
2016) (unpublished memorandum).
The parties submitted Proposed Findings of Fact and Conclusions of Law
Relating to Remittitur on September 16, 2016.
On December 2, 2016, the trial court remitted the verdict against Mrs.
Polett by approximately 25%, thus reducing the verdict to $20,600,000. The
trial court also remitted the verdict against Mr. Polett by 10%, thus reducing
that judgment to $900,000.1 This timely appeal followed.2
Appellants raise the following two issues on appeal:
1. Did the trial court act within its discretion by remitting the
jury verdict in Mrs. Polett’s favor from $26.6 million to $20.6
million, given the evidence permitting the conclusion that Mrs.
Polett suffered devastating, relentless, and life-long injuries
from [Appellants’] negligence?
____________________________________________
1 The court then molded its remitted $20,600,000 verdict to $15,178,953.42
to reflect Mrs. Polett’s 30% contributory negligence and the addition of delay
damages. The court also molded Mr. Polett’s remitted $900,000 verdict to
$630,000 to account for his wife’s contributory negligence.
2 The trial court did not order Appellants to file a Pa.R.A.P. 1925(b) Statement.
-2-
J-A23030-17
2. Did the trial court act within it[s] discretion by remitting the
jury verdict in Mr. Polett[’s] favor from $1 million to
$900,000?
Appellants’ Brief at 1.
Appellants’ issues challenge the trial court’s remitted jury verdict; thus,
we address them together. Appellants, disappointed by the amount that the
trial court remitted the jury’s original verdict, claim that the trial court erred
by remitting the verdict to an amount that is as conscience-shocking as the
jury’s original verdict. Appellants’ Brief at 24.
In particular, Appellants argue that the court’s remitted award remains
grossly excessive and disproportionate to Mrs. Polett’s injuries given that her
claim consisted only of non-economic damages. Id. at 26, 36. Appellants
assert that, in fashioning the remitted verdict, the trial court failed to consider
any comparative jury verdicts, failed to remit the verdict in accordance with
the evidence that mitigated a significant damages award, and arbitrarily and
without explanation remitted Mr. Polett’s verdict by only 10%. Id. at 25, 43-
45. Citing a host of binding and non-binding cases alike, Appellants aver that
a verdict of $1,500,000 or less for Mrs. Polett and $250,000 or less for Mr.
Polett would be appropriate. Id. at 25-35, 42.
Pa.R.C.P. 223.3 sets forth what a jury may consider regarding
noneconomic damages:
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.
-3-
J-A23030-17
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 considering plaintiff’s claims for damage awards for past
and future noneconomic loss, you will consider the following
factors: (1) the age of the plaintiff; (2) the severity of the
injuries; (3) whether the injuries are temporary or
permanent; (4) the extent to which the injuries affect the
ability of the plaintiff to perform basic activities of daily
living and other activities in which the plaintiff previously
engaged; (5) the duration and nature of medical treatment;
(6) the duration and extent of the physical pain and mental
anguish which the plaintiff has experienced in the past and
will experience in the future; (7) the health and physical
condition of the plaintiff prior to the injuries; and (8) in case
of disfigurement, the nature of the disfigurement and the
consequences for the plaintiff.
Note: These instructions may be modified by agreement of the
parties or by the court, based on circumstances of the case.
Pa.R.C.P. 223.3; Hyrcza v. West Penn Allegheny Health System, Inc.,
978 A.2d 961, 979 (Pa. Super. 2009). Our Supreme Court has observed that
“[d]amages for pain and suffering are compensatory in nature, may not be
arbitrary, speculative, or punitive, and must be reasonable.” Haines v.
Raven Arms, 640 A.2d 367, 370 (Pa. 1994). The Court also recognized that,
“[t]ranslating pain and suffering into monetary figures” is a “highly subjective
task.” Id. However, the verdict resulting from this subjective task still
requires support in the evidence presented at trial.
-4-
J-A23030-17
In deciding whether a jury award should be remitted, our appellate
courts have considered the following factors: (1) the severity of the injury;
(2) whether plaintiff’s injury is manifested by objective physical evidence or
whether it is only revealed by the subjective testimony of the plaintiff; (3)
whether the injury will affect the plaintiff permanently; (4) whether the
plaintiff can continue with his or her employment; (5) the size of plaintiff’s
out-of-pocket expenses; and (6) the amount plaintiff demanded in the original
complaint. Kemp v. Philadelphia Transportation Company, 361 A.2d
362, 364–366 (Pa. Super. 1976).
“[J]udicial reduction of a jury award is appropriate only when the award
is plainly excessive and exorbitant.” Renna v. Schadt, 64 A.3d 658, 671 (Pa.
Super. 2013) (citations and some quotation marks omitted). The decision to
grant or deny remittitur is within the sound discretion of the trial court and we
will not reverse the decision of the trial court absent a “clear” or “gross” abuse
of that discretion or an error of law. Botek v. Mine Safety Appliance Corp.,
611 A.2d 1174, 1176 (Pa. 1992).
On appeal, however, the Superior Court is not free to substitute its
judgment for that of the fact finder. Id. And, we must review the record “in
light of the evidence accepted by the jury.” Smalls v. Pittsburgh-Corning
Corp., 843 A.2d 410, 414 (Pa. Super. 2004) (citation and quotation omitted).
Furthermore, “large verdicts are not necessarily excessive verdicts;
each case is unique and dependent on its own special circumstances.”
Hyrzca, 978 A.2d at 981 (citation omitted). When evaluating a request for
-5-
J-A23030-17
remittitur, the trial court must assess whether the award as measured against
the evidence introduced at trial “falls within the uncertain limits of fair and
reasonable compensation or whether the verdict so shocks the sense of justice
as to suggest that the jury was influenced by partiality, prejudice, mistake, or
corruption.” Dubose v. Quinlan, 125 A.3d 1231, 1244 (Pa. Super. 2015),
citing Haines, 640 A.2d at 369.
In deciding an amount of remittitur, the trial court may reduce a verdict
to no less than “the highest amount any jury could properly award” given the
evidence produced at trial. Neal v. Bavarian Motors, 882 A.2d 1022, 1028
(Pa. Super. 2005).
Given our deferential standard of review, Appellants’ claims fail. We
discern no gross abuse of discretion in the trial court’s remittitur of the instant
verdicts by approximately 25% and 10% respectively. The trial court’s
Opinion reflects that the court followed the direction of this Court, considered
the factors set forth in Kemp, supra, in light of the jury’s original verdict, and
adjusted the verdict accordingly. See Trial Ct. Op., 6/10/11, at 51-58. See
also Trial Ct. Op., 12/2/16, at 4-6 (noting the following factors that mitigate
the jury’s original award: (1) Mrs. Polett did not previously work outside the
home, thus, she was not entitled to compensation for the loss of this ability;
(2) Mrs. Polett was not prevented from engaging in all of her prior activities;
(3) Mrs. Polett did not claim losses for medical or out-of-pocket expenses; (4)
Mrs. Polett did not suffer amputation or cognitive losses; (5) Mrs. Polett could
conduct her activities of daily living, albeit with assistance; (6) Mrs. Polett was
-6-
J-A23030-17
not bed-ridden; (7) Mrs. Polett travelled extensively between 2006 and
November 2010; (8) Mrs. Polett suffered from pre-existing rheumatoid
arthritis; (9) Mrs. Polett had a medical history of knee problems and prior
treatments, including surgery; and (10) Mrs. Polett’s age).
Appellants’ heavy reliance on the persuasiveness of a survey of other
cases with smaller verdicts is unavailing. Appellants have not provided any
legal basis on which we can rely in order to consider other jury verdicts when
determining whether the trial court abused its discretion, and we are not
aware of any precedential authority standing for that proposition.
Last, we note that Appellants insist that Mrs. and Mr. Polett are entitled
to verdicts of not more than $1,500,000 and not more than $250,000
respectively. These figures represent a reduction of approximately 95% of
Mrs. Polett’s original verdict and 75% of Mr. Polett’s original verdict. Acceding
to this request would require us to substitute our judgment for that of the
jury, which we cannot do. Botek, supra at 1176.
Judgment affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/15/17
-7-