Hernandez-Lerch v. Gray, L. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JENNIFER HERNANDEZ-LERCH AND IN THE SUPERIOR COURT OF
KRISTOFER LERCH, HER HUSBAND PENNSYLVANIA
Appellants
v.
LERRYN L. GRAY, ET AL.
Appellee No. 842 MDA 2015
Appeal from the Judgment Entered May 6, 2015
In the Court of Common Pleas of Dauphin County
Civil Division at No(s): 2013-CV-5560-CV
BEFORE: PANELLA, J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY LAZARUS, J.: FILED MAY 17, 2016
Jennifer Hernandez-Lerch appeals from the judgment entered after a
jury awarded her medical expenses and lost wages in excess of $17,000.00
as a result of injuries sustained in a motor vehicle accident, but did not
award her damages for pain and suffering. Because the jury’s award of zero
damages for non-economic loss is against the weight of the evidence, we
reverse and remand for a new trial limited to damages.
Hernandez-Lerch suffered soft tissue injuries when the vehicle in which
she was a passenger was struck from behind in a chain-reaction collision
caused by Defendant/Appellee Lerryn L. Gray’s negligence. After a two-day
trial, the trial court entered a directed verdict against Gray on the issue of
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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negligence. The jury awarded Hernandez-Lerch $16,233.40 for medical bills
and $900.00 for wage loss and zero damages for pain and suffering.
Hernandez-Lerch filed a post-trial motion seeking a new trial on damages,
claiming the jury improperly failed to award damages for pain and suffering.
The trial court denied the motion and judgment was entered on May 6,
2015. Hernandez-Lerch filed this timely appeal. She raises one issue for
our review:
Did the trial court err in failing to award appellant a new trial where
the jury did not award appellant non-economic damages even though
the jury determined that the appellant sustained harm in the motor
vehicle collision and awarded her $17,133.40 in economic damages?
Determining the adequacy of a verdict is a matter for the sound
discretion of the trial judge, and we will not reverse absent a clear abuse of
discretion. Hawley v. Donahoo, 611 A.2d 311 (Pa. Super. 1992). A new
trial should be granted when “the jury’s verdict is so contrary to the
evidence that it ``shocks one’s sense of justice.’” Burnhauser v.
Bumberger, 745 A.2d 1256, 1260-61 (Pa. Super. 2000) (citations omitted).
A jury award should be set aside as inadequate “when it appears to have
been the product of passion, prejudice, partiality, or corruption, or where it
clearly appears from uncontradicted evidence that the amount of the verdict
bears no reasonable relation to the loss suffered by the plaintiff.” Womack
v. Crowley, 877 A.2d 1279, 1283 (Pa Super. 2005) (citations omitted).
The jury found Defendant Gray was negligent, that Gray’s negligence
was a factual cause of harm to Plaintiff Hernandez-Lerch, and that
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Hernandez-Lerch sustained economic loss (medical expenses and wage loss)
in excess of $17,000.00. See Verdict Sheet, 8/19/14, at 1-2. The evidence
was uncontested that Gray’s negligence caused Hernandez-Lerch’s injuries
(lumbosacral sprain and strain, cervical sprain), that Hernandez-Lerch was
treated with an epidural steroid to both her neck and her lower back, that
Hernandez-Lerch underwent physical therapy, and required the use of a
TENS unit and a home traction unit. Accordingly, the jury’s award of zero
damages for pain and suffering is not reasonably related to the evidence
presented at trial. The verdict is, therefore, against the weight of the
evidence.
The general rule is that victims must be compensated for all their
losses caused by the negligence of another. Boggavarpu v. Ponist, 542
A.2d 516 (Pa. 1988). However, not every injury results in compensable
pain. In Boggavarpu, plaintiff was bitten by his neighbor’s dog. Plaintiff
claimed that the tetanus shot administered in the hospital subsequent to this
bite pierced his sciatic nerve. It was uncontested that plaintiff was bitten;
however, the extent of the injury to the sciatic nerve was disputed. The jury
awarded plaintiff damages solely for the cost of hospital care, thereby
excluding damages for loss of consortium and pain and suffering resulting
from the pierced sciatic nerve. The trial court determined that the injury
dictated the award of some compensation, and ordered a new trial. Our
Supreme Court reversed, holding that not all pain is compensable. The
Boggavarpu court stated:
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[T]here are injuries to which human experience teaches there is
accompanying pain. Todd v. Bercini, 371 Pa. 605, 92 A.2d 538(1952). Those injuries are obvious in the most ordinary sense: the
broken bone, the stretched muscle, twist of the skeletal system, injury
to a nerve, organ or their function, and all the consequences of any
injury traceable by medical science and common experience as
sources of pain and suffering. Thompson v. Iannuzzi, 403 Pa. 329,
169 A.2d 777 (1961); Yacabonis v. Gilvickas, 376 Pa. 247, 101 A.2d
690 (1954); Todd, supra.Id. at 518 (emphasis added). However, a jury is not required to believe
“that every injury causes pain or the alleged pain.” Id. Furthermore, a jury
is free to believe that certain injuries are a “transient rub of life and living, a
momentary stab of fear and pain, or neither.” Id.
In Brodhead v. Brentwood Ornamental Iron Inc., 255 A.2d 120(Pa. 1969), plaintiff established negligent conduct on the part of the
defendant; however, the defendant contested the extent of the injuries
suffered. The Court found that even though there was no direct evidence
contradicting plaintiff’s testimony and his treating physicians’ testimony as
to the existence of contusions, it was within the jury’s province to pass on
credibility, and to find that the injury, in fact, did not exist. After review of
the record, the Court determined that because the only evidence of the
contusions was from the plaintiff and the doctor who treated him, and the
doctor was unable to substantiate his statements concerning his initial
examination and treatment of plaintiff on the day following the accident by
any records made at that time, such disbelief by the jury was not wholly
unwarranted. Id. at 122.
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In this case, however, and as fully set forth below, our review of the
record does not warrant such disbelief. The evidence of injury to
Hernandez-Lerch’s cervical and lumbosacral spine was uncontested, and the
physician’s and physician assistant’s testimony and records substantiated
Hernandez-Lerch’s injuries.
Hernandez-Lerch was a front-seat passenger in a 2012 Toyota Corolla,
driven by Iris Rivera Merced, on February 12, 2013, on Interstate 83 in York
County. Merced’s car was hit from behind by a 2010 Ford F-150 truck
operated by Defendant Earl R. Oberholtzer. Oberholtzer’s truck was hit from
behind by the vehicle operated by Defendant Gray, which Oberholtzer
described as traveling at high speed. The Toyota in which Hernandez-Lerch
was a passenger was then pushed into a Fed Ex truck that had been stopped
ahead.
Hernandez-Lerch and Merced were both removed from the Toyota by
ambulance personnel and taken to Harrisburg Hospital. Emergency room
personnel performed an x-ray of Hernandez-Lerch’s lumbar and cervical
spine and gave her narcotic pain medication. The next day, Hernandez-
Lerch was examined by Thomas Ladley, P.A. Ladley testified that the
cervical spine x-ray showed possible muscle spasms altering the actual
alignment of the cervical spine, common in neck injuries. Videotaped
Deposition, Thomas Ladley, P.A., 7/30/14, at 9. Ladley testified that the
working diagnosis was cervical neck strain and lumbosacral strain, defining
muscle strain as meaning “the muscles, the soft tissues have been pushed a
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little bit further than they should, either chronically or acutely as in the case
of the motor vehicle accident.” Id. at 12. He recommended conservative
treatment, which included physical therapy, continued pain medication, work
restrictions and follow-up care. Ladley saw Hernandez-Lerch one week later,
at which time Hernandez-Lerch stated that she was 75% improved, but
complained of headaches. Id. at 14. Ladley prescribed anti-inflammatories
for her headaches and refilled her pain medication. Id. at 15.
Hernandez-Lerch returned to see Ladley on March 5, and at this visit,
she stated continued improvement, some headaches and neck stiffness. Id.
at 16. On March 19, Hernandez-Lerch again saw Ladley, and reported a “set
back.” Id. at 17. Ladley ordered an MRI of her cervical spine and referred
her to an orthopedic surgeon. Id. at 18. He also testified that in his
opinion, within a reasonable degree of professional certainty as a certified
physician assistant, Hernandez-Lerch’s neck pain, low back pain, and
headaches resulted from the motor vehicle accident. Id. at 19.
Raymond Dahl, D.O., examined Hernandez-Lerch on April 4, 2013, and
diagnosed her with cervical sprain/strain and cervical sprain/strain.
Videotaped Deposition of Raymond Dahl, D.O., 7/23/14, at 5-8. Dr. Dahl
testified as follows:
Q: Could you tell us where the examination was and the results?
A: [Hernandez-Lerch] had a lot of tenderness involving her
cervicolumbar spine. She had pain with range of motion of her
cervical and lumbar spine. . . . She had had an MRI of her neck which
showed that she had some disc bulging and tightness around the
existing nerve root at C-5, C-6 on the right. She also had that at C-
3,4, as well as C-4,5. . . . [S]he had what we call degenerative disc
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disease. It’s some slight collapsing of the disc space. And when you
collapse something in this direction, it will bulge in this direction. And
so on the model, in her mid-cervical spine, there was some bulging of
the discs into the canal.
***
Q: Now, were these issues that existed before the motor vehicle
accident of February 2012?
A: In regard to her neck, I do not believe so.
Q: Okay. What about other diagnostic tests?
A: She had an x-ray, a plain film that was done at Harrisburg Hospital
I believe right after her accident, and that showed that she had some
straightening of her normal cervical lordosis which is typically
indicative of muscle spasm. . . . The normal neck is in a C, has a C-
shape[]. And hers rather than having the C, the neck was straight.
Q: Okay. And what is a spasm in that regard?
A: That’s when you will have a neck injury. The muscles around the
cervical spine or the neck can become very tight. . . . And that makes
the C become straight.
Q: Well, Doctor, given the history, your physical exam, your review of
the diagnostic tests, did you formulate a diagnosis?
A: The diagnosis was a cervical sprain, strain and a lumbosacral
sprain, strain. . . . Basically she had injured her neck and low back,
but I did not feel that there would be anything that would be surgical.
. . . At that point I recommended she try an epidural steroid injection
into her neck.
Q: Why? What is that designed to do?
A: What we do is I have a pain management physician inject the
epidural space which actually goes into the canal. And the epidural
steroid injection, the intent is, it’s the most potent anti-inflammatory
medicine we could give one and it really helps with inflammation and
pain.
Q: All right. Did she do that?
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A: Yes. . . . I sent her to Susquehanna Pain Management to Dr.
Haueisen. Then Dr. Haueisen performed the trans-foraminal epidural
steroid injection. . . . It’s just an injection into the neck. . . . I saw her
[again] on 5-17-2013. . . . She reported that with the epidural steroid
injection that she had in her neck, she actually was markedly
improved and the headaches she was having were much better. . . .
Q: Okay. Was she still using any medication?
A: Motrin.
Q: All right. How about the back, had that-- what is the story there?
A: She was continuing to have intractable low back pain.
Q: What do you mean intractable?
A: Where it is just unremitting. It’s there all of the time.
Q: Did you examine her that day?A: I did. . . . Basically it was pain
with bending in extension of her lumbar spine, and also she had a lot
of tenderness involving her lumbar spine, the low back. . . . At that
point, I felt that since she had done quite well with the epidural steroid
injection in the neck, I thought that we should consider an epidural
steroid injection in her lumbar spine.
Q: Did she do that?
A: Yes. . . . That was on June 26, 2013.
Q: And again, could you tell us when she came in to see you the end
of June 2013, what was the history?
A: At that point she was doing quite well. She had had the epidural
steroid injection in both her neck and low back. . . . Her headaches
were markedly improved. She had no problems in her arms or her
legs. And at that point, I felt that there was really no further
treatment that . . . she would need from me. . . . I recommended
that she continue the exercises that she had learned in physical
therapy, and then she could also use something called H-wave which is
a TENS unit, and also home traction, the home traction device.
Id. at 7-13.
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At the conclusion of direct examination testimony, Dr. Dahl opined that
within a reasonable degree of medical certainty, Hernandez-Lerch’s
“headaches, the neck injury and low back injury were a direct result of the
accident on February 12, 2013.” Id. at 13. On cross-examination, Dr.
Dahl acknowledged that Hernandez-Lerch had been seen prior to this
accident by Dr. Demuth, another doctor in his practice, for low back pain.
Id. at 16.
Hernandez-Lerch also testified. She explained that she had suffered
from low back pain prior to the February 12, 2013 accident, having injured
her lower back in an automobile accident in December 1997. She suffered
a herniated bulging disc, and was treated at the Orthopedic Institute of
Pennsylvania. N.T. Trial, 8/18/14, at 161-62.
With respect to the February 12, 2013 accident, Hernandez-Lerch
testified that she did in fact tell the ambulance personnel that she had
suffered a previous back injury and that she asked for Prednisone right
away. She stated that she knew “this was going to exacerbate the situation.
I needed medication for that.” Id. at 178. She also testified that she had
two injections in her neck and one in her back, and that after the injections
she did feel better and was able to walk on a treadmill and continue her
Zumba classes, but with low impact modification. Id. at 183-84. She
explained, however, that the injections did not afford lasting relief, that the
home traction unit helped with headaches, and that she used the TENS unit
“frequently,” and as recently as two days prior to trial. Id. at 186-91.
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Additionally, Hernandez-Lerch stated that prior to the February accident she
had a low back issue in August, stating, “I do have permission to call the
doctor to get Prednisone. It’s the only thing that relieves it. I was in
remission at the time of the accident, meaning from August 15th to February
12th I had no incident of back pain.” Id. at 192. She also stated at trial
that she continued to get headaches about “twice a month,” that she
continued to have low back pain, and that her “good days do not outnumber
[her] bad days.” Id. at 197.
The decision in Burnhauser compels reversal in this case. In
Burnhauser the jury awarded an automobile accident victim no damages
for pain and suffering, limiting damages to the victim’s unreimbursed
medical expenses. This Court held that since opposing experts both agreed
that the victim had suffered soft tissue injuries, which would require up to
six months to resolve, the verdict was against the weight of the evidence.
Burnhauser, 745 A.2d at 1261. We stated: “The jury should not have
limited the damage award to her unreimbursed medical expenses. Clearly,
these injuries are of the types that normally involve pain and suffering.” Id.Here, as in Burnhauser, the evidence was undisputed that as a result
of the February 12, 2013 collision, Hernandez-Lerch suffered cervical and
lumbar sprain and strain, that she suffered neck and low pain from these
injuries, as well as aggravation of her prior low back injury, and that these
injuries took at least four months to resolve. Defendant Gray did not
present expert testimony. As our Supreme Court stated in Thompson v.
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Iannuzzi, 169 A.2d 777 (Pa. 1961): “It is true that the jury is the final
arbiter of facts but it may not, in law, ignore what is patent to the eye,
obvious to the mind and clear to the normal process of ordinary
computation.” Id. at 778-79.
The fact that Hernandez-Lerch suffered pain from a previous accident,
sixteen years prior, does not negate the undisputed evidence that her
injuries were caused by the February 12, 2013 accident, and that those type
of injuries cause pain. The jury’s award, therefore, bears no reasonable
relation to the injuries suffered by Hernandez-Lerch. Burnhauser, 745
A.2d at 1261. See also Hobbs v. Ryce, 769 A.2d 469 (Pa. Super. 2001)
(jury verdicts awarding zero damages are against weight of evidence where
undisputed medical evidence reveals plaintiff suffered injuries in accident of
type normally associated with pain and suffering).
Based on the uncontested evidence of Hernandez-Lerch’s cervical and
lumbosacral strain and sprain, as well as post-concussive syndrome,
headaches, and unremitting low back pain, we conclude that Hernandez-
Lerch suffered compensable pain that amounted to more than a mere
transient rub of life. Boggavarpu, supra.
Judgment reversed and case remanded for a new trial limited to a
determination of damages. Jurisdiction relinquished.
Judge Platt joins the Memorandum.
Judge Panella notes his dissent.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/17/2016
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