Ferrara, B. v. Russella, J. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BENJAMIN FERRARA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSEPH RUSSELLA,
Appellant No. 406 EDA 2014
Appeal from the Order Entered December 30, 2013
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): January Term, 2012, No. 02399
BEFORE: BOWES, MUNDY, AND FITZGERALD* JJ.
MEMORANDUM BY BOWES, J.: FILED OCTOBER 14, 2015
Joseph Russella appeals from the trial court’s December 30, 2013
order granting Benjamin Ferrara a new trial following a defense verdict in
this negligence action arising from a rear-end motor vehicle accident. After
careful review, we affirm.
On January 25, 2010, Mr. Ferrara was stopped at a red light on Broad
Street in Philadelphia. A pickup truck driven by Mr. Russella struck Mr.
Ferrara’s vehicle in the rear with sufficient impact to force his knee into the
dashboard ashtray. Mr. Russella stipulated that he was negligent in causing
the accident but disputed the severity of the impact and the extent of Mr.
Ferrara’s injuries.
*
Former Justice specially assigned to the Superior Court.
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At trial, Mr. Ferrara offered expert medical testimony from orthopedist
Marc Zimmerman, M.D. and chiropractor James Robinson, D.C. Dr.
Zimmerman testified that, due to the accident, Mr. Ferrara sustained an
acute and chronic cervical sprain and strain; a small herniated disc at L4-5;
acute and chronic lumbosacral sprain and strain; and a cartilage injury to his
right knee. Deposition, Mark Zimmerman, M.D., 4/11/13, at 53-55. It was
his professional opinion that the injuries were permanent.
Dr. Robinson testified that he initially examined Mr. Ferrara on October
9, 2010. Mr. Ferrara reported ongoing right neck pain following the motor
vehicle accident despite taking an anti-inflammatory medication for pain
relief. N.T., 5/15/13, at 12-13. He also had intermittent bilateral low back
pain that increased with walking and right knee pain. Dr. Robinson’s
objective tests were consistent with Mr. Ferrara’s subjective complaints.
Due to low back pain, Mr. Ferrara had range of motion issues when bending,
extending, turning, twisting and leaning. Dr. Robinson treated him with
ultrasound, spinal manipulation, extremity manipulation, and myofascial
release one to two times per week for seven months. Id. at 15.
Dr. Robinson also testified that the MRI of the right knee demonstrated
a “cartilage injury to the non-weightbearing aspect of the medial femoral
condyle.” Id. at 21. Using the MRI, he pointed out to the jury the cartilage
defect and explained that it was grade III, which meant the defect was
“more than fifty percent torn,” with a grade IV being a tear all the way to
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the bone. He testified that the MRI of the lumbar region depicted a
herniated disc at L4-5; the neck MRI showed alignment changes in the
cervical spine due to muscle spasms caused by acute injury. Dr. Robinson
attributed all of the injuries to the motor vehicle accident and opined that
the herniated disc and the cartilage defect were permanent. Id. at 40. He
recommended injections to control the neck pain. All of Dr. Robinson’s
opinions were rendered to a reasonable degree of chiropractic certainty. Id.
at 42.
Defense expert Gary W. Muller, M.D., was asked what injuries, if any,
Mr. Ferrara sustained in the 2010 motor vehicle accident. He agreed with
Mr. Ferrara’s medical experts that he sustained a cervical and lumbar spine
sprain and strain superimposed on minor degenerative changes. The
physician disagreed, however, that the small disc herniation was related to
the accident. Regarding the knee, Dr. Muller concluded that Mr. Ferrara
sustained a contusion, a bad bruise, and he attributed the cartilage injury to
an unidentified prior knee injury. On cross-examination, Dr. Muller agreed
that Mr. Ferrara’s complaints of neck, back, and knee pain were consistent
from the time of the motor vehicle accident until his examination on
September 12, 2012.
Dr. Dan Nguyen, M.D., a neuro-radiologist, testified via videotaped
deposition. He reviewed only the MRIs of Mr. Ferrara’s neck and back, not
the knee, and expressly stated that he had no opinion whether Mr. Ferrara
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sustained an injury to the knee cartilage in the accident. Deposition, Dan
Nguyen, 2/6/12, at 41. Although he did not see evidence of an acute injury
on the MRIs of the back and neck, id. at 53, he declined to render an
opinion whether Mr. Ferrara was injured in the accident since he had not met
him. Id. at 50. Instead, he referred the question whether Mr. Ferrara was
injured to the physicians who treated him.
Based on the foregoing evidence, the trial court instructed the jury
that the parties agreed that Mr. Russella was negligent, and “the parties’
medical experts agree that the negligence caused some injury to the
plaintiff. You must therefore award damages for the injuries the plaintiff
sustained from the motor vehicle accident.” N.T. Trial (Jury), 5/16/13, at
122. It added:
The parties disagree, however, on the extent and the
seriousness of the plaintiff’s injury the defendant caused.
Therefore, you must decide the extent of the injuries the
defendant caused and return a fair and just verdict in
accordance with the law on damages that I’m going to discuss
now.
Id. The court then explained the five categories of damages that comprise
non-economic loss, both past and future. It informed the jury that damages
should be awarded for all related injuries, even if a pre-existing injury was
aggravated by the accident. Id. at 125.
The court submitted the following verdict slip to the jury:
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Question 1: Do you find that the negligence of defendant, Joseph
Russella, was a factual cause of injury to plaintiff, as a result of
the subject motor vehicle accident?
_______ ______
YES NO
(If you answer “No,” you need not answer any of the other
questions on this form, please return to the Courtroom. If you
answer “yes,” please proceed to Question 2.).
1. Question 2: What is the total amount of damages, if any, you
award to plaintiff?
$_______
Verdict Slip. Mr. Ferrara objected to the factual cause question and
maintained that the jury was required to award damages based on
uncontroverted evidence of some injury.
After the jury was excused to begin its deliberations, it sent a note to
the court asking: “If the accident aggravated preexisting injuries, satisfies
the question at hand.” N.T. Trial (Jury), 5/17/13, at 4. In response to that
question, Mr. Ferrara asked the court to reread that portion of its instruction
that dealt with aggravation of pre-existing injuries. The court decided
instead to instruct the jury that the question was for it to decide. Id.
The jury reached a verdict on May 17, 2013. In rendering the verdict,
the jury foreperson responded in the negative to the question whether the
negligence of the defendant was a factual cause of the injury to plaintiff.
Despite its negative response to the first question and the direction to
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proceed no further, the jury had answered the second question and awarded
zero damages.
After the verdict, Mr. Ferrara’s counsel formally placed several
objections on the record, including an objection to the court’s refusal to re-
instruct the jury on aggravation of injuries. Counsel also moved for
judgment notwithstanding the verdict (JNOV) based on the inconsistency
between the court’s instruction and the verdict slip. Given the stipulated
negligence and the fact that it was undisputed that Mr. Ferrara sustained
some injury in the accident, Counsel maintained the court was correct in
instructing the jury to award damages for those injuries. See Pa.S.S.J.I.
(Civ.) 7.50.1 However, the verdict slip, which asked the jury to determine
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1
Pa.S.S.J.I. (Civ.) 7.50 DAMAGES IN CASES OF UNDISPUTED NEGLIGENCE
AND INJURY
The parties agree that the defendant was negligent and [the
parties] [medical experts] agree that the negligence caused
some injury to the plaintiff. Therefore, you must answer "yes" on
the Verdict/Jury Interrogatory to Question # 1 and Question # 2
[whether the defendant was negligent or whether the
defendant's negligence was the 'factual cause' of harm to the
plaintiff].
You must therefore at least award some damages for those
[uncontested] [agreed-upon] injuries [specify damages--e.g.,
medical bills, lost wages, pain and suffering, etc.].
The parties disagree, however, on the extent of the plaintiff's
injuries the defendant caused. Therefore, you must decide the
extent of the injuries the defendant caused and return a fair and
(Footnote Continued Next Page)
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whether the defendant’s negligence was a factual cause of injury, was
incorrect and inconsistent with the instruction and the evidence. The second
question was also inconsistent because it asked the jury what, if any,
damages the plaintiff sustained. Counsel for Mr. Ferrara maintained that the
jury should have been directed to award damages for the uncontroverted
injuries.
The defense took issue with plaintiff’s characterization of the evidence.
Defense counsel argued that Dr. Nguyen did not concede that plaintiff
sustained an injury, and suggested that perhaps the jury found him credible
“that there was no injury related to this accident.” Id. at 16. Mr. Ferrara’s
counsel disputed the import of Dr. Nguyen’s testimony. Counsel maintained
that Dr. Nguyen testified that he did not know whether Mr. Ferrara was
injured, not that he was not injured. Moreover, Dr. Muller agreed with
plaintiff’s expert Dr. Zimmerman that there was injury to plaintiff’s neck,
back and knee, but disagreed that the herniation or cartilage defect resulted
from the accident. Id.
Mr. Ferrara filed a motion for post-trial relief, Mr. Russella filed a
response, and both parties submitted briefs. On December 30, 2013, the
court denied Mr. Ferraro’s motion for JNOV but granted his motion for a new
_______________________
(Footnote Continued)
just verdict in accordance with the law on damages that I will
discuss in greater detail now.
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trial on all issues. Mr. Russella timely appealed from that order and
complied with the trial court’s order to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. The court penned its Rule
1925(a) opinion, and the following issues have been presented for our
review:
1. Did the Trial Court properly submit the question of factual
cause to the Jury and, therefore, err in granting a new trial on
the basis of this submission, when the defendant challenged
causation through all phases of the litigation and presented
conflicting medical testimony as to whether the defendant’s
negligence was the factual cause of plaintiff’s injuries?
2. Did the Trial Court err in granting plaintiff’s post-trial motion
as to all issues where the Jury appropriately awarded plaintiff
zero dollars in compensable damage notwithstanding its
response to the factual cause interrogatory?
3. Did the Trial Court err in granting plaintiff a new trial based
on the undisputed injury instruction, because the Jury’s
receipt of this instruction was harmless error?
Appellant’s brief at 5.
We have long-recognized that
“Trial courts have broad discretion to grant or deny a
new trial . . . [and,] absent a clear abuse of discretion
by the trial court, appellate courts must not interfere
with the trial court's authority to grant or deny a new
trial." Harman ex rel. Harman v. Borah, 562 Pa.
455, 756 A.2d 1116, 1121-1122 (Pa. 2000) (internal
quotations and citations omitted).
Banohashim v. R.S. Enters., LLC, 77 A.3d 14, 22-23
(Pa.Super. 2013).
Kindermann v. Cunningham, 110 A.3d 191, 193 (Pa.Super. 2015).
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In reviewing the grant or denial of a new trial, we take a dual-pronged
approach. First, we examine the decision of the trial court that a mistake
occurred, applying the proper scope of review based on the rationale of the
trial court. Huber v. Etkin, 58 A.3d 772 (Pa.Super. 2012). Where the trial
court articulates a single mistake or a finite set of mistakes, our review is
limited in scope to the stated reason(s), and we must review the decision
under the appropriate standard. Morrison v. Department of Public
Welfare, 646 A.2d 565 (Pa. 1994). Where the trial court has left open the
possibility that other reasons may have warranted a new trial or orders a
new trial in the interest of justice, we apply a broad scope of review and
examine the entire record. “If the mistake concerned an error of law, the
court will scrutinize for legal error.” Id. at 776. In essence, we are
examining the validity of the trial court’s legal justification for a new trial.
Coker v. S.M. Flickinger Company, Inc., 625 A.2d 1181, 1184 (Pa.
1993). “If there were no mistakes at trial, the appellate court must reverse
a decision by the trial court to grant a new trial because the trial court
cannot order a new trial where no error of law or abuse of discretion
occurred.” Huber, supra at 776.
In the instant case, the trial court granted a new trial “because the
Jury Verdict Sheet should have clearly reflected the testimony of all the
experts.” Trial Court Opinion, 6/6/14, at 7. Specifically, the trial court
concluded that the first question should have apprised the jury that all the
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experts agreed that the defendant’s negligence caused some injury to the
plaintiff and that they must award some damages. The court also decided
that the second question, which asked the jury to award damages, should
not have included the “if any” language. Id. at 8. Instead, the special
interrogatory should have asked the jury to award damages for those
injuries factually caused by the defendant’s negligence. The court ruled
that, since it was undisputed at trial that the plaintiff sustained some injury
due to Mr. Ferrara’s negligence, an award of zero damages was improper.
Mr. Russella disputes that the evidence of some causally-related injury
to Mr. Ferrara was uncontroverted. He argues that, contrary to the trial
court’s representation, Dr. Nguyen did not concede that Mr. Ferrara
sustained any injury, and thus, the first question on the verdict slip was
appropriate. He maintains that the expert testified that Mr. Ferrara did not
sustain an injury, and that this testimony was in direct conflict with Mr.
Ferrara’s experts. Thus, he contends, the jury was entitled to find no factual
cause based on the conflicting evidence and the verdict form was correct.
Mr. Russella relies upon Holland v. Zelnick, 478 A.2d 885 (Pa.Super.
1984), and Henery v. Shadle, 661 A.2d 439 (Pa.Super. 1995), for the
proposition that the jury is entitled to find no factual cause of injury in the
face of conflicting expert medical evidence regarding causation or to award
zero damages for de minimus pain and suffering. In both cited cases, the
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defense presented expert medical testimony that the plaintiff’s pain was not
related to the accident.
After reviewing Dr. Nguyen’s testimony in its entirety, we agree with
the trial court that he did not render any causation opinion. Dr. Nguyen
certainly did not offer expert opinion that Mr. Ferrara did not sustain an
injury. In fact, he refused to do so. Dr. Nguyen’s opinion was limited to his
review of the MRIs of Mr. Ferrara’s neck and back. He did not review any
other medical records or reports; he did not examine Mr. Ferrara; he
admittedly did not know how the motor vehicle accident occurred. Nguyen
Deposition, 2/6/12, at 19, 20. When asked if he agreed with Dr.
Zimmerman’s diagnosis of the plaintiff’s injuries, he responded, “I cannot
make that assessment.” Id. at 36. He added that reviewing the reports of
treating physicians “is beyond the scope of my expertise.” Id. at 37.
Although he opined the MRIs did not reveal traumatic injury to Mr. Ferrara’s
back and neck and were consistent with degenerative disease, the expert
expressly refused to render an opinion that Mr. Ferrara was not injured. He
deferred to Mr. Ferrara’s treating physicians for the response to that inquiry.
We infer from Dr. Nguyen’s deference to the physicians who treated
Mr. Ferrara that the absence of evidence of trauma on the back and neck
MRIs was inconclusive as to whether Mr. Ferraro was injured. Furthermore,
Dr. Nguyen did not review the MRI of Mr. Ferrara’s knee and stated that he
had no opinion as to whether the knee injury was related to the accident.
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Id. at 41. In short, Dr. Nguyen did not render an expert medical opinion as
to whether or not Mr. Ferrara was injured in the accident.
The remaining defense expert, Dr. Muller, conceded that Mr. Ferrara
was injured, but disagreed with Mr. Ferrara’s experts as to the extent of the
injuries. Thus, the only defense expert to render an opinion on causation,
Dr. Muller, conceded that some injuries were related to the accident. Hence,
the record reveals that the expert medical testimony was conflicting only as
to the extent of the injuries attributable to the defendant’s negligence and
not as to whether the defendant’s negligence was the factual cause of some
injuries.
As succinctly stated in Andrews v. Jackson, 800 A.2d 959 (Pa.Super.
2002), “[w]here there is no dispute that the defendant is negligent and both
parties' medical experts agree the accident caused some injury to the
plaintiff, the jury may not find the defendant's negligence was not a
substantial factor in bringing about at least some of plaintiff's injuries.” See
also Womack v. Crowley, 877 A.2d 1279 (Pa.Super. 2005); Neison v.
Hines, 653 A.2d 634, 637 (Pa. 1995); Mietelski v. Banks, 854 A.2d 579,
583 (Pa.Super. 2004). The Comment to Pa.S.S.J.I. (Civ.) 7.50 provides
that, “when both medical experts agree that the plaintiff sustained some
injury in the accident, it would be a reversible error for the court not to
instruct the jury to answer ‘yes’ to the question of whether or not the
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defendant's negligence was a factual cause in bringing about any injury to
the plaintiff.”
In Mietelski, as herein, it was conceded that some, but not all,
injuries were incurred in the accident. In that case, however, the court
removed the factual causation issue entirely from the jury’s consideration.
The verdict slip did not ask the jury to determine whether the defendant's
negligence was a substantial factor in causing the disputed injuries. We held
that the jury should have been instructed that the defendant was liable only
for those injuries caused by the defendant's negligence. It was not
empowered, however, to reject the uncontroverted evidence that some
injury has resulted from the accident.
The court’s instruction, which was modeled after Pa.S.S.J.I. (Civ.)
7.50, was appropriate. Mr. Russella had stipulated to negligence; it was
undisputed that his negligence caused some injury to Mr. Ferrara. The
verdict form, however, improperly permitted the jury to reject undisputed
evidence that Mr. Russella’s negligence caused some injury. For these
reasons, we agree that the trial court erred when it overruled Mr. Ferrara’s
objection to the verdict slip and submitted the factual causation issue to the
jury as to both the disputed and undisputed injuries. The factual cause
question on the verdict slip was inconsistent with the court’s instruction and
permitted the jury to find no factual causation in the face of uncontroverted
evidence of some accident-related injuries. The verdict slip should have
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made a distinction between conceded injuries and disputed injuries and
required a jury determination of factual cause as to the latter.
Mr. Russella contends that any error in the verdict slip was harmless
for two reasons. First, he argues that, although Mr. Ferrara received the
benefit of an instruction of undisputed negligence and undisputed injury, the
jury still found no factual cause. Mr. Russella’s argument merely highlights
why a new trial was warranted: the error in the verdict form invited the jury
to disregard uncontroverted testimony of injury factually caused by the
accident, which it was not free to do.
Second, Mr. Russella argues that, even if factual cause was improperly
submitted to the jury, the error was harmless because the jury awarded zero
damages. He maintains that it was within the jury’s province to award no
damages if it believed the plaintiff sustained no compensable injury and de
minimus pain and suffering. He cites a number of cases for the principle
that, even where negligence is conceded, the jury is free to refuse to award
damages for subjective pain and suffering that is transient and minimal.
See Davis v. Mullen, 773 A.2d 764 (Pa. 2001); Boggavarapu v. Ponist,
542 A.2d 516 (Pa. 1988).
Mr. Russella’s argument misses the mark. First, the trial court did not
conclude that factual cause should not have been submitted to the jury.
Rather, it concluded that the issue was presented inconsistently with its
instructions and the applicable law. The jury should have been directed to
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determine whether the defendant’s negligence was a factual cause of the
disputed injuries, i.e., the herniated disc, the annular tear, and the grade III
cartilage defect. Trial Court Opinion, 6/6/14, at 7-8. Cf. Mietelski, supra(in rear-ender where the defendant admitted liability for some of the
injuries, but contested the causal relationship between the accident and
other injuries, court erred in failing to instruct jury on need for causal link
between negligence and those injuries). We concur in the trial court’s
assessment of its mistake.
Secondly, given the error in the factual cause question, Mr. Russella is
merely speculating that a zero award indicated a jury finding that Mr.
Ferrara’s pain and suffering did not warrant an award. We find it just as
plausible that the jury’s award of zero damages was simply entered to be
consistent with its answer to the first question, i.e., that the defendant’s
negligence was not the factual cause of injury to Mr. Ferrara.2
Mr. Russella devotes much of his argument to his contention that the
jury, as the sole judge of credibility, had the prerogative to disregard
uncontroverted evidence of injury and find no pain and suffering. He cites
Davis v. Mullen, 773 A.2d 764, 767 (Pa. 2001) (upholding jury award of
sum for medical bills but nothing for pain and suffering) and Boggavarapu
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2
Mr. Ferrara also argued that the jury’s finding of no factual causation/zero
damages was due to its confusion as to whether aggravation of a pre-
existing condition was sufficient to support liability.
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v. Ponist, 542 A.2d 516 (Pa. 1988) (upholding award of small sum for cost
of emergency room treatment and zero damages for pain and suffering), for
the proposition that, even in the face of uncontroverted injury, a jury award
of zero for pain and suffering is not necessarily against the weight of the
evidence.
In both Davis and Boggavarapu, however, there was no error in
either the instructions or the verdict slip that allegedly contributed to the
verdict. The jury found factual causation, awarded sums for medical bills,
but declined to award damages for pain and suffering. The issue was
whether the verdict was against the weight of the evidence, which is not the
issue facing us herein. In Davis, the Supreme Court held that the trial court
had a reasonable basis to believe that: (1) the jury did not believe the
plaintiff suffered any pain and suffering, and/or (2) a preexisting condition or
injury was the sole cause of the alleged pain and suffering. In
Boggavarapu, our High Court stated that a jury is not compelled to believe
that a dog bite or puncture by a needle causes compensable pain. “They
may believe that it is a transient rub of life and living, a momentary stab of
fear and pain, or neither.” Boggavarapu, supra at 518.
On the other hand, the Boggavarapu Court recognized that
[T]here are injuries to which human experience teaches us there
is accompanying pain. 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
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science and common experience as sources of pain and
suffering.
Id. In Hawley v. Donahoo, 611 A.2d 311 (Pa.Super. 1992), where the
defendant conceded liability and that the plaintiff suffered a compression
fracture of a vertebra as a result of the accident, we found the jury’s refusal
to believe in the existence of any injury unwarranted.
As we held in Majczyk v. Oesch, 789 A.2d 717, 721 (Pa.Super. 2001)
(en banc), “[t]the synthesis of these opinions is that where a defendant
concedes liability and his or her expert concedes injury resulting from the
accident that would reasonably be expected to cause compensable pain and
suffering, the jury's verdict is against the weight of the evidence where it
finds for the defendant.” Where the injury is obvious and liability is clear, an
award of zero damages historically has been overturned as against the
weight of the evidence. Casselli v. Powlen, 937 A.2d 1137 (Pa.Super.
2007).
In the instant case, there was legal error in the verdict slip that
permitted the jury to ignore conceded liability and related injury. Mr.
Russella would have us deem the legal error harmless because the result, a
zero verdict, could have occurred anyway. The issue herein is not whether
the verdict was against the weight of the evidence but whether the trial
court abused its discretion in finding that error in the verdict form compelled
a new trial. We agree with the trial court that the verdict form was
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inconsistent with the trial court’s instructions and erroneously invited the
jury to find no factual causation of any injury despite admitted negligence
and uncontroverted expert testimony that the accident resulted in some
injury to Mr. Ferrara. That error contributed to the verdict. We find no
abuse of discretion in the trial court’s award of a new trial on that basis.
Order granting new trial affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/14/2015
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