Deivert, M. v. Pittsburgh Chauffeur ( 2018 )

J-A06042-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
MATTHEW T. DEIVERT, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
PITTSBURGH CHAUFFEUR, LLC, :
:
Appellant : No. 1314 WDA 2017
Appeal from the Judgment Entered September 1, 2017
in the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD No 15-019904
BEFORE: BENDER, P.J.E., SHOGAN, and STRASSBURGER, JJ.*
MEMORANDUM BY STRASSBURGER, J.: FILED April 2, 2018
Pittsburgh Chauffeur, LLC, appeals from the judgment entered against
it on September 1, 2017, after a jury awarded Matthew T. Deivert $500,000
for injuries sustained during a limousine ride provided by Pittsburgh Chauffer.
We affirm.
The facts of this case are summarized in the trial court opinion authored
by the Honorable Alan J. Hertzberg, and filed on October 27, 2017; thus, we
need not recite them in full here. See Trial Court Opinion, 10/27/2017, at 1-
4. Briefly, on February 1, 2014, Deivert was invited by a friend to celebrate
her birthday, which involved riding between bars and night clubs in vehicles
owned by Pittsburgh Chauffeur. Around 2:00 a.m. on February 2, Deivert and
approximately 19 others “cramm[ed] into the limousine” meant to fit 10
people. Id. at 2. During the ride, Deivert felt intense pain near his knee, and
*Retired Senior Judge assigned to the Superior Court.
J-A06042-18
when he got out of the limousine, he saw a burn on his leg. Eventually, Deivert
was referred to a burn specialist, who diagnosed Deivert with having sustained
a third-degree burn. Deivert had two surgical grafts performed and was left
with two large, permanent scars on his thigh and knee.
On November 9, 2015, Deivert filed a complaint against Pittsburgh
Chauffeur alleging it was negligent in providing too small of a limousine to
accommodate the number of passengers that night. Deivert alleged that the
proximate cause of his third-degree burn was due to riding in that limousine.
A jury trial was held from May 9 to May 11, 2017. Prior to trial,
Pittsburgh Chauffeur presented a motion in limine to exclude testimony of
Deivert’s medical and causation expert, Dr. Gregory Habib. The trial court
denied that motion. The jury trial commenced, and on May 11, 2017, the jury
returned a verdict in favor of Deivert and against Pittsburgh Chauffeur for
$500,000. Pittsburgh Chauffeur filed post-trial motions, which were denied
on August 7, 2017. Pittsburgh Chauffeur filed a timely notice of appeal, and
both Pittsburgh Chauffeur and the trial court complied with Pa.R.A.P. 1925.
On appeal, Pittsburgh Chauffeur sets forth the following six questions
for our review.
1. Whether the court abused his discretion or committed an
error of law in denying the motion in limine to exclude testimony
of [Deivert’s] medical expert when Dr. Habib could not support his
methodology opinion with medical literature, studies or testing
and when his testimony lacked foundation to support his opinion
that an injury of this severity could ever be caused in the manner
as alleged.
-2-
J-A06042-18
2. Whether the court committed an error of law in denying the
motion for post-trial relief and/or the motion for judgment
notwithstanding the verdict when the verdict was against the
weight of the evidence and when [Deivert] lacked competent
evidence in the form of medical testimony or otherwise show that
an overloaded or overcrowded limousine could result in a full
thickness third[-]degree burn caused by one person’s leg rubbing
against another under the circumstances presented or under any
circumstances.
3. Whether the court abused its discretion or committed an
error of law in denying the motion for post-trial relief when the
court permitted [Deivert’s] medical expert, Dr. Habib, to give
testimony in the form of argument; to assign an unfair burden of
proof upon [Pittsburgh Chauffeur]; and to testify that [Pittsburgh
Chauffeur’s] expert testimony was defective for failing to provide
an alternate theory of causation.
4. Whether the court abused its discretion or committed an
error of law in denying the motion for post-trial relief when the
court refused proposed points for charge regarding the mere
happening of an accident; the mere fact of damages and
speculation not being a basis for any award.
5. Whether the court abused its discretion or committed an
error of law in denying the motion for post trial relief when the
court re-drafted the jury verdict slip to have the jury question on
negligence refer to the standard of care – “highest duty of care,”
as opposed to whether or not Pittsburgh Chauffeur was negligent.
6. Whether the court abused its discretion or committed an
error of law in denying the motion for remittitur.
Pittsburgh Chauffeur’s Brief at 3-5 (unnecessary capitalization omitted).
Following a review of the certified record and the briefs for the parties,
we conclude that the opinion of the Honorable Alan Hertzberg thoroughly
addresses Pittsburgh Chauffeur’s issues and arguments and applies the
correct law to facts that are supported by the record. We discern no error or
abuse of discretion. Therefore, we adopt the trial court’s opinion of October
-3-
J-A06042-18
27, 2017 as our own and affirm Deivert’s judgment based upon the reasons
stated therein.1 See Trial Court Opinion, 10/27/2017, at 4-8 (explaining that
it did not err or abuse its discretion in denying Pittsburgh Chauffeur’s motion
in limine seeking to exclude Dr. Habib’s testimony where Dr. Habib did not
employ a novel methodology, and Dr. Habib did not need to support his expert
medical opinion with literature or studies); id. at 6-9 (concluding that it did
not err by not granting judgment notwithstanding the verdict or by not
awarding a new trial with respect to purported inaccuracies in Dr. Habib’s
testimony);2 id. at 9-11 (concluding that there was no error in the jury charge
____________________________________________
1 The parties shall attach a copy of the trial court’s October 27, 2017 opinion
to this memorandum in the event of further proceedings.
2 Pittsburgh Chauffeur also claims that the verdict was against the weight of
the evidence. See Pittsburgh Chauffeur’s Brief at 33-42 (arguing the
testimony of “Deivert and his two friends was grossly incompetent,” and that
the “expert testimony by Dr. Habib … does not support a conclusion that an
overloaded or overcrowded limousine could result in” the injury Deivert
sustained).
A motion for a new trial alleging that the verdict was against the
weight of the evidence is addressed to the discretion of the trial
court. An appellate court, therefore, reviews the exercise of
discretion, not the underlying question whether the verdict is
against the weight of the evidence. The factfinder is free to believe
all, part, or none of the evidence and to determine the credibility
of the witnesses. The trial court will award a new trial only when
the jury’s verdict is so contrary to the evidence as to shock one’s
sense of justice. In determining whether this standard has been
met, appellate review is limited to whether the trial judge’s
discretion was properly exercised, and relief will only be granted
where the facts and inferences of record disclose a palpable abuse
of discretion. Thus, the trial court’s denial of a motion for a new
-4-
J-A06042-18
where Pittsburgh Chauffeur’s proposed points for charge were repetitious); id.
at 11-12 (concluding that it did not abuse its discretion in fashioning the
verdict slip in a way it believed would not confuse the jurors); id. at 12-15
(concluding that it did not abuse its discretion in failing to grant remittitur
where Deivert suffered a third-degree burn, which is a severe injury leaving a
permanent scar).
Judgment affirmed.
PJE Bender joins the memorandum.
Judge Shogan files a dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/2/2018
____________________________________________
trial based on a weight of the evidence claim is the least assailable
of its rulings.
Commonwealth v. Cousar, 928 A.2d 1025, 1035-36 (Pa. 2007).
Here, we recognize that the trial court did not explicitly address a
weight-of-the-evidence claim in its opinion. However, based upon its
conclusions regarding Dr. Habib’s testimony on pages 4 through 9 of the
opinion, as well as its overall analysis, it is evident that it concluded that the
verdict was not so contrary to the evidence that it shocked the trial court’s
conscience. Accordingly, we conclude that there was no abuse of discretion
in this regard, and Pittsburgh Chauffeur is not entitled to a new trial on this
basis.
-5-
J-A06042-18
-6-
f-J-C(()ULf ()(. -- i 6
Circulated 03/07/2018 02:39 PM
. .
IN TIIE-COlJ�T QF:COMMON RLEA.,S ·O;FALLEGHENY ·COUl'tl�Y, PENNSYLVANIA.
CIVIL DlViSION
MATIHEW:DEIVERT
. - .... ,..
. '
Plaintiff,
CA.SE.N'O,.GD 15·-19904
Superior Court .docket .no ..
PIITSBURGH: CHAtJfB.EQ.R, _LLC, 1314 WDA 2Ql7.
Defendant.
OPiNl()N.
. '�
'
I·
j.
JUDGE.ALAN HERTZBERG, J
!
·1i
.!
t
r
CoQNSEL FOR PLAINTIFF·:
RICHARDTALARiCO, '.E�Ol)IRE' 1
:294S .BANKSV:ILLE.RoAD·.-·S.l.UT,E �()() . 1
PIITSBURGI-I,;PA. JS216
·CQt.iNS;EI:.FOR.DEFENDANT�
£A.TH(EEN .MCALLLISTER,· E$QU.IRE
c_..-;. 20:SrANWlx StREET- rrn:, FLOCDR
PITISBURGH* PA 152.ZZ
·r-
....... , .. , N
CIVIL· ])IVISJON
. ...... ,
MATTHEW DEIVERT .
Plaintiff,
CASE NO; :GDlS-19904
vs_..
Superior Court docket n:<:t.
,J?ITTSBURGH .CHAUFFEU�, LL¢; 1�;1-4, WbA. 2017
'Defendant.
·<)PINiON
.AI�n tt�(�berg; Judge Date. 'filed: October 2q� 2017'
L Background
Plaintiff .Matthew Deivert; age :2S:,. was :i.t;iv'iteq to celebrate, the. birthda y of a· friend,
named Chelsy· during the evening ofFebruary 1, 2014. Mt. Deivert took _a taxi to g�t to
Chelsy's· home 'located .in the Southside Slopes. neighborhood; of :l>1tt�burgh .. A gr0t1p. of
'between thirty .and forty' people, which .included, ft01.end�- Mr, Deivert knew from attending
AlJ.egheilY. College, .began the, celebration by .$Qcialiiifig and. drinking alcoholic beverages
at Chelsy's home. Then, the 'birth gay celebration moved via a.party bus provided ·by
Defendant.Pittsburgh Chauffeur, LLC to .a dance club :in J�jt($�µrgh 's Strip· District .called
Cavo. Nightclub.
Mr, Deivert 'and the· others danced, socialized and consumed alcoholic beverages
untilCavo N}ghtclubdosed at2:00 a.m. For thetrip ba;e:;k toChelsy'sihome.Pittsburgh
Cha.uf.t:�r provided a.limousine designed to accommodate ten passengers. Mr. Deivert
was.oneofthe.first passengers togetinside the limousine and takea.seat. !twas.cold
J
and back to Chelsy" s home as quickly as possible, Thi's. resulted in approximately twenty
people· rapidly cramming j:ri.ta.,_te; M�y '.9,
:.iO, u, ..2017{"T/' hereafter), p. in.
· At a speed of approximately fifteen miles an :_b.9l!r; the limousine, tide lasted ·for
tweniy to twenty-five minutes, with i( "bottoming out" when.going.around some corners,
·Mr; Deivert' s right knee was .driverr against the 'knee of the man next to .him with- such
force: that it became, painful, Of.course, h� �tt�.mpted to extricate his leg, but pet,ple were
so tightlysqueezed togetherthathis knee remained wedged.in place. Although Mr,
'l>e.'iv�rt played small. college and semi -professional football, his size, five feet five .inches
tall 'and less' than one hundred fifty ,pounds,.. fs atypical for a football player- and 'he did not
a_ppeat to be unusually strong.. He.p_ie.;i_4ec;l with peopletoplease move, but they were
unable to do so, He. screamed because the pain on the· side, of his .knee was .increasing as
he .squirmed to, try to remove his knee 'from the vice-like �itu�tion .. He screamed to the.
driver to. stop the limousine. and let him out :(T.r p .. 80)� but this did not happen. Mr.
Deivert was finally able to "'break.free!•· about one or two minutes before, the vehicle
Immediately .after.Mr; Deivert, gof out of the· limousine, with 'both men and.
women present, he pulled :hi� pants down to look ai the side of' his. right knee, M.r..
a.brushburn" with the top layer of skin removed. ;t, pp. 81-82:. Apparently it was a
gruesome sight .as ''[�] �01,1pl� of people were like, whoa, what: is that, then t1,1:r.ned around
cell phone. and sent ihe. photograph by text message to. some of his friends Who had been
in the limousine,
. �
The-wound iH4 DQt improve.rand on February 6 Mr.Deivertwentto a Ul"MC:
V:/,;!.lk�In'Clin'ic. .Aphysicianfhere examined the woundanddirectedMr.Deivertto goto
the emergency room ·at Mercy Hospital. From :-:Me.rGy Hospital's emet�ertcy room Mr,
Deivert was. transferred . to the burn unit, the physicians there first· attempted to· heal the
wound.by applying creams and wrapping-it, but.the technique was unsuccessful, Instead,
Mr. Deivert.had asurgical procedure later m.Febnmry involvingthe.placernent of
cadaver skin over the wound, li:i: MarGh.· :M_r. Deivert had. a second surgical .procedure,
The ·physkia_ns- harvested .skin from Mt. Deivert's right thigh and ,grafted fr to the wound,
-\Vh.He the skin graft eve11tually healed. the wound, Mr, Delver; was left. with ·two large,
permanent. scars. on .his right leg. One. ..scar _1�- fcoated :qn the -outside of his· knee and the
other scar' is located· 'on his thigh v.ih�re the skinwas harvested from his thigh.
·Mr.; ):)eivert commenced this litigation .irr November of. 2_0iS by· filinga complaint
averring negligence by· Pittsburgh Chauffeur. th�. depositions of nine of the. other,
JJassertgers were: taken -during.the discovery process, but an provided. testimony consistent
with.Mr, Deivert's ,q��ci:ipt.iQn of: the limousine 'ride. The dispute.was assigned -to me. for
resolutionbyway of.a.jutytrial.
Preliminaril y� counsel argued motions z,r 'limine. to obtain. rulings on evidentiary
'issues expected to arise during the trial. Pittsburgh Chauffeur submitted 'a motion }ii.
limine to· exclude the causation.testimony ofphysician ;Gregory Ht1bib, because: he
allegedly utilized novel. science that is. not :g�nerally accepted. among physicians. See.
Frye v� 'Onited_·States� 2_9;3 'f,. 2d 1Q13. (D.C Cit. 1-923) (adopted first in.Pennsylvaniain
:Comniortw�alth v.. Topa, 471 Pa. 223, 369 A.2d 1277{1977) and then in: Pennsylvania
RuleofEvidenceno. 702(c)t Afterhearingargument.from counsel, I dep.ie_d themotion
'and allowed the.Jury to view DI\ Habih's vi'<:\eot&pe.d-d�positfon�: ll1e 1wy also received
Hve. testimony from. Mr, .Deivert, two of his friends, the· limousine driver, the owners of
Pittsburgh Chauffeur, .as well as the'videoiaped. deposition. of'its physician .e'.xJ>ert witness;
Dr; James Cosgrove. Pittsburgh Chauffeur's defense was that the 'injury resulted from
some unidentified cause other than, its overcrowded .limousine. Rejecting this .defense,
the- Jury reached .a.unanimous verdict in favor of Mr. Deivert in 'the amount of $500;000.,
Pittsburgh Chauffeur- appealed from the-Judgment entered on the verdict? and J
write: this. Opinion to exp fain the rulings identified in its Concise Statement of Errors
Complained o.f: on.Appeal '("Concise, Statement" hereafter). .See Pennsylvania Rule: of.
Appellate Procedure No. 1925(a).· Most of Pittsburgh Chauffeur'scemplaints concern
.my rulings on Dr .. Habib's videotaped deposition .. See; Concise- Statement, 'IJ'.nos., 1, 2, 3,
:4 and' 5....
IL Plaintiff's, Expert Testimony
Pittsburgh Chauffeur first contends, l erroneously denied {ts .motion in limine. It
argues Dr .. }l.abfb''_s_ opinion.on causation is. inadmissible pursuant to ;Frye'v. United:
States_,. because :h�: relies' on novel science that .is not generally accepted among
_physicians� However, Pittsburgh Chauffeur incorrectly interprets Frye. The
Pennsylvania Supreme, Court has emphasized' that vafi.�f challenges under Frye must be
madeto.a novel methodology: and.not to an.expert's conclusions; which· need not be
generally accepted by the relevant scientific community. See, Commo_n�ealth ·v. P·uksar�
4
·,-----
.
Pa.,5.4,:890A:it. .Habib to· testify that the wound' developed over ,a bony
Pittsburgh Chauffeur next contends .1):r:; Ha,t;>jb \ testimony about necrotic· tissue-
was contradictory c1,_11.9_ he was unable to quantify the .amount offorce necessary to cause.
Jh� injury, See.Concise Stateme·nt,.,r ho. L. However, thisis simply an argument.thatDr.
Habib.was not credible.which Pittsburgh.Chauffer's counsel made.to t.h_e;Jµry. See t,.
pp •. 314�317, Since this .clearly· does. nm make Dr, Ha.bib; s, opinion or any. etherpart of
h_is:.fesJimony .inadmissible, his-opinion oh the..cause of'Mr: Deivert's 'injury was properly
admitted into evidence..
Pittsburgh Chauffeurnext contends. l should have .granted judgment
notwithstandingthe.verdict' or .a new trial 'because there was 'not competentevfd�nc�'-1.ha.J
6
'See Concise Statement; ,l':nos� ·2 and.S .. This �fgtl.IJl�nt.i& metitl�.s�. :(.!).�· testimonyby
Mr: Deivert a.n.d two ·ofhis friends who were 'in the· limousine was competent evidence
that the overcrowded limousine caused Mr. Dcivcrt's inJuries. hi addition, the· expert.
I
medical testimony from Dr.. Habib was competent evidence that, the overerowded
Iimousine caused. Mr, Deivert's. .injuries, f�na,(ly ,. even though: 'it was Dt Cosgrove's, i
l
·1
opinion that the. overcrowded limousine .did not cause Mr. Delveri's injury, he
.acknowledged .seeing pressure injuries: .develop over bony prominences, .and :h.e.woµfhysicians, and 'he- is.permitted to rely
on his. own education and experience for .his opinion, Therefore, 'this. contention fo.¢ks.
anymerit,
Pittsburgh Chauffeur next. contends r erroneously permitted Dr .. Habib "to give.
testimony outside· of the. scope: of his. report." Concise Statement; ,r no .. 5'., In tb� llrief !U
Support.ofDefendant' s Post-Trial .Mo.t_fon.�, that testimony from br: Habib is described as,
criticism. ofDr; Cosgrove, the. force required to cause J'>tessure sores and the way burns
7
progress. Pennsylvania Rule .of.Civil Procedure No; 4003.•5(c) prohibits: "direct
te$tlll1,0.IJY o! the expert at, tria] .... .beyond thefair scope 0('11.�s or her" expert's J�po1J.
Whi1.01e pµrpy
comment oh 'credibility is' describea .as Dr; Habib. saying: he believed Mr: Deivert and .his
friends had. given truthful deposition testimony about what occurred .duringthe limousine
ride. Again, these are.facts that Dr. Habibproperly could assume. in.renderinghis
··J.'··· ...... . .,. .. ;,/ - � . - . -· ..• '• . ' . ., . . . . . ·-·· .. ····\�-- ..
Mt. Deiven "has a case· of.what.is called. false attribution," Deposition of. Cosgrove, p.
43. Therefore, this testimony by· Dr. Habib was permissible ..
Pittsburgh. Chauffeurnext contends: that. Dr . Habib'stestimony about: the
overcrowded 'limousine. befog the .only id.eritifi.¢d: cause .qf injury assigned "an unfait
burden of proofupon ·the Defendant," Concise Statement, ,r110, $., T.lli:s. contention lc!.cl�&
'any .merit.because I instructed the Jury' that' 'f(Uhe· Plaintiff has· the burden of
proving .... .the. defendant' s negligence was a factual cause: in bringing.abou t the harm."
T .. , -p. 345; Pennsylvania Suggested 1.uty Instruction {Civil). No. 5.0t). Hence, .an unfair
burden of proofwas 'not assigned.
Pittsburgh· Chauffeur .nexr contends. I erroneously 'permitted Dr .. Habib "to. testify
that Defendant's .expert. testimony was 'defective: .fgr failing to provide: �P alternative
theory of causation." Concise Statement, ,r no. 5. However, as pointed'. out. above, Dr.
Cosgrove is critical of Dr; Habib; He criticized Dr.'. Habib fornot being, a treating
physician and 'haying an inconceivable opinion on causation, S�e Deposition _oJ
tqsgrove, p. 24-2S. and 4$-46, Relative to.causation, br. Cosgrove also testified Mr.
Deiveri falsely- attributed the wound to· the limousine tide; Since ·it would therefore.be
unfair to disallow criticlsm of Dr; Cosgrove' s opinion on causation, I properly permitted
the testimony from '.Dr; Bab.it;> .
.III. Jury Charge and Written verdict.Form
Pittsburgh 'Chauffct next takes issue with my .instruotions to the Juryon the,
applicable Jaw. :It: contends. "the Court abused i.t.s q1_$cxetic;m and committed error. in
denying Defendant's Points for 'Charge .. , regarding the mere h�prenint· of 'an accident,
9
Statement, ·;J. no. :6. 'Instructions 'Ot the "charge" to: thejury- is adequate "unless there, is an
omission .in the. charge 'which amounts to a· fundamental error. �' Quinby v .. Plutr1steadvilk
Family .Practiee,, 'Inc:, 5.89 Pa.183, 197, 907 A.2d 1061;.1069�1070 (200.6). My denial .of
preponderance. of the: evidence- with the occurrence of an accident not being evidence. of
negligence, was notfundamental error. Such a. charge would have been repetitious: or the
concepr' sufficiently ·cove.red by the' charge l gave the }'ury that defined preponderance of
die evidence .andinstructed · ''[t]he
.
Plaintiff has: the burden of proving ..... [t]h� Defendant
was negligent ... " T:,.p . 345. SincePittsburgh Chauffeur acknowledged the· limousine
was carrying more passengers than was appropd.ate·:(see. T.� pp. 282/2.85).and the dispute
was focused. on. whether this caused ·tvfr Deivert's injury, the .requested charge. also could
have misled the Juryfrorn focusing on the .main dispute ..
l denied the charge, .that sustaining damages: by .itself is nota reason to award
"[tjhe fact that I am now· goingto instruct you about damages 'does not "imply .any opinion·
on my ·part as. to whether damages .should be awarded. If you. find that: the Defendant" is.
Hable to the :P:ia,1nt1ff you must then. find an amount 'of money damages ... ." T,, p, .34.8. I
a,lso· instructedthe Juty
. . burden to: prove the, extent of. damages.
that the. Plaintiff has the �·
See T., J>. 345. In addition, the -written verdict femplate. Lprepared required the· Jury- to
find negligence and factual cause in order to award damages ..
because :ibvas, 'repetitious or the: concept sufficiently .coveredby another; charge. I
10
iustructed the 1.µ,;y tha.t the P.la}ntif:( fo�d the.burden to prove' negligence and ,f.�ct11;1J cause:
and that '-la] factual cause cannot be an imaginary or' fanciful factor having no connection
.or only an.insignificantconnectionwith the harm." T�,'P· 346. Lalsoprovided theJury
wTth extensive, suggested ,guidance on evaluating 'expert 'witness' testimony, :See T'.,. pp,
�54-�5(f "Qivi�g the 'instruction also could hav.e misled the· Jury 'to focus: on whether one
ofthe :e�petts speculated when 'the real. disl?me between experts boiled. down to which
.one Wc:\S more credible, ·F.fo<:t.Ily ?· the' Superior; .Court of Pennsylvania .d�.eme2012 Pa. Super. 133, :51.
A3d 84.1.at. 858 (2012),
Pittsburgh Chauffeur next contends I erroneously prepared a written verdict
template (Pr verdi{;t' �HP) that ask.ed Jffittst>t1rgh· Challtt'�u..r'·s cqnd.t1G.t ''fel.l: below the
'highest standard of care" instead· of asking. if Pittsburgh Chauffeur "was negligent."
:Concis.e 'Statement; ·,r. no, 7. According to: Pittsburgh Chauffeur, this confused and misled
the.)\1w, Id. 'f.Iowe.v(;{, .as r ��id. on th.e record .during the .charging conference. (see· r; pp,
,295.-297), in this· case :askih$ 'ifthe defendant was .negligent had the potential. to confuse
theJuit.
Even though Pittsburgh .Chauffeur fa· a "common carrier;" neither party submitted
.a proposed jury instruction on .a common carrier's duty-to passengers. See, ·e,g,,
Cc5nnolly v. Philadelphia Transp; Cb., 420 Pa. 280�. 283,. 216: A.2d. 60,. 62 (1966)
declaring "[�J common carrier ... owes its: passengers- the, highest: degree· of care." Hence,
:'ehts.bµrgh: C.bau.:ff�ur did IJ.Ol object w.h�n I. proposed to· give P.e.nn.§ylva_ni� Suggested' Jury
Instruction (Civil} n·o.13� 120- on a common. carrier's duty' of.care, At the, same time,
Pittsburgh Chauffeur fo�_1ste.d. that: Mr, Deivert was negligent 1111d. that: the.verdict 'slip ask
if he was negligent. With a higher standard, ofcare applicable: to P.itt�b11.rgl.t C.h.aut{ey_i:
than t11� ordinary negligence standard of.care.applicable to Mt .. Deivert, using the same
negligence standard for both parties could have confused the Jory, It :is within· my
discretion to grantor-refuse a proposed verdictslip, 'See:Wfggins v. Synthes, 2Qii .PA
the potential for ju�y confusion \vi'th a verdict slip that asked if Pittsburgh Chauffeur's
conduct fell below the. highest: standard. of care,
Pittsburgh Chauffeur's final contentions relate 'to the amount. of the. verdict,
$5.00�000� It first contends the, verdict 'is· excessive because there only were noneconomic
damages. :se·e· Concise- Statement, 1! no., 8. However, to .a_n.a,iyze an. excessive verdict:
verdicts." .Pa1iometrc)s ·v ,. Loyola,. 2007 Pa. Super. 244� 93 2 A2d 128,.135, A verdict is
not 10. b:e deemed excessive because it, does not include medical. expenses, fo�t earnings or,
Involving-cnly noneconomic: datna�es). citing Botek:v: .. Mine- Safety Ap-pliance- Corp.;� 53'1
Pa .. '160, 61'1 A,2d. l 174 Q 99�). (1982 'incident resulted in ·$35·0,00Q juryverdict fovoi_viJJg
only .$,783 in economic losses), The factors- relevant, fo .determining w:h�t.bei:. the :$500,()()0,
objective physical evidence and whether it is· :petrrtane:nt Id, at' 135.
Mr.Deivert'sinjury clearly ismanifestedby objective P-hysJqiJ ·eV:id.�.lJ:Ge and has
left: permanent scars, ·The Injuryis
' . . .
severe. It is, a· :third. degree. bum. The Jury saw .a
progression of:_photogra_phs of the w?und. and .also viewed the <1.Ctu.�1 scars from it while
12,
Mt. Deivert testified during the trial, Theinjury appeared very uglyin itsearly stages,
Both experts: agree· ,tbe injury was painful when it was· sustained, the. tWQ· surgeries were.
painful and recovery was painful. The severity of-the, fojµ_ry ·G!l�6' is apparent from the
high degree of embarrassment andhumiliatiorr it.has Inflicted.on.Mr. Deivert. He is,
asked, "what happened to you?" when people. at his: gym notice the scar ,, and. his. level of
frustration, �IJ.:ti9.§¢l. Jqr·.Pitt_slwrgh. Chauffeur, agreed that the answers io-each.question. that l.provided' to the Jury were
:appr9p_rj�_t'1� Bee,T,, ·pp. :$(>5�.37.7, ·
14
--r----.,. - ---- -·-- - -. --·- ,-_,., -- --;1_,- - ---- ..- ···· - ···· ---- • ----·J r-J- - --- -· · J---r: --- ·J- -- --·
prejudice .should influence your deliberations/ T.,. p. 362. Pittsburgh Chauffeur seems
to argue the -influence ·of emotion, sympathy or speculation tn the $500,000 Verdict -tail
be inferred because of the, allegedly insignificant damages. I disagreebecause. the:
damages to. Mr. Deivert.were significant .and the Verdict th_erefo.r.e, not the: product of
emotion, sympathy or speculation,
BY:THE-COU-R.T::
15.