Cominsky v. Donovan , 2004 Pa. Super. 98 ( 2004 )

BECK, J.

¶ 1 We decide whether the trial court erred in admitting lay witness testimony about the pain and suffering experienced by someone in a persistent vegetative state. We reverse and remand for a new trial on damages only.

¶ 2 Plaintiff-appellee Seymour Comin-sky¹ filed this action on behalf of himself and the Estate of Pearl Cominsky, his wife, against defendant-appellant Holy Redeemer Health System, alleging that the appellant’s negligence during post-operative care caused Pearl’s brain injury and ultimate death. Appellee presented evidence that, as a result of the negligence of appellant’s staff, Pearl Cominsky experienced pain, anguish and fear while she lay in a persistent vegetative state for nineteen days until she died. After a jury trial, the jury awarded damages for pain and suffering in the amount of $950,000 to the Estate of Pearl Cominsky, and $1,500,000 to Seymour Cominsky for loss of consortium. Appellant’s post-trial motions were denied and judgment was entered on the jury’s verdict.

¶ 3 In this appeal, appellant does not challenge the jury’s finding of liability. Instead, appellant argues that: 1) the jury’s award for Pearl Cominsky’s pain and suffering was based on inadmissible evidence; 2) the award for Seymour Co-minsky’s derivative loss of consortium claim should have been vacated because the primary survival claim for pain and suffering was not established; and 3) the trial court should have granted remittitur because the jury’s award of damages was excessive.

¶ 4 We consider appellant’s first issue, regarding the admissibility of lay witness opinion testimony. We may reverse the trial court’s evidentiary rulings only for an abuse of discretion or an error of law. Cruz v. Northeastern Hospital, 801 A.2d 602 (Pa.Super.2002). In this case, the trial court permitted Cynthia Woll and Robert Cominsky, the adult children of Pearl and Seymour Cominsky, to testify that their mother felt pain during the nineteen days she languished in a persistent vegetative state before her death. Appellant argues that this was improper opinion testimony by these lay witnesses.

¶ 5 Cynthia Woll, Pearl’s daughter, testified as follows:

Q: Was your mom in any pain?

A: She looked to me like she was...

Mr. RYAN [appellant’s counsel]: Objection.

THE COURT: Overruled. You may answer.

THE WITNESS: Thank you. She looked to me like she was in anguish; that, certainly, there had to be some sort of pain.

MR. [RYAN]: Move to strike.

THE COURT: Overruled.

Later, Woll’s brother Robert Cominsky testified about his mother’s condition:

Q: Did she appear to be in pain?

MR. RYAN: Objection; leading the witness.

THE COURT: Overruled.

THE WITNESS: She appeared to be in a very anguished, painful or fearful state. When I would look into her eyes, I just saw — I mean, I just saw a pitiful, fearful, painful person.

¶ 6 We hold that this lay opinion testimony that Pearl Cominsky suffered pain while she was in a persistent vegetative state was incompetent and should not have been admitted.² Neither Woll nor Comin-sky was a qualified medical expert. Indeed, the only medical expert to testify on the issue of damages was appellant’s expert witness, Dr. David S. Prince. Dr. Prince testified that his review of Pearl’s medical records led him to the conclusion that she did not experience pain while in that unconscious state. He opined, “There is no awareness at that level... Someone who has no consciousness, who is in a vegetative state, cannot determine pain.” He further testified, in response to notations in the hospital records that Pearl would occasionally open her eyes while in this condition:

That means that the eyes open. That doesn’t mean that the brain was interpreting data. That’s a typical reflex for a patient with severe brain injury. They open the eyes with stimulation, when you give them a painful stimuli [sic] with your knuckles, pinch their finger, you yell at them or you make some kind of stimuli. Instead of responding in consciousness, like you would or anybody else awake, the patient does a reflex. They open their eyes, they move like this.... That tells you that the brain is not connected correctly. Something is seriously wrong. And the pain is really in the eyes of the beholder.

There’s no consciousness in that state. In addition, Nurse Lucy LeszczynsM testified that Pearl had no response to deep sternal palpation, a pain stimulus, and that she did not see Pearl “suffer.”

¶ 7 Pennsylvania Rule of Evidence 701 limits a lay witness’s opinion testimony to “those opinions or inferences which are rationally based on the perception of the witness, helpful to a clear understanding of the witnesses] testimony or the determination of a fact in issue, and not based on scientific, technical, or other specialized knowledge[.]” Our cases further hold that lay witnesses may testify to someone’s readily observable physical condition or appearance that does not require medical training. Commonwealth v. Counterman, 553 Pa. 370, 719 A.2d 284 (1998).

¶ 8 A “lay witness may testify as to certain matters involving health, the apparent physical condition of a person, and as to obvious symptoms, but his testimony must be confined to facts within his knowledge, and may not be extended to matters involving the existence or nonexistence of a disease, which is only discoverable through the training and experience of a medical expert.” Baum v. Metropolitan Life Ins. Co., 144 Pa.Super. 37, 19 A.2d 486, 487 (1941). Thus, a layperson may not testify to the presence of an underlying disease such as a heart condition or osteomyelitis. Id. See also In re Commitment of Barbour, 733 A.2d 1286 (Pa.Super.1999) (a lay witness may testify about the apparent physical condition of a person, but may not testify regarding a medical diagnosis, such as the existence of bipolar disorder). This is because such conditions are “not readily observable by the naked eye or even by a physical examination unless symptoms are ascertained and appropriate tests made.” Id. at 488. See also Travellers Ins. Co. v. Heppenstall Co., 360 Pa. 433, 61 A.2d 809 (1948) (lay witnesses are barred from testifying to the existence or nonexistence of a disease or disorder, the discovery of which requires the training and experience of a medical expert); Collins v. Cooper, 746 A.2d 615, 620 (Pa.Super.2000) (same).

¶9 For these reasons, our Supreme Court held that a lay witness could not testify regarding the “split and opened” condition of the complainant’s hymen in the absence of qualified expert testimony to explain the significance of these personal observations. Commonwealth v. Allison, 550 Pa. 4, 703 A.2d 16, 19 (1997). Without such expert opinion testimony, “the jury was permitted to engage in speculation that the condition of the complainant’s hymen was the result of sexual assault,” and this evidence had a “devastating prejudicial impact on the jury.” Id. Obviously, if lay opinion testimony would confuse, mislead or prejudice the jury, or would waste time, it may be excluded. Lewis v. Mellor, 259 Pa.Super. 509, 393 A.2d 941, 949 (1978).

¶ 10 Appellee relies on our decision in Wagner v. York Hospital, 415 Pa.Super. 1, 608 A.2d 496 (1992), for the proposition that a person who is in a persistent vegetative state may be awarded damages for pain and suffering. However, Wagner is distinguishable. In that case, there was opinion testimony from a registered nurse and a physician that there are different levels of awareness in people in a persistent vegetative state, and that some of these patients can have a certain level of awareness. Id. at 500. On the basis of that expert testimony, and other evidence indicating that the plaintiff responded to pain and other stimuli, we held that an award of damages for pain and suffering was proper in that case. Id. at 501.

¶ 11 There is no such expert testimony here. Appellee should have presented an expert to opine that despite the level of Pearl’s vegetative state, she could experience pain. However, the only medical expert to testify on this issue stated that Pearl Cominsky was not conscious of any pain during the days she lingered before her death. Where “the decedent is unconscious for the entire period between the time of injury and the time of death, there can be no recovery for pain and suffering in a survival action.” Nye v. Commonwealth, 331 Pa.Super. 209, 480 A.2d 318, 321 (1984). But see Williams v. Southeastern Pa. Trans. Auth, 741 A.2d 848 (Pa.Commw.1999) (where both medical and lay testimony indicated that decedent had some level of awareness and consciousness prior to his death, instruction allowing damages for pain and suffering in survival action was proper).

¶ 12 To the extent that the hospital record includes notes that Pearl was “responsive to deep sternal stimuli with internal rotation of arms” and exhibited “decereb-rate posturing,” these terms cannot be interpreted by lay jurors without the aid of expert medical testimony and, here, the only expert witness to explain the terms expressly denied that they showed anything other than reflexive responses. Ap-pellee presented no competent evidence to establish these notes meant Pearl experienced pain.

¶ 13 We further distinguish this case from others where a lay witness was permitted to testify about the pain of a conscious person, or one who is not in a persistent vegetative state. See, e.g., Commonwealth v. Counterman, supra (lay testimony as to whether a patient was alert at all times, oriented, in pain, and concerned about her condition is admissible); Fogg v. Paoli Hospital, 455 Pa.Super. 81, 686 A.2d 1355 (1996) (lay witness allowed to testify that he observed his son jump out of a window and then lie on the ground groaning, moaning and losing a lot of blood). We hold that, in order to make a case for pain and suffering damages on behalf of a person in a persistent vegetative state, the plaintiff must present competent opinion testimony that the person could in fact experience such pain.

¶ 14 Because the trial court erred in allowing lay testimony on this issue, and because it is clear that such emotional testimony could have, in addition to confusing the jury, prejudiced its decision, we reverse the trial court’s ruling on this issue, vacate the judgment and remand for a new trial on damages only. We further hold that the award of damages to Seymour Cominsky for his derivative loss of consortium claim must also be vacated and the matter retried. See Scattaregia v. Shin Shen Wu, 343 Pa.Super. 452, 495 A.2d 552 (1985) (loss of consortium claim is dependent upon the injured spouse’s right to recover). Finally, as a result of these holdings, we need not consider appellant’s argument that the jury’s verdict was grossly excessive.

¶ 15 Order denying appellant’s post-trial motions reversed; judgment entered on verdict vacated. Matter remanded for new trial on damages only. Jurisdiction relinquished.

¶ 16 JOYCE, J. flies a Dissenting Opinion.

1 . Seymour Cominsky died during the pen-dency of the litigation. His daughter Cynthia Woll was substituted as plaintiff.

2 . The dissent would hold that this issue has not been preserved for our review. However, the issue was raised in appellant's post-trial motion, in addition to the general objection lodged during Woll's testimony. Moreover, the trial judge decided the issue on its merits, raising no question in his opinion that it had not been preserved or that he did not understand the basis for the objection. In addition, appellee does not argue to this Court that the issue was waived. Under these circumstances, the general objection was sufficient to preserve the issue for our review. Pennsylvania Rule of Evidence 103 requires that, "in case the ruling is one admitting evidence, a timely objection, motion to strike or motion in limine appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context.” Counsel’s general objection and motion to strike in this instance obviously related to this lay witness's competency to present her opinion that "there had to be some sort of pain.” The general objection therefore preserved the error as its basis was "apparent from the context.” Pa.R.E. 103(a)(1).

The basis for the objection was no less "apparent” because appellant's counsel later based an objection during Robert Cominsky's testimony on the claim that the question was leading. It is clear that, in this case, appellant's counsel sought to preclude the proffered evidence on the basis that the question was leading, rather than the fact that the lay witness was incompetent to opine whether his mother was in pain. Since the trial judge was going to allow lay opinion testimony on the issue of Pearl Cominsky’s pain and suffering, counsel sought unsuccessfully to preclude it on a different ground. We do not require that counsel disrupt trial with repeated objections when the trial court has rejected earlier challenges to the testimony. See Dietrich v. J.I.Case Co., 390 Pa.Super. 475, 568 A.2d 1272 (1990) (objection made when jury charge was first given did not have to be repeated upon recharge; objection was also preserved in post-trial motions); Matsko v. Harley Davidson Motor Co., 325 Pa.Super. 452, 473 A.2d 155, 159 (1984) ("once an objection has been properly made, counsel is not obliged to repeatedly voice objections in a tendentious manner”).

Finally, we note that even a general objection is adequate to preserve a challenge to an evidentiary ruling where the evidence is inadmissible for any purpose, as we hold it was in this case. In Interest of Davis, 377 Pa.Super. 46, 546 A.2d 1149 (1988), aff'd, 526 Pa. 428, 586 A.2d 914 (1991); Edward D. Ohlbaum, Ohlbaum on the Pennsylvania Rules of Evidence § 103.08[2] (2003-2004 ed.).