Cowher, K. v. Kodali, S. ( 2021 )

J-A27035-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
KAREN COWHER, ADMINISTRATRIX : IN THE SUPERIOR COURT OF
OF THE ESTATE OF JAMES L. : PENNSYLVANIA
COWHER, II, DECEASED :
:
:
v. :
:
:
SOBHAN KODALI, M.D., ST. LUKE'S : No. 1111 EDA 2020
UNIVERSITY HEALTH NETWORK AND :
ST. LUKE'S CARDIOLOGY :
ASSOCIATES :
:
Appellants :
Appeal from the Judgment Entered April 7, 2020
In the Court of Common Pleas of Lehigh County Civil Division at No(s):
No. 2018-C-0264
BEFORE: STABILE, J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED: FEBRUARY 8, 2021
Appellants Sobhan Kodali, M.D., St. Luke's University Health Network
and St. Luke’s Cardiology Associates (collectively, Defendants) appeal from a
judgment entered on a jury verdict in favor of the plaintiff, Karen Cowher,
Administratrix of the Estate of James L. Cowher, II, Deceased (Plaintiff) in a
wrongful death and survival medical malpractice action. For the reasons set
forth below, we affirm the trial court’s judgment as to liability and its damages
judgment on Plaintiff’s wrongful death claim, but vacate the damages
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* Retired Senior Judge assigned to the Superior Court.
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judgment on Plaintiff’s survival claim and remand for a new trial on damages
with respect to the survival claim.
This action arose out of the death of James L. Cowher, II (Decedent)
from cardiac arrest at the age of 48. In September 2015, Decedent had an
episode of chest pain and underwent a stress echocardiogram test that was
normal. Joint Ex. 1 at 1158, 1850; N.T. Trial, 12/4/19, at 148-49; N.T. Trial,
12/5/19, at 236-55. On July 11, 2016, Decedent saw his primary care
physician for episodes of chest pain that were becoming more frequent and
severe and that radiated from the chest to his arms and were accompanied
by some shortness of breath, nausea, and sweating. Joint Ex. 1 at 1152; N.T.
Trial, 12/6/19 P.M., at 15-21, 33-34. Decedent’s primary care physician
performed an electrocardiogram and had a test done for troponin, a chemical
marker of heart damage, both of which were normal. N.T. Trial, 12/6/19 P.M.,
at 13, 22-23.
Decedent’s primary care physician arranged for Decedent to be seen by
an affiliated cardiology group, and defendant Dr. Sobhan Kodali, a cardiologist
in that group, saw Decedent on July 13, 2016. Joint Ex. 2 at 1-2; N.T. Trial,
12/6/19 P.M., at 23, 25, 39; N.T. Trial, 12/5/19, at 258; Joint Ex. 1 at 1375.
Decedent reported to Dr. Kodali that for the last six months he had been
experiencing chest pain that radiated to both arms, often with shortness of
breath, dizziness, and tingling in his fingers. Joint Ex. 1 at 1375-76; N.T.
Trial, 12/5/19, at 264-67. Decedent also reported to Dr. Kodali that he was
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regularly running for exercise without symptoms. Joint Ex. 1 at 1375-76; N.T.
Trial, 12/5/19, at 269; N.T. Trial, 12/6/19 A.M., at 18-20. Dr. Kodali was
aware that Decedent had a family history of premature coronary artery
disease, had high cholesterol, and was overweight. Joint Ex. 1 at 1375-76;
N.T. Trial, 12/5/19, at 264-65; N.T. Trial, 12/6/19 A.M., at 49. Dr. Kodali did
not order or perform any tests other than an additional electrocardiogram,
which was normal, and a lipid test, and concluded that Decedent’s chest pain
was “not cardiac,” stating that “[n]o further evaluation is necessary at this
time” and that “[o]verall the clinical picture is suggestive of anxiety/panic
attacks.” Joint Ex. 1 at 1375, 1378; N.T. Trial, 12/6/19 A.M., at 27-28, 95-
96.
On August 23, 2016, Decedent suffered cardiac arrest while jogging and
died. N.T. Trial, 12/3/19, at 73-78; Joint Ex. 1 at 1531; Plaintiff’s Ex. 24,
Death Certificate. The pathologist who performed an autopsy on Decedent
found that Decedent had blockages of 80% and over 90% in the left main and
left anterior descending coronary arteries and listed the cause of Decedent’s
death as “[f]avor cardiac arrhythmia secondary to ASCVD [arteriosclerotic
cardiovascular disease].” Joint Ex. 1 at 1657, 1659, Autopsy Report at 3, 5.
The coroner reported the cause of Decedent’s death as acute myocardial
infarction due to severe coronary artery disease. Plaintiff’s Ex. 24, Death
Certificate.
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On January 31, 2018, Plaintiff, Decedent’s widow, brought this medical
malpractice wrongful death and survival against Defendants. In her
complaint, Plaintiff averred that Dr. Kodali was negligent in failing to recognize
that Decedent was suffering from unstable angina and in failing to diagnose
Decedent’s severe coronary artery disease. Complaint ¶¶15-22, 25, 31;
Amended Complaint ¶¶15-22, 25, 31. Plaintiff averred that St. Luke’s
Cardiology Associates (Associates), Dr. Kodali’s practice group, and St. Luke’s
University Health Network (Health Network), the health network that owns
Associates, were liable for Dr. Kodali’s negligence. Complaint ¶¶8-12;
Amended Complaint ¶¶8-12. Plaintiff averred in her complaint that Dr.
Kodali’s failure to diagnose Decedent caused Decedent’s death and that
Decedent died from an acute myocardial infarction. Complaint ¶¶23-24, 27-
28, 34; Amended Complaint ¶¶23-24, 27-28, 34.
Plaintiff’s cardiology expert opined in his report, dated March 28, 2019,
that Dr. Kodali was negligent in failing to diagnose Decedent as suffering from
unstable angina and in failing to recommend diagnostic testing, including
cardiac catheterization, that would have shown Decedent’s severe coronary
artery disease, which could have been successfully treated by coronary bypass
surgery. Hayek 3/28/18 Report at 5-9. Plaintiff’s cardiology expert also
opined in that report that Decedent died from cardiac arrhythmia caused by
severe left main and left anterior descending coronary artery disease and
briefly stated that Decedent experienced conscious pain and suffering before
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his death. Id. at 8-9. On October 28, 2019, Defendants filed motions in
limine to preclude Plaintiff’s cardiology expert from testifying that Decedent
died of a cause other than acute myocardial infarction and to preclude him
from testifying that Decedent experienced conscious pain and suffering. On
November 27, 2019, the trial court denied both of these motions.
The case was tried to a jury from December 3, 2019 to December 9,
2019. Seven witnesses testified at trial: a neighbor who was present when
Decedent’s fatal event occurred, Plaintiff’s cardiology expert, Plaintiff’s
economic expert, Plaintiff, Defendants’ cardiology expert, Dr. Kodali, and
Decedent’s primary care physician.
Plaintiff’s cardiology expert testified at trial that Decedent was suffering
from unstable angina due to severe coronary artery blockages when he saw
Dr. Kodali and that Decedent died from a cardiac arrhythmia caused by
insufficient blood supply to the heart as a result of those coronary artery
blockages. N.T. Trial, 12/3/19, at 152, 156-58, 166, 172-77, 186-89, 220.
Plaintiff’s cardiology expert opined that, given the chest pain symptoms that
Decedent reported, Dr. Kodali breached the standard of care in failing to
diagnose Decedent’s unstable angina and in failing to order cardiac
catheterization, which would have revealed the blockages and resulted in
bypass surgery, and opined that Decedent’s untreated coronary artery disease
caused his death. Id. at 143, 162-64, 169-71, 177, 190-202, 211-13, 215-
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20. He also opined that Decedent experienced conscious pain and suffering
at the time of his fatal cardiac event. Id. at 221.
Plaintiff’s economic expert opined that the economic loss from
Decedent’s death, including all earnings, fringe benefits and value of the loss
of his household services, totaled $1,070,145 to $2,700,498, depending on
assumptions concerning age of retirement, salary increases, and economic
conditions. N.T. Trial, 12/4/19, at 28, 48-60. Defendants stipulated that
Associates and Health Network were vicariously liable for Dr. Kodali’s conduct.
Id. at 9-14.
Defendants’ cardiology expert opined that Dr. Kodali did not breach the
standard of care in concluding that Decedent’s chest pain was non-cardiac,
given the lack of correlation between the pain and his physical activity. N.T.
Trial, 12/5/19, at 34, 39-44, 49-51, 56-59, 66, 81-83, 178-83. Defendants’
cardiology expert further opined that it could not be concluded that Decedent’s
coronary artery disease caused his death because no damage to the heart
muscle was found on autopsy. Id. at 71-81, 177-78, 183, 186-87.
On December 9, 2019, the jury returned a verdict in favor of Plaintiff
and against Defendants awarding Plaintiff $2,475,000 in wrongful death
damages and $3,833,000 in damages on the survival claim. Defendants
timely filed post-trial motions seeking a new trial, or alternatively a new trial
on damages or a remittitur, and Plaintiff moved to add delay damages to the
verdict. On April 7, 2020, the trial court denied Defendants’ post-trial
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motions, granted Plaintiff’s delay damages motion, and entered judgment in
favor of Plaintiff and against Defendants in the amount of $6,631,642.70. This
timely appeal followed.
Defendants present the following issues for review:
1. Whether the trial court erred and abused its discretion in failing
to vacate the verdict where Plaintiff failed to prove liability under
her new, eleventh-hour cause of death theory by presenting
expert testimony identifying a specific standard of care for
treatment of cardiac arrythmia (as opposed to other coronary
conditions), which Defendants breached and thus caused
Plaintiff's harm?
2. Whether the trial court erred and/or abused its discretion in
permitting Plaintiff's expert to testify to his assumptions regarding
the purported pain and suffering decedent experienced?
3. Whether the trial court erred and abused its discretion in failing
to vacate the Survival Act award where the record is devoid of
evidence that decedent was conscious, able to feel pain or indeed
felt pain immediately prior to death and, thus, any award for pain
and suffering is against the weight of the evidence?
4. Whether the trial court erred and/or abused its discretion in
denying Defendants' requests for a new trial on damages and/or
remittitur, where the jury’s Survival Act verdict award of $377,000
per minute (at best) for 2-3 minutes of pain and suffering is
grossly excessive, unmoored from the record, and against the
weight of the evidence?
Appellants’ Brief at 5-6 (suggested answers omitted).
In their first issue, Defendants argue that the verdict is against the
weight of the evidence because, as a result of the difference between a
myocardial infarction, which is a heart attack, and an arrhythmia as the cause
of death, Plaintiff allegedly did not establish a breach of the standard of care
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or causation.1 This Court’s review of a claim that a verdict was against the
weight of the evidence is limited to determining whether the trial court abused
its discretion in denying a new trial. Brown v. Halpern, 202 A.3d 687, 703
(Pa. Super. 2019); Corvin v. Tihansky, 184 A.3d 986, 992 (Pa. Super.
2018). A party is not entitled to a new trial on weight of the evidence grounds
where the evidence presented was conflicting and the fact-finder could have
decided in favor of either party. Brown, 202 A.3d at 703; Corvin, 184 A.3d
at 992-93.
Defendants’ contention that Plaintiff failed to prove breach of the
standard of care and causation is without merit. Contrary to Defendants’
assertions, the negligence at issue in this case was failure to diagnose and
treat Decedent’s severe coronary artery disease, not the diagnosis or
treatment of myocardial infarction or cardiac arrhythmia. Complaint ¶¶15-
22, 31; Amended Complaint ¶¶15-22, 31; N.T. Trial, 12/3/19, at 162-64, 169-
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1 This would normally be a sufficiency of the evidence argument for judgment
notwithstanding the verdict (JNOV). Defendants, however, did not move for
a nonsuit or directed verdict on the ground that Plaintiff failed to prove
negligence or causation. N.T. Trial, 12/4/19, at 177-79; N.T. Trial, 12/6/19
P.M., at 45-54. The only such motion that Defendants made was a motion for
nonsuit on any direct liability claims against Associates and Health Network
and that motion was granted, limiting Plaintiff’s claims against those
Defendants to vicarious liability for Dr. Kodali’s conduct. N.T. Trial, 12/4/19,
at 178-80. Defendants are therefore barred by waiver from seeking JNOV and
the only relief that they may seek on this basis is a new trial on weight of the
evidence grounds. Corvin v. Tihansky, 184 A.3d 986, 990-91 (Pa. Super.
2018); Haan v. Wells, 103 A.3d 60, 68 (Pa. Super. 2014).
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72, 174-76, 186-202, 211-13, 215-20. The absence of evidence concerning
the standard of care for diagnosis and treatment of arrhythmias is therefore
irrelevant to whether Plaintiff satisfied her burden of proof.2
At trial, Plaintiff’s cardiology expert testified that Dr. Kodali breached
the standard of care for cardiologists in the diagnosis and treatment of
patients who report the symptoms that Decedent reported by failing to
diagnose Decedent’s severe coronary artery disease, and testified that
Decedent’s untreated severe coronary artery disease caused him to suffer a
fatal cardiac arrhythmia and die. N.T. Trial, 12/3/19, at 143, 162-64, 169-
77, 186-202, 211-13, 215-20. With respect to whether Dr. Kodali breached
the standard of care, Plaintiff’s cardiology expert explained:
Q. Let’s talk about the definition of acute coronary syndrome. How
does it commonly present?
A. So the most common presentation of acute coronary syndrome
is substernal, chest discomfort, often radiating to the left arm or
arms with recent onset with an increase in frequency of severity
of symptoms. It can occur at rest or with exertion and is often
accompanied by other associated symptoms such as nausea,
sweating, dizziness and shortness of breath. So that’s your classic,
out of the textbook presentation of unstable angina, which is part
of an acute coronary syndrome.
* * *
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2 In the trial court, Defendants also argued that the averments in the
complaint that Decedent died of a myocardial infarction constituted a binding
judicial admission that barred Plaintiff from introducing evidence at trial that
he died from an arrhythmia. Defendants, however, do not argue that issue in
this appeal.
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Q. And what is supposed to happen under the standard of care if
a patient presents to a cardiologist with signs and symptoms of
acute coronary syndrome?
A. I either -- you know, if they’re having discomfort, you know
right there they’re going straight to the hospital. And I’m going to
check enzymes and an EKG. But catheterization. You need to
define what’s blocked because you’ve already got a history from
the patient. You already have your risk factor profile of the patient.
So you already know this, you know, is or is not an individual
who’s likely going to develop or already have heart disease. So
you're going to treat a 20-year-old with no medical problems
differently than a 48-year-old with high cholesterol and a family
history, is a little bit overweight. So when you’ve got the risk
factors and you’re at the right age and the gender and then you’ve
got the story, you need a cath because, you know, the question is
no longer about what is the problem. I think the problem is
virtually certain. The question only comes down to where are the
blockages -- I know they’re severe because your symptoms of
acute coronary syndrome imply that you have a severe obstructed
and unstable plaque? Is which arteries are blocked, how severely
and basically, are you fixable with medications alone, stents or
bypass surgery. And the only way you’re going to find that out is
to do a catheterization ….
Id. at 161-64.
With respect to the cause of Decedent’s death, Plaintiff’s cardiology
expert explained:
Q. …[W]hat is your opinion with respect to the cause of his death?
A. Severe coronary artery disease involving the left main and the
left anterior descending causing insufficient coronary flow and
ventricular tachycardia fibrillation cardiac arrest which are two
arrhythmias -- can't tell which one -- but that he would have been
shocked by the paramedics for.
Q. How does severe coronary artery disease cause an arrythmia
that can lead to death?
A. If you’re not getting adequate blood supply to your heart
muscle, one of the things that can happen, unfortunately, besides
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a heart attack, is what we call sudden cardiac death or cardiac
arrest, is that when your heart is being starved of oxygen, your
heart can, what we call, fibrillate. All of us now are in a normal
heart rhythm, where it’s beating in a regular fashion, and that’s
an organized rhythm and that allows blood to be pumped to create
your blood pressure. Ventricular fibrillation is a completely
disorganized arrythmia or ventricular tachycardia where the
ventricle or main pumping chamber goes so fast and erratic when
it’s beating that it cannot push any blood out to the body. So it is
an arrythmia that is incompatible with life. It’s incompatible with
a pulse or generally respirations. It causes a cardiac arrest and it
looks -- when you see it, it looks like a heart that’s wriggling like
a bag of worms. It’s not doing anything purposeful. And that’s
what happened to Mr. Cowher.
N.T. Trial, 12/3/19, at 172-73.
These opinions were consistent with the cause of action that Plaintiff
alleged in the complaint. Although the complaint averred that the fatal cardiac
event was a myocardial infarction, the complaint, like the expert’s testimony,
asserted that Dr. Kodali was negligent in failing to diagnose Decedent’s severe
coronary artery disease. See Complaint ¶¶15-22, 31; Amended Complaint
¶¶15-22, 31. Indeed, the complaint referred to the risk of myocardial
infarction “and/or cardiac arrest” as the reason that further cardiac evaluation
was required. Complaint ¶25; Amended Complaint ¶25.
Neither Pomroy v. Hospital of University of Pennsylvania, 105 A.3d
740 (Pa. Super. 2014) nor Maurer v. Trustees of University of
Pennsylvania, 614 A.2d 754 (Pa. Super. 1992) (en banc), relied on by
Defendants, support their argument that Plaintiff failed to prove breach of the
standard of care and causation. In Pomroy, there was no proof of causation
because the evidence showed that the decedent would have rejected the
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treatment that the plaintiff claimed that the defendant physician should have
recommended and no proof of breach of the standard of care because the
plaintiff’s expert’s opinion required the physician to refuse to provide medically
necessary treatment. 105 A.3d at 745-48. In Maurer, the plaintiff’s expert
repeatedly equivocated about what constituted the standard of care. 614 A.2d
at 760-63. Here, in contrast, there was no evidence that Decedent would
have refused cardiac catheterization or bypass surgery and, as set forth
above, Plaintiff’s cardiology expert testified unequivocally concerning the
standard of care, that Dr. Kodali breached that standard in failing to diagnose
Decedent’s coronary artery disease, and that if Dr. Kodali had properly
diagnosed Decedent’s coronary artery disease, a coronary bypass would have
been performed and Decedent would not have died.
In their second issue, Defendants argue that the admission of Plaintiff’s
cardiology expert’s pain and suffering opinion testimony was error and
requires a new trial on damages. This Court reviews a trial court’s ruling on
the admissibility of expert testimony for an abuse of discretion. McFeeley v.
Shah, 226 A.3d 582, 596-97 (Pa. Super. 2020); Nobles v. Staples, Inc.,
150 A.3d 110, 113 (Pa. Super. 2016). An abuse of discretion exists where
the trial court overrides or misapplies the law. Commonwealth v. Taylor,
230 A.3d 1050, 1072 (Pa. 2020); Nobles, 150 A.3d at 113.
Plaintiff’s cardiology expert testified with respect to Decedent’s pain and
suffering:
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Q. In addition to the other opinions that you’ve given today, do
you have an opinion regarding whether Mr. Cowher experienced
pain and suffering prior to his death?
A. Yes.
Q. And what is that opinion and what’s it based on?
A. That, based on the testimony I heard earlier this morning, I
believe he did suffer conscious pain and suffering on that run on
August 23rd when he realized that something was very wrong
before he became unconscious.
N.T. Trial, 12/3/19, at 221. No medical explanation or further basis for this
opinion was given by the expert. The “testimony … earlier this morning” that
the expert referenced was testimony of the neighbor who saw Decedent
collapse. This neighbor testified that she saw Decedent walking slowly,
kneeling, and laying down, that Decedent said “I need help,” and that
Decedent appeared to be “in pain” and “not himself” and “was very
distraught.” Id. at 74-77. The neighbor also testified that Decedent was
conscious for approximately three minutes before he passed out. Id. at 77-
78.
To be admissible, expert opinion testimony must go beyond the
knowledge possessed by lay persons. Pa.R.E. 702(a), (b) (requiring that “the
expert’s scientific, technical, or other specialized knowledge is beyond that
possessed by the average layperson” and that “the expert’s scientific,
technical, or other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue”); Nobles, 150 A.3d
at 114; Snizavich v. Rohm & Haas Co., 83 A.3d 191, 194 (Pa. Super. 2013).
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In addition, the expert testimony must be based on application of the witness’s
expertise and must not merely be a lay opinion offered by an expert. Nobles,
150 A.3d at 114; Snizavich, 83 A.3d at 194-95.
“It is the job of the trial court to ‘assess the expert’s testimony to
determine whether the expert’s testimony reflects the application
of expertise or strays into matters of common knowledge.’ …
Admissible expert testimony that reflects the application of
expertise requires more than simply having an expert offer a lay
opinion. ‘Testimony does not become scientific knowledge merely
because it was proffered by a scientist.’”
Nobles, 150 A.3d at 114 (quoting Snizavich) (citations omitted); see also
Snizavich, 83 A.3d at 194-95. This Court has further explained that
[t]he exercise of scientific expertise requires inclusion of scientific
authority and application of the authority to the specific facts at
hand. Thus, the minimal threshold that expert testimony must
meet to qualify as an expert opinion rather than merely an opinion
expressed by an expert, is this: the proffered expert testimony
must point to, rely on or cite some scientific authority—whether
facts, empirical studies, or the expert’s own research—that the
expert has applied to the facts at hand and which supports the
expert’s ultimate conclusion. When an expert opinion fails to
include such authority, the trial court has no choice but to
conclude that the expert opinion reflects nothing more than mere
personal belief.
Nobles, 150 A.3d at 114-15 (quoting Snizavich); see also Snizavich, 83
A.3d at 197.
Plaintiff’s cardiology expert’s opinion on Decedent’s pain and suffering
did not satisfy these standards. He did not apply his medical expertise to the
facts to which the neighbor had testified. Nor did he point to or rely on any
medical or other scientific authority or principles beyond the knowledge of lay
persons. Instead, he simply adopted the neighbor’s fact testimony as his
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purportedly expert opinion. As such, the testimony was nothing more than
the expert’s personal opinion and was not admissible expert testimony.
Nobles, 150 A.3d at 114-17; Snizavich, 83 A.3d at 194-98. The trial court
therefore erred in admitting this expert testimony that Decedent experienced
conscious pain and suffering.
Plaintiff argues that even if the admission of this testimony was error,
Defendants have not shown that they were prejudiced. We do not agree.
An evidentiary ruling constitutes grounds for reversal only if the
complaining party was prejudiced by the ruling. Wright v. Residence Inn
by Marriott, Inc., 207 A.3d 970, 974 (Pa. Super. 2019); Reott v. Asia
Trend, Inc., 7 A.3d 830, 839 (Pa. Super. 2010), aff’d, 55 A.3d 1088 (Pa.
2012). A party is prejudiced where the trial court’s error could have affected
the verdict. Wright, 207 A.3d at 974; Reott, 7 A.3d at 839. The damages
that the jury could award on the survival claim here were damages for
Decedent’s pain and suffering and for the loss of his gross earning power, less
personal maintenance expenses, for his estimated working life span.
McMichael v. McMichael, 241 A.3d 582, 587-88 (Pa. 2020); Kiser v.
Schulte, 648 A.2d 1, 4 (Pa. 1994). Plaintiff’s counsel referred to the
cardiology expert’s pain and suffering testimony in his closing argument. N.T.
Trial, 12/9/19, at 79.
Improperly admitted expert testimony has significant potential for
prejudice because jurors may perceive expert testimony as having greater
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weight and credibility than the testimony of other witnesses.
Commonwealth v. Hopkins, 231 A.3d 855, 876-77 (Pa. Super. 2020); see
also Masgai v. Franklin, 787 A.2d 982, 985 (Pa. Super. 2001) (expert
testimony “may in some instances assume a posture of mystic infallibility in
the eyes of a jury of laymen”) (quoting Commonwealth v. Topa, 369 A.2d
1277 (Pa. 1977)).
Expert witnesses can have an extremely prejudicial impact on the
jury, in part because of the way in which the jury perceives a
witness labeled as an expert. To the jury an “expert” is just an
unbridled authority figure, and as such he or she is more
believable. A witness who has been admitted by the trial court as
an expert often appears inherently more credible to the jury than
does a lay witness.
Hopkins, 231 A.3d at 876 (quoting Commonwealth v. Smith, 995 A.2d
1143 (Pa. 2010) (Saylor, J., concurring and dissenting)).
Moreover, it is clear from the verdict that the jury awarded Plaintiff a
high amount of pain and suffering damages, even though the evidence showed
that Decedent was conscious for only approximately three minutes.3 Damages
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3 To the extent that Defendants argue that there was no evidence that
Decedent experienced any conscious pain and suffering at the time of the fatal
event, we do not agree. The neighbor’s fact testimony was sufficient to show
that Decedent was conscious for a brief period during his fatal cardiac event
and appeared to be upset and in some discomfort during that brief period.
Ory v. Libersky, 389 A.2d 922 (Md. App. 1978), on which Defendants rely
does not support their contention that no conscious pain and suffering was
shown here. Rather, it held that pain and suffering damages were not
recoverable because there was no evidence of any kind that was sufficient to
show that the decedent was conscious in the period between the accident and
his death where there was no expert testimony that he was conscious and the
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for pain and suffering cannot be awarded for periods that Decedent was
unconscious. Cominsky v. Donovan, 846 A.2d 1256, 1260 (Pa. Super.
2004); Nye v. Commonwealth, 480 A.2d 318, 321 (Pa. Super. 1984);
Teamann v. Zafris, 811 A.2d 52, 65-66 & n.14 (Pa. Cmwlth. 2002),
abrogated on other issue, McCreesh v. City of Philadelphia, 888 A.2d
664 (Pa. 2005). The only evidence of economic damages at trial was Plaintiff’s
economic expert’s testimony and the highest amount of economic damages to
which the economic expert testified was $2,700,498. The jury’s survival
award was $3,833,000, $1,132,502 more than Plaintiff’s evidence of economic
damages.
Plaintiff contends that the error cannot be held prejudicial because the
award could have included pain and suffering for the six-week period between
Decedent’s visit to Dr. Kodali and his fatal cardiac event and because
Defendants did not request an itemized verdict sheet. These arguments are
without merit. Plaintiff’s counsel represented to the trial court that the only
pain and suffering claim was for the brief period of the fatal cardiac event and
the only evidence of pain and suffering that Plaintiff’s counsel argued to the
jury was pain and suffering during that event. N.T. Motion in Limine
Argument, 11/26/19, at 95-96; N.T. Trial, 12/9/19, at 79-80. In addition, the
____________________________________________
decedent did not engage in any communicative behavior or other behavior
that showed that he was conscious or in pain. Id. at 928-30.
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trial court charged the jury that they could award damages for pain and
suffering only for the period “from the time of the injury until his death.” N.T.
Trial, 12/9/19, at 145 (emphasis added). The injury here was Decedent’s fatal
cardiac event, not Dr. Kodali’s examination or diagnosis.
While absence of an itemization of damages can affect a court’s ability
to review a challenge to the amount that a jury awarded for a particular item
of damages, see Birth Center v. St. Paul Companies, Inc., 727 A.2d 1144,
1163 & n.16 (Pa. Super. 1999), aff'd, 787 A.2d 376 (Pa. 2001), the issue
here is whether the improper admission of evidence was prejudicial, not
whether the amount of the pain and suffering award was excessive or
unsupported. The standard for whether error is prejudicial, as stated above,
is whether it could have affected the verdict. The ability to ascertain the
precise amount of the jury’s pain and suffering award is unnecessary to that
analysis. The fact that the damages verdict that included pain and suffering
was over $1 million more than Plaintiff’s expert’s highest calculation of
economic damages is sufficient for the Court to conclude that this verdict could
have been affected, even if an actual amount of pain and suffering damages
cannot be determined.
Given the fact that the jury awarded a high amount of pain and suffering
damages for a brief period of time coupled with the undue weight that jurors
are likely to give to expert testimony, we conclude the admission of Plaintiff’s
cardiology expert’s opinion on pain and suffering was prejudicial error.
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The expert testimony on pain and suffering, however, could have only
affected one part of the jury’s verdict, the amount of damages that it awarded
on Plaintiff’s survival claim, and could not have affected the liability verdict.
No new trial is therefore necessary on liability. Evidence on pain and suffering
likewise had no possible effect on or the amount of the wrongful death award,
as this award includes only Plaintiff’s losses as Decedent’s widow, not damages
suffered by Decedent. See 42 Pa.C.S. § 8301; McMichael, 241 A.3d at 588.
Where an error in a wrongful death and survival action has affected only
the jury’s damages award on the survival claim, a new trial may properly be
limited to the damages that the plaintiff seeks on the survival claim. Rettger
v. UPMC Shadyside, 991 A.2d 915, 933-35 (Pa. Super. 2010); Davis v.
Steigerwalt, 822 A.2d 22, 30-31 (Pa. Super. 2003); Bortner v. Gladfelter,
448 A.2d 1386, 1390 (Pa. Super. 1982). Indeed, Defendants have conceded
that the trial court’s error can be remedied by a new damages trial limited to
the survival claim. Although Defendants in their brief requested a new trial
on damages without limiting the request to the survival claim, at oral
argument, Defendants stated in response to the Court’s questions that errors
affecting only the issue of pain and suffering can be remedied by a new trial
on damages on Plaintiff’s survival claim. Because neither the liability verdict
nor the wrongful death damages award could have been affected by the
erroneous admission of expert testimony on pain and suffering, we vacate
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only the damages judgment with respect to Plaintiff’s survival claim and
remand for a new trial on damages limited to that claim.
Defendants’ remaining issues challenge the jury’s damages award on
the survival claim as excessive. In light of our conclusion that the survival
award must be vacated and a new trial on damages must be held with respect
to the survival claim, we need not and do not address these claims of error.
For the foregoing reasons, we affirm the trial court’s judgment as to
Defendants’ liability and its damages judgment with respect to Plaintiff’s
wrongful death claim, but vacate the judgment as to Plaintiff’s survival claim
and remand for a new trial on damages with respect to that claim.
Judgment affirmed in part and vacated in part. Case remanded for a
new trial on damages limited to Plaintiff’s survival claim. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/8/21
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