Flahn, D. v. Parks, K. ( 2021 )

J-A01017-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DEMETRIUS FLAHN : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
KEVIN PARKS : No. 1144 EDA 2020
Appeal from the Judgment Entered February 24, 2020
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): No. 180300083
BEFORE: BENDER, P.J.E., OLSON, J., and STRASSBURGER, J.*
MEMORANDUM BY OLSON, J.: Filed: April 14, 2021
Appellant, Demetrius Flahn, appeals from the judgment entered on
February 24, 2020, following a jury verdict returned in favor of Kevin Parks
(Parks) and the denial of Appellant’s post-trial motions. We affirm.
The trial court summarized the facts of this case as follows:
Appellant was stopped at the light on westbound Lindbergh
Boulevard, near Island Avenue, at April Walk, which enters the
Penrose shopping center in Philadelphia. Appellant waited at the
intersection for the light to change. When the green arrow for a
left turn came on, Appellant proceeded to make the left turn. As
he travelled through the intersection, he was struck on the
passenger side of his vehicle by an oncoming vehicle driven by
Parks.
Parks testified that he saw the light was red at the intersection
from about 300 feet away while travelling at about 25 miles per
hour. Parks started to brake as he approached the intersection,
but let off the brake at the intersection when he says the light
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* Retired Senior Judge assigned to the Superior Court.
J-A01017-21
turned green. Parks vehicle struck Appellant’s vehicle, causing an
impact which moved Appellant’s car some.
Appellant alleges the collision was hard enough to break the axle
on the car he was driving. Photographs of the vehicle were
introduced [into evidence].
Appellant testified that he felt pain in his hips as he exited the
vehicle, causing him to drop to the “floor.” Appellant testified that
he was feeling lightheaded. An ambulance came and transported
him to Presbyterian Hospital. The ambulance EMS officer recorded
that Appellant was complaining of leg pain. At the hospital[,]
Appellant described left hip pain and a headache. He reported to
hospital staff that he struck his head when he fell after getting out
of the car following the collision. The hospital examination
revealed no neck pain, weakness or numbness, or back pain, with
no other complaints. Appellant was discharged after [six or
seven] hours.
On March 28, 2016, Appellant saw Dr. [Mark] Allen, of Allied
Medical Associates. The examination indicated complaints of
lower back pain and left hip pain. The examination revealed spine
and left hip tenderness. The medical impression was “[p]ost
traumatic strain/sprain of the lumbar spine, post traumatic left hip
pain.” [Dr. Allen, Appellant’s proffered expert, prepared a written
report which was introduced at trial, wherein, to a reasonable
degree of medical certainty, Dr. Allen opined t]hose conditions
were a direct result of the accident[.]
Appellant was prescribed therapy at that facility for almost seven
months. Appellant was also given a back brace which he wore
for two months after discharged from therapy. Appellant was out
of work for about two weeks, after which he returned to work full
time, on what he described as informal light duty. Appellant
testified that he was able to resume his normal activity after eight
months. Examination on April 19, 2016, was similar. Dr. Allen’s
discharge summary on October 13, 2016, described on-going
lumbosacral pain, with an impression of chromic post[-]traumatic
sprain of lumbar spine, disc bulge and bilateral lumbar
radiculopathy.
Appellant was involved in a prior rear end collision in 2009, where
he was treated for injury to his neck and back. Appellant was also
involved in a rear[-]end hit[-]and[-]run collision on June 14, 2016,
four months after the collision in this case.
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Trial Court Opinion, 8/3/2020, at 1-3.
On March 5, 2018, Appellant filed a civil complaint against Parks,
alleging Parks was negligent and that such negligence caused injuries to
Appellant. The case proceeded to a two-day jury trial commencing on January
22, 2020. At trial:
Parks’ defense presented an expert report of radiologist Michael
Brooks, which state[d]:
Review of the lumbar imaging study demonstrates no focal
disc herniation, bulging or bony stenosis. There is disc
degeneration at L-3/L-4 level consistent with a chronic
degenerative process.
No fracture is seen, no vertebral body collapse is seen. No
bone displacement is seen. No bone destruction is seen. No
bleeding or swelling is seen within the core or the
surrounding soft tissue. No compression of] the spinal cord
or nerve root is noted.
It is, therefor (sic), my opinion, within a reasonable degree
of medical certainty, after review of the lumbar imaging
study as described above to state the following in relation
to a traumatic event dated [March 11, 2016]:
One; chronic and longstanding preexisting
degenerative changes are present at L-3/L-4, which is
described in detail above.
This finding is consistent with chronic degenerative
process which would predate and be unassociated
with the traumatic event in question.
There are no findings in the lumbar imaging study
which would be caused by the traumatic event in
question or represent a super imposition of an acute
process on chronic disc degeneration.
There is no compression of the spinal cord or nerve
roots seen in the examination. Therefor (sic), there
are no abnormalities which would correspond to
findings of myelopathy or radiculopathy.
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Dr. Daniel Goldstein, an orthopedic surgeon retained by the
defense to conduct an [independent medical examination],
reported:
The medical documentation does not support the causal
relationship between the accident and the injury.
[Appellant] stated he did have a car accident approximately
four to five years prior. He stated he also had prior low back
pain for which he did physical therapy for his low back.
Currently he's not undergoing any current treatment and I
would not recommend any further treatment related to this
accident.
If [Appellant] were to have complaints about the
lumbosacral pain or lower extremity radiculopathy, I would
attribute that to degenerative process and not acute or
traumatic in nature.
Id. at 3-4 (record citations omitted).
At the conclusion of trial on January 23, 2020, the jury ultimately found
Parks negligent, but determined that Parks’ negligence was not a factual cause
of Appellant’s injuries. On January 29, 2020, Appellant filed a timely post-trial
motion. Therein, Appellant requested that the trial court enter judgment
notwithstanding the verdict (JNOV) in his favor and grant a new trial on
damages. In the alternative, Appellant requested a new trial. The trial court
denied relief by order entered on February 24, 2020. Appellant filed a praecipe
to enter judgment and this timely followed.1
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1 On March 12, 2020, Appellant filed a notice of appeal. Upon review of the
record, it does not appear that the trial court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
On August 3, 2020, the trial court issued an opinion pursuant to Pa.R.A.P.
1925(a).
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On appeal, Appellant presents the following issue for our review:
Did the trial court err in denying Appellant's motion for post[-]trial
relief where the jury verdict shocked the conscience by going
against the clear weight of the evidence, when the jury was
presented with evidence from [Park]'s own orthopedic expert that
Appellant's injuries were causally related to the collision at issue
and the jury found no causation?
Appellant’s Brief at 4 (superfluous capitalization omitted).
In sum, Appellant argues:
Where 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. Andrews [v. Jackson], 800 A.2d [959 (Pa. Super.
2002).] Such a verdict is contrary to the weight of the evidence
adduced at trial. In other words, “a jury is entitled to reject any
and all evidence up until the point at which the verdict is so
disproportionate to the uncontested evidence as to defy common
sense and logic.” Andrews, 800 A.2d at 962.
In the instant trial[,] Appellant's doctor[, Dr. Allen, opined] that
he sustained injury as a result of the motor vehicle collision. So
did Dr. Goldstein, the doctor who performed the defense medical
examination. The courts have recognized instances where both
parties' medical experts agreed that Appellant suffered injury and
that defendant's negligence was a substantial factor in causing the
injury, but the injuries were not serious enough to award
compensation. See Majczyk v. Oesch, 789 A.2d 717 (Pa. Super.
2001). However, when that type of situation arose, the proper
[result] was to for the jury to find that the accident was a
substantial cause of at least some injury, "where both parties
medical experts agree the accident caused some injury. While the
jury may then find the injuries caused by the accident were
incidental or noncompensable and deny damages on that basis,
the jury may not simply find the accident did not 'cause' an injury,
where both parties' medical experts have testified to the
contrary." Andrews, 800 A.2d at 964.
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Appellant’s Brief at 13-14. Citing our subsequent decisions following
Andrews, specifically, Smith v. Putter, 832 A.2d 1094 (Pa. Super. 2003),
Kraner v. Kraner, 841 A.2d 141 (Pa. Super. 2004), and Bostanic v.
Barker-Barto, 936 A.2d 1084 (Pa. Super. 2007), Appellant argues the trial
court “did not apply the correct standard as outlined in Andrews and its
progeny, and instead, focused on other factors such as [] Appellant's other
medical records and credibility, which are not factors in an Andrews
analysis.” Id. at 16. In support of his argument, Appellant relies heavily on
the written report of defense expert, Dr. Goldstein, wherein Dr. Goldstein
opined that Appellant’s injuries were causally related to the accident.2
Appellant notes, however, that when defense counsel read portions of Dr.
Goldstein’s report into the record at trial, counsel misread the report and
incorrectly stated that Dr. Goldstein opined that Appellant’s injuries were not
causally related to the accident.3 Id. at 8-9; 16 (emphasis supplied).
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2 By stipulation, the parties agreed that counsel for each side would read their
respective expert opinions into the record in lieu of calling expert witnesses
for live testimony or introducing expert testimony through videotaped
deposition.
3 Appellant did not object to any alleged misrepresentation of Dr. Goldstein’s
expert report at trial. “Under prevailing Pennsylvania law, a timely objection
is required to preserve an issue for appeal.” Samuel-Bassett v. Kia Motors
Am., Inc., 34 A.3d 1, 45 (Pa. 2011) (“the object of contemporaneous
objection requirements respecting trial-related issues is to allow the court to
take corrective measures and thereby to avert the time and expense of
appeals or new trials.”). Moreover, Appellant did not raise this specific aspect
of his current claim in his post-trial motion. If an issue is not raised in a
post-trial motion, it is waived for purposes of appeal. See Pa.R.C.P.
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We adhere to the following standard of review:
[A]ppellate review of a weight claim is a review of the [trial
court's] exercise of discretion, not of the underlying question of
whether the verdict is against the weight of the evidence. Because
the trial judge has had the opportunity to hear and see the
evidence presented, an appellate court will give the gravest
consideration to the findings and reasons advanced by the trial
judge when reviewing a trial court's determination that the verdict
is against the weight of the evidence. One of the least assailable
reasons for granting or denying a new trial is the lower court's
conviction that the verdict was or was not against the weight of
the evidence and that a new trial should be granted in the interest
of justice.
We stress that if there is any support in the record for the trial
court's decision to deny the appellant's motion for a new trial
based on weight of the evidence, then we must affirm. An
appellant is not entitled to a new trial where the evidence
presented was conflicting and the fact-finder could have decided
in favor of either party.
Corvin v. Tihansky, 184 A.3d 986, 992–993 (Pa. Super. 2018) (internal
citations omitted).
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227.1(b)(2); Agostinelli v. Edwards, 98 A.3d 695, 705 (Pa. Super. 2014).
Moreover, an appellant cannot raise an issue for the first time on appeal. See
Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived and cannot
be raised for the first time on appeal.”). In the absence of a contemporaneous
objection, the record is devoid of factual development and counseled advocacy
explaining how and why defense counsel’s alleged misstatement occurred.
Hence, Appellant’s omission has impaired our ability to undertake meaningful
appellate review of this claim. Therefore, because Appellant failed to properly
preserve this aspect of his appeal, we find it waived. Regardless, as discussed
at length below, Appellant’s reliance on the purported mistake does not entitle
him to relief because Dr. Goldstein was not the only defense expert at trial
and another defense expert testified that Appellant’s medical complaints could
be explained by chronic degeneration and not accident-related trauma.
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In Andrews, our Court held “[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.” Andrews, 800 A.2d at 962 (emphasis in original). In
Andrews, however, we distinguished the facts of that case with our decisions
in Henery v. Shadle, 661 A.2d 439 (Pa. Super. 1995), Holland v. Zelnick,
478 A.2d 885 (Pa. Super. 1984), and Majczyk v. Oesch, 789 A.2d 717 (Pa.
Super. 2001) (en banc):
The[] cases, in which both parties' experts agree the accidents
caused some injury, are distinguishable from Henery [] and
Holland[.] In Henery and Holland, the experts for both sides
disagreed that the accidents in question caused the soft tissue
injuries alleged. Although the defense experts in both cases
conceded that a soft tissue injury “could have” or “may have” been
caused by the accidents, neither expert conceded the accident
actually caused any soft tissue injuries. Thus, the juries in
Henery and Holland were justified in finding the accidents did
not cause the plaintiffs' injuries, as this finding did not contradict
a consensus among the medical experts that the accident caused
some injury.
On the other hand, in the cases where the experts agreed the
accidents caused some injury, but the jury found to the contrary,
that finding was determined to have contradicted all the evidence
of the medical experts. A new trial on damages was warranted,
because such a verdict bears no rational relation to the evidence
adduced at trial.
[T]his Court considered the issue in Majczyk v. Oesch, 789 A.2d
717 (Pa. Super. 2001) (en banc). In that case, the defendant's
medical expert conceded the plaintiff had some sore muscles after
the accident. The jury, however, did not award the plaintiff
damages. This Court concluded that the jury may decide, based
on their experience and common sense, that a claimed injury is
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not serious enough to award compensation. In other words, the
jury is permitted to find the defendant's negligence caused an
“injury,” but that the “injury” caused was not compensable. Thus,
this Court held, “that the determination of what is a compensable
injury is uniquely within the purview of the jury.” Id. at 726. Our
reading of Majczyk, however, does not lead us to conclude that
a jury may disregard uncontroverted expert witness testimony
that the accident at issue [caused] some injury. Rather, we
conclude the jury must find the accident was a substantial cause
of at least some injury, where both parties[’] medical experts
agree the accident caused some injury. While the jury may then
find the injuries caused by the accident were incidental or
non-compensable and deny damages on that basis, the jury may
not simply find the accident did not “cause” an injury, where both
parties' medical experts have testified to the contrary.
Andrews, 800 A.2d at 963–964.
From our review of the record in this case, the parties’ medical experts
did not agree that the accident at issue caused Appellant to sustain some
injury. Here, as noted by the trial court, the defense relied upon the expert
report of “Michael Brooks, M.D., J.D., board certified diagnostic radiologist,”
who opined:
It is [] my opinion, within a reasonable degree of medical
certainty, after review of the lumbar imaging study as described
above to state the following in relation to a traumatic event dated
[March 11, 2016]:
One; chronic and longstanding preexisting degenerative changes
are present[.]
This finding is consistent with chronic degenerative process which
would predate and be unassociated with the traumatic event in
question.
There are no findings in the lumbar imaging study which would be
caused by the traumatic event in question.
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N.T., 1/22/2020, at 133; see also Trial Court Opinion, 8/3/2020, at 3-5
(“Defense radiologist, Dr. Michael Brooks, found that Appellant’s condition was
part of a chronic degenerative process, unrelated to and unexacerbated by
the collision.”). On appeal, Appellant does not challenge the trial court’s
reliance on Dr. Brooks opinion. Accordingly, we reject Appellant’s suggestion
that both parties’ medical experts agreed that the accident caused injury.
Hence, it was not error for the jury to find that the accident was not the cause
of Appellant’s injuries.4 As such, Appellant is not entitled to a new trial where
the trial evidence presented was conflicting and the jury could have decided
in favor of either party.
Order affirmed.
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4 Finally, we briefly respond to Appellant’s assertion that the trial court erred
when it opined that the jury’s finding could have been based on other factors
such as Appellant's medical records, an assessment of Appellant’s credibility
at trial and when reporting his injuries, as well as a subsequent rear-end
collision involving Appellant after the accident at hand. After determining,
based upon Majczyk, that the jury’s verdict in this case reflected its finding
that the parties’ experts did not agree that Appellant’s injuries were caused
by the accident in question, the trial court went on to state that it was also
within the jury’s province to determine whether the injuries were compensable
and that the jury could properly consider the aforementioned factors. As we
explained at length above, the jury may not disregard agreement between
competing experts that an accident caused some injury to the plaintiff. In
certain instances, however, the jury may find that claimed injuries were
incidental or unworthy of compensation. We need not examine which of these
scenarios manifested in this case, however, because the trial court here
properly applied Andrews when it determined that the experts for both
parties did not reach a consensus. We affirm the trial court’s decision on this
basis. See Generation Mortg. Co. v. Nguyen, 138 A.3d 646, 651 (Pa.
Super. 2016) (“As an appellate court, we may uphold a decision of the trial
court if there is any proper basis for the result reached; thus we are not
constrained to affirm on the grounds relied upon by the trial court.”).
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Judge Strassburger did not participate in the consideration or decision
of this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/14/21
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