Landau, G. v. Jadco Enterprises ( 2023 )

J-A19041-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
GARY LANDAU : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JADCO ENTERPRISES, INC. D/B/A : No. 3196 EDA 2022
STERLING LIMOUSINE & :
TRANSPORTATION SERVICES :
Appeal from the Judgment Entered December 16, 2022
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 210500641
BEFORE: BOWES, J., STABILE, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED OCTOBER 3, 2023
Gary Landau (Landau) appeals from the December 16, 2022 judgment
entered in the Court of Common Pleas of Philadelphia County (trial court)
following a jury trial in which he was awarded $100,000 in damages against
Jadco Enterprises, Inc., d/b/a Sterling Limousine & Transportation Services
(Jadco). We affirm.
I.
We glean the following facts from the certified record. In May of 2019,
Landau was injured on a shuttle bus operated by Jadco when a piece of
exposed metal on a seat sliced his leg, leaving a scar. Landau subsequently
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* Retired Senior Judge assigned to the Superior Court.
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experienced a decline in cognitive function. He filed a suit for negligence
against Jadco, asserting that it failed to maintain a protective covering over
the exposed metal to prevent injury to passengers. He alleged that he
suffered from permanent scarring to his leg and that the injury worsened his
cognitive faculties, resulting in a permanent decline into dementia. Prior to
trial, Jadco stipulated to its negligence and admitted fault for the injury to
Landau’s leg but denied that the injury was the cause of his dementia.
The parties proceeded to a jury trial on August 8, 2022.1 Landau
presented expert testimony from Dr. Steven Mazlin to establish that the leg
injury was the cause of his decline into dementia. Dr. Mazlin reviewed records
of Dr. Murray Grossman, a neurologist who performed cognitive testing of
Landau on June 4, 2019, as well as medical records from Landau’s primary
care physician and other specialists he had seen over the years. A nurse
working for Dr. Grossman included several notes in his file following the visit,
including one approximately three weeks later stating, “[p]atient’s lawyers
wanted to discuss patient’s cognitive changes with Dr. Grossman, specifically
asking if the motor vehicle accident could have exacerbated or worsened the
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1 We summarize only the testimony related to the decline in cognitive function,
as that alleged injury is the basis for Landau’s claims on appeal. With the
exception of Dr. Mazlin, many of the experts who testified at trial were
deposed beforehand, with their testimony presented to the jury by video.
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patient’s condition.” N.T., 8/9/22, at 15-16. She wrote the following note in
his file over a month later:
The patient’s head CT shows fairly extensive atrophy in a pattern
most consistent with Alzheimer’s disease and consistent with the
patient’s pattern of cognitive difficulty, no evidence of head
trauma, no subdural, no cerebral contusion, no petechial
hemorrhage, no evidence that patient’s car accident caused the
cognitive difficulties at this time.
Id. at 16 (emphasis added). Dr. Mazlin did not review the nurse’s notes while
developing his expert report before trial. Landau objected to the admission
of the contents of the notes at trial and the trial court overruled the objection.
At trial, Dr. Mazlin testified that he met with Landau once in 2021 and
once in 2022 and authored reports based on those appointments and his
review of Landau’s medical records.2 Based on the history provided to him,
Dr. Mazlin testified that Landau experienced a “precipitous decline” in
cognitive function immediately after sustaining his leg injury, when previously
he had shown at most minimal cognitive impairment. Id. at 40. He had
difficulty forming sentences, fumbled over words, was unable to identify
common objects and had poor short-term memory. He also struggled with
simple arithmetic and abstract reasoning. Dr. Mazlin diagnosed him with
dementia. After reviewing extensive medical records, Dr. Mazlin found no
evidence that he had been suffering from any cognitive issues prior to the
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2 Landau was in his mid-seventies at the time of trial.
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injury. The first indication of cognitive issues was observed four days after
the accident when Landau’s primary care physician observed some memory
problems during an exam. Dr. Mazlin opined that the acute stress of the leg
injury and subsequent treatment “directly magnified [Landau’s] symptoms of
mild cognitive impairment to the degree that he was now in a state of
dementia.” Id. at 51. He testified that because Landau had not recovered
within six months, the dementia was permanent.
On cross-examination, Dr. Mazlin agreed that Landau’s dementia was
not caused by the leg injury itself. Id. at 86. He said that dementia is usually
a progressive disease but occasionally patients, such as Landau, present with
a more acute decline. He testified that a CAT scan performed 11 days after
the leg injury revealed some atrophy that was usual in elderly individuals and
not attributable to the injury. When asked about Dr. Grossman’s records, Dr.
Mazlin opined that some of the medical history contained in his records was
incorrect, though he agreed that the testing Dr. Grossman had performed was
generally accurate. He believed that but for the leg injury, Landau would not
have declined from mild cognitive impairment into dementia for many years.
Dr. Mazlin testified that he did not review the notes made by Dr. Grossman’s
nurse until the morning of trial and that he disagreed with the opinion
expressed in the nurse’s notes.
Dr. James Millard, Landau’s primary care physician, testified by video
deposition. He had been Landau’s doctor since 1998 and saw him regularly
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until shortly after the accident. Dr. Millard testified that he never had concerns
about Landau’s cognitive function prior to the accident and said he would have
performed an evaluation if he had noticed any issues. He saw Landau for an
appointment approximately two months before the accident and did not note
any new medical issues, though Landau mentioned some mild back pain and
muscle spasticity that was not cause for significant concern. The first time he
noted any memory issues was on May 15, 2019, when Landau and his partner
came into the office after the accident. At that time, Dr. Millard performed a
short cognitive evaluation. Landau scored 26 out of 30 points on the test,
which Dr. Millard testified indicated a cognitive deficit. He then ordered a CAT
scan to determine whether Landau had suffered any injury to his brain,
prescribed a medication for the treatment of Alzheimer’s disease and referred
him to a neurologist. He disagreed with Dr. Grossman’s notes, which had
identified a two-year history of cognitive difficulties.
At trial, Landau also sought to admit testimony from Varsha Desai, a
nurse and certified life care planner, about the cost of Landau’s long-term care
following his dementia diagnosis. The trial court excluded the testimony about
future costs as speculative but ruled that testimony about Landau’s past
medical expenses was admissible. After the trial court’s ruling, Landau elected
not to present Desai as a witness.
Jadco presented Dr. Brad Klein, a neurologist, as its medical expert. Dr.
Klein testified based on his review of Landau’s medical records from before
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and after the accident, as well as Dr. Mazlin’s report. Dr. Klein opined that
the leg injury did not impact the progression of Landau’s dementia, but did
impact the symptoms of dementia he experienced at the time of the incident.
He testified that Alzheimer’s disease results from a slow degeneration and
atrophy of the brain over time. He testified that it was common for patients
with Alzheimer’s disease to development significant cognitive symptoms in
response to medical conditions that would not be cause for concern in a
younger patient. As a result, he concluded that the stress of the leg injury
did not trigger the progression of Landau’s dementia but merely created
additional symptoms that were not present when he was not under that stress.
Based on his review of the examination performed by Dr. Millard in the
days after the incident, Dr. Klein opined that Landau was experiencing only
mild cognitive impairment at that time. According to Dr. Grossman’s records,
Landau had been experiencing difficulty with comprehension, memory,
executive function, visuospatial functioning and decision-making for two
years. He viewed this as evidence of a progression of cognitive decline over
that time. He noted that Landau’s CAT scan after the accident showed atrophy
in his brain which could not have developed in the short time after the leg
injury. He concluded that the degeneration had begun prior to the injury.
In response to Dr. Mazlin’s report, Dr. Klein testified that there was no
research to support the conclusion that acute stressors cause brain cell death,
particularly in patients who have already developed Alzheimer’s disease. He
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said that stress can cause additional symptoms but would not alter the brain
of the patient. He acknowledged that one study found that stress worsened
the symptoms of dementia over time but believed that the study was flawed.
Based on his research, he concluded that Landau was suffering from mild
cognitive impairment and an early progression into dementia at the time of
his injury, and his eventual progression into dementia was not caused or
accelerated by the leg injury.
On cross-examination, Dr. Klein admitted that he never met with or
examined Landau, nor did he speak with any of his family members to obtain
a medical history. He considered Dr. Grossman’s records to be comprehensive
and did not believe he would have gleaned anything additional from meeting
with Landau. He also explained that patients or family members are often
mistaken about how long cognitive symptoms have been present, as they can
present subtly at first and would not be as noticeable as an acute change. He
admitted that in 21 years of medical records predating the accident, there was
no indication that Landau had previously suffered from any cognitive decline.
Dr. Klein admitted that there were discrepancies in the medical histories as
reported by Dr. Mazlin and Dr. Grossman, with only Dr. Grossman noting that
the cognitive issues were ongoing for a couple of years.
Several of Landau’s associates also testified that he had never shown
any signs of cognitive decline prior to his leg injury but appeared to develop
dementia thereafter. Landau’s long-term partner, Toni Rubando, testified that
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he had never experienced any cognitive issues prior to the accident and that
his behavior after the injury was an immediate cause for concern. When Dr.
Millard asked her whether he had cognitive issues in the past, she could only
recall two occasions when she had to provide him directions when he got lost
while driving. She denied telling Dr. Grossman that he had struggled with
cognitive decline prior to the injury.
Following the close of evidence, Landau moved for a directed verdict on
the issue of whether the leg injury caused his dementia, arguing that Dr. Klein
and Dr. Mazlin had both testified that the stress of the incident worsened his
preexisting mild cognitive impairment. The trial court denied the motion.
On the first day of trial, one of the jurors was dismissed due to illness.
On the final day of trial, Jadco asked the trial court whether the verdict would
require a consensus of nine or ten of the remaining 11 jurors.3 The trial court
responded that nine jurors would be sufficient and Landau did not offer any
objection. The trial court repeated during the jury instructions that nine jurors
would be required to reach a verdict, and following deliberations, when the
jury returned to the courtroom, the tipstaff asked whether it had reached a
verdict supported by nine jurors. Landau likewise did not object at either of
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3 As discussed in more detail infra, Pennsylvania constitutional and statutory
law requires a verdict in a civil case to be reached by five-sixths, or
approximately 83 percent of the jury. A verdict reached by nine of 11 jurors
constitutes 81.8 percent of the jury.
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these points. After the verdict was recorded, Landau objected and argued
that the verdict must be supported by at least ten jurors. At that juncture,
the trial court overruled the objection as waived.
The jury awarded Landau $100,000 in damages for the injury to his leg
but concluded that the leg injury did not cause his dementia. The award was
supported by nine of the 11 jurors. Landau filed a post-trial motion which the
trial court denied. He timely appealed and he and the trial court have complied
with Pa. R.A.P. 1925.
II.
Landau raises four issues on appeal. First, he argues that the verdict
was improper because it was not reached by five-sixths of the jury. Next, he
contends that the trial court abused its discretion in two evidentiary rulings:
excluding testimony about Landau’s future medical expenses and allowing
Jadco to cross-examine Dr. Mazlin based on the nurse’s notes in Dr.
Grossman’s files. Third, he contends that the trial court erred by denying his
motion for directed verdict on factual cause because Dr. Klein agreed that the
leg injury caused Landau’s dementia to become more symptomatic. Finally,
he argues that the trial court abused its discretion in denying his motion for a
new trial based on the weight of the evidence.
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A.
We begin with Landau’s challenge to the number of jurors required to
reach a verdict in his case.4 The trial court concluded that this issue is waived
because Landau did not object to a verdict from nine of the 11 jurors until
after the verdict was recorded, even though the matter was discussed on the
record before deliberations began. We agree.
As a general matter, a verdict in a civil case must be rendered by not
less than five-sixths of the jury. See Pa. Const. Art. 1, § 6; 42 Pa. C.S.
§ 5104(b). However, parties may waive their right to a jury trial as set forth
in the Constitution and, in doing so, are “entitled to a trial that comports with
the rules of procedure according to which he [or she] has agreed to be tried.”
Gianni v. William G. Phillips, Inc., 933 A.2d 114, 116 (Pa. Super. 2007)
(citing Ottavio v. Fibreboard Corp., 617 A.2d 1296, 1299 (Pa. Super.
1992)); see also Blum by Blum v. Merrell Dow Pharms. Inc., 560 A.2d
212, 219 (Pa. Super. 1989) (“[I]n the absence of stipulation or consent on the
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4
When assessing the trial court’s denial of a motion for new trial,
we apply a deferential standard of review. The decision whether
to grant or deny a new trial is one that lies within the discretion
of the trial court, and that decision is not subject to being
overturned on appeal unless the trial court grossly abused its
discretion or committed an error of law that controlled the
outcome of the case.
Gianni v. William G. Phillips, Inc., 933 A.2d 114, 116 (Pa. Super. 2007)
(citations omitted).
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record to receive a verdict of less than the constituted number, the verdict of
the jury is to be considered a nullity.”). Moreover, it is well-settled that
“issues, even those of constitutional dimension, are waived if not raised in the
trial court.” Commonwealth v. Jefferson, 256 A.3d 1242, 1252 (Pa. Super.
2021) (citation omitted).
In holding that Landau waived his challenge to the adequacy of the
verdict, the trial court relied on Kardibin v. Associated Hardware, 426 A.2d
649 (Pa. Super. 1981), which involved a civil jury verdict that was supported
by nine of 11 jurors. Prior to trial, one of the original jurors became
unavailable and the parties agreed to proceed to trial and seek a verdict from
at least nine of the 11 remaining jurors. Id. at 651. Prior to charging the
jury, however, one of the defendants asserted that the verdict should be
supported by ten of the remaining jurors rather than nine. Id. The trial court
declined to alter the earlier agreement and charged the jury that at least nine
of the members must agree to the verdict. Id. On appeal, we affirmed the
trial court, finding the stipulation to a verdict of nine jurors to be valid:
If the parties to a civil case may validly agree to have their rights
determined without any jury or with a jury of eleven or less
members, it follows that they may with equal validity consent to
accept a verdict arrived at by a specified number of jurors, even
that of a bare majority. A party may waive constitutional rights
designed for his benefit.
Id. at 657 (quoting Neumann v. Kurek, 22 N.Y.S.2d 950, 953 (N.Y. Spec.
Term 1940)).
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Landau emphasizes the mandatory nature of the five-sixths language
for a civil jury verdict in our Constitution and the Judiciary Code. See Landau’s
Brief at 26-27 (citing Oberneder v. Link Computer Corp., 696 A.2d 148,
150 (Pa. 1997)). He cites City of Philadelphia, Police Dep’t v. Gray, 633
A.2d 1090 (Pa. 1993) for the proposition that his objection to an inadequate
jury verdict was not waived when it was raised “while the jury was present
and when the trial court could correct the error.” Landau’s Brief at 27. In
that case, our Supreme Court held that the plaintiff waived her challenge to
an inconsistent jury verdict when she failed to object to the verdict when it
was recorded. City of Philadelphia, Police Dep’t, supra, at 1095. It found
that the plaintiff was not required to object to the form of the verdict slip
before the jury issued its verdict, as the slip was not erroneous on its face.
Id. Where the inconsistency arose in the jury’s answers to special
interrogatories, however, the plaintiff was required to timely object prior to
the recording of the verdict. Id.
City of Philadelphia, Police Dep't is inapposite. There, the special
interrogatories on the verdict slip were not inherently inconsistent or flawed,
so no objection prior to jury deliberations could have corrected any error.5
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5 The verdict slip instructed the jury to determine whether two defendants
caused the plaintiff’s injuries and then to apportion the percentage of
negligence between the defendants. The inconsistency arose when the jury
found that one defendant was not a causal factor of the plaintiff’s injuries, but
nonetheless apportioned 25 percent of the negligence to that defendant. City
(Footnote Continued Next Page)
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Landau posits that the error in this case was similarly not apparent until after
the verdict was read and the jury was polled, as notwithstanding the trial
court’s instruction to the jury that the verdict needed to be supported by nine
jurors and it could have elected to return a verdict supported by a greater
number. However, this argument disregards the fact that Landau failed to
object to the initial discussion of the number of jurors required to reach a
verdict and to the jury instructions. In City of Philadelphia, Police Dep't,
no objection would have prevented the inconsistent verdict, as the verdict slip
and charge was not inherently erroneous. Here, however, the mathematical
error that Landau challenges on appeal was apparent during the initial
discussion of the verdict and during the trial court’s charge to the jury.
Nevertheless, Landau declined to object until after the verdict was recorded.
These circumstances are more akin to the stipulation this Court
approved of in Kardibin, in which the appellant initially agreed to a verdict
from nine of 11 jurors and then later attempted to object based on the five-
sixths rule. There, we concluded that the appellant was bound by his
stipulation even when he raised his objection prior to jury deliberations. Here,
where Landau did not raise his objection, despite ample opportunity to do so
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of Philadelphia, Police Dep’t v. Gray, 633 A.2d 1090, 1095 (Pa. 1993).
Nothing on the face of the verdict slip or in the jury instructions would have
given rise to the error.
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until after the verdict was formally recorded, the trial court did not err in
finding that the objection was untimely. No relief is due.
B.
Next, we consider Landau’s challenges to the trial court’s evidentiary
rulings.6 First, Landau argues that the trial court abused its discretion in
excluding the testimony his life care planner regarding future medical
expenses as unduly speculative.7 He maintains that evidence of future
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6 We review a trial court’s ruling on the admissibility of evidence for an abuse
of discretion. Czimmer v. Janssen Pharm., Inc., 122 A.3d 1043, 1058 (Pa.
Super. 2015).
7 Landau briefly contends that Jadco waived this objection by failing to raise
the issue at the time of the deposition. Our review of the record reveals that
the parties agreed to reserve all objections until the time of trial, and that
Jadco filed a written pre-trial objection to the overall speculative nature of
Desai’s testimony, which the trial court granted in part and overruled in part
by allowing in evidence of current and past expenses while excluding evidence
of future expenses. Our Rules of Civil Procedure provide that objections to
“the competency, relevancy, or materiality of the testimony are not waived by
failure to make them before or during the taking of the deposition, unless the
ground of the objection is one which was known to the objecting party and
which might have been obviated or removed if made at that time.” Pa. R. Civ.
P. 4016(b) (emphasis added). Additionally, “[s]ubject to the provisions of
Rule 4016(b), objections may be made at the trial or hearing to receiving in
evidence any deposition or part thereof for any reason which would require
the exclusion of the evidence if the witness were then present and testifying.”
Pa. R. Civ. P. 4020(c). The objection at issue here was a broad challenge to
the materiality of the majority of Desai’s expert opinion. It was not the type
of objection that would have been obviated or removed by the parties at the
time of the deposition. Based on the nature of the objection, the relevant
Rules and the parties’ reservation of objections until the time of trial, Jadco’s
pre-trial objection to this testimony adequately preserved the issue for review.
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medical expenses is admissible and relevant to present to the jury. Because
the jury did not find that the accident caused Landau’s dementia, any
exclusion of testimony regarding future medical expenses was harmless. In
any event, the trial court did not abuse its discretion in excluding this
evidence.
As Landau argues, evidence of future medical expenses is admissible for
a jury to consider when calculating damages:
It is well-settled that an item of damage claimed by a plaintiff can
properly be submitted to the jury only where the burden of
establishing damages by proper testimony has been met. In the
context of a claim for future medical expenses, the movant must
prove, by expert testimony, not only that future medical expenses
will be incurred, but also the reasonable cost of such services.
Chavers v. 1605 Valley Ctr. Pky, LP, 294 A.3d 487, 498 (Pa. Super. 2023)
(emphasis omitted) (citing Mendralla v. Weaver Corp., 703 A.2d 480, 485
(Pa. Super. 1997) (en banc)). In Chavers, we concluded that the trial court
properly excluded testimony regarding future medical costs of knee surgery
as speculative when the expert testified that the plaintiff only had a 50 percent
chance of needing that surgery. Id.Here, Desai developed a life care plan based on her review of Landau’s
medical records, an interview with Landau and Rubando and a discussion with
Dr. Mazlin. The life care plan was based solely on the cognitive decline Landau
suffered after the accident and included expenses for medical management
and medication, as well as possible in-home care through the remainder of
Landau’s life. Desai acknowledged that Rubando currently provides for
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Landau’s daily needs but provided estimates for various levels of in-home
care, ranging from eight hours to 24 hours a day. She stated that she could
not determine whether Landau would have needed in-home care if the
accident had not occurred and provided a range of different levels of care to
account for the different possibilities.8 She said that Landau currently does
not have in-home care, as Rubando and a hired driver have managed all his
needs since the accident. On cross-examination, she testified that she could
not determine what level of care Landau would need for the rest of his life and
that he may have developed the need for in-home care even without the
accident. Related to the accident, she testified that he may need “no care or
24 hours of care, somewhere in there.” Depo. of Desai, 8/2/22, at 52.
The trial court correctly concluded that this testimony was unduly
speculative. Desai explained that she could not predict the level of care that
Landau would need as he aged and the estimates she provided varied widely
depending on the level of in-home care he would require. Even while testifying
to the costs of in-home care, she acknowledged that Rubando had been
meeting most of his care needs herself and it was unclear whether professional
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8 Desai estimated the cost of lifetime care of eight hours per day plus medical
management and medications as $850,382. For 12 hours of care per day, the
cost increased to $1,240,932; at 16 hours, the cost was $1,631,482; and for
24-hour care, the estimated cost was $1,436,270. Depo. of Desai, 8/2/22, at
35. Medical management and medications alone were estimated at $469,282.
Id. at 31.
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help would ever become necessary. Even if the jury had found that the injury
caused or aggravated Landau’s dementia, the trial court did not abuse its
discretion in finding that the estimated costs, which ranged from $470,000 to
over $1,600,000, were too speculative to be presented to the jury.9
C.
Next, Landau argues that the trial court abused its discretion in allowing
Jadco to cross-examine Dr. Mazlin regarding the notes Dr. Grossman’s nurse
wrote in his file. Relying on Commonwealth v. Thomas, 282 A.2d 693 (Pa.
1971), and Cooper v. Burns, 545 A.2d 935 (Pa. Super. 1988), he contends
that it is improper to allow the hearsay opinion of a non-testifying medical
expert into evidence. As the notes in Dr. Grossman’s file were a proper basis
for cross-examination, Landau is not entitled to relief.10
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9 Additionally, as noted supra, Desai’s life care plan was only based on the
costs of treating Landau’s dementia and did not include any costs related to
the physical leg injury. Because the jury concluded that the leg injury did not
cause the dementia, the exclusion of Desai’s testimony was rendered
harmless, as Landau was not entitled to recover those damages.
10 In its opinion, the trial court held that the notes were properly admitted
because they were part of the records that Dr. Mazlin reviewed in forming his
expert opinion. Trial Court Opinion, 2/17/23, at 6 (citing Primavera v.
Celotex Corp., 608 A.2d 515, 517 (Pa. Super. 1992)). Dr. Mazlin, however,
testified at trial that he had not previously read the notes and saw them for
the first time on the day of his testimony. N.T., 8/9/22, at 103-04.
Nevertheless, it is well-established that we may affirm the trial court on any
basis appearing of record. Plasticert, Inc. v. Westfield Ins. Co., 923 A.2d
489, 492 (Pa. Super. 2007).
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We addressed a similar issue in Rafter v. Raymark Indus., Inc., 632
A.2d 897 (Pa. Super. 1993), a case in which the defendant’s medical expert
was cross-examined regarding out-of-court opinions offered by various
treating physicians. We held that the treating physicians’ conclusions were a
proper matter for cross-examination, even when the testifying expert did not
review their records in reaching his own opinion:
The right of cross-examination includes the right to examine the
witness on any facts tending to refute inferences or deductions
arising from matters the witness testified to on direct
examination. Moreover, where a medical expert is cross-
examined concerning reports or records which have not been
admitted into evidence but which would tend to refute that
expert’s assertion, it is not an abuse of discretion for the trial court
to allow this cross-examination.
Id. at 900 (cleaned up). We concluded that questioning about the non-
testifying physician’s report was “a legitimate attempt at diminishing the
impact and reliability of [the expert’s] opinion” and thus a proper avenue for
cross-examination. Id.Rafter is dispositive here. Though Dr. Mazlin testified that he did not
read the nurse’s notes in preparing his expert report, the notes remained a
proper basis for Jadco to impeach Dr. Mazlin’s credibility and diminish the
impact of his opinion in the case. The notes were written as part of Dr.
Grossman’s treatment of Landau and bore on the central issue in the case.
Jadco was entitled to cross-examine Dr. Mazlin regarding why he did not find
those notes persuasive, particularly when Dr. Mazlin relied on the testing Dr.
Grossman performed shortly after the accident in developing his expert
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opinion. Questioning Dr. Mazlin on the notes that contradicted his opinion was
a legitimate means of attacking his opinion and building a defense. The trial
court did not abuse its discretion in allowing this avenue of questioning.11
D.
Next, Landau argues that the trial court erred by denying his motion for
a directed verdict on factual cause.12 He contends that the plaintiff and
defense experts agreed that the leg injury caused his decline into dementia
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11 Commonwealth v. Thomas, 282 A.2d 693 (Pa. 1971), and Cooper v.
Burns, 545 A.2d 935 (Pa. Super. 1988), do not compel a different conclusion,
as those cases do not bear on the right of cross-examination. See Boucher
v. Pa. Hosp., 831 A.2d 623, 629 (Pa. Super. 2003) (holding that even when
evidence is not admissible under the expert reliance rule or a hearsay
exception, it may be the proper basis for cross-examination to refute a medical
expert’s opinion).
12
We will reverse a trial court’s grant or denial of a [directed verdict
or JNOV] only when we find an abuse of discretion or an error of
law that controlled the outcome of the case. Further, the standard
of review for an appellate court is the same as that for a trial court.
There are two bases upon which a [directed verdict or JNOV] can
be entered; one, the movant is entitled to judgment as a matter
of law and/or two, the evidence is such that no two reasonable
minds could disagree that the outcome should have been rendered
in favor of the movant. With the first, the court reviews the record
and concludes that, even with all factual inferences decided
adverse to the movant, the law nonetheless requires a verdict in
his favor. Whereas with the second, the court reviews the
evidentiary record and concludes that the evidence was such that
a verdict for the movant was beyond peradventure.
Hall v. Episcopal Long Term Care, 54 A.3d 381, 395 (Pa. Super. 2012)
(citation omitted).
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and, in light of the uncontroverted evidence, it was improper for the trial court
to allow the question of factual cause to be considered by the jury.
Landau maintains that a directed verdict on causation for his dementia
was warranted because “[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 v. Jackson, 800 A.2d 959, 962 (Pa. Super. 2002) (emphasis
added); see also id. at 964 (“[W]e 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.”). In Andrews, the medical
experts agreed that the plaintiff suffered, at minimum, a cervical strain in the
underlying motor vehicle accident, but disagreed over whether other
preexisting conditions were aggravated by the accident. Id. We concluded
that the trial court properly awarded a new trial because the jury was not
entitled to “disregard the uncontroverted evidence of causation,” even if it
ultimately concluded that the resultant damages were minor. Id. at 965.
After review of the relevant testimony, we agree with the trial court that
Dr. Mazlin and Dr. Klein did not agree on the issue of factual causation, and it
was thus proper to submit the matter to the jury. Dr. Klein did concede that
the symptoms of Landau’s mental impairment increased around the time of
his injury, but nonetheless remained consistent throughout his testimony in
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his opinion that the injury did not actually cause his mental impairment.
Rather, he testified that there was evidence of mild cognitive decline in the
two years prior to the accident and that, as a progressive disease, Landau’s
dementia would have continued to develop over time notwithstanding any
injury. In particular, Landau’s CAT scan shortly after the incident showed
atrophy in the brain that could not have developed in the few days that had
passed since the leg injury. Based on this evidence, Dr. Klein concluded that
the mild cognitive impairment existed before the leg injury and that the
decline into dementia was part of the normal progression of that condition.
Put simply, Dr. Klein acknowledged that stress could temporarily render
a patient more symptomatic of existing cognitive issues but did not believe
there was evidence in the literature or this case to establish that stress
actually causes dementia in an otherwise healthy human. This was a point on
which he and Dr. Mazlin disagreed, as Dr. Klein testified that the medical
literature did not establish that stress causes dementia in humans while Dr.
Mazlin opined that he had treated many patients whose cognitive decline could
be traced to incidents of acute stress. The difference between the two expert
opinions was a proper matter to reserve for the jury’s determination, and the
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trial court did not abuse its discretion in denying the motion for a directed
verdict on that issue.13
E.
Finally, Landau argues that he is entitled to a new trial limited to
damages because the jury’s verdict was against the weight of the evidence.14
____________________________________________
13 Landau also argues that a plaintiff may be entitled to damages when the
defendant’s negligence aggravates a preexisting injury rather than causes a
novel one. Landau’s Brief at 42-43 (citing Offensend v. Atlantic Refining
Co., 185 A. 745 (Pa. 1936)). As Jadco points out, however, Dr. Klein testified
only that the injury may have increased the symptoms of his cognitive
impairment around the time of the incident, which the jury was entitled to
conclude was the type of temporary or minor harm that was not compensable.
Jadco’s Brief at 29-30 (citing Smith v. Putter, 832 A.2d 1094 (Pa. Super.
2003)).
14
The decision to grant or deny a motion for a new trial based upon
a claim that the verdict is against the weight of the evidence is
within the sound discretion of the trial court. Thus, the function
of an appellate court on appeal is to review the trial court’s
exercise of discretion based upon a review of the record, rather
than to consider de novo the underlying question of the weight of
the evidence. An appellate court may not overturn the trial court’s
decision unless the trial court palpably abused its discretion in
ruling on the weight claim. Further, in reviewing a challenge to
the weight of the evidence, a verdict will be overturned only if it
is so contrary to the evidence as to shock one’s sense of justice.
....
A trial court’s determination that a verdict was not against the
interest of justice is [o]ne of the least assailable reasons for
denying a new trial. A verdict is against the weight of the evidence
where certain facts are so clearly of greater weight that to ignore
them or to give them equal weight with all the facts is to deny
justice.
(Footnote Continued Next Page)
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His argument on this point, however, is predicated on his contention that the
medical experts agreed that the accident caused his dementia. As a result,
he contends that the $100,000 damages award was against the weight of the
evidence. Because we have rejected his argument that factual cause was
uncontested, this claim necessarily fails.15
Judgment affirmed.
Date: 10/3/2023
____________________________________________
Chavers v. 1605 Valley Ctr. Pky, LP, 294 A.3d 487, 496 (Pa. Super. 2023)
(citation omitted).
15 Landau references the jury’s confusion on the issue of factual cause during
deliberations in support of his position that the ultimate verdict was against
the weight of the evidence. While the record reveals some confusion on the
causation issue, it is apparent that it was based on an unartfully-drafted
verdict slip which did not divide the question of causation into the two
categories—leg injury and cognitive decline—that the parties repeatedly
referred to throughout the trial. Nevertheless, after a discussion with the trial
court, the jury affirmed that it understood its obligation to decide the factual
causation issue as to the mental damage only, and it entered a verdict
accordingly. See N.T., 8/11/22, at 97-101. Because the jury was able to
deliberate and understand its role after further instruction by the trial court,
the initial confusion does not lead us to conclude that the verdict was against
the weight of the evidence.
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