Robinson, M. v. Mercy Fitzgerald Hospital ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MICHELLE ROBINSON : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MERCY FITZGERALD HOSPITAL AND :
TRINITY HEALTH :
: No. 3498 EDA 2019
Appellants :
:
:
:
:
v. :
:
:
BIANCA GREEN :
:
Appeal from the Order Entered October 21, 2019
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): No. 170102249
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY PANELLA, P.J.: FILED JULY 07, 2021
This appeal stems from a premises liability cause of action, after the
appellee, Michelle Robinson, a wheelchair bound paraplegic, crashed onto the
pavement at a parking lot while exiting her minivan that was fitted with a
ramp. That parking lot was owned and managed by the appellants, Mercy
Fitzgerald Hospital and Trinity Health (collectively, “the Hospital”).1 As a result
____________________________________________
1 Mercy Fitzgerald Hospital is part of the Trinity Health system. See N.T.,
5/21/2019, at 60.
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of the accident, Robinson broke her left tibia, suffered back pain and spasms,
facial abrasions, in addition to aggravating a degenerative disc disease and
lumbar stenosis. Robinson claimed the designated handicapped parking space
area at issue was situated on a significant slope to allow for water drainage
and therefore, created a dangerous condition for physically disabled
individuals, including those wheelchair bound, to enter and exit their vehicles.
The matter went to trial and the jury found in Robinson’s favor in the amount
of $473,888.76 for past and future economic losses and non-economic losses.
On appeal, the Hospital raises several evidentiary challenges and seeks
remittitur of damages. Based on the following, we affirm.
Robinson and her husband filed a complaint in January of 2017, and
then amended complaints in February and March of that year, that were
predicated on claims of negligence and premises liability. The Robinsons
asserted the Hospital was negligent in its operation and maintenance of the
parking areas on the hospital’s property, which therein caused dangerous and
unsafe conditions to exist. They specifically alleged that the parking spot at
issue “was situated on a substantial and severe slope and angle that was [a]
dangerous hazard and unsafe for physically disabled people including those
confined to wheelchairs to get into and/or out of vehicles in the designated
space without tipping over, falling and/or otherwise being injured.” Second
Amended Civil Action Complaint Premises Liability/General Negligence,
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3/16/2017, at ¶ 15.2 Bianca Green was joined as an additional defendant in
the matter.3 See Order, 3/12/2018. Pleadings and discovery were
subsequently exchanged.
In May 2019, the parties filed numerous motions in limine. The
Robinsons sought to preclude any reference or argument concerning the
alleged negligence of Green. The Hospital sought to preclude the Robinsons
from asserting any claims for economic damages related to past medical
expenses and future medical expenses, violations of ADA and comparable
Pennsylvania standards at the time of trial, and any reference to a heightened
duty of care owed by hospitals.
On May 21, 2019, the court entered a series of orders addressing the
parties’ motions in limine. The court denied the Robinsons’ motion regarding
Green’s negligence. The court granted the Hospital’s motion in limine
regarding a heightened duty of care and stated that the parties may reference
the duties a possessor of land owed to a business invitee. The court denied
the Hospital’s motion as to past medical expenses and future medical
expenses, stating the Robinsons’ complaint was a premises liability action and
the Hospital’s joinder and cross-claim was a motor vehicle responsibility
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2 Robinson’s husband also brought forth a loss of consortium claim that was
subsequently withdrawn at trial prior to jury deliberations.
3 Green is not a party to this appeal.
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action. Lastly, the court denied the Hospital’s motion regarding the ADA and
similar Pennsylvania standards.
The case proceeded to a jury trial on May 20, 2019. At trial, the Hospital
did not dispute that Robinson suffered injuries due to the accident in the
parking lot. Nor did the Hospital present any expert evidence that the parking
spot where Robinson was injured was safe for wheelchair use. Instead, the
trial centered on two major factual disputes: (1) whether Robinson’s health
aid, Bianca Green, was negligent for parking where she did, and (2) whether
the future medical expenses claimed by Robinson are the result not of the
instant accident, but of injuries suffered by Robinson prior to this incident.
On May 28, 2019, the jury returned a verdict in favor of Robinson in the
amount of $473,888.76. The jury specifically allotted damages as follows: (1)
$23,888.76 for past medical expenses; (2) $100,000 for future medical
expenses; and (3) $350,000 for past, present, and future pain and suffering,
embarrassment and humiliation, and loss of enjoyment of life. The jury also
found the Hospital was 90% liable, Green was 7% liable, and Robinson was
3% comparatively negligent.4
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4 The Hospital was deemed liable for the total amount of damages. Under the
Fair Share Act, 42 Pa.C.S.A. § 7102, joint and several liability was abolished
in most tort cases. However, the statute provides for several exceptions to
this general rule, including where the defendant has been held liable for not
less than 60% of the total liability apportioned to all parties. See 42 Pa.C.S.A.
§ 7102(a.1)(3)(iii). Because the Hospital was found to be 90% liable, it was
joint and severally liable for the whole amount.
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Robinson filed a post-trial motion to mold the verdict, alleging that
because the Hospital’s liability exceeded 60%, they were responsible for the
entire verdict amount pursuant to 42 Pa.C.S.A. § 7102. Robinson also filed a
post-trial motion for delay damages pursuant to Pa.R.C.P. 238. The Hospital
also filed a post-trial motion, seeking a new trial on liability and damages or,
in the alternative, granting a remittitur and reduction of the verdict.
On October 16, 2019, argument was held on the parties’ motions. Five
days later, the court entered an order denying the Hospital’s motion for post-
trial relief. That same day, the court entered a separate order granting
Robinson’s motions. The court then entered judgment in favor of Robinson
and against the Hospital in the amount of $495,136.06. This timely appeal
followed.5
The Hospital’s four issues on appeal all challenge the trial court’s denial
of post-trial relief. Our review of a trial court’s denial of a motion for post-trial
relief is limited to an abuse of discretion or error of law:
An abuse of discretion exists when the trial court has rendered a
judgment that is manifestly unreasonable, arbitrary, or capricious,
has failed to apply the law, or was motivated by partiality,
prejudice, bias, or ill will. If the alleged mistake concerned an error
of law, we will scrutinize for legal error. On questions of law, our
standard of review is de novo and our scope of review is plenary.
____________________________________________
5 On November 21, 2019, the trial court ordered the Hospital to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
The Hospital complied on December 12, 2019. The trial court issued an
opinion pursuant to Pa.R.A.P. 1925(a) on January 6, 2020.
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Zaleppa v. Seiwell, 9 A.3d 632, 635 (Pa. Super. 2010) (citations and
quotation marks omitted). The first three of these issues challenge the court’s
denial of motions in limine seeking the exclusion of evidence at trial.
[I]f the basis of the request for a new trial is the trial court’s
rulings on evidence, then such rulings must be shown to have
been not only erroneous but also harmful to the complaining
parties. Evidentiary rulings which did not affect the verdict will not
provide a basis for disturbing the jury’s judgment.
Ratti v. Wheeling Pittsburgh Steel Corp., 758 A.2d 695, 707 (Pa. Super.
2000) (citation omitted). We review challenges to the admissibility of evidence
for an abuse of discretion:
Questions concerning the admissibility of evidence lie within the
sound discretion of the trial court, and we will not reverse the
court's decision absent a clear abuse of discretion. An abuse of
discretion may not be found merely because an appellate court
might have reached a different conclusion, but requires a manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or such
lack of support so as to be clearly erroneous.
Keystone Dedicated Logistics, Inc. v. JGB Enterprises, Inc., 77 A.3d 1,
11 (Pa. Super. 2013) (citations and internal quotation marks omitted).
In its first issue, the Hospital complains that the trial court erred and
abused its discretion when it denied the Hospital’s motion for a new trial.
Specifically, the Hospital contends the court erred in denying its motion in
limine “to preclude the [ADA] and Pennsylvania handicap parking spot
requirements as they are not applicable to the pre-ADA constructed parking
lot and are not standards, evidence, or proof of negligence in civil tort cases.”
Appellant’s Brief, at unnumbered 3. The Hospital states that courts have
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consistently held that a violation of an ADA regulation “may not be used as
evidence of negligence per se in a personal injury action.” Id.Moreover, relying on several federal district court and other state
decisions, the Hospital asserts:
A plaintiff may not ‘borrow’ ADA regulations for use as evidence
of the standard of care to prove negligence per se in a personal
injury action, since to do so would allow for recovery of damages
for personal injuries for violations of the ADA, which are
specifically not permitted under the ADA itself.
Id. For example, the Hospital points to Lugo v. St. Nicholas Assoc., 18
A.D.3d 341, 795 N.Y.S.2d 227, 228 (N.Y.A.D. 2005) and Campbell v.
Speedway LLC, 225 F. Supp. 3d 663, 670 (E.D. Mich. 2016), for the notion
that the ADA’s purpose is to address issues of discrimination and not safety.
See Appellant’s Brief, at unnumbered 4; see also 42 U.S.C. § 12182(a) (ADA
provides that “[n]o individual shall be discriminated against on the basis of
disability in the full and equal enjoyment of the goods, services, facilities,
privileges, advantages, or accommodations of any place of public
accommodation by any person who owns, leases (or leases to), or operates a
place of public accommodation”). The Hospital maintains that because the trial
court did not follow federal court precedent on the issue of the ADA, a federal
law, it violated the Supremacy Clause of the United States Constitution. See
Appellant’s Brief, at unnumbered 4.
The Hospital further complains that the court’s error “was compounded
by permitting [Robinson]’s expert to testify and [Robinson]’s counsel to
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question, argue and use the ADA slope measurements as evidence and proof
of negligence, but precluded [defense counsel] from introducing the ADA
provision regarding ‘grandfathering’ for pre-existing construction.” Id., at
unnumbered 3. The Hospital states that no other explanation for the cause of
Robinson’s fall was presented through expert testimony other than the slope
of the parking space was four times the recommendation in the ADA
guidelines. See id., at 5-6. The Hospital alleges that the plaintiff’s expert
“admitted he never even measured the actual parking spot [Robinson]’s van
was parked in when she fell.” Id., at 6.
Additionally, the Hospital contends since the ADA was enacted in 1990
and therefore applies to all construction performed after that date, “any
analysis of the dimensions of the subject parking space and the ADA
requirements [was] irrelevant” because the parking lot at issue was
constructed well before 1990. Id. The Hospital suggests Robinson’s liability
expert’s analysis was irrelevant because the construction of the subject
parking space predated the implementation of the ADA. Id., at 7.
The Hospital also implies the court erred in refusing to consider its pre-
existing construction argument because it was not presented with a case. The
Hospital states that the issue is governed by the ADA itself and not case law.
See id. The Hospital adds that even if Robinson were able to proceed under a
theory of ADA violations, she would find no relief because compensatory
damages are not available “absent a showing of intentional discrimination[,]”
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and here, there was no evidence that the Hospital intentionally discriminated
against Robinson. Id., at 6.
Lastly, the Hospital concludes that the trial court’s “error was further
compounded” by its reliance on Zito v. Merit Outlet Stores, 647 A.2d 573(Pa. Super. 1994). It states the “flaw” with “the trial court’s reliance on Zito’s
imposition of liability for a landowner’s duty to anticipate when a business
invitee’s attention may be diverted or view obscured or obstructed, is that
such a theory of liability was never introduced by [Robinson] during the trial
or in post trial arguments.” Appellant’s Brief, at 8
Here, the trial court disposed of the Hospital’s ADA arguments as
follows:
It is not clear what the basis of these arguments are because
there are no discrimination issues in this litigation; no
constitutional challenge in this litigation; and, no Federal Court
precedents involved. This premises liability lawsuit did not involve
construction of the parking lot. Rather, as established by all
witnesses for all the parties, the issue is the painting of lines in
the lot and posting the handicap sign to designate two handicap
spaces over a storm drain.
There are hundreds of parking spaces located on three
levels of parking. The Hospital chose to place a sign at the location
of the drain, and, to paint and re-paint the parking lot lines -- all
within recent years whenever there is severe weather “all the
time, year to year.”
Memorandum in Support of Orders Denying Post-Trial Relief and Granting
Delay Damages, 10/21/2019, at 15-16.
We agree with the court’s rationale as the Hospital’s arguments are
flawed for several reasons. First, we note decisions of the federal district
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courts and our sister states are not binding on courts of this Commonwealth,
even when a federal question is involved. See McDonald v. Whitewater
Challengers, Inc., 116 A.3d 99 (Pa. Super. 2015); Koken v. Reliance Ins.
Co., 893 A.2d 70, 83 (Pa. 2006). Second, even if persuasive, the cases relied
upon by the Hospital are distinguishable from the present matter as they
concerned negligence per se and not negligence.
The Pennsylvania Supreme Court concisely summarized the distinction
between negligence per se and negligence. Traditional negligence requires a
plaintiff to establish four separate elements: “(1) the defendant owed the
plaintiff a duty or obligation recognized by law; (2) the defendant breached
that duty; (3) a causal connection existed between the defendant's conduct
and the resulting injury; and (4) actual damages occurred.” Grove v. Port
Auth., 218 A.3d 877, 888-889 (Pa. 2019) (citations and quotation marks
omitted). In contrast, in a negligence per se claim, the first two elements of a
traditional negligence claim are replaced by a requirement that the plaintiff
establish: (1) a statute provides the applicable duty; and (2) the defendant
breached that duty. See id. Even under a negligence per se claim, the plaintiff
must still establish causation and the occurrence of actual damages. See id.The distinction in cases such as this one is subtle but is focused on the
effect given to the statute being presented. Under a negligence per se claim,
the issue is the legal question of whether the statute establishes a duty the
defendant owed to the plaintiff. See McCloud v. McLaughlin, 837 A.2d 541,
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545 (Pa. Super. 2003). If a plaintiff can persuade a judge that the statute
creates a duty, then any failure of the defendant to obey the statute is a
breach of duty as a matter of law. See Grove v. Port Auth., 218 A.3d 877,
889 (Pa. 2019). In contrast, if the plaintiff cannot establish that a statute
creates an applicable duty, she may still argue that it establishes the standard
of care as a matter of fact. See id. Under a traditional common law negligence
claim, a plaintiff must present evidence to establish the standard of care the
defendant owed to the plaintiff under the circumstances. See id. The
existence and scope of the duty at common law is generally considered a
question of fact for the chosen fact-finder to resolve.
Here, Robinson’s cause of action was based on premises liability in
conjunction with general negligence. See generally Second Amended Civil
Action Complaint – Premises Liability/General Negligence, 3/16/2017. She did
not assert any claim for negligence per se. See id.Contrary to the Hospital’s argument, this case was not about the
construction of the parking lot but rather, the Hospital’s placement of
handicapped parking spaces at certain spots on its property and whether that
decision fell below the standard of care resulting in Robinson’s injuries. The
ADA evidence was not used to establish as a matter of law that the Hospital
had breached a duty towards Robinson. Instead, Robinson argued that it was
relevant to assessing the Hospital’s standard of care in its management of the
property.
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In premises liability negligence cases, “[t]he standard of care a
possessor of land owes to one who enters upon the land depends upon
whether the person entering is a trespasser, licensee, or invitee.” Carrender
v. Fitterer, 469 A.2d 120, 123 (Pa. 1983) (citation omitted). As the trial court
points out, “The parties do not disagree that [Robinson] was a business invitee
entering the Hospital for a doctor’s appointment. She was there for a purpose
directly connected with the Hospital’s business dealings.” Memorandum in
Support of Orders Denying Post-Trial Relief and Granting Delay Damages,
10/21/2019, at 8.
Because Robinson was considered an invitee, the Hospital owed her “the
highest duty owed to any entrant upon land. The landowner is under an
affirmative duty to protect a business visitor not only against known dangers
but also against those which might be discovered with reasonable care.” Emge
v. Hogosky, 712 A.2d 315, 317 (Pa. Super. 1998) (citation omitted). See
also Campisi v. Acme Mkts., 915 A.2d 117, 119 (Pa. Super. 2006).
In assessing the scope of the duty owed to business invitees by property
owners, Restatement (Second) of Torts § 343, provides:
A possessor of land is subject to liability for physical harm caused
to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover
the condition, and should realize that it involves an unreasonable
risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger,
or will fail to protect themselves against it, and
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(c) fails to exercise reasonable care to protect them against the
danger.
Restatement (2d) of Torts § 343. See also Rodriguez v. Kravco Simon Co.,
111 A.3d 1191, 1193 (Pa. Super. 2015).
This Court has explained the limitations of Section 343 as follows:
[T]he mere existence of a harmful condition in a public place of
business, or the mere happening of an accident due to such a
condition is neither, in and of itself, evidence of a breach of the
proprietor’s duty of care to his invitees, nor raises a presumption
of negligence. In order to recover damages in a slip and fall case
such as this, the invitee must present evidence which proves that
the store owner deviated in some way from his duty of reasonable
care under the existing circumstances. This evidence must show
that the proprietor knew, or in the exercise of reasonable care
should have known, of the existence of the harmful condition.
Section 343 also requires the invitee to prove either that the store
owner helped to create the harmful condition, or that it had actual
or constructive notice of the condition.
Zito v. Merit Outlet Stores, 647 A.2d 573, 575 (Pa. Super. 1994) (internal
citations and quotation marks omitted).
Under these circumstances, the ADA evidence was relevant to several
of Robinson’s burdens at trial. First, despite the fact that the ADA does
establish negligence per se, the standards set forth in the ADA are clearly
relevant to whether the slope in the parking space constituted a dangerous
condition of the property. The Hospital was free to counter the ADA evidence
by presenting expert evidence that the slope of the parking spot was not
dangerous despite being four times the slope set forth in the ADA.
Second, the ADA evidence was relevant to the question of whether the
Hospital should have known that the slope of the parking spot was dangerous.
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The ADA evidence tended to prove, but admittedly did not establish, that any
slope greater than 2% was dangerous. Once again, the Hospital was free to
counter this suggestion by presenting evidence that it had no reason to be
aware of the dangerousness of the greater than 8% slope in the parking spot.
With this in mind, we note that the Hospital’s own expert, Richard E.
Daniels, P.E., relied upon the ADA to set the standard by which handicapped
parking spaces were graded. See Plaintiff’s Opposition to the Motion in Limine
of Defendant, Mercy Fitzgerald Hospital and Trinity Health, to Preclude
Plaintiffs from Referencing the ADA and Comparable Pennsylvania Standards
at Trial, 5/17/2019, at Exhibit C (Daniel’s Report), p. 6.
Daniels indicated that under the ADA, “access aisles are required to be
nearly level in all directions to provide a surface for wheelchair transfer to and
from vehicles but the 2% slope is permitted to allow sufficient slope for
drainage.” Id. He opined that he measured the slopes at issue and determined
they “exceeded these limits.” Id.However, Daniels did not opine that the slope of the parking spot was
safe for wheelchair use, but instead placed the blame on Green, the driver,
and testified that she made a “bad choice” when she decided to park the van
in the spot at issue. N.T., 5/22/2019, at 156. Daniels opined that Green should
have parked in a different location like the pick-up and drop off area because
the parking spot “was not intended for ramp deployment onto an adjacent
conventional parking stall.” Id., at 150. He also stated that the spot at issue
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“would have worked fine if the van had been backed in instead of head in.”
Id., at 155. Therefore, Daniels conceded that the parking spot was dangerous.
Moreover, he opined that it was so dangerous that a simple visual inspection
should reveal the risk.
Accordingly, we conclude that the court did not err in allowing Robinson
to present the ADA evidence. Furthermore, even if it did, the Hospital suffered
no prejudice, as the Hospital’s own expert conceded that the parking spot was
obviously dangerous. The Hospital’s defense at trial was not that the parking
spot was in fact safe, but rather that the parking spot was so obviously
dangerous that Green should have recognized the risk. The admission of the
ADA evidence would not have affected the jury’s consideration on this factual
issue. The Hospital’s first argument fails.
Next, the Hospital contends the court erred in denying its motion in
limine to preclude future medical expenses based on Robinson’s medical
expert, Dr. Fras. See Appellant’s Brief, at 8. It states:
In his report Dr. Fras acknowledges that [Robinson]’s alleged
ongoing pain pre-existed the accident but was aggravated by the
accident. Therefore, the $100,0000 in future medical expenses
for pain management is not causally related to the accident
because pain management is ongoing due to [Robinson]’s 2005
paralyzing accident and her 2011 SEPTA accident in which she
broke both her ankles and had a rod inserted in her broken leg,
and injured her back. The $100,000 future medical damages are
just an attempt by [Robinson] to inflate her boardable damages
to inflame the jury and prejudice Defendants. Cross examination
of Dr. Fras on the $100,000 figure established that he could not
relate the need for spinal cord therapy to the March 22, 2016
accident. Dr. Fras did not specify or testify regarding any other
future treatment other than the aforesaid spinal cord therapy.
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Id., at 8.
As a prefatory matter, a review of the Hospital’s argument on appeal
reveals that it departs from the issue raised in its Rule 1925(b) concise
statement in terms of procedural posture. In its concise statement, the
Hospital argued that at trial, the court erred and abused its discretion “in
permitting $100,000 in future medical expenses when Dr. Fras admitted on
cross examination that he could not relate the need for spinal cord therapy to
the March 22, 2016 accident.” Appellant’s 1925(b) Statement of Matters
Complained of on Appeal, 12/12/2019, at § 6. On appeal, as stated above,
the Hospital contends the court erred in denying its motion in limine to
preclude future medical expenses. Furthermore, we observe that the
argument section of the Hospital’s brief on this issue consists of two
paragraphs and lacks any citation to relevant authority. While these
discrepancies do not result in preclusion of meaningful review, we remind the
Hospital of Pennsylvania Rules of Appellate Procedure 302, 1925(b)(4)(vii)
and 2119(b). However, we will confine our analysis to reviewing whether Dr.
Fras’s testimony was sufficient to support the award of $100,000 of future
medical expenses.
A plaintiff must present expert testimony to establish a right to
compensation for future medical damages:
[i]t 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
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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 estimated cost of such
services. Because the estimated cost of future medical services is
not within the layperson’s general knowledge, the requirement of
such testimony eliminates the prospect that the jury’s award will
be speculative.
Mendralla v. Weaver Corp., 703 A.2d 480, 485 (Pa. Super. 1997) (citations
and quotation marks omitted).
The trial court found that Dr. Fras’s testimony provided sufficient
support for the award of future medical expenses:
In this context for future medical expenses, Dr. Fras opined
about the nature of the future treatment and also the reasonable
estimated costs for such services. [Robinson] provided jurors with
expert evidence to enable them to estimate damages without
engaging in speculation.
[During Dr. Fras’ videotaped testimony, the] orthopedic
surgeon testified that the injuries in association with the incident
of March 22, 2016, included aggravation of lumbar degenerative
disc disease and spondylosis, left tibial shaft fracture, aggravation
of arthritis. He outlined future treatments for Plaintiff-Robinson to
include physical therapy, manipulative therapy, pain
management, including pharmacologic pain management,
injections, such as facet injections or epidurals, radiofrequency
ablation, a procedure where doctors “burn off some of the nerves
causing pain,” and, ultimately, a spinal cord stimulator. This
involves a series of electrodes that are inserted into the spinal
canal and “sit on the top of the spinal cord.” A battery pack is
surgically inserted and blocks the pain signals going to the brain.
Dr. Fras was asked whether the treatments Mrs. Robinson
received and the future treatments he described were reasonable
and necessary care and necessitated by the incident in the parking
lot of Defendant-Hospital. He said “yes.” Dr. Fras opined that an
estimate of fees for future treatment “will exceed $100,000.00.”
He explained the basis for his opinion that more advanced pain
management interventions, such as radiofrequency ablation or
spinal cord stimulator are more involved and carry significant
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costs. The transcript reveals that this expert witness provided the
estimated costs of anticipated medical services specifically related
to the March, 2016 accident.
Memorandum in Support of Orders Denying Post-Trial Relief and Granting
Delay Damages, 10/21/2019, at 11-12 (record citations and citations
omitted).
We agree with the trial court’s analysis. Dr. Fras has been a board-
certified orthopedic surgeon for 19 years and he specializes in surgery of the
spine. N.T., 5/20/2019 (Trial Deposition of Christian Fras, M.D.), at 6-8. He
stated he conducts an independent medical evaluation of the individual
regardless of the requesting party, which includes an intake sheet to be filled
out by the individual and a physical examination. Id., at 16-17. His testimony
regarding Robinson’s future medical treatments was limited to her condition
following the March 2016 accident and included physical therapy, manipulative
therapy, pain management, and a spinal cord simulator. Id., at 28-29. The
expert indicated the treatments were reasonable and necessary to address
the injuries suffered by Robinson because of the March 2016 accident. Id., at
32.
Notably, Dr. Fras was extensively cross-examined about his assessment
of Robinson, including his knowledge of Robinson’s prior pain history. Id., at
34-87. He testified that while Robinson mentioned she had prior low back pain
before the injury, she now endured lower extremity complaints. Id., at 37.
Dr. Fras stated that he based his assessment on the totality of the information
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he had before him, which did not include Robinson’s medical records prior to
the date of the accident. Id., at 74. Additionally, when asked if the future
treatments at issue are most likely related to the prior 2005 spinal cord injury
with a spinal fusion, Dr. Fras answered, “No … not at all.” Id., at 85.
As for the Hospital’s contention that Dr. Fras could not relate the need
for spinal cord therapy to the March 2016 accident, the Hospital does not point
to a place in the record where the expert made this statement. See Appellant’s
Brief, at unnumbered 8-9. Moreover, it misrepresents the testimony. A review
of the record reveals that counsel for the Hospital asked Dr. Fras if the spinal
cord simulator treatment was the result of a spinal cord injury in the March
2016 accident or the 2005 accident. See N.T., 5/20/2019 (Trial Deposition of
Christian Fras, M.D.), at 36. Dr. Fras answered in the negative to both
questions and further explained that “treatment with a spinal cord stimulator
is not treatment for a spinal cord injury.” Id. Accordingly, we conclude
Robinson presented sufficient evidence at trial to support and the trial court
did not abuse its discretion in admitting this evidence. Therefore, the
Hospital’s second argument fails.
Next, the Hospital claims the court erred in giving a spoliation and
negative inference charge to the jury regarding Mercy’s Security Manager’s,
Officer Harrison, failure to preserve video of the parking lot. The Hospital
contrasts this decision with the court’s denial of the Hospital’s request for the
same charge on Robinson’s failure to produce eight photographs taken by
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Terence Robinson on the day of the incident and relied upon by Robinson’s
liability expert. See Appellant’s Brief, at 9. The Hospital states Robinson failed
to put forth evidence suggesting that the Hospital’s inability to produce the
video at issue was done in bad faith or that the video was destroyed or
intentionally withheld. See id., at 10. Furthermore, it alleges that Robinson
suffered no prejudice because she had an opportunity to photograph, and did
so, as well as videotape the accident scene in detail on the day of the accident.
See id.
We are guided by the following:
“Spoliation of evidence” is the failure to preserve or the
significant alteration of evidence for pending or future litigation.
When a party to a suit has been charged with spoliating evidence
in that suit (sometimes called “first-party spoliation”), we have
allowed trial courts to exercise their discretion to impose a range
of sanctions against the spoliator. This Court has stated:
When reviewing a court’s decision to grant or deny a
spoliation sanction, we must determine whether the court
abused its discretion. Such sanctions arise out of the
common sense observation that a party who has notice that
evidence is relevant to litigation and who proceeds to
destroy evidence is more likely to have been threatened by
that evidence than is a party in the same position who does
not destroy the evidence. Our courts have recognized
accordingly that one potential remedy for the loss or
destruction of evidence by the party controlling it is to allow
the jury to apply its common sense and draw an “adverse
inference” against that party.
…
To determine the appropriate sanction for spoliation, the trial
court must weigh three factors:
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(1) the degree of fault of the party who altered or destroyed
the evidence; (2) the degree of prejudice suffered by the
opposing party; and (3) whether there is a lesser sanction
that will avoid substantial unfairness to the opposing party
and, where the offending party is seriously at fault, will
serve to deter such conduct by others in the future.
In this context, evaluation of the first prong, the fault of the party
who altered or destroyed the evidence, requires consideration of
two components, the extent of the offending party’s duty or
responsibility to preserve the relevant evidence, and the presence
or absence of bad faith. The duty prong, in turn, is established
where: (1) the plaintiff knows that litigation against the
defendants is pending or likely; and (2) it is foreseeable that
discarding the evidence would be prejudicial to the defendants.
Parr v. Ford Motor Co., 109 A.3d 682, 701-702 (Pa. Super. 2014) (citations
and some quotation marks omitted).
Here, the trial court pointed to the significant distinctions between the
photographs taken by Terence Robinson and Officer Harrison as the basis for
the disparate treatment of the two requests for spoliation instructions:
It is not clear what the basis of this argument is because the
trial record reveals that only one photo was taken by Mr. Robinson
on the day after the incident. The jury saw that photo. A spoliation
instruction was not appropriate in these circumstances. Mr.
Robinson’s testimony on direct and cross-examination was that he
returned to the site on the day after the accident.
When a party disposes of or fails to produce evidence which
is relevant to the issue in the lawsuit, the jury may find that the
evidence would have been unfavorable to that party unless there
is a satisfactory explanation for the failure to produce the
evidence.
Mr. Elliot Harrison, [a] 13[-]year employee, is the Security
Manager at Mercy Fitzgerald Hospital. He testified about the
events of March 22, 2016. While he drove his security vehicle
patrolling the Hospital campus, he received a radio call to go to
the West Lobby Area. He observed Mrs. Robinson face down on
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the pavement. She stated she hit her head and was in pain. Mr.
Harrison did not take any photos because there is a video
surveillance camera in the parking lot. Mr. Harrison testified that
the video camera rotates 360 degrees and records on DVR. This
gentleman offered the Hospital’s explanation why the video was
not produced: The video did not show the area of the incident;
“did not pick up that area;” did not show the van drive into the
parking lot; did not show the incident or the crowd gathered; did
not record the ambulance arrive; never saw the parked van or Ms.
Green in the video when she drove into the parking lot.
The video would have been the only photographic evidence
taken on the day of Ms. Robinson’s accident. The jury saw dozens
of black and white and color photographs -- all taken days and
years post-accident. It was up to the finders of fact to assess
whether the explanation provided by the Hospital was or was not
satisfactory as to why the video was not produced. When
considering a. The degree of fault of the Hospital, b. The degree
of prejudice to the opposing party, and, c. Whether there was a
lesser sanction available, this Court concluded that [Robinson]
was prejudiced. Much of the trial testimony focused on which
parking space was used on the incident date; where was the van’s
ramp situated; what was Mrs. Robinson’s position on the ground;
how was she transported by the responders; and, other questions
which could have been established by the Security Manager’s
video evidence.
Memorandum in Support of Orders Denying Post-Trial Relief and Granting
Delay Damages, 10/21/2019, at 13-14 (record citations and citations
omitted).
The record supports the trial court’s determination. We begin with the
photograph mentioned during Terence Robinson’s testimony. The Hospital
again misconstrues the evidence presented at trial. Terence testified that he
took one photograph the day after the accident. See N.T., 5/20/2019, at 140-
141. Robinson’s counsel showed him a picture which was part of collection of
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photographs marked P-1, and asked Terence if it was his photograph and he
replied that he did not believe it was the same picture. See id., at 141.
On cross-examination, defense counsel asked if it was possible that
Terence took more than one photograph, to which he said that it was. See
N.T., 5/20/2019, at 154. Counsel then asked if he still had the phone that he
used to take the “photographs[.]” Id. Terence responded that he did not. See
id.Subsequently, Mark S. Suchecki, P.E., the plaintiff’s expert, testified
about the eight photographs and stated that he was “under the impression”
Terence took them as they been sent by plaintiff’s prior counsel. N.T.,
5/21/2019, at 24-25. He stated that he had copies of the photographs in his
file but he did not bring the file with him on the day of trial. See id., at 25.
Additionally, he stated he selected one photograph to include in his report
because he “thought it was most demonstrative of the conditions” at the
parking lot. Id., at 26.
On the last day of trial, during a discussion between the parties and the
trial court, the spoliation issue was raised. Defense counsel contended:
But it’s also the photographs that were testified to by
plaintiff’s expert, taken by Mr. Robinson on the day of the
accident, the eight photos. And they’ve never been produced. And
I asked the expert where they were, and he said he didn’t have
them.
I asked Mr. Robinson. He said he didn’t have any. So there’s
eight photographs taken on the day of the accident that were
solely in plaintiff’s control that have never been shown to the
jury[.]
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N.T., 5/23/2019 (a.m.), at 28. The following exchange then occurred:
[Counsel for Robinson]: Your Honor, the testimony during
the trial was whether or not the expert received the eight
photographs. P-1 is eight photographs. Now, I wasn’t the attorney
involved during discovery. Your Honor, but I find it hard to believe
these eight photographs were never produced. Not only that …
they’ve been marked a P-1 for the last week. I never heard
counsel say I don’t have that, I didn’t get that. I don’t know what
this is. Maybe there’s some confusion as to who took the
photographs.
But, again, P-1 is eight photographs. The expert testified he
looked at eight photographs. I don’t think [defense counsel] is
disputing she has or hasn’t had the eight photographs. There’s no
evidence that it was not in the possession of the defendant. The
question is, was the expert right as to who took them or when
they were taken, but there’s no spoliation. Nothing has been
destroyed or altered.
[Counsel for the Hospital]: Your Honor, I asked the expert
to show me the eight photographs that he was supplied by
plaintiff’s counsel, whether it was [plaintiff’s counsel] or his
predecessor, and he said he did not have them.
Mr. Robinson testified that he took one photograph on the
next day. So there’s missing evidence that should have been
produced with the expert, should have been produced in
discovery. There’s never been eight photographs taken by Mr.
Robinson on the day of the accident produced in discovery…. I had
the entire plaintiff’s expert’s testimony printed out and he said he
does not have them.
[Counsel for Robinson]: He doesn’t have them with him,
Your Honor. Not only that, those photographs, there was an
acknowledgement of an existence of those photographs. If this
was an issue for the defendant, they could have, during the course
of discovery, filed motions to compel those photographs. There
was no discussion that they were destroyed or not produce[d].
…
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If counsel [for the Hospital] is claiming there are different
eight photographs, she could have done due diligence during
discovery and filed a motion to compel the eight photographs, if
she thinks they are actually different, which I doubt they are.
…
THE COURT: So the question is, who took the photographs?
Is that what you’re saying?
…
But the first question is, who took them? But if you read the
jury charges that the two sides are arguing about, we have to
know who took them. That is, is the evidence within the control of
one party or the other?
But if we don’t know who took them, we can’t say whether
or not they are in the control.
[Counsel for the Hospital]: The plaintiff’s liability expert
testified and also wrote in his report that the photographs were
taken by Mr. Robinson….
THE COURT: Right. But Robinson said he didn’t take them.
Id., at 29-32.
The testimony and argument do not demonstrate that Robinson failed
to preserve or significantly altered the photographic evidence for pending
litigation. See Parr, 109 A.3d at 701-702. As the trial court properly noted,
while there was some confusion as who took the photograph, the evidence
establishes that Terence did take one photograph on the day after the accident
and that photograph was introduced at trial. Moreover, the Hospital did not
meet its burden in establishing that Robinson intentionally or purposely
destroyed evidence, or even that the failure on the expert’s part to bring the
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eight photographs to trial, was done with the purpose of prejudicing the
Hospital. See id. Accordingly, we conclude the trial court did not abuse its
discretion in failing to provide a jury instruction regarding the eight
photographs.
We now turn to the Hospital’s surveillance video. At trial, Harrison
testified that he responded to the accident and subsequently reviewed the
surveillance video as security protocol. See N.T., 5/21/2019, at 71-72, 81. He
stated that there was only one camera in the area at issue and it did not
capture the accident or even the area where Robinson’s van was parked. See
id., at 74-75, 79. When asked what the camera showed, Harrison explained
that it was a rotating camera that spun around in a 360-degree motion. See
id., at 71, 75. He indicated the camera did have capability to pause and zoom
in and out. See id., at 83-84. Harrison also testified he was not aware of
whether the Hospital had a policy on preserving videos of an incident and that
the decision to preserve the video was entrusted to him and another
employee. See id., at 81, 87.
We conclude that the court did not abuse its discretion in issuing an
adverse inference spoliation instruction6 due to the Hospital’s failure to
____________________________________________
6 See N.T., 5/23/2019 (p.m.), at 16 (“You heard evidence that there was a
video that was not produced. When a piece of evidence is within the control
of one party in a lawsuit and would have be relevant and helpful to that party
and that party does not satisfactorily explain why it was not produced during
the trial, you may find that the evidence would have been unfavorable to that
(Footnote Continued Next Page)
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preserve the parking lot surveillance video. As the trial court pointed out, this
video was the only photographic evidence taken on the day of Robinson’s
accident and would have been relevant to numerous issues at trial, including
the location of Robinson’s van in the parking lot. While the court did not
specifically find that the destruction of the video was done in bad faith, it
indicated it was up to the jury to determine whether the explanation provided
by the Hospital was satisfactory explanation for why the video was not
produced. Accordingly, we discern no abuse of discretion on the record before
us. Therefore, the Hospital’s third argument is unavailing.
Lastly, the Hospital asserts that the court erred in denying its motion for
a remittitur or a reduction of damages because the jury’s award was grossly
excessive, against the weight of the evidence, and unsupported by the
evidence. See Appellant’s Brief, at 12. The Hospital contends the evidence
only demonstrated that Robinson had the same issues and pain “before the
accident as she did after the accident.” See id., at 13. It further states the
“jurors were impermissibly influenced by passion, mistake, sympathy,
emotion, and/or prejudice due to her wheelchair bound condition which pre-
____________________________________________
party if it had been produced. If a party disposes of a piece of evidence before
the other party has had an opportunity to inspect it and if the party who
disposed of the evidence should have recognized the evidence was relevant
to an issue in this lawsuit, you may find that this evidence would have been
unfavorable to the party unless they satisfactorily explain why they disposed
of the evidence.”)
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existed the accident” at the hospital parking lot. Id. The Hospital also points
to the following: Robinson presented evidence of a fracture of an already
completely paralyzed leg that did not require surgery that subsequently
healed, Green testified Robinson’s pre- and post-accident level of activity was
the same, and Robinson did not assert wage loss or punitive damages claims.
See id., at 14. The Hospital concludes, “There was simply no evidence
presented to support such a shocking and exorbitant jury award from a
relatively minor trip and fall accident.” Id.
Our standard of review in considering the reversal of a trial
court’s order denying a remittitur is to determine whether the trial
court abused its discretion or committed an error of law in
reaching such decision. In that regard, this Court, in Mecca v.
Lukasik, 366 Pa. Super. 149, 530 A.2d 1334 (Pa. Super. 1987),
discussed the factors to be considered in determining whether or
not a verdict is excessive:
The grant or refusal of a new trial because of the
excessiveness of the verdict is within the discretion of the
trial court. This court will not find a verdict excessive unless
it is so grossly excessive as to shock our sense of justice.
We begin with the premise that large verdicts are not
necessarily excessive verdicts. Each case is unique and
dependent on its own special circumstances and a court
should apply only those factors which it finds to be relevant
in determining whether or not the verdict is excessive. A
court may consider the following factors, inter alia:
(1) the severity of the injury; (2) whether the
Plaintiff’s injury is manifested by objective physical
evidence or whether it is only revealed by the
subjective testimony of the Plaintiff (and, herein, the
court pointed out that where the injury is manifested
by broken bones, disfigurement, loss of
consciousness, or other objective evidence, the courts
have counted this in favor of sustaining a verdict); (3)
whether the injury will affect the Plaintiff
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permanently; (4) whether the Plaintiff can continue
with his or her employment; (5) the size of the
Plaintiff’s out-of-pocket expenses; and (6) the amount
Plaintiff demanded in the original complaint.
Paliometros v. Loyola, 932 A.2d 128, 134-135 (Pa. Super. 2007) (some
citations omitted).
The court found that the jury’s award of damages was aligned with the
weight of the evidence presented at trial:
In this trial, the economic losses of past medical expenses
were stipulated by the parties. The future medical expenses were
supported by medical expert testimony. The Defendant-Hospital’s
challenge to the non-economic damages award is baseless.
The jury was instructed by agreement of the parties. Past
and future pain and suffering includes “all physical pain, mental
anguish, discomfort, inconvenience and distress” that Plaintiff-
Robinson has endured and will continue to endure. The jury heard
from Mr. Robinson, Mrs. Robinson, Bianca Green and medical
testimony about the back spasms, facial abrasions, and overall
pain and soreness suffered by [Robinson] after the fall.
Michelle Robinson explained to the jury that ever since the
2016 accident her pain medications have been increased by her
physicians. She uses a pain patch on her arm now. She feels a
burning in her back that was not present before. Although she had
medications for her leg spasms before, the dosages have been
increased since 2016. She feels burning sensations in her left leg
now. She “lost” part of her heel when her skin broke down in the
cast in 2016. She cannot put on her shoe. Her leg and part of her
knee cap broke in the 2016 fall.
[Terence] Robinson described how his wife cried at night.
He massaged her back because she was in pain.
The jury was instructed that [Robinson] is entitled to be
compensated for past and future embarrassment and humiliation
she endured. She is entitled to be fairly compensated for the loss
of her ability to enjoy any pleasures of life as a result of the
incident. The jury heard testimony from the Security Guard and
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Bianca Green describing Mrs. Robinson lying face down on the
asphalt, crying in pain. The Hospital staff and strangers watching
as the wheelchair was unstrapped from her body. The jury heard
about [Robinson]’s bed on the first floor of her home and personal
hygiene performed there by Bianca Green.
Michelle Robinson described how the wheelchair went down
the ramp “fast like a roller coaster.” Her head under a car and her
body twisted, but she could not turn or move. She had bruises on
her head; face bleeding; leg bleeding, and her back “on fire.” She
had small rocks and pebbles on her face which Ms. Green brushed
away.
…
Many tangible and intangible items of damages were
properly considered by our trial jurors. While appraising all of the
factors encompassed in economic loss and non-economic loss, this
Court which sits as an experienced Civil Trial Court and which had
the benefit of seeing and hearing all of the evidence, has no
hesitancy in concluding that the jury’s verdict was fair, thoughtful
and reasonable. The verdict award does not shock this Court’s
conscience.
Memorandum in Support of Orders Denying Post-Trial Relief and Granting
Delay Damages, 10/21/2019, at 16-19 (record citations and citations
omitted).
The court thoroughly explains its analysis for denying remittitur and we
affirm on the basis of that analysis while adding several comments. First, it
merits emphasis that large verdicts are not necessarily excessive verdicts, and
each case is unique and dependent on its own special circumstances. See
Crespo v. Hughes, 167 A.3d 168, 189 (Pa. Super. 2017). Second, contrary
to the Hospital’s attempt to minimize the injuries Robinson suffered from the
accident and assert that she suffered the same issues and pain before the
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accident as she did after the accident, the jury heard Robinson herself about
how she ended up with her head under a car, her face in the asphalt, and her
body twisted in the wheelchair on the ground. The jury also heard Dr. Fras’
expert medical testimony about her new injuries as result of the accident,
which included aggravation of lumbar degenerative disc disease and
spondylosis, left tibial shaft fracture, aggravation of arthritis. See
Memorandum in Support of Orders Denying Post-Trial Relief and Granting
Delay Damages, 10/21/2019, at 12. Accordingly, in light of this testimony, we
cannot conclude that the trial court erred in finding the jury’s award is
supported by the record and not excessive, arbitrary or unreasonable in
relation to the evidence adduced at trial. Therefore, we conclude the Hospital’s
final argument fails as the trial court did not erred in denying the request for
a remittitur.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/7/2021
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