Darwish, M. v. Einspahr, C.

J-A10006-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MARY DARWISH : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
CHRISTOPHER EINSPAHR : No. 2588 EDA 2019
Appeal from the Judgment Entered July 26, 2019
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 00040 February Term, 2018
BEFORE: BOWES, J., SHOGAN, J., and PELLEGRINI, J.*
MEMORANDUM BY BOWES, J.: Filed: September 24, 2020
Mary Darwish appeals from the July 26, 2019 judgment1 entered on the
trial court’s order vacating and molding the jury verdict in favor of Ms. Darwish
from an award of $50,000 to $0. After careful review, we vacate the
judgment, vacate the trial court’s order molding the jury award for future
medicals, and remand for entry of judgment on the jury verdict.
This lawsuit arose out of an automobile collision on December 12, 2016,
at the intersection of the 6600 block of Eastwood Street and Unruh Avenue in
the City of Philadelphia. On that day, Mr. Einspahr failed to heed the stop sign
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 Ms. Darwish purported to appeal from the July 22, 2019 order vacating and
molding the jury’s verdict. However, the appeal properly lies from the
judgment entered July 26, 2019. We have amended the caption accordingly.
J-A10006-20
on Unruh Street. Instead, he entered the intersection where the front end of
his vehicle impacted the rear passenger-side quarter panel of Ms. Darwish’s
vehicle as she was proceeding on Eastwood Street. The impact caused her
car to spin around, and she hit her head on the driver’s side window.
Ms. Darwish, a thirty-year-old mother, was transported to a local
hospital, treated, and released. For eight months, she saw her chiropractor
two to three times per week for complaints of pain in her neck and back.
Therapy provided only temporary relief. Subsequent testing was ordered,
including MRIs of her neck and back and EMGs. The tests revealed that she
had two herniated discs at C-4 and C-5, radiculopathy, and an aggravation to
a disc injury in her lower back. At the time of trial, she was still experiencing
pain in her neck and back, and reported difficulty in lifting heavy items and
numbness in her neck.
Ms. Darwish filed a complaint in negligence against Mr. Einspahr
asserting claims for personal injury and property damage.2 In addition to
____________________________________________
2Ms. Darwish had chosen the limited tort option in her motor vehicle insurance
coverage. That option limits the rights of the insured to seek financial
compensation. With limited tort, an insured “may seek recovery for all
medical and other out-of-pocket expenses, but not for pain and suffering or
other nonmonetary damages unless the injuries suffered fall within the
definition of ‘serious injury’ as set forth in the policy.” 75 Pa.C.S. § 1705(d).
The Pennsylvania Motor Vehicle Financial Responsibility Law (“MVFRL”) defines
serious injury as “a personal injury resulting in death, serious impairment of
body function or permanent serious disfigurement.” 75 Pa.C.S. § 1702.
Consequently, Ms. Darwish could only recover non-economic damages for pain
-2-
J-A10006-20
contesting liability, Mr. Einspahr challenged Ms. Darwish’s damages. He
maintained that she sustained no severe impairment that would entitle her to
non-economic damages for pain and suffering, and that her injuries were the
result of an earlier accident.
Dr. Maxwell Stepanuk, Jr., a board-certified orthopedic surgeon,
causally linked Ms. Darwish’s injuries to this accident, indicated that they were
serious and permanent, and opined that she sustained a severe impairment
of bodily function in the accident. He also opined that Ms. Darwish’s injuries
would require medical care and treatment in the future, and delineated the
expenses attendant to such care.
Following a three-day trial at which Dr. Stepanuk testified via
videotaped deposition, the jury answered special interrogatories finding that
Mr. Einspahr was negligent, that Ms. Darwish was not negligent, and that Mr.
Einspahr’s negligence was the factual cause of harm to Ms. Darwish. The jury
found that Ms. Darwish did not suffer severe impairment of bodily function,
but it awarded $50,000 in economic damages to compensate her for future
medical expenses.
Mr. Einspahr orally moved for judgment notwithstanding the verdict
(“JNOV”) immediately after the verdict, contending that the award of future
____________________________________________
and suffering if the jury concluded that she had sustained a severe impairment
of bodily function in the accident, a determination usually made by the jury.
See Brown v. Trinidad, 111 A.3d 765, 771 (Pa.Super. 2015).
-3-
J-A10006-20
medicals was inconsistent with the jury’s finding of no severe impairment of
bodily function, and that none of the treatments proposed was consistent with
a $50,000 award. See N.T. Trial (Jury) Vol. 1, 3/7/19, at 185. The trial court
denied the motion, surmising that the jury believed Ms. Darwish was injured
despite the lack of serious impairment, and that the verdict was probably a
compromise. The court twice-stated on the record that it would not disturb
the jury verdict, but invited the defense to file a post-trial motion on whether
the jury should have heard the testimony regarding future medical expenses.
Id. at 187 (“I think that it was wrong to let the jury hear that $200,000 about
the future medical expenses. And I believe that that could have been an
error.”). The court posited that a new trial on damages might be necessary
on that basis.
Mr. Einspahr filed a motion for post-trial relief seeking JNOV, a new trial,
or a remittitur. He alleged therein that he was entitled to judgment
notwithstanding the jury’s $50,000 award in favor of Ms. Darwish because
“the amount of future medical expenses was improperly presented to the jury
as the testimony was speculative, against the weight of the evidence,
equivocal, and contrary to law.” Motion for Post-Trial Relief, 3/18/19, at ¶24.
He averred further that there was no proof that the amounts of the expenses
were recoverable under § 1722 of the Motor Vehicle Financial Responsibility
Law (“MVFRL”), and no evidence that Dr. Stepanuk’s estimates for the costs
of treatment reflected the statutory reductions outlined in § 1797(a) of that
-4-
J-A10006-20
statute. See id. at ¶¶32-34. He argued that the $50,000 award bore no
rational relationship to the figures Dr. Stepanuk provided for various
treatments and procedures. See id. at ¶31. Finally, Mr. Einspahr argued that
since the jury determined that Ms. Darwish did not sustain a serious
impairment of a bodily function, the jury’s award of future medical expenses
was “grossly excessive and shocks one’s sense of justice.” Id. at ¶36.
The trial court granted Mr. Einspahr’s motion for post-trial relief and
entered an order molding the verdict to reduce Ms. Darwish’s award of future
medical expenses from $50,000 to $0, based on a finding that the award was
speculative and against the weight of the evidence. Ms. Darwish timely
appealed, complied with the trial court’s order to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal, and the trial court issued
its opinion. Ms. Darwish presents three issues for our review:
[1] Whether the trial court committed an error of law or an abuse
of discretion when it entered remittitur on the basis of the award
being speculative, and reduced the jury's award of $50,000.00 in
future medical damages to zero damages;
[2] Whether the Court committed an error of law or an abuse of
discretion when it entered remittitur on the basis of the award
being against the weight of the evidence, and reduced the jury's
award of $50,000.00 in future medical damages to zero
damages; and,
[3] Did the Court err in law in asserting that the alleged violation
of Phila. R.J.A. 1900(h)(1) precludes this Court from considering
-5-
J-A10006-20
the testimony of Appellant's medical expert, Maxwell Stepanuk,
Jr., D.O.?3
Appellant’s brief at 2.
Preliminarily, we note the following. In its July 22, 2019 order, upon
consideration of Mr. Einspahr’s motion for post-trial relief, the court “granted”
the motion, and vacated and molded “the judgment against Defendant
entered by the jury on March 7, 2019, . . . to reflect Judgment in favor of
Plaintiff with no award of damages.” Order, 7/22/19, at 1. While the trial
court and parties refer to the court’s action as a “remittitur,” the trial court
did not specifically find the amount of the award to be exorbitant or excessive.
See Rettger v. UPMC Shadyside, 991 A.2d 915, 920 (Pa.Super. 2010)
(“Judicial reduction of a jury award is appropriate only when the award is
____________________________________________
3 The videotaped deposition of Dr. Maxwell Stepanuk, Jr. was played for the
jury at trial. A transcript of his testimony was provided to the trial court and
marked as a plaintiff’s trial exhibit. Phila. R.J.A. 1900(h)(1) requires the
parties to upload their trial exhibits to the electronic record shortly after the
conclusion of trial. Ms. Darwish neglected to upload her exhibits, including
the transcript of Dr. Stepanuk. Since Dr. Stepanuk’s deposition transcript was
not uploaded to the record, the trial court initially ignored his testimony in
addressing the issues presented in Ms. Darwish’s Rule 1925(b) statement.
The court found the violation of Rule 1900 dispositive of the issues, and urged
this Court to affirm on that basis. In the event that we would decline to do
so, the trial court also addressed the issues as if Dr. Stepanuk’s testimony
was part of the record.
Pursuant to Pa.R.A.P. 1926(b)(1), this Court ordered Ms. Darwish to upload
to the electronic record the transcript of the videotaped deposition of Maxwell
Stepanuk, Jr., D.O., which was played at trial. She complied, and we have
considered his expert testimony in ruling on the issues raised.
-6-
J-A10006-20
plainly excessive and exorbitant.”). Rather, in a footnote in its order, the trial
court explained that, “In this case, [Ms. Darwish] presented no testimony or
other evidence of past medical expenses and, as such, this Court has
determined that the jury award of future medical expenses to [Ms. Darwish]
was entirely speculative in consideration of the jury’s finding that [she] did
not suffer a serious impairment of a bodily function.” Id. at n.1. In its
subsequent Rule 1925(a) opinion, the trial court found that the “damages
awarded were inconsistent and entirely speculative as they had no support in
the testimony or other evidence presented at trial.” Trial Court Opinion,
10/3/19, at 7. That conclusion was based solely on the fact that the jury
determined that Ms. Darwish did not suffer a serious impairment of bodily
function. See id. Since it was not the excessiveness of the award, but the
fact that the jury awarded any damages at all that was the impetus for the
molding of the verdict, this case does not resemble the traditional remittitur
situation.
In reviewing a trial court’s order molding the jury verdict to eliminate
the award for future medical expenses, we are mindful of the following. “A
jury is given wide latitude to fashion a verdict on damages.” Farese v.
Robinson, 222 A.3d 1173 (Pa.Super. 2019) (citing Nelson v. Hines, 653
A.2d 634 (Pa. 1995)). “Pennsylvania Rule of Civil Procedure 227.1 gives the
trial court the authority to modify a jury’s decision or to enter any other order
that is appropriate.” See Krock v. Chroust, 478 A.2d 1376, 1380 (Pa.Super.
-7-
J-A10006-20
1984) (citing Fish v. Gosnell, 463 A.2d 1042 (Pa.Super. 1983)). However,
that power is limited. “The power to mold or more precisely amend a jury’s
verdict is merely a power to ‘make the record accord with the facts, or to
cause the verdict to speak the truth.’’’ Id. (quoting Standard Pennsylvania
Practice (Rev. Ed.) Ch. 27, § 72). We are mindful that there is a presumption
of consistency with respect to a jury’s findings. See Giovanetti v. Johns-
Manville Corp., 539 A.2d 871, 875 (Pa.Super. 1988) (citation omitted).
Molding the verdict should only be done where the clear intention of the jury
is manifested. Id.
In analyzing the propriety of molding a verdict, our scope of review is
plenary. See Baker v. AC and S, 755 A.2d. 664, 667, n. 4 (Pa. 2000), citing
Phillips v. A-Best Products Co., 665 A.2d 1167 (Pa. 1995). Our standard
of review requires us to examine the lower tribunal’s ruling for an abuse of
discretion or error of law.4 Id. (citations omitted).
The trial court’s first stated reason for molding the verdict and striking
the jury’s damage award for future medicals was the fact that Ms. Darwish did
not offer evidence of past medical expenses. We observe the following. In
an action for damages arising out of a motor vehicle accident, the MVFRL
precludes the recovery of past medical expenses to the extent that they were
____________________________________________
4 That same standard and scope of review applies to a remittitur. See Smalls
v. Pittsburgh-Corning Corp., 843 A.2d 410, 414 (Pa.Super. 2004)
(explaining we review a trial court’s decision to grant or deny a request for
remittitur for an abuse of discretion or an error of law).
-8-
J-A10006-20
not paid out-of-pocket. Consequently, in many motor vehicle accident cases,
there is no claim for past medical expenses, or evidence of same, despite the
fact that the plaintiff sustained injuries and underwent medical treatment.
Such was the case herein. Ms. Darwish went to the emergency room
immediately after the accident, received eight months of chiropractic
treatment, and underwent MRIs of her neck and back and EMGs of both legs.
Although she was injured and received medical treatment, presumably at
some expense, it was stipulated that she had no unpaid medical expenses and
therefore, would not be making a claim for them.
The trial court concluded that absent evidence of past medical
expenses, the likelihood of incurring future medical expenses was
“speculative.” The trial court cites no authority for such a proposition, and we
find the logic puzzling. There was considerable evidence from which the jury
could conclude that Ms. Darwish was injured, and that she would require
medical treatment in the future. In fact, the jury answered in the affirmative
that Mr. Einspahr’s negligence was a factual cause of harm to Mary Darwish.
See Verdict Slip at Question No. 2. In light of the MVFRL’s statutory
constraints on the admissibility and recovery of past medical expenses, we
find that the lack of evidence of past medical expenses sheds little light on,
and is certainly not determinative of, whether future medical expenses will be
incurred or are recoverable.
-9-
J-A10006-20
The second reason the trial court advanced for molding the verdict was
that the jury responded in the negative to the special interrogatory asking
whether Ms. Darwish suffered a severe impairment of bodily function. See
Verdict Slip, Question No.6. In short, the court concluded that absent severe
impairment, Ms. Darwish could not recover future medical expenses.
Mr. Einspahr urges us to affirm the trial court on the foregoing basis,
arguing that the jury’s award of $50,000 was inherently inconsistent with its
determination that Ms. Darwish had not sustained a serious impairment of a
body function. See Appellee’s brief at 14. He contends further that Dr.
Stepanuk’s expert testimony on the issue of future medical treatment and the
associated costs “became incompetent the moment that the jury chose to
disbelieve that Appellant sustained a serious impairment of a body function.”
Id. In his next breath, however, Mr. Einspahr concedes that “simply because
the jury did not find a serious impairment would not necessarily preclude [Ms.
Darwish] from being awarded future medical damages.” Id. at 15. He
suggests, however, that given the facts, “perhaps [Ms. Dawish] could have
been awarded costs of some continuing chiropractic treatment,” but Dr.
Stepanuk did not offer such testimony. Id. He reiterates the trial court’s
objection that the award of $50,000 bore no rational relationship to the costs
of her prior treatment, which were not placed in evidence. He characterizes
Dr. Stepanuk’s testimony that Ms. Darwish would require pain medication,
epidural injections, and surgery in the future as “not based on facts,” and
- 10 -
J-A10006-20
argues that, “by definition this required the jury to speculate on the award of
future medicals.” Id. at 15. Mr. Einspahr points to the trial court’s statement
that it may have been an error to permit evidence of future medicals as
“evidenc[ing] a clear recognition in the immediate aftermath of trial that the
jury had based its award on speculation without competent facts in evidence
that would support such a substantial award for future medical expenses.” Id.
at 16.
We note first that the purpose of the special interrogatory on the verdict
slip regarding severe impairment of bodily function was to determine whether
Ms. Darwish was legally entitled to recover non-economic damages for pain
and suffering, loss of the pleasures and enjoyments of life, emotional distress
and anxiety, disfigurement, and embarrassment and humiliation, in light of
her selection of the limited tort option under her auto insurance policy. It did
not have any legal effect on her entitlement to damages for future medical
expenses, and the trial court so advised the jury. In instructing the jury
regarding economic damages, the trial court correctly stated:
Now, any award of money damages must fairly and
adequately compensate the plaintiff for all the physical and
financial injuries she has sustained as a result of the collision. The
amount you award today must compensate the plaintiff
completely for damages sustained in the past, as well as damages
the plaintiff will sustain in the future.
....
Here, the economic damages claimed are future
medical experiences [sic]. If you find that the defendant's
negligence caused the plaintiff an injury, regardless of
- 11 -
J-A10006-20
whether it was a serious impairment of a body function, the
plaintiff is entitled to be compensated for all medical
expenses that you find she will reasonably incur in the
future for the treatment and care of any continuing
injuries.
N.T. Trial (Jury) Vol. 1, 3/7/19, at 168-69 (emphasis added).
Hence, the jury was correctly instructed that it could award damages for
future medical expenses even though it found no serious impairment of bodily
function. It follows then that, in finding that Ms. Darwish suffered no severe
impairment of a bodily function, but that she would require treatment and
incur medical expenses in the future due to injuries sustained in the accident,
the jury did not fail to apply the law. In subsequently conflating the jury’s
finding of no severe impairment with no entitlement to future medical
expenses, the trial court erred. That error was the basis for its finding that
the $50,000 award of future medicals was against the weight of the evidence.
The record reveals that sufficient, competent, expert medical evidence
was presented herein to warrant submission of future medicals to the jury. 5
Dr. Stepanuk testified via videotaped deposition that he examined Ms.
Darwish, took a history, and reviewed her medical records. Stepanuk
____________________________________________
5 Although the trial court expressed second thoughts about whether it should
have submitted future medical expenses to the jury, we find no error in this
regard. Prior to doing so, “it is necessary that there be competent testimony
of the likelihood that the disability will persist into the future . . . from which
the jury can reasonably infer what the probable consequences of the injury
will be, and award damages.” Baccare v. Mennella, 369 A.2d 806, 807
(Pa.Super. 1976). Dr. Stepanuk, and to a lesser extent, Ms. Darwish,
provided competent evidence of same.
- 12 -
J-A10006-20
Videotaped Deposition, 3/6/19, at 5. At the time, she was thirty-one years of
age. Ms. Darwish complained of pain in her neck upon palpation. Id. at 12.
She had reduced range of motion and pain when she moved her head side-
to-side. Id. at 13. She reported decreased sensation in both her left arm and
left leg, and numbness in her left arm. Id.
Dr. Stepanuk reviewed the MRIs of Ms. Darwish’s neck and back taken
after her earlier accident and compared those findings to the MRIs of the same
areas taken after this 2016 accident. He identified two new herniated discs
at C4 and C5, together with anular tears. Based upon his review of the records
and films, his physical examination, Ms. Darwish’s complaints of neck pain and
pain radiating down her left arm, he opined that the herniated discs and anular
tears were caused by the December 12, 2016 accident. Id. at 17-18. He
described the disc herniations and tears as “serious injuries” that “usually
don’t get better” and cause future problems with prolonged pain and
numbness. Id. at 18.
Dr. Stepanuk then reviewed an MRI of Ms. Darwish’s back after the
earlier accident, and compared it to the MRI results following this accident. At
L-5, Ms. Darwish now exhibited a bulge that was an aggravation of her
condition in 2015. Id. at 21. He concluded that, “Within a reasonable degree
of medical certainty, Ms. Darwish sustained a cervical strain and sprain; . . .
anular tear at C-3 and C-6; with a disc herniation at C-4 and C-5., with disc
degeneration.” Id. at 22-23. With the exception of the degeneration,
- 13 -
J-A10006-20
“[e]verything else was due to the accident.” Id. at 23. Her left upper
extremity radiculopathy, as well as lumbar pain secondary to a disc bulge at
L-5, were all a result of the December 2012 accident. Id. at 23. The EMG
nerve conduction testing performed after this accident showed damage to the
L-5-S1 nerves in both legs, while the previous study was normal in this regard.
Dr. Stepanuk opined that the disc herniations and radiculopathy were
permanent. It was his opinion, “within a reasonable degree of medical
certainty, that Ms. Darwish did sustain a severe impairment of her bodily
function.” Id. at 25. In addition, it was more likely than not that, due to the
disc pathology and nerve damage, she would continue to experience these
symptoms in the future and require treatment and care. Id.
Dr. Stepanuk described the types of treatment that would be needed in
the future. He recommended pain control injections to reduce inflammation
and pain. Should her pain become intolerable, the next step would be surgery
to remove the affected discs. Id. at 27. He testified he was familiar with the
cost of these procedures. Epidurals cost $6,000 for a series of injections, and
he recommended two series each for her neck and back. A cervical discectomy
costs $125,000 and a lumbar discectomy costs $60,000. He added an
additional $5,000 per year for at least five years for medication and therapy.
Id. at 30. Dr. Stepanuk confirmed that all of these opinions were rendered
to a reasonable degree of medical certainty. Id. at 30-31.
- 14 -
J-A10006-20
The foregoing expert medical testimony was properly admitted. It was
not speculative. Moreover, it was legally sufficient to support the jury’s award
of $50,000 in future medicals regardless of its finding of no severe
impairment. The specific amount of damages awarded, which was
considerably less than the $250,000 Dr. Stepanuk estimated, may reflect the
jury’s belief that while Ms. Darwish suffered injuries that would require
conservative future medical treatment, the injuries were not so severe as to
require the surgical intervention Dr. Stepanuk forecast. Or, it may indicate
that the jury was somewhat persuaded by the conflicting opinions of Mr.
Einspahr’s expert, Michael L. Brooks, M.D. In any event, it was the jury’s
prerogative to credit some, all, or none of Dr. Stepanuk’s opinions and
testimony. Randt v. Abex Corp., 671 A.2d 228, 233 (Pa.Super. 1996).
In light of the absence of legal error in the conduct of the trial, 6 as well
as our determination that the jury followed the law in rendering its verdict,
and the award of damages for future medical expenses was supported by
competent evidence, we find that the trial court erred and abused its discretion
____________________________________________
6 Mr. Einspahr also argued below that Dr. Stepanuk’s expert testimony
regarding the cost of future medical expenses should not have been permitted
because there was no proof that the amounts of the expenses were
recoverable under §1722 of the Motor Vehicle Financial Responsibility Law, or
that estimates for the costs of treatment reflected the statutory reductions
outlined in §1797(a) of that statute. Similar arguments were rejected by this
Court in Farese v. Robinson, 222 A.3d 1173 (Pa.Super. 2019).
- 15 -
J-A10006-20
in molding the jury’s award of damages for future medical expenses from
$50,000 to $0.
Judgment vacated. Order molding the verdict vacated. Case remanded
for entry of judgment on the jury verdict.
Judge Shogan joins the memorandum.
Judge Pellegrini concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/24/20
- 16 -