Opinion
J-A09022-18 No. 1151 WDA 2017
07-10-2018
BARBARA STEMMERICH Appellant v. GLENN MASSUNG, III AND PITTSBURGH MOBILE TELEVISION, INC.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment entered July 25, 2017
In the Court of Common Pleas of Allegheny County Civil Division at No(s): GD 15-023133 BEFORE: BOWES, J., DUBOW, J., and MURRAY, J. MEMORANDUM BY DUBOW, J.:
Appellant, Barbara Stemmerich, appeals from the July 25, 2017 entry of Judgment on the jury's verdict in this personal injury matter. She contends that the evidence did not support the jury's relatively low non-economic damages award. After careful review, we affirm.
The facts and procedural history, as gleaned from the record, are as follows. On January 31, 2014, Appellee, George Massung, while employed by Appellee Pittsburgh Mobile Television, Inc., was driving at a low rate of speed when he rear-ended Appellant's vehicle causing her car to hit the car in front of her. As a result of the accident, Appellant's chest struck her steering wheel and her knees struck the dashboard before she was thrust backwards, the force of the thrust breaking her seat. Appellant was 68 years old at the time of the accident, and suffered from numerous pre-existing medical conditions.
Appellant's pre-existing conditions included reconstructive right foot and ankle surgery; reflex sympathetic dystrophy/complex regional pain syndrome of the right leg; low back pain caused by sacroiliitis; fibromyalgia; right knee replacement surgery; right shoulder rotator cuff tendinitis; left knee bone-on-bone arthritis; severe stenosis of the lumbar spine; and right shoulder bone spur and arthritis. See Trial Ct. Op., 9/28/17, at 2.
Following the accident, paramedics took Appellant to the emergency room. Appellant complained of pain in her right knee from it hitting the dashboard and of pain in her chest from the pressure of her seatbelt. An x-ray showed no fracture or other obvious injury to her artificial right knee joint, and there was bruising visible on the left side of her chest. The hospital discharged Appellant the same day after diagnosing her with no serious injury.
Appellant had had her right knee joint replaced in May 2011.
Due to her pre-existing medical conditions, Appellant already had a regular appointment with her pain management specialist, Dr. Till Conerman, scheduled for three days after the accident. At that visit, she complained to Dr. Conerman of pain in her low back and mid back radiating down her leg. Dr. Conerman treated Appellant by continuing previously prescribed physical therapy, muscle relaxers, and Vicodin. During subsequent appointments, Dr. Conerman injected steroids into the most painful areas of Appellant's back.
Three days after the accident, Appellant also saw her treating orthopedic surgeon, Dr. Yram Groff. She reported to Dr. Groff that she had increased pain in her right shoulder. Dr. Groff treated Appellant with continued physical therapy, pain medication, and steroid injections. Appellant underwent an MRI test of her right shoulder on August 20, 2014, which showed a partial tear of her rotator cuff. On October 31, 2014, Dr. Groff performed arthroscopic surgery on Appellant's right shoulder, debriding the partial tear of the rotator cuff, decompressing the area around the rotator cuff, removing a pre-existing bone spur, and removing the end of the clavicle bone to treat pre-existing arthritis.
On March 22, 2016, Appellant filed a Complaint to recover damages for the injuries that she alleged she had sustained as a result of Appellee's negligence.
A two-day trial commenced on April 3, 2017. Following the close of evidence, the trial court entered a directed verdict on liability in Appellant's favor. Thus, the only issue before the jury was Appellant's damages.
In support of her damages claim, Appellant presented the live testimony of her husband and daughter, and the video deposition testimony Dr. Conerman and Dr. Groff. Appellee presented the deposition testimony of Dr. James Cosgrove, an expert witness specializing in pain management, who conducted an independent medical examination of Appellant for purposes of this litigation.
Relevant to the instant appeal, Dr. Groff and Dr. Conerman testified extensively about Appellant's pre-existing medical conditions, the injuries that she had sustained in the instant accident, and her prognosis. Appellant's witnesses concluded that the accident had aggravated Appellant's pre-existing conditions, and caused some additional medical issues including a partial tear of her rotator cuff and low back pain. See N.T. Groff, 3/28/17, at 55; N.T. Conerman, 3/23/27, at 32-33. Dr. Conerman testified that, although Appellant's condition has improved since the accident, it was likely that Appellant's pain would be a chronic ongoing condition. N.T. Conerman at 36-37, 80.
Appellee's expert witness, Dr. Cosgrove, also testified about Appellant's numerous pre-existing conditions. He stated that, by the time of his independent medical examination of Appellant for purposes of this litigation, he "could find no residual impairment that I would ascribe - or attribute to the motor vehicle accident in question[.]" N.T. Cosgrove, 3/17/17, at 44. Dr. Cosgrove also testified that the appearance of post-accident degenerative changes to Appellant's low back spine was not related to the instant accident; rather, it was attributable to age-related degeneration. Id. at 35-37. He opined that Appellant's right shoulder injury that resulted in surgery was not related to the car accident. Id. at 39-40. However, Dr. Cosgrove also stated that because of the extent of Appellant's chronic and slowly progressing pre-existing conditions, he had difficulty in "trying to determine whether [the accident] was a . . . cause or significant contributing factor[]" of Appellant's post-accident complaints. Id. at 16.
In sum, while the parties' witnesses largely agreed that Appellant suffered a multitude of pre-existing conditions, they disagreed on the impact of the accident on Appellant's post-accident health and her prognosis.
On April 4, 2017, the jury returned a verdict in favor of Appellant, awarding her $1,170 for her past medical expenses and $600 for pain and suffering.
On April 6, 2017, Appellant filed a Post-Trial Motion requesting a new trial on damages, or, in the alternative, additur. The court held a hearing, after which it denied the Motion. The court entered Judgment on the verdict on July 25, 2017.
This appeal followed. Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant raises the following issues on appeal:
1. Did the [t]rial [c]ourt err as a matter of law in denying [Appellant's] Motion for Post-Trial Relief for a new trial on damages when the damage award was so contrary to the evidence that it shocked one's sense of justice?Appellant's Brief at 2.
2. Was the jury's award for non-economic damages so low, by contemporary economic damages, it was nothing more than inadequate?
We address Appellant's interrelated issues together. In her first issue, Appellant challenges the weight the jury gave to the evidence. She disputes what she characterizes as the trial court's "speculat[ion] that the jury might have found that the opinions of Dr. Cosgrove were more credible than [her] treating physicians, despite the fact that Dr. Cosgrove conceded that [Appellant's] treating physicians were in a better position to assess [her] injuries." Id. at 22. She avers that Dr. Cosgrove conceded that she had suffered significant injuries. Id.
In her second issue, Appellant claims that the trial court abused its discretion in not granting her request for a new trial because the jury's non-economic damages award of $600 did not adequately compensate her for the losses caused by Appellee's negligence. Id. at 21, 36-37. She posits that the jury's award was "for all practical purposes a non-award, equivalent to a $0 award." Id. at 23. We conclude that Appellant is not entitled to relief on either issue.
Our standard of review of an order denying a Motion for a New Trial is well-settled. We consider "whether the trial court clearly and palpably committed an error of law that controlled the outcome of the case or constituted an abuse of discretion." Schmidt v. Boardman Co., 958 A.2d 498, 516 (Pa. Super. 2008) (citation omitted). We examine the evidence in the light most favorable to the verdict-winner and, "to reverse the trial court, we must conclude that the verdict would change if another trial were granted." Id. (citation omitted).
Where a jury has made credibility determinations regarding the testimony and evidence presented, those determinations are rarely overturned. Armbruster v. Horowitz , 744 A.2d 285, 287 (Pa. Super. 1999). In order to prevail on a challenge to the weight of the evidence, the verdict must be so "contrary to the evidence as to shock one's sense of justice[.]" Lanning v. West , 803 A.2d 753, 765 (Pa. Super. 2002) (quotation and citation omitted). A new trial "will not be granted on the ground that the verdict was against the weight of the evidence where the evidence is conflicting and the fact-finder could have decided in favor of either party." Id. at 766 (citation omitted).
When considering challenges to the weight of the evidence, we note that, "[i]t is well-settled in Pennsylvania that the weight of the evidence and the credibility of witnesses are issues for the jury who is free to believe some, all, or none of the evidence presented." Odato v. Fullen , 848 A.2d 964, 966 (Pa. Super. 2004).
With respect to a claim for additur, we note the following principles. "A verdict is set aside as inadequate when it is so inadequate as to indicate passion, prejudice, partiality, or corruption, or where it clearly appears from uncontradicted evidence that the amount of the verdict bears no reasonable relation to the loss suffered by the plaintiff." Dranzo v. Winterhalter , 577 A.2d 1349, 1352 (Pa. Super. 1990) (citation and quotation omitted). Further, "[i]f the verdict bears a reasonable resemblance to the damages proved, the appellate court will not disturb the verdict merely because the damages are less than the reviewing court might have awarded." Id. "To support the grant of a new trial for inadequacy of the damage award, the injustice of the verdict should stand forth like a beacon." Id. (citation and quotation omitted).
Following our review of the evidence and the relevant case law, we find that the trial court did not abuse its discretion in denying Appellant's Post-Trial Motion or her request for additur. The Honorable Alan Hertzberg, who presided at trial, has authored a comprehensive, thorough, and well-reasoned Opinion, citing to the record and relevant case law in addressing Appellant's issues. After careful review of the parties' arguments and the record, we affirm on the basis of the trial court's Opinion. See Trial Ct. Op., 9/28/17, at 4-8 (concluding that: (1) the jury had a basis for finding many of Appellant's complaints were not credible or were caused by a pre-existing condition, including the testimony of her own witnesses; (2) the jury was not required to find that the instant accident caused the pain complained of by Appellant; (3) the parties presented contradictory evidence, which the jury was free to find credible or not credible; and (4) the non-economic damages award did not "shine forth like a beacon of injustice").
The parties are instructed to attach a copy of the trial court's September 28, 2017 Opinion to all future filings.
Judgment affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 7/10/2018
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