Dubose, R. v. Quinlan, M.

J. A11010/15
2015 PA Super 223

ROBERT DUBOSE, ADMINISTRATOR OF : IN THE SUPERIOR COURT OF
THE ESTATE OF ELISE DUBOSE, : PENNSYLVANIA
DECEASED :
:
v. :
:
MARK QUINLAN, DONNA BROWN, :
RNC, BSN, ALBERT EINSTEIN MEDICAL :
CENTER D/B/A WILLOWCREST, :
WILLOWCREST AND JEFFERSON :
HEALTH SYSTEM :
:
APPEAL OF: WILLOWCREST NURSING :
HOME, ALBERT EINSTEIN :
HEALTHCARE NETWORK, ALBERT :
EINSTEIN MEDICAL CENTER D/B/A :
WILLOWCREST AND WILLOWCREST : No. 2752 EDA 2013
:
Appellants :

Appeal from the Judgment Entered August 21, 2013,
in the Court of Common Pleas of Philadelphia County
Civil Division at No. September Term, 2009 No. 0846

ROBERT DUBOSE, ADMINISTRATOR OF : IN THE SUPERIOR COURT OF
THE ESTATE OF ELISE DUBOSE, : PENNSYLVANIA
DECEASED :
:
v. :
:
WILLOWCREST NURSING HOME, AND :
ALBERT EINSTEIN HEALTHCARE :
NETWORK, : No. 2753 EDA 2013
:
Appellants :

Appeal from the Judgment Entered August 21, 2013,
in the Court of Common Pleas of Philadelphia County
Civil Division at No. August Term, 2009 No. 1603
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BEFORE: FORD ELLIOTT, P.J.E., OLSON AND WECHT, JJ.

OPINION BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 23, 2015

Appellants appeal the judgments entered August 21, 2013, in this

wrongful death and survival action. We affirm.

The trial court has aptly summarized the history of this matter as

follows:

Plaintiff, Robert Dubose, Administrator of the
Estate of Elise Dubose, filed this nursing home
liability action against Defendants, Willowcrest
Nursing Home, and Albert Einstein Healthcare
Network, under the lead case August Term, 2009,
No. 1603. Subsequently, Plaintiff filed a second
action, September Term, 2009, No. 846 against
Willowcrest, Albert Einstein Medical Center d/b/a
Willowcrest, Mark Quinlan (Medical Director of
Willowcrest) Donna Brown (Willowcrest Director of
Nursing) and Jefferson Health System, which was
consolidated under the Court Term and Number of
the lead case. Plaintiff alleged that Ms. Dubose
developed severe pressure ulcers which were left
untreated leading to a painful and gruesome death
due to neglect and deterioration of said ulcers.
Defendants argued that at a certain point said
bedsores were untreatable. The instant case went to
trial twice.

Plaintiff’s decedent, Elise Dubose, was
originally admitted to Albert Einstein Medical Center
on July 25, 2005 when she suffered severe head
injuries, including anoxia and brain injury as a result
of a fall at home. Not long thereafter, in August,
2005 she was transferred and admitted to
Willowcrest Nursing Home where she was diagnosed
inter alia with diabetes type II, respiratory failure
necessitating a ventilator, COPD, and several

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Stage II pressure ulcers (bed sores). On
September 6, 2005 there was a physician’s order for
a flexor bed and frequent repositioning of the patient
who was unable to care for herself, on a one to two
hour cycle. Plaintiff’s counsel presented evidence at
trial that the physician’s order was negligently
followed, leading to a marked deterioration of
existing bed sores, and proliferation of pressure
ulcers to other parts of Mrs. Dubose’s body including
her shin, heels, so that there were at least
10 pressure ulcers existing at the time of her death
on October 18, 2007.

During her stay at Willowcrest, Mrs. Dubose
was malnourished, suffered severe dehydration,
conscious pain from bed sores, bone infection, and
sepsis systemic infection that lead ultimately to
organ failure and death.

Plaintiff’s liability claims were predicated at
trial based on allegations and evidence presented
that Defendants failed to adequately treat bed sores,
failed to provide wound care within the standard of
care, failed to adequately hydrate the patient, failed
to guard against infection, and gave nursing and
medical care that was below standard and negligent.

In October, 2012, there was [a] mistrial
resulting from testimony by Plaintiff’s expert in
violation of a preclusion of evidence Order.

A second jury trial was held from February to
March 2013. On March 5, 2013, the Court granted
Defendant Jefferson Health System’s Motion for Non-
Suit because Jefferson Health System existed only as
a fundraising entity, whose sole function was to issue
bonds, and which did not engage in any of the four
bases for corporate liability under the Thompson v.
Nason Hospital, 527 Pa. 330[,] 591 A.2d 703 (Pa.
1991) line of cases.

On March 13, 2013, a jury found in favor of
Plaintiff in the amount of $125,000, on the Wrongful
Death Claim and $1,000,000.00 on the Survival

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Action. The jury verdict sheet apportioned liability
as 60% to Willowcrest, 25% to Albert Einstein
Healthcare Network, and 15% to Donna Brown, the
Willowcrest Director of Nursing.

The trial was bifurcated to include a punitive
damages phase in which, on March 21, 2013, the
same jury found punitive damages in the amount of
$875,000.00 against Defendants, Albert Einstein
Medical Center d/b/a Willowcrest. (N.T. 3-21-13 at
50-51).

Defendants filed Post Trial Motions on March
25, 2013, to which Plaintiff responded. On August
21, 2013, upon consideration of the Motion for Post-
Trial Relief of Defendants Willowcrest Nursing Home,
Albert Einstein Healthcare Network, Donna Brown,
R.N.C., B.S.N., Albert Einstein Medical Center d/b/a
Willowcrest and Willowcrest, Plaintiff’s Response
thereto, and upon hearing oral argument thereon,
the trial Court granted Defendants’ Motions in part,
and denied them in part. The Court denied
Defendants’ Motion for a New Trial. The Post Trial
Motion for Judgment N.O.V. was granted as to
Defendant, Donna Brown, R.N.C., B.S.N., without a
reduction in the total verdict amount, because she
was an employee of Willowcrest. Defendants’ Motion
for Judgment N.O.V. was denied in all other respects
as to all other remaining Defendants and issues.
Defendants’ Motion for Remittitur was denied in in
[sic] its entirety as to both compensatory and
punitive damages. Judgment was entered on the
Verdict.

Trial court opinion, 6/27/14 at 1-3.

This timely appeal followed. Appellants have complied with

Pa.R.A.P. 1925(b), and the trial court has filed an opinion.

Appellants have raised the following issues for this court’s review:

A. Are [appellants] entitled to judgment n.o.v.
where the Survival Act claim was clearly

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time-barred, and there were no recoverable
Wrongful Death Act damages?

B. Are [appellants] entitled to judgment n.o.v. on
punitive damages, where this case did not
involve any of the types of conduct that have
been held to support punitive damages?

C. Are [appellants] entitled to judgment n.o.v. on
Plaintiff’s corporate negligence claims, or
alternatively, a new trial, where Plaintiff failed
to prove the elements of a corporate
negligence claim?

D. Are [appellants] entitled to a new trial because
the verdicts were excessive, and because the
jurors were wrongly allowed to hear evidence
of [appellants’] “wealth” before the jury
decided whether to impose punitive damages?

E. Did the trial court commit reversible error by
awarding delay damages even though
Plaintiff’s request was untimely?

Appellants’ brief at 4.

When reviewing the propriety of an order
granting or denying judgment notwithstanding the
verdict, we must determine whether there is
sufficient competent evidence to sustain the verdict.
Johnson v. Hyundai Motor America, 698 A.2d
631, 635 (Pa.Super.1997), appeal denied, 551 Pa.
704, 712 A.2d 286 (1998) (citations omitted);
Rowinsky v. Sperling, 452 Pa.Super. 215, 681
A.2d 785, 788 (1996), appeal denied, 547 Pa. 738,
690 A.2d 237 (1997) (quoting Samuel Rappaport
Family Partnership v. Meridian Bank, 441
Pa.Super. 194, 657 A.2d 17, 20 (1995)). We must
view the evidence in the light most favorable to the
verdict winner and give the verdict winner the
benefit of every reasonable inference arising
therefrom while rejecting all unfavorable testimony
and inferences. Johnson, supra at 635;
Rowinsky, supra at 788. We apply this standard in

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all cases challenging the grant of a motion for
J.N.O.V. Shearer v. Reed, 286 Pa.Super. 188, 428
A.2d 635, 637 (1981).

Pennsylvania law makes clear that a judgment
notwithstanding the verdict is proper only in clear
cases where the facts are such that no two
reasonable minds could disagree that the verdict was
improper. Johnson, supra at 635; Rowinsky,
supra at 788. Questions of credibility and conflicts
in evidence are for the fact-finder to resolve.
Commonwealth, Department of Transportation
v. Patton, 546 Pa. 562, 568, 686 A.2d 1302, 1305
(1997); Miller v. Brass Rail Tavern, Inc., 702
A.2d 1072, 1076 (Pa.Super.1997) (citation omitted).
This Court will not substitute its judgment based
upon a cold record for that of the fact-finder where
issues of credibility and weight are concerned. Id.

Birth Center v. St. Paul Companies, Inc., 727 A.2d 1144, 1154-1155

(Pa.Super. 1999).

First, appellants claim that the survival action was filed beyond the

statute of limitations. According to appellants, the statute began to run in

2005, when Mrs. Dubose developed a pressure wound. (Appellants’ brief at

14.) Appellants are mistaken. The MCARE Act1 clearly provides that

wrongful death and survival actions may be brought within two years of

death.2 Mrs. Dubose died on October 18, 2007, and the plaintiff filed two

1
Medical Care Availability and Reduction of Error (“MCARE”) Act, 40 P.S.
§ 1303.101 et seq.
2
§ 1303.513. Statute of repose

(d) Death or survival actions.--If the claim is
brought under 42 Pa.C.S. § 8301 (relating to
death action) or 8302 (relating to survival

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complaints, one in August 2009, and one in September 2009, which were

ultimately consolidated. Both were filed within two years of the decedent’s

death. Therefore, the Survival Act claim was timely filed within the two-year

statute of limitations.

Appellants also complain that the plaintiff was allowed to add new

causes of action in his amended complaints, outside the statute of

limitations. (Appellants’ brief at 21.) This claim was not raised in

appellants’ Rule 1925(b) statement, nor was it addressed by the trial court.

Therefore, it is waived. Pa.R.A.P. 1925(b)(4)(vii); Lazarski v. Archdiocese

of Philadelphia, 926 A.2d 459, 463-464 (Pa.Super. 2007), appeal denied,

937 A.2d 446 (Pa. 2007) (citations omitted).

Next, appellants argue that the plaintiff failed to establish

compensable damages for wrongful death. According to appellants,

damages under the Wrongful Death Act are strictly limited to pecuniary

losses. (Appellants’ brief at 24.) Appellants contend that wrongful death

does not encompass damages for emotional loss or mental pain and

suffering. (Id. at 25.)

Pennsylvania’s Wrongful Death Act,
42 Pa.Cons.Stat.Ann. § 8301, allows a spouse,

action), the action must be commenced within
two years after the death in the absence of
affirmative misrepresentation or fraudulent
concealment of the cause of death.

40 Pa.C.S.A. § 1305.513(d).

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children or parents of a deceased to sue another for
a wrongful or neglectful act that led to the death of
the deceased. This Court has previously explained
the damages available under the Wrongful Death
Act:

“Damages for wrongful death are the
value of the decedent’s life to the family,
as well as expenses caused to the family
by reason of the death.” Slaseman v.
Myers, 309 Pa.Super. 537, 455 A.2d
1213, 1218 (1983). Thus, members of
the decedent’s family enumerated in the
Wrongful Death Act, see 42 Pa.C.S.
§ 8301(b), may recover not only for
medical, funeral, and estate
administration expenses they incur, but
also for the value of his services,
including society and comfort. See id.
See also Machado v. Kunkel, 804 A.2d
1238, 1245 (Pa.Super.2002) (“[T]he
definition of compensable services for the
purpose of the [wrongful] death statute
is similar to the definition of consortium
as that term is applied in other
negligence cases.”).

Rettger v. UPMC Shadyside, 991 A.2d 915, 932-
933 (Pa.Super.2010), appeal denied, 609 Pa. 698,
15 A.3d 491 (2011). Our Court has unequivocally
stated that:

The purpose of the Wrongful Death
Statute, 42 Pa.C.S. § 8301, is to
compensate “the decedent’s survivors for
the pecuniary losses they have sustained
as a result of the decedent’s death. . . .
This includes the value of the services
the victim would have rendered to his
family if he had lived.” . . . A wrongful
death action does not compensate the
decedent; it compensates the survivors
for damages which they have sustained
as a result of the decedent’s death.

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Under the wrongful death act the widow
or family is entitled, in addition to costs,
to compensation for the loss of the
contributions decedent would have made
for such items as shelter, food, clothing,
medical care, education, entertainment,
gifts and recreation.

Machado v. Kunkel, 804 A.2d 1238, 1245-1246
(Pa.Super.2002), appeal denied, 572 Pa. 766, 819
A.2d 547 (2003) (citations omitted), quoting
Linebaugh v. Lehr, 351 Pa.Super. 135, 505 A.2d
303, 304–305, (1986).

Hatwood v. HUP, 55 A.3d 1229, 1235-1236 (Pa.Super. 2012), appeal

denied, 65 A.3d 414 (Pa. 2013). The appellants in Hatwood made the

identical argument, contending that,

due to the inherent uncertainty involved in such
determinations, no recovery for non-pecuniary losses
such as for society and companionship is permissible
under the Act. However, the Supreme Court of
Pennsylvania has addressed this issue of
“uncertainty” by holding that

[t]he fact that there is no mathematical
formula whereby compassionately
bestowed benefits can be converted into
a precise number of bank notes does not
mean that the tortfeasor will be excused
from making suitable reimbursement for
their loss. . . . All these things—such as
companionship, comfort, society,
guidance, solace, and protection which
go into the vase of family happiness-are
the things for which a wrongdoer must
pay when he shatters the vase.

Spangler v. Helm’s New York-Pittsburgh Motor
Exp., 396 Pa. 482, 484-485, 153 A.2d 490, 492
(1959).

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Id. at 1236. In the instant case, the plaintiff introduced evidence that,

although Mrs. Dubose was suffering from severe brain damage, her family

were deprived of her society and comfort. Mrs. Dubose was responsive to

music and a photograph of her grandchild. (Trial court opinion, 6/27/14 at

12.) The decedent’s family derived comfort and solace from the fact that

she was still alive and being able to visit her in the nursing home. (Id.) In

addition, the plaintiff presented evidence that the estate incurred funeral and

other expenses as a result of Mrs. Dubose’s death. (Id.) The jury’s

damages award of $125,000 for wrongful death was supported by the

evidence and appellants’ argument is without merit.

Next, appellants argue that the evidence was insufficient to prove

punitive damages. Appellants contend that even accepting the plaintiff’s

evidence as true, the plaintiff failed to prove reckless indifference or

outrageous conduct necessary to support punitive damages. Appellants

state that, at most, the plaintiff proved ordinary negligence. We disagree.

Punitive damages will lie only in cases of
outrageous behavior, where defendant’s
egregious conduct shows either an evil
motive or reckless indifference to the
rights of others. Punitive damages are
appropriate when an individual’s actions
are of such an outrageous nature as to
demonstrate intentional, willful, wanton,
or reckless conduct.

J.J. DeLuca Co., Inc. v. Toll Naval Associates, ---
Pa.Super. ---, 56 A.3d 402 (2012) (citation omitted).

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Outrageous conduct is an “act done with
a bad motive or with a reckless
indifference to the interests of others.”
“Reckless indifference to the interests of
others”, or as it is sometimes referred to,
“wanton misconduct”, means that “the
actor has intentionally done an act of an
unreasonable character, in disregard of a
risk known to him or so obvious that he
must be taken to have been aware of it,
and so great as to make it highly
probable that harm would follow.”

Smith v. Brown, 283 Pa.Super. 116, 423 A.2d 743,
745 (1980) (citations omitted).

[I]n Pennsylvania, a punitive damages
claim must be supported by evidence
sufficient to establish that (1) a
defendant had a subjective appreciation
of the risk of harm to which the plaintiff
was exposed and that (2) he acted, or
failed to act, as the case may be, in
conscious disregard of that risk.

Snead v. Soc’y for Prevention of Cruelty to
Animals of Pennsylvania, 929 A.2d 1169, 1184-85
(Pa.Super.2007), aff’d, 604 Pa. 166, 985 A.2d 909
(2009) (citing Hutchison ex rel. Hutchison v.
Luddy, 896 A.2d 1260, 1266 (Pa.Super.2006)).

Weston v. Northampton Personal Care, Inc., 62 A.3d 947, 961

(Pa.Super. 2013), appeal denied, 79 A.3d 1099 (Pa. 2013). “The

determination of whether a person’s actions arise to outrageous conduct lies

within the sound discretion of the fact-finder and will not be disturbed by an

appellate court so long as that discretion has not been abused.” Id., citing

J.J. DeLuca Co., supra.

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We agree with the trial court that where the plaintiff established the

reckless neglect of the nursing home resident, Mrs. Dubose, leading to the

development of numerous festering bedsores, the matter of punitive

damages was for the jury to decide. (Trial court opinion, 6/27/14 at 14.) As

described above, nursing home staff negligently followed a physician’s order

to frequently reposition the decedent on a 1-2 hour cycle, leading to a

marked deterioration of existing bedsores. (Id. at 2.) During her stay at

Willowcrest, there was evidence that the decedent was malnourished,

dehydrated, and suffered conscious pain from numerous bedsores. (Id.) In

addition, appellants used a licensed practical nurse to provide advanced

wound care in violation of the Nurse Practices Act.3 At the time of her death

on October 18, 2007, the decedent suffered from at least 10 pressure ulcers

as well as systemic infection. In September 2007, the decedent was

hospitalized for acute renal failure caused by severe dehydration. Our

standard of review requires that we view the evidence in the light most

favorable to the plaintiff, the verdict winner. There was sufficient evidence

of substandard care to the point of reckless indifference for the issue of

punitive damages to go to the jury. The trial court did not err in denying

3
63 P.S. § 211 et seq.

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appellants’ motion for judgment NOV with regard to imposition of punitive

damages.4

Next, appellants argue that they were entitled to judgment NOV on the

corporate negligence claim. Appellants argue that the plaintiff failed to

establish all the elements of corporate negligence, including breach of a duty

and causation. (Appellants’ brief at 34.) Appellants complain that the

plaintiff failed to distinguish between the several corporate defendants and

that the plaintiff’s expert, David Lopez (“Lopez”), was not a nursing home

administrator and had no medical training. (Id. at 34-36.)

Corporate negligence as a basis for liability against a
hospital was first adopted by our Supreme Court in
Thompson v. Nason Hospital, 527 Pa. 330, 591
A.2d 703 (1991). As we recently observed in
Hyrcza v. West Penn Allegheny Health System,
Inc., 978 A.2d 961, 982 (Pa.Super.2009):

In Thompson, the Court found that a
hospital could owe a non-delegable duty
to uphold a certain standard of care
directly to its patients, without requiring
an injured party to establish the
negligence of a third party. The basis for
imposing direct liability on hospitals, as
recognized by the Court, was that
hospitals had “evolved into highly
sophisticated corporations operating
primarily on a fee-for-service basis. The

4
Citing the MCARE Act, 40 P.S. § 1303.505(c), appellants also argue that
they cannot be held liable for the actions of their agents unless they actually
knew of and allowed the conduct by their agents that resulted in the award
of punitive damages. Appellants argue that the plaintiff would have to show
actual knowledge of wrongful conduct. (Appellants’ brief at 32.) However,
Section 1303.505(c) only applies to vicarious liability. Here, appellants were
also found directly liable under a corporate negligence theory of liability.

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corporate hospital of today has assumed
the role of a comprehensive health
center with responsibility for arranging
and coordinating the total health care of
its patients.” [Thompson, supra,] at
706.

In Thompson, the Court held that a hospital owes
the following duties to its patients: (a) to use
reasonable care in the maintenance of safe and
adequate facilities and equipment; (b) to select and
retain only competent physicians; (c) to oversee all
persons who practice medicine within its walls as to
patient care; and (d) to formulate, adopt and enforce
adequate rules and policies to ensure quality care for
its patients. [Thompson, supra,] at 707. The
Court held that in order for a hospital to be charged
with negligence, it was necessary to show that it had
“actual or constructive knowledge of the defect or
procedures which created the harm” and that the
hospital’s negligence was “a substantial factor in
bringing about the harm to the injured party.”
[Thompson, supra,] at 708.

Scampone v. Grane Healthcare Co., 11 A.3d 967, 974-975 (Pa.Super.

2010), affirmed in part on other grounds, 57 A.3d 582 (Pa. 2012). In

Scampone, this court held that the trial court correctly concluded a nursing

home could likewise be found liable under a corporate negligence theory:

Herein, we conclude that a nursing home is
analogous to a hospital in the level of its involvement
in a patient’s overall health care. Except for the
hiring of doctors, a nursing home provides
comprehensive and continual physical care for its
patients. A nursing home is akin to a hospital rather
than a physician’s office, and the doctrine of
corporate liability was appropriately applied in this
case.

Id. at 976.

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As in this case, in Scampone, there was evidence that the

management company knew staffing levels were insufficient to meet

patients’ needs. Id. at 990. The decedent in that case died from chronic

substandard care resulting in a urinary tract infection, dehydration, and

malnutrition. This court in Scampone found that the management

company’s employees supervised the nursing staff and were involved in the

daily care of the decedent. Id. The management company’s employees

failed to supervise the staff properly and ensure that the decedent had

proper fluids, nourishment, etc. Id. The Scampone court found that the

management company “had a direct supervisory role” and “actually

controlled the care.” Id.

Lopez is President and CEO of the Harris Health System in Houston,

Texas, and was qualified as an expert. Lopez testified that Albert Einstein

Healthcare Network was responsible for knowing and understanding what its

staffing ratios were, what its quality assurance plan was, and addressing all

issues present within the entities that it operated. (Notes of testimony,

3/4/13 at 126-127.) Lopez testified that, in his expert opinion, Albert

Einstein Healthcare Network was not meeting its responsibilities to assure

that care was being provided to the general patient population at

Willowcrest. (Id. at 127-128.) Albert Einstein Healthcare Network received

a management fee from Willowcrest for its oversight and management of the

facility.

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In addition, there was expert testimony that Mrs. Dubose died as the

result of failure to enforce policies and procedures at Willowcrest and the

violation of state regulations and federal standards pertaining to nursing

homes. As stated above, Willowcrest and Albert Einstein Healthcare

Network violated the Nurse Practices Act by allowing LPNs to perform wound

assessments. The Chief Nurse Executive in charge of Willowcrest was placed

by Albert Einstein Healthcare Network and knew or should have known that

LPNs were preparing skin care assessment forms in violation of state law. In

addition, there was evidence of chronic understaffing in violation of

appellants’ duty to provide the nursing home residents with competent

nursing staff. There was sufficient evidence to find appellants corporately

liable, and the trial court did not err in denying appellants’ motion for

judgment NOV with regard to corporate liability.

Next, appellants make several arguments relating to the admission of

evidence. Appellants argue that the trial court erred in granting the

plaintiff’s motion in limine to preclude the admission of Willowcrest records

indicating that Mrs. Dubose’s daughter, Starr Dubose (“Starr”), was upset

regarding her mother’s care. Appellants also argue that they should have

been allowed to present evidence that the plaintiff had already retained an

attorney in 2005, and was contemplating legal action against Willowcrest at

that time. (Appellants’ brief at 39-41.)

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When reviewing a trial court’s ruling on a motion in limine, we apply

the same standards relevant to the particular evidentiary issue under

consideration. Bugosh v. Allen Refractories Co., 932 A.2d 901, 913-914

(Pa.Super. 2007), appeal dismissed as improvidently granted, 971 A.2d

1228 (Pa. 2009). “The admission or exclusion of evidence is a decision

subject to the discretion of the trial court whose decision will not be

disturbed absent a clear abuse of that discretion, or an error of law.” Id. at

914 (citation omitted).5 Further, “[i]n order to find that the trial court’s

evidentiary rulings constituted reversible error, such rulings must not only

have been erroneous but must also have been harmful to the complaining

party.” Whitaker v. Frankford Hosp. of City of Philadelphia, 984 A.2d

512, 522 (Pa.Super. 2009) (internal quotation marks and citation omitted)

(emphasis supplied). Thus, the complaining party must prove prejudice.

It is axiomatic that all relevant evidence is admissible at trial.

Pa.R.E. 402. The Pennsylvania Rules of Evidence define “relevant evidence”

as evidence having any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less

5
An abuse of discretion occurs when the course
pursued by the trial court represents not merely an
error of judgment, but where the judgment is
manifestly unreasonable or where the law is not
applied or where the record shows that the action is
a result of partiality, prejudice, bias, or ill will.

Hyrcza, 978 A.2d at 968 (internal quotation marks and citations omitted).

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probable than it would be without the evidence. Pa.R.E. 401. However, a

trial judge has the discretion to exclude relevant evidence if, inter alia, its

probative value is outweighed by the danger of unfair prejudice, confusion of

the issues, or misleading the jury. Pa.R.E. 403.

Appellants complain that they were precluded from introducing

evidence that Starr was “acting out” and mistreating the nursing home staff

because she believed that her mother was receiving substandard care.

Specifically, according to Willowcrest records from September 2005, Starr

was yelling and screaming that, “my mother did not have any wounds before

she came to Willowcrest,” demanding that her mother be discharged home,

and questioning the nurses about the status of her mother’s wounds.

(Appellants’ brief at 40.) One nurse described Starr as being enraged,

stating, “I can’t stand this place. I’m gonna kick her ass.” (Id.)

As the trial court states, this evidence was hearsay and also irrelevant,

apparently proffered for the purpose of casting Starr in an unflattering light.

(Trial court opinion, 6/27/14 at 18.) Appellants argue the evidence was

relevant to their statute of limitations defense; i.e., as early as September

2005, the decedent’s family were aware of her pressure ulcers and voicing

complaints about the care provided by Willowcrest staff, yet waited four

years before filing suit. (Appellants’ brief at 40.) For the reasons discussed

supra, we have already rejected appellants’ statute of limitations argument.

The plaintiff’s complaint was filed within two years after Mrs. Dubose’s

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death, before expiration of the relevant limitations period. Therefore,

appellants cannot demonstrate how they were prejudiced by exclusion of the

evidence.

In the same vein, appellants’ argument regarding the plaintiff’s alleged

retention of an attorney in 2005 also fails. Again, appellants argue that this

evidence was relevant to show that four years before these lawsuits were

filed, the plaintiff possessed the salient facts concerning the occurrence of

the injury and who or what caused it, and was relevant to counter any

“discovery rule” argument. (Id. at 41.) However, since the statute did not

begin to run until Mrs. Dubose’s death in October 2007, the suit was timely

filed and the plaintiff does not have to revert to application of the discovery

rule to toll the limitations period. The evidence concerning the plaintiff’s

retention of an attorney was both irrelevant and prejudicial. The trial court

did not err in granting the plaintiff’s motion in limine to exclude this

evidence.

Next, appellants argue that the compensatory verdicts were shockingly

excessive. Appellants argue that Mrs. Dubose had pre-existing medical

conditions, had suffered severe brain damage, and was never going to

recover neurological function. Appellants argue that there was no indication

Mrs. Dubose could feel pain and that she had suffered permanent brain

damage before she arrived at Willowcrest, after a fall at her home in July

2005. (Appellants’ brief at 44-45.)

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Judicial reduction of a jury award for compensatory
damages is appropriate only when the award is
plainly excessive and exorbitant in a particular case.
Haines v. Raven Arms, 536 Pa. 452, 456, 640 A.2d
367, 369 (1994) (reconsideration granted and case
remanded June 7, 1994). It is well-settled that the
large size of a verdict is in itself no evidence of
excessiveness. Layman v. Doernte, 405 Pa. 355,
363, 175 A.2d 530, 534 (1962). [] The correct
question on review is whether the award of damages
“falls within the uncertain limits of fair and
reasonable compensation or whether the verdict so
shocks the sense of justice as to suggest that the
jury was influenced by partiality, prejudice, mistake,
or corruption.” Haines v. Raven Arms, supra
(citing Carminati v. Philadelphia Transportation
Co., 405 Pa. 500, 509, 176 A.2d 440, 445 (1962)).

The trial court may only grant a request for
remittitur when a verdict that is supported by the
evidence suggests that a jury was guided by
partiality, prejudice, mistake or corruption.
Krysmalski by Krysmalski v. Tarasovich, 424
Pa.Super. 121, 147, 622 A.2d 298, 312 (en banc),
appeal denied, 535 Pa. 675, 636 A.2d 634 (1993).
The grant or refusal of either a new trial or remittitur
because of the excessiveness of the verdict is
peculiarly within the discretion of the trial court and
will not be reversed unless an abuse of discretion or
error of law has been committed. Haines v. Raven
Arms, supra (quoting Scaife Co. v. Rockwell-
Standard Corp., 446 Pa. 280, 290, 285 A.2d 451,
456-57 (1971), cert. denied, 407 U.S. 920, 92
S.Ct. 2459, 32 L.Ed.2d 806 (1972)). On appeal, the
Superior Court is not free to substitute its judgment
for that of the fact finder. Botek v. Mine Safety
Appliance Corp., 531 Pa. 160, 166, 611 A.2d 1174,
1176 (1992). Rather, it is our task to determine
whether the lower court committed a “clear” or
“gross” abuse of discretion when conducting its initial
evaluation of a defendant’s request for remittitur.
Id. at 165, 611 A.2d at 1176.

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J. A11010/15

Sprague v. Walter, 656 A.2d 890, 924 (Pa.Super. 1995), appeal denied,

670 A.2d 142 (Pa. 1996). With regard to the $125,000 Wrongful Death Act

verdict, appellants repeat their claim that the plaintiff failed to prove the

elements for a wrongful death recovery. (Appellants’ brief at 42.) We have

already rejected this argument for the reasons discussed above. Appellants

also complain that the jury’s $1,000,000 Survival Act verdict was shockingly

excessive in light of the decedent’s pre-existing injuries and lack of brain

function. However, while Mrs. Dubose may have arrived at Willowcrest with

pre-existing injuries, she developed the festering bedsores which ultimately

led to her demise while a patient at Willowcrest. In addition, there was

testimony that she suffered from severe dehydration and lack of nutrition.

While appellants argue that Mrs. Dubose was basically in a vegetative state

and discount the plaintiff’s testimony that Mrs. Dubose was able to interact

with him non-verbally, including moving her hands and watching television,

matters of credibility are for the jury, and they are free to believe all, part,

or none of the evidence presented. The fact that Mrs. Dubose had suffered

permanent, debilitating brain injury does not mean that she was

physiologically incapable of feeling pain. The plaintiff points out that at

some point Mrs. Dubose required pain medication and was placed on a pain

management program. (Appellee’s brief at 49.) Essentially, appellants are

making a quality of life argument, asserting that the decedent’s pain and

suffering should be discounted because of her decreased mental functioning

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J. A11010/15

and poor prognosis. We find the jury’s compensatory award was not

shockingly excessive and the trial court did not abuse its discretion in

denying appellants’ motion for remittitur or a new trial.

Next, appellants make several claims of trial court error with respect

to the punitive damages phase of trial. The damages phase was bifurcated,

at appellants’ request, into separate compensatory and punitive damages

phases. (Trial court opinion, 6/27/14 at 13.) By granting appellants’ motion

for a bifurcated trial as to damages, evidence of appellants’ wealth was

deferred until after liability and resulting compensatory damages had been

found and awarded by the jury. (Id.) Therefore, the trial court severed the

issue of appellants’ wealth from the initial damages calculations. (Id.) See

Mirabel v. Morales, 57 A.3d 144, 151 n.7 (Pa.Super. 2012) (“In the

absence of punitive damages, it is ‘irrelevant, improper, and prejudicial’ for a

jury to consider the defendant’s wealth.”), quoting Feld v. Merriam, 485

A.2d 742, 749 (Pa. 1984).

However, appellants argue the trial court should have further

bifurcated the punitive damages phase of trial, by not allowing any evidence

of appellants’ considerable wealth until after the jury had decided whether to

award punitive damages in the first place. Appellants argue that wealth of a

defendant is a proper consideration as to the amount of punitive damages to

be awarded, but it is irrelevant to the determination of liability. (Appellants’

brief at 48.) Notably, appellants cite no authority for the proposition that

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the trial court was required to further bifurcate the punitive damages phase

of trial to prevent the jury from hearing any evidence of appellants’ wealth

unless and until they decided to impose punitive damages. See Kirkbride

v. Lisbon Contractors, Inc., 555 A.2d 800, 803 (Pa. 1989), citing

Restatement (Second) of Torts, Section 908(2) (wealth of the defendant is

one factor for the jury to weigh in arriving at an appropriate punitive

damage award).

Appellants cite Vance v. 46 and 2, Inc., 920 A.2d 202 (Pa.Super.

2007), which is inapposite. In that case, the defendants’ sole issue on

appeal was that the trial court erred by denying their motion for nonsuit or

judgment NOV on the punitive damages issue, where the plaintiffs failed to

present any evidence of the defendants’ finances or wealth at trial. Id. at

203. This court concluded that, while wealth of the tortfeasor is a relevant

consideration, it is not a necessary condition precedent for imposition of an

award of punitive damages. Id. at 207, citing Reading Radio, Inc. v.

Fink, 833 A.2d 199, 215 (Pa.Super. 2003), appeal denied, 847 A.2d 1287

(Pa. 2004) (“evidence of wealth is not mandatory to establish a claim for

punitive damages”). This is a far cry from holding, as appellants suggest,

that a jury is not permitted to consider a defendant’s wealth until they first

determine that punitive damages should be imposed.

Furthermore, appellants cannot show how they were prejudiced where

the jury’s punitive damages award was less than the compensatory damages

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J. A11010/15

award. The amount of punitive damages bore a reasonable relationship to

the award of compensatory damages (less than a 1:1 ratio), and there is no

indication that the jury was unfairly biased against appellants because of

their substantial wealth.

Appellants also claim that the trial court should have given a curative

instruction, instructing the jury that they were not to consider evidence of

appellants’ wealth when determining whether appellants were liable for

punitive damages. (Appellants’ brief at 50.) Appellants argue that the

failure to give the requested instruction “compounded the error in failing to

bifurcate the issue of wealth from the issue of liability for punitive

damages. . . .” (Id. at 51.) This issue fails for the same reasons. Again,

appellants cite no authority for the proposition that the trial court was

required to bifurcate the punitive damages phase of trial in this manner, or

that such a “curative instruction” was warranted.

Appellants also argue that the trial court erred in refusing to give an

instruction pursuant to Pa.SSJI (Civ.) § 8.30, that punitive damages cannot

be awarded in a wrongful death action. (Appellants’ brief at 52.) Appellants

cite Harvey v. Hassinger, 461 A.2d 814, 815-816 (Pa.Super. 1983), in

which this court remarked,

The question as to whether punitive damages are
permitted in a wrongful death action is set to rest in
Pennsylvania Railroad Company v. Henderson,
51 Pa. 315, 323 (1865) wherein it is stated that
damages recoverable under Lord Campbell’s Act, the
forerunner of Pennsylvania’s Wrongful Death Act do

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J. A11010/15

“not include the loss or suffering of the deceased,
nor does it include the mental suffering of the
survivor occasioned by such death, and it excludes
all questions of exemplary damages.” (Emphasis
added).

The Harvey court emphasized that the Wrongful Death Act permits

only pecuniary losses which the plaintiffs have suffered from the death of

their relative. Id. Frankly, the continued viability of this aspect of Harvey

and Section 8.30 of the Suggested Standard Jury Instructions can fairly be

called into question given the holding in Hatwood v. HUP, supra, 55 A.3d

at 1236 (finding trial court did not err in instructing the jury in a wrongful

death action that, inter alia, “In addition to the monetary contributions that

the decedent would have contributed to the family support, the plaintiffs are

entitled to be [] awarded a sum that will fairly and adequately compensate

the family for the monetary value of the companionship, society, and

comfort that [the decedent] would have given to his family had he

lived. . . .”). At any rate, this was a Wrongful Death and Survival Action,

and there is no dispute that punitive damages may be awarded under the

Survival Act. Furthermore, appellants cannot demonstrate prejudice where

there is no indication the jury’s verdict on punitive damages was influenced

by bias or hostility against large corporations such as appellants. The jury’s

punitive damages award was amply supported by the evidence and bore a

reasonable relationship to compensatory damages. There is no merit here.

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Finally, appellants contend that the trial court erred in awarding delay

damages where the plaintiff’s Rule 238 motion was untimely filed.

Pennsylvania Rule of Civil Procedure 238 provides, in relevant part, as

follows:

(a)(1) At the request of the plaintiff in a civil action
seeking monetary relief for bodily injury,
death or property damage, damages for
delay shall be added to the amount of
compensatory damages awarded against
each defendant or additional defendant found
to be liable to the plaintiff in the verdict of a
jury, in the decision of the court in a nonjury
trial or in the award of arbitrators appointed
under section 7361 of the Judicial Code,
42 Pa.C.S. § 7361, and shall become part of
the verdict, decision or award.

(c) Not later than ten days after the verdict or
notice of the decision, the plaintiff may file a
written motion requesting damages for delay
and setting forth the computation.

Pa.R.C.P., Rule 238(a)(1), (c), 42 Pa.C.S.A.

Instantly, the jury reached a verdict on compensatory damages on

March 13, 2013, and a verdict on punitive damages on March 21, 2013. As

the trial court states, per appellants’ request for bifurcation, the trial did not

end until March 21, 2013, when the jury reached a punitive damage award.

(Trial court opinion, 6/27/14 at 19.) The jury verdict for the plaintiff was not

entered on the trial court docket until March 22, 2013. The plaintiff filed the

motion for delay damages on March 28, 2013, within ten days of the

docketing of the jury’s verdict. Therefore, it was timely under Rule 238(c).

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Appellants argue that the Rule 238 motion had to be filed within ten

days after the jury’s March 13, 2013 compensatory damages award because

delay damages may not be awarded on punitive damages. See Colodonato

v. Consolidated Rail Corp., 470 A.2d 475 (Pa. 1983) (punitive damages

must be excluded from the computation of delay damages). Appellants have

cited no binding legal authority for such a proposition, nor is this court aware

of any. In their reply brief, appellants note that in a memorandum decision

of this court, the plaintiff filed his motion for delay damages within ten days

after the compensatory damages award, and before the punitive phase had

begun. (Appellants’ reply brief at 27-28.)6 This appears to have been

nothing more than part of the procedural history of the case and played no

part in the decision. Here, the plaintiff filed his Rule 238 motion for delay

damages within ten days after entry of the verdict as required by

Rule 238(c).

Finally, appellants complain that Rule 238 delay damages do not apply

to wrongful death recoveries. The trial court states that it awarded delay

damages in accord with appellants’ own calculations; and furthermore, that

there is no exclusion of delay damages for wrongful death actions under

6
Blango v. Jeanes Hospital, Inc., 87 A.3d 871 (Pa.Super. 2013)
(unpublished memorandum). Appellee also cites to Blango in his brief on
appeal. (Appellee’s brief at 31.) We caution the parties that, pursuant to
this court’s internal operating procedures, “An unpublished memorandum
decision shall not be relied upon or cited by a Court or a party in any other
action or proceeding,” subject to certain limited exceptions not relevant
here. Pa.Super.Ct. IOP 65.37(A).

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J. A11010/15

Rule 238. (Trial court opinion, 6/27/14 at 20.) Appellants cite two cases in

support, both of which are inapposite. (Appellants’ brief at 55 n.10.) See

Goldberg ex rel. Goldberg v. Isdaner, 780 A.2d 654 (Pa.Super. 2001),

appeal denied, 820 A.2d 705 (Pa. 2003) (Rule 238 does not provide for

delay damages to be awarded where the underlying claim is for

reimbursement of medical expenses); and Anchorstar v. Mack Trucks,

Inc., 620 A.2d 1120 (Pa. 1993) (no delay damages for loss of consortium

claim). Cf. Shay v. Flight C Helicopter Services, Inc., 822 A.2d 1

(Pa.Super. 2003) (affirming order imposing delay damages in wrongful

death action). The trial court did not err in awarding delay damages of

$107,805.92 for the plaintiff.

Judgments affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/23/2015

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