J-E04002-13
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MARGO POLETT AND DANIEL POLETT, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellees
v.
PUBLIC COMMUNICATIONS, INC.,
ZIMMER, INC., ZIMMER USA, INC., AND
ZIMMER HOLDINGS, INC.,
Appellants No. 1865 EDA 2011
Appeal from the Judgment Entered June 10, 2011
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): August Term, 2008 No. 02637
BEFORE: BENDER, P.J., FORD ELLIOTT, P.J.E., BOWES, GANTMAN,
DONOHUE, SHOGAN, LAZARUS, OLSON, AND WECHT, JJ.
CONCURRING MEMORANDUM BY BOWES, J.: FILED JUNE 06, 2016
I concur with the learned majority, but write separately to add my
observations about remittitur in general and in this case specifically.
In Novak v. Supermarkets General Corp., No. 5188, 1994 WL
1251183, at *1 (Pa.Com.Pl. Nov. 18, 1994), former Superior Court Judge
Richard Klein, then Judge in the Philadelphia Court of Common Pleas, opined
that “[a]ssessing damages for pain and suffering is a most difficult
proposition.” He lamented that such an arduous task was left to jurors “with
almost no guidance on how to translate units of pain into dollars and cents.”
Id. Judge Klein found it of the utmost importance for the trial court, with its
J-E04002-13
years of experience and familiarity with past verdicts and settlement values,
to ensure that justice be rendered through verdicts within the bounds of
reasonableness.
In Novak, Judge Klein utilized the six factors set forth in Kemp v.
Philadelphia Transportation Co., 361 A.2d 362 (Pa.Super. 1976) (“Kemp
factors”), in evaluating whether the verdict was excessive and should be
remitted: (1) the severity of the injury; (2) whether plaintiff’s injury is
manifested by objective physical evidence or whether it is only revealed by
the subjective testimony of the plaintiff; (3) whether the injury will affect the
plaintiff 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. Id. at 362-64.
Employing those factors, Judge Klein determined that the Novak
verdict exceeded the bounds of reasonableness. While struggling to arrive
at a more reasonable numerical value for the verdict, even given the
guidance of the Kemp factors, Judge Klein conceded, “[a]ll that I can do is
give my best judgment as an experienced civil trial judge.” Novak, WL
1251183, at *3. However, Judge Klein believed there had to be a better
way to fix damages for non-economic loss. Indeed, in Novak he opined,
“[t]here is no question in my mind that we will not be fixing damages for
intangibles this way in 25 years . . . .” Id.
-2-
J-E04002-13
Judge Klein recognized the inherent difficulty arising from the
subjective determinations involved in placing a dollar value on another’s
damages, especially non-economic losses. Our Supreme Court expressed
similar frustration in Haines v. Raven Arms, 640 A.2d 367, 369 (Pa.
1994), observing that, “it is asking a great deal of a lay jury to fix a figure
[in a case like this] with no experience and precious little guidance.” While
the Supreme Court endorsed the trial judge’s “long background from which
to draw when determining what is excessive and what is not excessive,” id.
at 370, it called for such experience to be supplemented with consistent and
predictable review at the appellate level.
We are charged on appeal with deciding “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 the jury was influenced by partiality, prejudice, mistake, or
corruption.’” Id. at 369. As the Haines Court recognized, it is a daunting
task when the trial court “merely assigns conclusory statements – ‘interests
of justice,’ ‘shocks the court’s conscience,’ and ‘substantial justice.’” Id.
(quoting Scaife Co. v. Rockwell-Standard Corp., 285 A.2d 451, 456-57
(Pa. 1971)). The Court sought to discourage such practice in favor of trial
courts providing specific reasons in support of their conclusions regarding
remittitur “in order that we may have the opportunity of intelligently
determining if an abuse of discretion occurred.” Id.
-3-
J-E04002-13
Twenty-two years after Novak and Haines, I worry that we have yet
to provide sufficient guidance for trial courts facing remittitur decisions.
Sometimes we cite the Kemp factors; other times we consider those factors
without actually acknowledging their origin. See e.g. Dubose v. Quinlan,
125 A.3d 1231, 1244-45 (Pa.Super. 2015) (determining that $1,000,000
Survival Act jury verdict was not excessive without citing Kemp factors, but
considering the severity of the injury and the permanent nature of plaintiff’s
condition); Gurley v. Janssen Pharms., Inc., 113 A.3d 283, 295
(Pa.Super. 2015) (citing Kemp factors, and deferring to trial court’s findings
which considered evidence of the severity and permanent nature of the
injuries); Graham v. Campo, 990 A.2d 9 (Pa.Super. 2010) (utilizing
evidence of lost wages, severity of injuries, and post-injury employment
without citing Kemp factors); Whitaker v. Frankford Hosp. of City of
Philadelphia, 984 A.2d 512 (Pa.Super. 2009) (utilizing evidence of the
severity of injuries and the permanent nature of the injury without citing
Kemp factors); Paliometros v. Loyola, 932 A.2d 128 (Pa.Super. 2007)
(citing Kemp factors and analyzing verdict based on the four factors it found
relevant); Potochnick v. Perry, 861 A.2d 277 (Pa.Super. 2004) (utilizing
evidence that plaintiff was permanently unemployable and medical
testimony relevant to severity of injuries without citing Kemp factors).
The Kemp factors provide an adequate starting point for a trial court
facing a remittitur determination. The severity and permanency of the
-4-
J-E04002-13
injuries, whether they are objectively manifested, and whether a plaintiff can
resume his or her employment, are very helpful in assessing the
reasonableness of a verdict.1 The majority also references the factors set
forth in Pa.R.C.P. 223.3, which we instruct the jury to consider in arriving at
an award for non-economic loss. It stops short, however, of suggesting that
trial courts weigh these same factors in making their remittitur
determinations. The factors include: the age of the plaintiff; 2 the extent to
which the injuries affect the ability of the plaintiff to perform the basic
activities of daily living and other activities in which the plaintiff previously
engaged; the duration and nature of medical treatment; the duration and
extent of the physical pain and mental anguish that the plaintiff has
experienced in the past and will experience in the future; the health and
physical condition of the plaintiff prior to the injuries; and in the case of
____________________________________________
1
The amount of damages requested in a trespass complaint for personal
injuries usually has little bearing on the value of the case, but merely
determines whether the case is assigned to arbitration or the general docket.
See Pa.R.C.P. 1021(c). However, in Ferrer v. Trs. of the Univ. of Pa.,
825 A.2d 591, 611-612 (Pa. 2002), a contract case, our Supreme Court
remitted a damage award of $5,000,000 to $2,900,000, which was the
maximum value of the loss testified to by the plaintiff’s expert.
2
Commonly, a plaintiff’s age is used in calculating life-expectancy where the
jury finds the plaintiff’s injuries will continue into the future. See Pa.S.S.J.I.
(Civ) 7.240.
-5-
J-E04002-13
disfigurement, the nature of the disfigurement and the consequences for the
plaintiff. Pa.S.S.J.I. (Civ.) 7.130 (specifically tracking Pa.R.C.P. 223.3). 3
I am in favor of trial courts starting with the Kemp factors, and also
utilizing the Rule 223.3 parameters, to evaluate the reasonableness of a
verdict.4 The fact that the trial court employed this dual approach facilitated
our review. However, identifying relevant factors is only the first step. How
a trial court should analyze the factors is just as important. I believe this is
where the trial court went awry in this case, due in large part to our failure
to provide specific guidance in that regard.
In the instant case, the trial court purported to apply the Kemp
factors. It described Mrs. Polett’s injuries, discussed her ailments, her
deteriorating condition, and the numerous surgical interventions required to
manage her symptoms. Trial Court Memorandum, 6/10/11, at 52-55. It
noted that her functional limitations were permanent as she was not
____________________________________________
3
Some trial courts have intuitively looked to these additional factors in
making their remittitur decisions. See e.g., Hyrcza v. West Penn
Allegheny Health Sys., 978 A.2d 961 (Pa.Super. 2009) (where trial court
looked to the Pa.R.C.P. 223.3 factors for non-economic damages in
assessing whether the verdict shocked the conscience); see also
Vogelsberger v. Magee-Womens Hosp. of UPMC Health Sys., 903 A.2d
540, 557 (Pa.Super. 2006) (affirming trial court’s grant of remittitur that
was based on consideration of Pa.R.C.P. 223.3 factors).
4
Of course, there will always be some measure of subjectivity in
determining the value of another’s pain and suffering, or embarrassment
and humiliation, but that is no bar to developing a predictable and consistent
framework from which we can appraise those circumstances.
-6-
J-E04002-13
expected ever to be able to fully straighten her leg. Id. at 54. Yet, with
regard to whether she was able to return to gainful employment, the court
simply observed that Mrs. Polett did not work outside the home in 2006,
seemingly rejecting the relevancy of that factor. Id. at 55. It similarly
dismissed the absence of out-of–pocket expenses such as medical bills as
insignificant to its analysis.
Rather than dismiss Kemp factors that are not supported by the
evidence as irrelevant, I believe trial courts should view the absence of such
evidence as significant in assessing the reasonableness of the verdict. For
instance, any analysis of whether the verdict was excessive herein should
include an acknowledgement that Mrs. Polett is not entitled to compensation
for the loss of her ability to work outside the home or medical expenses,
very important elements of compensatory damages.
While the trial court herein did not expressly reference Pa.R.C.P. 223.3
elements of non-economic damages, it did consider several of those
elements. For instance, the court noted that the jury was shown
photographs of Mrs. Polett’s permanent scars, evidence probative of her
disfigurement damages.5 Id. at 54. It summarized what the jury heard
____________________________________________
5
Mrs. Polett had two previous left knee replacement surgeries as well as a
total right knee replacement surgery, which presumably left scars, prior to
the tortious conduct which is the subject of this case. N.T. Trial Vol. I,
11/15/10, at 114, 116; Vol. II, 11/15/10 at 60.
-7-
J-E04002-13
from the Plaintiff about her pain and the medical experts’ account of her
surgical ordeals and permanent functional limitations. In addition, the trial
court noted that the jury viewed videos of Mrs. Polett prior to her injuries.
The court drew extensively from the record to demonstrate Mrs. Polett’s
inability to resume her normal daily activities such as driving, and the need
for assistance in dressing herself and getting into bed. She no longer could
enjoy activities such as skiing, swimming, bike riding, or shopping with her
daughter, and due to her condition, had to forego hosting an annual event
for young people at their shore home.
However, in its weighing of these factors, the trial court did not
consider the activities that Mrs. Polett remained capable of performing.
Following her injury, she traveled domestically to the Poconos, New York
City, Chicago, Utah, and Arizona. N.T. Trial Vol. I, 11/17/10, at 130, 135.
She also traveled internationally to Sweden, Finland, Russia, Vietnam, and
the Caribbean. N.T. Trial Vol. II, 11/17/10 at 49; N.T. Trial Vol. I, 11/17/10,
at 105. Mrs. Polett maintained her social and civic obligations, i.e., she
attended meetings of the Board of Rosemont College, served as the co-
chairperson of the fund-raising drive at St. Ignatius Nursing Home, and
continued to actively serve on the committee for the Cardinal Christmas for
Children program. N.T. Trial Vol. I, 11/17/10,at 113, 108.
The trial court also ignored her pre-existing condition. There was
uncontroverted evidence that Mrs. Polett suffered from rheumatoid arthritis
-8-
J-E04002-13
and had undergone numerous surgeries and ongoing medical treatment
related to that chronic disease. Furthermore, it did not assess the impact of
her age on her future damages. Mrs. Polett was 67 years old at the time of
her injury and 71 years of age at the time of trial. Evidence was presented
showing her life expectancy in 2010 was 86.1 years. N.T. Trial Vol. I,
11/18/10, at 84. The trial court correctly informed the jury that Mrs. Polett’s
underlying rheumatoid arthritis was not to be considered in determining
Appellant’s liability, see id. at 79, but that it was relevant to the award of
non-economic damages. Id. at 83. Mrs. Polett’s underlying condition and
life expectancy weigh heavily against upholding this extremely large verdict.
Instead of performing an even-handed assessment of the
uncontroverted damages evidence, the trial court recapped only the
evidence that would tend to support the jury’s award of compensatory
damages, and did so in a light most favorable to Mrs. Polett. In essence, the
trial court engaged in a sufficiency analysis, and concluded that no remittitur
was due as “the jury’s decision was supported by all of the evidence.” Trial
Court Memorandum, 6/10/11, at 55-56. However, the issue in remittitur is
not merely whether the evidence is sufficient to support the verdict, but
whether the award is reasonable based on the proven damages. A
-9-
J-E04002-13
reasonableness determination requires an even-handed and balanced
assessment of the evidence accepted by the jury.6
In justifying its denial of remittitur, the trial court relies upon
McManamon v. Washko, 906 A.2d 1259 (Pa.Super. 2006) (upholding a
$20 million verdict), and its discussion of non-economic damages. However,
in that case, a vehicle struck the plaintiff, who was working as a flag person
for a construction company in a posted work zone. Id. at 1264. She
sustained a serious brain injury resulting in permanent cognitive deficits as
well as physical injuries, including multiple broken bones. Id. At the time of
her injury, the plaintiff was a single, forty-one-year-old mother of three. Id.
The jury verdict included more than $7.7 million for past and future medical
____________________________________________
6
In our recent decision in Dubose v. Quinlan, 125 A.3d 1231 (Pa.Super.
2015), the trial court correctly viewed the controverted evidence of pain
and suffering in the light most favorable to the plaintiff as the verdict winner
in making its remittitur determination. The appellants argued that the $1
million verdict in a survival action was “shockingly excessive in light of the
decedent's pre-existing injuries and lack of brain function.” Id. at 1244.
They also contended that the decedent was in a vegetative state and
suggested that she was incapable of feeling pain. The trial court was quick
to point out that, while the decedent had pre-existing injuries when she
arrived at the nursing home, she did not have the festering bedsores that
eventually caused her death. Furthermore, the trial court cited the plaintiff’s
testimony that the decedent was able to non-verbally interact with him by
moving her hands and watching television, and characterized her mental
awareness as an issue of credibility that the jury had decided in the
plaintiff’s favor. It also rejected the appellants’ premise that the decedent
was physiologically incapable of feeling pain, noting that she was placed on a
pain management program.
- 10 -
J-E04002-13
expenses and $400,000 for past and future lost earnings; pain, suffering,
and disfigurement comprised $11 million of the total verdict.
The injuries in McManamon were catastrophic. A young healthy
plaintiff was rendered unable to work to support her children and required
assistance to perform the basic activities of daily living. Id. The severity of
the injuries, the age of the victim, the need for daily assistance, the wage
loss and medical bills culminated in a significant award that “fairly
represent[ed] the totality of her injuries.” Id. at 1288.
My colleagues conclude, and I agree, that the $26.6 million jury award
herein “was excessive – if not punitive - and clearly beyond what the
evidence warrants.” Majority Memorandum at 6. I submit that, in the
absence of catastrophic injuries, cognitive deficits, amputation, significant
deformities, or death, this $26.6 million compensatory damage award,
including the $1 million award for loss of consortium, is startling and
excessive. The Product Liability Advisory Council (“PLAC”), in its amicus
curiae brief, notes that in 2010, Mrs. Polett’s jury verdict represented the
single largest compensatory damages award in Philadelphia, the eighth
largest total verdict awarded in Pennsylvania, and the seventy-fifth largest
total verdict awarded in the country. Brief of amicus curiae Product Liability
- 11 -
J-E04002-13
Advisory Council, at 2.7 Her verdict far exceeds other verdicts in
Philadelphia County in 2010, despite the fact that her injuries were less
severe, she had pre-existing medical conditions, no economic damages, and
was older than the other plaintiffs at the time of her injury.8
In conclusion, I encourage trial courts to apply both the Kemp factors
and the Rule 223.3 elements of non-economic damages in their remittitur
determinations, and to set forth their analysis of these factors to assist us in
our review. Moreover, in applying those factors, the trial court should
perform a balanced assessment of the proven damages, giving due weight
____________________________________________
7
See e.g., Rice v. 2701 Red Lion Associates, No. 2328, 2007 WL
3052308 (Pa.Com.Pl. July 5, 2007), reversed on other grounds, 981 A.2d
331 [767 EDA 2007] (Pa.Super. 2009) (unpublished memorandum), verdict
aff’d, 2010 WL 4814409 (Pa.Com.Pl. 2010), where the plaintiff was awarded
$12.4 million for injuries sustained while operating a forklift. In refusing to
grant remittitur, the court noted the plaintiff introduced evidence of $6.4
million in economic damages, was thirty-seven years old at the time of his
injury, was rendered partially paralyzed, would require permanent personal
assistance, and was totally unemployable. See also Van Tassel v. Alfa
Laval Inc., No. 001221-2008, 2010 WL 5626857 (Pa.Com.Pl. March 23,
2010) (awarding $12 million to the estate of an individual who died of
mesothelioma at 64 years of age after suffering from lung collapse, pleural
effusion, and rendered oxygen-tank dependent); Schroeder v. Anchor
Darling Valve Co., No. 00675, 2010 WL 5856065 *3 (Pa.Com.Pl. Sept. 17,
2010) (awarding $10 million to the estate of an individual who died of
mesothelioma at 56 years of age, and had suffered the “excruciating and
debilitating effects of the illness for at least four years before he died”).
8
That these damages were decreased by 30% due to Mrs. Polett’s
comparative negligence, and that the jury may have increased her award in
expectation of this reduction, does not alter my conclusion that this verdict,
and Mr. Polett’s loss of consortium award, exceeded the bounds of
reasonableness, and should be remitted.
- 12 -
J-E04002-13
and consideration to the uncontradicted evidence that tends to mitigate
damages. This approach permits the trial court, and in turn, this Court, to
ascertain whether the amount of the verdict bears a rational relationship to
the loss suffered.
I join fully in the majority’s decision to remand for remittitur in this
matter.
Gantman, J. joins this Concurring Memorandum.
- 13 -