J-A10027-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
KIMBERLY L. FOLINO, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
NATHANIEL KAULE AND MICHAEL
KAULE,
Appellee No. 893 WDA 2015
Appeal from the Judgment Entered May 20, 2015
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD-12-014163
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PANELLA, J.
MEMORANDUM BY BENDER, P.J.E.: FILED JULY 25, 2016
Appellant, Kimberly L. Folino, appeals from the May 20, 2015
judgment, which was entered in conjunction with the denial of her motion
for post-trial relief seeking a new trial on the issue of damages. After careful
review, we affirm.
The trial court adopted Appellant’s summary of the facts and
procedural history of this case in its Pa.R.A.P. 1925(a) opinion, as follows:
[Appellant] filed the instant action against [Appellees], Nathaniel
Kaule and Michael Kaule, alleging that Nathaniel negligently
operated his father Michael’s plumbing truck on August 1, 2011
when he rear-ended [Appellant], totaling her new SUV.
Although not formally ‘admitted,’ liability was not seriously
contested inasmuch as Nathaniel testified [that] he failed to
bring the plumbing truck to a stop before rear-ending and
totaling [Appellant’s] vehicle. As such, the primary jury issue
was damages, both economic and non-economic.
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[Appellant] claimed various bodily injuries, the most significant
of which were a herniated disc in her low back that had not
resolved as of the time of trial, and a concussion that had
resolved.
This matter was heard before a jury from February 3 through
February 5, 2015. During the course of the trial, [Appellant]
called two expert medical witnesses.
[Appellees] called no medical witnesses and, in fact, had not
even requested or conducted an ‘Independent Medical
Examination’ as permitted under Pa.R.C.P. [] 4010.
As such, the expert medical testimony regarding the ca[us]al
relationship between the collision and [Appellant’s] injuries was
undisputed and unrebutted.
The medical evidence, stated to a reasonable degree of medical
certainty, was that as the result of the accident [Appellant]
suffered a disc herniation at L3-4. Notwithstanding various
treatments including 2 epidural injections, [Appellant]
experienced setbacks because of work related activities,
especially heavy lifting, and that “for sure” [Appellant’s] injuries
affected her ability to do her job, as the heavy lifting component
of her job would typically cause a flare up.
Dr. Reidy also testified that epidural injections do not fix
herniated discs, that [Appellant’s] low back injury was “chronic”
and that in February 2013[,] he referred [Appellant] for pain
management for the chronic disc injury, but that [Appellant] was
unable to avail herself of said treatment because she could not
afford [it].
Consistent therewith, [Appellant] testified that she was
financially unable to start pain management treatments because
the physician required an advance payment of $350.00 for the
first visit.
At the close of testimony and following the instruction, the jury
was given a verdict slip. This verdict slip contained 3 questions.
The first question was, “Were the [Appellees] negligent?” The
second question was, “Was the negligence of the [Appellees] a
factual cause of any harm to [Appellant]?”
The third question was, “Itemize the amount of damages, if any,
sustained by [Appellant] as a result of this accident,” including
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four specific damage sub-categories: (a) future medical
expenses, (b) past lost earnings, (c) future lost earning capacity
and (d) past, present, and future pain and suffering,
embarrassment and humiliation, and loss of enjoyment of life.
The jury answered ‘yes’ to the first two questions, and awarded
damages of $350 for future medical expenses, $4,000 for past
lost earnings, $0.00 for future lost earning capacity and $3,000
for past, present, and future pain and suffering, embarrassment
and humiliation, and loss of enjoyment of life.
Following the verdict, [Appellant] filed a Motion for Post-Trial
Relief alleging that the verdict was inadequate as a matter of
law, and that the Court should grant a new trial on the issues of
damages alone.
Trial Court Opinion (TCO), 9/9/15, at 1-2 (quoting Appellant’s Brief in
Support of Motion for Post-Trial Relief at 1-3) (internal citations to the record
omitted). The trial court denied Appellant’s motion for post-trial relief by
order dated May 20, 2015, and judgment was entered in favor of Appellant
in the amount of $7,350.00. Appellant proceeded with the timely filing of a
Notice of Appeal on June 5, 2015.
Appellant now presents the following sole issue for our review:
I. Whether [Appellant] is entitled to a new trial on damages
where the jury, having accepted [Appellant’s]
uncontroverted expert medical testimony that [she] had
sustained a herniated disc that had not healed, was
chronic with continuing pain, necessitating future medical
treatment, and with increased risk for future low back
problems, (a) awarded a nominal amount of $350 for
future medical treatment and (b) awarded $3,000 for past
and future non-economic damages that are clearly against
the weight of the evidence.
Appellant’s Brief at v.
The standard for determining whether a verdict is inadequate so as to
merit a new trial is well-settled:
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We have held that the decision whether to grant a new trial on
weight of the evidence grounds rests within the discretion of the
trial court and that decision will not be disturbed absent an
abuse of discretion. An abuse of discretion occurs when the trial
court has rendered a judgment that is manifestly unreasonable,
arbitrary, or capricious, has failed to apply the law, or was
motivated by partiality, prejudice, bias or ill will. Furthermore, a
new trial based upon a weight of the evidence claim should be
granted to a party:
[O]nly where the verdict is so contrary to the evidence as
to shock one’s sense of justice and not where the evidence
is conflicting or where the trial judge would have reached a
different conclusion on the same facts.
We have held that it is the duty of the trial court to control
the amount of the verdict; it is in possession of all the
facts as well as the atmosphere of the case, which will
enable it to do more evenhanded justice between the
parties than can an appellate court. Thus, a jury verdict is
set aside for inadequacy when it appears to have been the
product of 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. Hence, a reversal on
grounds of inadequacy of the verdict is appropriate only
where the injustice of the verdict stands forth like a
beacon.
Womack v. Crowley, 877 A.2d 1279, 1282-1283 (Pa. Super. 2005)
(quoting Davis v. Mullen, 773 A.2d 764, 766 (Pa. 2001)). Moreover,
we recognize that our scope of review is limited, especially when
the trial court has refused a new trial on the ground of
inadequacy:
Where the trial court grants a new trial on the ground of
inadequacy the appellate courts will not interfere in the
absence of a gross abuse of discretion. When the trial
court refuses relief against an allegedly inadequate verdict
the appellate court will exercise even greater caution in
reviewing its action.
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Beswick v. Maguire, 748 A.2d 701, 702 (Pa. Super. 2000) (quoting
Paustenbaugh v. Ward Baking Co., 97 A.2d 816, 818 (Pa. 1953))
(emphasis in Paustenbaugh).
Here, Appellant avers that the trial court erred in not allowing her a
new trial on the issue of damages, because the verdict was so inadequate
that it should have shocked the trial court’s sense of justice. Appellant’s
Brief at 7. More specifically, Appellant states that the award of $350.00 for
future medical expenses was “entirely unrealistic and totally inadequate for
any reasonable course of treatment by pain management specialists….” Id.
at 6. Appellant further avers that the award of $3,000.00 for past, present,
and future non-economic damages “was totally inadequate given Dr. Reidy’s
uncontroverted opinions that [Appellant’s] herniated disc injury had required
past medical treatment including two epidural injections, was still
symptomatic, was chronic, had not yet healed, and required future medical
treatment, and placed her at risk for future low back problems (not to
mention [Appellant’s] cerebral concussion, ongoing post-concussion
symptoms, chipped teeth, and other lesser injuries).” Id. at 6-7.
In support of her argument, Appellant asserts that this case is closely
analogous to Neison v. Hines, 653 A.2d 634 (Pa. 1995). In Neison,
uncontroverted evidence established that the plaintiff was involved in “a
violent automobile accident” caused by the defendant, and that the
defendant’s negligence was the factual cause of the plaintiff’s injuries, which
included a cervical sprain, neck sprain, and shoulder blade sprain. The jury
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awarded no damages for pain and suffering, and the trial court granted a
new trial on the grounds that the award of no damages “shocked its
conscience.” Id. at 636. After the trial court’s decision was reversed by this
Court, our Supreme Court granted allocator and opined:
In light of this uncontroverted evidence, we cannot find that the
trial court abused its discretion in ordering a new trial. Common
sense dictates that a collision of this severity caused by the
negligence of another would lead to severe and painful injuries,
although the evidence offered at trial left room for disagreement
as to whether the pain resulting from Ms. Neison’s injuries was
as severe as she claimed or whether the accident was in fact
causative. However, the jury’s decision to find for [the
defendant] and award no damages for pain and suffering bears
no rational relationship to the evidence produced at trial. The
jury’s decision to disbelieve all the evidence presented during
the trial defies common sense and is indeed shocking.
Id. at 638.
Appellant’s heavy reliance on the Neison decision is misguided. As
the trial court stated: “Although [Appellant’s] brief points out some
similarities between her case and the Neison case, it must be remembered
that [Appellant] was awarded $3,000 in non-economic damages alone,
whereas Ms. Neison was awarded nothing.” TCO at 5.
Moreover, “[i]n order to determine if the verdict is inadequate we must
review the entire record to determine whether an injustice has occurred.”
Beswick, 748 A.2d at 702. The record reveals that during trial, Appellant
produced evidence indicating that prior to the accident, she earned average
weekly wages of $1,052.52. N.T. Jury Trial, 2/3/15, at 36. Because of her
injuries, Appellant stated that she was forced to miss three weeks of work
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and then returned to work at a reduced rate. Id. Doctors informed
Appellant that she was not a surgical candidate but, rather, that she should
treat her back pain with physical therapy and pain medicine, or lumbar
injections. Id. at 50-51. After receiving two lumbar injections, Dr. Reidy
suggested that Appellant see a pain management doctor; however,
Appellant testified that she did not go because she could not afford the $350
payment required by the pain management doctor. Id. at 30. Instead,
Appellant has been treating her pain as needed with Aleve, Ibuprofen, and a
heating pad. Id. at 31. The jury’s award compensated Appellant for past
lost earnings in the amount of $4,000, for pain and suffering in the amount
of $3,000, and for future medical expenses in the amount of $350. We
deem this reward to be reasonable in relation to the proven damages.
Moreover, the record reveals that in addition to her back-injuries
sustained during the accident, Appellant was diagnosed with pre-existing
degenerative disc disease,1 and was treated by a homeopathic chiropractor
prior to the accident.2 A jury “is free to believe all, some, or none of the
testimony presented by a witness.” Neison, 653 A.2d at 637. “Our cases
have long recognized that a jury may properly compromise claimed damages
on the basis of preexisting conditions or other causes which might contribute
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1
N.T. Deposition of Edward Reidy, M.D., 1/21/15, at 51-52, 54.
2
N.T. Jury Trial at 60.
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to an injury or disability so as to affect the award of damages.” Beswick,
748 A.2d at 705.
Finally, we note that we have previously set forth the following
considerations to determine whether a verdict should be set aside as
inadequate:
(1) the verdict awarded in case indicates passion prejudice,
partiality, or corruption on the part of the jury, or
(2) the verdict reveals that the jury either disregarded or
misapprehended the instructions by the court, or
(3) the verdict awarded bears no reasonable relation to the
losses sustained by the plaintiff, or
(4) the verdict evidenced a failure of justice to the plaintiff, or
(5) the verdict is so inadequate that it should not be permitted
to stand.
Nudelman v. Gilbride, 647 A.2d 233, 238 (Pa. Super. 1994). The parties
have conceded that the first two considerations are not relevant in this
matter. Based on our thorough review of the record, we conclude that the
award of $7,350 adequately reflects the damages proven by Appellant. The
verdict does not evidence a failure of justice to Appellant, nor is the verdict
so inadequate that it should not be permitted to stand. Moreover, despite
the trial court’s indication that it “would have awarded more for pain and
suffering had the case proceeded non-jury,” TCO at 5, this alone is not
enough reason to grant a new trial. “Generally, a verdict will not be
disturbed merely on account of the smallness of the damages awarded or
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because the reviewing court would have awarded more.” Beswick, 748
A.2d 702.
We have carefully considered all of the evidence and are not shocked
by the jury’s verdict, nor are we shocked by the trial court’s refusal to grant
a new trial. Therefore, we affirm the court’s denial of Appellant’s motion for
post-trial relief.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/25/2016
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Folino, K. v. Kaule, N.
Combined Opinion