J-A28008-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JAMES MCGEE IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
ST. LUKE’S HEALTH NETWORK D/B/A ST.
LUKE’S HOSPITAL & HEALTH NETWORK,
AND JOHN P. BRUNO, DO, MBA.
Appellee No. 425 EDA 2016
Appeal from the Judgment Entered February 2, 2016
In the Court of Common Pleas of Lehigh County
Civil Division at No(s): 2012-C-5192
BEFORE: PANELLA, J., SHOGAN, J., and PLATT, J.*
MEMORANDUM BY PANELLA, J. FILED MARCH 07, 2017
Appellant, James McGee, appeals from the judgment entered after the
trial court denied his post-trial motion for a new trial on damages and
granted appellees’, St. Luke’s Health Network (“St. Luke’s” or “the hospital”)
and John P. Bruno, D.O., M.B.A., post-trial motion for remittitur. McGee
contends that the jury’s verdict for his breach of contract claims bore no
relation to the evidence at trial, and he therefore is entitled to a new trial on
damages. In the alternative, he argues the trial court committed an error of
law by ignoring an alleged compromise verdict reached by the jury and
reducing the verdict by $51,998. After careful review, we affirm.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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Dr. McGee was employed by St. Luke’s as an attending physician
when, in September 2005, the hospital suspended him. St. Luke’s imposed
the suspension pending an investigation into allegations of conduct that
violated Dr. McGee’s employment agreement. St. Luke’s subsequently
terminated Dr. McGee’s employment.
Thereafter, at Dr. McGee’s request, Dr. Bruno, St. Luke’s Vice
President for Medical Affairs, sent a reference letter to a third party hospital
from which Dr. McGee was seeking employment. Dr. Bruno referenced the
investigation, and the allegations that instigated it. The allegations conveyed
by Dr. Bruno’s letter were that: (1) Dr. McGee failed to provide a screening
exam for a patient that had presented at St. Luke’s emergency room (“ER”);
(2) Dr. McGee had dated a patient; and (3) Dr. McGee had written a
prescription for his personal use in the name of another individual. Dr. Bruno
asserted that the results of the investigation led the hosptial to terminate Dr.
McGee’s employment.
In 2008, Dr. McGee instituted an action against St. Luke’s and Dr.
Bruno, which ultimately asserted that the defendants had defamed him and
interfered with his current and prospective business relations. In 2009, the
parties presented the terms of a settlement agreement on the record. The
trial court approved and adopted this agreement as an order of court.
Attached to the court order was a form letter which St. Luke’s was
directed to use in all future communications regarding Dr. McGee’s
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employment by the hospital. The form letter stated that “St. Luke’s Hospital
terminated its employment agreement with Dr. McGee effective September
30, 2005 for what it considered the exercise of poor judgment.”
Furthermore, the letter provided two bases for St. Luke’s conclusion that Dr.
McGee had exercise poor judgment: (1) that Dr. McGee had not performed a
screening exam on a patient that had presented at St. Luke’s emergency
room; and (2) that Dr. McGee had prescribed a narcotic to a patient/friend,
and had subsequently used the portion of the prescription unused by his
patient/friend to treat his own injury. The letter does not reference any
allegation that Dr. McGee had dated a patient.
Over the next four years, St. Luke’s and Dr. Bruno consistently utilized
the form letter when requested to provide a reference for Dr. McGee.
However, twice in 2011 Appellees sent an alternate letter that contained an
allegation that St. Luke’s Hospital had terminated Dr. McGee’s employment
“for what [it] considered the exercise of poor judgment in the handling and
treatment of patients and medications.” Furthermore, the letter provided not
only the two bases for St. Luke’s conclusion that were contained in the
agreed upon form letter, but also the allegation that Dr. McGee had “dated a
woman who had previously been admitted and discharged as his patient.”
St. Luke’s sent the first of these letters to the Arizona Medical Board,
which was reviewing Dr. McGee’s application for medical privileges in the
state of Arizona. In his reply brief, Dr. McGee concedes, “there is no
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evidence that Dr. McGee suffered damages as a result of the [Arizona
Medical Board] breach.” Appellant’s Reply Brief, at 16.
St. Luke’s sent the second letter to Carlisle Regional Medical Center
(“CRMC”) which was considering employing Dr. McGee in its emergency
room through CRMC’s contract with a staffing company, EMCare. After
receiving the letter from St. Luke’s, CRMC declined to grant medical
privileges to Dr. McGee and he was denied employment in the emergency
room.
After several rounds of contentious back and forth with St. Luke’s and
its agents, Dr. McGee discovered the existence of the two reference letters
that did not follow the agreed upon form letter. Dr. McGee subsequently filed
suit, asserting that St. Luke’s and Dr. Bruno had defamed him, interfered
with his past and future business relationships, and breached the settlement
agreement.
At trial, Appellees’ defense centered on a theory that the letters did
not cause any damage to Dr. McGee. Appellees argued that Dr. McGee’s own
misrepresentations in his applications to CRMC and the Arizona Medical
Board were the cause of any lost earnings. Appellees did not present any
expert to rebut the expert testimony provided by Dr. McGee regarding the
amount of damages.
The jury returned a defense verdict on all tort claims, but found in
favor of Dr. McGee on his two breach of contract claims. On each claim, the
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jury allocated $26,000 of liability against St. Luke’s and Dr. Bruno. In
response to a request for clarification, the jury indicated that the overall
award would be $26,000 against each defendant for each breach, and
therefore the total award would be $104,000.
Both parties filed post-trial motions. Dr. McGee contended that jury’s
computation of damages was erroneous, as his evidence of damages was
unrebutted. Appellees argued that there was no legal basis for the award of
anything more than nominal damages on the verdict for the letter sent to
the Arizona Medical Board.
The trial court denied Dr. McGee’s motion, reasoning either that the
jury had discredited Dr. McGee’s damages expert, or that the verdict was
the result of a jury compromise. However, the trial court granted Appellees’
post-trial motion, concluding that it should have instructed the jury that the
evidence at trial did not support an award of more than nominal damages if
it found that they had breached the settlement agreement by sending the
letter to the Arizona Medical Board. The trial court therefore molded the
verdict to reduce the awards on the Arizona Medical Board claim to $1 each.
The trial subsequently reduced the molded verdict to judgment, and this
timely appeal followed.
Dr. McGee first argues that the trial court erred in not granting him a
new trial on damages. He contends that the jury’s verdict is unsupported by
the evidence at trial, as Appellees did not present any expert evidence to
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rebut the calculations made by his economics expert, Andrew Verzilli. Verzilli
testified that Dr. McGee suffered between $288,638 and $513,222 of lost
and future earnings due to his failure to be credentialed at CRMC.
“Our standard of review from an order denying a motion for a new trial
is whether the trial court committed an error of law, which controlled the
outcome of the case, or committed an abuse of discretion.” Mirabel v.
Morales, 57 A.3d 144, 150 (Pa. Super. 2012) (citation omitted). “A trial
court commits an abuse of discretion when it 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.” Id. (citation
omitted).
Unless an error of law controls the outcome of a case, we will not
reverse an order denying a new trial. See Lockley v. CSX Transportation,
5 A.3d 383, 388 (Pa. Super. 2010). “[A] litigant is entitled only to a fair trial
and not a perfect trial.” Id. at 392 (citation omitted).
Dr. McGee asserts that, pursuant to precedent such as Kiser v.
Schulte, 648 A.2d 1 (Pa. 1994), Neison v. Hines, 653 A.2d 634 (Pa.
1995), and Carroll v. Avallone, 939 A.2d 872 (Pa. 2007), the jury’s award
of less than $288,638 shocks the conscience as it bears no relation to the
uncontroverted facts at trial. Appellees note that these three cases are tort
cases, and therefore are not directly controlling in this appeal, as the basis
for liability was breach of contract. We agree with Appellees that these cases
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are not controlling, but conclude that the reasoning applied in these cases is
persuasive, and we can find no reason not to apply it in this case.
The general rule in Pennsylvania is that the jury has the freedom to
reject all, part, or none of the testimony of any witness. See Neison, 653
A.2d at 637. “The duty of assessing damages is within the province of the
jury and should not be interfered with by the court, unless it clearly appears
that the amount awarded resulted from caprice, prejudice, partiality,
corruption or some other improper influence.” Tonik v. Apex Garages,
Inc., 275 A.2d 296, 299 (Pa. 1971) (citation omitted). However, the jury’s
verdict “must bear some reasonable relation to the loss suffered by the
plaintiff as demonstrated by uncontroverted evidence presented at trial.”
Neison, at 637 (citation omitted, emphasis supplied). As a result, when a
defense expert concedes that the defendant’s negligence caused some injury
to the plaintiff, a jury verdict may not find that the plaintiff failed to establish
causation for “at least some of the plaintiff’s injuries.” Andrews v. Jackson,
800 A.2d 959, 962 (Pa. Super. 2002) (citation omitted).
Here, as in Carroll, the issue boils down to “the meaning of
‘uncontroverted,’ … and whether a defendant’s failure to present
independent evidence on damages comprises de jure acquiescence to a
plaintiff’s expert’s testimony.” Carroll, 939 A.2d at 874. The Carroll Court
reviewed Kiser:
In Kiser, the expert testified the net economic loss resulting
from the teenage decedent’s death was between $232,400 and
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$756,081.43. As here, the defense did not present its own
expert, but extensively cross-examined the plaintiff’s expert. The
$232,400 figure was conceded only after defense counsel
suggested the 40% “personal maintenance” deduction was
appropriate. The expert testified he would reduce the net
economic loss to 232,400 on the bottom end of the range. This
Court stated, “Thus, the uncontroverted testimony at trial was
that the net economic loss that would result from [the teenage
decedent’s] death ranged from $232,400.00 to $756,081.43.”
That is, what was uncontroverted was the minimum estimate of
$232,400, which was conceded after cross-examination. The
original range was not uncontroverted simply because the
defense presented no evidence – the cross-examination
challenged that evidence. Therefore, the jury award of about
11% of the uncontroverted range was inadequate.
Id., at 874-875 (citations omitted).
In contrast, the Carroll Court found that in the case before it, the
defense had challenged the plaintiff’s expert’s presumptions during cross-
examination. See id., at 875. In particular, the defense had questioned the
expert’s presumptions that the decedent would have sought employment as
a nurse when the expert calculated future lost earnings. See id. “The
evidence at trial, therefore, does not allow the conclusion [that] that expert’s
opinion was ‘uncontroverted.’” Id.
We hesitate to describe the cross-examination of Verzilli in this case as
“extensive,” but we do agree with Appellees that Verzilli’s testimony was
challenged in a manner similar to Carroll. The following passage is
indicative of the defense’s approach to Verzilli’s testimony:
Q. So you assume that his [Dr. McGee’s] termination from St.
Luke’s would have no effect on his future earning capacity; is
that correct?
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A. Yeah. I didn’t really – I mean, I assumed it didn’t because
I – I looked at that he had this, the Carlisle opportunity, which
clearly was a measure of his potential and some opportunity for
him to earn income.
Q. I guess that’s what I’m getting at. You looked at this
Carlisle opportunity, correct? How did you draw the conclusion
that Dr. McGee could reasonably expect to have received that
Carlisle opportunity, that job?
A. That’s – I think that’s why we’re here. I’m not here on
causation. I’m here as had he gotten this job. I’m making that
assumption, this was his potential in this type of job. That’s what
this type of analysis is. I don’t make a judgment as to why that
didn’t happen.
N.T., Trial, 8/24/15, at 253-254.
Furthermore, it is clear from the record that Appellees challenged Dr.
McGee’s assertion that the erroneous letters were the cause of his loss of
employment. Appellees presented the Pennsylvania Standard Application for
Physicians submitted by Dr. McGee to CRMC. Page eight of the application
asks the applicant to indicate, among others, if his “Employment by any
hospital, institution, or the military” or “Clinical privileges or other rights on
any hospital medical staff” have been, or are currently in the process of
“being denied, revoked, not renewed, suspended, limited, restricted, placed
on probation, or placed under other disciplinary action, either voluntarily or
involuntarily in this or any other state?” (emphasis supplied). Dr. McGee
answered “no” to both questions. See N.T., Jury Trial, 8/21/15, at 125.
He testified that he believed that these were honest answers. See id.
He further believed that the agreed upon form letter was worded in a way
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that was consistent with his answer on the standard application. See id.
However, the form letter provides, in relevant part that “St. Luke’s Hospital
terminated its employment agreement with Dr. McGee,” and “Dr. McGee’s
medical staff privileges expired automatically with the termination of this
contract.” Thus, the jury had a reasonable basis to infer that Dr. McGee was
being far less than completely honest on the standard application he
submitted to CRMC. Thus, Appellees were able to present evidence that the
erroneous letters were not the only cause of CRMC’s decision to deny Dr.
McGee employment.
Under these circumstances, we conclude that the jury was entitled to
disbelieve some or all of the testimony of Verzilli based upon the challenges
to his assumptions. Nor do we conclude that Dr. McGee has established that
the jury’s verdict was based upon evidence of attorney’s fees paid by Dr.
McGee during his quest to get St. Luke’s to produce the letter it sent to
CRMC, rather the appropriate basis of its finding of lost past and future
wages. Such a conclusion based upon the record before us would be no
more than speculation, and would not demonstrate the appropriate
deference to the fact-finding responsibilities of the jury. We therefore
conclude that Dr. McGee’s first issue on appeal merits no relief.
In his second issue, Dr. McGee contends that the trial court erred in
reducing the jury’s verdict based upon the erroneous letter sent to the
Arizona Medical Board. “The duty of assessing damages is within the
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province of the jury and should not be interfered with by the court, unless it
clearly appears that the amount awarded resulted from caprice, prejudice,
partiality, corruption or some other improper influence.” Betz v. Erie
Insurance Exchange, 957 A.2d 1244, 1264 (Pa. Super. 2008) (citation
omitted). “The question 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, 640
A.2d 367, 369 (Pa. 1994).
As noted above, the trial court determined that there was no evidence
supporting actual damages on that count, and therefore reduced the verdict
to $1 each against St. Luke’s and Dr. Bruno. Dr. McGee concedes that “the
evidence does not support an award greater than nominal damages for the
[Arizona Medical Board] breach[.]” Appellant’s Brief, at 44. However, he
argues that the verdict represented a compromise verdict reached by the
jury and should not be disturbed. See Appellant’s Brief, at 45 (“Assuming,
arguendo, that the CRMC breach was the product of compromise, the
identical award for the [Arizona Medical Board] breach is part of the same
compromise.”)
We again refuse to speculate on the nature of the verdict reached by
the jury. The verdicts based upon the erroneous letter sent to CRMC are
supported by sufficient evidence, and therefore we have no reason to
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categorize those verdicts as compromise verdicts. We thus have no reason
to assume that the Arizona Medical Board breach verdicts were part of a jury
compromise. The trial court appropriately molded the verdict to reflect what
all parties agree the record reflected. Dr. McGee’s second and final issue
merits no relief.
Judgment affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/7/2017
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