J-A10019-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
NICHOLAS GOOD AND DENISE : IN THE SUPERIOR COURT OF
GOOD : PENNSYLVANIA
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v. :
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KEVIN WILLIAMS AND STATE FARM :
MUTUAL INSURANCE COMPANY : No. 2563 EDA 2019
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APPEAL OF: NICHOLAS GOOD
Appeal from the Judgment Entered July 30, 2019
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): November Term, 2017, No. 2679
BEFORE: BOWES, J., SHOGAN, J., and PELLEGRINI, J.*
DISSENTING MEMORANDUM BY BOWES, J.: FILED: JANUARY 25, 2021
Despite conceded negligence and uncontroverted injuries, my
distinguished colleagues justify the jury’s zero dollar verdict with the
observation that “not all injuries are serious enough to warrant compensation,
even though there may be some pain.” Majority Memorandum at 6 (citing
Van Kirk v. O'Toole, 857 A.2d 183, 186 (Pa.Super. 2004)). According to the
Majority, “[t]he real test is whether the uncontroverted injuries are such that
a conclusion that they are so minor that no compensation is warranted defies
common sense and logic.” Id. (quoting Van Kirk, supra at 185). This
retrospective test was employed in Gold v. Rosen, 135 A.3d 1039, 1044
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* Retired Senior Judge assigned to the Superior Court.
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(Pa.Super. 2016), where the issue on appeal was whether the jury’s verdict
was against the weight of the evidence. However, the issue before us is not
whether the verdict was against the weight of the evidence,1 but whether
there was error in the jury instructions and verdict slip that contributed to that
verdict. Applying the proper standard, I believe that the trial court’s inclusion
of the “if any” language in its damages instruction to the jury and on the
verdict slip constituted reversible error. Hence, I respectfully dissent.
In this case, negligence was conceded. Furthermore, the defense
medical expert agreed with plaintiff’s expert that Mr. Good sustained head and
back injuries in the 2015 motor vehicle accident. The medical experts
disagreed only as to the extent of the back injury attributable to the accident.
Consequently, the trial court directed a verdict on causation and instructed
the jury as follows:
Now, the plaintiff has the burden of proving, proving in this
case the extent of the damages caused by defendant’s negligence.
So in this case, the defendant, Kevin Williams, admits that he was
negligent. And the defense medical expert testified that the
accident caused some injury to the plaintiff, Nicholas Good.
However, the defense disputes the extent of the injury caused.
Therefore, the only issue you must decide is the amount of
damages, if any, to which the plaintiff, Nicholas Good, is entitled.
N.T. Vol. 2, 3/12/19, at 87 (emphasis added).
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1 The Majority adopted the trial court’s finding that any allegation that the
verdict was against the weight of the evidence was waived, and I agree.
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The verdict slip contained only one question: “State the amount of
damages, if any, sustained by Plaintiff, Nicholas Good as a result of the
accident.” (emphasis added). The jury returned a damage award of zero
dollars.
Mr. Williams cites Gold, supra, for the proposition that, under
Pennsylvania law, “a jury is well within its rights to find factual cause, but not
to award damages when there is no evidence of objective injury and such
claims of injuries, pain and suffering are vigorously contested by the defense.”
Appellee’s brief at 14. He maintains that there was no objective evidence of
injury here and only subjective complaints of pain. Since the verdict did not
shock the court’s sense of justice, Mr. Williams contends it must be allowed to
stand. Id. at 26.
Mr. Good counters that there was objective evidence of injury.
Moreover, the “if any” language in the court’s instruction and on the verdict
slip implied that the jury could award zero dollars, which was inconsistent with
the evidence presented at trial and the trial court’s determination that, as a
matter of law, Mr. Good sustained injuries that were causally related to the
December 1, 2015 collision. Thus, Mr. Good’s complaint is not that the verdict
is against the weight of the evidence as in Gold. Rather, he contends that
the trial court erred in instructing the jury that it could award zero dollars in
damages despite conceded negligence and uncontroverted evidence of
significant injury causally related to the accident.
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The controversy surrounding the “if any” language appearing on the
verdict slip arose on the second day of trial, after the court granted Mr. Good’s
motion for directed verdict as to causation. The court recognized that the
directed verdict would change the issues remaining in the case, and advised
counsel that it had drafted a new charge: “The defendant, Kevin Williams,
admits that he was negligent and the defense medical expert testified that the
accident caused some injury to plaintiff, Nicholas Good. However, the defense
disputes the extent of the injury caused. Therefore, the only issue you must
decide is the amount of damages to which the plaintiff, Nicholas Good, is
entitled.” N.T. Trial Vol. 2, 3/12/19, at 34-35. The court noted further that
the verdict sheet would change, “simply stating the amount of damages, if
any --- well, we can take out the[‘]if any.[’] The amount of the damages
sustained by the plaintiff, Nicholas Good, as a result of the accident
noneconomic, loss of life’s pleasures, and pain and suffering.” Id. at 35.
Defense counsel renewed his argument that a directed verdict as to
causation was improper, prompting the trial court to reconsider its decision.
After reviewing the authorities provided by the defense, the court reaffirmed
its decision to grant a directed verdict as to causation. However, without
explanation, it announced that it intended to include the “if any” language on
the verdict slip. Plaintiff’s counsel objected to its inclusion.2 Id. at 51.
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2The trial court subsequently gave a jury instruction that conformed with the
modified verdict slip.
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The issue before us is not whether the jury’s verdict was against the
weight of the evidence, but whether the trial court’s instruction advising the
jury that it was free to award no non-economic damages despite conceded
negligence and causation as a matter of law constituted error. Our standard
of review of such a claim is quite different than a weight claim. Our review of
jury instructions is limited to determining whether the trial court committed a
clear abuse of discretion or error of law which controlled the outcome of the
case. Krepps v. Snyder, 112 A.3d 1246, 1256 (Pa.Super. 2015). Error
occurs when “the charge as a whole is inadequate or not clear or has a
tendency to mislead or confuse rather than clarify a material issue.” Id.
(quoting Gorman v. Costello, 929 A.2d 1208, 1211-12 (Pa.Super. 2007)
(citation omitted). In making that determination, “[w]e look to the charge in
its entirety, against the background of the evidence in the particular case, to
determine whether or not error was committed and whether that error was
prejudicial to the complaining party.” Id. (quoting Estate of Hicks v. Dana
Companies, LLC, 984 A.2d 943, 972 (Pa.Super. 2009) (citation omitted).
Error is harmless “where the jury is not required to deliberate over the issue
out of which the alleged error arises in order to reach its verdict.” Boyle v.
Indep. Lift Truck, Inc., 6 A.3d 492, 496 (Pa. 2010).
The record reveals the following. Mr. Williams’ car rear-ended Mr.
Good’s truck, which was stopped at a light. It was undisputed that the impact
pushed the truck several feet into the intersection and caused damage to the
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truck’s rear bumper and a light. There was no visible damage to Mr. Williams’s
car. The men exchanged information and neither required medical care at the
scene.
Following the accident, Mr. Good suffered vertigo, headaches, and
dizziness. Since he had a cold at the time, he thought the symptoms might
be indicative of a sinus infection. Three days after the accident, he went to
the emergency room, where an x-ray ruled out a sinus infection. Mr. Good
was also experiencing low back pain, mostly on the right side, that radiated
down his right leg. That pain prompted him to seek treatment at Pain
Management where he received electrical stimulation and heat/cold therapy
three to four times per week, which provided temporary pain relief.
Pain Management referred Mr. Good to neurologist Bruce Grossinger,
D.O. for the headaches and vertigo. Dr. Grossinger conducted an IMPACT
Test, which confirmed post-concussion symptoms. He administered occipital
injections for the head-related symptoms, and they provided some relief. He
also conducted an EMG, which objectively confirmed that radiating right-sided
lower back pain was nerve-related radiculopathy at S1. Dr. Grossinger
administered facet injections to Mr. Good’s left lower back and six epidural
injections to the right side of the lower back, a procedure called “medial branch
blocks injected under fluoroscopy,” that proved to be more successful.
Deposition of Dr. Grossinger, 2/27/19, at 60. Seven months after the
accident, in June 2016, Mr. Good’s concussion symptoms were improved, his
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mental status appeared better, but he was still having some headaches. His
back and leg pain was greatly reduced.
Two years later, in June 2018, Mr. Good sought out treatment from Dr.
Grossinger for moderate headaches, some memory loss, and pain in the
lumbar spine radiating into both legs. Dr. Grossinger prescribed anti-
inflammatories and his partner did two rounds of epidural injections in October
and November 2018. Dr. Grossinger related these injuries to the accident,
opined that they were permanent, and testified that Mr. Good would benefit
from epidural injections in the future.
Walter Dearolf, M.D., an orthopedic surgeon, testified for the defense.
Notably, he agreed that Mr. Good “sustained trauma causing, obviously, his
vertigo and headaches that he had, and he developed low back pain as a result
of the injury with sciatic symptoms.” Deposition of Dr. Dearolf, 2/19/19, at
35. However, he felt the latter symptoms had resolved with treatment in June
2016. Id. at 53-54. Nonetheless, when he examined Mr. Good on November
1, 2018, he found “symptoms consistent with an irritated sciatic nerve on the
right side” and “complaints of back pain, accompanying that with some loss
of motion in his back due to spasm intermittently.” Id. at 33. He also noted
that Mr. Good had a positive sitting root test on the right leg at that time,
which was consistent with an inflamed nerve root.
Dr. Dearolf reviewed an MRI of the Mr. Good’s lumbar spine from August
4, 2012, and noted that it depicted a herniated disc at L5-S1, and a bulging
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disc above it. He compared it with a post-accident MRI from December 29,
2015, and found it very similar, if not identical, to the earlier scan. Id. at 28.
In Dr. Dearolf’s opinion, an individual with such MRI findings would have
periodic exacerbations of lower back pain, and in his view, the low back pain
in 2018 would be unrelated to the accident. He concluded that Mr. Good did
not require any further treatment as it related to the December 2015 accident.
Id. at 38.
Thus, there was uncontroverted evidence that Mr. Good sustained a
head injury and right-sided radiculopathy causally related to the 2015
accident. It was disputed that left–sided lumbar pain was related to the
accident or that any future treatment was necessary.
Based on the foregoing, I believe the trial court erred in instructing the
jury to award damages, “if any.” Additionally, the verdict form impermissibly
permitted the jury to reject undisputed evidence that defendant’s negligence
caused Mr. Good’s head injury and was responsible for at least some of his
back injury. The injuries were confirmed through objective testing and
acknowledged by both medical experts. Mr. Good testified to the pain he
suffered due to his injuries sustained in the accident, and underwent invasive
treatments to alleviate the pain. Mr. Williams did not contest that Mr. Good
experienced pain, although he attributed some of his pain to periodic
exacerbation of a pre-existing back injury.
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In my view, the uncontroverted injuries were of the type that would
normally cause pain and suffering. See Boggavarapu v. Ponist, 542 A.2d
516, 518 (Pa. 1988) (recognizing that “there are injuries to which human
experience teaches us there is accompanying pain” such as “the stretched
muscle, twist of the skeletal system, injury to a nerve”). Furthermore, the
injuries herein were not so insignificant or transient that one could reasonably
conclude that no compensation was required. Post-concussion symptoms and
right leg radiculopathy due to a nerve root injury, lasting at a minimum seven
months and requiring multiple injections and therapy, are not the type of “rub
of life” injuries for which the jury is free to award no damages. See
Burnhauser v. Bumberger, 745 A.2d 1256, 1261 (Pa.Super. 2000) (finding
award of no damages for pain and suffering where opposing experts agreed
that victim suffered soft tissue injuries that would require up to six months to
resolve was against the weight of the evidence).
Generally, in instructing a jury about damages, courts use neutral
language. Juries are told that if they find liability, they should award damages
that fairly compensate the plaintiff for his injury. The injection of the phrase
“if any,” is a departure from that even-handed approach and may be perceived
as a suggestion that no damages should be awarded. Where, as here, there
is uncontroverted evidence of injury, the qualification constitutes error.
On the record before us, I believe the jury should have been instructed
to award damages for the uncontroverted injuries, as well as any additional
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injuries it concluded were accident-related. Such an instruction is consistent
with Pa.S.S.J.I. (Civ.) 7.50, which applies to situations such as this one where
negligence is conceded and medical experts agree that the defendant’s
negligence caused harm to plaintiff:
The parties agree that [name of defendant] was negligent and
[the parties] [medical experts] [other experts] agree that the
negligence caused harm to [name of plaintiff].
You must answer "yes" on the [verdict sheet] [jury interrogatory]
to question # 1 [(whether [name of defendant] was negligent)]
and question # 2 [(whether [name of defendant]'s negligence was
the "factual cause" of harm to [name of plaintiff])].
You must award damages for the [uncontested] [agreed-
upon] harm [specify damages--e.g., medical bills, lost
wages, pain and suffering, etc.].
The parties disagree, however, on the extent of [name of
plaintiff]'s harm caused by [name of defendant]'s
negligence.
You must decide the extent of the harm [name of
defendant]'s negligence caused and return a verdict that
fully compensates [name of plaintiff] for all harm
sustained.
Pa.S.S.J.I. (Civ.) 7.50.3 (emphasis added). The Subcommittee Note to the
suggested instruction points out that “[t]he second paragraph of the charge
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3 The trial court was not required to read verbatim Pa.S.S.J.I. (Civ.) 7.50. As
this Court has often noted, “there is no right to have any particular form of
instruction given; it is enough that the charge clearly and accurately explains
the relevant law.” Krepps v. Snyder, 112 A.3d 1246, 1256 (Pa.Super. 2015)
(quoting Commonwealth v. Alvin, 516 A.2d 376, 381 (Pa.Super. 1986)
(citation omitted).
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recognizes that judges have discretion to either instruct the jury to answer
questions number 1 and 2 “yes” or to give the jury a verdict sheet that only
has the damages question.” Pa.S.S.J.I. 7.50 (Civ.) Subcommittee Note.
In light of the uncontroverted evidence of significant injuries causally
related to the accident, I believe the trial court erred in instructing the jury to
award damages “if any.” Hence, I would vacate the judgment and remand for
a new trial limited to the issue of damages.4
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4 I recognize that evidence concerning the nature and severity of the accident
may be relevant to the issue of damages, and I would not preclude such
evidence at the new trial limited to damages. See Fischer v. Troiano, 768
A.2d 1126, 1132 (Pa.Super. 2001) (acknowledging the relevance of evidence
regarding the nature of accident to the issue of damages and permitting its
introduction at a new trial as to damages only).
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Good, N. v. Williams, K.
Combined Opinion