J-A27035-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
KAREN COWHER, ADMINISTRATRIX : IN THE SUPERIOR COURT OF
OF THE ESTATE OF JAMES L. : PENNSYLVANIA
COWHER, II, DECEASED :
:
:
v. :
:
:
SOBHAN KODALI, M.D., ST. LUKE'S : No. 1111 EDA 2020
UNIVERSITY HEALTH NETWORK AND :
ST. LUKE'S CARDIOLOGY :
ASSOCIATES :
:
Appellants :
Appeal from the Judgment Entered April 7, 2020
In the Court of Common Pleas of Lehigh County Civil Division at No(s):
No. 2018-C-0264
BEFORE: STABILE, J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED JANUARY 31, 2023
This matter is an appeal by Appellants Sobhan Kodali, M.D., St. Luke's
University Health Network and St. Luke’s Cardiology Associates (collectively,
Defendants) from a judgment entered on a jury verdict in favor of the plaintiff,
Karen Cowher, Administratrix of the Estate of James L. Cowher, II, Deceased
(Plaintiff) in a wrongful death and survival medical malpractice action. This
case returns to us after our Supreme Court reversed this Court’s original order
of February 8, 2021 vacating the damages judgment on Plaintiff’s survival
claim and remanded the case to this Court for consideration of two issues
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* Retired Senior Judge assigned to the Superior Court.
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raised by Defendants that we did not reach in our February 8, 2021 decision.
Cowher v. Kodali, 283 A.3d 794, 810 (Pa. 2022). For the reasons set forth
below, Defendants are barred under the Supreme Court’s decision in this case
from seeking relief on both of these remaining issues and we therefore affirm
the judgment of the trial court.
This action arose out of the death of James L. Cowher, II (Decedent)
from cardiac arrest at the age of 48. As set forth in our February 8, 2021
decision, the events surrounding Decedent’s medical care and death are as
follows:
In September 2015, Decedent had an episode of chest pain and
underwent a stress echocardiogram test that was normal. On July
11, 2016, Decedent saw his primary care physician for episodes
of chest pain that were becoming more frequent and severe and
that radiated from the chest to his arms and were accompanied
by some shortness of breath, nausea, and sweating. Decedent’s
primary care physician performed an electrocardiogram and had
a test done for troponin, a chemical marker of heart damage, both
of which were normal.
Decedent’s primary care physician arranged for Decedent to be
seen by an affiliated cardiology group, and defendant Dr. Sobhan
Kodali, a cardiologist in that group, saw Decedent on July 13,
2016. Decedent reported to Dr. Kodali that for the last six months
he had been experiencing chest pain that radiated to both arms,
often with shortness of breath, dizziness, and tingling in his
fingers. Decedent also reported to Dr. Kodali that he was regularly
running for exercise without symptoms. Dr. Kodali was aware that
Decedent had a family history of premature coronary artery
disease, had high cholesterol, and was overweight. Dr. Kodali did
not order or perform any tests other than an additional
electrocardiogram, which was normal, and a lipid test, and
concluded that Decedent’s chest pain was “not cardiac,” stating
that “[n]o further evaluation is necessary at this time” and that
“[o]verall the clinical picture is suggestive of anxiety/panic
attacks.”
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On August 23, 2016, Decedent suffered cardiac arrest while
jogging and died. The pathologist who performed an autopsy on
Decedent found that Decedent had blockages of 80% and over
90% in the left main and left anterior descending coronary arteries
and listed the cause of Decedent’s death as “[f]avor cardiac
arrhythmia secondary to ASCVD [arteriosclerotic cardiovascular
disease].” The coroner reported the cause of Decedent’s death as
acute myocardial infarction due to severe coronary artery disease.
Cowher v. Kodali, No. 1111 EDA 2020, slip op. at 2-4 (Pa. Super. filed
February 8, 2021) (citations omitted) (brackets in original).
On January 31, 2018, Plaintiff, Decedent’s widow, brought this medical
malpractice wrongful death and survival action against Defendants. In her
complaint, Plaintiff averred that Dr. Kodali was negligent in failing to diagnose
Decedent as having unstable angina and severe coronary artery disease, that
Dr. Kodali’s failure to diagnose and treat him for those conditions caused
Decedent’s death, and that St. Luke’s Cardiology Associates (Associates), Dr.
Kodali’s practice group, and St. Luke’s University Health Network (Health
Network), the health network that owns Associates, were liable for Dr. Kodali’s
negligence. Amended Complaint ¶¶8-12, 15-28, 31, 34. Plaintiff’s cardiology
expert opined in his report that Dr. Kodali was negligent in failing to diagnose
Decedent as suffering from unstable angina and in failing to recommend
diagnostic testing, including cardiac catheterization, that would have shown
Decedent’s severe coronary artery disease, which could have been
successfully treated by coronary bypass surgery, and that these deviations
from the standard of care caused Decedent’s death. Hayek 3/28/18 Report
at 5-9. Plaintiff’s cardiology expert also opined in that report that Decedent
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died from cardiac arrhythmia caused by severe left main and left anterior
descending coronary artery disease and briefly stated that Decedent
experienced conscious pain and suffering before his death. Id. at 8-9.
Defendants filed motions in limine to preclude Plaintiff’s cardiology expert from
testifying that Decedent died of a cause other than acute myocardial infarction
and to preclude him from testifying that Decedent experienced conscious pain
and suffering, and the trial court denied both of these motions prior to trial.
The case was tried to a jury from December 3, 2019 to December 9,
2019. Seven witnesses testified at trial: a neighbor who was present when
Decedent’s fatal event occurred, Plaintiff’s cardiology expert, Plaintiff’s
economic expert, Plaintiff, Defendants’ cardiology expert, Dr. Kodali, and
Decedent’s primary care physician.
The neighbor testified that she saw Decedent walking slowly, kneeling,
and laying down, that Decedent said “I need help,” and that Decedent
appeared to be “in pain” and “not himself” and “was very distraught.” N.T.
Trial, 12/3/19, at 73-77. The neighbor also testified that Decedent was
conscious for approximately three minutes before he passed out. Id. at 77-
78.
Plaintiff’s cardiology expert testified that Decedent was suffering from
unstable angina and severe coronary artery blockages when he saw Dr. Kodali
and that Decedent died from a cardiac arrhythmia caused by insufficient blood
supply to the heart as a result of those coronary artery blockages. N.T. Trial,
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12/3/19, at 152, 156-58, 166, 172-77, 186-89, 220. Plaintiff’s cardiology
expert opined that, given the chest pain symptoms that Decedent reported,
Dr. Kodali breached the standard of care in failing to diagnose Decedent’s
unstable angina and in failing to order cardiac catheterization, which would
have revealed the blockages and resulted in bypass surgery, and opined that
Decedent’s untreated coronary artery disease caused his death. Id. at 143,
162-64, 169-71, 177, 190-202, 211-13, 215-20. He also opined based solely
on the neighbor’s testimony, without offering any medical analysis or
reasoning, that Decedent experienced conscious pain and suffering at the time
of his fatal cardiac event. Id. at 221.
Plaintiff’s economic expert opined that the economic loss from
Decedent’s death, including all earnings, fringe benefits and value of the loss
of his household services, totaled $1,070,145 to $2,700,498, depending on
assumptions concerning age of retirement, salary increases, and economic
conditions. N.T. Trial, 12/4/19, at 48-60. Defendants stipulated that
Associates and Health Network were vicariously liable for Dr. Kodali’s conduct.
Id. at 9-14.
On December 9, 2019, the jury returned a verdict in favor of Plaintiff
and against Defendants awarding Plaintiff $2,457,000 in wrongful death
damages and $3,833,000 in damages on the survival claim. Defendants
timely filed post-trial motions seeking a new trial, or alternatively a new trial
on damages or a remittitur, and Plaintiff moved to add delay damages to the
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verdict. On April 7, 2020, the trial court denied Defendants’ post-trial
motions, granted Plaintiff’s delay damages motion, and entered judgment in
favor of Plaintiff and against Defendants in the amount of $6,631,642.70.
Defendants timely appealed and presented the following four issues for
review:
1. Whether the trial court erred and abused its discretion in failing
to vacate the verdict where Plaintiff failed to prove liability under
her new, eleventh-hour cause of death theory by presenting
expert testimony identifying a specific standard of care for
treatment of cardiac arrythmia (as opposed to other coronary
conditions), which Defendants breached and thus caused
Plaintiff's harm?
2. Whether the trial court erred and/or abused its discretion in
permitting Plaintiff's expert to testify to his assumptions regarding
the purported pain and suffering decedent experienced?
3. Whether the trial court erred and abused its discretion in failing
to vacate the Survival Act award where the record is devoid of
evidence that decedent was conscious, able to feel pain or indeed
felt pain immediately prior to death and, thus, any award for pain
and suffering is against the weight of the evidence?
4. Whether the trial court erred and/or abused its discretion in
denying Defendants' requests for a new trial on damages and/or
remittitur, where the jury’s Survival Act verdict award of $377,000
per minute (at best) for 2-3 minutes of pain and suffering is
grossly excessive, unmoored from the record, and against the
weight of the evidence?
Appellants’ Brief at 5-6 (suggested answers omitted).
On February 8, 2021, this Court issued a decision in this appeal in which
we rejected Defendant’s Issue 1 claim that Plaintiff had failed to prove liability,
but held on Issue 2 that the trial court had erred in admitting the opinion of
Plaintiff’s expert on pain and suffering, which merely placed an expert
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imprimatur on lay witness testimony, and that this error could have affected
the jury’s survival damages award. No. 1111 EDA 2020, slip op. at 7-19.
Accordingly, we affirmed the trial court’s judgment as to liability and its
damages judgment on Plaintiff’s wrongful death claim, but vacated the
damages judgment on Plaintiff’s survival claim and remanded for a new trial
on damages with respect to that claim. Id. at 19-20. Because Defendants’
third and fourth issues involved only the survival damages award that had
been vacated, we did not rule on those two issues. Id. at 20.
Plaintiff filed a petition for allowance of appeal in which she sought
review of several issues, including whether this Court erred in holding the
expert pain and suffering testimony inadmissible and whether Defendants’
failure to request an itemized verdict slip waived their right to seek a new trial
based on the admission of that testimony. On October 19, 2021, the Supreme
Court granted Plaintiff’s petition for allowance of appeal, limited to the
following single issue:
Where, as here, [Defendants] failed to request an itemized verdict
slip such that the jury would have been required to separately
value the amount of each element of damages under
Pennsylvania’s Survival Act and where the [Defendants] failed to
object to the general verdict slip given by the Trial Court to the
jury to answer during deliberations, knowing that they intended
to challenge any pain and suffering award rendered by the jury,
whether those same [Defendants] are estopped from requesting
and receiving or have waived a new trial on damages?
Cowher v. Kodali, 265 A.3d 198 (Pa. 2021).
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On September 29, 2022, the Supreme Court reversed our February 8,
2021 vacating of Plaintiff’s survival damages judgment on the ground that
Defendants, by failing to request a verdict slip that itemized the pain and
suffering damages that the jury awarded, waived their right to seek a new
trial based on an error that could only have affected the amount of an award
for pain and suffering. Cowher v. Kodali, 283 A.3d at 804-10. The Court
held that, under the general verdict rule, “when a litigant fails to request a
special verdict slip that would have clarified the basis for a general verdict,
and the verdict rests upon valid grounds, ‘the right to a new trial is waived.’”
Id. at 804 (quoting Shiflett v. Lehigh Valley Health Network, Inc., 217
A.3d 225 (Pa. 2019)). The Court held that the requirements of that rule were
satisfied because the jury’s survival award was supportable solely on the basis
of other elements of survival damages that were unaffected by the expert
testimony and it was not possible to determine from the general verdict what
amount of pain and suffering damages the jury awarded or even whether the
jury had awarded any pain and suffering damages. 283 A.3d at 805-07, 809.
The Court ruled that it was appropriate to hold that Defendants waived their
right to seek a new trial because Defendants were aware before trial that the
admission of evidence on pain and suffering damages was a potential
appellate issue, but never requested a special interrogatory itemizing pain and
suffering damages and instead sought a verdict slip with one blank for the
jury to award a single lump sum amount of survival damages. Id. at 805-06.
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Because this Court had not addressed two of Defendants’ issues and the
reversal of our vacating of the survival claim judgment made it necessary to
reach those issues, the Supreme Court remanded the case to this Court to
address those issues, specifically directing that “[i]n addressing the remaining
issues, the Superior Court shall consider whether these claims are also waived
by defendants’ failure to request a special verdict slip itemizing the amount of
pain and suffering damages.” 283 A.3d at 810 & n.7. Following remand, this
Court directed the parties to file supplemental briefs addressing this waiver
issue and the parties have complied with that order.
Applying our Supreme Court’s decision to the two remaining issues, we
conclude that they are barred by Defendants’ failure to request a special
verdict slip itemizing the amount of pain and suffering damages. Both Issue
3 and Issue 4 are entirely dependent on a determination that the jury’s
survival award included an award for pain and suffering. Appellants seek in
Issue 3 to vacate the survival claim award on the ground that “any award for
pain and suffering is against the weight of the evidence” and seek in Issue 4
a new trial on survival damages or remittitur of the jury's survival claim award
on the ground that an “award of $377,000 per minute (at best) for 2-3 minutes
of pain and suffering” is excessive. Appellants’ Brief at 5-6. The Supreme
Court, however, ruled that it cannot be determined from the lump sum general
survival claim verdict what amount of pain and suffering damages the jury
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awarded or even whether the survival claim award includes any pain and
suffering damages at all. 283 A.3d at 805-07, 809.
Defendants argue in their supplemental briefs that these issues are not
waived because they are allegedly challenges to whether the entire survival
damages award of $3,833,000 as a whole is against the weight of the evidence
or excessive and that a determination of the amount of the pain and suffering
award is not essential to issues concerning the survival claim award as a
whole. This argument fails for two reasons. First, it misstates the issues that
Defendants raised in this appeal. Contrary to Defendants’ new redrafting of
these issues, Issues 3 and 4 expressly challenged the survival damages award
on the ground that it included pain and suffering damages and that the amount
of pain and suffering damages that the jury awarded was excessive, not on
the ground that the survival claim verdict as a whole was unsupported or
excessive. Appellants’ Brief at 5-6.
Second, and most fundamentally, the contention that the total amount
of the survival claim award is against the weight of the evidence or excessive
was expressly rejected by the Supreme Court. The Supreme Court, in
determining whether the general verdict rule applied, concluded that the
verdict as a whole was supported by the evidence and not excessive, even if
it contained no pain and suffering damages, because there was sufficient
evidence to support the amount of survival damages award based on evidence
of the other components of survival damages. 283 A.3d at 805-07. The Court
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specifically ruled that “the general survival damages verdict returned by the
jury is supportable solely on the basis of the proper evidence of loss of life’s
pleasures and/or lost earnings.” Id. at 806. Defendants’ contention that we
should disregard our Supreme Court’s ruling as “dicta,” Appellants’
Supplemental Brief at 14, is without merit. The ruling that the verdict as a
whole was valid even if it included no pain and suffering award was necessary
to the Court’s determination that the general verdict rule applied and barred
Defendants from obtaining a new trial, as the general verdict rule requires a
determination that the general verdict could be based on another, valid
ground. 283 A.3d at 804.
The Supreme Court also based its waiver holding on the fact that
Defendants knew before the case was submitted to the jury that there was a
potential appellate issue concerning pain and suffering damages and chose
not to seek a verdict slip that would separate such damages from the other
survival damages that Plaintiff sought. 283 A.3d at 805-06. That fact is
equally present with respect with respect to Issues 3 and 4, which assert that
there was no basis on which the jury could validly award any pain and suffering
damages and challenge the alleged amount of pain and suffering damages
allegedly awarded as excessive. Defendants were plainly aware before trial
that there was a potential appellate issue concerning whether pain and
suffering damages could be awarded, as they sought to exclude all evidence
of pain and suffering in the same motion in limine in which they sought to
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exclude Plaintiff’s expert’s testimony on pain and suffering. Motion in Limine
to Preclude Pain and Suffering Evidence at 5 and Supporting Memorandum of
Law at 2-3, 8; N.T. Motions in Limine Hearing at 58-60, 69-75. Defendants
therefore knew that any award of pain and suffering damages and the amount
of any such award would be a potential subject for appeal, yet chose not to
seek a separate verdict on such damages that would have made it possible to
determine whether the verdict included pain and suffering damages and the
amount of such damages.
Because the bases on which our Supreme Court found that Defendants
were barred by waiver from setting aside the jury’s survival claim verdict
based on erroneous admission of expert testimony on pain and suffering are
equally applicable to their Issue 3 and 4 attempts to set aside that verdict
based on the contention that it included pain and suffering damages and that
the pain and suffering damages award was excessive, those claims are also
necessarily barred by waiver.1 Accordingly, we affirm the trial court’s
judgment in its entirety.
Judgment affirmed.
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1 In addition, to the extent that Defendants’ Issue 3 is dependent on the claim
that there was no evidence that Decedent could have experienced conscious
pain and suffering at the time of the fatal event without the excluded expert
testimony, it is not only waived, but is also without merit. As we held in our
prior decision, No. 1111 EDA 2020, slip op. at 16-17 n.3, the neighbor’s fact
testimony was sufficient to show that Decedent was conscious and capable of
feeling pain and distress for a brief period during his fatal cardiac event.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/31/2023
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