J-A29027-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
THERESA MAROTTO : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
HEATHER HIBNER : No. 202 WDA 2022
Appeal from the Judgment Entered February 7, 2022
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): GD-17-014454
BEFORE: BENDER, P.J.E., OLSON, J., and KUNSELMAN, J.
MEMORANDUM BY OLSON, J.: FILED: FEBRUARY 23, 2023
Appellant, Theresa Marotto, appeals from the judgment entered on
February 7, 2022 after a jury returned a verdict in favor of Appellee, Heather
Hibner (Hibner). We affirm.
The trial court briefly set forth the facts of this case as follows:
On October 28, 2015, [Appellant] was operating her motor vehicle
on Route 51 near Elizabeth, [Pennsylvania]. At the same time,
[Hibner] was driving behind [Appellant] at a slow rate of speed
when [Hibner] rear-ended Appellant’s vehicle. Neither vehicle
sustained significant damage. [Appellant] denied any injury at
the scene and required no medical assistance. [Ten months after
the accident, and after Appellant visited a chiropractor, Appellant]
sought [emergency medical] treatment [] due to pain in her left
shoulder and neck. Appellant was diagnosed with cervical
radiculopathy. [1]
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1 Cervical radiculopathy is a pinched or irritated nerve in the neck causing
pain, numbness, or weakness radiating into the chest or arm. It is commonly
referred to as a “pinched nerve.” See Woodard v. Chaterjee, 827 A.2d 433,
439 (Pa. Super. 2003).
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Appellant filed [a] complaint for damages as a result of alleged
injuries caused by the accident including cervical strain and
sprain, and strain and sprain in the lumbar area.
Trial Court Opinion, 4/25/2022, at 1-2.
A three-day jury trial commenced on November 15, 2021. The jury
ultimately returned a verdict in favor of Hibner, finding that her alleged
negligence was not the factual cause of harm to Appellant. Appellant filed a
timely post-trial motion requesting a new trial. By order entered on January
25, 2022, the trial court denied relief. This timely appeal resulted.2
On appeal, Appellant presents the following issues for our review:
A. Whether Pennsylvania [] law supports a zero verdict where the
defense concede some level of harm caused by the accident?
B. Whether the trial court erred and/or abused its discretion
when[,] despite the uncontroverted medical evidence that
Appellant[] sustained/suffered some injury, the trial court
allowed a question of factual cause to remain on the jury
verdict slip?
C. Whether the trial court erred in not granting Appellant[’s]
motion for post-trial relief seeking a new trial where the jury’s
verdict was against the weight of the evidence?
Appellant’s Brief at 4 (superfluous capitalization omitted).
Appellant’s first two issues are inter-related and, therefore, we will
examine them together. Appellant contends that “[s]ince both [] Appellant’s
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2 On February 7, 2022, Appellant filed a praecipe for the entry of judgment.
Appellant filed a notice of appeal on February 8, 2022. Appellant complied
timely with the trial court’s directive to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). The trial court issued
an opinion pursuant to Pa.R.A.P. 1925(a) on April 25, 2022.
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and [Hibner’s] medical experts agreed that [] Appellant suffered an injury,
and that the motor vehicle incident was the factual cause of such injury, the
question of [f]actual [c]ause should not have been allowed to be presented to
the jury.” Id. at 7. Instead, Appellant maintains that the only issue before
the jury “should have been the amount of damages[.]” Id. Furthermore,
Appellant contends that the jury’s ultimate verdict finding Appellant was
entitled to zero damages was contrary to this Court’s precedent “repeatedly
affirm[ing] the grants of new trials after juries awarded no damages for
noneconomic loss even though defense medical experts acknowledged that
the plaintiffs had suffered soft tissue sprains or strains.” Id. (case citations
omitted).
To support an interpretation of the factual record which asserts that the
medical evidence introduced at trial was “uncontroverted” and entirely in
alignment as to whether the alleged injuries resulted from the October 2015
accident, Appellant points to various excerpts of expert testimony as
presented at trial. More specifically, Appellant claims that medical expert, Dr.
Jon Levy3 (Dr. Levy), who conducted an independent medical examination
(IME) of Appellant, testified that Appellant suffered some level of injury from
the accident, experienced pain which will last her lifetime, and has received,
and will continue to require, ongoing chiropractic treatment and epidural
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3 We note that the trial court refers to the doctor as “Dr. Leavey.” See Trial
Court Opinion, 4/25/2022, at 2. Both parties state, and a review of the trial
transcript reveal, that the doctor spells his name “Levy.” Accordingly, we will
use that spelling throughout this memorandum.
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injections. Id. at 11-16 (record citations omitted). Appellant avers that Dr.
Levy testified that her injuries were either caused by or aggravated by the
motor vehicle accident caused by Hibner. Id. at 15. Moreover, Appellant
claims that Dr. Levy also testified that he did not believe that Appellant was
“not being honest and truthful in the information that she conveyed to” him.
Id. at 12. As such, Appellant assails the trial court’s determination that Dr.
Levy’s opinions were based solely on Appellant’s subjective complaints. Id.
at 15 (“Dr. Levy quite clearly, as would make sense, testified that his opinions
were not solely based on [Appellant’s] subjective complaints, but also
reviewing the medical records, diagnostic testing, Dr. Levy’s years of
experience, numerous patients seen, and being an expert in the case.”).
Accordingly, Appellant argues that the trial court erred or abused its discretion
in failing to apply Pennsylvania case law that precluded a zero-dollar recovery
and in failing to take the issue of factual causation away from the jury. Id. at
17. For both of these reasons, Appellant contends that she is entitled to a
new trial.
We adhere to the following standard of review:
It is well-established law that, absent a clear abuse of discretion
by the trial court, appellate courts must not interfere with the trial
court's authority to grant or deny a new trial.
Thus, when analyzing a decision by a trial court to grant or deny
a new trial, the proper standard of review, ultimately, is whether
the trial court abused its discretion.
Moreover, our review must be tailored to a well-settled, two-part
analysis:
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We must review the court's alleged mistake and determine
whether the court erred and, if so, whether the error
resulted in prejudice necessitating a new trial. If the alleged
mistake concerned an error of law, we will scrutinize for
legal error. Once we determine whether an error occurred,
we must then determine whether the trial court abused its
discretion in ruling on the request for a new trial.
Czimmer v. Janssen Pharms., Inc., 122 A.3d 1043, 1051 (Pa. Super. 2015)
(brackets, ellipses, and citation omitted).
Likewise, “[i]n examining jury instructions, our standard of review is
limited to determining whether the trial court committed a clear abuse of
discretion or error of law controlling the outcome of the case.” Polett v. Pub.
Commc'ns, Inc., 126 A.3d 895, 930 (Pa. 2015) (citation omitted). “We 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. (brackets and citation
omitted).
In this case, the trial court opined:
[…M]edical records and [] testimony [] indicate that, predating
the [October 2015 accident], Appellant complained of neck pain
and back pain and consulted a chiropractor for it. Appellant’s
post-accident complaints were noted to be subjective. During her
IME with Dr. [Levy], he noted that [Appellant] denied any history
of neck or shoulder issues despite records indicating otherwise.
[In his deposition presented at trial, Dr. Levy] stated that
[Appellant] advised him that prior to the accident she had no neck
or shoulder issues and saw [a] chiropractor for vertigo. However,
the records show that[,] on December 8, 2014[,] when presenting
to her chiropractor, [Appellant’s] chief complaint was for pain in
the neck and lower back. [To restate, Appellant’s] complaints of
pain when attending the IME were noted to be subjective.
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During testimony, Dr. [Levy] emphasized that in opining that
Appellant sustained an injury as a result of the crash, he relied
only upon her subjective complaints. There were no records
before him which were not based upon subjective matters. There
was no objective evidence of injury on exam or from a radiological
standpoint. Thus, the jury was properly instructed to take into
consideration whether the expert testimony was based upon
believable factors and objective facts. To suggest that the finders
of fact[] be denied that duty, and directed to award damages
based upon [Appellant’s] subjective assertions that she never
suffered back and neck issues prior to the accident would have
been error.
Trial Court Opinion, 4/25/2022, at 4-5.
Upon review of the trial court’s decision, applicable law, and the certified
record in this matter, we discern no trial court error of law or abuse of
discretion. Here, the trial court found the experts’ agreement regarding the
factual cause of injury was not binding because there was record evidence
that Appellant complained of neck and back pain and consulted and treated
for those symptoms with a chiropractor before the accident. While Appellant
later claimed that the pre-accident medical treatment was for vertigo, medical
records introduced at trial confirmed that she sought treatment for neck and
back pain prior to the October 2015 motor vehicle accident. Moreover, Dr.
Levy stated that his expert opinion was based, in part, upon Appellant’s
medical history as relayed to him by Appellant and that she failed to disclose
pre-accident issues with her neck and back. Dr. Levy specifically stated that
his opinion was based upon Appellant’s subjective complaints, but he made
no further comment on her credibility. In view of the treatment records
confirming pre-accident conditions present in Appellant’s neck and back, and
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Appellant’s contrary position at trial advocating that her neck and back pain
derived exclusively from the October 2015 accident, Appellant’s credibility was
squarely at issue and, therefore, we reject Appellant’s suggestion that the trial
court erred or abused its discretion in failing to withhold the question of factual
cause from the jury. There was simply no objective evidence that the car
accident was the factual cause of Appellant’s alleged injuries. Moreover, based
upon our review of the jury charge pertaining to factual cause, and bearing in
mind the true evidentiary background as set forth above, the trial court
properly charged the jury.4 Thereafter, the jury was free to make credibility
determinations and accept all, some or none of the evidence presented. See
Commonwealth v. Davido, 868 A.2d 431, 442 n.18 (Pa. 2005) (“The weight
of the evidence is exclusively for the finder of fact, which is free to believe all,
part, or none of the evidence, and to assess the credibility of the witnesses.”).
Finally, with a corrected view of the trial record in mind, we now turn to
Appellant’s third claim in which she submits that the jury’s ultimate
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4 Because we conclude that the factual cause of Appellant’s alleged injuries
was controverted, we reject Appellant’s reliance on this Court’s prior decisions
granting new trials when juries award zero damages despite undisputed
evidence of suffered injuries resulting from car accidents. See Appellant’s
Brief at 11, citing Mano v. Madden, 738 A.2d 493 (Pa. Super. 1999) (finding
a new trial warranted on the issue of damages in personal injury action where
the evidence was uncontradicted that plaintiff suffered some injuries as result
of a vehicular accident despite dispute about the extent and duration of the
injury); Rozanc v. Urbany, 664 A.2d 619 (Pa. Super. 1995) (finding a new
trial warranted in automobile accident case where jury found that defendant
had been negligent, but that negligence was not substantial factor in bringing
about harm to plaintiff where the evidence was uncontradicted that plaintiff
suffered some injuries as result of accident).
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determination that Appellant “had no injuries, pain/suffering, or related
treatment despite all the medical experts saying the opposite,” was against
the weight of the evidence. Id. at 19.
Previously, we have stated,
[a] claim alleging the verdict was against the weight of the
evidence is addressed to the discretion of the trial court.
Accordingly, an appellate court reviews the exercise of the trial
court's discretion; it does not answer for itself whether the verdict
was against the weight of the evidence.
It is well[-]settled that the jury is free to believe all, part, or none
of the evidence and to determine the credibility of the witnesses,
and a new trial based on a weight of the evidence claim is only
warranted where the jury's verdict is so contrary to the evidence
that it shocks one's sense of justice. In determining whether this
standard has been met, appellate review is limited to whether the
trial judge's discretion was properly exercised, and relief will only
be granted where the facts and inferences of record disclose a
palpable abuse of discretion.
Commonwealth v. James, 268 A.3d 461, 468 (Pa. Super. 2021). “One of
the least assailable reasons for granting or denying a new trial is the lower
court's conviction that the verdict was or was not against the weight of the
evidence.” Commonwealth v. Antidormi, 84 A.3d 736, 758 (Pa. Super.
2014) (citation omitted). “Because the trial judge has had the opportunity to
hear and see the evidence presented, an appellate court will give the gravest
consideration to the findings and reasons advanced by the trial judge.” Id.
In rejecting Appellant’s claim that the verdict was against the weight of
the evidence presented at trial, the trial court determined:
During the trial[,] the jury heard testimony [from] both fact
witnesses, like [] Appellant herself, and expert witnesses, who
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were not present at the accident, but assumed certain facts in
reaching their opinion, i.e., whether the accident caused
Appellant’s back and neck issues. Dr. [Levy] was unable to base
his opinion regarding the factual cause of Appellant’s complaints
on anything other than [Appellant’s] version of her history with
back and neck conditions. The jury was free to reject Appellant’s
version, whether it came directly from her own testimony or from
Dr. [Levy’s] recollection of her history given during the course of
the [IME].
Trial Court Opinion, 4/25/2022, at 6.
The trial court did not believe that the verdict was so contrary to the
evidence that it shocked one's sense of justice. Upon our review, the facts
and inferences of record disclose that the trial court did not palpably abuse its
discretion in ruling on Appellant’s weight of the evidence claim. For all of the
foregoing reasons, Appellant is not entitled to a new trial, and we affirm the
trial court’s judgment.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/23/2023
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