Smith v. Putter

BENDER, J.,

Concurring and Dissenting.

111 I join the Majority’s decision in all parts except for one. The Majority concludes that, “Unlike the evidence with respect to the hip injury, the evidence presented with respect to the wrist and shoulder injuries was not uncontradicted with respect to whether the accident was a substantial factor in causing the wrist and shoulder injuries.” Majority Slip Opinion at 9. I write separately to distance myself from this statement as I conclude that it is contrary to the record. However, I agree with the Majority’s conclusion that the Plaintiffs waived the wrist and shoulder claims due to their failure to raise these claims in their post-trial motion.3 Thus, I agree that the case should *1102be remanded and that the proceedings should be limited to a new trial on damages for the hip injury alone.

¶ 2 In this case, the jury determined that Defendant was negligent, but that Defendant’s negligence was not “a substantial factor in bringing about any harm to” Mr. Smith. Verdict Slip at 1; Reproduced Record (R.R.) at 10a. Plaintiffs argue that this verdict was against the weight of the evidence because Defendant’s medical expert agreed with Plaintiffs’ medical experts that Mr. Smith suffered some injury to his hip, wrist and shoulder, as a result of the accident. Recently, in Andrews v. Jackson, 800 A.2d 959 (Pa.Super.2002), appeal denied, 572 Pa. 694, 813 A.2d 835 (2002), we addressed this issue and stated:

Where there is no dispute that the defendant is negligent and both parties’ medical experts agree the accident caused some injury to the plaintiff, the jury may not find [that] the defendant’s negligence was not a substantial factor in bringing about at least some of plaintiff’s injuries. Such a verdict is contrary to the weight of the evidence adduced at trial. In other words, a jury is entitled to reject any and all evidence up until the point at which the verdict is so disproportionate to the uncontested evidence as to defy common sense and logic.

Id. at 962. Therefore, “[i]t is impermissible for a jury, in a personal injury case, to disregard the uncontroverted testimony from the experts for both parties that the plaintiff suffered some injury as a result of the accident in question.” Mano v. Madden, 738 A.2d 493, 496 (Pa.Super.1999) (en banc) (emphasis added).

¶ 3 Relying upon this law, Plaintiffs argue that when a defendant’s negligence is established in a vehicle accident case, and both parties’ medical experts agree that the plaintiff suffered an injury from the accident, then a jury’s verdict that the defendant’s negligence was not a substantial factor in bringing about the plaintiffs injury is against the weight of the evidence. In this regard, Plaintiffs cite the testimony by Defendant’s medical expert, Dr. Marc Kelman, regarding Mr. Smith’s alleged injuries to his hip, wrist and shoulder. Dr. Kelman’s, testimony regarding the shoulder and wrist is as follows:

Q. Now, with regards to the shoulder, do you have an opinion within a reasonable degree of medical certainty as to the cause of and diagnosis of his shoulder problems?
A. Yes.
Q. And what’s your opinion please?
A. That he has essentially chronic pain in the left shoulder. The etiology would be a little difficult since he’s had several injuries to the shoulder, one being at the time of the motor vehicle accident, he complained of some shoulder pain, which sounded like a tendinitis type of problem. Subsequent to that, he had a major fall off a ladder onto that shoulder with cracking and locking and that goes more to along the lines of a major joint problem with regard to the articular cartilage and those types of structures.
Q. And I guess what you are telling me is that (a) Kevin didn’t have a perfect wrist prior to the accident, and (b) you believe that the accident aggravated those existing pre-existing problems with his wrist, fair to say?
*?A. I would say briefly [(as in “for a brief amount of time”) ].

R.R. at 680a, 811a-12a (emphasis added). I conclude that the foregoing testimony establishes a concession by Defendant’s medical expert that Mr. Smith suffered at least some injury to his wrist and shoulder as a result of the accident.4 In accordance with our prior holdings in Andrews and Mano, I also conclude that the jury could not have found that Defendant’s negligence was not a substantial factor in causing these injuries to Mr. Smith. Andrews, 800 A.2d at 964; Mano, 738 A.2d at 496. Similarly, the trial court could not have reasonably reached its conclusion that the jury’s verdict was not against the weight of the evidence in this regard.

¶ 4 The foregoing represents unequivocal evidence that Mr. Smith suffered some injury to his wrist and shoulder as a result of the accident. Notwithstanding this evidence, the Majority mistakenly focuses on the extent of these injuries,5 However, whether the injury was a scrape, a broken bone or even one that is life-threatening, has absolutely no bearing on our analysis of the substantial factor issue. In this regard, the Majority’s decision abolishes the line distinguishing those cases where a jury awards zero or allegedly inadequate damages from those cases where the jury’s finding on causation is against the weight of the evidence.

¶ 5 The Majority’s analysis does so by reasoning that because the parties’ evidence was contradictory as to the extent of the injury, an issue which only relates to the extent of damages, the jury could find that Defendant’s negligence was not a substantial factor in causing some injury to Mr. Smith’s shoulder and wrist despite the fact that Defendant’s expert conceded the existence of an injury to the shoulder and wrist which resulted from the car accident. This is a classic case of putting the cart before the horse. In point of fact, a jury is not even to consider the amount of damages when it has found no causation. But under the Majority’s holding, the jury may first consider damages, and if it finds none, it can then conclude that there was no causation. See Majority Opinion at 1100 (stating that if a jury concludes that the accident “did not cause compensable pain”, then it can conclude “that the accident was not a substantial factor”). The Majority’s ends-driven analysis concludes that it is of *1104“[n]o matter how it is phrased”, so long as the jury is ultimately finding that “no compensation is due.” Id.

¶ 6 This statement by the Majority directly conflicts with our statement in Andrews that the distinction between a finding of no causation and a finding of no compensable pain does matter. In Andrews, we discussed our prior holding in Majczyk v. Oesch, 789 A.2d 717 (Pa.Super.2001) (en banc), a case which the Majority now cites as support for its holding, and we explained our holding in Majczyk as follows:

In that case, the defendant’s medical expert conceded the plaintiff had some, sore muscles after the accident. The jury, however, did not award the plaintiff damages. This Court concluded that the jury may decide, based on their experience and common sense, that a claimed injury is not serious enough to award compensation. In other words, the jury is permitted to find the defendant’s negligence caused an “injury,” but that the “injury” caused was not compensable. Thus, this Court held, “that the determination of what is a compensable injury is uniquely within the purview of the jury.” Id. at 726. Our reading of Majczyk, however, does not lead us to conclude that a jury may disregard uncontroverted expert witness testimony that the accident at issue did not cause some injury. Rather, we conclude the jury must find the accident was a substantial cause of at least some injury, where both parties’ medical experts agree the accident caused some injury. While the jury may then find the injuries caused by the accident were incidental or non-compensable and deny damages on that basis, the jury may not simply find the accident did not “cause” an injury, where both parties’ medical experts have testified to the contrary.

Andrews, 800 A.2d at 963-64. The Majority’s holding cannot be reconciled with the foregoing, and is in fact an abrogation of it. And therefore, the Majority’s decision is improper under our rule that one panel of this Court cannot overrule a previous panel’s decision. See Commonwealth v. McCormick, 772 A.2d 982, 984 (Pa.Super.2001); Gorski v. Smith, 812 A.2d 683, 702 n. 8 (Pa.Super.2002). For all the foregoing reasons, I must respectfully dissent.

. I commend my esteemed colleague, Judge Klein for his meticulous review of this case that resulted in his unearthing of the waiver argument, which is key to this Court’s decision, and which Defendant failed to present to this Court. Cf. In re Estate of Cochran, 738 A.2d 1029, 1032 (Pa.Super.2003) (stating that we may affirm a trial court’s decision for reasons other than those upon which it relied, and although we may consider only issues *1102presented by the parties on appeal, we are not confined to their argument when affirming a trial court’s decision).

. I note that in various portions of Defendant’s counter-argument, she avers that Mr. Smith gave incomplete information regarding his medical history. However, Defendant fails to articulate specifically how Dr. Kel-man’s testimony could have been influenced by the alleged incomplete medical history. More importantly, Defendant fails to establish how this evidence could detract from the import of Dr. Kelman's testimony that Mr. Smith suffered injuries as a result of the accident. Thus, as we stated in Mano, where the plaintiff allegedly gave his chiropractor an incomplete medical history, "Although this testimony is important in evaluating the extent of [the plaintiff’s] injuries and his overall credibility, appellant cannot ignore the testimony of her expert witness that [the plaintiff] suffered a neck and back strain as a result of the 1993 accident; compensation for these injuries is for a jury to decide on remand." Mano, 738 A.2d at 497.

. I note that the Majority states, "Dr. Kelman also stated on cross-examination that he could not relate Smith’s current wrist problems and his wrist injury to the automobile accident of 1999, the accident at issue.” Majority Slip Opinion at 9. The Majority cites pages 97-98 of Dr. Kelman's deposition, and yet the only mention of causation in these pages is where he testifies that he "[could not] relate all of it” to the accident. N.T., 2/20/02, at 97 (emphasis added). Implicit in this testimony is that while Dr. Kelman could not "relate all” of Mr. Smith’s injury to the car accident, he could relate at least part of it, and he stated so in his testimony quoted above. Therefore, his testimony is not contradictory, as the Majority states.