Lupkin v. Sternick

*308BECK, Judge,

dissenting.

The trial court summarized its rationale for granting a new trial as follows:

Defendant offered no evidence that plaintiff did not suffer any injuries or that she did not suffer a wage loss. Thus, without evidence contradictory to the existence or to the initial cause of plaintiffs injuries, the jury was not free to reject plaintiffs claim.

Trial Court Order, p. 2. I believe that the trial court abused its discretion in impliedly requiring the defendants to disprove damages, when the burden of going forward properly lies with the plaintiff, and I must dissent.

It is well established that the “duty of assessing damages is within the province of the jury, and as triers of fact, they weigh the veracity and credibility of the witnesses and their testimony.” Cree v. Horn, 372 Pa.Super. 296, 539 A.2d 446, 450 (1988) (quoting Lewis v. Pruitt, 337 Pa.Super. 419, 487 A.2d 16, 22 (1985)). This is true where the plaintiffs evidence is uncontradicted by the defendant, or even where the defendant has presented no evidence at all. Brodhead v. Brentwood Ornamental Iron Co., 435 Pa. 7, 11, 255 A.2d 120 (1969); Morgan v. Philadelphia Electric Co., 299 Pa.Super. 545, 445 A.2d 1263, 1265 (1982).

The jury in this case was free to disbelieve the plaintiffs evidence of injury and its cause, and their verdict “should not be interfered with unless it clearly appears that the amount awarded resulted from caprice, prejudice, partiality, corruption or some other improper influence.” Gradel v. Inouye, 491 Pa. 534, 421 A.2d 674 (1980). In granting a new trial as to damages, the trial judge improperly substituted his own judgment for that of the jury, and this court should reverse. See Tonik v. Apex Garages, Inc., 442 Pa. 373, 275 A.2d 296 (1971).

The defendant’s medical witness, Dr. Latman, testified that the plaintiff apparently suffered from “chronic pain syndrome”, a “condition which [sic] a patient has pain for a long period of time, and we cannot make a definite diagnosis. We can’t put our finger on what’s causing the pain.” Deposition *309of Stephen F. Latman, M.D., p. 56. This defense witness testified that there was no objective evidence of the plaintiffs injuries to support her subjective complaints of pain. The majority concedes that in such cases, before the jury may award damages, it has to believe that there is pain. Nonetheless, the majority have affirmed the trial court’s decision to vacate the jury’s verdict.

The majority relies upon Hawley v. Donahoo, 416 Pa.Super. 469, 611 A.2d 311 (1992), for its holding. In Hawley, the plaintiff suffered a compression fracture of the L-3 vertebra, and the jury awarded zero damages. This court reversed because “the jury is not free to ignore an obvious injury.” Id. at 474, 611 A.2d at 313-14. The question in this case is whether plaintiffs alleged soft tissue injury was an “obvious injury” like the compression fracture in Hawley.

Our supreme court recently decided that injuries which “obviously” are accompanied by pain include a broken bone, stretched muscle, twist of skeletal system, injury to nerve, organ or function, and all consequences of injury traceable by medical science and common experience as sources of pain and suffering. Boggavarapu v. Ponist, 518 Pa. 162, 542 A.2d 516, 518 (1988). If the injury is subjective, and has no known medical source, the jury “are not to be faulted ... if they do not believe all they are told and all that their common experience does not accept.” Id. The jury, as always, may believe “all, some, or none of the evidence, and with their verdict the matter ends.” Id. at 169, 542 A.2d at 519.

A low verdict is adequate, and no new trial is necessary, where the jury heard conflicting testimony on the degree of injury. Dawson v. Fowler, 384 Pa.Super. 329, 558 A.2d 565 (1989). Dr. Latman testified that the plaintiff exaggerated her symptoms, and that there were no objective observations of injury. Latman Deposition, 27, 57. There also was evidence that the plaintiff did not credibly describe her symptoms, and that the accident was minor. Latman Deposition, 14, 21-22; N.T. 2/4/89, 178. The record reveals similarly contrasting testimony with respect to the plaintiffs actual lost wages. N.T. 2/4/89, 119-22. Faced with the conflicting testi*310mony of the witnesses, and their relative veracity and demean- or, the jury was permitted to disbelieve the plaintiffs claims. See Holland v. Zelnick, 329 Pa.Super. 469, 478 A.2d 885 (1984) (issue of whether plaintiff actually was suffering any pain and whether any such pain was caused by the defendants’ conduct is question for the jury).

Because I believe that the trial court’s grant of a new trial under the facts of this case was an abuse of discretion, I would reverse its order and reinstate the jury’s verdict.