J-A04008-19

                                  2019 PA Super 336

    LOUIS FARESE AND KATHARINE                 :   IN THE SUPERIOR COURT OF
    FARESE                                     :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    JAMES ROBINSON AND VENTURI                 :
    TECHNOLOGIES, INC.                         :   No. 145 EDA 2018
                                               :
                       Appellants              :

              Appeal from the Judgment Entered December 4, 2017
      In the Court of Common Pleas of Philadelphia County Civil Division at
                          No(s): April 2015 No. 01084


BEFORE:      LAZARUS, J., KUNSELMAN, J., and COLINS, J.*

OPINION BY COLINS, J.:                              FILED NOVEMBER 08, 2019

        Appellants, James Robinson and Venturi Technologies, Inc. (“Venturi”),

appeal from the judgment entered December 4, 2017, after a jury awarded

Appellees, Louis Farese (“Mr. Farese”) and Katharine Farese (“Ms. Farese”),

husband and wife, compensatory damages in the underlying negligence action

totaling $2,579,000.00. We affirm.

        The facts underlying this appeal are as follows. On August 29, 2014,

Mr. Farese was involved in a motor vehicle collision in Delaware County after

his 1998 Ford Mustang convertible was struck from behind by a work van

owned by Venturi and operated by Robinson. The impact from the collision

caused Mr. Farese’s vehicle to turn over onto its convertible roof and the

airbags to deploy. At the time of the collision, Robinson was employed by

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-A04008-19


Venturi and was acting within the scope, course, and furtherance of his

employment and with the permission and knowledge of Venturi. Mr. Farese

was transported from the collision scene to the hospital where he complained

of left forearm, back, and facial pain to hospital personnel. Mr. Farese was

evaluated, x-rayed, and released later that day. He was diagnosed with back

strain, forearm contusion, and neck strain, prescribed Motrin, and instructed

to follow up with his primary care physician as soon as possible. Four days

after the collision, Mr. Farese began treatment with Dr. Robert Sing, a sports

medicine doctor, for neck pain, back pain, and headaches; he would later

receive treatment from a spinal surgeon, a neurologist, and a pain

management specialist, as well. At the time of the collision, Mr. Farese was

part-owner of Nick and Lou’s Pines Diner in Clifton Heights, Delaware County,

which is open seven days a week.

      On April 13, 2015, Appellees commenced this action by complaint.

Count I of the complaint alleged:

      As a result of the aforesaid collision, which was caused by the
      recklessness, carelessness and negligence of [Appellants], as
      aforesaid, [Mr.] Farese[] suffered injuries which are serious,
      severe and permanent, including, but not limited to: cervical disc
      herniations, lumbar disc herniations, lumbar strain and sprain,
      thoracic strain and sprain, cervical strain and sprain, forearm
      contusion, left wrist strain and sprain, concussion, post–
      concussive syndrome, headache syndrome, aggravation,
      acceleration and/or activation of any pre-existing condition or
      conditions regarding same, as well as a severe shock to [his]
      emotional, psychological and nervous systems, all of which have
      caused, continue to cause and probably in the future will cause
      [him] great pain and agony.




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Complaint, 4/13/2015, at ¶ 12.    In Count II of the complaint, Ms. Farese

sought compensation for her husband’s injuries that “deprived [her of his]

assistance, comfort, society and consortium.” Id. at ¶ 16.

     On November 17, 2015, the parties signed an agreement wherein

Appellants stipulated to: (1) their negligence for causing the motor vehicle

collision involving Mr. Farese; (2) the fact that Appellees were not

comparatively negligent; and (3) Appellants’ negligence being a factual cause

of Mr. Farese’s injuries. Stipulation, 11/17/2015, at ¶¶ 1-2. Appellants also

reserved the right to challenge the nature and extent of any injuries claimed

by Appellees.   A jury trial would thereby be held solely on the issue of

compensatory damages.

     In their proposed jury instructions, submitted on September 19, 2016,

Appellants requested the following charge:

     You may not include in any award to the Plaintiff any amount that
     you might add for the purpose of punishing Defendant or to serve
     as an example or warning for others. Such damages would be
     punitive, and are not authorized.     Wildman v. Burlington
     Northern R. Co., 825 F.2d 1392 (9th Cir. 1987); Kozar v.
     Chesapeake & Ohio Ry., 449 F.2d 1238, 1240 (6th Cir. 1974);
     Matter of Mardoc Asbestos Case Clusters 1, 2, 5 and 6, 768
     F.Supp. 595, 597 (E.D. Mich. 1991); Toscano v. Burlington
     Northern R. Co., 678 F.Supp. 1477, 1479 (D. Mont. 1987).

Appellants’ Proposed Jury Instructions, 9/19/2016, No. 14.

     On September 21, 2016, Appellants filed a motion in limine to preclude

the testimony of two of Appellees’ expert witnesses, Dr. Nirav Shah and

Dr. Andrew Shaer, on the basis that their testimony would be cumulative. The

trial court granted the motion as to Dr. Shah but denied it as to Dr. Shaer,


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because “Dr. Shaer is a radiologist and reading those films, [Appellees a]re

allowed to bring him in to give a reading as to that.” N.T., 9/27/2016, at 8.

      During oral argument on this motion, Appellants’ counsel mentioned

that they intended to call Dr. Lee Harris as an expert to refute Appellees’

medical experts. Id. at 24.

      The jury trial commenced on September 27, 2016.            After Appellees’

counsel stated during his opening that Appellants “have a low value for human

well-being[,]” the trial court sustained Appellants’ objection and instantly

instructed jury: “You're to disregard that last statement.” N.T., 9/27/2016,

at 63-64; see also id. at 67 (trial court suggests that grounds may exist for

a mistrial). Appellees’ counsel then stated that Appellants “know [Mr. Farese]

needs ongoing medical treatment. They don’t want him to have it. They don’t

want to pay for it. . . . The last reason we’re here is because [Appellants]

refused to provide full and fair compensation. We’re forced to bring them to

trial.” Id. at 64, 69-70. Appellants’ counsel immediately moved for a mistrial,

claiming that Appellees’ counsel’s statements improperly injected the issue of

punitive damages into the case before the jury.       Id. at 70 (objection), 71

(defense counsel specifically moves for mistrial), 73 (defense counsel asks

trial court for a specific ruling on the motion for mistrial).    The trial court

denied the motion. Id. at 73. Appellees’ counsel concluded: “[Appellants]

know how expensive this is. They bring us to court.” Id. at 74. Appellees’

counsel also attacked the credibility of Dr. Harris, in anticipation of Appellants

calling him to testify. Id. at 89-90.


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       During trial, the jury saw filmed testimony of Dr. Michael Cohen, id. at

118, who diagnosed Mr. Farese as having post-concussion syndrome. Trial

Court Opinion (“TCO”), filed September 6, 2018, at 31 (citing N.T., Cohen

Testimony, 5/20/2016, at 26). Dr. Cohen “explained that if a brain injury

lasts more than one year there is evidence to suggest this injury would be

considered permanent.”         Id. (citing N.T., Cohen Testimony, 5/20/2016, at

26).

       The jury also heard from neuroradiologist Dr. Andrew Shaer, who
       conducted a study on the MRI results of [Mr. Farese]. Dr. Shaer
       offered his expert opinion, consistent with that of the other
       doctors, that [Mr. Farese] has a disc herniation at C6-7 without
       bone spurs whose signal intensity is greater than that of its disc
       origin. Shaer Testimony 5/24/2016 at 34. These results are
       consistent with a finding resulting from a recent traumatic event
       - the motor vehicle collision that occurred on August 29, 2014.
       Id.

Id. at 32.

       Dr. Sing testified that a magnetic resonance image (“MRI”) of

Mr. Farese’s cervical spine showed degenerative disk disease with acute

herniations at C6-7 and lower neck disc rupture. N.T., 9/28/2016, at 48.

       The jury also watched pre-recorded testimony from Dr. Christian Fras,

who “offered his expert opinion that [Mr. Farese] sustained injuries of a

cervical disc herniation, aggravation of cervical and lumbar spondylosis[1] and

a new finding of annular tear at L4-5 directly related to the motor vehicle

collision.” TCO, filed September 6, 2018, at 31 (citing N.T., Fras Testimony,


____________________________________________


1 Spondylosis refers to degenerative spinal changes. See https://medical-
dictionary.thefreedictionary.com/spondylosis (last visited 10/2/2019).
                                           -5-
J-A04008-19


7/29/2016, at 19, 25-26).      Dr. Fras “acknowledged that [Mr. Farese] is a

surgical candidate and very well could require surgery to both the cervical and

lumbar spine.” Id. (citing N.T., Fras Testimony, 7/29/2016, at 25).

      Mr. Farese’s business partner, Nick Piscitelli, testified that, before the

collision, he and Mr. Farese split the duties at the diner that they co-owned,

including opening the diner in the mornings, seating customers, doing

inventory, meeting with food suppliers, handling personnel issues, working

the cash register, and interacting with the customers. N.T., 9/30/2016, at 8,

11-12. Piscitelli testified that, after the collision, Mr. Farese had to miss work

to go to specialists and physical therapy two to three times per week, causing

Piscitelli to have to do the majority of the work at the diner and put in long

hours. Id. at 22. Piscitelli also testified that since the collision, Mr. Farese

cannot do any heavy lifting or physical activities associated with his job at the

diner. Id. at 24.

      Ms. Farese testified that her husband used to “help[ her] around the

house” but now becomes “easily agitated [and has] mood swings” and will

often “walk away mid[-]conversation” when a headache begins; she added

that her “physical relationship [with him] isn’t what it used to be . . . things

just aren’t the same between us as they used to be.” N.T., 9/30/2016, at 46-

48.   “During cross-examination of [Ms.] Farese, [Appellants’] counsel . . .

focus[ed] his questions upon issues regarding Mr. Farese’s injuries,

medications, presence at medical appointments, his general health before and




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after the injuries, and the injuries’ impact on Mr. Farese’s employment.” TCO,

filed September 6, 2016, at 36 (citing N.T., 9/30/2016, at 50-54).2

       Farese himself testified that, at the time of trial, he was 50 years old.

N.T., 9/30/2016, at 55.

       Mr. Farese testified that before the collision, he did not see[] any
       specialists for medical problems, was not taking medications, and
       was not receiving injections. [N.T., 9/30/2016,] at 67-68. . . .
       Mr. Farese specifically state[d,] “I never had an issue ... I was in
       great physical health. Never any problems. The thing they
       mentioned about the degenerative things and whatnot.               If
       anything was there, never experienced any sign” of those
       problems before. Id. at 67.

       After the motor vehicle collision caused by [Appellees], Mr. Farese
       suffered a swollen left wrist, neck pain, back pain and head pain.
       [Id.] at 71. Mr. Farese describe[d] these headaches as “being
       extremely profound to the point where [the headache] completely
       disables me. I got to go lay down,” and at other times as though
       his “skull was going to explode.” Id. at 100. Regarding his
       headaches, Mr. Farese stated they “could last the entire night.
       Could last the entire day. Couple very isolated incidents, I’ve had
       them an entire day, all day into night.” Id. Further, the
       headaches “interfere with everything.        It’s very debilitating.
       Interrupts – forgetting about putting activities aside, even sleep.”
       Id. Mr. Farese, regarding his neck pain, experiences very stiff
       achy pain in his neck all day which he treats with heat and a
       [transcutaneous electrical nerve stimulation] unit. Id. at 102. For
       instance, if Mr. Farese “move[s his] head too far in one direction,
       it sends a shooting pain into [his] neck.” Id. at 103. He also
       experiences similar low back pain and has difficulty sitting for long
       periods of time. Id. . . . The injuries forced him to undergo
       physical therapy approximately three times per week for seven
       months. Id. at 76. Despite being healthy before the collision,
       Mr. Farese was prescribed several prescription medications
       including: Fioricet, Imitrex, Cambia, Sumatriptan and Meloxicam.
       Id. at 75, 80. Mr. Farese testified that the Cambia powder “made
____________________________________________


2 The trial court opinion cites to the notes of testimony for October 3, 2016,
but, pursuant to our review of the record, we believe that this date is a
typographical error and that the trial court intended to cite to the notes of
testimony for September 30, 2016.
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      [him] nauseous, like he was going to be sick from either end.” Id.
      at 81. Even the most mild of the prescription medications had
      adverse side effects “which made [his] stomach mildly upset[.]”
      Id. Mr. Farese still takes that medication, Meloxicam, daily with
      food. Id.

      Regarding his treatments, Mr. Farese stated that he understood
      from his spinal surgeon, Dr. Fras, that he may require both neck
      and back surgery in the future. Id. at 82. Mr. Farese testified
      about his lumbar facet injections, which [are] three needles each
      time, and has had three series thus far and another scheduled.
      Id. at 85. Mr. Farese testified about the trigger point injections
      that he received in his upper neck and head. Id. Also, Mr. Farese
      described the process of occipital block injections wherein a
      “needle [is] put into your skull, the very base of your skull, put it
      in there. Not pleasant either.” Id.

TCO, filed September 6, 2018, at 27-29.

      Mr. Farese further testified that, prior to the collision, he was active,

playing pick-up football games with his friends, working out at his home gym

three times per week, running regularly, coaching his children in sports, and

caring for his aging parents but that he now has difficulty even picking up bags

when food shopping. N.T., 9/30/2016, at 58, 61, 63, 67, 93-94; see also

TCO, filed September 6, 2018, at 29. Mr. Farese also testified that the collision

has had an emotional and social impact on him, his children, and his

relationship with his wife, stating that his circumstances are “embarrassing

and humiliating . . . even with [his] wife. Whether it’s out or home. You still

feel a certain way when you can’t do certain things[.]” N.T., 9/30/2016, at

74, 91-94, 98; see also TCO, filed September 6, 2018, at 29. “Mr. Farese

stated that his attendance to family events or movies has been significantly

reduced because ‘[i]t’s always in the back of my head. I hope I don’t get a




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headache ... it’s definitely cut down on a lot of social activities." TCO, filed

September 6, 2018, at 29 (quoting N.T., 9/30/2016, at 98).

      The defense rested without calling any witnesses, including Dr. Harris.

N.T., 9/30/2016, at 111.

      Prior to closing argument, the trial court instructed the jury: “[T]hese

arguments are not evidence[.]” N.T., 10/3/2016, at 55.

      In closing his closing argument, Appellees’ counsel made the following

remarks:

      They’re calling Mr. Farese a fraud. That’s what they’re saying he
      is here in court, a fraud. . . . Shame on them for doing this to him,
      for what they’ve put him through for the past years and what he
      has to go through for the next at least 30 years and what they’ve
      done to him in this courtroom.

      Shame on those defendants for doing this to him. . . .

      They brought him to court, and the part about this that really is
      so aggravating to Mr. Farese and his family is that this saying that
      they’ve agreed to negligence, it wasn’t always like that. . . . They
      didn’t want to agree until they were forced to about what
      happened here. . . . They blamed Mr. Farese for what happened.
      They then go and file, if an accident occurred in the manner
      alleged by [Appellees], then such accident occurred as a result of
      the negligence of the plaintiff, Mr. Louis Farese.

      Are you kidding me? This is what this gentleman has been
      tormented for in the past years. They knew exactly what they
      were doing. This case was going to court from day one and he
      had to do everything possible to protect himself from how he was
      being treated.

      What sort of people slams [sic] somebody in the rear, causes the
      car to flip up in the air, causes injury to these people and then
      says, let’s make up an excuse, let’s come up with some reason
      why we don’t have to pay them as much money as they’re entitled
      to. . . . They could care less about what they did to Mr. Farese,
      trying to make him look like he’s not hurt that bad. . . . [T]his is
      how he gets treated by these people.

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      You know what? The thought always is, well, let’s throw out what
      we can, let’s say that we’re responsible for the accident. Because
      maybe the jury will like us if we do that so we can save some
      money.

      That’s not taking responsibility for anything, ladies and
      gentlemen. . . . These people didn’t even bother to show up to
      court. . . . [T]hey don’t even have the courtesy to show up here.

      Responsibility is paying in full for what you did . . . what these
      people are doing here, trying to avoid what their responsibility is.

      They’re hiding from it. . . . You see, [Appellants] also have no
      limits on how they attack someone’s character. . . . [W]hat’s crazy
      is having to spend $5,000 to pay a doctor to come in here. . . .
      What’s crazy is forcing us to do that, and people like Venturi with
      companies like that and people like Mr. Robinson, they know this.
      What they also know is there’s a certain amount of people that
      can’t do it. . . . You may be outraged by it. You should be. That’s
      a lot of money to have to spend. But those are the crazy numbers.

Id. at 59, 61-66, 71. Appellants’ counsel objected to these remarks but never

explicitly moved for a mistrial or new trial. Id. at 71. After the trial court

sustained Appellants’ objection, id. at 71-72, it then immediately admonished

Appellees’ counsel, “You can’t talk about what it cost you to bring a case to

trial. . . . I don’t want any other references to cost of litigation.” Id. at 72-

73. The trial court then told Appellants, “If you want to give me a curative

instruction before we break for lunch, before I charge.” Id. at 73.

      Appellees’ counsel’s closing argument continued:

      This is about real human suffering that’s going on and [Appellants]
      just don’t want to pay for it. That’s the bottom line. . . . What you
      don’t hear about is what is called frivolous defenses. Making up
      things for litigation. Coming in and telling you things that aren’t
      true.

Id. at 88, 90. Appellants’ counsel objected but, again, never overtly asked

for a mistrial to be declared. Id. at 90. The trial court told Appellees’ counsel:



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“I will preclude you from attacking him further with frivolous. [sic]         He’s

disputing the nature and extent of the injuries.” Id. at 91. Appellees’ counsel

then concluded his closing argument:

      How [Appellants] view human well-being is in your hands. The
      only tool that you have that you’re giving in our judicial system is
      one by entering a full and fair award. That will be the determinant
      for these people to follow the rules.

      Society is going to have to know any time they’re driving in front
      of a Venturi Technologies truck, they’re going to be okay. These
      people have to know they need to spend more money on making
      the highway safe for other motorists than come to court and trying
      to protect their money now.

      Protecting money can never be more important than protecting
      the safety and well-being of a human being. . . . What they’ve
      taken away from [Mr. Farese] is his good name, a good name he’s
      enjoyed before he got involved with any of this. To prevent the
      amount of money. They’ve put Mr. Farese’s good name in
      jeopardy in public. . . . It’s all to protect their money. They’ll do
      anything to protect that money. Blame people and tell the jury
      things they shouldn’t be telling him.

      You see, it just didn’t stop there. It wasn’t just [Mr. Farese] they
      attacked in court here. It was his doctors too. . . .

      His good name will be vindicated by you.

      That’s what he wants.     The doctors will be vindicated by you.
      That’s what they want.

Id. at 94, 96-98.

      During his closing argument, Appellants’ counsel stated,

      In my opening, I discussed Dr. Harris. It became pretty clear to
      me that you have all paid close attention to all witnesses here,
      and I think you understand what’s going on here, and I again saw
      no need to bring in another doctor to add on what was happening
      here.

Id. at 112-13. Appellants’ counsel never mentioned Ms. Farese once during

his opening statement or closing argument.

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      Prior to the final jury charge, the trial court asked Appellants: “Lastly,

you want a curative instruction on something. Draft something. Run it by

counsel and see what we can do with this?” Id. at 146. Appellants answered,

“Yes, Your Honor, thank you.” Id. Nothing on record indicates that Appellants

ever provided the trial court with any such instructions.

      During the final charge, the trial court instructed the jury that Mr. Farese

was entitled to be “fairly and adequately compensated for all” physical harm,

mental anguish, inconvenience and past and future distress, embarrassment

and humiliation, and loss of ability to enjoy life’s pleasures. Id. at 160-61.

The court also listed the factors to consider when awarding compensatory

damages: Mr. Farese’s age; the severity of his injuries; whether his injuries

are temporary or permanent; the extent to which his injuries affect his ability

to perform basic activities of daily living; the duration and nature of his

medical treatment; the duration and extent of his physical pain and mental

anguish (past and future); and his health and physical condition prior to

injuries. Id. at 161-62. The trial court then provided the following instruction

to the jury when considering the consortium claim:

      [Mr. Farese]’s spouse is entitled to be compensated for the past,
      present and future loss of the injuries to her, and the past,
      present, and future loss of companionship of her spouse.
      Consortium claims are losses arising out of the marital
      relationship. Consortium is the marital fellowship of a husband
      and wife and including the company, society, cooperation,
      affection and aid of the other in the marital relationship. Such
      claims include a loss of support, comfort and assistance. The loss
      of association and companionship and the loss of ability to engage
      in sexual relations.



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Id. at 162. The trial court’s final charge to the jury was: “You should keep

your deliberations free of any bias or prejudice.” Id. at 169. There is no

indication in the record that the court issued that Appellants’ proposed

instruction No. 14.

       On October 3, 2016, the jury found Appellees were entitled to

$2,579,000.00 in compensatory damages -- $1,248,000.00 for non-economic

damages; $900,000.00 for future medical bills; $15,000.00 for past medical

bills; and $416,000.00 for loss of consortium to Ms. Farese. Appellants filed

timely post-trial motions seeking a new trial or, in the alternative, remittitur

of the jury’s verdict. The trial court denied the motions on November 29,

2017. Judgment on the verdict was entered on December 4, 2017. Appellants

filed this timely direct appeal on December 28, 2017.3

       Appellant presents the following issues for our review:

       1.    Did the trial court err and abuse its discretion in failing to
       grant a new trial on damages, where [Appellees’] counsel
       repeatedly made improper, inflammatory, offensive and highly
       prejudicial comments and arguments?

       2.    Did the trial court err and abuse its discretion in failing to
       grant a new trial on damages after the trial court, over
       [Appellants’] objection, allowed four (4) different physician
       experts to give cumulative and repetitive opinion testimony
       regarding their readings of the same MRI, to the unfair prejudice
       of [Appellants]?

       3.    Did the trial court err and abuse its discretion in failing to
       grant a new trial on damages to the admission of improper
       evidence regarding the amounts of future medical bills, which


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3 Appellants filed their statement of errors complained of on appeal on
February 16, 2018. The trial court entered its opinion on September 6, 2018.
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       evidence violated the Pennsylvania Motor Vehicle Financial
       Responsibility Law?

       4.    Did the trial court err and abuse its discretion in failing to
       grant a new trial on damages [where] the verdict was [shockingly
       excessive and could only have been the result of passion,
       prejudice or other impermissible factors]?[4]

Appellants’ Brief at 4, 55 (suggested answers omitted).

    Appellees’ Counsel’s Opening Statement and Closing Argument

       In reviewing a trial court’s denial of a motion for a new trial, the standard

of review for an appellate court is as follows:

       [I]t 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. . . . 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.

ACE American Insurance Co. v. Underwriters at Lloyds and Cos., 939

A.2d 935, 939 (Pa. Super. 2007) (citations omitted).

       Appellants first complain that the trial court erred in failing to order a

new    trial where Appellees’ counsel          was “permitted    to   make   highly

____________________________________________


4 Appellants’ fourth issue is not included in their Statement of Questions
Presented. However, it is clearly stated on page 55 of their appellate brief
and also in their Rule 1925(b) concise statement. It is evident that they
inadvertently restated issue three in their Statement of Questions Presented
on page 4 of their brief. Thus, we have substituted the proper issue as their
fourth issue in their Statement of Questions Presented.


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inflammatory and improper arguments [in opening and closing statements]

that were intended to, and did, lead the jury to an excessive verdict[5] based

on passion and prejudice.” Appellants’ Brief at 11; see also id. at 16-27

(citing N.T., 9/27/2016, at 63-64, 69-70, 74; N.T., 10/3/2016, at 59-66, 71,

88, 90, 96-98) (referring to Appellees’ counsel’s opening statement as

“improper and inflammatory” and closing argument as “outrageous[,]” “florid

and inflammatory[,]” as well as containing “personal attacks”). Specifically,

Appellants contend that Appellees’ counsel impermissibly put the issue of

punitive damages before the jury where the case was strictly a trial on

compensatory damages. Id. at 16-18, 26 (citing N.T., 9/27/2016, at 63-64,

69-70; N.T., 10/3/2016, at 94).

       “It is the duty of the trial judge to take affirmative steps to attempt to

cure harm, once an offensive remark has been objected to.”                Young v.

Washington        Hospital,     761    A.2d    559,   561-62   (Pa.   Super.   2000).

Additionally, “[i]t is well settled that the jury is presumed to follow the trial

____________________________________________


5 In Tindall v. Friedman, 970 A.2d 1159 (Pa. Super. 2009), our Court
reiterated:

       The grant or refusal of a new trial due to the excessiveness of the
       verdict is within the discretion of the trial court. An appellate court
       will not find a verdict excessive unless it is so grossly excessive as
       to shock our sense of justice. The appellate court begins with the
       premise that large verdicts are not necessarily excessive verdicts.
       Each case is unique and dependent on its own special
       circumstances and a court should apply only those factors which
       it finds to be relevant in determining whether or not the verdict is
       excessive.

Id. at 1177 (citations omitted).
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court’s instructions.” Commonwealth v. Cash, 137 A.3d 1262, 1280 (Pa.

2016).

        The trial court took such affirmative steps to cure any harm by either

instantaneously instructing the jury to disregard Appellees’ comments or by

repeatedly offering to issue curative instructions – even allowing Appellants

to craft the wording of the instructions – but Appellants failed to follow through

by providing the trial court with any suggested language. See Young, 761

A.2d at 561-62.       Where the trial court promptly instructed the jury, we

presume that the jury followed the trial court’s instructions, see Cash, 137

A.3d at 1280, and Appellants, like the appellant in Cash, did “not otherwise

attempt to offer any evidence establishing that the jury failed to do so[.]” Id.

        After Appellees’ counsel stated during his opening that Appellants “have

a low value for human well-being[,]” the trial court sustained Appellants’

objection and instantly instructed jury:           “You're to disregard that last

statement.” N.T., 9/27/2016, at 63-64.

        As for Appellees’ counsel’s closing argument, preliminarily, we observe

that, unless a party has raised a specific objection and moved for mistrial at

trial, then any right to a new trial is waived. McMillen v. 84 Lumber, Inc.,

649 A.2d 932, 934 (Pa. 1994). Appellants in the current action preserved

their    challenge   to   Appellees’   counsel’s   opening   statement,   including

specifically moving for a mistrial. N.T., 9/27/2016, at 63 (objection), 67 (trial

court suggests that grounds may exist for a mistrial), 70 (objection again), 71

(Appellants’ counsel specifically moves for mistrial), 73 (Appellants’ counsel


                                        - 16 -
J-A04008-19


asks trial court for a specific ruling on the motion for mistrial).    However,

Appellants failed to move for a mistrial or new trial during or after Appellees’

counsel’s closing argument. Appellants’ counsel objected but never clearly

requested a mistrial.       N.T., 10/3/2016, at 71, 90.   Thus, any request by

Appellants for a new trial predicated upon Appellees’ counsel’s closing

argument has been waived. See McMillen, 649 A.2d at 934.

       Assuming any argument based upon Appellees’ counsel’s closing

argument had not been waived, we note that, prior to closing argument, the

trial court instructed the jury: “[T]hese arguments are not evidence[.]” N.T.,

10/3/2016, at 55. To the degree that this preemptive standard instruction

was insufficient to ameliorate any later problems with closing arguments,

wherever such improper comments occurred, Appellants had the opportunity

to request curative instructions, but there is no indication in the record that

Appellants ever provided the trial court with such remedial instructions.6 After

the trial court sustained one of Appellants’ objections to Appellees’

summation, id. at 71-72, the trial court told Appellants, “If you want to give

me a curative instruction before we break for lunch, before I charge[,]” then

immediately admonished Appellees, “I don’t want any other references to cost

of litigation.” Id. at 73. Again, prior to the final charge, the trial court asked

____________________________________________


6  To the extent that Appellants contend that, if given, their proposed
instruction No. 14 would have served as a curative instruction, Appellants’
Brief at 33, Appellants: (1) failed to draw this proposed instruction to the trial
court’s attention after the court repeatedly requested a curative instruction
during and following closing arguments; and (2) more importantly, failed to
raise any argument regarding proposed instruction No. 14 in their post-trial
motions, consequently waiving any such claim.
                                          - 17 -
J-A04008-19


Appellants:   “Lastly, you want a curative instruction on something.          Draft

something. Run it by counsel and see what we can do with this?” Id. at 146.

Appellants answered, “Yes, Your Honor, thank you.” Id. However, nothing

on record indicates that Appellants ever provided the trial court with any such

instructions when given the opportunity to do so.

      As for Appellants’ contention that Appellees’ counsel’s remarks from

opening statements and closing arguments prejudiced the jury, Appellants’

Brief at 29, the trial court’s final charge to the jury that “You should keep your

deliberations free of any bias or prejudice” alleviated any such concern. N.T.,

10/3/2016, at 169.

      Accordingly, the trial court took the “affirmative steps” of immediately

instructing the jury to disregard contested remarks from Appellants’ opening

statement     and    asking   Appellants   to   draft   curative   instructions   for

inappropriate comments during closing argument, in addition to providing the

standard warning that closing arguments are not evidence prior to the

beginning of said arguments. Young, 761 A.2d at 561-62. Appellants have

waived any right to protest a lack of curative instructions subsequent to

Appellees’ closing when this absence is a result of their own failure to proffer

said instructions.

      In conclusion, we agree with the trial court that, to the extent that

Appellees’ summation fanned the flames of prejudice, the blaze was

“extinguished” through the trial court’s “numerous and persistent efforts to

ameliorate each transgression and preserve the integrity of the trial.” TCO,


                                      - 18 -
J-A04008-19


filed September 6, 2018, at 9; Ferguson v. Morton, 84 A.3d 715, 726 (Pa.

Super. 2013).

                              Expert Testimony

      Next, Appellants argue that “a new trial on damages was required

because [Appellees were] permitted to introduce unfairly cumulative and

repetitive medical testimony.” Appellants’ Brief at 45.

      Our standard of review for the challenges to the admission of expert

testimony is as follows:

      The admission of expert testimony is a matter committed to the
      discretion of the trial court and will not be disturbed absent an
      abuse of that discretion. An abuse of discretion is not merely an
      error of judgment, but if in reaching a conclusion the law is
      overridden or misapplied, or the judgment exercised is manifestly
      unreasonable, or the result of partiality, prejudice, bias or ill-will,
      as shown by the evidence or the record, discretion is abused.

Nobles v. Staples, Inc., 150 A.3d 110, 113 (Pa. Super. 2016) (citations and

internal quotation marks omitted).

      Our Rules of Evidence vest the trial court with the authority to
      determine the admissibility of evidence as well as to control the
      scope of examination. See Pittsburgh Const. Co. v. Griffith,
      834 A.2d 572, 585 (Pa.Super.2003). Rule 403 stresses the
      importance of clear, concise, and expeditious presentation,
      allowing for the exclusion of evidence that is confusing,
      cumulative, or unfairly prejudicial:

         Rule 403. Exclusion of relevant evidence on grounds
         of prejudice, confusion, or waste of time

         Although relevant, evidence may be excluded if its probative
         value is outweighed by the danger of unfair prejudice,
         confusion of the issues, or misleading the jury, or by
         considerations of undue delay, waste of time, or needless
         presentation of cumulative evidence.



                                      - 19 -
J-A04008-19

      Pa.R.E. 403. In addition, the Rules vest the trial court with the
      necessary discretion to limit a party’s presentation in an effort to
      achieve a just result while avoiding duplication or waste of time:

         Rule 611. Mode and order of interrogation and
         presentation

         (a) Control by court. The court shall exercise reasonable
         control over the mode and order of interrogating witnesses
         and presenting evidence so as to (1) make the interrogation
         and presentation effective for the ascertainment of the
         truth, (2) avoid needless consumption of time and (3)
         protect    witnesses   from     harassment     or    undue
         embarrassment.

      Pa.R.E. 611.

Rettger v. UPMC Shadyside, 991 A.2d 915, 925 (Pa. Super. 2010).

      After a thorough review of the record, the briefs of the parties, the

applicable   law,    and   the   well-reasoned   opinion   of   the   Honorable

Sean F. Kennedy, we conclude Appellants’ second issue merits no relief. The

trial court opinion comprehensively discusses and properly disposes of that

question:

      The trial court, in its discretion, admitted the medical testimony
      of Dr. Andrew Shaer for [Appellees]. [Appellants] filed a Motion
      in Limine to Preclude the medical testimony of Dr. Shaer, not on
      the basis of irrelevant testimony, but rather because [Appellants]
      considered his testimony as cumulative in violation of Pa.R.E. 403.
      . . . Farese had an MRI study performed on October 29, 2014.
      The court admitted Dr. Shaer’s testimony on the basis that his
      expertise is in the area of neuroradiology; this separates his
      testimony from any conception of being cumulative.              The
      testimony provided by Dr. Shaer provided a nuanced opinion of
      the injuries sustained by Mr. Farese that better explained his
      injuries to the jury.

      As an additional matter, the trial court was mindful of potential
      cumulative evidence that could arise during testimony. This is one
      reason why the trial court precluded the testimony of Dr. Shah.
      ...


                                     - 20 -
J-A04008-19

      [T]he trial court now turns specifically to the testimony that was
      offered by Dr. Andrew Shaer. Dr. Shaer is a radiologist and
      neuroradiologist. This specialized training qualifies Dr. Shaer as
      an expert in the area of reading images of the brain and spine.
      Dr. Shaer did just this when he viewed the October 29, 2014
      cervical MRI study conducted on Mr. Farese. The trial court found
      that because Dr. Shaer was the only radiologist that testified at
      trial, and with specific expertise in reading such images, such that
      his testimony was not cumulative or repetitive. This marks a
      specific departure from the testimony of the four other doctors
      that testified at trial. The other doctors did not possess the
      specialized knowledge and training that differentiated the medical
      opinion evidence Dr. Shaer provided.

      The distinguishing characteristic between the testimony of
      Dr. Shaer and the other doctors that testified at trial is the
      specialized training that qualifies him to provide such testimony.
      Dr. Shaer explained that other physicians, such as those that
      testified at trial, may look at the MRI studies that have been
      conducted on a patient; however, these physicians are not able to
      issue reports on such MRI studies. By extension, only radiologists
      are qualified to issue such reports. For this reason, the trial court
      found that “Dr. Shaer is a radiologist and reading those films,
      [Appellees a]re allowed to bring him in to give a reading as to
      that.” N.T. 9/27/2016 at 8. The trial court was cognizant
      throughout the entire proceedings of cumulative testimony. The
      trial court found that because the testimony of Dr. Shaer differed
      from that of the other physicians, Dr. Shaer’s testimony was
      neither needless or cumulative. Therefore, the trial court did not
      abuse its discretion in allowing the testimony of Dr. Andrew Shaer.

TCO, filed September 6, 2018, at 15-17. Accordingly, the trial court did not

abuse its discretion by admitting the testimony of Dr. Shaer, and we cannot

and will not disturb the trial court’s decision absent an abuse of discretion.

Nobles, 150 A.3d at 113.

               Motor Vehicle Financial Responsibility Law




                                     - 21 -
J-A04008-19


       Appellants further urge this Court to find that “a new trial[7] on damages

[is] required because [Appellees were] permitted to introduce medical

calculations    that   violated”    the    Pennsylvania   Motor   Vehicle   Financial

Responsibility Law (“MVFRL”), 75 Pa.C.S. §§ 1701-1799.7, by failing to reduce

the amounts of future medical bills as required by the cost containment

provision of the MVFRL, 75 Pa.C.S. § 1797. Appellants’ Brief at 49-52.

       Section 1797 of the Law was substantially amended by the
       [MVFRL] of February 7, 1990, P.L. 11. Section 1797(a) now
       provides that “[a] person or institution providing treatment,
       accommodations, products or services to an injured person for an
       injury covered by liability or uninsured and underinsured benefits
       or first party medical benefits....” cannot receive payment for the
       treatment, accommodations, products, or services in excess of
       110% of what Medicare would pay for comparable services or the
       provider’s usual and customary charge, whichever is less. Section
       1797(a) also prohibits a provider from billing the insured for the
       difference between the provider’s full charge and the amount paid
       by the insurer. Section 1797(b) requires insurers to contract with
       a peer review organization (PRO) “for the purpose of confirming
       that such treatment, products, services or accommodations
       conform to the professional standards of performance and are
       medically necessary.”

Pennsylvania Medical Providers Association v. Foster, 613 A.2d 51, 52

(Pa. Cmwlth. 1992).8

       Preliminarily, we note that Appellants have provided us with no

Pennsylvania case law – and our research has uncovered no precedents –

allowing for a jury’s award for future medical expenses to be molded pursuant

____________________________________________


7 Our standard of review from a denial of a new trial remains a clear abuse of
discretion. ACE American Insurance, 939 A.2d at 939.
8 Although we are not bound by the decisions of the Commonwealth Court, we

quote this case, because we believe it contains the best and most concise
summary of the content of Section 1797.
                                          - 22 -
J-A04008-19


to the cost containment provision of the MVFRL. However, this Court and the

Middle District of Pennsylvania have analyzed this question in non-

precedential decisions. “Although we prefer to avoid citation to unreported

opinions of any court,” where there is a “scarcity of case law on [the]

subject[,]” we are be “compel[led] . . . to consider all available writings on

[the] topic.” Commonwealth v. Manivannan, 186 A.3d 472, 486 n.9 (Pa.

Super. 2018), reargument denied (July 7, 2018). Furthermore, “[a]lthough

we are not bound by decisions from . . . courts in other jurisdictions, we may

use them for guidance to the degree we find them useful, persuasive, and . . .

not incompatible with Pennsylvania law.” Ferraro v. Temple University,

185 A.3d 396, 404 (Pa. Super. 2018) (citing Newell v. Montana West, Inc.,

154 A.3d 819, 823 & n.6 (Pa. Super. 2017)), reargument denied (June 27,

2018); see also Manivannan, 186 A.3d at 483 (“When confronted with a

question heretofore unaddressed by the courts of this Commonwealth, we

may turn to the courts of other jurisdictions.”). Upon our review of these

cases, we have discovered that, whenever courts have considered the

question of whether 75 Pa.C.S. § 1797 applies to future medical expenses,

they have unanimously concluded that it does not.

      In DeOrio v. Juliano, No. 530 EDA 2006, unpublished memorandum

at 18 (Pa. Super. filed October 5, 2007), reargument denied (November 19,

2017), one of the appellants, David Juliano, raised the same argument as

Appellants – i.e., that the trial court erred in permitting expert testimony on

estimated future medical expenses in a personal injury case without reduction


                                    - 23 -
J-A04008-19


for the cost containment provision set forth in Section 1797. In addition, just

like   Appellants,   Juliano   contended   that     Pittsburgh   Neurosurgery

Associates v. Danner, 733 A.2d 1279 (Pa. Super. 1999), supported his

position. Compare Appellant’s Brief at 50 with DeOrio, No. 530 EDA 2006

at 19.    This Court disagreed with Juliano’s interpretation of Pittsburgh

Neurosurgery, as do we. DeOrio, No. 530 EDA 2006 at 19.

       In Pittsburgh Neurosurgery, this Court concluded that the payment

limitations in Section 1797 were applicable where a portion of the provider’s

bill for services was payable under the tortfeasor’s automobile insurance

liability coverage. 733 A.2d at 1284. This Court also observed that “[i]n the

context of a jury trial, an injured party may introduce unpaid medical bills to

a jury . . . and the amount introduced may not be subject to cost

containment.” Id. at 1285. Pursuant to this language, this Court in DeOrio

concluded that Pittsburgh Neurosurgery “contradicts rather than supports

Juliano’s position.” No. 530 EDA 2006 at 20. Based upon our own reading of

Pittsburgh Neurosurgery, we similarly find that said text contradicts rather

than supports Appellants’ position.

       Parties have tried to raise these arguments about the application of

Section 1797 in the federal courts. In Kansky v. Showman, No. 3:09-CV-

1863, 2011 WL 1362245, at *5 (M.D. Pa. filed April 11, 2011) (memorandum),

the defendants sought to preclude expert testimony about future medical

expenses pursuant to Section 1797.             The plaintiff responded that the

defendants had “presented no case law to support their position.” Id. at *6.


                                      - 24 -
J-A04008-19


In particular, the parties argued over the definition of the word “payable” as

used in Section 1797(a): “Providers subject to this section may not bill the

insured directly but must bill the insurer for a determination of the

amount payable.” The Middle District of Pennsylvania analyzed the issue as

follows:

      The word “payable” in [Section 1797] can have many meanings,
      such as “owed, to be paid, due”. Future medical payments are
      not currently due and outstanding.         The defendants cannot
      guarantee that any future expenses will in fact be paid. It is
      merely speculation. For instance, plaintiff’s insurer could become
      bankrupt, or deny future medical bills for a variety of reasons. We
      agree with the plaintiffs. Because the insurance benefits are not
      necessarily due and owing at this time and nothing could compel
      the insurer to pay a lump sum for future expenses, plaintiffs future
      medical bills are not “payable” under [Section 1797].

Kansky, No. 3:09-CV-1863, 2011 WL 1362245, at *6. We find the federal

court’s reasoning to be sound and would likewise find that the Section 1797

does not apply to future medical expenses. Id.

      The Middle District of Pennsylvania had considered this topic earlier in

Walters v. Zumstein, Inc., No. 4:07-CV-0358, 2008 WL 11370033 (M.D.

Pa. filed September 10, 2008) (memorandum). In that case, the defendant,

Zumstein, sought “to preclude the introduction of evidence relating to the

future medical expenses of plaintiff” Margaret Walters and, more significantly,

“argue[d] that Walters’ future medical expenses must be reduced in

accordance with the cost-containment provisions . . . of the MVFRL, 75 Pa.

C.S.[] § 1797.”   Id. at *1.    The federal court denied Zumstein’s motion,

explaining:



                                     - 25 -
J-A04008-19

       Granting Zumstein’s motion would create the distinct possibility
       that Walters may be precluded from recovering future medical
       costs in this action and also be denied benefits for such costs by
       insurers in the future. The [c]ourt cannot adopt this interpretation
       of the statute. Therefore, the Court holds that Walters’ future
       medical benefits, the payment of which, at this point, is purely
       speculative, do not fall within the scope of . . . § 1797.

Id. at *3.

       Thus, pursuant to our review of all available writings on this subject, we

are persuaded by their analysis that the caps placed by 75 Pa.C.S. § 1797 on

the amount a person or institution providing treatment to an injured person

for an injury covered by insurance may charge for such treatment do not apply

to future medical expenses. See DeOrio, No. 530 EDA 2006, at 18-20 (citing

Pittsburgh Neurosurgery, 733 A.3d at 1284-85); Kansky, No. 3:09-CV-

1863, 2011 WL 1362245, at *5-*6; Walters, No. 4:07-CV-0358, 2008 WL

1130033, at *1, *3. We therefore conclude that the trial court did not abuse

its discretion by denying Appellants a new trial on damages where the

damages awarded for future medical expenses were not reduced pursuant to

75 Pa.C.S. § 1797.

                                  Excessive Verdict

       Finally, Appellants contend that “a new trial[9] on damages is required

because the verdict is shockingly excessive and could only have been the

result of passion, prejudice or other impermissible factors.” Appellants’ Brief

at 55.    Appellants continue that the verdict “is clearly beyond what the
____________________________________________


9 Our standard of review from a denial of a new trial, including a refusal of a
new trial due to the excessiveness of the verdict, remains a clear abuse of
discretion. Tindall, 970 A.2d at 1177; ACE American Insurance, 939 A.2d
at 939.
                                          - 26 -
J-A04008-19


evidence warrants” and that “the evidence does not support the jury’s non-

economic award to Mr. Farese.”       Id. at 55, 57 (citing Pa.R.C.P. 223.3).

Appellants also take issue with the award for loss of consortium. Id. at 60.

      A jury is given wide latitude to fashion a verdict on damages. Neison

v. Hines, 653 A.2d 634 (Pa. 1995). The large size of a verdict by itself is not

evidence of excessiveness. Layman v. Doernte, 175 A.2d 530 (Pa. 1961).

Compensatory damages, the type of damages at issue in the instant case,

compensate a party “to the full extent of the injury sustained.”       Burke v.

Valley Lines, Inc., 617 A.2d 1335, 1337 (Pa. Super. 1992).

      In general, the instant case certainly has elements which would support

the jury verdict (failure of Appellants to attend trial; minimizing Mr. Farese’s

injuries). As for Appellants’ specific claims that the jury was motivated by

“passion” and “prejudice[,]” Appellants’ Brief at 55, the trial court’s final

charge to the jury was, “You should keep your deliberations free of any bias

or prejudice[,]” N.T., 10/3/2016, at 169, and “[i]t is well settled that the jury

is presumed to follow the trial court’s instructions.” Cash, 137 A.3d at 1280.

Appellants merely speculate that the jury ignored this instruction, but, like the

appellant in Cash, they did “not otherwise attempt to offer any evidence

establishing that the jury failed to do so[.]” Id.

      Similarly, Appellants rely on Pa.R.C.P. 223.3 in support of their assertion

that the evidence does not support the jury’s non-economic award to Farese.

Appellants’ Brief at 57. Pa.R.C.P. 223.3 states, in pertinent part:

      In any action for bodily injury or death in which a plaintiff has
      raised a claim for a damage award for noneconomic loss that is

                                     - 27 -
J-A04008-19

      viable under applicable substantive law, the court shall give the
      following instructions to the jury. . . .

         In considering plaintiff’s claims for damage awards for past
         and future noneconomic loss, you will consider the following
         factors: (1) the age of the plaintiff; (2) the severity of the
         injuries; (3) whether the injuries are temporary or
         permanent; (4) the extent to which the injuries affect the
         ability of the plaintiff to perform basic activities of daily
         living and other activities in which the plaintiff previously
         engaged; (5) the duration and nature of medical treatment;
         (6) the duration and extent of the physical pain and mental
         anguish which the plaintiff has experienced in the past and
         will experience in the future; (7) the health and physical
         condition of the plaintiff prior to the injuries; and (8) in case
         of disfigurement, the nature of the disfigurement and the
         consequences for the plaintiff.

The record demonstrates that the trial court properly instructed the jury that

it should consider each of these factors, with the exception of the eighth factor,

which is inapplicable. Compare N.T., 10/3/2016, at 161-62, with Pa.R.C.P.

223.3. Again, “[i]t is well settled that the jury is presumed to follow the trial

court’s instructions”; Appellants did not “offer any evidence establishing that

the jury failed to do so[.]” Cash, 137 A.3d at 1280.

      Furthermore, there was evidence pursuant to each of these factors to

support the verdict. Mr. Farese’s age was 50 years old at the time of trial.

N.T., 9/30/2016, at 55; Pa.R.C.P. 223.3 (“(1) the age of the plaintiff”). The

second factor, “the severity of [Mr. Farese’s] injuries[,]” Pa.R.C.P. 223.3, was

established through copious medical expert testimony, including Dr. Fras’s

testimony that Mr. Farese had sustained a cervical disc herniation, aggravation

of cervical and lumbar spondylosis, and an annular tear at L4-5. N.T., Fras

Testimony, 7/29/2016, at 19, 25-26. Dr. Fras also testified that all of these

injuries were directly related to the motor vehicle collision at issue. Id.; TCO,

                                      - 28 -
J-A04008-19


filed September 6, 2018, at 31. Dr. Shaer agreed with Dr. Fras and clarified

that the disc herniation was at C6-7. TCO, filed September 6, 2018, at 32

(citing N.T., Shaer Testimony, 5/24/2016, at 34). Dr. Sing concurred with

these evaluations but also mentioned that Mr. Farese had a lower neck disc

rupture. N.T., 9/28/2016, at 48.

      As for the third Pa.R.C.P. 223.3 factor, “whether the injuries are

temporary or permanent[,]” Dr. Cohen testified that, if a brain injury lasts

more than one year, there is evidence to suggest this injury would be

considered permanent. N.T., Cohen Testimony, 5/20/2016, at 26. Given that

Mr. Farese was still experiencing symptoms more than two years after the

collision, the jury therefore could have reasonably inferred that his injuries

were permanent.

      Evidence of the fourth Pa.R.C.P. 223.3 factor, “the extent to which the

injuries affect the ability of [Mr. Farese] to perform basic activities of daily

living and other activities in which [he] previously engaged[,]” again includes

Mr. Farese’s own testimony that his headaches force him to “put[] activities

aside, even sleep” and that, prior to the collision, he was active, playing pick-

up football games with his friends, working out at his home gym three times

a week, running regularly, coaching his children in sports, and caring for his

aging parents. N.T., 9/30/2016, at 58, 61, 63, 67, 100. He testified that he

even has difficulty performing basic activities like picking up bags while food

shopping and that his social activities, such as attending movies and family

events, have been greatly reduced due to his constant concern that his


                                     - 29 -
J-A04008-19


headaches will recur. Id. at 93-94, 98; see also TCO, filed September 6,

2018, at 29.    The decrease in Mr. Farese’s activities was corroborated by

Mr. Farese’s business partner, Piscitelli, who testified that, before the collision,

he and Mr. Farese split the duties at their diner, including opening the diner

in the mornings, seating customers, doing inventory, meeting with food

suppliers, handling personnel issues, working the cash register, and

interacting with the customers. N.T., 9/30/2016, at 8, 11-12. Piscitelli also

testified that, after the collision, Mr. Farese had to miss work to go to

specialists and physical therapy two to three times a week, causing Piscitelli

to have to do the majority of the work at the diner and put in long hours, as

Mr. Farese cannot do any heavy lifting or physical activities associated with

his job at the diner. Id. at 22, 24.

      As for the fifth Pa.R.C.P. 223.3 factor, “the duration and nature of

medical treatment[,]” Mr. Farese testified that, at the time of trial, he was still

under the care of four doctors, including a sports medicine specialist, a spinal

surgeon, a neurologist, and a pain management specialist. N.T., 9/30/2016,

at 89-90. He further explained that he had to undergo physical therapy three

times per week for seven months and was prescribed multiple medications.

Id. at 75-76, 80.     One of those prescriptions, Cambia powder, made him

severely nauseous, and even the mildest of the medications, Meloxicam,

“made [his] stomach mildly upset[.]” Id. at 81. At the time of trial, he was

still taking Meloxicam daily with food. Id. He also testified that he received

injections at “the very base of your skull,” which described as “not pleasant[.]”


                                       - 30 -
J-A04008-19


Id. at 85. As the trial court summarized – “There seems little doubt that

Mr. Farese has been exposed to difficult medical interventions that would not

have arisen except for the motor vehicle collision.” TCO, filed September 6,

2018, at 29. Additionally, Mr. Farese’s medical treatment is likely to continue

in the future, as he testified that his spinal surgeon, Dr. Fras, informed him

“that he may require both neck and back surgery in the future.” Id. (citing

N.T., 9/30/2016, at 82). Dr. Fras’s testimony confirmed that Mr. Farese “is a

surgical candidate and very well could require surgery” to both his neck and

lower spine. Id. at 31 (citing N.T., Fras Testimony, 7/29/2016, at 25).

      As for the sixth Pa.R.C.P. 223.3 factor, “the duration and extent of the

physical pain and mental anguish which the plaintiff has experienced in the

past and will experience in the future[,]” Mr. Farese testified that he suffered

a swollen left wrist and pain in his back, head, and neck after the collision.

N.T., 9/30/2016, at 71. He described his headaches --

      as “being extremely profound to the point where [the headache]
      completely disables me. I got to go lay down,” and at other times
      as though his “skull was going to explode.” [N.T., 9/30/2016,] at
      100. Regarding his headaches, Mr. Farese stated they “could last
      the entire night. Could last the entire day. Couple very isolated
      incidents, I’ve had them an entire day, all day into night.” Id.
      Further, the headaches “interfere with everything. It’s very
      debilitating.[”]

TCO, filed September 6, 2018, at 28. He likewise described his neck pain as

a “very stiff achy pain in his neck[,]” and, if he “move[s his] head too far in

one direction, it sends shooting pain into [his] neck.” N.T., 9/30/2016, at

102-03. Mr. Farese also gave testimony about his low back pain, including

his difficulty sitting for long periods of time. Id. at 103. His “mental anguish”

                                     - 31 -
J-A04008-19


--part of the sixth Pa.R.C.P. 223.3 factor -- is reflected in his testimony about

how “his personal relationships have been significantly altered since the

collision[,]” TCO, filed September 6, 2018, at 29 (citing N.T., 9/30/2016, at

92-94, 98), as well as Ms. Farese’s testimony about Mr. Farese’s agitation and

“mood swings.” N.T., 9/30/2016, at 46.

       Mr. Farese’s “health and physical condition . . . prior to the injuries” –

the seventh Pa.R.C.P. 223.3 factor -- was again established by his testimony

that, prior to the collision, he did not see any specialists for medical problems,

was not taking any medication, and did not receive injections.                N.T.,

9/30/2016, at 67-68. He also stated that, before the collision, he “was in

great physical health” and “never had any problems” or “an issue.” Id. He

added that “[t]he thing they mentioned about the degenerative things and

whatnot. If anything was there, never experienced any sign of those problems

before.”    Id.    As the trial court put it:      “Mr. Farese was, ostensibly, a

reasonably healthy person before suffering injuries in the collision.” TCO, filed

September 6, 2018, at 28.10

       As the trial court aptly summarized:

       The jury had the opportunity to hear multiple witnesses for
       [Appellees] about the severity of his injury, the objective evidence
       to support the injury, the permanency of the injury, the ability to
       continue employment, and out-of-pocket expenses. The jury -
       after hearing all testimony and evidence - decided this was a just
       figure to award [Mr. Farese] in light of all relevant factors.

       [Appellants] had opportunity to put on their own defense or
       present their own medical experts to contest [Appellees’]
____________________________________________


10 As for the final Pa.R.C.P. 223.3 consideration, it only applies “in case of
disfigurement,” and there were no allegations of disfigurement in this action.
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      witnesses. Despite [Appellants’] counsel’s numerous references
      during opening arguments that their own medical expert,
      Dr. Harris, would testify, this is an option [Appellants] - perhaps
      for their own strategic reasoning - ultimately elected not to
      exercise. [Appellants’] counsel explained that “it became pretty
      clear [to him] that [the jurors] have all paid close attention to all
      witnesses here, and I think you understand what’s going on here,
      and I again saw no need to bring in another doctor.” N.T.
      10/03/2016 at 113. [Appellants] suffered no prejudice, the trial
      court did not abuse its discretion and, therefore, the jury award
      for damages was not excessive or shock the conscience.

TCO, filed September 6, 2018, at 34-35.

      As for Appellant’s specific contention that the jury’s award for

Ms. Farese’s loss of consortium claim was excessive, Appellant’s Brief at 60,

we begin by noting that “damages for loss of consortium have no market

value, and the amount awarded for loss of consortium is left to the sound

judgment and common sense of the fact-finder.” Tindall v. Friedman, 970

A.2d 1159, 1177 (Pa. Super. 2009) (citation and internal quotation marks

omitted). A claim for loss of consortium is quite different from a claim for

bodily injury.   Darr Construction Co. v. Workmen’s Compensation

Appeal Board (Walker), 715 A.2d 1075, 1080 (Pa. 1998). While the claim

stems from a spouse’s bodily injury, it is nevertheless a separate and distinct

claim. Id. Loss of consortium is a loss of services, society, and conjugal

affection of one’s spouse. Id. One who has suffered a loss of consortium

has not sustained a bodily injury but rather has experienced an injury to

marital expectations. Id.

      The trial court’s instruction to the jury adequately reflected the elements

of a loss of consortium claim. Compare N.T., 10/3/2016, at 162, with Darr

Construction, 715 A.2d at 1080. Again, we presume that the jury followed

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the trial court’s instructions, Cash, 137 A.3d at 1280, and Appellants did “not

otherwise attempt to offer any evidence establishing that the jury failed to do

so[.]” Id.

      Moreover, after a thorough review of the record, we conclude that

Ms. Farese’s testimony supported the jury’s award to her for loss of

consortium, as the trial court appropriately summarized:

      The jury found the evidence introduced by [Ms.] Farese to be
      persuasive, and found her credible. [Ms.] Farese testified as to
      how her husband’s injuries impacted her relationship with her
      husband. The testimony ranged from how their social life has
      been impacted, to how Mr. Farese is not able to contribute to the
      household as before the collision, his mood swings, and the loss
      of physical intimacy.

TCO, filed September 6, 2018, at 36; see also N.T., 9/30/2016, at 46-48.

Ms. Farese’s testimony was corroborated by Mr. Farese, who discussed the

negative impact his injuries have had on the social and emotional relationship

between himself and his spouse. N.T., 9/30/2016, at 74, 91-94, 98.

      The trial court opinion also comprehensively discussed Appellants’

counsel’s failure to address the consortium claim before the jury:

      It does not appear from the record that defense counsel once
      mentioned [Ms.] Farese’s name throughout opening or closing
      arguments.       During cross-examination of [Ms.] Farese,
      [Appellants’] counsel instead opted to focus his questions upon
      issues regarding Mr. Farese’s injuries, medications, presence at
      medical appointments, his general health before and after the
      injuries, and the injuries’ impact on Mr. Farese’s employment.
      [Appellants] failed to meaningfully address the consortium claim
      during trial and should not now be able to redress a claim that
      went unanswered throughout the trial.

TCO, filed September 6, 2018, at 36-37 (citing N.T., 9/30/2016, at 50-54).

      As the trial court concluded:

                                      - 34 -
J-A04008-19

      The jury was afforded proper instruction on the loss of consortium
      claim put forth by [Ms.] Farese. The jury awarded [Ms.] Farese
      $416,000.00 for her consortium claim. Because there is no
      market value for consortium claims or a requirement to prove the
      value with dollars and cents, the award was left to the sound
      judgment and common sense of the jury. [Tindall, 970 A.2d at
      1177.]    In their sound judgment, the jury decided that
      $416,000.00 was a just and equitable award. This is not a verdict
      for damages that is grossly excessive or shocks the conscience.
      Therefore, the noneconomic damages awarded to [Ms.] Farese[]
      was proper and within the bounds provided by law.

Id. at 37.

      Overall, insofar as Appellants are displeased with the combined

damages award received by Appellees or consider the total award to be

excessive, the jury resolved all issues related to damages, and, provided there

is any evidence to support the award, it is not for this or any court to substitute

its judgment for that of the fact-finder, even if the court would have arrived

at a different conclusion on the same facts. See Neal v. Bavarian Motors,

Inc., 882 A.2d 1022, 1029 (Pa. Super. 2005) (“if there is evidence in the

record to support the award . . . , then this Court is not free to substitute its

judgment by altering the award”); Refuse Management Systems, Inc. v.

Consolidated Recycling and Transfer Systems, Inc., 671 A.2d 1140,

1150 (Pa. Super. 1996) (“this court, on appeal, will not substitute its judgment

for that of the fact-finder in the award of damages so long as the award is

supported by competent evidence”); see also Mader v. Duquesne Light

Co., 199 A.3d 1258, 1264, 1267 (Pa. Super. 2018) (finding that, where trial

court disrupted jury’s award of future medical expenses, it “usurped the jury’s

fact-finding role and committed an abuse of discretion”; this Court hence

reversed trial court’s grant of new trial on damages). Appellants knew the

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dangers and pitfalls of a jury trial when they requested one, and they must

accept the consequences thereof.

     Judgment affirmed.

     Judge Kunselman joins the Opinion.

     Judge Lazarus files a Dissenting Opinion.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/8/19




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