J-A06042-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

  MATTHEW T. DEIVERT,                      : IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                  Appellee                 :
                                           :
                     v.                    :
                                           :
  PITTSBURGH CHAUFFEUR, LLC,               :
                                           :
                  Appellant                : No. 1314 WDA 2017

             Appeal from the Judgment Entered September 1, 2017
               in the Court of Common Pleas of Allegheny County
                    Civil Division at No(s): GD No 15-019904

BEFORE:      BENDER, P.J.E., SHOGAN, and STRASSBURGER, JJ.*

MEMORANDUM BY STRASSBURGER, J.:                         FILED April 2, 2018

      Pittsburgh Chauffeur, LLC, appeals from the judgment entered against

it on September 1, 2017, after a jury awarded Matthew T. Deivert $500,000

for injuries sustained during a limousine ride provided by Pittsburgh Chauffer.

We affirm.

      The facts of this case are summarized in the trial court opinion authored

by the Honorable Alan J. Hertzberg, and filed on October 27, 2017; thus, we

need not recite them in full here. See Trial Court Opinion, 10/27/2017, at 1-

4. Briefly, on February 1, 2014, Deivert was invited by a friend to celebrate

her birthday, which involved riding between bars and night clubs in vehicles

owned by Pittsburgh Chauffeur. Around 2:00 a.m. on February 2, Deivert and

approximately 19 others “cramm[ed] into the limousine” meant to fit 10

people. Id. at 2. During the ride, Deivert felt intense pain near his knee, and


*Retired Senior Judge assigned to the Superior Court.
J-A06042-18


when he got out of the limousine, he saw a burn on his leg. Eventually, Deivert

was referred to a burn specialist, who diagnosed Deivert with having sustained

a third-degree burn. Deivert had two surgical grafts performed and was left

with two large, permanent scars on his thigh and knee.

      On November 9, 2015, Deivert filed a complaint against Pittsburgh

Chauffeur alleging it was negligent in providing too small of a limousine to

accommodate the number of passengers that night. Deivert alleged that the

proximate cause of his third-degree burn was due to riding in that limousine.

      A jury trial was held from May 9 to May 11, 2017.          Prior to trial,

Pittsburgh Chauffeur presented a motion in limine to exclude testimony of

Deivert’s medical and causation expert, Dr. Gregory Habib. The trial court

denied that motion. The jury trial commenced, and on May 11, 2017, the jury

returned a verdict in favor of Deivert and against Pittsburgh Chauffeur for

$500,000. Pittsburgh Chauffeur filed post-trial motions, which were denied

on August 7, 2017. Pittsburgh Chauffeur filed a timely notice of appeal, and

both Pittsburgh Chauffeur and the trial court complied with Pa.R.A.P. 1925.

      On appeal, Pittsburgh Chauffeur sets forth the following six questions

for our review.

      1.     Whether the court abused his discretion or committed an
      error of law in denying the motion in limine to exclude testimony
      of [Deivert’s] medical expert when Dr. Habib could not support his
      methodology opinion with medical literature, studies or testing
      and when his testimony lacked foundation to support his opinion
      that an injury of this severity could ever be caused in the manner
      as alleged.


                                     -2-
J-A06042-18


      2.    Whether the court committed an error of law in denying the
      motion for post-trial relief and/or the motion for judgment
      notwithstanding the verdict when the verdict was against the
      weight of the evidence and when [Deivert] lacked competent
      evidence in the form of medical testimony or otherwise show that
      an overloaded or overcrowded limousine could result in a full
      thickness third[-]degree burn caused by one person’s leg rubbing
      against another under the circumstances presented or under any
      circumstances.

      3.    Whether the court abused its discretion or committed an
      error of law in denying the motion for post-trial relief when the
      court permitted [Deivert’s] medical expert, Dr. Habib, to give
      testimony in the form of argument; to assign an unfair burden of
      proof upon [Pittsburgh Chauffeur]; and to testify that [Pittsburgh
      Chauffeur’s] expert testimony was defective for failing to provide
      an alternate theory of causation.

      4.    Whether the court abused its discretion or committed an
      error of law in denying the motion for post-trial relief when the
      court refused proposed points for charge regarding the mere
      happening of an accident; the mere fact of damages and
      speculation not being a basis for any award.

      5.    Whether the court abused its discretion or committed an
      error of law in denying the motion for post trial relief when the
      court re-drafted the jury verdict slip to have the jury question on
      negligence refer to the standard of care – “highest duty of care,”
      as opposed to whether or not Pittsburgh Chauffeur was negligent.

      6.    Whether the court abused its discretion or committed an
      error of law in denying the motion for remittitur.

Pittsburgh Chauffeur’s Brief at 3-5 (unnecessary capitalization omitted).

      Following a review of the certified record and the briefs for the parties,

we conclude that the opinion of the Honorable Alan Hertzberg thoroughly

addresses Pittsburgh Chauffeur’s issues and arguments and applies the

correct law to facts that are supported by the record. We discern no error or

abuse of discretion. Therefore, we adopt the trial court’s opinion of October

                                     -3-
J-A06042-18


27, 2017 as our own and affirm Deivert’s judgment based upon the reasons

stated therein.1 See Trial Court Opinion, 10/27/2017, at 4-8 (explaining that

it did not err or abuse its discretion in denying Pittsburgh Chauffeur’s motion

in limine seeking to exclude Dr. Habib’s testimony where Dr. Habib did not

employ a novel methodology, and Dr. Habib did not need to support his expert

medical opinion with literature or studies); id. at 6-9 (concluding that it did

not err by not granting judgment notwithstanding the verdict or by not

awarding a new trial with respect to purported inaccuracies in Dr. Habib’s

testimony);2 id. at 9-11 (concluding that there was no error in the jury charge

____________________________________________


1 The parties shall attach a copy of the trial court’s October 27, 2017 opinion
to this memorandum in the event of further proceedings.
2 Pittsburgh Chauffeur also claims that the verdict was against the weight of
the evidence. See Pittsburgh Chauffeur’s Brief at 33-42 (arguing the
testimony of “Deivert and his two friends was grossly incompetent,” and that
the “expert testimony by Dr. Habib … does not support a conclusion that an
overloaded or overcrowded limousine could result in” the injury Deivert
sustained).

       A motion for a new trial alleging that the verdict was against the
       weight of the evidence is addressed to the discretion of the trial
       court. An appellate court, therefore, reviews the exercise of
       discretion, not the underlying question whether the verdict is
       against the weight of the evidence. The factfinder is free to believe
       all, part, or none of the evidence and to determine the credibility
       of the witnesses. The trial court will award a new trial only when
       the jury’s verdict is so contrary to the evidence as to shock 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. Thus, the trial court’s denial of a motion for a new



                                           -4-
J-A06042-18


where Pittsburgh Chauffeur’s proposed points for charge were repetitious); id.

at 11-12 (concluding that it did not abuse its discretion in fashioning the

verdict slip in a way it believed would not confuse the jurors); id. at 12-15

(concluding that it did not abuse its discretion in failing to grant remittitur

where Deivert suffered a third-degree burn, which is a severe injury leaving a

permanent scar).

       Judgment affirmed.

       PJE Bender joins the memorandum.

       Judge Shogan files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/2/2018

____________________________________________


       trial based on a weight of the evidence claim is the least assailable
       of its rulings.

Commonwealth v. Cousar, 928 A.2d 1025, 1035-36 (Pa. 2007).

       Here, we recognize that the trial court did not explicitly address a
weight-of-the-evidence claim in its opinion.          However, based upon its
conclusions regarding Dr. Habib’s testimony on pages 4 through 9 of the
opinion, as well as its overall analysis, it is evident that it concluded that the
verdict was not so contrary to the evidence that it shocked the trial court’s
conscience. Accordingly, we conclude that there was no abuse of discretion
in this regard, and Pittsburgh Chauffeur is not entitled to a new trial on this
basis.

                                           -5-
J-A06042-18




              -6-
                                                                                              f-J-C(()ULf ()(. -- i 6
                                                                                      Circulated 03/07/2018 02:39 PM

                                            .                                                 .
           IN TIIE-COlJ�T QF:COMMON RLEA.,S ·O;FALLEGHENY ·COUl'tl�Y, PENNSYLVANIA.
                                                CIVIL DlViSION

                   MATIHEW:DEIVERT
                     . - .... ,..
                           .       '

                               Plaintiff,
                                                      CA.SE.N'O,.GD 15·-19904

                                                      Superior Court .docket .no ..
                   PIITSBURGH: CHAtJfB.EQ.R, _LLC,    1314 WDA 2Ql7.

                               Defendant.

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                                                      JUDGE.ALAN HERTZBERG,                                               J
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                                                      CoQNSEL FOR PLAINTIFF·:

                                                      RICHARDTALARiCO, '.E�Ol)IRE'        1
                                                      :294S .BANKSV:ILLE.RoAD·.-·S.l.UT,E �()()                         . 1

                                                       PIITSBURGI-I,;PA. JS216

                                                      ·CQt.iNS;EI:.FOR.DEFENDANT�



                                                      £A.TH(EEN .MCALLLISTER,· E$QU.IRE
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MATTHEW DEIVERT      .




        Plaintiff,
                                                    CASE NO; :GDlS-19904
        vs_..
                                                    Superior Court docket n:<:t.
,J?ITTSBURGH .CHAUFFEU�, LL¢;                       1�;1-4, WbA. 2017

        'Defendant.



                                              ·<)PINiON


.AI�n tt�(�berg; Judge                              Date. 'filed: October 2q� 2017'

                                          L     Background


        Plaintiff .Matthew Deivert; age :2S:,. was :i.t;iv'iteq to celebrate, the. birthda y of a· friend,

named Chelsy· during the evening ofFebruary 1, 2014. Mt. Deivert took _a taxi to g�t to

Chelsy's· home 'located .in the Southside Slopes. neighborhood; of :l>1tt�burgh .. A gr0t1p. of

'between thirty .and forty' people, which .included, ft01.end�- Mr, Deivert knew from attending

AlJ.egheilY. College, .began the, celebration by .$Qcialiiifig and. drinking alcoholic beverages
at Chelsy's home. Then, the 'birth gay celebration moved via a.party bus provided ·by

Defendant.Pittsburgh Chauffeur, LLC to .a dance club :in J�jt($�µrgh 's Strip· District .called

Cavo. Nightclub.
        Mr, Deivert 'and the· others danced, socialized and consumed alcoholic beverages

untilCavo N}ghtclubdosed at2:00 a.m. For thetrip ba;e:;k toChelsy'sihome.Pittsburgh

Cha.uf.t:�r provided a.limousine designed to accommodate ten passengers.               Mr. Deivert
was.oneofthe.first passengers togetinside          the limousine and takea.seat. !twas.cold

                                                   J
and back to Chelsy" s home as quickly as possible,       Thi's. resulted in approximately twenty
people· rapidly cramming j:ri.t<J the limousine iii a situation that: Mr. Deivert later described

as: "sardines in :� can fitting ·an_� Way. we could." Transeript of Jury Tr1�f, (>a.,_te;   M�y '.9,
:.iO, u, ..2017{"T/' hereafter), p.   in.
        · At a speed of approximately fifteen miles an :_b.9l!r; the limousine, tide lasted ·for

tweniy to twenty-five minutes, with i( "bottoming out" when.going.around some corners,

·Mr; Deivert' s right knee was .driverr against the 'knee of the man next to .him with- such
force: that it became, painful, Of.course, h� �tt�.mpted to extricate his leg, but pet,ple were

so tightlysqueezed togetherthathis knee remained wedged.in place. Although Mr,

'l>e.'iv�rt played small. college and semi -professional football, his size, five feet five .inches

tall 'and less' than one hundred fifty ,pounds,.. fs atypical for a football player- and 'he did not

a_ppeat to be unusually strong.. He.p_ie.;i_4ec;l with peopletoplease move, but they were
unable to do so, He. screamed because the pain on the· side, of his .knee was .increasing as

he .squirmed to, try to remove his knee 'from the vice-like �itu�tion .. He screamed to the.

driver to. stop the limousine. and let him out :(T.r p .. 80)� but this did not happen. Mr.

Deivert was finally able to "'break.free!•· about one or two minutes before, the vehicle



        Immediately .after.Mr; Deivert, gof out of the· limousine, with 'both men and.

women present, he pulled :hi� pants down to look ai the side of' his. right knee,       M.r..


a.brushburn" with the top layer of skin removed. ;t, pp. 81-82:. Apparently it was a

gruesome sight .as ''[�] �01,1pl� of people were like, whoa, what: is that, then t1,1:r.ned around
cell phone. and sent ihe. photograph by text message to. some of his friends Who had been

in the limousine,
                                                                                                      .   �
         The-wound    iH4 DQt improve.rand on February 6 Mr.Deivertwentto a Ul"MC:
V:/,;!.lk�In'Clin'ic. .Aphysicianfhere examined the woundanddirectedMr.Deivertto goto

the   emergency room ·at Mercy Hospital. From :-:Me.rGy Hospital's emet�ertcy room Mr,
Deivert was. transferred . to the burn unit, the physicians there first· attempted to· heal the

wound.by applying creams and wrapping-it, but.the technique was unsuccessful, Instead,

Mr. Deivert.had asurgical procedure later m.Febnmry involvingthe.placernent of
cadaver skin over the wound, li:i: MarGh.· :M_r. Deivert had. a second surgical .procedure,

The ·physkia_ns- harvested .skin from Mt. Deivert's right thigh and ,grafted fr to the wound,

-\Vh.He the skin graft eve11tually healed. the wound, Mr, Delver; was left. with ·two large,

permanent. scars. on .his right leg. One. ..scar _1�- fcoated :qn the -outside of his· knee and the

other scar' is located· 'on his thigh v.ih�re the skinwas harvested from his thigh.

         ·Mr.; ):)eivert commenced this litigation .irr November of. 2_0iS by· filinga complaint
averring negligence by· Pittsburgh Chauffeur. th�. depositions of nine of the. other,

JJassertgers were: taken -during.the discovery process, but an provided. testimony consistent

with.Mr, Deivert's ,q��ci:ipt.iQn of: the limousine 'ride. The dispute.was assigned -to me. for

resolutionbyway of.a.jutytrial.

         Preliminaril y� counsel argued motions     z,r 'limine. to obtain. rulings on evidentiary
'issues expected to arise during the trial. Pittsburgh Chauffeur submitted 'a motion }ii.

limine to· exclude the causation.testimony ofphysician ;Gregory Ht1bib, because: he

allegedly utilized novel. science that is. not :g�nerally accepted. among physicians. See.
Frye v� 'Onited_·States� 2_9;3 'f,. 2d 1Q13. (D.C Cit. 1-923) (adopted first in.Pennsylvaniain

:Comniortw�alth v.. Topa, 471 Pa. 223, 369 A.2d 1277{1977) and then in: Pennsylvania

RuleofEvidenceno. 702(c)t Afterhearingargument.from counsel, I dep.ie_d themotion

'and allowed the.Jury to view DI\ Habih's vi'<:\eot&pe.d-d�positfon�: ll1e 1wy also received

Hve. testimony from. Mr, .Deivert, two of his friends, the· limousine driver, the owners of

Pittsburgh Chauffeur, .as    well as the'videoiaped. deposition. of'its physician .e'.xJ>ert witness;
Dr; James Cosgrove. Pittsburgh Chauffeur's defense was that the 'injury resulted from

some unidentified cause other than, its overcrowded .limousine. Rejecting this .defense,

the- Jury reached .a.unanimous verdict in favor of Mr. Deivert in 'the amount of $500;000.,

           Pittsburgh Chauffeur- appealed from the-Judgment entered on the verdict? and J

write: this. Opinion to exp fain the rulings identified in its Concise Statement of Errors

Complained o.f: on.Appeal '("Concise, Statement" hereafter). .See Pennsylvania Rule: of.

Appellate Procedure No. 1925(a).· Most of Pittsburgh Chauffeur'scemplaints concern

.my rulings on Dr .. Habib's videotaped deposition .. See; Concise- Statement, 'IJ'.nos., 1, 2, 3,

:4 and' 5....

                               IL      Plaintiff's, Expert Testimony

            Pittsburgh Chauffeur first contends, l erroneously denied {ts .motion   in limine. It
argues Dr .. }l.abfb''_s_ opinion.on causation is. inadmissible pursuant to ;Frye'v. United:

States_,. because :h�: relies' on novel science that .is not generally accepted among

_physicians� However, Pittsburgh Chauffeur incorrectly interprets Frye. The

Pennsylvania Supreme, Court has emphasized' that vafi.�f challenges under Frye must be

madeto.a novel methodology: and.not to an.expert's conclusions; which· need not be

generally accepted by the relevant scientific community. See, Commo_n�ealth ·v. P·uksar�


                                                  4
                                                  ·,-----
                                                     .

Pa.,5.4,:890A:i<l j7z.ar382.'(Z00.5)!    ·or. Habib's methodolcgywastotake a history from
&fr; Deivert, perform an examination of his ihjut,y.; review photographs ,of the injury,

:teview medical. records, and ·d¢positi�n transcripts, then provide .an opinion. on causation

based .on .his education, training and experience .. Thi& methodology is 'by .�9 means novel

as 'it .is the .methodology almost.universally employed by medical e"':peits .in personal

i_nju.qr cases. See: Eolger ex rel. Fol�er v.� Du�aii, 876 A:2d 1049 at 1058 (Pa. Super:

2005)'; Because. fr is.Dr: Habib's conclusionand not.his.methodology that Pfttso�rgh



        .Assuming, for :the :sake of Pittsburgh :Ch�uffeur 's. argument, that it may challenge

Dr. Habib's conclusion by· claiming 'it relies on novel. science, Mr; Deivert proved"

pursuant to :_Frye. that the conclusion, ts .generally accepted by 'physicians. Dr. Habib-

testified   to general acceptance by .otherphysitiarts· of his .conclusion that the combination
of-pressure and: friction caused the burn, See Videotaped Deposition of Gregory Habib,

D.O._pp. T-:8, 12;1s:;:20; 38, 4647.and 60-61.: Inaddition, Pittsburgh ChcJ.µffeµ:i's.

medical expertwitness .a<;t1J�·11y agreed with :DL Habib that "pressure .and friction [ can]

combinetogetherto.form.a burn· .... '? Videotape Deposition of.JamesL, Cosgrove, M;D';,

p, 56. Therefore, since.Dr, Habib's· conclusion is generally accepted     by other physicians,
:J ·C'Orredly denied the: motionin Iimine.

        Pittsburgh Chauffeur next: contends Or. Habib "did not support' his. opinion.with

any .medical literature ,o:r epidemiologioal studies." Concise Statement; ,r no. L
However, an expert medical witness may n�l,y 011 experience and need not ·support: his, or

h�_r opinion.with medical.literature.   See . Catlinv. Hamburg,.5.6A.3.d 914 at921.(Pa',
                                                                ....   �   ·.:




        Pittsburgh Chauffeur next contends Dr. Habib; "falsely testified to: a bony

prominence. when· photographic.evidence, medical records and 'a view Q_{ Pfr:i,i;otiff.\ kg
located the 'injury on the thigh,.. .'; Concise Statement, ,r .no, 1.. Ironically, Mti Deivert's

-coµn�el argued tothe.Jury .tbli.t Dr .. Cosgrove (Pittsburgh Chaufffeur's.medical expert}

'had inaccurately concludedthe wound was to. the: dHth because he .neither examined. Mr.

'Deivert nor. took a history from him, T., pp·. 334-t�9; The Jury saw the photographic

evidence and viewed MT,. Deivert's leg, and based on 'its verdict, the Jli'fY, likely agreed

'with Mr. Deivert's counsel. I also found Dr. Cosgrove.' s conclusion 'that. the wound. cI:fd

not .develop over a. bony prominence was, not credible. Hence, t.hei:e. was no false

testimony .by Pt,: Habib; fo_�te.ad_, there was testimony by Dr. Cosgrove that lacked

(:rndibi.lhy: th:us, allowing I>t. .Habib to· testify that the wound' developed over ,a bony


        Pittsburgh Chauffeur next contends .1):r:; Ha,t;>jb \ testimony about necrotic· tissue-

was contradictory c1,_11.9_ he was unable to quantify the .amount offorce necessary to cause.

Jh� injury,   See.Concise Stateme·nt,.,r ho. L.   However, thisis simply an argument.thatDr.

Habib.was not credible.which Pittsburgh.Chauffer's counsel made.to t.h_e;Jµry. See t,.

pp •. 314�317, Since this .clearly· does. nm make Dr, Ha.bib; s, opinion or any. etherpart of

h_is:.fesJimony .inadmissible, his-opinion oh the..cause of'Mr: Deivert's 'injury was properly

admitted into evidence..

        Pittsburgh Chauffeurnext contends. l should have .granted judgment

notwithstandingthe.verdict' or .a new trial 'because there was 'not competentevfd�nc�'-1.ha.J


                                                  6
'See Concise Statement; ,l':nos� ·2 and.S .. This �fgtl.IJl�nt.i& metitl�.s�. :(.!).�· testimonyby

Mr: Deivert a.n.d two ·ofhis friends who were 'in the· limousine was competent evidence

that the overcrowded limousine caused Mr. Dcivcrt's inJuries. hi addition, the· expert.
                       I


medical testimony from Dr.. Habib was competent evidence that, the overerowded

Iimousine caused. Mr, Deivert's. .injuries, f�na,(ly ,. even though: 'it was Dt Cosgrove's,             i
                                                                                                        l
                                                                                                       ·1
opinion that the. overcrowded limousine .did not cause Mr. Delveri's injury, he

.acknowledged .seeing pressure injuries: .develop over bony prominences, .and :h.e.woµf<f ·PO(

rule. outthe possibility that.pressure and. frj�tjon fr9_111 the. overcrowded limousine injured

.Mr. Deivert,   S'ee. Deposition of: Cosgrove, pp. 55-57. Therefore, I correctly denied the

.motions -for judgment notwithstanding the. verdict and for a new trial.

        Pittsburgh Chauffeur. next contendsI should have grantedjudgment

notwh'b$ta,n:qfog the. verdic; or � new trial because .Dr. Habib's causation opinion was

given "without medical orscientific support or foundation.,. ," Concise Statement, ·,r no.

4. However, as. I 'previouslyexplained, the methodologyemployed �y )Jr,. Habib 'is

standard. for: med teal' experts. fo, personal J1.1.fory cases, his· conclusion that ptesSute .and

frktfog caused. the wound is gene tally accepted byJ>hysicians, and 'he- is.permitted to rely
on his. own education and experience for .his opinion, Therefore, 'this. contention fo.¢ks.

anymerit,

        Pittsburgh Chauffeur next. contends r erroneously permitted Dr .. Habib "to give.

testimony outside· of the. scope: of his. report." Concise Statement; ,r no .. 5'., In tb� llrief !U
Support.ofDefendant' s Post-Trial .Mo.t_fon.�, that testimony from br: Habib is described as,

criticism. ofDr; Cosgrove, the. force required to cause J'>tessure sores and the way burns


                                                  7
progress. Pennsylvania Rule .of.Civil Procedure No; 4003.•5(c) prohibits: "direct

te$tlll1,0.IJY o! the expert at, tria] .... .beyond thefair scope 0('11.�s or her" expert's J�po1J.

Whi1.01e pµrp<?$e for thisrule.being avoidance of unfairsurprise, the.focusof the:a.n�ly$i�
is. on the; word ·�fair: 11 See· Mansour v.   Lin�anna, 787 A.2d' 443 (Pa .. Super: 2001) appeal
denied 796 A.2d :984, 5.68: Pa, 702 .. With.respect to Dr. Habib's criticism' of Dr.

Cosgrove, one: shoul(l· not be surpnsed. but .instead should he expecting this; 'Irr any event,.
                                                                          .                     .




Dr. Cosgrove 's testimony was equally critical of r», Habib. S'ee· Deposition of Cosgrove,

pp: .24�25 and 45-46. As to force and.pressure sores; pressure sores are mentioned. in Dr,

B..aJ?ib'!S expert report, .Additionally; rnos; of the testimony .on t.h.e amount of force was

elicited during cross examination. Withrespect to the way burns progress; there. was no

surprise.since Dr. Cosgrovetestified extensively about the size-of the wound .. In'

addfdon, Dr, JI�b'ib was describing. the. photographs mentioned 'in his expert's. report



of. Dr. Habih·'s expert report .was ;�veil.

         Pittsburgh Chauffeur next contends I .erroneously :permitted Dr, Habib: 10 give:



See Concise Statement, ,r no . .5... In the Brief in Support. of.Defendant's Post-Trial
                                                      -
Motions, the .argumentative testimony 'is described as Dr. Habib saying no cause -of the,

foJury was identified other than the .overcrowded limousine .. This testimony, however, Js.

                                              . Dr'. .Habib .ii), rendering.his .o. pinion. 'The,
appropriate p��atJ§e il i$ a fact: assumed l;>y

comment oh 'credibility is' describea .as Dr; Habib. saying: he believed Mr: Deivert and .his

friends had. given truthful deposition testimony about what occurred .duringthe limousine

ride.   Again, these are.facts that Dr. Habibproperly could assume. in.renderinghis
··J.'··· ......     .   .,.   ..   ;,/   -     �      .   - . -· ..•   '•   .   '   . ., . . . . .   ·-·· ..                ····\�--     ..


Mt. Deiven "has a case· of.what.is called. false attribution,"                                                          Deposition of. Cosgrove, p.
43. Therefore, this testimony by· Dr. Habib was permissible ..

                  Pittsburgh. Chauffeurnext contends: that. Dr . Habib'stestimony about: the

overcrowded 'limousine. befog the .only id.eritifi.¢d: cause .qf injury assigned "an unfait

burden of proofupon ·the Defendant," Concise Statement,                                                                ,r110, $.,      T.lli:s. contention lc!.cl�&
'any .merit.because I instructed the Jury' that' 'f(Uhe· Plaintiff has· the burden of
proving .... .the. defendant' s negligence was a factual cause: in bringing.abou t the harm."

T .. , -p. 345; Pennsylvania Suggested 1.uty Instruction {Civil). No. 5.0t). Hence, .an unfair

burden of proofwas 'not assigned.

                  Pittsburgh· Chauffeur .nexr contends. I erroneously 'permitted Dr .. Habib "to. testify

that Defendant's .expert. testimony was 'defective: .fgr failing to provide: �P alternative

theory of causation." Concise Statement, ,r no. 5.                                                             However, as pointed'. out. above, Dr.
Cosgrove is critical of Dr; Habib; He criticized Dr.'. Habib fornot being, a treating

physician and 'haying an inconceivable opinion on causation, S�e Deposition _oJ

tqsgrove, p. 24-2S. and 4$-46, Relative to.causation, br. Cosgrove also testified Mr.

Deiveri falsely- attributed the wound                                                   to· the limousine tide; Since ·it would therefore.be
unfair to disallow criticlsm of Dr; Cosgrove' s opinion on causation, I properly permitted

the testimony from '.Dr; Bab.it;> .

                                                   .III.          Jury Charge and Written verdict.Form

                  Pittsburgh 'Chauffct next takes issue with my .instruotions to the Juryon the,

applicable Jaw.                          :It: contends. "the Court abused i.t.s q1_$cxetic;m and committed error. in
denying Defendant's Points for 'Charge .. , regarding the mere h�prenint· of 'an accident,


                                                                                                         9
Statement, ·;J. no. :6. 'Instructions 'Ot the "charge" to: thejury- is adequate "unless there, is an

omission .in the. charge 'which amounts to a· fundamental error. �' Quinby v .. Plutr1steadvilk

Family .Practiee,, 'Inc:, 5.89 Pa.183, 197, 907 A.2d 1061;.1069�1070 (200.6). My denial .of



preponderance. of the: evidence- with the occurrence of an accident not being evidence. of

negligence, was notfundamental error. Such a. charge would have been repetitious: or the

concepr' sufficiently ·cove.red by the' charge l gave the }'ury that defined preponderance of

die evidence .andinstructed · ''[t]he
                                .
                                      Plaintiff has: the burden of proving ..... [t]h� Defendant

was negligent ... " T:,.p . 345. SincePittsburgh Chauffeur acknowledged the· limousine

was carrying more passengers than was appropd.ate·:(see. T.� pp. 282/2.85).and the dispute

was focused. on. whether this caused ·tvfr Deivert's injury, the .requested charge. also could

have misled the Juryfrorn focusing on the .main dispute ..

        l denied the charge, .that sustaining damages: by .itself is nota reason to award




"[tjhe fact that I   am now· goingto instruct you about damages 'does not "imply .any opinion·
on my ·part as. to whether damages .should be awarded. If you. find that: the Defendant" is.

Hable to the :P:ia,1nt1ff you must then. find an amount 'of money damages ... ." T,, p, .34.8. I

a,lso· instructedthe Juty
                        .                          . burden to: prove the, extent of. damages.
                          that the. Plaintiff has the                                      �·


See T., J>. 345. In addition, the -written verdict femplate. Lprepared required the· Jury- to

find negligence and factual cause in order to award damages ..



because :ibvas, 'repetitious or the: concept sufficiently .coveredby another; charge. I



                                                10
iustructed the 1.µ,;y tha.t the P.la}ntif:( fo�d the.burden to prove' negligence and ,f.�ct11;1J cause:

and that   '-la] factual cause cannot be an imaginary or' fanciful factor having no connection
.or only an.insignificantconnectionwith the harm." T�,'P· 346. Lalsoprovided theJury

wTth extensive, suggested ,guidance on evaluating 'expert 'witness' testimony, :See T'.,. pp,

�54-�5(f    "Qivi�g the 'instruction also could hav.e misled the· Jury 'to focus: on whether one

ofthe :e�petts speculated when 'the      real. disl?me between experts boiled. down to which
.one Wc:\S more credible,    ·F.fo<:t.Ily ?· the' Superior; .Court of Pennsylvania .d�.eme<l a very

.similar :�barge: unnecessary in.-.Gillingham. v. Consol Erte�gy, :Irtc., 2012 PA Super 133, :51.

A3d 84.1.at. 858 (2012),

        Pittsburgh Chauffeur next contends I erroneously prepared a written verdict

template (Pr verdi{;t' �HP) that ask.ed Jffittst>t1rgh· Challtt'�u..r'·s cqnd.t1G.t ''fel.l: below the

'highest standard of care" instead· of asking. if Pittsburgh Chauffeur "was negligent."

:Concis.e 'Statement; ·,r. no, 7. According to: Pittsburgh Chauffeur, this confused and misled

the.)\1w, Id. 'f.Iowe.v(;{, .as r ��id. on th.e record .during the .charging conference. (see·        r; pp,
,295.-297), in this· case :askih$ 'ifthe defendant was .negligent had the potential. to confuse

theJuit.

         Even though Pittsburgh .Chauffeur fa· a "common carrier;" neither party submitted

.a proposed jury instruction on .a common carrier's duty-to passengers. See, ·e,g,,

Cc5nnolly v. Philadelphia Transp; Cb., 420 Pa. 280�. 283,. 216: A.2d. 60,. 62 (1966)

declaring "[�J common carrier ... owes its: passengers- the, highest: degree· of care." Hence,

:'ehts.bµrgh: C.bau.:ff�ur did IJ.Ol object w.h�n I. proposed to· give P.e.nn.§ylva_ni� Suggested' Jury

Instruction (Civil} n·o.13� 120- on a common. carrier's duty' of.care, At the, same time,

Pittsburgh Chauffeur fo�_1ste.d. that: Mr, Deivert was negligent 1111d. that: the.verdict 'slip ask
if he was negligent. With a higher standard, ofcare applicable: to P.itt�b11.rgl.t C.h.aut{ey_i:

than t11� ordinary negligence standard of.care.applicable to Mt .. Deivert, using the same

negligence standard for both parties could have             confused the Jory, It :is within· my

discretion to grantor-refuse a proposed verdictslip, 'See:Wfggins v. Synthes, 2Qii .PA



the potential for ju�y confusion \vi'th a verdict slip that asked if Pittsburgh Chauffeur's

conduct fell below the. highest: standard. of care,



          Pittsburgh Chauffeur's     final contentions relate 'to the amount. of the. verdict,
$5.00�000� It first contends the, verdict 'is· excessive because there only were noneconomic

damages. :se·e· Concise- Statement,      1! no., 8.   However,     to .a_n.a,iyze an. excessive verdict:



verdicts." .Pa1iometrc)s ·v ,. Loyola,. 2007 PA Super 244� 93 2 A2d 128,.135, A verdict is

not 10. b:e deemed excessive because it, does not include medical. expenses, fo�t earnings or,



Involving-cnly noneconomic: datna�es). citing Botek:v: .. Mine- Safety Ap-pliance- Corp.;� 53'1

Pa .. '160, 61'1 A,2d. l 174   Q 99�). (1982 'incident resulted in ·$35·0,00Q juryverdict fovoi_viJJg
only .$,783 in economic losses), The factors- relevant, fo .determining w:h�t.bei:. the :$500,()()0,



objective physical evidence and whether it is· :petrrtane:nt Id, at' 135.

          Mr.Deivert'sinjury clearly ismanifestedby objective P-hysJqiJ ·eV:id.�.lJ:Ge and has

left: permanent scars, ·The Injuryis
    ' .                        . .
                                     severe.          It is, a· :third. degree. bum. The Jury saw .a

progression of:_photogra_phs of the w?und. and .also viewed the <1.Ctu.�1 scars from it while


                                                      12,
Mt. Deivert testified during the trial, Theinjury appeared very uglyin itsearly stages,

Both experts: agree· ,tbe injury was painful when it was· sustained, the. tWQ· surgeries were.

painful and recovery was painful. The severity of-the, fojµ_ry ·G!l�6' is apparent from the

high degree of embarrassment andhumiliatiorr it.has Inflicted.on.Mr. Deivert. He is,

asked, "what happened to you?" when people. at his: gym notice the scar ,, and. his. level of

frustration, �IJ.:<i embarrassment increases further- when he tells them "an overcrowded.

limo," T,, p, 95. W·hert�e·gpesto.walk.dogs �tthe,d.¢gpark.""[t]hete will be.people

pointing: Kidsgothere, You.know how.honestkids-are. They'll belike eww, eww,

gross," T'., p, 9($, The iiij1.ii) also negatively impacts Mr. be.i:v.e.r.t\ romantic life. See.Ts,

:p. ·95,. Pittsburgh Chauffeur. disputed none of this, and I found Mr .. Deivert and his two

friends were· extremely crediblewitnesses,                 The $500,000:verdictfor Mr, Deivert's.
                 I                    .                               .       ·N···    ..      ('              .
uncontroverted painand sufferingembarrassment, humiliation, loss ofenjoyment.of.life

and disfigurement is        not so '"grossly· excessive 'as ;to shock [ myJ sense. of justice." See.
,Paliometros v. Loyola at J34. Therefore, my decision to let the- Jury's de:cisiomst.c;lQQ W.<:!,S·

correct.
           Pittsburgh
                    .
                      'Chauffeur next contends "[tjhe.Jury's questions revealed confusion.
                                                                          '




and .misunderstanding as. to their determination 91' damages." Concise: Statement,                             ,r no. $·,
                                                                                                                      1




This· alleged confusion, according to Pittsburgh Chauffeur, resulted when M:-r! ..Deivert' s

failure to: o_f.(er:hi§ medical expetiSes intoevidence! :kft the Ju.ry "with .nothing, to fair} y

:g��g�· the value -ofthe .case. ... ." Brief in Support of Defendants Pot- Trial. Motions, P. .3:5.

'l;he written questions the; Jury submitted ·to, me .during deliberations were:

1
 ·Mr), Pei_vei'_t-'s· counsel announced the.decision not .to:Qff.er: in¢J;ljcilJ. bills '.in(o evidence' during an on the:
recordi<:!l�c.U.ss_i9n.a9ouJ:Pitfsburgh Chauffeur's: "Motion in LimineRe: J.ostir.�nc;e Benefits· and 'Medical
Experises.\P.itr�burg�. Chauffeur had argued that .evidence thi:: Uefl fot qi(:9_i�a.l,�xpenses· would .be satisfied.
from.any recovery Xvo\ilcJ be-prejudicial. As would .be.expected, Ptttsb.ii.rgh_: �h��ffeur. had no. objection to
Mr, Deivert's jjiedjc�fl?ill}� not being offered "into evidence. -See t.i pp, 'l!l-4$:,
                           In .  ?;,· · T
                           ' Jury�      . · .,         · · '·.5. ,
                                                 p ..·36

                    :'2'. "We are, having trouble: determining. art amount.for an' award of

                           damages,
                                .                  . evldence we can review that would :c1,�ii�i. with
                                    Is. it.here .any

                           thatorcan.the.Judge clarify how we pedde?'-"T.,_p.               '.3.69.

                     ·3_ £�Js the- amount we write down going to be, the: final' amount. awarded?"

                          'T., p, :373.



"misunderstanding, tr and those terms, or' similar terms ate nor contained 'in 'any of the

questions. The questions certainly Indicate the Jury was strugglfng.to determine· the




noneconomic losses . See Martin v. :Soblotney,,502'Pa. 418, 466 A.2d 1022(19.83), ln.




Pennsylvania.juries, expressed the· difficulty inherent when 'intangible: losses: must be

quantified 'without the use -of any mathematical formula. The: verdict, therefore; did J10J




          Lastly, Pittsburgh. Chauffeur contends the. verdict: "represents a value guided only



Pittsburgh Chauffeur,            however; ,offetS:ho direct evidence. that emofion, ·sy�pathy or

i:(J>ti9.§¢l. Jqr·.Pitt_slwrgh. Chauffeur, agreed that the answers io-each.question. that l.provided' to the Jury were
:appr9p_rj�_t'1� Bee,T,, ·pp. :$(>5�.37.7, ·
                                                                     14
--r----.,.   - ---- -·-- -   -. --·- ,-_,., -- --;1_,-   - ---- ..- ···· - ···· ---- •   ----·J   r-J- - --- -· ·   J---r: --- ·J- -- --·



prejudice .should influence your deliberations/ T.,. p. 362. Pittsburgh Chauffeur seems

to argue the -influence ·of emotion, sympathy or speculation tn the $500,000 Verdict -tail

be inferred because of the, allegedly insignificant damages. I disagreebecause. the:

damages to. Mr. Deivert.were significant .and the Verdict th_erefo.r.e, not the: product of

emotion, sympathy or speculation,




                                                         BY:THE-COU-R.T::




                                                                     15.
