J-A06018-20


    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    BETTY L. SHIFLETT AND CURTIS               :   IN THE SUPERIOR COURT OF
    SHIFLETT, HUSBAND AND WIFE                 :         PENNSYLVANIA
                                               :
                       Appellees               :
                                               :
                v.                             :
                                               :
    LEHIGH VALLEY HEALTH NETWORK,              :
    INC.; AND LEHIGH VALLEY                    :
    HOSPITAL                                   :
                   Appellants                  :      No. 2293 EDA 2016

                Appeal from the Judgment Entered July 18, 2016
                 In the Court of Common Pleas of Lehigh County
                     Civil Division at No(s): No. 2014-C-0388


BEFORE:      STABILE, J., KING, J., and STEVENS, P.J.E.*

MEMORANDUM BY KING, J.:                                    FILED MAY 26, 2020

        Appellants, Lehigh Valley Health Network, Inc., and Lehigh Valley

Hospital (collectively, “the Hospital”), are before us upon remand from the

Pennsylvania Supreme Court, with regard to their appeal from the judgment

entered in the Lehigh County Court of Common Pleas against the Hospital and

in favor of Appellees, Betty L. Shiflett and Curtis Shiflett, husband and wife,

in this medical malpractice action. We affirm.

        In its opinion, our Supreme Court set forth the relevant facts and some

of the procedural history of this case, in part, as follows:

           Betty Shiflett…underwent knee surgery at Lehigh Valley
           Hospital…on April 12, 2012.        While recovering in the
           hospital’s post-surgical unit (“PSU”), [Mrs. Shiflett] fell out
____________________________________________


*   Former Justice specially assigned to the Superior Court.
J-A06018-20


       of bed. Three days after surgery she was transferred to the
       transitional skills unit (“TSU”) for occupational and physical
       therapy. Shortly after her transfer to the TSU, [Mrs.
       Shiflett] experienced pain and a clicking sound in her knee.
       [Mrs. Shiflett] reported these symptoms to nurse Kristina
       Michels Mahler (“Nurse Mahler”), but Nurse Mahler did not
       report these complaints to the treating doctor. On April 19,
       2012, a physical therapist informed doctors of [Mrs.
       Shiflett]’s complaints about her knee.           The doctors
       determined that [Mrs. Shiflett] had suffered an avulsion
       fracture of her left tibial tuberosity. [Mrs. Shiflett] then
       endured two additional surgeries in an attempt to fix her
       knee, both of which were unsuccessful. [Mrs. Shiflett] has
       been left with no extensor mechanism in her leg, suffers
       from chronic pain, and is confined to a wheelchair.

       In February 2014, the Shifletts filed a complaint in which
       they asserted a claim for negligence in connection with [Mrs.
       Shiflett]’s fall in the PSU as well as a claim of loss of
       consortium.       Therein, the Shifletts alleged that the
       Hospital’s employees were negligent in failing to provide
       adequate fall protection for [Mrs. Shiflett] in the PSU and
       that the Hospital failed to oversee adequately its
       professional staff. According to the Shifletts, but for this
       negligence, [Mrs. Shiflett] would not have suffered the
       avulsion fracture and permanent disability. The Hospital
       filed preliminary objections, complaining that the averments
       were too vague, general and overbroad to discern the
       nature of the alleged misconduct at issue. In response, the
       Shifletts filed an amended complaint, refining their
       allegations to specify that they were asserting claims
       against the Hospital for both vicarious liability and corporate
       liability with respect to the negligence associated with the
       events that occurred in the PSU.          The Hospital again
       objected on the basis that the averments were
       impermissibly overbroad and vague, …but the trial court did
       not agree. It overruled the preliminary objections and the
       case proceeded toward trial.

       More than a year later (and more than three years after the
       events in the Hospital), the Shifletts sought leave to amend
       their complaint for a second time in light of evidence
       revealed during discovery.      In the proposed amended
       complaint, the Shifletts sought to add allegations of

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         negligence regarding Nurse Mahler’s conduct in the TSU.
         Specifically, they sought to include allegations that because
         of Nurse Mahler’s failure to report [Mrs. Shiflett]’s
         complaints to the doctors, [Mrs. Shiflett] received multiple
         rounds of physical therapy that increased the risk of
         additional injury to her knee and the need for surgery. The
         Hospital opposed the motion, arguing that the proposed
         amended complaint added a new cause of action that was
         barred by Pennsylvania’s two-year statute of limitations for
         negligence claims. The learned trial court disagreed and
         allowed the amendment.

Shiflett v. Lehigh Valley Health Network, Inc., ___ Pa. ___, ___, 217

A.3d 225, 226-27 (2019) (“Shiflett II”) (internal citations omitted).

      On January 19, 2016, the Shifletts filed motions in limine seeking, inter

alia, to preclude the Hospital from introducing evidence at trial regarding Mrs.

Shiflett’s adult son’s convictions for sexual offenses in early 2012. Following

a hearing, the trial court granted the Shifletts’ request on February 2, 2016,

and precluded the Hospital from presenting details about Mrs. Shiflett’s son’s

criminal history and the nature of his offenses. The court, however, permitted

the Hospital to inquire generally about Mrs. Shiflett’s son’s “legal problems”

as an alternative explanation for or cause of her depression, which the

Shifletts claimed she suffered as a result of the Hospital’s alleged negligence.

      At trial,

         [Mrs. Shiflett] testified that she is now permanently disabled
         and suffers from depression as a result. She indicated that
         she is embarrassed, as her husband has to care for her,
         including dressing and bathing her. She has pain “[a]ll the
         time” and cannot even ride very far as a passenger in an
         automobile because travelling causes her too much pain.
         The Shifletts’ life care planner expert, Nadene Taniguchi,
         testified about the Shifletts’ damages, including [Mrs.

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         Shiflett’s] future medical costs.

Id. at ___, 217 A.3d at 229 (internal citations to record omitted).

      Additionally, during trial the parties presented to the jury the videotaped

deposition testimony of Dr. Robert Mauthe, an independent medical examiner

who evaluated Mrs. Shiflett and reviewed her medical history. (See N.T. Trial,

2/5/16, at 210.)    During Dr. Mauthe’s testimony, the following exchange

occurred between Dr. Mauthe and the Hospital’s counsel:

         [COUNSEL]:           Now, did [Mrs.] Shiflett discuss with
         you at all whether she is currently depressed?

         [DR. MAUTHE]:      You know, I was asked to address that
         issue. It was uncomfortable. But I was asked to do it.

         And so, I waited until the very end until [the Shifletts] were
         just about to leave. … And so I brought it up. And [Mrs.
         Shiflett] said yes, I am depressed. And then I had to ask
         her about this other issue—

                                  *    *     *

         [COUNSEL]:           Doctor, can you tell us what [Mrs.]
         Shiflett shared with you with regard to her depression, when
         you questioned her on that issue?

         [DR. MAUTHE]:       There obviously is an issue regarding
         her depression. Someone who has had a functional decline,
         as she has, would understandably be depressed.

         Someone who has been exposed to an environment in which
         there are issues having to do with her son. And those issues
         are—can also be depressing. And so I very simply was very
         polite. I asked [Mrs.] Shiflett if they were both contributing,
         and she said yes.

(N.T. Dr. Mauthe Deposition Testimony, 1/20/16, at 38, 41).

      Subsequently:

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         On February 8, 2016, the day before the case was submitted
         to the jury, the trial court met with counsel to confirm that
         the Shifletts’ claim for corporate negligence related to the
         Hospital’s alleged failure to train the nurse (Nurse Langham)
         on duty at the time of [Mrs. Shiflett’s] fall in the PSU.
         Counsel for the Shifletts confirmed this representation,
         indicating that the Shifletts were presenting three claims of
         negligence: two for vicarious liability (relating to the
         negligence of Nurse Langham in the PSU and of Nurse
         Mahler in the TSU), and a claim of corporate liability relating
         to [Mrs. Shiflett’s] fall in the PSU. …

Shiflett II, supra at ___, 217 A.3d at 229 (internal footnote omitted). The

parties agreed upon a general jury verdict sheet that did not require the jury

to allocate distinct damages awards per each claim for which it found the

Hospital negligent and liable.

      On February 9, 2016, the jury rendered a verdict in favor of the Shifletts

and against the Hospital. Specifically, the jury found: (1) Nurse Langham (the

nurse in the PSU where Mrs. Shiflett fell) was not negligent; (2) Nurse Michels

Mahler (the TSU nurse who failed to report promptly Mrs. Shiflett’s post-

operative pain) was negligent and her negligence was a factual cause of harm

to Mrs. Shiflett’s injuries; (3) the Hospital was vicariously liable for Nurse

Mahler’s conduct; and (4) the Hospital was negligent, based upon a theory of

corporate negligence, for failing to train employees and enforce fall prevention

policies, and the Hospital’s negligence was a factual cause of harm to Mrs.

Shiflett’s injuries. The jury awarded the Shifletts a general damages award in

the amount of $2,391,620.00. Per the mutually agreed-upon verdict sheet,

the jury did not allocate discrete amounts of damages to specific claims. On


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February 18, 2016, the Shifletts filed a timely motion for delay damages. The

court subsequently granted their motion and entered a molded verdict against

the Hospital in the amount of $2,432,511.17.

     The procedural history of this case continued as follows:

        [On February 18, 2016, the Hospital timely] filed a post-trial
        motion requesting judgment notwithstanding the verdict, a
        new trial, or remittitur. The Hospital did not challenge the
        unallocated nature of the damages award, but reiterated
        [the] claim that the second amendment of the complaint
        (regarding negligence in the TSU) was improper because it
        allowed a time-barred claim to be submitted to the jury.
        The trial court denied the post-trial motion. Following the
        entry of judgment, the Hospital appealed.

        On appeal, the Superior Court ruled that the trial court
        should not have allowed the second amendment to the
        Shifletts’ complaint. Shiflett v. Lehigh Valley Health
        Network, Inc., 174 A.3d 1066, 1086 (Pa.Super. 2017)
        [(“Shiflett I”)]. The intermediate appellate court noted
        that the time frame and cast of actors alleged in connection
        with the PSU were different from those alleged in connection
        with the TSU claims, and thus held that the TSU claims were
        time-barred and that the trial court erred by allowing the
        Shifletts to add them to their complaint and present them
        to the jury at trial. Id. at 1087-88.

        Having reached this conclusion, the Superior Court turned
        to the question of whether the case would have to be
        remanded to the trial court. It explained that because the
        verdict sheet did not itemize the award of damages by claim,
        it was impossible to know whether some of the award was
        attributable to the finding of negligence on the time-barred
        TSU claim. Id. at 1092. Because the allocation was unclear
        from the verdict sheet and the Shifletts were not entitled to
        recover on the time-barred TSU claim, the Superior Court
        concluded that a new trial limited to damages was required.
        Id.

Shiflett II, supra at ___, 217 A.3d at 231-32 (internal citations to record


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and footnotes omitted).        Additionally, this Court determined the Hospital’s

appellate issues related to the scope of the Shifletts’ liability expert’s

testimony and inconsistent verdict claim merited no relief. Shiflett I, supra

at 1089-92. This Court declined to address the Hospital’s remaining appellate

claims, because they pertained to the amount of the jury’s damages award.1

       The Shifletts timely filed a petition for allowance of appeal to the

Pennsylvania Supreme Court. Our Supreme Court denied in part and granted

in part their petition to consider only one issue:

              Did the Superior Court panel overlook or
              misapprehend th[e Supreme] Court’s precedent
              establishing that if a party does not request a special
              interrogatory on the verdict sheet allocating damages
              between causes, it has waived any objection to a
              general damage verdict?

Shiflett v. Lehigh Valley Health Network, Inc., 648 Pa. 13, 191 A.3d 745

(2018). On September 26, 2019, the Supreme Court reversed this Court’s

grant of a new trial on damages, holding the Hospital had “waived any

entitlement to a new trial on damages when [it] failed to request a special

interrogatory on the verdict sheet that would have permitted the jury to

allocate the damages awarded on each claim.” Id. at ___, 217 A.3d at 226.

In doing so, the Supreme Court recognized the “possibility that the Shifletts

have obtained an award that may include damages awarded on a time-barred


____________________________________________


1Of the seven issues the Hospital had raised on appeal in Shiflett I, this Court
addressed the Hospital’s first, second, fifth, and seventh issues. This Court
declined to examine the Hospital’s third, fourth, and sixth appellate claims.

                                           -7-
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theory of liability that should not have been submitted to the jury. The record

demonstrates, however, that the Hospital was acutely aware of this possibility

throughout the course of the trial, yet failed to request a special interrogatory

that could have prevented this eventuality.” Id. at ___, 217 A.3d at 237.

Thus, the Supreme Court remanded the case to this Court to consider the

Hospital’s outstanding appellate claims, left unaddressed by this Court in

Shiflett I. Id.

       The Hospital has three remaining issues for our consideration:2

          [ISSUE 3:]   WHETHER THE TRIAL COURT ERRED IN
          PRECLUDING EVIDENCE OF THE CRIMINAL HISTORY OF
          MRS. SHIFLETT’S SON SINCE SUCH EVIDENCE DIRECTLY
          AFFECTED THE LEVEL OF DAMAGES SHE ATTRIBUTED TO
          [THE HOSPITAL’S] ALLEGED ACTS OF NEGLIGENCE AND
          SUCH EVIDENCE WAS DIRECTLY RELEVANT TO HER
          CREDIBILITY?

          [ISSUE 4:]   WHETHER THE TRIAL COURT ERRED IN
          PERMITTING THE SHIFLETTS’ LIFE CARE PLANNER EXPERT
          TO TESTIFY ON FUTURE MEDICAL EXPENSES WHICH WERE
          NOT REDUCED TO PRESENT VALUE?

          [ISSUE 6:]  WHETHER THE TRIAL COURT ERRED IN
          DENYING REMITTITUR WHERE THE JURY’S AWARD FOR
          FUTURE MEDICAL EXPENSES WAS NOT SUPPORTED BY THE
          EVIDENCE AND THE AWARD SUBSTANTIALLY DEVIATED
          FROM WHAT CAN BE CONSIDERED REASONABLE
          COMPENSATION?

(The Hospital’s Brief at 6-7).

       When considering a challenge to the denial of a new trial:


____________________________________________


2The Hospital did not file a new brief upon remand, so we will discuss the
outstanding issues in the order they were presented in Shiflett I.

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         Our review of the trial court’s denial of a new trial is limited
         to determining whether the trial court acted capriciously,
         abused its discretion, or committed an error of law that
         controlled the outcome of the case.           In making this
         determination, we must consider whether, viewing the
         evidence in the light most favorable to the verdict winner, a
         new trial would produce a different verdict. Consequently,
         if there is any support in the record for the trial court’s
         decision to deny a new trial, that decision must be affirmed.

J.W.S. Delavau, Inc. v. Eastern America Transport & Warehousing,

Inc., 810 A.2d 672, 680 (Pa.Super. 2002), appeal denied, 573 Pa. 704, 827

A.2d 430 (2003). A new trial is granted only where the verdict is so contrary

to the evidence as to shock one’s sense of justice, not where the evidence is

conflicting or where the court might have reached a different conclusion on

the same facts. Lombardo v. DeLeon, 828 A.2d 372, 374 (Pa.Super. 2003),

appeal denied, 579 Pa. 704, 857 A.2d 679 (2004).

      In the Hospital’s third issue, it argues the trial court improperly

prohibited it from introducing at trial the details of Mrs. Shiflett’s son’s

conviction. The Hospital contends the specific nature of her son’s conviction

and sentence were probative and relevant to Mrs. Shiflett’s purported

emotional suffering. The Hospital maintains Mrs. Shiflett’s son’s conviction,

which stemmed from his sexual abuse of his minor daughter, contributed to

Mrs. Shiflett’s depression. The Hospital avers it sought to cross-examine Mrs.

Shiflett about the effect her son’s conviction had on her mental health to

challenge the Shifletts’ claim that Mrs. Shiflett suffered from depression as a

result of her physical injuries. The Hospital asserts it should have been able


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to cross-examine Mrs. Shiflett on her testimony that she did not recall telling

independent medical examiner, Dr. Mauthe, her son’s conviction was a cause

of her depression. The Hospital suggests the court erroneously precluded it

from introducing Dr. Mauthe’s testimony about Mrs. Shiflett’s statement

during the independent medical exam about her son’s conviction. The Hospital

insists the phrase the trial court permitted it to use when discussing Mrs.

Shiflett’s son’s conviction, “legal problems,” was overly vague and prohibited

the Hospital from demonstrating the gravity of her son’s conviction.         The

Hospital concludes the trial court’s evidentiary ruling was erroneous and this

Court should reverse and remand for a new trial. We disagree.

      “[W]hether evidence is admissible is a determination that rests within

the sound discretion of the trial court and will not be reversed on appeal absent

a showing that the court clearly abused its discretion.” Fisher v. Central

Cab Co., 945 A.2d 215, 218 (Pa.Super. 2008).

         The term discretion imports the exercise of judgment,
         wisdom and skill so as to reach a dispassionate conclusion,
         within the framework of the law, and is not exercised for the
         purpose of giving effect to the will of the judge. Discretion
         must be exercised on the foundation of reason, as opposed
         to prejudice, personal motivations, caprice or arbitrary
         actions. Discretion is abused when the course pursued
         represents not merely an error of judgment, but where the
         judgment is manifestly unreasonable or where the law is not
         applied or where the record shows that the action is a result
         of partiality, prejudice, bias or ill will.

Schmalz v. Manufacturers & Traders Trust Co., 67 A.3d 800, 802-03

(Pa.Super. 2013).


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         Where the discretion exercised by the trial court is
         challenged on appeal, the party bringing the challenge bears
         a heavy burden.

            When the court has come to a conclusion by the
            exercise of its discretion, the party complaining of it
            on appeal has a heavy burden; it is not sufficient to
            persuade the appellate court that it might have
            reached a different conclusion if, in the first place,
            charged with the duty imposed on the court below; it
            is necessary to go further and show an abuse of the
            discretionary power. …

                                  *     *      *

         We emphasize that an abuse of discretion may not be found
         merely because the appellate court might have reached a
         different conclusion, but requires a showing of manifest
         unreasonableness….

Paden v. Baker Concrete Const., Inc., 540 Pa. 409, 412, 658 A.2d 341,

343 (1995) (internal citations and quotation marks omitted). “[A] trial court

has broad discretion with regard to the admissibility of evidence, and is not

required to exclude all evidence that may be detrimental to a party’s case.”

Schuenemann v. Dreemz, LLC, 34 A.3d 94, 102 (Pa.Super. 2011).              “To

constitute reversible error, an evidentiary ruling must not only be erroneous,

but also harmful or [unduly] prejudicial to the complaining party.” Ettinger

v. Triangle-Pacific Corp., 799 A.2d 95, 110 (Pa.Super. 2002), appeal

denied, 572 Pa. 742, 815 A.2d 1042 (2003).

      Relevant evidence is evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action

more or less probable than it would be without the evidence. Pa.R.E. 401.


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Generally, all relevant evidence is admissible.    Pa.R.E. 402.    Rule 403,

however, limits the admission of relevant evidence in the following manner:

        Rule 403. Excluding Relevant Evidence for Prejudice,
             Confusion, Waste of Time, or Other Reasons

        The court may exclude relevant evidence if its probative
        value is outweighed by a danger of one or more of the
        following: unfair prejudice, confusing the issues, misleading
        the jury, undue delay, wasting time, or needlessly
        presenting cumulative evidence.

        Comment: Pa.R.E. 403 differs from F.R.E. 403. The Federal
        Rule provides that relevant evidence may be excluded if its
        probative value is “substantially outweighed.” Pa.R.E. 403
        eliminates the word “substantially” to conform the text of
        the rule more closely to Pennsylvania law.             See
        Commonwealth v. Boyle, 498 Pa. 486, 447 A.2d 250
        (1982).

        “Unfair prejudice” means a tendency to suggest decision on
        an improper basis or to divert the jury’s attention away from
        its duty of weighing the evidence impartially.

Pa.R.E. 403. In conducting this balancing test, the question is whether the

provocative or potentially misleading nature of the challenged evidence

outweighs its probative value. Mahan v. Am-Gard, Inc., 841 A.2d 1052,

1057 (Pa.Super. 2003), appeal denied, 579 Pa. 712, 858 A.2d 110 (2004).

Generally, for purposes of this test, “prejudice means an undue tendency to

suggest a decision on an improper basis. The erroneous admission of harmful

or prejudicial evidence constitutes reversible error.” Braun v. Target Corp.,

983 A.2d 752, 760 (Pa.Super. 2009), appeal denied, 604 Pa. 701, 987 A.2d

158 (2009).   See also Smith v. Morrison, 47 A.3d 131, 137 (Pa.Super.

2012), appeal denied, 618 Pa. 690, 57 A.3d 71 (2012) (reiterating: “‘Unfair

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prejudice’ supporting exclusion of relevant evidence means a tendency to

suggest decision on an improper basis or divert the jury’s attention away from

its duty of weighing the evidence impartially”).

      Instantly, the trial court addressed this issue as follows:

         [The Hospital] wished to rebut Mrs. Shiflett’s testimony on
         her emotional suffering and humiliation.         Mrs. Shiflett
         testified she is unable to walk independently, climb stairs,
         drive, travel, socialize and play cards, swim, shower, or
         dress herself from the waist down because of her knee. Mrs.
         Shiflett testified that she feels like there is nothing left to
         live for because she is not able to do anything.

         [The Hospital] intended on rebutting Mrs. Shiflett’s
         testimony regarding the reason for her depression with
         information relating to her son’s criminal history.
         Specifically, [her son] pled guilty…to indecent assault with
         persons under 13 years of age and corruption of minors.
         [Her son]’s victim was his daughter.         Mrs. Shiflett’s
         granddaughters are no longer permitted to visit her home
         because [her son] lives with Mr. and Mrs. Shiflett.

         The inflammatory nature of [Mrs. Shiflett’s son’s] crime was
         such that after careful consideration, this court determined
         that the probative value of any evidence related to the crime
         was outweighed by the danger of unfair prejudice to Mrs.
         Shiflett. See Pa.R.E. 403. In an effort to balance the
         probative value against the danger of unfair prejudice, [the
         Hospital was] not foreclosed from inquiring about Mrs.
         Shiflett’s emotional damage or the source of her depression.
         [The Hospital was] permitted to pursue such by referencing
         [Mrs. Shiflett’s son’s] “legal problems.” The term was broad
         enough to allow for questions related to Mrs. Shiflett’s
         inability to visit with her grandchildren while concealing the
         provocative nature of the crime. Such evidentiary decision
         was within this court’s discretion, and we find that no error
         was made in precluding the evidence related to [Mrs.
         Shiflett’s son’s] criminal history.

(Trial Court Opinion, filed June 30, 2016, at 25) (internal citations to record


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omitted). The record confirms the trial court conducted the requisite balancing

test concerning the probative value of the nature and details of Mrs. Shiflett’s

son’s conviction against its prejudicial effect.     See Fisher, supra; Pa.R.E.

403.     After deciding the prejudicial effect of admitting these details was

greater than its probative value, the court still permitted the Hospital to ask

about Mrs. Shiflett’s son’s “legal problems,” in pursuit of its trial strategy to

show the cause of Mrs. Shiflett’s depression was multi-faceted. We see no

reason to disrupt the court’s evidentiary ruling.          See Paden, supra;

Schmalz, supra; Fisher, supra.

       Additionally, to the extent the Hospital argues the trial court precluded

it from introducing Dr. Mauthe’s testimony regarding Mrs. Shiflett’s

statements to him about her son’s conviction, the record belies this claim. The

jury viewed the videotape of Dr. Mauthe’s deposition testimony, during which

Dr. Mauthe opined that Mrs. Shiflett’s injuries and her son’s legal trouble were

likely both contributing factors to her depression. Thus, the trial court did not

preclude the Hospital from presenting Dr. Mauthe’s testimony regarding the

degree to which Mrs. Shiflett’s son’s conviction affected her mental state.

Therefore, the Hospital’s evidentiary claim fails.

       In the Hospital’s fourth issue, it argues the Pennsylvania Medical Care

Availability and Reduction of Error (“MCARE”) Act, 40 P.S. §§ 1303.101-

1303.910, requires reduction of future medical expenses awards to present

value.    The Hospital suggests two subsections of the MCARE Act, namely


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subsections 1303.509(a)(2)(i) and 1303.509(b)(i), establish the mandate to

decrease future medical expenses to present value. The Hospital insists the

Shifletts’ life care expert, Nadene Taniguchi, did not reduce the costs of Mrs.

Shiflett’s future medical care needs to present value. The Hospital contends

the trial court impermissibly allowed Ms. Taniguchi’s estimates and incorrectly

told the jury to consider Ms. Taniguchi’s testimony. The Hospital concludes

this Court should reverse and remand for a new trial. We disagree.

      “[T]he interpretation and application of a statute is a question of law

that compels plenary review to determine whether the court committed an

error of law.” Wilson v. Transport Ins. Co., 889 A.2d 563, 570 (Pa.Super.

2005) (internal quotation marks omitted). “As with all questions of law, the

appellate standard of review is de novo and the appellate scope of review is

plenary.”    In re Wilson, 879 A.2d 199, 214 (Pa.Super. 2005) (en banc).

Further,

           [We] are constrained by the rules of statutory
           interpretation, particularly as found in the Statutory
           Construction Act. 1 Pa.C.S.A. §§ 1501-1991. The goal in
           interpreting any statute is to ascertain and effectuate the
           intention of the General Assembly. Our Supreme Court has
           stated that the plain language of a statute is in general the
           best indication of the legislative intent that gave rise to the
           statute. When the language is clear, explicit, and free from
           any ambiguity, we discern intent from the language alone,
           and not from the arguments based on legislative history or
           “spirit” of the statute. We must construe words and phrases
           in the statute according to their common and approved
           usage. We also must construe a statute in such a way as to
           give effect to all its provisions, if possible, thereby avoiding
           the need to label any provision as mere surplusage.


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Cimino v. Valley Family Medicine, 912 A.2d 851, 853 (Pa.Super. 2006),

appeal denied, 591 Pa. 731, 921 A.2d 494 (2007).

     The MCARE Act provides, in relevant part:

        § 1303.509. Payment of damages

           (a)      General rule.—In a medical professional liability
        action, the trier of fact shall make a determination with
        separate findings for each claimant specifying the amount
        of all of the following:

                                    *    *    *

           (2)   Future damages for:

              (i) medical and other related expenses by year;

              (ii) loss of earnings or earning capacity in a lump sum;
              and

              (iii) noneconomic loss in a lump sum.

           (b)   Future damages.—

           (1)    Except as set forth in paragraph (8), future
           damages for medical and other related expenses shall be
           paid as periodic payments after payment of the
           proportionate share of counsel fees and costs based upon
           the present value of the future damages awarded
           pursuant to this subsection. The trier of fact may vary
           the amount of periodic payments for future damages as
           set forth in subsection (a)(2)(i) from year to year for the
           expected life of the claimant to account for different
           annual expenditure requirements,           including the
           immediate needs of the claimant. The trier of fact shall
           also provide for purchase and replacement of medically
           necessary equipment in the years that expenditures will
           be required as may be necessary.

           (2)   The trier of fact may incorporate into any future
           medical expense award adjustments to account for
           reasonably anticipated inflation and medical care

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           improvements as presented by competent evidence.

           (3)    Future damages as set forth in subsection
           (a)(2)(i) shall be paid in the years that the trier of fact
           finds they will accrue.      Unless the court orders or
           approves a different schedule for payment, the annual
           amounts due must be paid in equal quarterly installments
           rounded to the nearest dollar. Each installment is due
           and payable on the first day of the month in which it
           accrues.

                                   *    *    *

40 P.S. § 1303.509(a)(2), (b)(1)-(3).

     This Court has previously rejected a claim of trial court error for failure

to reduce the jury’s future medical expense award to present value, under

Section 509 of the MCARE Act, explaining:

        Section 509 of the MCARE Act provides, in pertinent part,
        “future damages for medical and other related expenses
        shall be paid as periodic payments after payment of the
        proportionate share of counsel fees and costs based upon
        the present value of the future damages awarded pursuant
        to this subsection.” 40 P.S. § 1303.509(b)(1).

        Appellants rely on Sayler v. Skutches, 40 A.3d 135
        (Pa.Super. 2012), appeal denied, 617 Pa. 640, 54 A.3d 349
        (2012), which they maintain “required that future medical
        damages be reduced to present value pursuant to Section
        509 of the MCARE Act.” (Appellants’ Brief, at 55 n.30).
        However, this reliance is misplaced. In Sayler, this Court
        concluded that, pursuant to the plain language of section
        509(b)(1), the future medical damages award that had
        accrued at the time of the decedent’s death should be
        reduced to present value only to determine the amount of
        attorney’s fees. See Sayler, supra at 140. Therefore,
        the conclusion of the Sayler Court is completely inapposite
        to [Appellants’] position.

        Further, we find that the law prior to the enactment of the
        MCARE Act reflects a long-settled policy that awards of

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        future medical expenses are not to be reduced to present
        value. For example, in Yost v. West Penn Railways Co.,
        336 Pa. 407, 9 A.2d 368 (1939), the Pennsylvania Supreme
        Court unambiguously stated that,

           Present worth does not apply to damages awarded for
           future pain, suffering and inconvenience. Nor does it
           apply to future medical attention. Future medical
           attention presupposes an out-of-pocket expenditure
           by the plaintiff. [The plaintiff] was entitled to have
           defendant presently place in her hands the money
           necessary to meet her future medical expenses, as
           estimated by the jury based upon the testimony
           heard, so that she will have it ready to lay out when
           the service is rendered.      Damages for expected
           medical expenses and for future pain and suffering are
           entirely different from damages for loss of future
           earnings, which, of course, must be reduced to
           present worth.

        Yost v. West Penn Rys. Co., 336 Pa. 407, 9 A.2d 368,
        369-70 (1939) (citation omitted); see also Renner v.
        Sentle, [30 A.2d 220 (Pa.Super. 1943)] (same).

        Moreover, Appellants fail to produce any pertinent law to
        support an argument that the enactment of MCARE changed
        this policy. (See Appellants’ Brief, at 54-56). Therefore,
        based on the Commonwealth’s longstanding policy, and the
        language of the statute, we conclude that the trial court
        properly interpreted the language of section 509 of the
        MCARE Act to require that future medical expenses are only
        to be reduced to present value for the purpose of calculating
        attorney fees and costs. …

Tillery v. Children’s Hospital of Philadelphia, 156 A.3d 1233, 1248-49

(Pa.Super. 2017), appeal denied, 643 Pa. 119, 172 A.3d 592 (2017).

     Instantly, the Shifletts’ life care expert, Ms. Taniguchi, did not reduce to

present value her estimates of Mrs. Shiflett’s future medical expenses. The

Hospital’s reading of the MCARE Act to require such a reduction, however, is


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J-A06018-20


misplaced.     Section 509 of the MCARE Act mandates reduction of future

medical expenses to present value only for the purpose of calculating

attorneys’ fees.        See id.     Thus, the trial court correctly permitted Ms.

Taniguchi to testify as to her estimates for Mrs. Shiflett’s future medical

expenses without decreasing them to present value, and correctly allowed the

jury to consider Ms. Taniguchi’s calculations.            Consequently, the Hospital’s

fourth issue merits no relief.3

       In its remaining issue, the Hospital argues the trial evidence did not

support the jury award.         The Hospital contends the jury award for Mrs.

Shiflett’s future medical expenses of $791,620.00 was excessive, unfair, and

unreasonable compensation. The Hospital submits the jury’s award surpassed

by   nearly    $200,000.00      the   Shifletts’   life   care   expert’s   estimate   of

$601,056.00. The Hospital maintains the trial court erroneously denied its

request for remittitur. The Hospital concludes it is entitled to remittitur or a

new trial. We disagree.4

       “The duty of assessing damages is within the province of the jury and,



____________________________________________


3The Shifletts made no demand for counsel fees and costs in their second
amended complaint and the jury verdict included no such award, so there is
no claim to reduce any such award to present value. (Second Amended
Complaint, filed 7/2/2015; Jury Verdict, filed 2/10/16).

4 To the extent the Hospital argues it is entitled to remittitur in part because
the trial court barred the introduction of evidence regarding Mrs. Shiflett’s
son’s conviction to challenge the Shifletts’ noneconomic damages claim, that
contention merits no relief for the reasons discussed above.

                                          - 19 -
J-A06018-20


thus, as a general matter, a compensatory damage award should not be

interfered with by the court unless it clearly appears that the amount awarded

resulted from caprice, prejudice, partiality, corruption or some other improper

influence.” Paves v. Corson, 569 Pa. 171, 175, 801 A.2d 546, 548-49 (2002)

(internal quotation marks omitted).     “This standard incorporates the well-

established requirement that a compensatory damage award must bear some

reasonable relation to the loss suffered by the plaintiff as demonstrated by

uncontroverted evidence at trial.” Id. at 175, 801 A.2d at 549. See also

Rettger v. UPMC Shadyside, 991 A.2d 915, 932 (Pa.Super. 2010), appeal

denied, 609 Pa. 698, 15 A.3d 491 (2011) (explaining remittitur is appropriate

only if jury award is excessive and exorbitant; “The question is whether the

award of damages falls within the uncertain limits of fair and reasonable

compensation or whether the verdict so shocks the sense of justice as to

suggest that the jury was influenced by partiality, prejudice, mistake, or

corruption”).

         This [C]ourt will not find a verdict excessive unless it is so
         grossly excessive as to shock our sense of justice. We begin
         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.

Tillery, supra at 1246. The decision to grant or deny remittitur is within the

trial court’s sound discretion, and will be overturned only upon a showing of

abuse of discretion or error of law. Id. We cannot substitute our judgment


                                     - 20 -
J-A06018-20


for that of the fact-finder, and we must view the record with consideration of

the evidence accepted by the jury. Smalls v. Pittsburgh-Corning Corp.,

843 A.2d 410, 414 (Pa.Super. 2004), appeal denied, 579 Pa. 704, 857 A.2d

680 (2012).

      Instantly, the trial court disposed of the Hospital’s remittitur demand as

follows:

           [The Shifletts’ life care] expert, Nadene Taniguchi, testified
           that her projection for medical surveillance (future doctor
           visits), as well as diagnostic costs, were based on the
           average needs of Mrs. Shiflett; she could require more or
           less of what was included in the projection. In addition, the
           projections were based on average life expectancy. Ms.
           Taniguchi also testified to her “modest” calculations for the
           cost of podiatrists, and the “very modest” amount set aside
           for x-rays, CAT scans, and laboratory studies.

           The jury’s future medical expenses award was higher than
           the amount projected by Ms. Taniguchi. However, the
           award bears a reasonable resemblance to the damages
           proved and does not so shock one’s sense of justice as to
           suggest inappropriate influence of any kind. The jury was
           instructed to fully and fairly compensate [Mrs. Shiflett] for
           all medical expenses they believed she would incur each
           year that they believed she would live. The verdict was not
           disproportionate to the evidence and was reasonable
           compared to the numbers presented at trial. This verdict
           was not excessive and does not warrant a new trial or
           remittitur by the court.

(Trial Court Opinion, filed June 30, 2016, at 28-29) (internal citations to record

omitted). The record supports the trial court’s rationale, and we see no reason

to disturb it. See Tillery, supra. Therefore, the Hospital’s sixth and final

appellate issue following remand merits no relief. Accordingly, we affirm.

      Judgment affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/26/2020




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