J-A15003-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BENJAMIN FERRARA,                                IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                           Appellee

                      v.

JOSEPH RUSSELLA,

                           Appellant                  No. 406 EDA 2014


              Appeal from the Order Entered December 30, 2013
             In the Court of Common Pleas of Philadelphia County
            Civil Division at No(s): January Term, 2012, No. 02399


BEFORE: BOWES, MUNDY, AND FITZGERALD* JJ.

MEMORANDUM BY BOWES, J.:                          FILED OCTOBER 14, 2015

       Joseph Russella appeals from the trial court’s December 30, 2013

order granting Benjamin Ferrara a new trial following a defense verdict in

this negligence action arising from a rear-end motor vehicle accident. After

careful review, we affirm.

       On January 25, 2010, Mr. Ferrara was stopped at a red light on Broad

Street in Philadelphia.     A pickup truck driven by Mr. Russella struck Mr.

Ferrara’s vehicle in the rear with sufficient impact to force his knee into the

dashboard ashtray. Mr. Russella stipulated that he was negligent in causing

the accident but disputed the severity of the impact and the extent of Mr.

Ferrara’s injuries.




*
    Former Justice specially assigned to the Superior Court.
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      At trial, Mr. Ferrara offered expert medical testimony from orthopedist

Marc Zimmerman, M.D. and chiropractor James Robinson, D.C.                Dr.

Zimmerman testified that, due to the accident, Mr. Ferrara sustained an

acute and chronic cervical sprain and strain; a small herniated disc at L4-5;

acute and chronic lumbosacral sprain and strain; and a cartilage injury to his

right knee. Deposition, Mark Zimmerman, M.D., 4/11/13, at 53-55. It was

his professional opinion that the injuries were permanent.

      Dr. Robinson testified that he initially examined Mr. Ferrara on October

9, 2010. Mr. Ferrara reported ongoing right neck pain following the motor

vehicle accident despite taking an anti-inflammatory medication for pain

relief. N.T., 5/15/13, at 12-13. He also had intermittent bilateral low back

pain that increased with walking and right knee pain.         Dr. Robinson’s

objective tests were consistent with Mr. Ferrara’s subjective complaints.

Due to low back pain, Mr. Ferrara had range of motion issues when bending,

extending, turning, twisting and leaning.    Dr. Robinson treated him with

ultrasound, spinal manipulation, extremity manipulation, and myofascial

release one to two times per week for seven months. Id. at 15.

      Dr. Robinson also testified that the MRI of the right knee demonstrated

a “cartilage injury to the non-weightbearing aspect of the medial femoral

condyle.” Id. at 21. Using the MRI, he pointed out to the jury the cartilage

defect and explained that it was grade III, which meant the defect was

“more than fifty percent torn,” with a grade IV being a tear all the way to

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the bone.      He testified that the MRI of the lumbar region depicted a

herniated disc at L4-5; the neck MRI showed alignment changes in the

cervical spine due to muscle spasms caused by acute injury. Dr. Robinson

attributed all of the injuries to the motor vehicle accident and opined that

the herniated disc and the cartilage defect were permanent. Id. at 40. He

recommended injections to control the neck pain.        All of Dr. Robinson’s

opinions were rendered to a reasonable degree of chiropractic certainty. Id.

at 42.

         Defense expert Gary W. Muller, M.D., was asked what injuries, if any,

Mr. Ferrara sustained in the 2010 motor vehicle accident. He agreed with

Mr. Ferrara’s medical experts that he sustained a cervical and lumbar spine

sprain and strain superimposed on minor degenerative changes.             The

physician disagreed, however, that the small disc herniation was related to

the accident.     Regarding the knee, Dr. Muller concluded that Mr. Ferrara

sustained a contusion, a bad bruise, and he attributed the cartilage injury to

an unidentified prior knee injury. On cross-examination, Dr. Muller agreed

that Mr. Ferrara’s complaints of neck, back, and knee pain were consistent

from the time of the motor vehicle accident until his examination on

September 12, 2012.

         Dr. Dan Nguyen, M.D., a neuro-radiologist, testified via videotaped

deposition. He reviewed only the MRIs of Mr. Ferrara’s neck and back, not

the knee, and expressly stated that he had no opinion whether Mr. Ferrara

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sustained an injury to the knee cartilage in the accident.     Deposition, Dan

Nguyen, 2/6/12, at 41. Although he did not see evidence of an acute injury

on the MRIs of the back and neck, id. at 53, he declined to render an

opinion whether Mr. Ferrara was injured in the accident since he had not met

him. Id. at 50. Instead, he referred the question whether Mr. Ferrara was

injured to the physicians who treated him.

       Based on the foregoing evidence, the trial court instructed the jury

that the parties agreed that Mr. Russella was negligent, and “the parties’

medical experts agree that the negligence caused some injury to the

plaintiff.   You must therefore award damages for the injuries the plaintiff

sustained from the motor vehicle accident.”      N.T. Trial (Jury), 5/16/13, at

122. It added:

             The parties disagree, however, on the extent and the
       seriousness of the plaintiff’s injury the defendant caused.
       Therefore, you must decide the extent of the injuries the
       defendant caused and return a fair and just verdict in
       accordance with the law on damages that I’m going to discuss
       now.

Id. The court then explained the five categories of damages that comprise

non-economic loss, both past and future. It informed the jury that damages

should be awarded for all related injuries, even if a pre-existing injury was

aggravated by the accident. Id. at 125.

       The court submitted the following verdict slip to the jury:




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      Question 1: Do you find that the negligence of defendant, Joseph
      Russella, was a factual cause of injury to plaintiff, as a result of
      the subject motor vehicle accident?

         _______                    ______
            YES                      NO

      (If you answer “No,” you need not answer any of the other
      questions on this form, please return to the Courtroom. If you
      answer “yes,” please proceed to Question 2.).

      1. Question 2: What is the total amount of damages, if any, you
         award to plaintiff?

                                    $_______

Verdict Slip.   Mr. Ferrara objected to the factual cause question and

maintained that the jury was required to award damages based on

uncontroverted evidence of some injury.

      After the jury was excused to begin its deliberations, it sent a note to

the court asking: “If the accident aggravated preexisting injuries, satisfies

the question at hand.” N.T. Trial (Jury), 5/17/13, at 4. In response to that

question, Mr. Ferrara asked the court to reread that portion of its instruction

that dealt with aggravation of pre-existing injuries.       The court decided

instead to instruct the jury that the question was for it to decide. Id.

      The jury reached a verdict on May 17, 2013. In rendering the verdict,

the jury foreperson responded in the negative to the question whether the

negligence of the defendant was a factual cause of the injury to plaintiff.

Despite its negative response to the first question and the direction to




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proceed no further, the jury had answered the second question and awarded

zero damages.

       After the verdict, Mr. Ferrara’s counsel formally placed several

objections on the record, including an objection to the court’s refusal to re-

instruct the jury on aggravation of injuries.       Counsel also moved for

judgment notwithstanding the verdict (JNOV) based on the inconsistency

between the court’s instruction and the verdict slip.    Given the stipulated

negligence and the fact that it was undisputed that Mr. Ferrara sustained

some injury in the accident, Counsel maintained the court was correct in

instructing the jury to award damages for those injuries.     See Pa.S.S.J.I.

(Civ.) 7.50.1 However, the verdict slip, which asked the jury to determine

____________________________________________


1
 Pa.S.S.J.I. (Civ.) 7.50 DAMAGES IN CASES OF UNDISPUTED NEGLIGENCE
AND INJURY

       The parties agree that the defendant was negligent and [the
       parties] [medical experts] agree that the negligence caused
       some injury to the plaintiff. Therefore, you must answer "yes" on
       the Verdict/Jury Interrogatory to Question # 1 and Question # 2
       [whether the defendant was negligent or whether the
       defendant's negligence was the 'factual cause' of harm to the
       plaintiff].

       You must therefore at least award some damages for those
       [uncontested] [agreed-upon] injuries [specify damages--e.g.,
       medical bills, lost wages, pain and suffering, etc.].

       The parties disagree, however, on the extent of the plaintiff's
       injuries the defendant caused. Therefore, you must decide the
       extent of the injuries the defendant caused and return a fair and
(Footnote Continued Next Page)


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whether the defendant’s negligence was a factual cause of injury, was

incorrect and inconsistent with the instruction and the evidence. The second

question was also inconsistent because it asked the jury what, if any,

damages the plaintiff sustained. Counsel for Mr. Ferrara maintained that the

jury should have been directed to award damages for the uncontroverted

injuries.

      The defense took issue with plaintiff’s characterization of the evidence.

Defense counsel argued that Dr. Nguyen did not concede that plaintiff

sustained an injury, and suggested that perhaps the jury found him credible

“that there was no injury related to this accident.” Id. at 16. Mr. Ferrara’s

counsel disputed the import of Dr. Nguyen’s testimony. Counsel maintained

that Dr. Nguyen testified that he did not know whether Mr. Ferrara was

injured, not that he was not injured.             Moreover, Dr. Muller agreed with

plaintiff’s expert Dr. Zimmerman that there was injury to plaintiff’s neck,

back and knee, but disagreed that the herniation or cartilage defect resulted

from the accident. Id.

      Mr. Ferrara filed a motion for post-trial relief, Mr. Russella filed a

response, and both parties submitted briefs.           On December 30, 2013, the

court denied Mr. Ferraro’s motion for JNOV but granted his motion for a new
                       _______________________
(Footnote Continued)

      just verdict in accordance with the law on damages that I will
      discuss in greater detail now.




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trial on all issues.      Mr. Russella timely appealed from that order and

complied with the trial court’s order to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal.       The court penned its Rule

1925(a) opinion, and the following issues have been presented for our

review:

      1. Did the Trial Court properly submit the question of factual
         cause to the Jury and, therefore, err in granting a new trial on
         the basis of this submission, when the defendant challenged
         causation through all phases of the litigation and presented
         conflicting medical testimony as to whether the defendant’s
         negligence was the factual cause of plaintiff’s injuries?

      2. Did the Trial Court err in granting plaintiff’s post-trial motion
         as to all issues where the Jury appropriately awarded plaintiff
         zero dollars in compensable damage notwithstanding its
         response to the factual cause interrogatory?

      3. Did the Trial Court err in granting plaintiff a new trial based
         on the undisputed injury instruction, because the Jury’s
         receipt of this instruction was harmless error?

Appellant’s brief at 5.

      We have long-recognized that

           “Trial courts have broad discretion to grant or deny a
           new trial . . . [and,] 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." Harman ex rel. Harman v. Borah, 562 Pa.
           455, 756 A.2d 1116, 1121-1122 (Pa. 2000) (internal
           quotations and citations omitted).

      Banohashim v. R.S. Enters., LLC, 77              A.3d 14, 22-23
      (Pa.Super. 2013).

Kindermann v. Cunningham, 110 A.3d 191, 193 (Pa.Super. 2015).



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      In reviewing the grant or denial of a new trial, we take a dual-pronged

approach. First, we examine the decision of the trial court that a mistake

occurred, applying the proper scope of review based on the rationale of the

trial court. Huber v. Etkin, 58 A.3d 772 (Pa.Super. 2012). Where the trial

court articulates a single mistake or a finite set of mistakes, our review is

limited in scope to the stated reason(s), and we must review the decision

under the appropriate standard.       Morrison v. Department of Public

Welfare, 646 A.2d 565 (Pa. 1994). Where the trial court has left open the

possibility that other reasons may have warranted a new trial or orders a

new trial in the interest of justice, we apply a broad scope of review and

examine the entire record. “If the mistake concerned an error of law, the

court will scrutinize for legal error.”    Id. at 776.    In essence, we are

examining the validity of the trial court’s legal justification for a new trial.

Coker v. S.M. Flickinger Company, Inc., 625 A.2d 1181, 1184 (Pa.

1993). “If there were no mistakes at trial, the appellate court must reverse

a decision by the trial court to grant a new trial because the trial court

cannot order a new trial where no error of law or abuse of discretion

occurred.” Huber, supra at 776.

      In the instant case, the trial court granted a new trial “because the

Jury Verdict Sheet should have clearly reflected the testimony of all the

experts.”   Trial Court Opinion, 6/6/14, at 7.     Specifically, the trial court

concluded that the first question should have apprised the jury that all the

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experts agreed that the defendant’s negligence caused some injury to the

plaintiff and that they must award some damages. The court also decided

that the second question, which asked the jury to award damages, should

not have included the “if any” language.      Id. at 8.   Instead, the special

interrogatory should have asked the jury to award damages for those

injuries factually caused by the defendant’s negligence.      The court ruled

that, since it was undisputed at trial that the plaintiff sustained some injury

due to Mr. Ferrara’s negligence, an award of zero damages was improper.

      Mr. Russella disputes that the evidence of some causally-related injury

to Mr. Ferrara was uncontroverted.     He argues that, contrary to the trial

court’s representation, Dr. Nguyen did not concede that Mr. Ferrara

sustained any injury, and thus, the first question on the verdict slip was

appropriate. He maintains that the expert testified that Mr. Ferrara did not

sustain an injury, and that this testimony was in direct conflict with Mr.

Ferrara’s experts. Thus, he contends, the jury was entitled to find no factual

cause based on the conflicting evidence and the verdict form was correct.

Mr. Russella relies upon Holland v. Zelnick, 478 A.2d 885 (Pa.Super.

1984), and Henery v. Shadle, 661 A.2d 439 (Pa.Super. 1995), for the

proposition that the jury is entitled to find no factual cause of injury in the

face of conflicting expert medical evidence regarding causation or to award

zero damages for de minimus pain and suffering. In both cited cases, the




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defense presented expert medical testimony that the plaintiff’s pain was not

related to the accident.

      After reviewing Dr. Nguyen’s testimony in its entirety, we agree with

the trial court that he did not render any causation opinion.      Dr. Nguyen

certainly did not offer expert opinion that Mr. Ferrara did not sustain an

injury. In fact, he refused to do so. Dr. Nguyen’s opinion was limited to his

review of the MRIs of Mr. Ferrara’s neck and back. He did not review any

other medical records or reports; he did not examine Mr. Ferrara; he

admittedly did not know how the motor vehicle accident occurred. Nguyen

Deposition, 2/6/12, at 19, 20.        When asked if he agreed with Dr.

Zimmerman’s diagnosis of the plaintiff’s injuries, he responded, “I cannot

make that assessment.” Id. at 36. He added that reviewing the reports of

treating physicians “is beyond the scope of my expertise.”          Id. at 37.

Although he opined the MRIs did not reveal traumatic injury to Mr. Ferrara’s

back and neck and were consistent with degenerative disease, the expert

expressly refused to render an opinion that Mr. Ferrara was not injured. He

deferred to Mr. Ferrara’s treating physicians for the response to that inquiry.

      We infer from Dr. Nguyen’s deference to the physicians who treated

Mr. Ferrara that the absence of evidence of trauma on the back and neck

MRIs was inconclusive as to whether Mr. Ferraro was injured. Furthermore,

Dr. Nguyen did not review the MRI of Mr. Ferrara’s knee and stated that he

had no opinion as to whether the knee injury was related to the accident.

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Id. at 41. In short, Dr. Nguyen did not render an expert medical opinion as

to whether or not Mr. Ferrara was injured in the accident.

      The remaining defense expert, Dr. Muller, conceded that Mr. Ferrara

was injured, but disagreed with Mr. Ferrara’s experts as to the extent of the

injuries. Thus, the only defense expert to render an opinion on causation,

Dr. Muller, conceded that some injuries were related to the accident. Hence,

the record reveals that the expert medical testimony was conflicting only as

to the extent of the injuries attributable to the defendant’s negligence and

not as to whether the defendant’s negligence was the factual cause of some

injuries.

      As succinctly stated in Andrews v. Jackson, 800 A.2d 959 (Pa.Super.

2002), “[w]here there is no dispute that the defendant is negligent and both

parties' medical experts agree the accident caused some injury to the

plaintiff, the jury may not find the defendant's negligence was not a

substantial factor in bringing about at least some of plaintiff's injuries.” See

also Womack v. Crowley, 877 A.2d 1279 (Pa.Super. 2005); Neison v.

Hines, 653 A.2d 634, 637 (Pa. 1995); Mietelski v. Banks, 854 A.2d 579,

583 (Pa.Super. 2004).     The Comment to Pa.S.S.J.I. (Civ.) 7.50 provides

that, “when both medical experts agree that the plaintiff sustained some

injury in the accident, it would be a reversible error for the court not to

instruct the jury to answer ‘yes’ to the question of whether or not the




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defendant's negligence was a factual cause in bringing about any injury to

the plaintiff.”

      In Mietelski, as herein, it was conceded that some, but not all,

injuries were incurred in the accident.      In that case, however, the court

removed the factual causation issue entirely from the jury’s consideration.

The verdict slip did not ask the jury to determine whether the defendant's

negligence was a substantial factor in causing the disputed injuries. We held

that the jury should have been instructed that the defendant was liable only

for those injuries caused by the defendant's negligence.          It was not

empowered, however, to reject the uncontroverted evidence that some

injury has resulted from the accident.

      The court’s instruction, which was modeled after Pa.S.S.J.I. (Civ.)

7.50, was appropriate.    Mr. Russella had stipulated to negligence; it was

undisputed that his negligence caused some injury to Mr. Ferrara.         The

verdict form, however, improperly permitted the jury to reject undisputed

evidence that Mr. Russella’s negligence caused some injury.        For these

reasons, we agree that the trial court erred when it overruled Mr. Ferrara’s

objection to the verdict slip and submitted the factual causation issue to the

jury as to both the disputed and undisputed injuries.       The factual cause

question on the verdict slip was inconsistent with the court’s instruction and

permitted the jury to find no factual causation in the face of uncontroverted

evidence of some accident-related injuries.      The verdict slip should have

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made a distinction between conceded injuries and disputed injuries and

required a jury determination of factual cause as to the latter.

      Mr. Russella contends that any error in the verdict slip was harmless

for two reasons.   First, he argues that, although Mr. Ferrara received the

benefit of an instruction of undisputed negligence and undisputed injury, the

jury still found no factual cause. Mr. Russella’s argument merely highlights

why a new trial was warranted: the error in the verdict form invited the jury

to disregard uncontroverted testimony of injury factually caused by the

accident, which it was not free to do.

      Second, Mr. Russella argues that, even if factual cause was improperly

submitted to the jury, the error was harmless because the jury awarded zero

damages. He maintains that it was within the jury’s province to award no

damages if it believed the plaintiff sustained no compensable injury and de

minimus pain and suffering.     He cites a number of cases for the principle

that, even where negligence is conceded, the jury is free to refuse to award

damages for subjective pain and suffering that is transient and minimal.

See Davis v. Mullen, 773 A.2d 764 (Pa. 2001); Boggavarapu v. Ponist,

542 A.2d 516 (Pa. 1988).

      Mr. Russella’s argument misses the mark. First, the trial court did not

conclude that factual cause should not have been submitted to the jury.

Rather, it concluded that the issue was presented inconsistently with its

instructions and the applicable law. The jury should have been directed to

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determine whether the defendant’s negligence was a factual cause of the

disputed injuries, i.e., the herniated disc, the annular tear, and the grade III

cartilage defect. Trial Court Opinion, 6/6/14, at 7-8. Cf. Mietelski, supra

(in rear-ender where the defendant admitted liability for some of the

injuries, but contested the causal relationship between the accident and

other injuries, court erred in failing to instruct jury on need for causal link

between negligence and those injuries).            We concur in the trial court’s

assessment of its mistake.

       Secondly, given the error in the factual cause question, Mr. Russella is

merely speculating that a zero award indicated a jury finding that Mr.

Ferrara’s pain and suffering did not warrant an award.         We find it just as

plausible that the jury’s award of zero damages was simply entered to be

consistent with its answer to the first question, i.e., that the defendant’s

negligence was not the factual cause of injury to Mr. Ferrara.2

       Mr. Russella devotes much of his argument to his contention that the

jury, as the sole judge of credibility, had the prerogative to disregard

uncontroverted evidence of injury and find no pain and suffering. He cites

Davis v. Mullen, 773 A.2d 764, 767 (Pa. 2001) (upholding jury award of

sum for medical bills but nothing for pain and suffering) and Boggavarapu
____________________________________________


2
 Mr. Ferrara also argued that the jury’s finding of no factual causation/zero
damages was due to its confusion as to whether aggravation of a pre-
existing condition was sufficient to support liability.



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v. Ponist, 542 A.2d 516 (Pa. 1988) (upholding award of small sum for cost

of emergency room treatment and zero damages for pain and suffering), for

the proposition that, even in the face of uncontroverted injury, a jury award

of zero for pain and suffering is not necessarily against the weight of the

evidence.

      In both Davis and Boggavarapu, however, there was no error in

either the instructions or the verdict slip that allegedly contributed to the

verdict. The jury found factual causation, awarded sums for medical bills,

but declined to award damages for pain and suffering.           The issue was

whether the verdict was against the weight of the evidence, which is not the

issue facing us herein. In Davis, the Supreme Court held that the trial court

had a reasonable basis to believe that: (1) the jury did not believe the

plaintiff suffered any pain and suffering, and/or (2) a preexisting condition or

injury was the sole cause of the alleged pain and suffering.                 In

Boggavarapu, our High Court stated that a jury is not compelled to believe

that a dog bite or puncture by a needle causes compensable pain.          “They

may believe that it is a transient rub of life and living, a momentary stab of

fear and pain, or neither.” Boggavarapu, supra at 518.

      On the other hand, the Boggavarapu Court recognized that

      [T]here are injuries to which human experience teaches us there
      is accompanying pain. Those injuries are obvious in the most
      ordinary sense: the broken bone, the stretched muscle, twist of
      the skeletal system, injury to a nerve, organ or their function,
      and all the consequences of any injury traceable by medical

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      science and common experience as sources of pain and
      suffering.

Id.   In Hawley v. Donahoo, 611 A.2d 311 (Pa.Super. 1992), where the

defendant conceded liability and that the plaintiff suffered a compression

fracture of a vertebra as a result of the accident, we found the jury’s refusal

to believe in the existence of any injury unwarranted.

      As we held in Majczyk v. Oesch, 789 A.2d 717, 721 (Pa.Super. 2001)

(en banc), “[t]the synthesis of these opinions is that where a defendant

concedes liability and his or her expert concedes injury resulting from the

accident that would reasonably be expected to cause compensable pain and

suffering, the jury's verdict is against the weight of the evidence where it

finds for the defendant.” Where the injury is obvious and liability is clear, an

award of zero damages historically has been overturned as against the

weight of the evidence.     Casselli v. Powlen, 937 A.2d 1137 (Pa.Super.

2007).

      In the instant case, there was legal error in the verdict slip that

permitted the jury to ignore conceded liability and related injury.         Mr.

Russella would have us deem the legal error harmless because the result, a

zero verdict, could have occurred anyway. The issue herein is not whether

the verdict was against the weight of the evidence but whether the trial

court abused its discretion in finding that error in the verdict form compelled

a new trial.    We agree with the trial court that the verdict form was



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inconsistent with the trial court’s instructions and erroneously invited the

jury to find no factual causation of any injury despite admitted negligence

and uncontroverted expert testimony that the accident resulted in some

injury to Mr. Ferrara.    That error contributed to the verdict.     We find no

abuse of discretion in the trial court’s award of a new trial on that basis.

      Order granting new trial affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/14/2015




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