J-A09019-14

                                   2015 PA Super 30

PAUL KINDERMANN JR. AND                           IN THE SUPERIOR COURT OF
KAREN KINDERMANN,                                       PENNSYLVANIA

                            Appellants

                       v.

JOSEPH CUNNINGHAM

                            Appellee                  No. 1604 EDA 2013


                  Appeal from the Order Entered May 16, 2013
              In the Court of Common Pleas of Philadelphia County
                     Civil Division at No(s): No. 110900205


BEFORE: BOWES, J., OTT, J., and JENKINS, J.

CONCURRING AND DISSENTING OPINION BY OTT, J.:FILED FEBRUARY 11, 2015

       While, I agree with the Majority that the trial court did not abuse its

discretion in denying the Kindermanns’ request for a new trial on Wife’s loss

of consortium claim, I find the Kindermanns are entitled to a new trial

limited to the issue of Husband’s damages.        Therefore, I am compelled to

dissent.

       In affirming the trial court’s decision, the Majority focuses on the trial

court’s determination that the jury’s award represented a “compromise

verdict.” Id. at 10, n.1.1 Indeed, the Majority asserts that where, as here,
____________________________________________


1
  The Majority charges the Kindermanns with “largely ignor[ing] the trial
court’s characterization of the verdict as one involving a compromise.”
Majority Opinion, at 4. We note, however, this “characterization” appears
only in a footnote on the last page of the trial court’s opinion. See Trial
Court Opinion, 10/2/2013, at 10 n.1. Therefore, one could hardly infer that
the trial court denied the Kindermanns’ motion for a new trial on this basis.
J-A09019-14



liability is hotly contested, a compromise verdict “reflect[s] the jury’s give

and take on liability issues, resulting in damage awards that do not

necessarily resemble the damages proved.” Majority Opinion, at 8. Further,

the Majority concludes the “damage award in the instant case represented

the classic compromise[.]” Id. For the reasons that follow, I disagree.

      Appellate review of a trial court’s ruling denying a motion for a new

trial is deferential, and we will not “set aside a trial court’s decision unless

the trial court’s decision was an abuse of discretion.” Davis v. Mullen, 773

A.2d 764, 766 (Pa. 2001). Nevertheless,

      [w]e have held that it is the duty of the trial court “to control the
      amount of the verdict; it is in possession of all the facts as well
      as the atmosphere of the case, which will enable it to do more
      evenhanded justice between the parties than can an appellate
      court.” Thus, “a jury verdict is set aside for inadequacy when
      it appears to have been the product of passion, prejudice,
      partiality, or corruption, or where it clearly appears from
      uncontradicted evidence that the amount of the verdict
      bears no reasonable relation to the loss suffered by the
      plaintiff.” Hence, a “reversal on grounds of inadequacy of the
      verdict is appropriate only where ‘the injustice of the verdict
      [stands] forth like a beacon.’”

Id. (emphasis supplied and internal citations omitted).

      After a review of the record and the relevant standard of review, I

conclude the jury’s award to Husband “bears no reasonable relation” to the

“uncontradicted evidence” of his damages since the fact that Husband

suffered an injury as a result of the fall was uncontested, and the amount

of his economic damages was stipulated.




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       First, I note that the facts of this case are atypical. Indeed, many of

the cases awarding a new trial on damages involve a jury award of either no

damages, or only economic damages, despite a clear finding of a

defendant’s sole liability for an injury that, necessarily, involved pain and

suffering.2   Conversely, here, there was no clear finding of liability on the

part of Cunningham. Rather, the jury determined that both he and Husband

were equally liable in causing Husband’s injury.

       Second, this is not a case in which either the degree of the plaintiff’s

injury or the underlying cause of the injury, i.e., the existence of preexisting

conditions, was vigorously contested so that a low damages award might

____________________________________________


2
  See Neison v. Hines, 653 A.2d 634 (Pa. 1995) (affirming trial court’s
grant of new trial on damages when defendant admitted liability, but jury
entered defense verdict for no damages); Kopytin v Aschinger, 947 A.2d
739 (Pa. Super. 2008) (reversing trial court’s denial of new trial on damages
when jury found defendant negligent and negligence was a factual cause of
plaintiff’s harm, but awarded plaintiff only unreimbursed medical expenses),
appeal denied, 964 A.2d 2 (Pa. 2009); Womack v. Crowley, 877 A.2d
1279 (Pa. Super. 2005), (affirming trial court’s grant of new trial on
damages when jury found defendant negligent and negligence was a
substantial factor in causing injury, but awarded plaintiff only unallocated
amount of $6,000, which was exact amount of future surgery), appeal
denied, 902 A.2d 1242 (Pa. 2006); Marsh v. Hanley, 856 A.2d 138 (Pa.
Super. 2004) (reversing trial court’s denial of new trial on damages when
defendant’s liability was conceded, and defendant’s expert conceded plaintiff
suffered injuries in accident that could have taken six months to heal, but
jury award reflected only amount of lost wages); Burnhauser v.
Bumberger, 745 A.2d 1256, 1261 (Pa. Super. 2000) (affirming trial court’s
grant of a new trial on damages when jury found defendant negligent, both
experts agreed that plaintiff suffered injuries in accident, but jury awarded
plaintiff only unreimbursed medical expenses).




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reflect a compromise verdict.3          See Matheny v. West Shore Country

Club, 648 A.2d 24, 26 (Pa. Super. 1994) (affirming trial court’s denial of a

new trial on damages even though defendant admitted liability and jury

awarded “low” verdict; plaintiff’s injuries were “subjective” and “the degree

of these injuries and their etiology were hotly contested[].”), appeal denied,
____________________________________________


3
  The cases upon which the Majority relies to support its determination that
the jury award reflected a “compromise verdict” are readily distinguishable,
since they involved questions regarding the causation or extent of the
plaintiff’s injuries. See Catalano v. Bujak, 642 A.2d 448 (Pa. 1994) (jury
award of medical and incidental expenses, but no damages for pain and
suffering or missed work, did not warrant a new trial; plaintiff claimed his
wrist was injured during his DUI arrest by defendant police officer, but
officer’s evidence showed plaintiff never complained of injury on night of
arrest and that injury was caused at work); Gagliano v. Ditzler, 263 A.2d
319, 320-321 (Pa. 1970) (jury award of $650 reflected compromise verdict
when plaintiff’s car suffered $500 worth of damage and both sides presented
“conflicting evidence with respect to negligence, contributory negligence,
proximate causation, and the extent of plaintiff’s injuries”); Carlson v.
Bubash, 639 A.2d 458, 461 (Pa. Super. 1994) (jury award of $7,500,
molded to reflect 45% liability of plaintiff, was permissible compromise
verdict where plaintiff was injured after he initiated confrontation with ex-
girlfriend’s new boyfriend; “[I]n a case such as this where the plaintiff’s
conduct was at least adventuresome, if not overtly confrontational, we would
find it altogether appropriate and reasonable for the jury to exercise its
power of compromise on the amount of the verdict as well as the
comparative negligence determination.”), appeal denied, 655 A.2d 982 (Pa.
1995); Guidry v. Johns-Manville Corp., 547 A.2d 382 (Pa. Super. 1988)
(jury award of $185,000 reflected compromise verdict when there was
conflicting evidence as to cause of decedent’s death, asbestos exposure or
smoking, and decedent had other pre-existing conditions which might have
affected life expectancy).

     Conversely, in the present case, there was no dispute that the accident
caused Husband’s injury, or that his economic damages totaled more than
$37,000.




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J-A09019-14



655 A.2d 990 (Pa. 1995); Dawson v. Fowler, 558 A.2d 565 (Pa. Super.

1989) (affirming trial court’s denial of new trial on damages when jury

entered verdict finding plaintiff and defendant both 50% liable, and awarding

damages only in amount of medical bills; “the degree of [plaintiff’s] injury,

and any resultant pain and suffering, were subject to question.”), appeal

denied, 565 A.2d 445 (Pa. 1989).

       Rather, in the present case, the issue of damages was not vigorously

contested.      Although Cunningham cross-examined both Husband and

Husband’s treating physician regarding the duration of Husband’s injury and

the legitimacy of any still lingering effects,4 he conceded the fact that

Husband sustained a broken ankle as a result of the incident on the boat.

Indeed, during closing remarks before the jury, counsel for Cunningham

argued:

       The only real issue in the case is whether or not Mr. Cunningham
       was negligent in operating his boat on the day that [Husband]
       was out with him.         That’s basically it. … [W]e’re not
       contesting [Husband] had a broken ankle, a broken leg.
       He had screws put in. We’re not contesting any of that.
       He was back to work in 14 weeks, back to full duty
       climbing ladders. Dr. Ahmad cleared him for work. He
       had no restrictions to go back to work.                We’re not
       contesting any of that.




____________________________________________


4
   See N.T. 4/30/2013, at 103-108 (cross-examination of Husband);
Videotaped Deposition of Jamal Ahmad, M.D., 11/13/2012, at 41-45.



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J-A09019-14



N.T., 5/2/2013, at 44-45 (emphasis supplied). Therefore, unlike the facts in

Matheny and Dawson, here, there was no question Husband suffered an

objective injury, for which he appropriately sought medical care.

      Furthermore, I find the facts of the present case similar to those

presented in Casselli v. Powlen, 937 A.2d 1137 (Pa. Super. 2007).           In

Casselli, the plaintiff tripped and fell on a sidewalk outside of the

defendant’s home. It was undisputed that the plaintiff broke his foot in the

fall, and incurred $1,578.00 in medical expenses.        The jury returned a

verdict finding both the plaintiff and the defendant each 50% liable for the

fall, but awarded the plaintiff “zero” damages.    The trial court denied the

plaintiff’s motion for a new trial on damages. Id. at 1138.

      This Court reversed on appeal, concluding that the trial court abused

its discretion in denying the plaintiff’s motion for a new trial when the

defendant’s counsel “admitted, in his closing remarks to the jury, that [the

defendant] did not dispute the fact that [the plaintiff] had sustained a

broken bone in his foot as a result of the fall, and that it was reasonable for

him to go to the emergency room of Hahnemann Hospital and to a foot

doctor for treatment of the same.” Id. at 1141. Further, this Court opined:

      Here, an award of zero damages to [the plaintiff] … with
      respect to a documented broken bone in his foot admittedly from
      his fall, represents a finding by the jury that absolutely
      none of the medical expenses incurred by [the plaintiff]
      for the medical treatment for the broken bone in his foot
      were related to that fall and that [the plaintiff]
      experienced absolutely no compensable pain whatsoever
      as a consequence thereof. Such is totally contrary to human


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J-A09019-14


      experience and is in total conflict with the laws of this
      Commonwealth.

Id. at 1140-1141 (emphasis supplied).

      I recognize in the present case the jury did not award “zero” damages,

but rather awarded Husband an unallocated amount of $10,000. Had there

been no evidence of Husband’s medical expenses and lost wages presented

to the jury, or had Cunningham disputed the amount of Husband’s

economic damages, i.e,. challenged the necessity of his treatment plan, I

would have no basis upon which to question the jury’s determination. Here,

however, Cunningham stipulated to the amount of economic damages

Husband sustained as a result of that injury. The trial court instructed the

jury on these stipulations as follows:

            The parties agree that [Husband] sustained an injury
      in this incident.      Therefore, if you find [Cunningham]
      negligent, you must award [Husband] damages for those
      injuries. [Husband] is entitled to be compensated for the
      amount of earnings that he has lost up to the time of the trial as
      a result of his injuries. This amount is the difference between
      what he could have earned but for the harm and less any sum
      he actually earned in any employment.         In this case the
      attorneys have agreed that the amount alleged by [Husband] is
      $8,872.50.

            If you find [Cunningham’s] negligence caused [Husband’s]
      harm, [Husband] is entitled to be compensated in the amount of
      all medical expenses reasonably incurred for the diagnosis,
      treatment, and cure of his injuries in the past. These expenses
      agreed to by the attorneys are $28,541.18.

N.T., 5/2/2013, at 74 (emphasis supplied).

      Our Supreme Court has explained that although a jury is free to reject

all or part of a witness’s testimony,


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J-A09019-14


       this rule is tempered by the requirement that the verdict must
       not be a product of passion, prejudice, partiality, or corruption,
       or must bear some reasonable relation to the loss suffered by
       the plaintiff as demonstrated by uncontroverted evidence
       presented at trial. The synthesis of these conflicting rules is
       that a jury is entitled to reject any and all evidence up
       until the point at which the verdict is so disproportionate
       to the uncontested evidence as to defy common sense and
       logic.

Neison, supra, 653 A.2d at 637 (emphasis supplied and citations omitted).5

       Accordingly, I find the jury’s failure to award Husband the full amount

of his economic damages “so               disproportionate   to   the   uncontested

evidence as to defy common sense and logic[,]” since (1) it was undisputed

that Husband sustained his injury in the fall, (2) his treatment for the injury

(a broken ankle) was unchallenged, and (3) the defense stipulated to the

amount of medical expenses and lost wages. Id. (emphasis supplied). See
____________________________________________


5
  In Carroll v. Avallone, 939 A.2d 872 (Pa. 2007), our Supreme Court
explained the difference between uncontested evidence, which a jury may
disregard, and “uncontroverted” evidence:

       [I]f there is no argument or opposition on a particular point, the
       jury may not be free to disregard such information. Indeed, to
       “controvert” means “[t]o raise arguments against; voice
       opposition to.”      “Uncontroverted” evidence, therefore, is
       evidence which is unopposed or unchallenged, not merely
       uncontradicted. If one party has the burden of proof, opposing
       counsel may strenuously controvert the evidence through cross-
       examination and argument; reasons not to accept the plaintiff's
       evidence may suffice to prevent the meeting of that burden,
       even without affirmative countervailing evidence.

Id. at 875 (internal citation omitted). The evidence at issue in the present
case was not only “uncontroverted,” it was stipulated to, and therefore,
unchallenged by Cunningham.




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J-A09019-14



also Kiser v. Schulte, 648 A.2d 1, 5-6 (Pa. 1994) (awarding plaintiff a new

trial on damages when jury’s award of $25,000 for survival action did not

“bear any rational relationship to the uncontroverted testimony” of plaintiff’s

expert that death of decedent yielded a net economic loss from $230,000 to

$750,000). Therefore, I conclude the trial court abused its discretion when

it denied the Kindermanns’ post-trial motion, and Husband is entitled to a

new trial limited to damages with regard to his negligence claim.6

       Furthermore, I also disagree with the Majority’s conclusion that, on

these facts, a new trial limited to the issue of damages would be “unfair.”

Majority Opinion, at 8.       This Court’s decision in Nykiel v. Heyl, 838 A.2d

808 (Pa. Super. 2003), is instructive.

       In Nykiel, the minor-plaintiff was injured when the bicycle he was

riding was struck by a vehicle driven by the defendant. The issue of liability

was contested, and the jury returned a verdict, by special interrogatory,

apportioning negligence at 50% for each party.           Id. at 810.    Despite

uncontradicted evidence that the minor-plaintiff suffered a broken leg as a

result of the accident, the jury awarded zero damages. Id.

       Following post-trial motions, the trial court granted a new trial on both

liability and damages.       On appeal to this Court, the minor-plaintiff argued
____________________________________________


6
 Because Husband’s injury, a broken ankle, is the type of injury “with which
pain is naturally associated,” he will be entitled to some award for pain and
suffering. Neison, supra, 653 A.2d at 638.




                                           -9-
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the trial court erred in granting a new trial on liability, as opposed to a new

trial limited to the issue of damages.     This Court agreed, concluding that

while there was a “definite need to grant a new trial” on damages, there was

“no reason that a new trial need to include the issue of liability.” Id. The

Nykiel Court explained:

      The liability issue was fairly litigated and, given the arguments of
      both parties, would appear to have been fairly resolved by the
      jury's conclusion that both the minor-plaintiff and Appellee were
      equally responsible for the accident while the additional
      defendants were zero percent responsible. Further, we fail to
      see how the minor-plaintiff’s injuries bear upon the issue of
      responsibility for the accident. As such, we see no need to re-
      litigate the issue of liability. Moreover, the jury’s verdict here
      does not meet the definition of “compromise verdict” …. Here,
      the jury did not return a verdict in a lesser amount than if the
      liability issue was free of doubt. Rather, the jury seemingly
      carefully concluded that both parties were equally at
      fault, but then, either out of confusion or some other
      unexplained         reason,         simply      disregarded     the
      uncontroverted evidence as to the minor-plaintiff’s
      injuries and refused to award any damages.

Id. 838 A.2d at 812 (emphasis supplied).

      The same is true in the present case.           The trial court properly

instructed the jury on the law of comparative negligence, and explained that

if the jury found “the plaintiff was contributorily negligent and the split is 50-

50 or less than 50 percent on the part of the plaintiff, then the amount of

damages will be reduced by the court[.]”                N.T., 5/2/2013, at 72

(emphasis supplied).       Moreover, as discussed supra, the trial court

specifically instructed the jury that if they found Cunningham negligent,

and his negligence caused Husband’s harm, Husband was entitled to


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J-A09019-14



compensation (1) “for the amount of earnings that he has lost up to the time

of the trial as a result of his injuries[,]” which the attorneys “agreed” was

$8,872.50, and (2) “in the amount of all medical expenses reasonably

incurred for the diagnosis, treatment, and cure of his injuries in the past[,]”

which the attorney “agreed” was $28,541.18. Id. at 74. I find the question

of liability in the present case was fairly determined, and not intertwined

with the issue of damages, but, for some reason, the jury “simply

disregarded the uncontroverted evidence as to [Husband’s] injuries[.]”

Nykiel, supra, 838 A.2d at 812 (emphasis supplied). Therefore, this case is

substantially different from those cited by the Majority in which the jury was

permitted to compromise damages as well as liability.

      Accordingly, since I would reverse the trial court’s order denying the

Kindermanns a new trial limited to the issue of Husband’s damages, I must

respectfully dissent.




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