J-A01026-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

PATRICIA A. RICCIUTI AND DOMENIC : IN THE SUPERIOR COURT OF
RICCIUTI, HER HUSBAND,            :      PENNSYLVANIA
                                  :
                Appellants        :
                                  :
           v.                     :
                                  :
ESTATE OF STEPHEN C. POHLMAN, :
DECEASED,     BY   ADMINISTRATRIX :
MARY ANN LEWIS,                   :
                                  :
                Appellee          : No. 706 WDA 2014

              Appeal from the Judgment entered April 24, 2014,
                 Court of Common Pleas, Allegheny County,
                    Civil Division at No. G.D. 12-007596

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and ALLEN, JJ.

MEMORANDUM BY DONOHUE, J.:                      FILED FEBRUARY 18, 2015

      Patricia A. Ricciuti and Domenic Ricciuti (“Appellants”) appeal from the

judgment entered following a personal injury trial in which the appellee, the

Estate of Stephen C. Pohlman (“the Estate”), admitted liability and the only

issue before the jury was damages. Following our review, we affirm.

      The relevant factual and procedural histories may be summarized as

follows.   On May 3, 2010, Patricia Ricciuti was driving her vehicle, a

Chevrolet Yukon, with her friend in the passenger seat, when a car driven by

Stephen Pohlman approached from the other direction.           Mr. Pohlman’s

vehicle crossed into Ms. Ricciuti’s lane of travel and struck a barrier before

striking the passenger side of Ms. Ricciuti’s vehicle. The side airbags in Ms.

Ricciuti’s vehicle deployed. When emergency services arrived on the scene
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of the accident, Ms. Ricciuti was found standing outside of her vehicle with

no visible injuries but complained of pain in her neck and left side. She was

taken to Allegheny General Hospital and admitted overnight.               While in the

hospital,    she     was   subject     to    a    battery   of   tests,   including   a

neuropsychological exam.

        After being discharged from the hospital, Ms. Ricciuti suffered

headaches, dizziness, and weakness, as well as pain in her neck, back and

side.    She treated with her chiropractor, with whom she had an existing

relationship because of a pre-existing back condition, and her primary care

physician.     At her physician’s suggestion, Ms. Ricciuti was evaluated by a

neurologist.       At the neurologist’s suggestion, she was evaluated by a

neurosurgeon.       Ms. Riccuiti treated her pain with Tylenol and Advil, which

she found adequate to relieve the pain. Prior to the accident, Ms. Ricciuti

worked in the office of her husband’s construction company as an

accountant between three and five days a week, for approximately eight

hours a day. She regularly walked for exercise and golfed in a league with

friends.     After the accident, Ms. Riccuiti was not able to golf for

approximately two months.            She returned to work within days of being

released from the hospital.

        In June 2012, Appellants filed a complaint against the Estate alleging

negligence and seeking compensation for pain and suffering, lost income,

loss of the enjoyment of life, medical expenses and emotional distress.



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Complaint, 6/4/12, at 3. As noted above, the Estate conceded liability and

the parties proceeded to trial on the issue of damages only.            At trial,

Appellants, Barbara Vento and Randall Robins1 testified to the difference in

Ms. Ricciuti’s personal and professional lives since the accident. Their expert

witness, neurologist Stephen Shymansky, M.D., testified that Ms. Ricciuti

suffered a mild concussion in the accident. The Estate presented only the

testimony of their expert witness, Richard Kasdan, M.D., who is also a

neurologist.   The jury initially returned a verdict of zero dollars.   The trial

court found this to be an “improper and incomplete” verdict. N.T., 1/31/14,

at 172.   Following instructions to award a dollar amount for each item

delineated on the verdict slip, the jury returned a verdict awarding

Appellants one dollar each for past pain and suffering, future pain and

suffering, loss of enjoyment of life, embarrassment and humiliation, and loss

of consortium, for a total judgment of five dollars.        Jury Verdict form,

1/31/14, at 2.    Appellants filed post-trial motion, arguing that the verdict

was against the weight of the evidence. Following argument on this issue

and the submission of briefs by both parties, the trial court denied

Appellants’ motion. This timely appeal follows.




1
  Barbara Vento is Ms. Ricciuti’s life-long friend and was the passenger in her
vehicle when the accident occurred. Randall Robins is an employee in Mr.
Ricciuti’s construction business and has worked in its office with Ms. Ricciuti
for many years.


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      On appeal, Appellants ask “[w]hether the trial court committed a clear

abuse of discretion in denying [Appellants’] [m]otion for a [n]ew [t]rial in a

case where the jury verdict was against the weight of the evidence and bore

no reasonable relationship to the evidence.”     Appellants’ Brief at 2.   It is

Appellants’ contention that the miniscule verdict bears no relation to

uncontroverted evidence of injury and resulting pain suffered by Ms. Ricciuti,

and therefore, it is against the weight of the evidence. Id. at 15.

            A new trial based on weight of the evidence issues
            will not be granted unless the verdict is so contrary
            to the evidence as to shock one’s sense of justice; a
            mere conflict in testimony will not suffice as grounds
            for a new trial. Upon review, the test is not whether
            this Court would have reached the same result on
            the evidence presented, but, rather, after due
            consideration of the evidence found credible by the
            fact-finder, and viewing the evidence in the light
            most favorable to the verdict winner, whether the
            court could reasonably have reached its conclusion.
            Our standard of review in denying a motion for a
            new trial is to decide whether the trial court
            committed an error of law which controlled the
            outcome of the case or committed an abuse of
            discretion.

            We stress that if there is any support in the record
            for the trial court’s decision to deny the appellant’s
            motion for a new trial based on weight of the
            evidence, then we must affirm.

Joseph v. Scranton Times, L.P., 89 A.3d 251, 274 (Pa. Super. 2014)

(citation omitted).

      Our law provides that not every pain suffered is compensable and

“[g]enerally, the determination of whether the pain is severe enough to be



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compensable is to be left to the jury.” Van Kirk v. O'Toole, 857 A.2d 183,

186 (Pa. Super. 2004). Expanding on this notion, this Court stated:

            The extreme cases are easy. If someone trips over a
            box left negligently in a store aisle and suffers a
            compound fracture of the arm, that certainly causes
            enough pain so that a jury verdict of zero damages is
            unreasonable and should be set aside. If, however,
            all that happens is that a person stubs a toe, which
            produces momentary shooting pains, a zero damage
            verdict makes perfect sense. Obviously, it is the vast
            area in the middle that causes problems.

Id.

      When determining whether a verdict is against the weight of the

evidence, the trial court must consider the nature of the evidence; that is,

whether the evidence of the injury is objective or subjective:

            Of course, the jury is free to disbelieve the plaintiff’s
            subjective complaints, any diagnoses based on
            subjective complaints, and the plaintiff’s doctor’s
            opinions and conclusions. However, when the
            defense doctor makes a diagnosis not based on the
            subjective reports by the plaintiff, they become
            uncontroverted injuries that must be credited by the
            jury.

                                     ***

            [I]f the defense expert concurs with the opinion of
            the plaintiff’s expert only because of subjective
            complaints of the plaintiff, and the defense convinces
            the jury that the plaintiff was not truthful, the basis
            of both of these diagnoses might fail and a zero
            verdict would be appropriate. Likewise, the defense
            does not even have to call a defense expert if it can
            successfully challenge the credibility of the plaintiff
            and his doctors on cross-examination.




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Id. at 185-86.

      In this instance, the trial court found that evidence of injury was

subjective, as “[a]ll objective testing of [Ms. Ricciuti] was negative” and

therefore that the jury could “draw its [own] conclusion regarding the scope

of [Ms. Ricciuti’s] injuries based on the testimony presented.”    Trial Court

Opinion, 7/21/14, at 1-2. We find no error in this determination. From our

review of the record, we agree that the complained-of injuries are supported

only by Ms. Ricciuti’s subjective complaints. All of the physical examinations

and imaging performed on Ms. Riccuiti revealed no injury.         The physical

examination,     x-rays,   brain   scan,   neurological    assessment     and

neuropsychological testing performed at the hospital revealed no injury.

N.T., 1/22/14, at 12, 46. Dr. Shymansky sent Ms. Ricciuti for an MRI of her

brain and spine because of her complaints of headaches, memory and

sensory issues, that latter of which he believed could have been consistent

with a pinched nerve. Id. at 18-19. The MRI scan of her brain was normal.

Id. at 21.     The MRI of her spine revealed degeneration due to arthritis,

which Dr. Shymansky conceded could be the cause of her neck pain. Id. at

65. A member of Dr. Shymansky’s office administered an EMG, an electrical

test that looks for nerve damage, and the results were normal. Id. at 19.

Dr. Shymansky testified unequivocally that although he diagnosed Ms.

Ricciuti with a mild grade I concussion, his diagnosis was based solely on Ms.

Ricciuti’s reports and that there was no objective evidence to support this



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diagnosis. Id. at 62-63. As the injuries at issue were based solely on Ms.

Ricciuti’s subjective claims,2 the jury was within its province to disbelieve

them and, consequently, award Appellants nothing. Van Kirk, 857 A.2d at

186.

       Appellants argue that “this case is most appropriately governed by

Neison [v. Hines, 653 A.2d 634 (Pa. 1995)][.]” Appellants’ Brief at 12.

Neison also involved a motor vehicle accident and a trial in which the

defendant conceded liability and the only matter at issue was damages. The

jury returned a zero verdict. Finding that the verdict shocked its sense of

justice, the trial court granted the plaintiff’s motion for a new trial and the

Supreme Court upheld the trial court’s ruling.    In that case, unlike in the

present case, there was objective medical evidence that the plaintiff suffered

soft tissue injuries from the accident.    Neison, 653 A.2d at 637-39.      In

making their argument, Appellants focus on the similarity of the type of

accident and injuries claimed and posit that Ms. Ricciuti’s injury must be

compensable. See Appellants’ Brief at 13-14. Under our law, this focus is

misplaced. Every accident is unique, and, as stated above, every pain is not




2
  We note that the Estate’s expert agreed that there was no objective
evidence of injury in any of the tests and procedures that were administered
by him or any of the other physicians. N.T., 1/27/14, at 10-11, 16-17, 20-
21. He concluded, based only on Ms. Ricciuti’s subjective reports, that she
sustained a mild concussion in the accident, but that she was fully recovered
when he examined her. Id. at 21-22.


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compensable. Van Kirk 857 A.2d at 186. The proper focus in evaluating a

low verdict case is not on the cause of injury, but the evidence of injury.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/18/2015




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