                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 14-4828
                                     _____________

                          MARIE ARNEZ; ALEX ARNEZ, W/H,
                                              Appellants

                                             v.

                              THE TJX COMPANIES, INC.;
                             MARMAXX OPERATING CORP.
                                     _____________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                             (D.C. Civ. No. 5-13-cv-02548)
                      District Judge: Honorable Edward G. Smith
                                   ______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                  November 3, 2015
                                  ______________

       Before: MCKEE, Chief Judge, JORDAN, and VANASKIE, Circuit Judges

                                  (Filed March 15, 2016)
                                      _____________

                                       OPINION*
                                     _____________




       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
VANASKIE, Circuit Judge.

       Appellants Marie and Alex Arnez1 appeal from the District Court’s Order denying

their Motion for a New Trial on the issue of damages for alleged injuries sustained as a

result of a trip-and-fall incident. They present two issues for our consideration. First,

they contend that the jury’s verdict was inadequate and its failure to award pain and

suffering damages was against the weight of the evidence, requiring a new trial. Second,

they contend that the District Court erred in admitting the testimony of a defense

biomechanics expert. For the reasons discussed below, we will affirm and will tax costs

against Appellants.

                                                I.

       On January 8, 2011, while shopping in a Marshalls department store in Bethlehem,

Pennsylvania that was owned and operated by Appellees, The TJX Companies, Inc. and

Marmaxx Operating Corp., Marie Arnez tripped and fell over an empty flatbed cart. She

reported the injury to a store manager, but walked out of the store without assistance and

without requesting medical treatment. Although purporting to suffer a multitude of

injuries as a result of the fall, including injuries to her neck, both hands, wrists and

shoulders, her right knee and right ankle, and her low and mid back, Marie did not seek

any treatment until more than a week later, when she went to a chiropractor on January

19, 2011. Thereafter, Marie treated regularly with the chiropractor and had various other

instances of medical care that she asserted were due to the injuries sustained in her fall.

       1
           For clarity, we will refer to the Appellants by their first names.
                                                2
For her back, she obtained medical imaging studies and ultimately had injections. For

carpal tunnel syndrome and other hand symptoms, she obtained electrodiagnostic studies

and eventually had a surgical release. She also claimed psychiatric injuries, for which

she underwent psychiatric evaluations and therapy.

       Appellants filed suit against Appellees in the Court of Common Pleas of

Philadelphia County, Pennsylvania seeking all economic and non-economic damages

associated with Marie’s injuries from the trip-and-fall incident, including a loss of

consortium claim for Marie’s husband, Alex. Appellees removed the suit to federal court

on the basis of diversity jurisdiction. Prior to trial, Appellants filed a motion in limine to

exclude certain portions of the testimony and report of Appellees’ biomechanics expert,

Kirk L. Thibault, Ph.D., under Federal Rule of Evidence 702 and Daubert v. Merrell Dow

Pharm., Inc., 509 U.S. 579 (1993). The District Court denied the motion after a lengthy

hearing.

       During the trial, Appellees conceded that the flatbed cart was a trip hazard that

they should have removed prior to the incident, but contended that Marie was also

comparatively negligent in failing to see and avoid tripping on the cart. Appellees also

presented several experts, including a neuroradiologist,2 an orthopedic surgeon




       2
         The neuroradiologist, Dr. Michael L. Brooks, testified that after reviewing
imaging studies of Marie’s back from 2011 through 2013, he did not find any condition
that he attributed to the fall at Marshalls and only saw long-standing wear and tear
changes in her spine.

                                               3
specializing in hand surgery,3 a neurologist,4 a forensic psychiatrist,5 and the

biomechanical engineer, Thibault, to testify as to Marie’s medical condition as a result of

the fall. The experts provided substantial testimony suggesting that Marie’s symptoms

were not caused by the accident and were likely embellished or a result of malingering.

Most at issue in this appeal was the testimony of the biomechanical expert, who testified

that the forces in Marie’s fall could not have caused a disc herniation in her neck and

back. The parties stipulated that if Marie’s doctors testified at trial, they would testify

that the amount of claimed past medical expenses is $45,000 and that the amount is fair

and reasonable.

       During jury deliberations, the jury asked the District Court whether it had to award

Appellants the entire stipulated amount of medical expenses, to which the District Court

responded in the negative. Thereafter, the jury found that Appellees and Marie were both

50% at fault and awarded $5,000 in medical expenses. The jury declined to award Marie

any money for pain and suffering, embarrassment and humiliation, loss of enjoyment of

       3
        The orthopedic surgeon, Dr. William H. Kirkpatrick, testified that Marie’s carpal
tunnel syndrome and Raynaud’s syndrome were unrelated to the fall at Marshalls.
       4
         The neurologist, Dr. Frederick Weinblatt, found that there was evidence that
Marie was embellishing her complaints and that “at most” she sustained a “self-limited
strain syndrome” from the fall that would resolve in “at most a year.” App. 1298.
       5
         The forensic psychiatrist, Dr. Barbara Ziv, testified after examining Marie that
Marie did not suffer any significant psychiatric injury because of her fall at Marshalls and
that she “makes up symptoms when it suits her.” App. 1137. Dr. Ziv provided several
specific examples of inconsistencies she found in Marie’s story regarding her symptoms
and noted that she diagnosed Marie with malingering and that “the hallmark of
malingering is inconsistency.” App. 1128.
                                             4
life, and disfigurement. The jury also declined to award Alex Arnez any money for loss

of consortium. The District Court then entered judgment for Appellants in the amount of

$2,500.

          Appellants filed a timely motion for a new trial on damages on the bases that: (1)

the jury verdict was against the weight of the evidence, and (2) Appellees’ biomechanical

expert was improperly permitted to testify as to his biomechanical analysis and areas of

medical opinion testimony beyond his qualifications, and that his testimony prejudiced

their case. On December 18, 2014, the District Court denied the motion for a new trial.

The District Court noted that the evidence submitted provides

                a reasonable basis to believe that the jury simply did not
                believe that [Marie] suffered any pain and suffering. And
                even if the jury had believed that [Marie] suffered physical
                injury, it still was free to conclude that the injury was “not
                severe enough to warrant an award of damages.”

App. 0003 (citations omitted). The District Court also found that admitting Dr.

Thibault’s testimony was not error and that, even if it was, Appellants could not

demonstrate prejudice because of the other evidence admitted. Appellants appeal that

ruling.

                                               II.

          The District Court had jurisdiction under 28 U.S.C. § 1332. We have appellate

jurisdiction under 28 U.S.C. § 1291. This Court reviews a District Court’s denial of a

motion for a new trial under an abuse of discretion standard. See Gasperini v. Ctr. for

Humanities, Inc., 518 U.S. 415, 435 (1996). A new trial may be granted because the

                                                5
verdict is against the weight of the evidence if “the jury’s verdict resulted in a

miscarriage of justice or where the verdict, on the record, cries out to be overturned or

shocks our conscience.” Williamson v. Consolidated Rail Corp., 926 F.2d 1344, 1353

(3d Cir. 1991). A new trial may also be granted within the court’s discretion if “the court

committed a significant error of law to the prejudice of the moving party.” Maylie v.

Nat’l R.R. Passenger Corp., 791 F. Supp. 477, 480 (E.D. Pa. 1992) (citations omitted).

                                             III.

       The two main issues in this appeal are whether the District Court abused its

discretion in denying Appellants’ request for a new trial on the issue of damages because:

(1) the jury’s verdict that awarded $5,000 for medical costs but nothing for pain and

suffering was against the weight of the evidence, and (2) the biomechanical engineer’s

testimony was improperly admitted and caused prejudice to Appellants’ case. We

address each contention in turn.

                                              A.


       The Pennsylvania Supreme Court has specifically declined to adopt a “per se rule”

requiring an award for pain and suffering when medical bills are awarded. Davis v.

Mullen, 773 A.2d 764, 769 (Pa. 2001). Instead, under Pennsylvania law, a jury’s award

of medical expenses without pain and suffering will not be disturbed when “the trial court

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




                                              6
any pain and suffering, or (2) that a preexisting condition or injury was the sole cause of

the alleged pain and suffering.” Id. at 767.

       “[T]he existence of compensable pain” is a credibility issue and “juries must

believe that plaintiffs suffered pain before they compensate for that pain.” Id. at 769; see

also, Majczyk v. Oesch, 789 A.2d 717, 726 (Pa. Super. 2001) (“[T]he determination of

what is a compensable injury is uniquely within the purview of the jury.”) (citations

omitted). There are some injuries a jury may not be free to disregard. See, e.g., Casselli

v. Powlen, 937 A.2d 1137 (Pa. Super. 2007) (finding that it was against the weight of the

evidence and warranted a new trial where the jury awarded medical expenses but nothing

for pain and suffering for a broken bone in the plaintiff’s foot); Womack v. Crowley, 877

A.2d 1279 (Pa. Super. 2005) (finding that it was not an abuse of discretion for the trial

court to grant a new trial limited to damages when the jury awarded damages for medical

expenses but nothing for pain and suffering for a torn meniscus in the plaintiff’s left knee

that required surgery); Marsh v. Hanley, 856 A.2d 138 (Pa. Super. 2004) (finding that it

was against the weight of the evidence and warranted a new trial where a jury awarded

lost wages but nothing for pain and suffering for soft tissue injuries that required the

plaintiff to miss a substantial amount of time from work). Although there are such

injuries “to which human experience teaches there is accompanying pain,” a jury is “not

obliged to believe that every injury causes pain or the pain alleged.” Boggavarapu v.

Ponist, 542 A.2d 516, 518 (Pa. 1988) (citations omitted). A jury may determine that

some pain is a “transient rub of life for which compensation is not warranted,” Majczyk,

                                               7
789 A.2d at 726 (citations omitted), or that “not every injury [is] serious enough to

warrant compensation, although there may be some pain attached,” Van Kirk v. O’Toole,

857 A.2d 183, 186 (Pa. Super. 2004) (citations omitted).

       In the case at hand, it is undisputed that Marie did not receive medical treatment

until more than a week after the accident and, even then, only received treatment from a

chiropractor for a number of months. Although Appellees conceded that Marie had

contusions or sprains that would resolve in “at most” a year, Appellees submitted

evidence from multiple experts that called into question the existence and severity of

Marie’s symptoms as well as whether her medical conditions, such as her carpal tunnel

syndrome, were causally related to the accident. After reviewing the evidence, the jury

awarded only $5,000 in medical expenses, far less than the $45,000 claimed by the

Appellants. It is evident that the jury doubted Marie’s credibility as to the extent or

causation of her injuries, and the rejection of her testimony affords a reasonable basis for

denying any award for pain and suffering or for loss of consortium.

       Based on the evidence submitted at trial, the jury was free to award Appellants

some or all of what they were asking for or nothing at all. An award of some medical

expenses and nothing for pain and suffering for the types of injuries that Marie purported

to suffer is consistent with a jury finding that any injuries resulting from the accident

were a “transient rub of life for which compensation is not warranted.” Majczyk, 789

A.2d at 726 (citations omitted). The District Court found that the jury’s award was not

against the weight of the evidence and failed to “shock[] [its] conscience” or “result[] in a

                                              8
miscarriage of justice.” Williamson, 926 F.2d at 1353. The jury had a reasonable basis

for finding that Marie did not suffer any compensable pain, and the District Court did not

abuse its discretion in denying a new trial on the issue of damages.

                                             B.

       Regardless of whether or not Thibault’s testimony was properly admitted,6

Appellants failed to show that they were prejudiced by his testimony. Appellants argue

that Thibault’s testimony prejudiced their case because: (1) the jury “likely relied on

Thibault’s unreliable testimony to resolve the conflicting medical testimony regarding

whether [Marie] suffered spinal disc injuries” because of the forces at play in Marie’s

fall, and (2) Thibault’s “unqualified commentary on the medical evidence” likely “tipped

the scales in [Appellees’] favor, as the jury had to weigh conflicting medical testimony as

to whether [Marie] had suffered acute disc injuries.” Br. of Appellants at 43–45.

       Nonetheless, Appellants themselves noted that “[t]here was no indication that

testimony of a biomechanics expert was necessary or helpful” in regard to the medical

evidence and that “Thibault even acknowledges that his testimony is somewhat redundant

given the available medical expert testimony.” Id. at 44. The jury watched a video of

Marie’s fall, directly showing them the forces at play in the fall, and heard the testimony

of several medical doctors relating to the cause and extent of Marie’s injuries. Based on

the volume of evidence the jury had to consider, the jury’s award showing that it credited


       6
         Although we need not reach the merits of this argument, we doubt that the
District Court abused its discretion in its application of Rule 702 and Daubert.
                                               9
at least some of Marie’s medical expenses, and Appellants’ inability to point to anything

on the record suggesting that Thibault’s testimony prejudiced them, we find that the

District Court’s holding that Appellants failed to meet the burden of showing that

Thibault’s testimony prejudiced their case was not an abuse of discretion.

                                           IV.

      For the foregoing reasons, we will affirm the District Court’s Order of December

18, 2014.




                                            10
