J-A31002-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JENNIFER HERNANDEZ-LERCH AND                     IN THE SUPERIOR COURT OF
KRISTOFER LERCH, HER HUSBAND                           PENNSYLVANIA

                            Appellants

                       v.

LERRYN L. GRAY, ET AL.

                            Appellee                  No. 842 MDA 2015


                 Appeal from the Judgment Entered May 6, 2015
                In the Court of Common Pleas of Dauphin County
                    Civil Division at No(s): 2013-CV-5560-CV


BEFORE: PANELLA, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                                 FILED MAY 17, 2016

        Jennifer Hernandez-Lerch appeals from the judgment entered after a

jury awarded her medical expenses and lost wages in excess of $17,000.00

as a result of injuries sustained in a motor vehicle accident, but did not

award her damages for pain and suffering. Because the jury’s award of zero

damages for non-economic loss is against the weight of the evidence, we

reverse and remand for a new trial limited to damages.

        Hernandez-Lerch suffered soft tissue injuries when the vehicle in which

she was a passenger was struck from behind in a chain-reaction collision

caused by Defendant/Appellee Lerryn L. Gray’s negligence. After a two-day

trial, the trial court entered a directed verdict against Gray on the issue of
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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negligence. The jury awarded Hernandez-Lerch $16,233.40 for medical bills

and $900.00 for wage loss and zero damages for pain and suffering.

Hernandez-Lerch filed a post-trial motion seeking a new trial on damages,

claiming the jury improperly failed to award damages for pain and suffering.

The trial court denied the motion and judgment was entered on May 6,

2015.    Hernandez-Lerch filed this timely appeal.         She raises one issue for

our review:

        Did the trial court err in failing to award appellant a new trial where
        the jury did not award appellant non-economic damages even though
        the jury determined that the appellant sustained harm in the motor
        vehicle collision and awarded her $17,133.40 in economic damages?

        Determining the adequacy of a verdict is a matter for the sound

discretion of the trial judge, and we will not reverse absent a clear abuse of

discretion. Hawley v. Donahoo, 611 A.2d 311 (Pa. Super. 1992). A new

trial should be granted when “the jury’s verdict is so contrary to the

evidence     that   it   `shocks   one’s   sense   of   justice.’”   Burnhauser   v.

Bumberger, 745 A.2d 1256, 1260-61 (Pa. Super. 2000) (citations omitted).

A jury award should be set aside as inadequate “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.” Womack

v. Crowley, 877 A.2d 1279, 1283 (Pa Super. 2005) (citations omitted).

        The jury found Defendant Gray was negligent, that Gray’s negligence

was a factual cause of harm to Plaintiff Hernandez-Lerch, and that


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Hernandez-Lerch sustained economic loss (medical expenses and wage loss)

in excess of $17,000.00. See Verdict Sheet, 8/19/14, at 1-2. The evidence

was uncontested that Gray’s negligence caused Hernandez-Lerch’s injuries

(lumbosacral sprain and strain, cervical sprain), that Hernandez-Lerch was

treated with an epidural steroid to both her neck and her lower back, that

Hernandez-Lerch underwent physical therapy, and required the use of a

TENS unit and a home traction unit. Accordingly, the jury’s award of zero

damages for pain and suffering is not reasonably related to the evidence

presented at trial.   The verdict is, therefore, against the weight of the

evidence.

     The general rule is that victims must be compensated for all their

losses caused by the negligence of another.    Boggavarpu v. Ponist, 542

A.2d 516 (Pa. 1988).    However, not every injury results in compensable

pain. In Boggavarpu, plaintiff was bitten by his neighbor’s dog. Plaintiff

claimed that the tetanus shot administered in the hospital subsequent to this

bite pierced his sciatic nerve. It was uncontested that plaintiff was bitten;

however, the extent of the injury to the sciatic nerve was disputed. The jury

awarded plaintiff damages solely for the cost of hospital care, thereby

excluding damages for loss of consortium and pain and suffering resulting

from the pierced sciatic nerve.   The trial court determined that the injury

dictated the award of some compensation, and ordered a new trial.        Our

Supreme Court reversed, holding that not all pain is compensable.        The

Boggavarpu court stated:

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      [T]here are injuries to which human experience teaches there is
      accompanying pain. Todd v. Bercini, 371 Pa. 605, 92 A.2d 538
      (1952). 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 science and common experience as
      sources of pain and suffering. Thompson v. Iannuzzi, 403 Pa. 329,
      169 A.2d 777 (1961); Yacabonis v. Gilvickas, 376 Pa. 247, 101 A.2d
      690 (1954); Todd, supra.

Id. at 518 (emphasis added).       However, a jury is not required to believe

“that every injury causes pain or the alleged pain.” Id. Furthermore, a jury

is free to believe that certain injuries are a “transient rub of life and living, a

momentary stab of fear and pain, or neither.” Id.

      In Brodhead v. Brentwood Ornamental Iron Inc., 255 A.2d 120

(Pa. 1969), plaintiff established negligent conduct on the part of the

defendant; however, the defendant contested the extent of the injuries

suffered. The Court found that even though there was no direct evidence

contradicting plaintiff’s testimony and his treating physicians’ testimony as

to the existence of contusions, it was within the jury’s province to pass on

credibility, and to find that the injury, in fact, did not exist. After review of

the record, the Court determined that because the only evidence of the

contusions was from the plaintiff and the doctor who treated him, and the

doctor was unable to substantiate his statements concerning his initial

examination and treatment of plaintiff on the day following the accident by

any records made at that time, such disbelief by the jury was not wholly

unwarranted. Id. at 122.




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     In this case, however, and as fully set forth below, our review of the

record does not warrant such disbelief.        The evidence of injury to

Hernandez-Lerch’s cervical and lumbosacral spine was uncontested, and the

physician’s and physician assistant’s testimony and records substantiated

Hernandez-Lerch’s injuries.

     Hernandez-Lerch was a front-seat passenger in a 2012 Toyota Corolla,

driven by Iris Rivera Merced, on February 12, 2013, on Interstate 83 in York

County.   Merced’s car was hit from behind by a 2010 Ford F-150 truck

operated by Defendant Earl R. Oberholtzer. Oberholtzer’s truck was hit from

behind by the vehicle operated by Defendant Gray, which Oberholtzer

described as traveling at high speed. The Toyota in which Hernandez-Lerch

was a passenger was then pushed into a Fed Ex truck that had been stopped

ahead.

     Hernandez-Lerch and Merced were both removed from the Toyota by

ambulance personnel and taken to Harrisburg Hospital.     Emergency room

personnel performed an x-ray of Hernandez-Lerch’s lumbar and cervical

spine and gave her narcotic pain medication.     The next day, Hernandez-

Lerch was examined by Thomas Ladley, P.A.         Ladley testified that the

cervical spine x-ray showed possible muscle spasms altering the actual

alignment of the cervical spine, common in neck injuries.        Videotaped

Deposition, Thomas Ladley, P.A., 7/30/14, at 9.    Ladley testified that the

working diagnosis was cervical neck strain and lumbosacral strain, defining

muscle strain as meaning “the muscles, the soft tissues have been pushed a

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little bit further than they should, either chronically or acutely as in the case

of the motor vehicle accident.” Id. at 12. He recommended conservative

treatment, which included physical therapy, continued pain medication, work

restrictions and follow-up care. Ladley saw Hernandez-Lerch one week later,

at which time Hernandez-Lerch stated that she was 75% improved, but

complained of headaches. Id. at 14. Ladley prescribed anti-inflammatories

for her headaches and refilled her pain medication. Id. at 15.

      Hernandez-Lerch returned to see Ladley on March 5, and at this visit,

she stated continued improvement, some headaches and neck stiffness. Id.

at 16. On March 19, Hernandez-Lerch again saw Ladley, and reported a “set

back.” Id. at 17. Ladley ordered an MRI of her cervical spine and referred

her to an orthopedic surgeon.        Id. at 18.      He also testified that in his

opinion, within a reasonable degree of professional certainty as a certified

physician assistant, Hernandez-Lerch’s neck pain, low back pain, and

headaches resulted from the motor vehicle accident. Id. at 19.

      Raymond Dahl, D.O., examined Hernandez-Lerch on April 4, 2013, and

diagnosed    her   with   cervical   sprain/strain   and   cervical   sprain/strain.

Videotaped Deposition of Raymond Dahl, D.O., 7/23/14, at 5-8.             Dr. Dahl

testified as follows:

      Q: Could you tell us where the examination was and the results?
      A: [Hernandez-Lerch] had a lot of tenderness involving her
      cervicolumbar spine. She had pain with range of motion of her
      cervical and lumbar spine. . . . She had had an MRI of her neck which
      showed that she had some disc bulging and tightness around the
      existing nerve root at C-5, C-6 on the right. She also had that at C-
      3,4, as well as C-4,5. . . . [S]he had what we call degenerative disc

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     disease. It’s some slight collapsing of the disc space. And when you
     collapse something in this direction, it will bulge in this direction. And
     so on the model, in her mid-cervical spine, there was some bulging of
     the discs into the canal.

                           ***
     Q: Now, were these issues that existed before the motor vehicle
     accident of February 2012?

     A: In regard to her neck, I do not believe so.

     Q: Okay. What about other diagnostic tests?

     A: She had an x-ray, a plain film that was done at Harrisburg Hospital
     I believe right after her accident, and that showed that she had some
     straightening of her normal cervical lordosis which is typically
     indicative of muscle spasm. . . . The normal neck is in a C, has a C-
     shape[]. And hers rather than having the C, the neck was straight.

     Q: Okay. And what is a spasm in that regard?

     A: That’s when you will have a neck injury. The muscles around the
     cervical spine or the neck can become very tight. . . . And that makes
     the C become straight.

     Q: Well, Doctor, given the history, your physical exam, your review of
     the diagnostic tests, did you formulate a diagnosis?

     A: The diagnosis was a cervical sprain, strain and a lumbosacral
     sprain, strain. . . . Basically she had injured her neck and low back,
     but I did not feel that there would be anything that would be surgical.
     . . . At that point I recommended she try an epidural steroid injection
     into her neck.

     Q: Why? What is that designed to do?

     A: What we do is I have a pain management physician inject the
     epidural space which actually goes into the canal. And the epidural
     steroid injection, the intent is, it’s the most potent anti-inflammatory
     medicine we could give one and it really helps with inflammation and
     pain.

     Q: All right. Did she do that?



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     A: Yes. . . . I sent her to Susquehanna Pain Management to Dr.
     Haueisen. Then Dr. Haueisen performed the trans-foraminal epidural
     steroid injection. . . . It’s just an injection into the neck. . . . I saw her
     [again] on 5-17-2013. . . . She reported that with the epidural steroid
     injection that she had in her neck, she actually was markedly
     improved and the headaches she was having were much better. . . .

     Q: Okay. Was she still using any medication?

     A: Motrin.

     Q: All right. How about the back, had that-- what is the story there?

     A: She was continuing to have intractable low back pain.

     Q: What do you mean intractable?

     A: Where it is just unremitting. It’s there all of the time.

     Q: Did you examine her that day?A: I did. . . . Basically it was pain
     with bending in extension of her lumbar spine, and also she had a lot
     of tenderness involving her lumbar spine, the low back. . . . At that
     point, I felt that since she had done quite well with the epidural steroid
     injection in the neck, I thought that we should consider an epidural
     steroid injection in her lumbar spine.

     Q: Did she do that?

     A: Yes. . . . That was on June 26, 2013.

     Q: And again, could you tell us when she came in to see you the end
     of June 2013, what was the history?

     A: At that point she was doing quite well. She had had the epidural
     steroid injection in both her neck and low back. . . . Her headaches
     were markedly improved. She had no problems in her arms or her
     legs. And at that point, I felt that there was really no further
     treatment that . . . she would need from me.    . . . I recommended
     that she continue the exercises that she had learned in physical
     therapy, and then she could also use something called H-wave which is
     a TENS unit, and also home traction, the home traction device.

Id. at 7-13.


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      At the conclusion of direct examination testimony, Dr. Dahl opined that

within   a   reasonable   degree   of   medical   certainty,   Hernandez-Lerch’s

“headaches, the neck injury and low back injury were a direct result of the

accident on February 12, 2013.”     Id. at 13.     On   cross-examination,   Dr.

Dahl acknowledged that Hernandez-Lerch had been seen prior to this

accident by Dr. Demuth, another doctor in his practice, for low back pain.

Id. at 16.

      Hernandez-Lerch also testified.     She explained that she had suffered

from low back pain prior to the February 12, 2013 accident, having injured

her lower back in an automobile accident in December 1997.          She suffered

a herniated bulging disc, and was treated at the Orthopedic Institute of

Pennsylvania. N.T. Trial, 8/18/14, at 161-62.

      With respect to the February 12, 2013 accident, Hernandez-Lerch

testified that she did in fact tell the ambulance personnel that she had

suffered a previous back injury and that she asked for Prednisone right

away. She stated that she knew “this was going to exacerbate the situation.

I needed medication for that.” Id. at 178.        She also testified that she had

two injections in her neck and one in her back, and that after the injections

she did feel better and was able to walk on a treadmill and continue her

Zumba classes, but with low impact modification.           Id. at 183-84.    She

explained, however, that the injections did not afford lasting relief, that the

home traction unit helped with headaches, and that she used the TENS unit

“frequently,” and as recently as two days prior to trial.        Id. at 186-91.

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Additionally, Hernandez-Lerch stated that prior to the February accident she

had a low back issue in August, stating, “I do have permission to call the

doctor to get Prednisone.      It’s the only thing that relieves it.   I was in

remission at the time of the accident, meaning from August 15th to February

12th I had no incident of back pain.” Id. at 192.      She also stated at trial

that she continued to get headaches about “twice a month,” that she

continued to have low back pain, and that her “good days do not outnumber

[her] bad days.” Id. at 197.

      The decision in Burnhauser compels reversal in this case.              In

Burnhauser the jury awarded an automobile accident victim no damages

for pain and suffering, limiting damages to the victim’s unreimbursed

medical expenses. This Court held that since opposing experts both agreed

that the victim had suffered soft tissue injuries, which would require up to

six months to resolve, the verdict was against the weight of the evidence.

Burnhauser, 745 A.2d at 1261.         We stated: “The jury should not have

limited the damage award to her unreimbursed medical expenses. Clearly,

these injuries are of the types that normally involve pain and suffering.” Id.

      Here, as in Burnhauser, the evidence was undisputed that as a result

of the February 12, 2013 collision, Hernandez-Lerch suffered cervical and

lumbar sprain and strain, that she suffered neck and low pain from these

injuries, as well as aggravation of her prior low back injury, and that these

injuries took at least four months to resolve.       Defendant Gray did not

present expert testimony.   As our Supreme Court stated in Thompson v.

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Iannuzzi, 169 A.2d 777 (Pa. 1961):       “It is true that the jury is the final

arbiter of facts but it may not, in law, ignore what is patent to the eye,

obvious to the mind and clear to the normal process of ordinary

computation.” Id. at 778-79.

      The fact that Hernandez-Lerch suffered pain from a previous accident,

sixteen years prior, does not negate the undisputed evidence that her

injuries were caused by the February 12, 2013 accident, and that those type

of injuries cause pain.   The jury’s award, therefore, bears no reasonable

relation to the injuries suffered by Hernandez-Lerch.      Burnhauser, 745

A.2d at 1261. See also Hobbs v. Ryce, 769 A.2d 469 (Pa. Super. 2001)

(jury verdicts awarding zero damages are against weight of evidence where

undisputed medical evidence reveals plaintiff suffered injuries in accident of

type normally associated with pain and suffering).

      Based on the uncontested evidence of Hernandez-Lerch’s cervical and

lumbosacral strain and sprain, as well as post-concussive syndrome,

headaches, and unremitting low back pain, we conclude that Hernandez-

Lerch suffered compensable pain that amounted to more than a mere

transient rub of life. Boggavarpu, supra.

      Judgment reversed and case remanded for a new trial limited to a

determination of damages. Jurisdiction relinquished.

      Judge Platt joins the Memorandum.

      Judge Panella notes his dissent.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/17/2016




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