J-A28008-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JAMES MCGEE                                      IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

ST. LUKE’S HEALTH NETWORK D/B/A ST.
LUKE’S HOSPITAL & HEALTH NETWORK,
AND JOHN P. BRUNO, DO, MBA.

                            Appellee                   No. 425 EDA 2016


              Appeal from the Judgment Entered February 2, 2016
                In the Court of Common Pleas of Lehigh County
                      Civil Division at No(s): 2012-C-5192


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

MEMORANDUM BY PANELLA, J.                            FILED MARCH 07, 2017

        Appellant, James McGee, appeals from the judgment entered after the

trial court denied his post-trial motion for a new trial on damages and

granted appellees’, St. Luke’s Health Network (“St. Luke’s” or “the hospital”)

and John P. Bruno, D.O., M.B.A., post-trial motion for remittitur. McGee

contends that the jury’s verdict for his breach of contract claims bore no

relation to the evidence at trial, and he therefore is entitled to a new trial on

damages. In the alternative, he argues the trial court committed an error of

law by ignoring an alleged compromise verdict reached by the jury and

reducing the verdict by $51,998. After careful review, we affirm.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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      Dr. McGee was employed by St. Luke’s as an attending physician

when, in September 2005, the hospital suspended him. St. Luke’s imposed

the suspension pending an investigation into allegations of conduct that

violated Dr. McGee’s employment agreement. St. Luke’s subsequently

terminated Dr. McGee’s employment.

      Thereafter, at Dr. McGee’s request, Dr. Bruno, St. Luke’s Vice

President for Medical Affairs, sent a reference letter to a third party hospital

from which Dr. McGee was seeking employment. Dr. Bruno referenced the

investigation, and the allegations that instigated it. The allegations conveyed

by Dr. Bruno’s letter were that: (1) Dr. McGee failed to provide a screening

exam for a patient that had presented at St. Luke’s emergency room (“ER”);

(2) Dr. McGee had dated a patient; and (3) Dr. McGee had written a

prescription for his personal use in the name of another individual. Dr. Bruno

asserted that the results of the investigation led the hosptial to terminate Dr.

McGee’s employment.

      In 2008, Dr. McGee instituted an action against St. Luke’s and Dr.

Bruno, which ultimately asserted that the defendants had defamed him and

interfered with his current and prospective business relations. In 2009, the

parties presented the terms of a settlement agreement on the record. The

trial court approved and adopted this agreement as an order of court.

      Attached to the court order was a form letter which St. Luke’s was

directed to use in all future communications regarding Dr. McGee’s


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employment by the hospital. The form letter stated that “St. Luke’s Hospital

terminated its employment agreement with Dr. McGee effective September

30,   2005   for   what   it   considered   the   exercise   of   poor   judgment.”

Furthermore, the letter provided two bases for St. Luke’s conclusion that Dr.

McGee had exercise poor judgment: (1) that Dr. McGee had not performed a

screening exam on a patient that had presented at St. Luke’s emergency

room; and (2) that Dr. McGee had prescribed a narcotic to a patient/friend,

and had subsequently used the portion of the prescription unused by his

patient/friend to treat his own injury. The letter does not reference any

allegation that Dr. McGee had dated a patient.

      Over the next four years, St. Luke’s and Dr. Bruno consistently utilized

the form letter when requested to provide a reference for Dr. McGee.

However, twice in 2011 Appellees sent an alternate letter that contained an

allegation that St. Luke’s Hospital had terminated Dr. McGee’s employment

“for what [it] considered the exercise of poor judgment in the handling and

treatment of patients and medications.” Furthermore, the letter provided not

only the two bases for St. Luke’s conclusion that were contained in the

agreed upon form letter, but also the allegation that Dr. McGee had “dated a

woman who had previously been admitted and discharged as his patient.”

      St. Luke’s sent the first of these letters to the Arizona Medical Board,

which was reviewing Dr. McGee’s application for medical privileges in the

state of Arizona. In his reply brief, Dr. McGee concedes, “there is no


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evidence that Dr. McGee suffered damages as a result of the [Arizona

Medical Board] breach.” Appellant’s Reply Brief, at 16.

        St. Luke’s sent the second letter to Carlisle Regional Medical Center

(“CRMC”) which was considering employing Dr. McGee in its emergency

room through CRMC’s contract with a staffing company, EMCare. After

receiving the letter from St. Luke’s, CRMC declined to grant medical

privileges to Dr. McGee and he was denied employment in the emergency

room.

        After several rounds of contentious back and forth with St. Luke’s and

its agents, Dr. McGee discovered the existence of the two reference letters

that did not follow the agreed upon form letter. Dr. McGee subsequently filed

suit, asserting that St. Luke’s and Dr. Bruno had defamed him, interfered

with his past and future business relationships, and breached the settlement

agreement.

        At trial, Appellees’ defense centered on a theory that the letters did

not cause any damage to Dr. McGee. Appellees argued that Dr. McGee’s own

misrepresentations in his applications to CRMC and the Arizona Medical

Board were the cause of any lost earnings. Appellees did not present any

expert to rebut the expert testimony provided by Dr. McGee regarding the

amount of damages.

        The jury returned a defense verdict on all tort claims, but found in

favor of Dr. McGee on his two breach of contract claims. On each claim, the


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jury allocated $26,000 of liability against St. Luke’s and Dr. Bruno. In

response to a request for clarification, the jury indicated that the overall

award would be $26,000 against each defendant for each breach, and

therefore the total award would be $104,000.

      Both parties filed post-trial motions. Dr. McGee contended that jury’s

computation of damages was erroneous, as his evidence of damages was

unrebutted. Appellees argued that there was no legal basis for the award of

anything more than nominal damages on the verdict for the letter sent to

the Arizona Medical Board.

      The trial court denied Dr. McGee’s motion, reasoning either that the

jury had discredited Dr. McGee’s damages expert, or that the verdict was

the result of a jury compromise. However, the trial court granted Appellees’

post-trial motion, concluding that it should have instructed the jury that the

evidence at trial did not support an award of more than nominal damages if

it found that they had breached the settlement agreement by sending the

letter to the Arizona Medical Board. The trial court therefore molded the

verdict to reduce the awards on the Arizona Medical Board claim to $1 each.

The trial subsequently reduced the molded verdict to judgment, and this

timely appeal followed.

       Dr. McGee first argues that the trial court erred in not granting him a

new trial on damages. He contends that the jury’s verdict is unsupported by

the evidence at trial, as Appellees did not present any expert evidence to


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rebut the calculations made by his economics expert, Andrew Verzilli. Verzilli

testified that Dr. McGee suffered between $288,638 and $513,222 of lost

and future earnings due to his failure to be credentialed at CRMC.

      “Our standard of review from an order denying a motion for a new trial

is whether the trial court committed an error of law, which controlled the

outcome of the case, or committed an abuse of discretion.” Mirabel v.

Morales, 57 A.3d 144, 150 (Pa. Super. 2012) (citation omitted). “A trial

court commits an abuse of discretion when it rendered a judgment that is

manifestly unreasonable, arbitrary, or capricious, has failed to apply the law,

or was motivated by partiality, prejudice, bias, or ill will.” Id. (citation

omitted).

      Unless an error of law controls the outcome of a case, we will not

reverse an order denying a new trial. See Lockley v. CSX Transportation,

5 A.3d 383, 388 (Pa. Super. 2010). “[A] litigant is entitled only to a fair trial

and not a perfect trial.” Id. at 392 (citation omitted).

      Dr. McGee asserts that, pursuant to precedent such as Kiser v.

Schulte, 648 A.2d 1 (Pa. 1994), Neison v. Hines, 653 A.2d 634 (Pa.

1995), and Carroll v. Avallone, 939 A.2d 872 (Pa. 2007), the jury’s award

of less than $288,638 shocks the conscience as it bears no relation to the

uncontroverted facts at trial. Appellees note that these three cases are tort

cases, and therefore are not directly controlling in this appeal, as the basis

for liability was breach of contract. We agree with Appellees that these cases


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are not controlling, but conclude that the reasoning applied in these cases is

persuasive, and we can find no reason not to apply it in this case.

      The general rule in Pennsylvania is that the jury has the freedom to

reject all, part, or none of the testimony of any witness. See Neison, 653

A.2d at 637. “The duty of assessing damages is within the province of the

jury and should not be interfered with by the court, unless it clearly appears

that the amount awarded resulted from caprice, prejudice, partiality,

corruption or some other improper influence.” Tonik v. Apex Garages,

Inc., 275 A.2d 296, 299 (Pa. 1971) (citation omitted). However, the jury’s

verdict “must bear some reasonable relation to the loss suffered by the

plaintiff as demonstrated by uncontroverted evidence presented at trial.”

Neison, at 637 (citation omitted, emphasis supplied). As a result, when a

defense expert concedes that the defendant’s negligence caused some injury

to the plaintiff, a jury verdict may not find that the plaintiff failed to establish

causation for “at least some of the plaintiff’s injuries.” Andrews v. Jackson,

800 A.2d 959, 962 (Pa. Super. 2002) (citation omitted).

      Here, as in Carroll, the issue boils down to “the meaning of

‘uncontroverted,’   …    and   whether     a   defendant’s   failure   to   present

independent evidence on damages comprises de jure acquiescence to a

plaintiff’s expert’s testimony.” Carroll, 939 A.2d at 874. The Carroll Court

reviewed Kiser:

      In Kiser, the expert testified the net economic loss resulting
      from the teenage decedent’s death was between $232,400 and

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      $756,081.43. As here, the defense did not present its own
      expert, but extensively cross-examined the plaintiff’s expert. The
      $232,400 figure was conceded only after defense counsel
      suggested the 40% “personal maintenance” deduction was
      appropriate. The expert testified he would reduce the net
      economic loss to 232,400 on the bottom end of the range. This
      Court stated, “Thus, the uncontroverted testimony at trial was
      that the net economic loss that would result from [the teenage
      decedent’s] death ranged from $232,400.00 to $756,081.43.”
      That is, what was uncontroverted was the minimum estimate of
      $232,400, which was conceded after cross-examination. The
      original range was not uncontroverted simply because the
      defense presented no evidence – the cross-examination
      challenged that evidence. Therefore, the jury award of about
      11% of the uncontroverted range was inadequate.

Id., at 874-875 (citations omitted).

      In contrast, the Carroll Court found that in the case before it, the

defense had challenged the plaintiff’s expert’s presumptions during cross-

examination. See id., at 875. In particular, the defense had questioned the

expert’s presumptions that the decedent would have sought employment as

a nurse when the expert calculated future lost earnings. See id. “The

evidence at trial, therefore, does not allow the conclusion [that] that expert’s

opinion was ‘uncontroverted.’” Id.

      We hesitate to describe the cross-examination of Verzilli in this case as

“extensive,” but we do agree with Appellees that Verzilli’s testimony was

challenged in a manner similar to Carroll. The following passage is

indicative of the defense’s approach to Verzilli’s testimony:

      Q.    So you assume that his [Dr. McGee’s] termination from St.
      Luke’s would have no effect on his future earning capacity; is
      that correct?


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      A.     Yeah. I didn’t really – I mean, I assumed it didn’t because
      I – I looked at that he had this, the Carlisle opportunity, which
      clearly was a measure of his potential and some opportunity for
      him to earn income.

      Q.     I guess that’s what I’m getting at. You looked at this
      Carlisle opportunity, correct? How did you draw the conclusion
      that Dr. McGee could reasonably expect to have received that
      Carlisle opportunity, that job?

      A. That’s – I think that’s why we’re here. I’m not here on
      causation. I’m here as had he gotten this job. I’m making that
      assumption, this was his potential in this type of job. That’s what
      this type of analysis is. I don’t make a judgment as to why that
      didn’t happen.

N.T., Trial, 8/24/15, at 253-254.

      Furthermore, it is clear from the record that Appellees challenged Dr.

McGee’s assertion that the erroneous letters were the cause of his loss of

employment. Appellees presented the Pennsylvania Standard Application for

Physicians submitted by Dr. McGee to CRMC. Page eight of the application

asks the applicant to indicate, among others, if his “Employment by any

hospital, institution, or the military” or “Clinical privileges or other rights on

any hospital medical staff” have been, or are currently in the process of

“being denied, revoked, not renewed, suspended, limited, restricted, placed

on probation, or placed under other disciplinary action, either voluntarily or

involuntarily in this or any other state?” (emphasis supplied). Dr. McGee

answered “no” to both questions. See N.T., Jury Trial, 8/21/15, at 125.

      He testified that he believed that these were honest answers. See id.

He further believed that the agreed upon form letter was worded in a way


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that was consistent with his answer on the standard application. See id.

However, the form letter provides, in relevant part that “St. Luke’s Hospital

terminated its employment agreement with Dr. McGee,” and “Dr. McGee’s

medical staff privileges expired automatically with the termination of this

contract.” Thus, the jury had a reasonable basis to infer that Dr. McGee was

being far less than completely honest on the standard application he

submitted to CRMC. Thus, Appellees were able to present evidence that the

erroneous letters were not the only cause of CRMC’s decision to deny Dr.

McGee employment.

      Under these circumstances, we conclude that the jury was entitled to

disbelieve some or all of the testimony of Verzilli based upon the challenges

to his assumptions. Nor do we conclude that Dr. McGee has established that

the jury’s verdict was based upon evidence of attorney’s fees paid by Dr.

McGee during his quest to get St. Luke’s to produce the letter it sent to

CRMC, rather the appropriate basis of its finding of lost past and future

wages. Such a conclusion based upon the record before us would be no

more than speculation, and would not demonstrate the appropriate

deference to the fact-finding responsibilities of the jury. We therefore

conclude that Dr. McGee’s first issue on appeal merits no relief.

      In his second issue, Dr. McGee contends that the trial court erred in

reducing the jury’s verdict based upon the erroneous letter sent to the

Arizona Medical Board. “The duty of assessing damages is within the


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province of the jury and should not be interfered with by the court, unless it

clearly appears that the amount awarded resulted from caprice, prejudice,

partiality, corruption or some other improper influence.” Betz v. Erie

Insurance Exchange, 957 A.2d 1244, 1264 (Pa. Super. 2008) (citation

omitted). “The question is whether the award of damages falls within the

uncertain limits of fair and reasonable compensation or whether the verdict

so shocks the sense of justice as to suggest that the jury was influenced by

partiality, prejudice, mistake or corruption.” Haines v. Raven Arms, 640

A.2d 367, 369 (Pa. 1994).

      As noted above, the trial court determined that there was no evidence

supporting actual damages on that count, and therefore reduced the verdict

to $1 each against St. Luke’s and Dr. Bruno. Dr. McGee concedes that “the

evidence does not support an award greater than nominal damages for the

[Arizona Medical Board] breach[.]” Appellant’s Brief, at 44. However, he

argues that the verdict represented a compromise verdict reached by the

jury and should not be disturbed. See Appellant’s Brief, at 45 (“Assuming,

arguendo, that the CRMC breach was the product of compromise, the

identical award for the [Arizona Medical Board] breach is part of the same

compromise.”)

      We again refuse to speculate on the nature of the verdict reached by

the jury. The verdicts based upon the erroneous letter sent to CRMC are

supported by sufficient evidence, and therefore we have no reason to


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categorize those verdicts as compromise verdicts. We thus have no reason

to assume that the Arizona Medical Board breach verdicts were part of a jury

compromise. The trial court appropriately molded the verdict to reflect what

all parties agree the record reflected. Dr. McGee’s second and final issue

merits no relief.

      Judgment affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/7/2017




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