J-A20039-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 MATTHEW D. SINGER                       :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                   Appellee              :
                                         :
              v.                         :
                                         :
 STATE FARM MUTUAL AUTOMOBILE            :
 INSURANCE COMPANY                       :
                                         :
                   Appellant             :        No. 309 MDA 2019

              Appeal from the Order Entered January 24, 2019
            In the Court of Common Pleas of Lackawanna County
                    Civil Division at No(s): 2015-02859


BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY GANTMAN, P.J.E.:                   FILED OCTOBER 01, 2019

      Appellant, State Farm Mutual Automobile Insurance Company (“State

Farm”), appeals from the order entered in the Lackawanna County Court of

Common Pleas, which granted the post-trial motion of Appellee, Matthew D.

Singer, for a new trial on damages. We affirm.

      In its opinions, the trial court correctly sets forth the facts and

procedural history of this case. Therefore, we have no reason to restate them.

      State Farm raises the following issue for our review:

         WHETHER THE TRIAL COURT COMMITTED AN ABUSE OF ITS
         DISCRETION IN GRANTING THE MOTION OF [APPELLEE]
         FOR POST-TRIAL RELIEF AND THEREBY OVERTURNING THE
         JUNE 27, 2018 VERDICT OF ZERO ($0) BY THE JURY AND
         GRANTING [APPELLEE] A NEW TRIAL WHERE THE JURY HAD
         A COPIOUS AMOUNT OF COMPELLING EVIDENCE BEFORE IT
         TO QUESTION THE CREDIBILITY OF [APPELLEE]…AND/OR
         TO SUPPORT ITS DECISION THAT [APPELLEE] DID NOT
         SUSTAIN ANY COMPENSABLE INJURY SUCH THAT THE
J-A20039-19


         JURY’S VERDICT DID NOT SHOCK ONE’S SENSE OF JUSTICE
         AND WAS NOT AGAINST THE WEIGHT OF THE EVIDENCE,
         AND WHERE THE TRIAL COURT IGNORED ALL OF THIS
         COMPELLING EVIDENCE IN ITS DECISION TO SUBSTITUTE
         ITS OWN JUDGMENT IN THE PLACE OF THE JURY’S
         CONSIDERED VERDICT IN A MANIFESTLY UNREASONABLE
         MANNER.

(State Farm’s Brief at 3).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinions of the Honorable James A.

Gibbons, we conclude Appellant’s issue merits no relief.         The trial court

opinions comprehensively discuss and properly dispose of the question

presented. (See Trial Court Opinion, filed March 7, 2019, at 1-2) (relying on

Post-Trial Motion Memorandum and Order, filed January 24, 2019, at 3-7)

(finding: Appellee was involved in automobile collision; Appellee’s and State

Farm’s medical experts agreed Appellee sustained neck muscle injury that

required ongoing treatment; this type of injury normally involves pain and

suffering; based on experts’ testimony, jury had no reason to think Appellee

suffered no pain; absent evidence of any pre-existing condition or prior injury

that would have caused Appellee’s pain, jury’s decision to disregard

uncontested evidence of Appellee’s injury and award $0 in damages for pain

and suffering bore no rational relationship to evidence presented at trial; jury’s

verdict was contrary to weight of evidence, warranting new trial on damages).

Accordingly, we affirm based on the trial court opinions.

      Order affirmed.


                                      -2-
J-A20039-19


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/01/2019




                          -3-
                                                                                 Circulated 09/06/2019 12:57 PM




MATTHEW D. SINGER                                               In the Court of Common Pleas of
                                                                Lackawanna County
                 Plaintiff
         V.
                                                                Civil Division

STATE FARM MUTUAL
AUTOMOBILE INSURANCE COMPANY:

                 Defendant


                                   MEMORANDUM & ORDER

GIBBONS, J.

    I.        Background

         This matter arises from a motor vehicle accident that occurred on June 24, 2011 on Route

507 in Palmyra Township, Pike County, Pennsylvania. Plaintiff, Matthew Singer was operating a

2005 Honda Accord and was traveling in a southerly direction on Route 507 when the tortfeasor,

Tamara Swingle, who was traveling directly behind the Plaintiff on Route 507 contacted the rear

of the Plaintiffs vehicle. At the time of the accident Plaintiff was insured under an automobile

policy issued by Defendant, State Farm Mutual Automobile Insurance Company ("State Farm")

which provided Plaintiff with coverage for underinsured motorist benefits. Plaintiff settled his

claim against the third party tortfeasor and then proceeded to pursue a claim for underinsured

motorist benefits under the State Farm policy. The parties were unable to resolve the UIM claim,

and the matter proceeded to trial here on June 25, 26 and 27, 2018.

         At trial, Plaintiff presented the testimony of Plaintiff, Matthew Singer, as well as Dr.

Cheryl Bernstein, Plaintiffs treating pain management specialist; William Fetter, Ph.D.,

Plaintiffs treating psychologist; and Dr. Michael Drass, a pain management specialist who had

been engaged by State Farm to conduct a peer review of treatment provided by Dr. Bernstein.

                                                    1   r��i�LS'
                                                        \V      ��o
                                                            FROM THE RECORD

                                                               MAR 1 5 2019
                                                        CLERK OF JUDICIAL RECORDS
                                                              MAURI 8. KELLY
    The defense presented testimony of defense medical expert, Dr. Daniel Bursick, a neurosurgeon

    who had been hired by State Farm to perform an Independent Medical Evaluation; and Carley

    Cotteta, an investigator with Insight Investigation. Following the presentation of evidence and

    arguments, the jury returned a verdict awarding zero (0) dollars to the Plaintiff for non-economic

    damages.1

             Plaintiff filed the instant Motion for Post-Trial Relief on July 3, 2018 seeking the jury's

    verdict to be set aside and a new trial to be awarded, and Defendant responded in opposition to

    Plaintiffs motion on July 27, 2018. All Parties submitted briefs on the issue. Oral Arguments on

    the Plaintiffs motions were heard on August 23, 2018 and the matters are ripe for decision. For

    the following reasons, the Plaintiff's Motion for Post-Trial Relief is granted.

       II.       Standard of Review

             Rule 227.1 of the Pennsylvania Rules of Civil Procedure states that "[a]fter trial and upon

the written Motion for Post· Trial Relief filed by any party, the court may order a new trial as to

all or any of the issues.'' Pa.R.C.P. No. 227.l(a)(l). A trial court may only grant a new trial when

the jury's verdict is so contrary to the evidence that it "shocks one's sense of justice." Neison v.

Hines, 653 A.2d 634, 636 (Pa. 1995). It is the responsibility of the jury to assess the testimony

and to accept or reject the estimates given by witnesses, and "[i]f the verdict bears a reasonable

resemblance to the proven damages, it is not the function of the court to substitute its judgment

for the jury's." Elza v. Chovan, 152 A.2d 238, 240 (Pa. 1959). The jury is free to believe all,

some, or none of the testimony presented by a witness. Neison, 653 A.2d at 637. This 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



I
    The issues of liability and causation<l*t   rio\�U- to the jury for determination.
                                                             -2
plaintiff as demonstrated by uncontroverted evidence presented at trial." Id; see Elza, 152 A.2d

at 240. "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." Id. There should be nothing difficult about a

decision to grant a new trial for inadequacy of a jury verdict: "the injustice of the verdict should

stand forth like a beacon." Elza, 152 A.2d at 241.

    III.       Discussion

           In this instance, Plaintiff seeks a new trial because the jury's verdict award of zero (0)

dollars for pain and suffering bears no rational relationship to the evidence produced at trial, and

defies common sense and is indeed shocking.

    a. Granting a New Trial Where a Jury Fails to Award Damages for Pain and Suffering

           As a general proposition, victims must be compensated for all that they suffer from the

tort of another. Boggavarapu v. Ponist, 542 A.2d 516, 518 (1988) (citing Spangler v. Helm's
                        \

New York-Pittsburgh Motor Exp., 153 A.2d 490 (1959)). A jury award can be set aside as

inadequate where "it clearly appears from uncontradicted evidence that the amount of the verdict

bears no reasonable relation to the loss suffered by the plaintiff." Burnhauser v. Bumberger, 745

A.2d 1256, 1261 (Pa. Super. 2000). When a jury awards medical expenses, but declines to award

damages for pain and suffering, the award may be inconsistent because pain usually follows

injury. Davis v. Mullen, 773 A.2d 764, 769-70 (Pa. 2001).

           The Supreme Court has upheld the authority of trial courts to order new trials where the

jury's award of medical expenses, without awarding damages for pain and suffering, was

inconsistent and totally inadequate. Davis, 773 A.2d at 767. On this issue however, the Supreme

Court has given seemingly inconsistent holdings. The Court has affirmed trial court decisions



                                                     3
granting new trials where juries awarded medical expenses but awarded no damages for pain and

suffering. See e.g., Todd v. Bercini, 92 A.2d 538 (Pa. 1952) and Yacabonis v. Gilvickas, 101 A.2d

690 (Pa. 1954). The Court has also upheld jury verdicts awarding medical expenses without

corresponding awards for pain and suffering. See e.g., Catalano v. Bujak, 642 A.2d 448 (Pa.

1994), and Boggavarapu v. Ponist, 542 A.2d 516 (Pa. 1988).

       In Davis, the Court synthesized these holdings, ruling that a jury's award of medical

expe�ses without compensation for pain and suffering should not be disturbed where the trial

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

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

pain and suffering. Davis, 773 A.2d at 767.

    b, Compensable Pain

        In cases where "a defendant concedes liability and his or her expert concedes injury

resulting from an accident that would reasonably be expected to cause compensable pain and

suffering, the jury's verdict is against the weight of the evidence where it finds for the

defendant." Majczyk v. Oesch, 789 A.2d 717, 722 (Pa. Super. 2001). "The existence of

compensable pain is an issue of credibility and juries must believe that plaintiffs suffered pain

before they compensate for that pain." Davis, 773 A.2d at 769.

        In Boggavarapu, the Court found that human experience teaches everyone that there are

some obvious injuries which always have accompanying pain, and a jury may not disregard such

pain. Boggavarapu, 542 A.2d at 518. The Court listed examples of those injuries: "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." Id However, in other instances where there is no such objective



                                                   4
injury, pain may be subjective, and if believed is compensable, however jurors are not compelled

to find pain where there was no objective injury. Id. at 518-19.

       In Nelson v. Hines, the plaintiff was injured in a car accident caused by the defendant's

negligence and filed suit alleging personal injury. 653 A.2d at 637. Liability was admitted and at

trial plaintiff offered two doctors who testified that the plaintiff suffered inflammation of the

muscle tissue, and cervical strain as a result of the car accident. Id. The defendant's own expert

also testified that the plaintiff suffered a neck sprain and a scapular or shoulder blade sprain as a

result of the accident. Id. The jury returned a verdict in favor of the defendant, awarding no

damages to the plaintiff. Id. at 636. The plaintiff filed post-trial motions seeking a new trial on

the basis that the jury verdict was contrary to the instructions of the court and/or was contrary to

the evidence. Id. The trial court granted a new trial and defendant appealed to the Superior Court

which reversed. Id. The Supreme Court granted allocatur and found, in light of the uncontested

evidence that plaintiff suffered soft tissue injuries as a result of the accident, the trial court did

not abuse its discretion in granting a new trial. Id. at 637-38.

        In reaching its decision, the Court found that in a severe automobile collision, such as the

collision which occurred in that case, common sense would dictate that severe and painful

injuries would be a result. Id. at 638. The Court found that plaintiffs injuries were the type that

obviously caused pain rather than a subjective complaint of pain, and further both plaintiff's

experts and the defendant's expert agreed on the injuries suffered. Id. at 638-39. Because of the

fact that Ms. Neison suffered from objective injuries that were not "vigorously contested," the

Court found that the jury was not free to disregard them. Id. at 639. Thus the jury's decision to

award no damages for pain and suffering "bears no rational relationship to the evidence produced




                                                     5
at trial. .. to disbelieve all the evidence presented during the trial defies common sense and is

indeed shocking." Id.

       In this case, Mr. Singer was involved in a serious automobile collision and it was

uncontested by both Plaintiff's experts and Defendant's expert that Mr. Singer sustained a neck

muscle strain and sprain as a result of the collision. Plaintiff's expert, Dr. Cheryl Bernstein

testified via video deposition at trial that her diagnosis "is chronic cervicalgia or chronic cervical

myofascial pain with pain flares." Exhibit A, Notes of Testimony ("N.T."), June 19, 2018, p. 28.

Dr. William J. Fetter, the Plaintiffs psychologist also testified via video deposition at trial that

Mr. Singer suffered from depression and "[t]he cause of the depression was the pain ... I can

understand that the pain was caused by the accident." Exhibit B, N.T. 06/8/18, p.34. Dr. Michael

Drass, a pain management specialist retained by the Defendant to perform a peer review of Dr.

Bernstein's treatment of the Plaintiff, testified via video deposition that=the treatment rendered

by Dr. Bernstein and the other physicians involved in his care was medically reasonably

necessary. And I was also of the opinion that he would continue to need ongoing treatment."

Exhibit C, N .T., 06/19/18, p. 14-20. Defendant's own expert, Dr. Daniel Bursick, a neurosurgeon

who performed an IME on the Plaintiff testified via video deposition at trial "[m]y opinion is Mr.

Singer had a minor flexion/extension neck sprain injury at the time of the accident." Exhibit D,

N.T., 06/18/18, p.47. He also testified that this injury sustained by the Plaintiff would take six to

twelve months to resolve. Id. at p. 59.

        All medical experts at trial agreed that Mr. Singer sustained a neck muscle injury that

required ongoing treatment as a result of the automobile collision. As the Court found in

Boggavarapu, this is the type of objective injury that normally involves pain and suffering.

Based on the experts' testimony, the jury had no reason to believe Mr. Singer did not suffer pain



                                                    6
and there was no evidence that Mr. Singer had a preexisting condition or injury prior to the

accident which would have been the cause of his pain. The jury's decision to disregard the

uncontested evidence of the Plaintiff's injury and award zero (0) dollars for pain and suffering

bears no rational relationship to the evidence produced at trial. Therefore, the jury's verdict is

contrary to the weight of the evidence and is set aside; a new trial is awarded.

    IV.      Conclusion

          For the foregoing reasons, we will grant the Plaintiffs Motion for Post-Trial Relief. An

appropriate Order follows.




                                                    7
;-,.,




         MATTHEWD. SINGER                                                In the Court of Common Pleas of
                                                                         Lackawanna County
                       Plaintiff
                v.
                                                                         Civil Division
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                                                     ORDER
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         GIBBONS, J.                     .                                  .
                             ]..L)�
                NOW, this                of January, 2019, upon consider�ti�n .of·Plain�iff's Motion, the

        . Defendant's response thereto, briefs submitted by both parties, and oral argument, it is. hereby

        · ORDE�D that the Motion forPost Trial Relief filed by Plaintiff Matthew D. Singer in the above

         captioned matter is GRANTED;



                                                                   BY THE COURT




                                                                      es A. Gibbons
                                                                   Lackawanna County Court   of Common Pleas


                                                     ··, ..>   .
--,



      cc:          Written notice of the entry of ihe foregoing Order has been provided to each parry by mailing time-stamped
      copies to:



      For-Plaintiff:                 Kevin M. Conaboy, Esq.'
                                     Abrahamsen, Conaboy & Abrahamsen, P.C.
                                    , l 006 Pittston A venue ·
                                      Scranton, PA 18505

                                     kconaboy@law-aca.com


      For Defend�t:                  Stephen T: Kopko, Esq.
                                    'Foley, Comerford & Cummins
                                     700 Electric Building
                                     507 Linden Street
                                     Scranton, PA 18503

                                     Stephen.t.kopko@gmail.com




                                                                                                                      . ··,�
 "
                                                                                                                         Circulated 09/06/2019 12:57 PM




 MATTHEW D. SINGER,
                        Plaintiff,

 vs.
                                                                      Civil Action - Law
 STATE FARM MUTUAL AUTOMOBILE
 INSURANCE COMPANY,

                                                                                                             �1N
                Defendant.                                                2015-CV-2859
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                                                                                                                    -
                                                                                                             :.::
                                  Pa.R.A,P. 1925Cal OPINION

       We issue this Opinion under Pa:R.A.P. 1925(a)(2)(ii) with regard to Defendant
 State Farm Automobile Insurance Company's appeal of our January 24, 2019
 Memorandum and Order granting Plaintiff's Motion for Post-Trial Relief and awarding
 him a new trial.

        This matter arises out of a motor vehicle accident on June 24, 2011. Plaintiff was
 insured under an automobile insurance policy issued by Defendant, State Farm Mutual
 Automobile Insurance Company, which provided Plaintiff with coverage for underinsured
 motorist benefits. Plaintiff settled his claim against a third-party tortfeasor but was
 unable to resolve the UIM claim with Defendant. The matter proceeded to a jury trial on
 June 25, 2018. At trial, liability was not at issue and the sole question presented for the
 jury's consideration was the amount of damages.
        After three days of evidence and argument, the jury returned a verdict awarding
 zero "o" dollars to the Plaintiff for non-economic damages on June 2.T. 2018.

        Plaintiff filed his Motion for Post-Trial Relief on July 3, 2018 seeking the jurys
 verdict to be set aside and a new trial be awarded. Defendant filed its opposition to
 Plaintiffs Motion on July 27, 2018. After review of the submissions of the parties and
 oral argument, this Court, in its Memorandum and Order of January 24, 2019, granted
 Plaintiffs post-trial motion.

        Defendant filed its Notice of Appeal on February 6, 2019 and its Concise Statement
 of Matters Complained of on Appeal on February 28, 2019.




---------·-··             --...   --   ....... -.:.--,--...... ··�·   •    •   •k,•" ...,----�-··-·-·· ...




                                  tA��uOfO@'.rc)\
                                  \� FROM THE RECORD                                            IY
                                                     MAR 15 20t9
                                  CLERK OF JUDICIAL RECORDS
                                  .,    MAUF<I B KELLY
·----·. · ·.·..·-----------------------------

 ·
  (




             Because the reasons for the Order that Defendant now appeals are set forth in our
      January 24, 2019 Memorandum and Order granting Plaintiffs Motion for Post Trial
      Relief, we will not revisit the issues here.


                                                         BY1HE COURT:
                                                               /}




      cc:    Written notice of the entry of theforegoing Order has been provided to each
      party pursuant to Pa. R. Civ. P. 236 (a)(2) by mailing time-stamped copies to:

      Kevin M. Conaboy, Esquire                          Stephen T. Kopko, Esquire
      Kconaboy@law-aca.com                               Stephen.t.ko.pko@gmail.com
      Counsel/or Plaintiff                               Daniel E. Cummins, Esquire
                                                         dancummins@comcast.net
                                                         Counsel/or Defendant


                                                     2




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