J. A32004/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


NEVIN ABEDINAJ,                            :     IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                         Appellant         :
                                           :
                    v.                     :
                                           :
CABRIYAH MARC,                             :
                                           :
                         Appellee          :     No. 299 EDA 2016

                Appeal from the Judgment Entered March 1, 2016
              In the Court of Common Pleas of Philadelphia County
                         Civil Division at No.: 140200758

BEFORE: DUBOW, RANSOM, AND PLATT, JJ.*

MEMORANDUM BY DUBOW, J.:                          FILED JANUARY 24, 2017

        Nevin Abedinaj (“Appellant”) appeals from the March 1, 2016

Judgment entered by the Philadelphia County Court of Common Pleas

following a jury trial. We affirm.

        The relevant facts, as gleaned from the trial court’s June 14, 2016

Opinion and the certified record, are as follows. On June 29, 2013, Cabriyah

Marc (“Appellee”) rear-ended Appellant while Appellant was stopped in a

vehicle at a stop sign.     The airbags did not deploy and the damage to

Appellant’s car totaled $690. Appellant did not go to the emergency room

after the accident, but he took an Advil. Appellant testified that he had no




*
    Retired Senior Judge Assigned to the Superior Court.
J. A32004/16


medical issue before the accident, but he started experiencing pain in his

neck and lower back immediately after the accident.

       The pain worsened over time, and Appellant received physical therapy

treatment for approximately 6 months. Appellant failed to follow up with an

orthopedist regarding his neck pain, and an Electromyography (“EMG”)

procedure1 in September 2013 showed no nerve damage to Appellant’s

neck. After complaining for the first time of arm pain, Appellant scheduled a

second EMG procedure in March 2014, which showed radiculopathy at three

different levels of his spine. Appellant failed to follow up after the second

EMG.

       Appellant received no treatment from January to October 2014.       In

October 2014, Appellant received a neck injection, but he again failed to

follow up with the doctor.

       The trial court summarized the procedural history as follows:

       [Appellant] filed a complaint in this motor vehicle, limited tort
       matter on February 7, 2014 against [Appellee] in the Court of
       Common Pleas of Philadelphia, First Judicial District of
       Pennsylvania.     On February 6, 2015[,] the parties went to
       compulsory arbitration, where the arbitrators found in favor of
       [Appellant] in the amount of $1,000. [Appellant] then filed an
       appeal for a trial de novo.


1
  Doctor Stepanuk testified at trial and described an EMG procedure in his
deposition: “An EMG is a test where needles are placed, in this case, in the
arm. The needles are moved back and forth. The patient is asked to contract
their muscles, and this sends impulses that are picked up and converted into
waves. The waves are then interpreted, and you can tell whether there is
nerve damage or not.” N.T. Stepanuk Deposition, 8/20/15, at 25-26.



                                     -2-
J. A32004/16


     A [j]ury [t]rial was held on November 19, 2015[,] and November
     20, 2015. [Appellee] did not contest her negligence in causing
     the accident, therefore, the sole issues before the jury was
     whether the [Appellant] suffered serious impairment of a bodily
     function, and whether [Appellee’s] negligence was the factual
     cause in bringing [Appellant’s] harm.

     [Appellant presented expert testimony that his future treatment
     would include cervical spine surgery for approximately $60,000
     and other medication and treatment in the amount of $3,000 per
     year for five years.]

     On November 11, 2015[,] the [j]ury returned a verdict. The
     [j]ury found that [Appellee’s] negligence was a factual cause of
     [Appellant’s] harm, and awarded [Appellant] $3,000 in past
     economic damages. The [j]ury also found that [Appellant] did
     not suffer a serious impairment of a bodily function [and did not
     award any noneconomic damages as a result.]

     On November 30, 2015[,] [Appellant] filed a Motion for Post-
     Trial relief, requesting additur of $75,000 in future economic
     damages, or alternatively a new trial. This [c]ourt denied the
     Motion for Post-Trial relief on December 29, 2015[,] and
     [Appellant] appealed.

Trial Court Opinion, dated 6/14/16, at 1-2 (footnotes omitted).

     Appellant filed a Notice of Appeal on January 7, 2016.2 Both Appellant

and the trial court complied with Pa.R.A.P. 1925.

     Appellant essentially presents the following two issues for our review:


2
   We note that Appellant filed his Notice of Appeal prematurely from the
December 29, 2015 Order. See PA Energy Vision, LLC v. South Avis
Realty, Inc., 120 A.3d 1008, 1012 n.3 (Pa. Super. 2015) (an appeal of a
final order in a civil case lies from the entry of judgment). However, the
trial court entered Judgment on February 29, 2016, thus perfecting
Appellant’s appeal. See Pa.R.C.P. No. 227.4; Prime Medica Associates. v.
Valley Forge Ins. Co., 970 A.2d 1149, 1154 n.6 (Pa. Super. 2009) (“A final
judgment entered during the pendency of an appeal is sufficient to perfect
appellate jurisdiction.”).



                                    -3-
J. A32004/16


      1. Whether [Appellant] is entitled to a new trial when the jury
      verdict was patently against the weight of the uncontested
      evidence presented at trial[?]

      2. Whether [Appellant] was entitled to a molding of the jury
      verdict upwards (i.e., Additur) when the jury verdict was
      patently against the weight of the uncontested evidence
      presented at trial[?]

Appellant’s Brief at 5-7.3

      In his first issue, Appellant claims that the jury’s “verdict awarding

past medical bills to Appellant but no future medical bills goes against the

weight of the evidence and is a miscarriage of justice[.]” Appellant’s Brief at

12. Appellant avers that his expert medical testimony was “uncontroverted”

because Appellee did not present expert medical testimony. Id. at 24.

      When considering challenges to the weight of the evidence, we note

that, “[i]t is well-settled in Pennsylvania that the weight of the evidence and

the credibility of witnesses are issues for the jury who is free to believe

some, all, or none of the evidence presented.” Odato v. Fullen, 848 A.2d

964, 966 (Pa. Super. 2004).

      “A jury is entitled to believe all, part or none of the evidence

presented. . . . A jury can believe any part of a witness’ testimony that they


3
  Appellant’s “Statement of Questions Involved” includes 9 issues, including
seven variations of the same issue. Appellant essentially changes the sub-
argument or premise underlying why he believes the verdict was shockingly
low. These variations do not comport with Appellant’s argument sections, or
Appellant’s Rule 1925(b) Statement.      These claims are essentially re-
phrased challenges to the weight of the evidence, and we will address them
accordingly.



                                     -4-
J. A32004/16


choose, and may disregard any portion of the testimony that they

disbelieve.” Martin v. Evans, 711 A.2d 458, 463 (Pa. 1998) (citation and

quotation omitted).

      Where a jury has made credibility determinations regarding the

testimony     and   evidence   presented,   those   determinations   are   rarely

overturned.    Armbruster v. Horowitz, 744 A.2d 285, 287 (Pa. Super.

1999).     Further, in order to prevail on a challenge to the weight of the

evidence, the verdict must be so “contrary to the evidence as to shock one’s

sense of justice[.]” Lanning v. West, 803 A.2d 753, 765 (Pa. Super. 2002)

(quotation and citation omitted).

      “Moreover, a new trial will not be granted on the ground that the

verdict was against the weight of the evidence where the evidence is

conflicting and the fact-finder could have decided in favor of either party.”

Id. at 766 (citation omitted).

      The trial court cogently and comprehensively addressed Appellant’s

weight of the evidence claim in its Rule 1925(a) Opinion. Accordingly, with

respect to this issue, we affirm on the basis of the trial court’s well-reasoned

Opinion.    See Trial Court Opinion at 8-9 (concluding that: (1) the verdict

was not against the weight of the evidence due to Appellant’s failure to

follow up with several doctors against their advice; (2) the injuries Appellant

claimed were inconsistent; (3) Appellant was unlikely to seek or follow

through with future medical treatment and surgery; and (4) the evidence



                                      -5-
J. A32004/16


was not “uncontroverted” where Appellee cross-examined Appellant’s expert

witness despite not presenting competing expert testimony).

      In his second issue, Appellant avers that he is entitled to “additur” and

asks this court to “mold” the verdict from $3,000 to $78,000. Appellant’s

Brief at 12-13. Appellant contends that the verdict was shockingly low and a

miscarriage of justice, and that the uncontroverted evidence supported

$78,000 in damages. Id. Alternatively, Appellant seeks a new trial. Id. at

13.

      “A verdict is set aside as inadequate when it is so inadequate as to

indicate 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.”          Dranzo v.

Winterhalter, 577 A.2d 1349, 1352 (Pa. Super. 1990) (citation and

quotation   omitted).    Further,   “[i]f   the   verdict   bears   a   reasonable

resemblance to the damages proved, the appellate court will not disturb the

verdict merely because the damages are less than the reviewing court might

have awarded.” Id.

      “To support the grant of a new trial for inadequacy of the damage

award, the injustice of the verdict should stand forth like a beacon.”         Id.

(citation and quotation omitted).   “[C]ourts generally have granted a new

trial when the verdict award is inadequate[.]” Fiorenza v. Kohn, 577 A.2d

1384, 1386 (Pa. Super. 1990).



                                     -6-
J. A32004/16


      The additional $75,000 Appellant seeks is for noneconomic damages.

In order to recover noneconomic damages in a limited tort case, Appellant

was required to prove a serious injury. See 75 Pa.C.S. § 1705(d); Cadena

v. Latch, 78 A.3d 636, 639-40 (Pa. Super. 2013).           The Motor Vehicle

Financial Responsibility Law (“MVFRL”) defines a “serious injury” as “[a]

personal injury resulting in death, serious impairment of body function or

permanent serious disfigurement.” 75 Pa.C.S. § 1702.

      Here, the jury concluded that Appellant failed to prove a serious injury.

Appellant essentially asks us to reverse the jury’s conclusion and reward him

for failing to meet his burden of demonstrating a serious injury. We decline

to do so here. The verdict bears a reasonable resemblance to the damages

proved, and, thus, we will not disturb the verdict.

      The parties are instructed to attach a copy of the trial court’s June 14,

2016 Opinion to all future filings.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/24/2017




                                      -7-
                                                                                              Circulated 12/27/2016 10:46 AM




                       IN THE COURT OF COMMON PLEAS OF PHILADELPHIA                           COUNTY
                                                              TRIAL DIVISION - CIVIL



          NEVIN ABEDINAJ,                                                                 February Tenn, 2014
               Plainlf/l                                                                              No. 758

                   v.

          CABRIYAH MARC                                                                        299 EDA2016
               Defendant


                                                                                                  ~::·
                                                                                                   v-:. -
                                                                                                                   t.-
                                                                                                                   1.-:::.
                                                                               OPINION
                                                                                                      r-            -
                  Plaintiff. Nevin Abedinaj (also identified as Abdeinaj) appeals this Court's D~emb~-~9,
                                                                                                            ~            ::::.
          2015 Order denying Plaintiff's request for Post- Trial Relief in the form of additur or af~mati~Jy
                                                                                                            ...,             c.. ,
          a new trial.

                  J.       BACKGROUND AND PROCEDURAL HISTORY


                  Plaintiff, Nevin Abdeinaj filed a complaint in this motor vehicle, limited tort matter on

          February 7, 2014 against Cabriyah Marc in the Court of Common Pleas of Philadelphia, First

          Judicial District of Pennsylvania. On February 6, 2015 the parties went to compulsory

          arbitration, where the arbitrators found in favor of Plaintiff in the amount of $1,000. Plaintiff

          then filed an appeal for a trial de novo.


                 A Jury Trial was held on November 19, 2015 and November 20, 2015. Defendant did not

         contest her negligence in causing the accident, therefore, the sole issues before the jury was


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 whether the Plaintiff suffered serious impairment of a bodily function 1, and whether Defendant's

 negligence was the factual cause in bringing Plaintiff's harm.


          On November l l , 20l5 the Jury returned a verdict. The Jury found that Defendant's

 negligence was a factual cause of Plaintiffs harm. and awarded Plaintiff $3,000 in past

 economic damages. The Jury also found that Plaintiff did not suffer a serious impairment of a

 bodily function.


          On November 30, 2015 Plaintiff filed a Motion for Post-Trial relief, requesting additur of

$75,000 in future economic damages, or alternatively a new trial. This Court denied the Motion

for Post-Trial reliefon December 29, 20152 and Plaintiff appealed.


         II.      FACTS

         On June 29, 2013, Plaintiff was stopped at a stop sign in Cherry Hill, where he was rear-

ended by the Defendant. NT 11-19-2015, p. 37. The damage to Plaintiffs car totaled $690. NT

11-19-2015, p. 46. The airbags did not deploy. NT 11-19-2015, p. 47. Wesley Atterly, a

passenger in Defendant's vehicle, testified she was not jolted at all by the accident, and that the

impact was "very minute" and "very minimal". NT 11-19-2015, p. 72.


         Plaintiff testified he had no medical issues prior to the accident. NT 11-19- 2015, p. 38.

He testified there was some pain in his neck and Jower back immediately after the accident, and

that pain worsened over time. NT 11-19·2015, p.38-39.




1
  In a limited tort insurance case, Plaintiff can only recover non-economic damages if it is shown he suffered a
"serious impairment of a bodily function" Long v. Mejia, 896 A.2d 596 (Pa. Super 2006).
1
  Plaintiff's motion contained no brief or memorandum of law and was in violation of Phila. Civ. R. 208.2(c}.
However the motion was denied on the merits.
       Plaintiff testified his life changed after the accident because he became less involved with

his children, he could not play soccer or lift as many things. NT 11~19-2015, p. 44. He became

more limited at work, as he could not lift or carry heavy objections such as a case of water. NT

1 t-19-2015, p. 44.


       Plaintiff did not go the emergency room after the accident, he went home and took an

Advil. NT 11-19-2015, p. 39. Two Days after the accident Plaintiff visited a chiropractor at

Spinal Care and began therapy which lasted approximately 6 months. NT l l-J 9-2015, p. 39-40,

49. At the time, Plaintiff had no pain in his arms. NT l l-19-2015, p. 50. Plaintiffs therapy

involved massages, electrical stimulation, exercise, and injections on the left side of his neck. NT

I l-19-2015, p. 40. He testified therapy provided relief from the pain, but that relief would only

last a day or two. NT 11-19-2015, p. 40. His pain continued after therapy was finished NT 11-

19-2015, p. 41.


       On August 29, 2013, Plaintiff went to Pednal Rehab and saw orthopedist Dr. Palmerio to

check his neck. NT 11-19~2015, p. 51. The records showed Plaintiff complained of neck,

shoulder, mid and low back pain. NT 11-19-2015, p. 52. Dr. Palmerio recommended a follow up

appointment four weeks later, however Plaintiff had no records or recollection that he followed

up with Dr. Palmerio. NT 11-19-2015, p.53-54. Plaintiffs expert had no knowledge that Plaintiff

ever followed up. Stepanuk Deposition, p. 75.


       On September 4, 2013, Plaintiff underwent an EMG with Dr. Kosmorsky which showed

no nerve damage to the neck. Stepanuk Deposition, p, 67. An EMG would be the best way to a

diagnose radiculopathy, however it may not show up for 6 - 8 weeks. Stepanuk Deposition, p.

74. There was no recommendation for a follow-up EMG. Stepanuk Deposition, p. 78.
         In December of Zfl l J, Plaintiff saw Dr. Levenstein, and complained of pain in his left

shoulder and back. NT 1 1-19-2015, p. 56. Plaintiff received an injection on the left: side of his

neck. NT 11-19-2015, p. 56. Plaintiff was discharged from chiropractic care around this time NT

11-19-2015, p. 56.

         After consulting with his attorney, Plaintiff scheduled another EMO with Dr. Holding in

March of2014. NT 11-19-2015, p. 56-57. At this time, Plaintiff complained of pain in his left

shoulder and neck, down to his elbow, as well as weakness in his left hand. NT 11-19-2015, p.

57. This was the first complaint of any pain in his arm to a medical professional NT 11-19-2015,

p. 58.

         Dr. Holding reported the second EMG, taken on March 4, 2014 showed radiculopathy at

three different levels of his spine. Stepanuk Deposition, p. 85. Dr. Holding recommended a

follow up appointment, and Plaintiff again failed to follow-up. Stepanuk Deposition, p. 84.

         Plaintiff received no treatment from January to October of 2014. NT 11-19-2015, p. 58.

Plaintiff testified he took prescription drugs for the pain, but provided no documentation of a

prescription. NT 11-19-2015 58-59.

         On October 17, 2014, at the request of his attorney, Plaintiff saw Dr. Slevin. NT 11-19-

2015, p. 59. Dr. Slevin's report noted that Plaintiff complained of pain on the right side of his

neck, and that Plaintiff received an injection on the right side of his neck. NT l 1-19-2015, p. 59-

60. Plaintiff could not say with certainty which side of his neck the injection was on. NT 11-19-

2015, p. 60. Dr. Slevin recommended a follow visit two weeks later. NT I 1-19-2015, p. 62.

Plaintiff testified he did follow up. but had no records that showed he did. NT 11-19·2015, p. 62.
        Plaintiff played the videotape Deposition   from August 20, 2015, of their medical expert,

Dr. Maxwell Stepanuk. Dr. Stepanuk is a board certified orthopedic surgeon. Stepanuk

Deposition,   p. 6. Dr. Stepanuk performed spinal surgeries for approximately 15 years, but at the

time of the deposition his practice consisted solely of seeing patients, writing prescriptions and

making recommendations. Stepanuk Deposition, p. 9.

        On Cross, Dr. Stepanuk testified that 70% of his practice was "medical/legal work".

Stepanuk Deposition, p. 56. He testified that his work was almost exclusively for Plaintiffs and

that he had testified for the same Plaintiff's law firm 12 or 13 times that same year. Stepanuk

Deposition, p. 56.


        Dr. Stepanuk met with Plaintiff approximately a year and nine months after the accident.

Stepanuk Deposition, p. 35. Dr. Stepanuk opined that Plaintiff suffered from "a cervical strain

and sprain, cervical pain secondary to a disc bulge from C2 through C6, radiculopathies or nerve

damage in both upper extremities, a lumbar strain and sprain, and a right lower extremity

radiculopathy." Stepanuk Deposition, p. 18. Dr. Stepanek opined that the disc bulges were

caused by the car accident. Stepanuk Deposition, p. 61. He testified that Plaintiffs neck pain,

back pain, disc bulges, and radicular symptoms were permanent. Stepanuk Deposition, p. 19.


       Dr. Stepanuk relied on radiologist Joel Schwartz's MRI report to diagnose disc bulges.

Stepanuk Deposition p. 58. He had a preference to review the MRI films personally, but was not

provided with any MRI film in this instance. Stepanuk Deposition, p. 59. Dr. Palmerio read the

same MRI as Dr. Stepanuk, and found it to be negative, and only listed soft tissue injuries.

Stepanuk Deposition, p. 65.
