J-A05017-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

EMELINE COLON,                                  IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellant

                       v.

NEIL S. RAPOPORT, D.P.M., DAVID
GELTZER, D.P.M., PHILADELPHIA
PODIATRY ASSOCIATES,

                            Appellee                 No. 2118 EDA 2014


               Appeal from the Judgment entered June 13, 2014,
             in the Court of Common Pleas of Philadelphia County,
             Civil Division, at No(s): October Term 2011 No. 3984


BEFORE: GANTMAN, P.J., SHOGAN, and ALLEN, JJ.

MEMORANDUM BY ALLEN, J.:                         FILED FEBRUARY 24, 2015

       Emeline Colon, (“Appellant”), appeals from the judgment entered in

favor of Appellant and against Neil S. Rapoport, D.P.M., (“Doctor”) 1,

following the trial court’s order denying Appellant’s motion for post-trial

relief seeking a new trial on damages or alternatively additur. We affirm.

       The trial court set forth the factual and procedural background relative

to this action as follows:

              [I]n June, 2010, [Appellant] elected       to undergo a
       bunionectomy procedure by [Doctor].      She       developed an
       infection in the pin tract which was treated       by antibiotics,
       however, the pain and swelling continued.         A bone biopsy
       confirmed in September, 2010 that ostemyelitis    had developed.
____________________________________________


1
   David Geltzer, D.P.M., and Philadelphia Podiatry Associates, are not
involved in this appeal.
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      Following several surgeries on her right foot, [Appellant] lost
      part of her big toe. The big toe joint was fused.

            In October, 2011, [Appellant] initiated this medical
      malpractice litigation against [Doctor] and his professional
      partner, David G. Geltzer, D.P.M. After a weeklong jury trial, on
      February 4, 2014, [Appellant] was awarded $81,500.00, against
      [Doctor] only. Dr. Geltzer was found not liable.

            [Appellant] filed a Motion for Post-Trial Relief seeking a
      new trial limited to the issue of damages, or, in the alterative
      additur. The parties submitted memoranda of law and oral
      argument was held on June 11, 2014. [The trial court denied
      Appellant’s] Motion for Post-Trial Relief[.] The unopposed Motion
      for Delay Damages [was] GRANTED. Judgment [was] entered in
      the amount of $85,865.27 in favor of [Appellant].

Trial Court Memorandum in Support of Order Denying Motion for New Trial

and Granting Motion for Delay Damages, 6/13/14, at 1.           Appellant filed a

timely notice of appeal.   The trial court did not direct Appellant to comply

with Pa.R.A.P. 1925.

      Appellant presents the following issues for our review:

      1. Did the Trial Court abuse its discretion in refusing to grant a
      New Trial on the issue of damages because the uncontradicted
      evidence at trial clearly demonstrated that the amount of the
      verdict was inadequate and did not bear a reasonable relation to
      the undisputed costs of future medical bills or the losses suffered
      by [Appellant]?

      2. Did the Trial Court abuse its discretion in refusing to grant a
      New Trial on damages in failing to find that the damage awarded
      was not intertwined with liability and the liability verdict is free
      from doubt?

      3. Did the Trial Court abuse its discretion in refusing to grant an
      Additur to compensate [Appellant] for the shortfall in the
      damages award?

Appellant’s Brief at 4.


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      In summarizing her argument, Appellant posits:

            [T]he uncontradicted evidence at trial was that [Appellant]
      incurred past medical expenses and faces substantial future
      medical costs, together which total $92,294, and suffers from
      permanent disability and disfigurement due to missing a large
      portion of her great toe. Despite these substantial economic and
      non-economic losses, the jury awarded a total award in the
      amount of $81,500 — over $10,000 less than the uncontradicted
      economic damages alone.        Due to the inadequate award,
      [Appellant] seeks a new trial on the issue of damages only. The
      Verdict as to damages only should be set aside because: (1) the
      amount is inadequate; (2) it is not intertwined with the liability
      finding against [Doctor]; and (3) the liability finding is free from
      doubt.

             The Trial Court denied [Appellant’s] Motion for Post-Trial
      Relief seeking a New Trial on the issue of damages. In so doing,
      the Trial Court abused its discretion because it ignored the
      uncontradicted evidence of medical costs and pain and suffering,
      improperly relied on and mischaracterized the trial testimony
      and failed to analyze the Verdict under the controlling
      precedential law.

Appellant’s Brief at 11.

      We will address Appellant’s issues together. We recognize:

      [O]ur standard of review when faced with an appeal from the
      trial court’s denial of a motion for a new trial is whether the trial
      court clearly and palpably committed an error of law that
      controlled the outcome of the case or constituted an abuse of
      discretion. In examining the evidence in the light most favorable
      to the verdict winner, to reverse the trial court, we must
      conclude that the verdict would change if another trial were
      granted.

Schmidt v. Boardman, 958 A.2d 498 (Pa. Super. 2008).

      Further, we acknowledge that “[t]he decision of whether to grant a

new trial is within the sound discretion of the trial court … [and] a new trial


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is warranted where the jury’s verdict is so contrary to the evidence as to

shock one’s sense of justice.   However, a new trial should not be granted

because of a mere conflict in testimony or because the trial judge, on the

same facts, would have arrived at a different conclusion.”     Andrews v.

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

     In denying Appellant’s motion for a new trial on damages, the trial

court cogently observed that “[t]his is not a case involving an award of no

damages.”     Trial Court Memorandum, 6/13/14, at 2.         The trial court

explained:

            A review of the itemized Verdict Sheet and the responses
     to the Special Interrogatories makes it clear that the jury
     understood the serious and permanent nature of [Appellant’s]
     situation, however, the jury was not persuaded that she plans to
     undergo future surgeries or related physical therapy. []

          The parties stipulated that the reasonable value of
     [Appellant’s] past medical surgeries was $21,794.00. The jury
     awarded $23,000.00 to [Appellant] for Past Medical Expenses.

            Dr. Steven F. Boc, [Appellant’s] treating podiatrist,
     testified that the one-time cost for a future surgery would be a
     $15,000.00 hospital fee and a $7,500.00 surgical fee. January
     29, 2014, N.T. 104. He went on to explain his patient's concerns
     about whether to endure the procedures in the future at N.T.
     105-106:

        [Appellant’s] Counsel: Now, the surgery that has been
        given as an option, when you and [Appellant] had many a
        heart to heart conversation, what was the feeling of
        [Appellant] as far as having it?

        Dr. Boc: I mean, trepidation is a good word, and some
        fear, she recognizes that if we go back in and we do
        grafting and things like that, and we fail, or it gets
        reinfected, then the amputation will be more likely than
        not, at this time. So, I think her fear is having to undergo

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J-A05017-15


       through -- undergo more surgery, still risk potential
       complications, every surgery has complications, obviously,
       but even more so in a case like hers, and a risk factor that
       could lead to her still developing the need for an
       amputation.

       [Appellant’s] Counsel: Reasonable fear, going into that
       surgery?

       Dr. Boc: Yes, it is.

        [Appellant] shared with the jury her “trepidation” and
     concerns about future surgeries when she testified on January
     30, 2014, N.T. 57-60:

       [Appellant’s] Counsel: And did you ever -- you mentioned
       before, and you got ahead of me because you're quicker,
       about whether or not you're better, or you need further
       surgery, and I want to talk to you about that.

       [Appellant]: Okay.

       [Appellant’s] Counsel: And what's your understanding as
       far as what your surgical options, or treatment options are
       at this point.

       [Appellant]: He wants to remove a bone from my hip to
       put it on my toe, if it will work, and it will take, because
       the bone that they gave me from the [cadaver] did not
       take. . .

       [Appellant’s] Counsel: Now, what's your feeling, you said
       they take a bone from your hip. What are you thinking, as
       far as having that surgery? Have you ever scheduled it?
       Are you going to have it? Tell us.

       [Appellant]: We scheduled it twice, but I backed off, I am
       scared. I don't want to get it done.

       [Appellant’s] Counsel: And you say you don't want to get it
       done. Do you anticipate a time where you might, or
       what's your thinking as far as having it?

       [Appellant]: I know eventually I am going to have to get it
       done. But right now I really don't think I want to go
       through all that I went through. My son needs me.



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J-A05017-15


       [Appellant’s] Counsel: And you say eventually you're going
       to have to get it done.

       [Appellant]: Yes.

       [Appellant’s] Counsel: Do you have any specific plans, or
       tell us what you mean by eventually?

       [Appellant]: Dr. Boc said that I am going to have to
       eventually make up my mind and get it done, because it
       hurts. So, do I rather go through the whole rest of my life
       with it in pain, or get the surgery done, and take the
       chance of even losing my length even more than what it is
       now.

     The jury considered Dr. Boc's opinion that [Appellant] would
     need $1,500.00 per year for medical care and treatment in the
     future. They awarded $1,500.00 for each of the next five years
     (2014-2018).     They also determined that treatments would
     continue, but at a lesser rate and awarded [Appellant] $500.00
     per year for future medical expenses for twelve years thereafter
     (2019-2030). This Court is unable to conclude that the analysis
     was arbitrary or capricious. Rather, the per annum award
     reflects thoughtful consideration of [Appellant’s] diminishing
     future medical economic losses.

           [Appellant] has presented arithmetic formulas as a basis
     for her calculations that the award for non-economic damages is
     too low, as compared to the economic damage award. The
     Pennsylvania Supreme Court held many years ago that the
     particular amount of money expended on medical treatment is
     not probative of a plaintiff’s pain and suffering. In Martin v.
     Soblotney, 466 A.2d 1022 (Pa. 1983) at 1025:

          It is immediately apparent that there is no logical or
       experiential correlation between the monetary value of
       medical services required to treat a given injury and the
       quantum of pain and suffering endured as a result of that
       injury. First, the mere dollar amount assigned to medical
       services masks the difference in severity between various
       types of injuries. A very painful injury may be untreatable,
       or, on the other hand, may require simpler and less costly
       treatment than a less painful one. The same disparity in
       treatment may exist between different but equally painful
       injuries. Second, given identical injuries, the method or
       extent of treatment sought by the patient or prescribed by

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J-A05017-15


            the physician may vary from patient to patient and from
            physician to physician. Third, even where injury and
            treatment are identical, the reasonable value of that
            treatment may vary considerably depending upon the
            medical facility and community in which care is provided
            and the rates of physicians and other health care
            personnel involved. Finally, even given identical injuries,
            treatment and cost, the fact remains that pain is subjective
            and varies from individual to individual.

            [Appellant] walks with a limp and she still has some pain.
         She no longer uses a walker. January 30, 2014, N.T. 87-88.
         She is mobile and drives a car. January 30, 2014, N.T. 63-65.
         The disfigurement and scarring is mitigated when [Appellant]
         wears a boot or shoes. This Court is unable to conclude that the
         award of $28,000.00 for non-economic damages is a beacon of
         injustice.

Trial Court Memorandum, 6/13/14, at 2-5.            Based on our review of the

record and applicable case law, we discern no abuse of discretion by the trial

court.

         Our agreement recognizes:

         [I]t is within the province of the jury to assess the worth of the
         testimony, which it may then accept or reject. We agree that
         the jury is free to believe all, some or none of the testimony
         presented by a witness. However, this rule 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 [] as demonstrated by
         uncontroverted evidence presented at trial. 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.

Neison v. Heimes, 653 A.2d 634, 636-37 (Pa. 1995) (internal citations

omitted). Our careful scrutiny of the record does not reflect that the jury’s

verdict is “so disproportionate to the uncontested evidence as to defy

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common sense and logic.”       Id.    Further, to the extent that Appellant’s

argument requires an impermissible re-weighing of the testimony adduced

at trial, we decline to do so. Brown v. Progressive Insurance Co., 860

A.2d 493, 497 (Pa. Super. 2004) (internal citation omitted) (“Concerning

questions of credibility and weight accorded evidence at trial, we will not

substitute our judgment for that of the finder of fact.”).

      Instantly, in answering Question 6 of the jury verdict sheet, the jury

specifically awarded Appellant $30,500 dollars for “future medical and

related expenses.” See Jury Verdict Sheet, 2/4/14, at 2. This portion of the

jury’s award included a lump sum of $17,000 dollars, and an additional

award of $13,500 dollars in an itemized year-by-year breakdown of future

medical and related expenses: $1,500.00 for the years 2014-2018, $500.00

for the years 2019-2030, and $0.00 for the years 2031-2039.          Id.   The

award of $30,500 dollars for future medical and related expenses is not

significantly disparate from the cost of $22,500 dollars covering the hospital

and surgical fees Appellant’s expert testified Appellant may incur if Appellant

chooses to undergo another surgery - a choice which, as the trial court

explained above, is not a foregone conclusion. See N.T., 1/29/14, at 104;

see also Trial Court Memorandum, 6/13/14, at 1-2.               Moreover, we

recognize that the jury awarded Appellant additional sums for future pain

and suffering, future embarrassment and humiliation, and future loss of

enjoyment of life’s pleasures, which were “lump[ed]” with the past and

present damages for those losses.      See Jury Verdict Sheet, 2/4/14, at 2.

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Therefore, contrary to Appellant’s argument, we find that the jury’s verdict is

adequate, that is bears a reasonable relation to the evidence, and that it is

intertwined with the liability determination against Doctor. Accordingly, the

trial court did not err in denying Appellant a new trial on damages, or

alternatively in denying Appellant’s motion for additur. Majczyk v. Oesh,

789 A.2d 717, 726 (Pa. Super. 2001) (internal citations omitted) (“[T]he

determination of what is a compensable injury is uniquely within the purview

of the jury,” as is the amount of damages that a jury will award, if any, for

the same.). We affirm the judgment which the trial court entered consistent

with its order denying Appellant’s post-trial motion.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/24/2015




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