J-A01042-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

GUY GORNICK AND LEIGH GORNICK,                   IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellants

                     v.

MILDRED MCHUGH,

                          Appellee                    No. 745 WDA 2014


              Appeal from the Judgment entered April 17, 2014,
               in the Court of Common Pleas of Butler County,
                     Civil Division, at No(s): 2011-11250


BEFORE: FORD ELLIOTT, P.J.E., DONOHUE, and ALLEN, JJ.

MEMORANDUM BY ALLEN, J.:                          FILED JANUARY 20, 2015

      Spouses Guy and Leigh Gornick, (hereinafter “Mr. Gornick” or

collectively “Appellants”), appeal from the trial court’s entry of judgment in

their favor and against Mildred McHugh, (“McHugh”), following the trial

court’s denial of Appellants’ motion for a new trial on future medical

expenses. We affirm.

      The trial court set forth the procedural and factual background relative

to this action as follows:

            [Appellants] commenced litigation on October 13, 2011,
      asserting claims for negligence and loss of consortium against
      [McHugh] in light of [McHugh’s] alleged negligence in causing a
      rear-end automobile accident on October 16, 2009, which
      resulted in injuries to the Plaintiff, Guy Gornick (hereinafter "Guy
      Gornick" or "Mr. Gornick").

            On or about March 31, 2014, a Civil Jury Trial commenced
      before the undersigned. During the trial, two medical expert
      witnesses, Ghassan Bejjani, M.D. and Edward D. Reidy, and one
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     life-care planning expert, Varsha Desai, offered testimony on the
     issue of Mr. Gornick's future medical care and expenses. Ms.
     Desai, [Appellants’] life-care planning expert, testified that the
     [Appellants’] future medical expenses would be between
     $121,730.83, and $124,330.83. Although [McHugh] did not
     offer expert testimony on the issue of Mr. Gornick's future
     medical expenses, counsel for [McHugh] cross-examined
     [Appellants’] expert witnesses, challenging their assessment of
     the need for, and amount of, future medical expenses.

           On April 2, 2014, the jury returned a verdict in favor of
     [Appellants], and against [McHugh], finding [McHugh] negligent
     and that her negligence was a factual cause of [Appellants’]
     harm. See Questions Numbered 1 and 2, respectively, of the
     Verdict under date of April 2, 2014. Additionally, the jury
     awarded a total of $39,013.00, in damages to [Appellants], as
     the amount they found to be "fair and reasonable based upon
     the evidence and testimony presented."            See Question
     Numbered 3 of the Verdict under date of April 2, 2014. The jury
     found that [Appellants] sustained $20,513.00, in damages for
     medical expenses, $5,500.00, in damages for past pain and
     suffering, and $13,000.00, in damages for future pain and
     suffering; the jury did not find that monetary damages were "fair
     and reasonable based upon the evidence and testimony
     presented," for future medical expenses, embarrassment and
     humiliation, enjoyment of life's pleasures, or for loss of
     consortium. Id.

           On or about April 10, 2014, [Appellants’] Motion for Delay
     Damages and [Appellants’] Motion for Post-Trial Relief and
     Request for Transcription of Trial Testimony and Record were
     filed. After hearing oral argument on [Appellants’] post-trial
     motions, the undersigned granted [Appellants’] Motion for Delay
     Damages, adding delay damages in the amount of $2,389.41, to
     the verdict of $39,013.00, for a total judgment against [McHugh]
     of $41,402.41. See [Appellants] Motion for Delay Damages and
     Order of Court under date of April 17, 2014. [Appellants’]
     Motion for Post-Trial Relief, through which [Appellants] sought a
     new trial limited to the issue of compensatory damages for
     future medical expenses in light of their argument that the jury's
     verdict was against the weight of the evidence, was denied by
     the undersigned after due consideration.       See [Appellants’]
     Motion for Post-Trial Relief and Request for Transcription of Trial
     Testimony and Record and Order of Court under date of April 17,
     2014.

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            Owing to the decision issued by this Court on or about
      April 17, 2014, to deny [Appellants’] Motion for Post-Trial Relief
      and Request for Transcription of Trial Testimony and Record, on
      or about May 6, 2014, [Appellants] filed a timely Notice of
      Appeal with the Office of the Prothonotary of Butler County,
      Pennsylvania. Upon receipt of said Notice of Appeal, on or about
      May 9, 2014, in accordance with Rule 1925(b) of the
      Pennsylvania Rules of Appellate Procedure, this Court entered an
      Order of Court wherein the Appellants were directed to file of
      record and serve upon the undersigned trial judge a Concise
      Statement of the Matters Complained of on Appeal no later than
      twenty-one (21) days from the date of the Order of Court.

            On or about May 19, 2014, [Appellants'] Concise
      Statement of the Matters Complained of on Appeal was filed with
      the Prothonotary's Office of Butler County, Pennsylvania.

Trial Court Opinion, 7/1/14, at 1-3. On July 1, 2014, the trial court issued

its Pa.R.A.P. 1925(b) Opinion.

      Appellants present the following issue for our consideration:

      1. Should the trial court have granted a new damages trial
         limited to determining [Appellants’] future medical expenses,
         where the jury found that Mr. Gornick suffered injuries and
         damages resulting from [McHugh’s] negligence; [McHugh] did
         not contest future medical expenses, i.e., future ongoing
         medications, relating to Mr. Gornick’s injured lower back
         condition; and yet, despite the existence of such
         uncontroverted evidence, the jury awarded no money for this
         element of damage?

Appellants’ Brief at 4.

      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


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      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 is warranted where the

jury’s verdict is so contrary to the evidence as to shock one’s sense of

justice.”   Andrews v. Jackson, 800 A.2d 959, 962 (Pa. Super. 2002)

(internal citation omitted).

      Appellants contend:

      The jury found that [Mr. Gornick] suffered a lower back injury,
      namely an aggravation of his spondylolisthesis at L5-S1 (which
      was asymptomatic prior to the automobile accident because of
      [McHugh’s] negligence, but ordered no money - not a single
      penny - for his future medical care. This non-award cannot be
      squared with the uncontested evidence at trial.

Appellants’ Brief at 11-12.    Appellants maintain “there is no reasonable

relationship between the evidence presented at trial and the jury’s verdict

regarding future medical expenses … The verdict is shocking and truly

unfair; it calls for a new damages trial on this limited point. The trial court

wrongly denied [Appellants’] post-trial motion for relief.” Id. at 14.

      In rebutting Appellants’ claim of error, the trial court reasoned:

            [T]he jury's verdict may be set aside if it is the product of
      passion, prejudice, partiality, or corruption, or if it is clear the
      verdict bears no reasonable relationship to the loss suffered by
      the plaintiff based on the uncontroverted evidence presented.
      Kiser v. Schulte, 538 Pa. 219, 648 A.2d 1, 4 (1994).

            In Kiser, an expert witness testified that the net economic
      loss resulting from the teenage decedent's death was between


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     $232,400.00 and $756,081.43. Kiser, at 5. As is also the case
     in the instant matter, the defense did not present its own expert,
     but extensively cross-examined [Appellants’] expert. In Kiser,
     the $232,400.00 figure was conceded only after defense counsel
     suggested the 40% "personal maintenance” deduction, as
     originally applied, was low and that a 70% deduction was
     appropriate. Id. The expert testified that he would reduce the
     net economic loss to $232,400.00 on the bottom end of the
     range. Id. The Supreme Court of Pennsylvania stated, "Thus,
     the uncontroverted testimony at trial was that the net economic
     loss that would result from Ms. Kiser's death ranged from
     $232,400.00 to $756,081.43."          Id.    That is, what was
     uncontroverted was the minimum estimate of $232,400.00,
     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 in Kiser. [See] Carroll v. Avallone, 595
     Pa. 676, 939 A.2d 872, 874-875 (2007).

             In the instant matter, the evidence admitted at trial does
     not permit one to conclude that Varsha Desai's opinion that Mr.
     Gornick's future medical expenses would be between
     $121,730.83, and $124,330.83, was "uncontroverted." Kiser did
     not treat the direct testimony as uncontroverted, as cross-
     examination challenged the calculation, and thus, does not stand
     for the proposition that the lack of an expert counter-opinion
     renders the first expert's opinion uncontroverted. Carroll v.
     Avallone, 595 Pa. 676, 939 A.2d 872, 875 (2007). During the
     trial in the matter at hand, counsel for [McHugh] challenged the
     future cost projection prepared by Ms. Desai, noting the various
     treatment options discussed by Dr. Ghassan Bejjani, and that
     Ms. Dessai's report on future medical costs was calculated solely
     using the option of surgery. In fact, Ms. Desai agreed that 99%
     of the future cost projection that she prepared and testified to at
     trial addressed a future operation. See Page 151, Line 8,
     through Page 152, Line 11, of Proceedings Held Before the
     Honorable S. Michael Yeager on March 31, 2014. The cross-
     examination of Ms. Desai, in addition to the respective cross-
     examinations of Dr. Bejjani and Dr. Reidy, all contested the
     extent of Mr. Gornick's alleged future medical expenses, as well
     as the necessity of the projected future medical expenses.

          A basic factual challenge to the underpinnings of the
     expert's opinion was made here. While it is speculative to

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      presume Mr. Gornick will not require future surgery, it is also
      speculative to presume that he will. The nature and extent of
      Mr. Gornick's alleged injuries was for the jury to decide and they
      were free to evaluate the evidence before them as they saw fit.

            The concept of Kiser v. Schulte, that the verdict must bear
      a relation to the evidence, is in tension with the notion that a
      jury may reject any evidence offered, even if uncontroverted; a
      jury is not obliged to believe or disbelieve any evidence
      presented at trial, including an expert's opinion. However, a
      jury's verdict cannot be based on whim or caprice, hence the
      holding in Kiser. Carroll v. Avallone, 595 Pa. 676, 939 A.2d 872,
      875 (2007).

            When there is no argument or opposition on a particular
      point, the jury may not be free to disregard such information.
      "Uncontroverted" evidence is evidence which is unopposed or
      unchallenged, not merely uncontradicted. If one party has the
      burden of proof, opposing counsel may strenuously controvert
      the evidence through cross-examination and argument; reasons
      not to accept the plaintiff’s evidence may suffice to prevent the
      meeting of that burden, even without affirmative countervailing
      evidence. Carroll v. Avallone, 595 Pa, 676, 939 A.2d 872, 874-
      875 (2007).

            In the instant matter the evidence of Mr. Gornick's need
      for future surgery and his future medical expenses did not
      amount to uncontroverted evidence, and Ms. Desai's opinion did
      not amount to "proven damages." The jury's determination that
      [McHugh’s] conduct was not a factual cause in bringing about
      the alleged future medical expenses is not contrary to the
      evidence admitted at trial and thus, should not be set aside.

Trial Court Opinion, 7/1/14, at 4-7.      Based on our careful review of the

record, we agree with the trial court because the record viewed in the light

most favorable to McHugh supports the judgment entered in McHugh’s favor.

Therefore, the trial court did not err or abuse its discretion in denying

Appellants’ post-trial motion for a new trial.

      As espoused by our Supreme Court:


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           Given the primary role of the jury in determining questions
     of credibility and evidentiary weight, this settled but
     extraordinary power vested in trial judges to upset a jury verdict
     on grounds of evidentiary weight is very narrowly circumscribed.
     A new trial is warranted on weight of the evidence grounds only
     “in truly extraordinary circumstances, i.e., when the jury's
     verdict is ‘so contrary to the evidence that it shocks one's sense
     of justice and the award of a new trial is imperative so that right
     may be given another opportunity to prevail.’” Armbruster v.
     Horowitz, 572 Pa. 1, 813 A.2d 698, 703 (2002) (emphasis
     original) (quoting Commonwealth v. Brown, 538 Pa. 410, 648
     A.2d 1177, 1189 (1994)). This Court has also noted that one of
     the reasons that the power and duty to upset a verdict on weight
     grounds is so narrowly circumscribed is because of the obvious
     tension between the broad, settled, exclusive role of the fact-
     finder in assessing credibility and the limited power of trial
     judges, in narrowly circumscribed circumstances, to overturn
     those assessments when the judicial conscience is not merely
     disappointed, or uncomfortable, but shocked. Id. at 704.

Criswell v. King, 834 A.2d 505, 512-513 (Pa. 2005).

     Instantly, the trial court’s judicial conscience was not shocked by the

jury’s verdict which denied future medical expenses, but awarded damages

for past medical expenses, and for past and future pain and suffering. The

trial court found that “[t]he jury's determination that [McHugh’s] conduct

was not a factual cause in bringing about the alleged future medical

expenses is not contrary to the evidence admitted at trial and thus, should

not be set aside.”   Trial Court Opinion, 7/1/14, at 7.     While Appellants

criticize the depth and breadth of McHugh’s refutation of Appellants’ future

medical expenses, Appellants concede that McHugh did raise a “challenge to

[Appellants’] claim for future medical expenses.”    Appellants’ Brief at 12.

Appellants acknowledge that McHugh “questioned whether Mr. Gornick



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would actually undergo future surgical intervention as set forth in [his] life

care plan.”       Id.       Appellants recognize that McHugh “also attacked

[Appellants’] experts, insinuating that their testimony was not credible

because they were paid experts.” Id. at 13.

        Appellants argue that McHugh “did not challenge the need for ongoing,

continued medications [for Mr. Gornick] necessitated by life with an

aggravated lower back condition that was caused by the negligence of

[McHugh]” totaling $1,298.38, thereby “conced[ing] a damages floor of at

least $1,298.38 … that Mr. Gornick would require to live with and manage

the pain associated with his lower back injury caused by [McHugh’s]

negligence.”     Appellants’ Brief at 36.             Appellants’ argument discounts,

however, that McHugh introduced the videotaped deposition of Dr. David S.

Zorub, M.D., who provided expert medical opinion testimony for the jury’s

consideration that any future medical expenses Mr. Gornick incurred, if any,

would    be    relative     to   his   pre-existing    degenerative    spondylolisthesis

condition, rather than from the motor vehicle accident. N.T., Deposition of

Dr. Zorub, 3/27/14, at 25 (Mr. Gornick’s “ongoing symptomology now is

related to the primary diagnosis of the spondylolisthesis and the

degenerative process”) (emphasis supplied); 37 (“to relate what is going

on now or in the future to that singular vehicular event … to the future

progression     of      a   primary      spondylolisthesis,    would     be   medically

inappropriate”); 50 (further medical treatment by Mr. Gornick “would be

related to the primary problem [of spondylolisthesis] and not due to the

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singular vehicle event”); 53 (“the accident isn’t the cause for the

probable need for future treatment”) (emphasis supplied). Accordingly,

we cannot disregard that in finding that Appellants were not entitled to any

future medical expenses, the jury did not credit Appellants’ argument

regarding the need for same, but rather credited McHugh’s refutation

concerning future damages. We reiterate:

     [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 by the evidence [] 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, which awarded damages to Appellants for past medical expenses,

and for past and future pain and suffering, but denied damages for

controverted future medical expenses is “so disproportionate to the

uncontested evidence as to defy common sense and logic.” Id.; compare

Womack v. Crowley, 877 A.2d 1279, 1284 (Pa. Super. 2005) (affirming

trial court order granting new trial where “the jury award … reflects the

exact amount of the future surgery … and awards no amount for pain and

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suffering where plaintiff/appellant’s torn meniscus and back sprain “are the

type of injuries which we have previously found to involve pain and

suffering”).

       Moreover, we recognize that “the 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. Majczyk v. Oesh, 789

A.2d 717, 726 (Pa. Super. 2001) (internal citations omitted).            Further,

Appellants’ argument requires an impermissible re-weighing of the testimony

adduced at trial, which we cannot do. 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.”).

      Accordingly, we affirm the trial court’s order denying Appellants’

motion for a new trial, and affirm the judgment entered by the trial court.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/20/2015




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