J-A10027-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KIMBERLY L. FOLINO,                              IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellant

                     v.

NATHANIEL KAULE AND MICHAEL
KAULE,

                          Appellee                    No. 893 WDA 2015


              Appeal from the Judgment Entered May 20, 2015
             In the Court of Common Pleas of Allegheny County
                    Civil Division at No(s): GD-12-014163


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PANELLA, J.

MEMORANDUM BY BENDER, P.J.E.:                          FILED JULY 25, 2016

      Appellant, Kimberly L. Folino, appeals from the May 20, 2015

judgment, which was entered in conjunction with the denial of her motion

for post-trial relief seeking a new trial on the issue of damages. After careful

review, we affirm.

      The trial court adopted Appellant’s summary of the facts and

procedural history of this case in its Pa.R.A.P. 1925(a) opinion, as follows:

      [Appellant] filed the instant action against [Appellees], Nathaniel
      Kaule and Michael Kaule, alleging that Nathaniel negligently
      operated his father Michael’s plumbing truck on August 1, 2011
      when he rear-ended [Appellant], totaling her new SUV.
      Although not formally ‘admitted,’ liability was not seriously
      contested inasmuch as Nathaniel testified [that] he failed to
      bring the plumbing truck to a stop before rear-ending and
      totaling [Appellant’s] vehicle. As such, the primary jury issue
      was damages, both economic and non-economic.
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     [Appellant] claimed various bodily injuries, the most significant
     of which were a herniated disc in her low back that had not
     resolved as of the time of trial, and a concussion that had
     resolved.

     This matter was heard before a jury from February 3 through
     February 5, 2015. During the course of the trial, [Appellant]
     called two expert medical witnesses.

     [Appellees] called no medical witnesses and, in fact, had not
     even requested or conducted an ‘Independent Medical
     Examination’ as permitted under Pa.R.C.P. [] 4010.

     As such, the expert medical testimony regarding the ca[us]al
     relationship between the collision and [Appellant’s] injuries was
     undisputed and unrebutted.

     The medical evidence, stated to a reasonable degree of medical
     certainty, was that as the result of the accident [Appellant]
     suffered a disc herniation at L3-4. Notwithstanding various
     treatments    including    2    epidural   injections,   [Appellant]
     experienced setbacks because of work related activities,
     especially heavy lifting, and that “for sure” [Appellant’s] injuries
     affected her ability to do her job, as the heavy lifting component
     of her job would typically cause a flare up.

     Dr. Reidy also testified that epidural injections do not fix
     herniated discs, that [Appellant’s] low back injury was “chronic”
     and that in February 2013[,] he referred [Appellant] for pain
     management for the chronic disc injury, but that [Appellant] was
     unable to avail herself of said treatment because she could not
     afford [it].

     Consistent therewith, [Appellant] testified that she was
     financially unable to start pain management treatments because
     the physician required an advance payment of $350.00 for the
     first visit.

     At the close of testimony and following the instruction, the jury
     was given a verdict slip. This verdict slip contained 3 questions.
     The first question was, “Were the [Appellees] negligent?” The
     second question was, “Was the negligence of the [Appellees] a
     factual cause of any harm to [Appellant]?”

     The third question was, “Itemize the amount of damages, if any,
     sustained by [Appellant] as a result of this accident,” including


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      four specific damage sub-categories:         (a) future medical
      expenses, (b) past lost earnings, (c) future lost earning capacity
      and (d) past, present, and future pain and suffering,
      embarrassment and humiliation, and loss of enjoyment of life.

      The jury answered ‘yes’ to the first two questions, and awarded
      damages of $350 for future medical expenses, $4,000 for past
      lost earnings, $0.00 for future lost earning capacity and $3,000
      for past, present, and future pain and suffering, embarrassment
      and humiliation, and loss of enjoyment of life.

      Following the verdict, [Appellant] filed a Motion for Post-Trial
      Relief alleging that the verdict was inadequate as a matter of
      law, and that the Court should grant a new trial on the issues of
      damages alone.

Trial Court Opinion (TCO), 9/9/15, at 1-2 (quoting Appellant’s Brief in

Support of Motion for Post-Trial Relief at 1-3) (internal citations to the record

omitted).   The trial court denied Appellant’s motion for post-trial relief by

order dated May 20, 2015, and judgment was entered in favor of Appellant

in the amount of $7,350.00. Appellant proceeded with the timely filing of a

Notice of Appeal on June 5, 2015.

      Appellant now presents the following sole issue for our review:

      I.    Whether [Appellant] is entitled to a new trial on damages
            where    the    jury,   having    accepted     [Appellant’s]
            uncontroverted expert medical testimony that [she] had
            sustained a herniated disc that had not healed, was
            chronic with continuing pain, necessitating future medical
            treatment, and with increased risk for future low back
            problems, (a) awarded a nominal amount of $350 for
            future medical treatment and (b) awarded $3,000 for past
            and future non-economic damages that are clearly against
            the weight of the evidence.

Appellant’s Brief at v.

      The standard for determining whether a verdict is inadequate so as to

merit a new trial is well-settled:

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     We have held that the decision whether to grant a new trial on
     weight of the evidence grounds rests within the discretion of the
     trial court and that decision will not be disturbed absent an
     abuse of discretion. An abuse of discretion occurs when the trial
     court has 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. Furthermore, a
     new trial based upon a weight of the evidence claim should be
     granted to a party:

        [O]nly where the verdict is so contrary to the evidence as
        to shock one’s sense of justice and not where the evidence
        is conflicting or where the trial judge would have reached a
        different conclusion on the same facts.

        We have held that it is the duty of the trial court to control
        the amount of the verdict; it is in possession of all the
        facts as well as the atmosphere of the case, which will
        enable it to do more evenhanded justice between the
        parties than can an appellate court. Thus, a jury verdict is
        set aside for inadequacy when it appears to have been the
        product of 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. Hence, a reversal on
        grounds of inadequacy of the verdict is appropriate only
        where the injustice of the verdict stands forth like a
        beacon.

Womack v. Crowley, 877 A.2d 1279, 1282-1283 (Pa. Super. 2005)

(quoting Davis v. Mullen, 773 A.2d 764, 766 (Pa. 2001)). Moreover,

     we recognize that our scope of review is limited, especially when
     the trial court has refused a new trial on the ground of
     inadequacy:

        Where the trial court grants a new trial on the ground of
        inadequacy the appellate courts will not interfere in the
        absence of a gross abuse of discretion. When the trial
        court refuses relief against an allegedly inadequate verdict
        the appellate court will exercise even greater caution in
        reviewing its action.




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Beswick v. Maguire, 748 A.2d 701, 702 (Pa. Super. 2000) (quoting

Paustenbaugh v.        Ward Baking Co., 97 A.2d 816, 818 (Pa. 1953))

(emphasis in Paustenbaugh).

       Here, Appellant avers that the trial court erred in not allowing her a

new trial on the issue of damages, because the verdict was so inadequate

that it should have shocked the trial court’s sense of justice.         Appellant’s

Brief at 7. More specifically, Appellant states that the award of $350.00 for

future medical expenses was “entirely unrealistic and totally inadequate for

any reasonable course of treatment by pain management specialists….” Id.

at 6. Appellant further avers that the award of $3,000.00 for past, present,

and future non-economic damages “was totally inadequate given Dr. Reidy’s

uncontroverted opinions that [Appellant’s] herniated disc injury had required

past   medical   treatment   including   two   epidural   injections,    was   still

symptomatic, was chronic, had not yet healed, and required future medical

treatment, and placed her at risk for future low back problems (not to

mention    [Appellant’s]   cerebral   concussion,   ongoing     post-concussion

symptoms, chipped teeth, and other lesser injuries).” Id. at 6-7.

       In support of her argument, Appellant asserts that this case is closely

analogous to Neison v. Hines, 653 A.2d 634 (Pa. 1995).              In Neison,

uncontroverted evidence established that the plaintiff was involved in “a

violent automobile accident” caused by the defendant, and that the

defendant’s negligence was the factual cause of the plaintiff’s injuries, which

included a cervical sprain, neck sprain, and shoulder blade sprain. The jury

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awarded no damages for pain and suffering, and the trial court granted a

new trial on the grounds that the award of no damages “shocked its

conscience.” Id. at 636. After the trial court’s decision was reversed by this

Court, our Supreme Court granted allocator and opined:

      In light of this uncontroverted evidence, we cannot find that the
      trial court abused its discretion in ordering a new trial. Common
      sense dictates that a collision of this severity caused by the
      negligence of another would lead to severe and painful injuries,
      although the evidence offered at trial left room for disagreement
      as to whether the pain resulting from Ms. Neison’s injuries was
      as severe as she claimed or whether the accident was in fact
      causative.     However, the jury’s decision to find for [the
      defendant] and award no damages for pain and suffering bears
      no rational relationship to the evidence produced at trial. The
      jury’s decision to disbelieve all the evidence presented during
      the trial defies common sense and is indeed shocking.

Id. at 638.

      Appellant’s heavy reliance on the Neison decision is misguided.      As

the trial court stated:    “Although [Appellant’s] brief points out some

similarities between her case and the Neison case, it must be remembered

that [Appellant] was awarded $3,000 in non-economic damages alone,

whereas Ms. Neison was awarded nothing.” TCO at 5.

      Moreover, “[i]n order to determine if the verdict is inadequate we must

review the entire record to determine whether an injustice has occurred.”

Beswick, 748 A.2d at 702. The record reveals that during trial, Appellant

produced evidence indicating that prior to the accident, she earned average

weekly wages of $1,052.52. N.T. Jury Trial, 2/3/15, at 36. Because of her

injuries, Appellant stated that she was forced to miss three weeks of work


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and then returned to work at a reduced rate.             Id.   Doctors informed

Appellant that she was not a surgical candidate but, rather, that she should

treat her back pain with physical therapy and pain medicine, or lumbar

injections. Id. at 50-51. After receiving two lumbar injections, Dr. Reidy

suggested that Appellant see a pain management doctor; however,

Appellant testified that she did not go because she could not afford the $350

payment required by the pain management doctor.             Id. at 30.   Instead,

Appellant has been treating her pain as needed with Aleve, Ibuprofen, and a

heating pad. Id. at 31. The jury’s award compensated Appellant for past

lost earnings in the amount of $4,000, for pain and suffering in the amount

of $3,000, and for future medical expenses in the amount of $350.            We

deem this reward to be reasonable in relation to the proven damages.

        Moreover, the record reveals that in addition to her back-injuries

sustained during the accident, Appellant was diagnosed with pre-existing

degenerative disc disease,1 and was treated by a homeopathic chiropractor

prior to the accident.2      A jury “is free to believe all, some, or none of the

testimony presented by a witness.” Neison, 653 A.2d at 637. “Our cases

have long recognized that a jury may properly compromise claimed damages

on the basis of preexisting conditions or other causes which might contribute


____________________________________________


1
    N.T. Deposition of Edward Reidy, M.D., 1/21/15, at 51-52, 54.
2
    N.T. Jury Trial at 60.



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to an injury or disability so as to affect the award of damages.” Beswick,

748 A.2d at 705.

      Finally, we note that we have previously set forth the following

considerations to determine whether a verdict should be set aside as

inadequate:

      (1)   the verdict awarded in case indicates passion prejudice,
            partiality, or corruption on the part of the jury, or

      (2)   the verdict reveals that the jury either disregarded or
            misapprehended the instructions by the court, or

      (3)   the verdict awarded bears no reasonable relation to the
            losses sustained by the plaintiff, or

      (4)   the verdict evidenced a failure of justice to the plaintiff, or

      (5)   the verdict is so inadequate that it should not be permitted
            to stand.

Nudelman v. Gilbride, 647 A.2d 233, 238 (Pa. Super. 1994). The parties

have conceded that the first two considerations are not relevant in this

matter. Based on our thorough review of the record, we conclude that the

award of $7,350 adequately reflects the damages proven by Appellant. The

verdict does not evidence a failure of justice to Appellant, nor is the verdict

so inadequate that it should not be permitted to stand. Moreover, despite

the trial court’s indication that it “would have awarded more for pain and

suffering had the case proceeded non-jury,” TCO at 5, this alone is not

enough reason to grant a new trial.         “Generally, a verdict will not be

disturbed merely on account of the smallness of the damages awarded or




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because the reviewing court would have awarded more.”          Beswick, 748

A.2d 702.

      We have carefully considered all of the evidence and are not shocked

by the jury’s verdict, nor are we shocked by the trial court’s refusal to grant

a new trial. Therefore, we affirm the court’s denial of Appellant’s motion for

post-trial relief.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/25/2016




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