J-E04002-13



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MARGO POLETT AND DANIEL POLETT,                  IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellees

                    v.

PUBLIC COMMUNICATIONS, INC.,
ZIMMER, INC., ZIMMER USA, INC., AND
ZIMMER HOLDINGS, INC.,

                         Appellants                   No. 1865 EDA 2011


              Appeal from the Judgment Entered June 10, 2011
            In the Court of Common Pleas of Philadelphia County
            Civil Division at No(s): August Term, 2008 No. 02637


BEFORE: BENDER, P.J., FORD ELLIOTT, P.J.E., BOWES, GANTMAN,
         DONOHUE, SHOGAN, LAZARUS, OLSON, AND WECHT, JJ.


CONCURRING MEMORANDUM BY BOWES, J.:                    FILED JUNE 06, 2016

      I concur with the learned majority, but write separately to add my

observations about remittitur in general and in this case specifically.

      In Novak v. Supermarkets General Corp., No. 5188, 1994 WL

1251183, at *1 (Pa.Com.Pl. Nov. 18, 1994), former Superior Court Judge

Richard Klein, then Judge in the Philadelphia Court of Common Pleas, opined

that “[a]ssessing damages for pain and suffering is a most difficult

proposition.” He lamented that such an arduous task was left to jurors “with

almost no guidance on how to translate units of pain into dollars and cents.”

Id. Judge Klein found it of the utmost importance for the trial court, with its
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years of experience and familiarity with past verdicts and settlement values,

to ensure that justice be rendered through verdicts within the bounds of

reasonableness.

      In Novak, Judge Klein utilized the six factors set forth in Kemp v.

Philadelphia Transportation Co., 361 A.2d 362 (Pa.Super. 1976) (“Kemp

factors”), in evaluating whether the verdict was excessive and should be

remitted: (1) the severity of the injury; (2) whether plaintiff’s injury is

manifested by objective physical evidence or whether it is only revealed by

the subjective testimony of the plaintiff; (3) whether the injury will affect the

plaintiff permanently; (4) whether the plaintiff can continue with his or her

employment; (5) the size of the plaintiff’s out-of-pocket expenses; and (6)

the amount plaintiff demanded in the original complaint. Id. at 362-64.

      Employing those factors, Judge Klein determined that the Novak

verdict exceeded the bounds of reasonableness. While struggling to arrive

at a more reasonable numerical value for the verdict, even given the

guidance of the Kemp factors, Judge Klein conceded, “[a]ll that I can do is

give my best judgment as an experienced civil trial judge.” Novak, WL

1251183, at *3.    However, Judge Klein believed there had to be a better

way to fix damages for non-economic loss.        Indeed, in Novak he opined,

“[t]here is no question in my mind that we will not be fixing damages for

intangibles this way in 25 years . . . .” Id.




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      Judge Klein recognized the inherent difficulty arising from the

subjective determinations involved in placing a dollar value on another’s

damages, especially non-economic losses.         Our Supreme Court expressed

similar frustration in Haines v. Raven Arms, 640 A.2d 367, 369 (Pa.

1994), observing that, “it is asking a great deal of a lay jury to fix a figure

[in a case like this] with no experience and precious little guidance.” While

the Supreme Court endorsed the trial judge’s “long background from which

to draw when determining what is excessive and what is not excessive,” id.

at 370, it called for such experience to be supplemented with consistent and

predictable review at the appellate level.

      We are charged on appeal with deciding “whether the award of

damages    ‘falls   within   the   uncertain   limits   of   fair   and   reasonable

compensation or whether the verdict so shocks the sense of justice as to

suggest the jury was influenced by partiality, prejudice, mistake, or

corruption.’” Id. at 369. As the Haines Court recognized, it is a daunting

task when the trial court “merely assigns conclusory statements – ‘interests

of justice,’ ‘shocks the court’s conscience,’ and ‘substantial justice.’”        Id.

(quoting Scaife Co. v. Rockwell-Standard Corp., 285 A.2d 451, 456-57

(Pa. 1971)). The Court sought to discourage such practice in favor of trial

courts providing specific reasons in support of their conclusions regarding

remittitur “in order that we may have the opportunity of intelligently

determining if an abuse of discretion occurred.” Id.

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      Twenty-two years after Novak and Haines, I worry that we have yet

to provide sufficient guidance for trial courts facing remittitur decisions.

Sometimes we cite the Kemp factors; other times we consider those factors

without actually acknowledging their origin. See e.g. Dubose v. Quinlan,

125 A.3d 1231, 1244-45 (Pa.Super. 2015) (determining that $1,000,000

Survival Act jury verdict was not excessive without citing Kemp factors, but

considering the severity of the injury and the permanent nature of plaintiff’s

condition); Gurley v. Janssen Pharms., Inc., 113 A.3d 283, 295

(Pa.Super. 2015) (citing Kemp factors, and deferring to trial court’s findings

which considered evidence of the severity and permanent nature of the

injuries); Graham v. Campo, 990 A.2d 9 (Pa.Super. 2010) (utilizing

evidence of lost wages, severity of injuries, and post-injury employment

without citing Kemp factors); Whitaker v. Frankford Hosp. of City of

Philadelphia, 984 A.2d 512 (Pa.Super. 2009) (utilizing evidence of the

severity of injuries and the permanent nature of the injury without citing

Kemp factors); Paliometros v. Loyola, 932 A.2d 128 (Pa.Super. 2007)

(citing Kemp factors and analyzing verdict based on the four factors it found

relevant); Potochnick v. Perry, 861 A.2d 277 (Pa.Super. 2004) (utilizing

evidence   that   plaintiff   was   permanently   unemployable   and   medical

testimony relevant to severity of injuries without citing Kemp factors).

      The Kemp factors provide an adequate starting point for a trial court

facing a remittitur determination.      The severity and permanency of the

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injuries, whether they are objectively manifested, and whether a plaintiff can

resume     his or    her employment,           are   very     helpful in assessing the

reasonableness of a verdict.1        The majority also references the factors set

forth in Pa.R.C.P. 223.3, which we instruct the jury to consider in arriving at

an award for non-economic loss. It stops short, however, of suggesting that

trial   courts   weigh     these    same       factors   in   making   their   remittitur

determinations. The factors include: the age of the plaintiff; 2 the extent to

which the injuries affect the ability of the plaintiff to perform the basic

activities of daily living and other activities in which the plaintiff previously

engaged; the duration and nature of medical treatment; the duration and

extent of the physical pain and mental anguish that the plaintiff has

experienced in the past and will experience in the future; the health and

physical condition of the plaintiff prior to the injuries; and in the case of



____________________________________________


1
  The amount of damages requested in a trespass complaint for personal
injuries usually has little bearing on the value of the case, but merely
determines whether the case is assigned to arbitration or the general docket.
See Pa.R.C.P. 1021(c). However, in Ferrer v. Trs. of the Univ. of Pa.,
825 A.2d 591, 611-612 (Pa. 2002), a contract case, our Supreme Court
remitted a damage award of $5,000,000 to $2,900,000, which was the
maximum value of the loss testified to by the plaintiff’s expert.
2
  Commonly, a plaintiff’s age is used in calculating life-expectancy where the
jury finds the plaintiff’s injuries will continue into the future. See Pa.S.S.J.I.
(Civ) 7.240.




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disfigurement, the nature of the disfigurement and the consequences for the

plaintiff. Pa.S.S.J.I. (Civ.) 7.130 (specifically tracking Pa.R.C.P. 223.3). 3

       I am in favor of trial courts starting with the Kemp factors, and also

utilizing the Rule 223.3 parameters, to evaluate the reasonableness of a

verdict.4 The fact that the trial court employed this dual approach facilitated

our review. However, identifying relevant factors is only the first step. How

a trial court should analyze the factors is just as important. I believe this is

where the trial court went awry in this case, due in large part to our failure

to provide specific guidance in that regard.

       In the instant case, the trial court purported to apply the Kemp

factors.    It described Mrs. Polett’s injuries, discussed her ailments, her

deteriorating condition, and the numerous surgical interventions required to

manage her symptoms.           Trial Court Memorandum, 6/10/11, at 52-55.        It

noted that her functional limitations were permanent as she was not
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3
  Some trial courts have intuitively looked to these additional factors in
making their remittitur decisions.    See e.g., Hyrcza v. West Penn
Allegheny Health Sys., 978 A.2d 961 (Pa.Super. 2009) (where trial court
looked to the Pa.R.C.P. 223.3 factors for non-economic damages in
assessing whether the verdict shocked the conscience); see also
Vogelsberger v. Magee-Womens Hosp. of UPMC Health Sys., 903 A.2d
540, 557 (Pa.Super. 2006) (affirming trial court’s grant of remittitur that
was based on consideration of Pa.R.C.P. 223.3 factors).
4
   Of course, there will always be some measure of subjectivity in
determining the value of another’s pain and suffering, or embarrassment
and humiliation, but that is no bar to developing a predictable and consistent
framework from which we can appraise those circumstances.



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expected ever to be able to fully straighten her leg. Id. at 54. Yet, with

regard to whether she was able to return to gainful employment, the court

simply observed that Mrs. Polett did not work outside the home in 2006,

seemingly rejecting the relevancy of that factor.         Id. at 55.   It similarly

dismissed the absence of out-of–pocket expenses such as medical bills as

insignificant to its analysis.

       Rather than dismiss Kemp factors that are not supported by the

evidence as irrelevant, I believe trial courts should view the absence of such

evidence as significant in assessing the reasonableness of the verdict. For

instance, any analysis of whether the verdict was excessive herein should

include an acknowledgement that Mrs. Polett is not entitled to compensation

for the loss of her ability to work outside the home or medical expenses,

very important elements of compensatory damages.

       While the trial court herein did not expressly reference Pa.R.C.P. 223.3

elements of non-economic damages, it did consider several of those

elements.      For instance, the court noted that the jury was shown

photographs of Mrs. Polett’s permanent scars, evidence probative of her

disfigurement damages.5          Id. at 54.    It summarized what the jury heard

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5
  Mrs. Polett had two previous left knee replacement surgeries as well as a
total right knee replacement surgery, which presumably left scars, prior to
the tortious conduct which is the subject of this case. N.T. Trial Vol. I,
11/15/10, at 114, 116; Vol. II, 11/15/10 at 60.



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from the Plaintiff about her pain and the medical experts’ account of her

surgical ordeals and permanent functional limitations. In addition, the trial

court noted that the jury viewed videos of Mrs. Polett prior to her injuries.

The court drew extensively from the record to demonstrate Mrs. Polett’s

inability to resume her normal daily activities such as driving, and the need

for assistance in dressing herself and getting into bed. She no longer could

enjoy activities such as skiing, swimming, bike riding, or shopping with her

daughter, and due to her condition, had to forego hosting an annual event

for young people at their shore home.

      However, in its weighing of these factors, the trial court did not

consider the activities that Mrs. Polett remained capable of performing.

Following her injury, she traveled domestically to the Poconos, New York

City, Chicago, Utah, and Arizona. N.T. Trial Vol. I, 11/17/10, at 130, 135.

She also traveled internationally to Sweden, Finland, Russia, Vietnam, and

the Caribbean. N.T. Trial Vol. II, 11/17/10 at 49; N.T. Trial Vol. I, 11/17/10,

at 105.   Mrs. Polett maintained her social and civic obligations, i.e., she

attended meetings of the Board of Rosemont College, served as the co-

chairperson of the fund-raising drive at St. Ignatius Nursing Home, and

continued to actively serve on the committee for the Cardinal Christmas for

Children program. N.T. Trial Vol. I, 11/17/10,at 113, 108.

      The trial court also ignored her pre-existing condition.     There was

uncontroverted evidence that Mrs. Polett suffered from rheumatoid arthritis

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and had undergone numerous surgeries and ongoing medical treatment

related to that chronic disease. Furthermore, it did not assess the impact of

her age on her future damages. Mrs. Polett was 67 years old at the time of

her injury and 71 years of age at the time of trial. Evidence was presented

showing her life expectancy in 2010 was 86.1 years.         N.T. Trial Vol. I,

11/18/10, at 84. The trial court correctly informed the jury that Mrs. Polett’s

underlying rheumatoid arthritis was not to be considered in determining

Appellant’s liability, see id. at 79, but that it was relevant to the award of

non-economic damages. Id. at 83. Mrs. Polett’s underlying condition and

life expectancy weigh heavily against upholding this extremely large verdict.

      Instead   of   performing    an   even-handed     assessment     of   the

uncontroverted damages evidence, the trial court recapped only the

evidence that would tend to support the jury’s award of compensatory

damages, and did so in a light most favorable to Mrs. Polett. In essence, the

trial court engaged in a sufficiency analysis, and concluded that no remittitur

was due as “the jury’s decision was supported by all of the evidence.” Trial

Court Memorandum, 6/10/11, at 55-56. However, the issue in remittitur is

not merely whether the evidence is sufficient to support the verdict, but

whether the award is reasonable based on the proven damages.                 A




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reasonableness determination requires an even-handed and balanced

assessment of the evidence accepted by the jury.6

       In justifying its denial of remittitur, the trial court relies upon

McManamon v. Washko, 906 A.2d 1259 (Pa.Super. 2006) (upholding a

$20 million verdict), and its discussion of non-economic damages. However,

in that case, a vehicle struck the plaintiff, who was working as a flag person

for a construction company in a posted work zone.          Id. at 1264.     She

sustained a serious brain injury resulting in permanent cognitive deficits as

well as physical injuries, including multiple broken bones. Id. At the time of

her injury, the plaintiff was a single, forty-one-year-old mother of three. Id.

The jury verdict included more than $7.7 million for past and future medical

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6
  In our recent decision in Dubose v. Quinlan, 125 A.3d 1231 (Pa.Super.
2015), the trial court correctly viewed the controverted evidence of pain
and suffering in the light most favorable to the plaintiff as the verdict winner
in making its remittitur determination. The appellants argued that the $1
million verdict in a survival action was “shockingly excessive in light of the
decedent's pre-existing injuries and lack of brain function.” Id. at 1244.
They also contended that the decedent was in a vegetative state and
suggested that she was incapable of feeling pain. The trial court was quick
to point out that, while the decedent had pre-existing injuries when she
arrived at the nursing home, she did not have the festering bedsores that
eventually caused her death. Furthermore, the trial court cited the plaintiff’s
testimony that the decedent was able to non-verbally interact with him by
moving her hands and watching television, and characterized her mental
awareness as an issue of credibility that the jury had decided in the
plaintiff’s favor. It also rejected the appellants’ premise that the decedent
was physiologically incapable of feeling pain, noting that she was placed on a
pain management program.



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expenses and $400,000 for past and future lost earnings; pain, suffering,

and disfigurement comprised $11 million of the total verdict.

      The injuries in McManamon were catastrophic.           A young healthy

plaintiff was rendered unable to work to support her children and required

assistance to perform the basic activities of daily living. Id. The severity of

the injuries, the age of the victim, the need for daily assistance, the wage

loss and medical bills culminated in a significant award that “fairly

represent[ed] the totality of her injuries.” Id. at 1288.

      My colleagues conclude, and I agree, that the $26.6 million jury award

herein “was excessive – if not punitive - and clearly beyond what the

evidence warrants.”    Majority Memorandum at 6.        I submit that, in the

absence of catastrophic injuries, cognitive deficits, amputation, significant

deformities, or death, this $26.6 million compensatory damage award,

including the $1 million award for loss of consortium, is startling and

excessive.   The Product Liability Advisory Council (“PLAC”), in its amicus

curiae brief, notes that in 2010, Mrs. Polett’s jury verdict represented the

single largest compensatory damages award in Philadelphia, the eighth

largest total verdict awarded in Pennsylvania, and the seventy-fifth largest

total verdict awarded in the country. Brief of amicus curiae Product Liability




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Advisory Council, at 2.7            Her verdict far exceeds other verdicts in

Philadelphia County in 2010, despite the fact that her injuries were less

severe, she had pre-existing medical conditions, no economic damages, and

was older than the other plaintiffs at the time of her injury.8

       In conclusion, I encourage trial courts to apply both the Kemp factors

and the Rule 223.3 elements of non-economic damages in their remittitur

determinations, and to set forth their analysis of these factors to assist us in

our review.      Moreover, in applying those factors, the trial court should

perform a balanced assessment of the proven damages, giving due weight
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7
   See e.g., Rice v. 2701 Red Lion Associates, No. 2328, 2007 WL
3052308 (Pa.Com.Pl. July 5, 2007), reversed on other grounds, 981 A.2d
331 [767 EDA 2007] (Pa.Super. 2009) (unpublished memorandum), verdict
aff’d, 2010 WL 4814409 (Pa.Com.Pl. 2010), where the plaintiff was awarded
$12.4 million for injuries sustained while operating a forklift. In refusing to
grant remittitur, the court noted the plaintiff introduced evidence of $6.4
million in economic damages, was thirty-seven years old at the time of his
injury, was rendered partially paralyzed, would require permanent personal
assistance, and was totally unemployable. See also Van Tassel v. Alfa
Laval Inc., No. 001221-2008, 2010 WL 5626857 (Pa.Com.Pl. March 23,
2010) (awarding $12 million to the estate of an individual who died of
mesothelioma at 64 years of age after suffering from lung collapse, pleural
effusion, and rendered oxygen-tank dependent); Schroeder v. Anchor
Darling Valve Co., No. 00675, 2010 WL 5856065 *3 (Pa.Com.Pl. Sept. 17,
2010) (awarding $10 million to the estate of an individual who died of
mesothelioma at 56 years of age, and had suffered the “excruciating and
debilitating effects of the illness for at least four years before he died”).
8
  That these damages were decreased by 30% due to Mrs. Polett’s
comparative negligence, and that the jury may have increased her award in
expectation of this reduction, does not alter my conclusion that this verdict,
and Mr. Polett’s loss of consortium award, exceeded the bounds of
reasonableness, and should be remitted.



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and consideration to the uncontradicted evidence that tends to mitigate

damages. This approach permits the trial court, and in turn, this Court, to

ascertain whether the amount of the verdict bears a rational relationship to

the loss suffered.

      I join fully in the majority’s decision to remand for remittitur in this

matter.

      Gantman, J. joins this Concurring Memorandum.




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