J-A03045-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

RENAE HAMM AND ALVIN HAMM                       IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellants

                    v.

NATHAN HANDWERK AND GLEN
HANDWERK

                         Appellees                   No. 1109 EDA 2015


              Appeal from the Judgment Entered April 14, 2015
               In the Court of Common Pleas of Lehigh County
                     Civil Division at No(s): 2012-C-3314


BEFORE: GANTMAN, P.J., MUNDY, J., and DUBOW, J.

MEMORANDUM BY GANTMAN, P.J.:                         FILED MARCH 08, 2016

      Appellants, Renae Hamm and Alvin Hamm, appeal from the judgment

entered in the Lehigh County Court of Common Pleas, following a jury trial

on Appellants’ personal injury claims. We affirm.

      The relevant facts and procedural history of this case are as follows.

At about 4:00 a.m. on August 15, 2010, Appellee Nathan Handwerk was

driving while intoxicated when he lost control of his vehicle and struck

Appellants’ home. Police arrived shortly after the accident and administered

field sobriety tests before arresting Nathan Handwerk. None of the officers

who responded to the scene reported that any person sustained injuries as a

result of the accident. The trial court continued:

         Mrs. Hamm was fifty years old at the time of the accident.
         She was employed, as she had been for many years, as a
J-A03045-16


       cafeteria worker in a local school.     Her job required
       repetitive standing on her feet, bending and lifting up to
       forty pounds. She earned $20,212.22 in 2010.

       Although Mrs. Hamm professed not to have any significant
       back issues before the accident, she had an MRI in 2002
       that revealed a disc bulge at the L4—L5 level and some
       age-related degenerative changes, and on May 11, 2010,
       three months before the accident, she reported to her
       employer that she had strained her back by bending and
       lifting a case of lettuce.

       Mrs. Hamm said the accident occurred at about 4:00 a.m.
       on August 15, 2010. She said she was sleeping in bed
       when [the] vehicle struck her house with such force that it
       threw her out of the bed and “next thing I know, I’m
       hitting the cedar chest and hitting the floor.” She thought
       “the gas station exploded[.]” According to Mr. Hamm, he
       was awake at the time of the accident sitting in a back
       room of the house having coffee. Although he is hard of
       hearing, he neither heard nor, more importantly, felt the
       impact of the house being struck by [the] vehicle.

       In any event, Mr. Hamm transported Mrs. Hamm to the St.
       Luke’s Hospital around 11:00 a.m. She did not complain
       of radicular symptoms. There was no history of head or
       neck injury. There was no evidence of bruising, only some
       tenderness in the muscles that run up and down her back,
       muscle spasms of the lower back and a contusion on her
       right forearm. She was discharged with medications.

       She returned to work without any restrictions after only
       two days of rest. She saw her family physician, Dr.
       Slompak, on October 23, and November 26, 2010, on
       complaint of pain in her back and thighs. X-rays of her
       [lumbosacral] spine showed degenerative disc and facet
       disease of the lumbar spine. She underwent an MRI on
       December 2, 2010, that revealed disc herniation at T11—
       T12 and L2—L3, and the previously noted pre-existing disc
       bulge at L4—L5 and/or L3—L4 and some aggravation of
       the age-related degenerative changes.

       She went to Florida when school closed for the Christmas
       holidays to visit her 81 year-old, ailing and infirm parents.

                                   -2-
J-A03045-16


       Although she had intended to return to work after the
       holidays, when school resumed, she remained in Florida
       under an emergency family leave from work and continued
       to care for her parents until early March. Within two
       weeks of her return from Florida, Mrs. Hamm claimed to
       have suffered a work-related injury to her back on March
       28, 2011. When she saw a physician on April 13, 2011, to
       describe the March 28, 2011 work-related accident, she
       failed to mention the August 15, 2010 accident. She
       [later] claimed to have suffered another work-related
       injury to her back on September 21, 2011.

       Although Mrs. Hamm testified she was pain-ridden and felt
       needy and useless after the August 15, 2010 accident, she
       managed to care for her elderly parents while in Florida
       without incident or complaint. She received no treatment
       or physical therapy after the August 15, 2010 accident,
       even after the December MRI and while she was caring for
       her parents in Florida, until after the March 28, 2011 work-
       related accident. When she returned to work in March
       2011, she did so without any restrictions even though her
       work consisted of repetitive standing, bending and lifting.
       It was only after the March 28, 2011 work-related accident
       that she began treatment.

       Mrs. Hamm’s expert witness, Dr. Weiss, evaluated her on
       May 10, 2012, when she was 52 years old and weighed
       240 pounds. At that time, Mrs. Hamm reported that
       between the August 15, 2010 and March 28, 2011
       accidents she was able to perform without difficulty all 23
       of the activities of daily living listed by Dr. Weiss. She had
       no restrictions on her activities of daily living. Dr. Weiss
       concluded that following the August 15, 2010 accident,
       Mrs.     Hamm      suffered      a     “permanent    orthopedic
       impairment,” the herniated discs at T11—T12 and L2—L3,
       but that those impairments did not manifest themselves
       until after the March 28, 2011 accident.

       When [Nathan Handwerk’s] IME doctor, Dr. Williams,
       evaluated Mrs. Hamm on September 16, 2013, she
       weighed 235 pounds. He concluded, as did Dr. Weiss, Mrs.
       Hamm suffered pre-existing degenerative disc and facet
       disease of the lumbar and thoracic spines and a lumbar
       sprain/strain as a result of the August 15, 2010 accident.

                                    -3-
J-A03045-16


          He     characterized    the   sprain/strain    injuries    as
          “subjective…unless the sprain or strain is sufficient to
          severely tear tissues.” Dr. Weiss also indicated it was his
          experience that “depend[ing] on the degree…most patients
          recover [from a sprain and strain] within three, perhaps
          six months at most.” He also said it was his experience
          that patients with a sprain and strain continue to treat with
          a medical provider “[u]nless they have treated for so long
          they finally give up.” As noted, Mrs. Hamm underwent no
          treatment between the August 15, 2010 and March 28,
          2011 accidents. Furthermore, Dr. Williams concluded the
          injuries Mrs. Hamm sustained from the March and
          September 2011 work-related accidents were not caused
          by the August 15, 2010 accident.

(Trial Court Opinion, filed March 16, 2015, at 2-5) (internal citations

omitted).

        On January 3, 2013, Mrs. Hamm and her husband Mr. Hamm sued

Nathan Handwerk and his father Glen Handwerk, who owned the vehicle

involved in the crash, based on claims of negligence and loss of consortium.

Prior to trial, the parties entered into a stipulation removing Glen Handwerk

as a party in the case. The case proceeded to a jury trial on September 15,

2014.    Based on an agreement between the parties’ experts at trial, the

court instructed the jury to find against Nathan Handwerk on causation, and

to find Mrs. Hamm suffered a sprain and strain of her lower back and a

symptomatic     aggravation    of    her    preexisting     lumbar   and   thoracic

degenerative disc disease as a result of the accident. The jury found Nathan

Handwerk     was   reckless,   and   it    awarded   Mrs.   Hamm     $1,000.00   in

compensatory damages and $10,000.00 in punitive damages.                   The jury

awarded Mr. Hamm no damages for loss of consortium. The court molded

                                          -4-
J-A03045-16


the verdict to reflect a judgment in favor of Mrs. Hamm for a total of

$11,000.00.

       On September 25, 2014, Appellants timely filed post-trial motions

requesting a new trial.         Nathan Handwerk also filed a post-trial motion

requesting remittitur of the punitive damages verdict. The court denied both

motions on March 16, 2015. Upon praecipe of Appellants, the court entered

judgment on the verdict on April 14, 2015. Appellants timely filed a notice

of appeal the same day. On April 22, 2015, the court ordered Appellants to

file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b), and they timely complied on April 29, 2015.1

       Appellants raise the following issues for our review:

          MUST THE ORDER DENYING APPELLANTS’ NEW TRIAL
          MOTION BE REVERSED SINCE THE VERDICT OF $1,000.00
          WAS CLEARLY INADEQUATE AND AGAINST THE WEIGHT
          OF THE EVIDENCE, CONSIDERING THAT THE VERDICT
          DOES NOT EVEN COMPENSATE FOR RECOVERABLE
          MEDICAL EXPENSES OR WAGE LOSS LET ALONE PAIN AND
          SUFFERING, AND CONSIDERING THE ADMISSIONS OF
          DEFENSE ORTHOPEDIC EXPERT JOHN WILLIAMS, M.D.,
          THAT: A) [MRS. HAMM] SUFFERED A LUMBAR SPRAIN AND
          STRAIN AND SYMPTOMATIC EXACERBATION OF LUMBAR
____________________________________________


1
  To the extent Appellants challenge on appeal the inadequacy of the jury’s
verdict regarding Mr. Hamm’s claim for loss of consortium, Appellants
waived that argument by failing to identify it clearly in their post-verdict
motions or include it in their Rule 1925(b) concise statement.          See
Majorsky v. Douglas, 58 A.3d 1250 (Pa.Super. 2012), appeal denied, 620
Pa. 732, 70 A.3d 811 (2013) (reiterating general rule that issues not raised
before trial court are waived and cannot be raised for first time on appeal,
citing Pa.R.A.P. 302; likewise, issues absent from court-ordered Rule
1925(b) statement are waived for purposes of appellate review).



                                           -5-
J-A03045-16


       AND THORACIC DEGENERATIVE DISC DISEASE; B) IT
       WOULD REQUIRE AT LEAST 3-6 MONTHS TO RECOVER
       FROM THE LUMBAR SPRAIN AND STRAIN AND THERE IS A
       25-30% CHANCE THAT THE INJURY MIGHT BE
       PERMANENT; C) [MRS. HAMM] IS DISABLED FROM
       RETURNING TO HER JOB AS A CAFETERIA WORKER; D)
       [MRS. HAMM’S] COMPLAINTS HAVE AN OBJECTIVE BASIS
       FROM THE MRIS AND X-RAYS; E) ALL OF [MRS. HAMM’S]
       TREATMENT HAS BEEN REASONABLE AND NECESSARY; F)
       [MRS. HAMM’S] CONDITION IS PERMANENT; G) THE
       8/15/2010 ACCIDENT CAUSED AT LEAST SOME OF
       [MRS. HAMM’S] PERMANENT DISABILITY (AND
       THEREFORE PERMANENT INJURY); AND H) IF SHE
       EXPERIENCE[D] RADIATING PAIN AND NUMBNESS PRIOR
       TO 03/28/11, THEN THE PRESSURE ON THE NERVE HAD
       TO PRE-EXIST HER FIRST WORK ACCIDENT?

       MUST A NEW TRIAL BE GRANTED BECAUSE THE TRIAL
       COURT ERRED IN FAILING TO GIVE PENNSYLVANIA
       SUGGESTED STANDARD JURY INSTRUCTION 7.90 (OR
       EQUIVALENT CHARGE) ON OTHER CONTRIBUTING
       CAUSES?

       MUST A NEW TRIAL BE GRANTED BECAUSE THE TRIAL
       COURT ERRED IN REFUSING TO GIVE [APPELLANTS’]
       SUPPLEMENTAL POINTS FOR CHARGE 1 & 2 REGARDING
       CAUSATION OF SUBSEQUENT INJURIES ARISING FROM
       HER IMPAIRED PHYSICAL CONDITION CAUSED BY THE
       AUGUST 15, 2010 ACCIDENT?

       DID THE TRIAL COURT COMMIT PREJUDICIAL ERROR BY
       FAILING TO PRECLUDE THE [DEFENSE] IME DOCTOR,
       JOHN WILLIAMS, M.D., FROM TESTIFYING CONCERNING
       HIS REVIEW OF MRI FILMS WHICH WERE NOT CONTAINED
       IN HIS REPORT AND WHICH HE GAINED ACCESS TO BY
       VIOLATING THE DISCOVERY RULES AND HIPPA RULES
       CONCERNING ACQUIRING PATIENT INFORMATION?

       BECAUSE THE FOLLOWING ISSUES HAVE BEEN FAIRLY
       DECIDED:  A)  THAT   [NATHAN   HANDWERK]   WAS
       NEGLIGENT AND THAT HIS NEGLIGENCE CAUSED [MRS.
       HAMM] HARM; B) THAT [NATHAN HANDWERK] WAS
       RECKLESS AND THAT HIS RECKLESSNESS CAUSED [MRS.
       HAMM] HARM; AND C) THAT [NATHAN HANDWERK’S]

                             -6-
J-A03045-16


         CONDUCT WAS OUTRAGEOUS AND DESERVING OF
         PUNITIVE DAMAGES; SHOULD THE NEW TRIAL BE
         LIMITED TO DETERMINING THE FOLLOWING ISSUES: 1)
         THE AMOUNT OF COMPENSATORY DAMAGES TO BE
         AWARDED    FOR   THE  NATURE   AND  EXTENT   OF
         [APPELLANTS’]  HARM  RESULTING   FROM  [NATHAN
         HANDWERK’S] CONDUCT; AND 2) THE AMOUNT OF
         PUNITIVE DAMAGES TO BE AWARDED AS A RESULT OF
         [NATHAN HANDWERK’S] RECKLESS AND OUTRAGEOUS
         CONDUCT?

(Appellants’ Brief at 3-4).

      Appellants essentially argue they are entitled to a new trial because

(a) Nathan Handwerk admitted liability for the accident; (b) Mrs. Hamm is

permanently disabled and cannot resume her job as a cafeteria worker; (c)

Nathan Handwerk’s own defense expert conceded Mrs. Hamm suffered from

a lumbar sprain and strain from the accident and cannot continue to work;

(d) both parties’ experts agreed that the August 15, 2010 accident

contributed to Mrs. Hamm’s ultimate disability; (e) Nathan Handwerk’s

expert admitted Mrs. Hamm’s course of medical treatment was reasonable

and necessary; (f) the trial court directed a verdict because both parties’

experts agreed Mrs. Hamm suffered injuries from the accident; (g) the jury

award of $1,000 in compensatory damages was inadequate and against the

weight of the evidence; (h) given the directed verdict, the trial court should

have instructed the jury that an intervening cause of harm such as Mrs.

Hamm’s    subsequent     work-related   injuries   would   not   relieve   Nathan

Handwerk of his responsibility for causing Mrs. Hamm’s disability; (i) the

court erred in refusing to give Appellants’ proffered points for charge

                                    -7-
J-A03045-16


regarding Mrs. Hamm’s impaired physical condition caused by the accident;

(j) the court should have precluded defense expert Dr. John Williams from

testifying to MRI film results he allegedly obtained outside of discovery.

Appellants contend they are entitled to a new trial on damages as a result of

these errors. We disagree.

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Edward D.

Reibman, we conclude Appellants’ issues merit no relief.     The trial court’s

opinion fully discusses and properly disposes of Appellants’ issues on appeal.

(See Trial Court Opinion, filed March 16, 2015, at 5-12) (finding: (1) & (5)

Mrs. Hamm had history of back issues prior to 8/15/10 accident; Mrs.

Hamm’s description of force of 8/15/10 collision was inconsistent with her

husband’s description of that force; Mrs. Hamm’s injuries at time of hospital

visit six hours later consisted of only muscle tenderness and spasms, and

single contusion on her forearm; Mrs. Hamm’s job required repetitive

standing, bending, and lifting, but she returned to work full time after only

two days without any restrictions; Mrs. Hamm cared for her elderly parents

in Florida from end of December 2010 until March 2011, without injury or

complaint; Mrs. Hamm did not seek treatment after 8/15/10 collision until

after new work-related 3/28/11 injury; at treatment for 3/28/11 injury, Mrs.

Hamm did not mention 8/15/10 accident; court instructed jury to find Mrs.

Hamm suffered sprain/strain of her lower back as result of 8/15/10 that


                                    -8-
J-A03045-16


aggravated pre-existing degenerative condition; Mrs. Hamm’s injuries from

8/15/10 accident are wholly subjective and difficult to quantify; jury

concluded $1,000.00 was appropriate amount of compensatory damages for

Mrs. Hamm’s 8/15/10 accident-related injuries; jury was free to evaluate

Mrs. Hamm’s credibility and compensate her for portion of injuries it

attributed to 8/15/10 accident; Appellants rely on cases which are not

dispositive here; jury awarded Mrs. Hamm punitive damages of $10,000.00;

ratio between punitive damages award and compensatory damages award of

10:1 is just over single-digit range favored in case law; nevertheless, jury’s

verdict was reasonable and serves as both punishment and deterrent;

rejection of jury’s award would substitute court’s judgment for that of jury;

court declines to disturb jury’s award of compensatory or punitive damages;

(2) & (3) jury instruction 7.90 on other contributing causes is relevant to

past injuries that contributed to plaintiff’s injury in 8/15/10 accident; in such

cases, tortfeasor accepts plaintiff as plaintiff existed at time of tortfeasor’s

negligent act; here, Mrs. Hamm sought to make Nathan Handwerk

responsible for subsequent injuries she sustained from her subsequent work-

related accidents on 3/28/11 and 9/21/11; Mrs. Hamm offered no evidence

to demonstrate her work-related accidents were caused by injuries she

sustained from 8/15/10 collision; Mrs. Hamm’s subsequent injuries might

have been exacerbated because of her compromised condition resulting from

8/15/10 incident, but she failed to present evidence demonstrating either


                                      -9-
J-A03045-16


work-related injury was directly caused by injuries from 8/15/10 collision; it

would have been inappropriate to instruct jury that Nathan Handwerk should

be liable to Mrs. Hamm for her later, independent work-related injuries

simply because her physical condition might have been weaker on dates of

those later injuries; (4) Dr. Williams’ testimony was limited to agreement

with reports by radiologist, and his review of Mrs. Hamm’s films was simply

confirmation that Dr. Williams agreed with radiologist; thus, Dr. Williams’

opinion was fully revealed to Appellants, and no new or potentially

prejudicial conclusions were set forth or present prejudicial surprise;

regarding Dr. Williams’ access to MRI films, Dr. Williams had access to

review Mrs. Hamm’s records based on her consent; Dr. Williams was unable

to read copies of records produced through discovery due to poor copying of

records, so he reviewed same records he had consent to review through

different medium of Lehigh Valley Hospital’s computer system; Dr. Williams

did not exceed scope of Mrs. Hamm’s consent).       The record supports the

court’s decision on Appellants’ properly preserved claims.   Accordingly, we

affirm on the basis of the trial court’s opinion.

      Judgment affirmed.




                                      - 10 -
J-A03045-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/8/2016




                          - 11 -
FILED 3/16/2015 9:33·"'~ AM.Clerk of Judicial Records, Civil r            'sion, Circulated 02/19/2016
                                                                                 Lehigh County,     PA01:41 PM
                                              2012-C-3314                 /s/J W




     IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA
                            CIVIL DIVISION



       Renae Hamm, Alvin Hamm,

               Plaintiffs,                            No. 2012,.C-3314
                                                      (Hon. Edward D. Reibman)
               v.
       Nathan Handwerk, Glen Handwerk,

               Defendants.



                                          OPINION

                       *                                             *

APPEARANCES:

       Michael A. Snover, Esquire
              on behalf of Plaintiffs Renae Hamm and Alvin Hamm

       Jill M. Moffitt, Esquire
       FORRY ULLMAN
               on behalf of Defendants Nathan Handwerk and Olen Handwerk


                       *                                             *
EDWARD D. REIBMAN, J.


       During the early morning hours of August 15, 2010, Defendant, Nathan Handwerk,

(''Defendant") while driving intoxicated, lost control of his vehicle> which then left the roadway

and struck Plaintiffs' house. Plaintiff Renae Hamm ("Mrs. Hamm") claimed she received
FILED 3/16/2015     9:33•"'1 AM.Clerk of Judicial Records, Civil r 'slon, Lehigh County, PA
                                                      2012-C-3314          /s/J W


serious injuries when the force of the accident caused her to be thrown from .her bed, and that but

for those injuries she would not have suffered. subsequent work injuries that left her permanently

disabled. Her husband, Alvin Hamm ("Mr. Hamm"), claimed damages as a result of the loss of

her consortium.

        A trial by jury was held from September 15 through 19, 2014. The jury was instructed to

find Defendant was negligent and, based upon statements made by the parties' expert witnesses,

that Mrs. Hamm suffered a sprain and strain of her lower back and a symptomatic aggravation of

her preexisting lumbar and thoracic degenerative disc disease as a result of the accident. The

jury found Defendant was reckless, and it awarded Mrs. Hamm compensatory damages in the

amount of$1,000.00 and punitive damages in the amount of$10,000.00. It awarded no damages

to Mr. Hamm.

       Before the court are Plaintiffs' post-trial motions seeking (1) a new trial on the bases the

verdict was inadequate and against the weight of the evidence, and the court erred in (a) refusing

to give requested charges to the jury with respect to contributing causes and causation and (b)

failing to preclude Defendant's IME doctor from testifying concerning his review of MRI films

that were not referenced in his report and which he viewed in violation of rules of discovery and

patient privacy, and (2) remitter of the punitive damage verdict,'

       Mrs, Hamm was fifty years old at the time of the accident. She was employed, as she had

been for many years, as a cafeteria worker in a local school. Her job required repetitive standing

on her feet, bending and lifting up to forty pounds. She earned $20,212.22 in 2010-.



        In their post-trial motions, Plaintiffs also claimed the court erred in denying their motion
for a mistrial after Defendant argued in closing the jury should infer adversely to the Plaintiffs
the fact Plaintiffs did not call Mrs. Hamm' s treating physician to testify, and Defendant claimed
the court erred in not removing Defendant Glen Handwerk from the caption of the ease.
However, those claims were abandoned by counsel at oral argument.
                                                  2
FILED 3/16/2015 9:3? -~ AM, Clerk of Judicial Records, Civil          r    sion, Lehigh County, PA
                                                      2012-C-3314         /s/J W


        Although Mrs. Hamm professed not to have any significant back issues before the

accident, she had an MRI in 2002 that revealed a disc bulge at the L4-L5 level and some age-

related degenerative changes> and on May 11, 2010, three months before the accident, she

reported to her employer that she had strained her back .by bending and lifting a case of lettuce.

       Mrs. Hamm said the accident occurred at about 4:00 a.m. on August 15, 2010. She said

she was sleeping in bed when Defendant's vehicle struck her house with such force that.it threw

her out of the bed and the "next thing I know, I'm hitting the cedar chest and hitting the floor,"

She thought "the gas station exploded". N.T., Vol. II, pp. 59:14-60:1, 122:24-123:1. According

to Mr. Hamm, he was awake at the time of the accident sitting in a back room of the house

having coffee. Although he is hard of hearing, he neither heard nor, more importantly, felt the

impact of the house being struck by Defendant's vehicle.

       In any event, Mr. Hamm transported Mrs. Hamm to the St. Luke's Hospital around 11 :00

a.m. She did not complain of radicular symptoms. There was no history of head or neck injury.

There was no evidence of bruising, only some tenderness in the muscles that run up and down

her back, muscle spasms of the lower back and a contusion on her right forearm. She was

discharged with medications.

       She returned to work without any restrictions after only two days of rest. She saw her

family physician, Dr. Slompak, on October 23, and November 26, 2010, on complaint of pain in

her back and thighs. X-rays of her lumbrosacral spine showed degenerative disc and facet

disease of the lumbar spine. She underwent an MRI on December 2, 2010, that revealed disc

herniation at Tl l-Tl2 and L2-L3, and the previously noted pre-existing disc bulge atL4-L5

and/or L3·L4 and some aggravation of the age-related degenerative changes.




                                                 3
FILED 3/16/2015 9:3?·-'18 AM,Clerk of Judicial Records, Civil           r ·   ·iision, Lehigh County, PA
                             .                         2012-C-3314              islJ W


        She went to Florida when school closed for the Christmas holidays to visit her 81 year-

old, ailing and infirm parents. Although she had intended to return to work after the holidays,

when school resumed, she remained in Florida under an emergency family leave from work and

continued to care for her parents until early March. Within two weeks of her return from

Florida, Mrs. Hamm claimed to have suffered a work-related injury to her back on March 28,

2011. When she saw a physician on April 13, 2011, to describe the March 28, 2011, work-

related accident, she failed to mention the August 15, 2010, accident. She claimed tohave

suffered another work-related injury to her back on September il, 2011.

       Although Mrs. Hamm testified she was pain-ridden and felt needy and useless after the

August 15, 2010, accident, she managed to care for her elderly parents while in Florida without

incident or complaint. She received no treatment or physical therapy after the August 15, 2010,

accident, even after the December MRI and while she was caring for her parents in Florida, until

after the March 28, 2011 work-related accident. When she returned to work in March, 2011, she

did so without any restrictions even though her work consisted of repetitive standing, bending

and lifting. It was only after the March 28, 2011, work-related accident that she began

treatment.

       Mrs. Hamm's expert witness. Dr. Weiss, evaluated her on May 10, 2012, when she was

52 years old and weighed 240 pounds. At that time, Mrs. Hamm reported that between the

August 15, 2010, and March 28, 2011, accidents she was able to perform without difficulty all 23

of the activities of daily living listed by Dr. Weiss. She had no restrictions on her activities of

daily living. Dr. Weiss concluded that following the August 15, 2010, accident, Mrs, Hamm

suffered a "permanent orthopedic impairment," the herniated discs at Tl 1-Tl2 and L2-L3, but

that those impairments did not manifest themselves until after the March 28, 2011, .accident.



                                                  4
 FILED 3/16/2015 9:~"-18 AM, Clerk of Judicial Records, Civi'                rision, Lehigh County, PA
                              .                          2012-C-3314          /s/J W

         When Defendant's IME doctor, Dr. Williams, evaluated Mrs. Hamm, on September 16,

 2013, she weighed 235 pounds. He concluded, as did Dr. Weiss, Mrs. Hamm suffered pre-

 existing degenerative disc and facet disease of the lumbar and thoracic spines and a lumbar

 sprain/strain as a resu1t of the August 15, 20 I 0, accident. He characterized the sprain/strain

 injuries as "subjective ... unless the sprain or strain is sufficient to severely tear tissues." Dr.

 Weiss also indicated it was his experience that "depend[ing] on the degree, ... ~ most patients

 recover [from a sprain and strain] within three, perhaps six months· at most." He also said it was

 his experience that patients with a sprain and strain continue to treat with a medical provider

 "[u]nless they have treated for so long they finally give up." Williams Depo., id., pp . .38: 19-

41:25; 43:21-44:4. As noted, Mrs. Hamm underwent no treatment between the August 15,

2010, andMarch 28, 2011, accidents. Furthermore, Dr. WilJiams concluded the injuries Mrs.

Hamm sustained from the March and September, 2011, work-related accidents were not caused

by-the August 15, 2010, accident.

        The relevant principles oflaw to evaluate whether the verdict was inadequate and against

the weight of the evidence are well-settled. "A trial court may only grant a new trial when the

jury's verdict is so contrary to the evidence that it 'shocks ones sense of justice.   m   Burnhauser v.

Bumberger, 745 A.2d 1256, 1260 (Pa. Super. 2000) (quotingNeison v. Hines, 653 A.2d 634, 636

(Pa. 1995)). "A jury verdict is set aside as inadequate where it clearly appears from

uncontradicted evidence that the amount of the verdict bears no reasonable relation to the loss

suffered by the plaintiff." Burnhauser, 745 A.2d at 1261 (citing Kiser v. Schulte, 648 A.2d 1~ 4

(Pa. 1994)). "[TJhe jury is free to believe all, some or none of the testimony presented by a

witness." Neison, 653 A.2d at637 (citing Gaita v. Pamula, 122 A.2d 63 (Pa. 1956); Algeo v ..

Pittsburgh Rys. Co, 198 A.2d 415, 416-17 (Pa. Super. 1964)). However, "the verdict must not be



                                                   5
 FILED 3/16/2015 9:33·~B AM.Clerk          of Judicial Records, Civil r 'slon, Lehigh County, PA
                                                         2012-C-3314         /s/J W


 a product of passion, prejudice, partiality, or corruption, or must bear some reasonable relation to

 the loss suffered by the plaintiff as demonstrated by uncontroverted evidence presented at trial,"

 Neison, 653 A.2d at 637 (citing Elza v. Chovan, 152 A.2d 238, 240 (Pa. 1959); Slaseman v.

 Myers, 455 A.2d 1213, 1215 (Pa. Super. 1983)). "The synthesis of these conflicting rules is that

 a jury is entitled to reject any and al] evidence up until the point at which the verdict is so

 disproportionate to the uncontested evidence as to defy common sense and logic." Neison, 653

 A.2d at 637. A jury is not required to award plaintiff any amount if it believed the injury suffered

 in an accident is insignificant. See Holland v .. Zelnick, 478 A.2d 885, 888 (Pa. Super. 1984).

Further, ..jurors are not compelled to find pain where there was no objective injury .. .it is.not a

fact of human experience that every tortproduces compensable pain." Boggavarapu v. Ponist,

542 A.2d 516, 519 (Pa. 1988) (emphasis in original). A jury is "not required to accept everything

or anything the plaintiff and her doctor· said, even if their testimony was uncontradicted."

Bronchak v. Rehmann, 397 A.2d 438. 440 (Pa. Super. 1979). There is not "any particular ratio of

pain and suffering damages to special damages or any particular dollar figure as automatically

constituting inadequacy." Hill v. Com .• Bureau of Corrections, 555 A.2d 1362, 1368 (Pa.

Cmwlth, 1989) ("Each case must be examined in thelight of its unique facts."). See, also,

Ricciuti v. Estate of Pohlman,_      A.3d _     (Pa.Super. 20 l 5)(No. 706 WDA 2014, decided

February 18, 2015).

         Mrs. Hamm had a history of back issues before the August 15, 2010, accident. Her

description of the force of the collision of Defendant's vehicle with her house wasnot shared by

Mr. Hamm. The injuries the jury was instructed to find- a sprain and strain of her lower back

that allegedly aggravated. a pre-existing, degenerative condition - are difficult to quantify. Other

than some muscle tenderness and spasms, and a contusion on her forearm, no other injuries were



                                                   6
FILED 3/16/2015 9:3~·"'~ AM.Clerk of Judicial Records, Civil            r   'slon, Lehigh County, PA
                                              2012-C-3314                   /s/J W


noted at the hospital. She was discharged with medications. Although her job required

repetitive standing, bending and lifting, she missed only two days ofwork before returning to

work without any restrictions. She cared for her elderly parents in Florida from the end of

Decemher until March without incident or complaint. She underwent no treatment after the

August, 2010, accident until.after the March 28, 2011~ work-related accident and, even then, did

not mention the August, 2010, accident.

        The jury, in its collective wisdom, concluded $1,000.00 was the appropriate amount of

compensatory damages for those injuries Mrs. Hamm sustained as.a result of the August, ;2010,

accident. Plaintiffs' references in their brief to cases where the jury awarded no damages are

inapposite because here the jury did award darn.ages. The jury was free to evaluate Mrs. Hamm 's

credibility and compensate her for only the portion of her injuries it attributed to the August 15,

2010, accident. To reject the jury's award would be to substitute the court's judgment for that of

the jury. Consequently, the jury's award of compensatory damages will not be disturbed.

       Plaintiffs next claim the Court erred in failing to give Pennsylvania Suggested Standard

Jury Instruction 7.90, or an equivalent charge, on other contributing causes and their requested

supplemental points for charge 1 and 2 regarding causation of subsequent injuries arising from

an impaired physical condition caused by the August 15, 2010, accident.

       The subcommittee notes following Instruction 7 .90 make it clear that the instruction is

relevant to past injuries that contributed to a plaintiff's injury in a current accident. As the

subcommittee note following Instruction 7.90 states, citing Majors v. Broadhead Hotel, 205 A.2d

873 (Pa. 1965), "The Supreme Court' s standards in such situations clearly announce that the

defendant is liable for the plaintiff's entire present condition, even though a prior condition may

have been a contributing cause to the plaintiff's present complaints." (Emphasis added.) In other



                                                   7
FILED 3/16/2015 9:2"-·~8 AM, Clerk of Judicial Records, Civi'              .lslon, Lehigh County, PA
                            .                          2012-C-3314           /s/J W


words, a tortfeasor would be responsible for all injuries the plaintiff suffered as a result of that

tortfeasor's actions even though the plaintiffs prior condition contributed to the plaintiff's

present complaints. To state it more casually, the tortfeasor accepts the plaintiff as the plaintiff

existed at the time of the negligent act. Here, Mrs. Hamm sought to make Defendant responsible

for the subsequent injuries she sustained from th.e March and September 2011, work-related

accidents.

        Plaintiffs' authority in support of their. position is unavailing. Marshall v. City of

Pittsburgh, 180 A. 733 (Pa. Super 1935), is a workmen's compensation case, not a negligence

action. In Nikisher v. Benninger, 377 Pa. 564, 105 A.2d 281 (Pa.1954), the plaintiff was

convalescing from a broken leg suffered as a result of an automobile accident when he placed

weight on the injured leg which failed to support him and, as a result, he fell and injured the

same leg as the original injury. There was no evidence of negligence as to the second injury;

rather, the issue was whether the injured leg gave way from weakness as a result of the first

accident. There was no independent, subsequent accident. The Supreme Court stated: "If in

truth and in fact the second accident was caused by the weakened condition of the leg due to the

original accident, the second injury may properly be referred back to the original injury." 105

A.2d at 284. Here, there was no evidence or offer of proof to believe Plaintiffs second or third

accident -- her work-related accidents in March and September, 2011 --were caused by injuries

sustained from her first accident. In Bender v.   Welsh, 344 Pa. 392, 25 A.2d    182 (Pa. 1942), the

plaintiff contended her subsequent fall was attributable to the failure of the limb injured in the

first accident to function properly, i.e. the result of the original injury; the defendant contended

the plaintiff slipped from an independent cause and that therefore the original accident was not

responsible for the subsequent injuries. As the court stated: "Evidence of a subsequent injury is



                                                   8
FILED 3/16/2015 9:2"'18 AM, Clerk of Judicial Records, Civ! ·           rision, Lehigh County, PA
                           .                           2012-C-3314       /s/J W

admissible to affect the measure of damages on the original injury only if the subsequent injury

was proximately caused by the original negligence," 25 A.2d at 185. See, also, Pa. Trial Guide,

"Damages, Death Actions, Consortium," § 6.4 (Defendant not liable for subsequent accident if

subsequent accident not caused by the impairment resulting from original injuries.)

        While Mrs. Hamm's injuries sustained in the second and third accidents may have been

exacerbated because of a compromised condition resulting from the August, 2010, accident,

there was no evidence to believe either of the March or September; 2011, accidents was caused

by the injuries incurred from the August, 2010, accident. Defendant is only responsible to Mrs.

Hamm as he found her in August 2010, and it would have been inappropriate to instruct the jury

that Defendant should be liable to Mrs. Hamm for her independent, work-related injuries in

March and September, 201 l, simply because he may have contributed to her physical condition

as it existed in March and September 2011.

       Next, Plaintiffs contend the Court erred by failing to preclude Defendant's lME doctor,

Dr. Williams, M.D., from testifying concerning his review of Mrs. Hamm's MRI films on the

bases Dr. Williams'stestimony    concerning his review of MRI films was not contained in his

expert report and Dr. Williams gained access to those films by violating discovery rules and

medical rules for acquiring patient information.

       Dr. Williams' s testimony was limited to agreement with reports by the radiologist, and

his review of Mrs. Hamm's films was simply a confirmation that he agreed with the radiologist.

Therefore, Dr. Williams's opinion was fully revealed to Plaintiffs, and no new or potentiaJly

prejudicial conclusions were.set forth. See Woodard v. Chatterjee, 827 A.2d 433, 441 (Pa. Super.

2003) ("The purpose of [the fair scope rule] is '[t]o prevent incomplete 'fudging' of reports

which would fail to reveal fully the facts andopinions of the expert or his grounds therefor,' In



                                                   9
FILED 3/16/2015 .9:3?·".)~ AM,Clerk of Judicial Records, Civil·            'sion, Lehigh County, PA
                                .                       2012-C-3314       · /s/J W

otherwords, the fair scope rule 'favors the liberal discovery of expert witnesses and disfavors

unfair and prejudicial surprise.:" (internal citations omitted)). The content of Dr. Williams's

testimony did not present prejudicial surprise. On the issue of Dr. Williams's access to

Mrs. Hamm 's MRI films, Plaintiffs contend that by accessing the films on the Lehigh Valley

Hospital Network Computer System, Dr. Williams engaged in the ex parte acquisition of a

patient's information in violation of discovery rule Pa.R.C.P. No. 4003.6. However,

Dr. Williams had Mrs. Hamm' s consent to review her films. Dr. Williams apparently took it

upon himself to access Mrs. Hamm' s films through a different medium, the Lehigh Valley

Hospital's computer system, rather than utilize the films copied and produced through the

litigation process that he concluded made them difficult to read. He did not exceed the scope of

Mrs. Hamm's consent. The record does not suggest Dr. Williams' testimony prejudiced Mrs.

Hamm or improperly affected the verdict in any way.

           Finally, as to Defendant's claim that the punitive damage award should be reduced, "[i]t

is the rule in Pennsylvania that an award of exemplary damages must bear a reasonable

proportion to the award of actual damages." Mitchell v. Randall, 137 A. 171, 172 (Pa. 1927).

"The size of a punitive damages award must be reasonably related to the State's interest in

punishing and deterring the particular behavior of the defendant and not the product of

arbitrariness or unfettered discretion." Shiner v. Moriarty, 706 A.2d 1228, 1241 (Pa. Super.

1998); ·

           In State Fann Mut. Auto. Ins. Co. v. Campbell. 538 U.S. 408. (2003), the UnitedStates

Supreme Court held that a punitive damages award of $145 million, where full compensatory

damages are $1 million, was excessive and violated the Due Process Clause of the Fourteenth

Amendment.



                                                   10
 FILED 3/16/20159:3"·~8          AM.Clerk of Judicial Records, Civil       ision, Lehigh County, PA
                             .                        2012-C-3314          /s/J W

           Campbell noted that "punitive damages serve a broader function [than compensatory

 damages]; they are aimed at deterrence and retribution." Id. at 416. "To the extent an award is

 grossly excessive, it furthers no legitimate purpose and constitutes an arbitrary deprivation of

property." Id. at 417. The Court in Campbell begins by stating that "the most important indicium

of the reasonableness of a punitive damages award is the degree of reprehensibility of the

defendant's conduct." Id. at 419 (quoting BMW ofN. America. Inc. v. Gore, 517 U.S. 5'59, 575

(1996)). «It should be presumed a plaintiff has been made whole for his injuries by compensatory

damages, so punitive damages should only be awarded if the defendant's culpability ... is so

reprehensible as to warrant the imposition of further sanctions to achieve punishment or

deterrence." Id. (citing Gore, 517 U.S. at 575). Next, when reviewing an award of punitive

damages, Campbell instructs that a court should look to the "disparity between the actual or

potential harm suffered by the plaintiff and the punitive damages award." Id. at 418 .. Campbell

"declinejd] to impose a bright-line ratio which a punitive damages award cannot excess," but

noted that awards exceeding a single-digit ratio may potentially violate due process. Id. at 425.

While "single digit multipliers are more likely to comport with due process," greater ratios "may

comport with due process where 'a particularly egregious act has resulted in only a small amount

of economic damages." Id. Lastly, Campbell instructs courts to examine "the disparity between

the punitive damages award and the 'civil penalties authorized or imposed in comparable

cases.:"

        Considering the factors set forth in Campbell, the award of $10,000 for conduct of

driving while intoxicated, which the jury found to be outrageous and with a reckless indifference

to the interests of others, does not shock the conscience of the court even in relation to the

amount of compensatory damages it awarded to Mrs. Hamm. The ratio here between the punitive



                                                  11
FILED 3/16/2015 9:3?--'.'l~ AM,Clerk of Judicial Records, Civil·            'slon, Lehigh County, PA
                                                 2012-C-3314                 /s/J W


and compensatory damages of I 0:.1 is just beyond the single-digit range- favored in. Campbell, id.

at 425. That is not an unconscionable result.

       Finally, as the issue was raised by Defendant, although wealth has been considered as a

factor in determining an appropriate amount of punitive damages in cases tn Pennsylvania, see

Kirkbride v. Lisbon Contractors. Inc., 555 A.2d 800, 803 (Pa. 1989) (citing Section 908(2) of the

Restatement (Second) of Torts), evidence of wealth is not a prerequisite as to whether punitive

damages may be imposed. Vance v. 46 and 2, Inc., 920A.2d 202, 206-207 (Pa. Cm.with. 2007).

In any event, Defendant testified he was employed at the time of the accident and at the time of

trial. The punitive damages award of$10,000.00 imposed by the jury is reasonable, serves as

both a punishment and deterrent, and will not be disturbed. by the court.



  /)f'-,,;'i~.il#l'.r'                                ~-J-.                             - ....




                                                 12
