To Repair or Replace: Damages for Replacement Costs Upheld (PA)

The Pennsylvania Superior Court recently affirmed a damages award that came under appeal after defendants argued that it was not supported by competent evidence.  In 700 EBA v. Weaver’s Glass & Building, No. 1868 MDA 2016, defendants Weaver’s Glass & Building Specialties, Inc. appealed the amount of the damages awarded by the trial court in the underlying non-jury trial, which involved a dispute between Weaver and plaintiffs 700 EBA, LLC, after 700 EBA hired Weaver to furnish and install several windows in one of 700 EBA’s buildings.  After installation, 700 EBA discovered that a majority of windows contained “major window failure” and permitted water to penetrate into the building during periods of heavy rain.  Subsequently, 700 EBA sued Weaver for breach of contract for improperly installing the windows.

Following a bench trial, the trial court ruled in favor of 700 EBA and awarded $67,420.25 in damages, which included the cost of replacing the windows.  Weaver appealed the damages award on the grounds that replacement of the windows was not necessary, and that the problem could be resolved by simply repairing the existing windows, which would cost less than replacing the existing windows with brand new ones.  As evidence in support of their appeal, Weaver cited 700 EBA’s expert testimony that replacement of the windows was not necessary.

On appeal, the court articulated the standard of review applied to challenges of a non-jury verdict – whether the findings of fact of the trial court are supported by competent evidence and whether the trial court committed error in application of the law.  The trial judge’s findings of fact must be given the same weight as if they were found by a jury, however the appellate court has plenary review power to address questions of law.  As to the specific issue of damages, the appellate court stated that the evidence must be considered in the light most favorable to the trial verdict winner, and that appellate courts should defer to the trial court on decisions regarding damages.

In reviewing the award, the appellate court cited an expert report from the window manufacturer that stated that the existing window frames should be removed, as well as expert testimony from a building remediation company and a building consultant who testified that the windows should be replaced.  Additionally, the court cited expert testimony that opined that the plan to replace rather than repair the windows was reasonable, as was the quoted cost estimate.  Thus, the Superior Court ultimately ruled that the trial court did not err in its damages award based on the replacement costs of the windows, and affirmed the award.  This case offers aclear articulation of the standard of review applied by an appellate court when reviewing a damages award,  and illustrates the heightened burden that an appellant must carry.  THanks to Greg Herrold for his contribution to this post.  Please email Brian Gibbons with any questions.


If You Appear for a “Reasonably Requested” IME, “Nationwide is on Your Side” (PA)

On October 6, 2017, the Superior Court of Pennsylvania affirmed an order entered in the Court of Common Pleas of Jefferson County, compelling Gene Moore  to submit to an independent medical examination at the request of Nationwide Mutual Insurance Company.  The case stems from a motor vehicle accident involving Moore and Amy Shiock.  Shiock was driving a motor vehicle insured through Nationwide, while Moore was riding his bicycle with no such policy.

Following the accident, Moore submitted his medical expenses to Nationwide which were subsequently paid.  Moore also received two months of treatment from Keystone Physical Therapy until he reached his treatment plateau.  Approximately one month after his release from treatment, Moore reported to Pottstown Memorial Medical Center complaining of back pain.  During treatment, Moore indicated to his medical providers that moving furniture triggered his back pain.

Moore attempted to submit his Pottstown Memorial Medical Center medical bills to Nationwide as being related to the motor vehicle accident.  Prior to deciding, Nationwide requested Moore undergo an IME, which he declined.  Thus, Nationwide filed a petition to compel an IME based on the language in the insurance policy which requires injured persons seeking benefits to submit to medical examinations as often as “reasonably requested.”  The trial court ruled in favor of Nationwide basing its decision on the petition, its exhibits, and the statutory language of 75 Pa.C.S. § 1796.

Moore filed a timely appeal arguing: (1) he was not a party to the insurance contract and therefore could not be compelled to submit to an IME; and (2) the policy provision relied upon to compel the IME is void against public policy, as it does not comply with the statutory “good cause” requirement of 75 Pa.C.S. § 1796.  The Superior Court found no issue with the trial courts statutory interpretation or its finding of good cause.  Moore claimed that the trial court specifically relied on Fleming v. CNA Ins. Co. (Pa. Super. Ct. 1991) which was patently false.  The trial court used a multitude of factors including the policy language and 75 Pa.C.S. § 1796 to make its decision.  Further, because the trial court’s decision did not rest upon an interpretation of the Nationwide policy, the court did not need to examine Moore’s claim that the Nationwide policy violates public policy.

Thus, the Superior Court affirmed the trial court’s ruling that Moore was required to submit to an IME under the policy.  It makes sense that a claimant to an insurance policy will necessarily have to comply with the directives of that insurer in order to substantiate his/her claim.   The Court’s decision is consistent with that logic.  Thanks to Garrett Gittler for his contribution to this post.  Please email Brian Gibbons with any questions.

First Department Sustains Multi-Million Pre-Impact Terror Awards Following Crane Collapse (NY)

In Matter of 91st St. Crane Collapse Litigation, the First Department recently upheld a multi-million dollar jury award for pre-impact terror, potentially altering the landscape of such awards in the future.  At the very least, this decision will alter how plaintiffs litigate pre-impact terror.  (There were also significant awards for conscious pain and suffering, and punitive damages, which we will not address in this post.)

The case arose from two consolidated wrongful death actions following a catastrophic crane collapse on East 91st Street in Manhattan on May 30, 2008, which killed the crane operator, Donald Leo, and another construction worker, Kurtaj.

The crane  was 205 feet high, had four main components: a tower, a cab, a boom, and a counterweight assembly. The counterweight assembly and boom rested on a turntable, which allowed the whole crane to rotate. During the trial, which lasted almost a year, evidence came forth that prior to bringing the crane to the site, a bearing ring in the turntable developed a crack and required replacement. Plaintiff NY Crane, at the direction of its owner, Plaintiff James Lomma, chose to replace this key part of the crane using a Chinese company that it found through a Google search, instead of a more expensive, but reputable American company. Even after the Chinese company expressed doubt that it could correctly assemble the bearing ring, plaintiff’s chose to move forward. Before the crane could be used again, the new bearing had to be certified by the New York City Department of Buildings. Lomma and NY Crane contacted a number of engineers, all of whom refused to certify that the bearing was safe. Despite this, Lomma, who was not an engineer, self-certified the part and expedited the DOB process so that the crane could go back to work.

According to the Court, the plaintiffs’ deaths “arose from a series of calculated decisions made by Lomma over a period of months, during which time Lomma placed profit over the safety of construction workers and the public, despite having multiple opportunities to change course.” On May 30, 2008, the bearing ring failed. At approximately 8:00 a.m., the crane began to tip backwards, causing the boom to flip and strike the building across the street. Witnesses testified that they saw Leo, the crane’s operator, visibly panicked inside the cab as the crane tipped backwards, bounced off another building, and then ultimately fell to the ground. They testified that they saw him praying and trying to brace himself against the cab glass as he plummeted toward the ground. Similarly, witnessed testified that Kurtaj, who was on the ground, saw the crane falling toward him and yelled to his coworkers, “Run, run, the crane is coming down.”

Medical testimony showed that both Leo and Kurtaj were aware of their impending deaths, and that neither of their deaths were immediate. Based on Kurtaj’s defensive wounds, a medical expert testified that he tried to protect himself with his arms from falling debris. Rescue workers testified that Kurtaj was alive and conscious while trapped under the wreckage, and that he was heard screaming and in obvious pain. He had also been doused in diesel fuel, causing him to vomit and choke on noxious fumes and smoke. He was taken to the emergency room, where he died approximately four hours after his initial injury. Similarly, witnesses and EMS technicians testified that Leo was alive, with his eyes open and shaking, when they found him in the rubble. Rescue workers determined that his time of death was approximately 15 minutes after the accident.

A Manhattan jury awarded the decedents of plaintiff Leo $7.5 million for pre-impact terror, $8 million for pain and suffering and $24 million in punitive damages. The jury awarded the decedents of plaintiff Kurtaj 7.5 million for pre-impact terror, $24 million for pain and suffering, and $24 million in punitive damages. On appeal, a unanimous First Department slashed those awards, but still awarded $2.5 Million and $2 Million in pre-impact terror to Leo and Kurtaj, respectively. Decedents of plaintiff Leo ultimately received $5.5 million for pain and suffering and $8 million in punitive damages, while decedents of plaintiff Kurtaj received $7.5 million for pain and suffering and $9.5 million in punitive damages.

Even with these reduced awards, these are some of the largest pre-impact terror awards ever awarded in the State. Given the defendants’ actions, it is possible that these huge pre-impact terror were actualyl designed to punish Lomma’s “calculated decisions” that ultimately lead to the collapse.   In other words, the jury may have rendered a “punitive” pre-impact terror award here.  And even through the Court reduced the award, J. Webber nevertheless awarded more significant pre-impact terror damages than we commonly see.

Plaintiff’s attorneys in New York will almost certainly make concerted efforts to present specific evidence of pre-impact terror in wrongful death cases.  In this case, there was very specific evidence of the actions of both decedents after the accident, supporting their respective fears of impending death.  While every wrongful death case will not have such specific testimony (in fact, most do not) we expect all plaintiffs in wrongful death cases to cite this decision to support their sustainable damages claims in New York.  Thanks to Evan King for his contribution to this post.  Please email Brian Gibbons with any questions.


Additur: Lowest Possible Verdict Standard Applies (NJ)


Additur is a legal mechanism, seldom seen in some jurisdictions, wherein a court may correct a damages verdict, if the court feels 1) the verdict rendered constitutes a manifest injustice, 2) the verdict can be corrected without disturbing the liability verdict. Appellate-plaintiff attempted to use this mechanism in the Orientale v. Jennings case, wherein a jury trial resulted in a $200 award for pain and suffering on behalf of the plaintiff.

Following a motor vehicle accident, plaintiff settled with the negligent driver for $100,000 and subsequently filed suit against her own insurer, defendant Allstate New Jersey Insurance Company, under the UIM provision of her policy.  A damages trial was conducted to determine the extent of plaintiff’s injuries. The jury awarded no money on the loss of consortium claim. Although the jury found that plaintiff had suffered permanent injury, they awarded $200 in damages.

Plaintiffs sought a new trial and filed a motion for an additur. The trial judge determined that the $200 award constituted a miscarriage of justice and that additur was appropriate. The judge determined that the lowest verdict that a reasonable jury could have reached based on the proofs of the case was $47,500. Apparently, this increased award was not enough for the plaintiff, who then filed an appeal arguing that the trial court applied the wrong standard for additur. Plaintiffs argued that the trial court should not have made the award calculations based on the lowest value that a reasonable jury could find, but rather that it should have issued an award based on what a reasonable jury would find.

The appellate court determined that the principles that applied to additur included a presumption that the jury verdict was correct and deference should be given to the award. The trial record underlying an additur motion must be viewed in the light most favorable to the defendant and the judge should not sit as a decisive juror and should not overturn a damages award falling within a wide acceptable range. The court’s role in assessing a jury verdict is to assure that compensatory damages awarded to a plaintiff encompasses no more than the amount that will make the plaintiff whole. The appellate court thereby determined that the trial court properly applied the standard of “the lowest verdict that a reasonable jury could have reached based on the proof[s].” The appellate court affirmed the trial court decision.  Thanks to Steve Kim for his contribution to this post.  Please email Brian Gibbons with any questions.

Supplemental Bill of Particulars Permitted Nine Years Later (NY)

Last minute supplemental bills of particulars are common in personal injury cases and often result in motion practice seeking to strike the new and additional injuries alleged or permit discovery related to them. Pursuant to the CPLR §3043(b), a party may supplement the bill of particulars up to 30 days prior to trial only as to “continuing special damages and disabilities,” they may not allege new and additional injuries. The crux of this issue is whether the new injuries are related to the original injuries as to survive the statutory standard.

In Khosrova v. Hampton Bays, 2017 Slip Op 05075 (2d Dept. 2017), plaintiff was assaulted by a fellow student while waiting for the bus outside of the school. Plaintiff initially alleged personal injuries including depression, insomnia, agitation, poor concentration, loneliness and tenseness with distress, stress, and psychological difficulties. Nine years later plaintiff served a supplemental bill of particulars alleging additional injuries and damages of post-traumatic stress disorder and long-term psychotherapy.

Defendant’s made a motion to strike the supplemental bill of particulars claiming that it alleges new injuries and as such is actually an amended bill of particulars done without leave of court. The lower court granted the defendant’s motion. On appeal the Appellate Division overturned the lower court’s decision.

The Court found that the supplemental bill of particulars alleged damages that were “continuing consequences of injuries suffered and described in the original bill of particulars rather than new, unrelated injuries.” This decision contributes to the uphill battle defendants face when presented with a supplemental bill of particulars with related, yet new, allegations on the eve of trial.  This decision represents another example of a frustrating pro-plaintiff trend in New York Courts, and should be heeded by attorneys and insurers alike.  Thanks to Dana Purcaro for her contribution to this post.  Please email Brian Gibbons with any questions.

Burden on Defendant to Establish Collateral Source (NY)

Under New York law, collateral offsets are an important tool in limiting damages and preventing plaintiffs from receiving duplicative recovery in a personal injury case. But a recent decision underscored the fact that the defendant is the party who carries the burden of establishing, to a reasonable certainty, that the plaintiff will receive collateral source payments. In McKnight v. NYCTA, the Second Department addresses the burden of proof necessary for a defendant to obtain a collateral source off-set.

Plaintiff Rosemary McKnight was injured when a bus she was riding to school was involved in a motor vehicle accident. She obtained a judgment in her favor, which included $190,000 for past medical expenses, $80,000 for past lost earnings, and $400,000 for future lost earnings. The defense sought to have these awards off-set under CPLR 4545, on the basis that the plaintiff was already receiving both social security benefits and workers’ compensation benefits from a 2002 work-related accident.

The defense provided testimony from the plaintiff and documentary evidence showing that the plaintiff was receiving $205 a week in workers’ compensation benefits. The Court found that evidence sufficient to grant a collateral offset, and the plaintiff’s awards of past and future lost wages were reduced in kind.

However, the defense provided no documentary evidence from the Social Security Administration regarding the amount or duration of plaintiff’s social security benefits. The defense did offer testimony from the plaintiff indicating that she received monthly benefits, but that testimony was inconsistent as to the amounts received. The court found this proffer of evidence insufficient, and found that the defense failed to establish with a reasonable degree of certainty that plaintiff was receiving social security benefits; therefore, no collateral source offset was granted.

Thanks to John Collins for his contribution to this post and please write to Mike Bono for more information.

Pre-existing Injuries Present Hurdle to Plaintiff Proving Serious Injury “Threshold”

In Khan v. Goldman Hacking Corp., the Appellate Division, First Department unanimously reversed the Supreme Court’s denial of defendant’s summary judgment motion, stemming from a BI motor vehicle accident case.

Plaintiff alleged  serious injuries in a rear-end motor-vehicle accident, including cervical bulges, lumbar and thoracic sprains, and dysfunction of the jaw.  Defendants met their prima facie burden of showing that plaintiff did not suffer permanent consequential or significant limitations of the use of his jaw or his cervical, thoracic, and lumbar spine through affirmed reports of a dentist and neurologist.  Defendants also relied on plaintiff’s medical records that indicated he complained of back pain less than a month before the accident and was diagnosed with thoracic strain and sprain.

In reversing the lower court’s denial of defendant’s “threshold” motion, the First Department found that plaintiff failed to raise an issue of fact as to causation regarding plaintiff’s cervical and thoracic spine because he failed to address the findings of degeneration in plaintiff’s own MRI by offering another, legally sufficient, cause for the claimed spinal injuries.  The Court found that plaintiff’s expert’s opinion that the alleged accident itself caused the alleged injuries was insufficient to raise an issue of fact as the expert first examined plaintiff approximately six years after the accident.

While plaintiff’s expert acknowledged plaintiff’s prior diagnosis of thoracic strain, he did not offer any opinion as to how the claimed thoracic injury differed from the pre-existing condition.  Further, plaintiff did not submit objective medical evidence of lumbar spine injury as the MRI was performed more than five years after the accident which was too remote to show a causal connection to the accident, and incidentally were not part of the record.

This decision emphasizes the importance of counsel zealously pursuing all records of a plaintiff’s pre-accident condition in defending a matter.  Further, this decision highlights the importance of carefully parsing a plaintiff’s expert’s opinion and attacking its logical and evidentiary gaps, particularly as to causation.  Generally, “threshold” motions are difficult to win — but holding a plaintiff to his burden can sometimes be fruitful.  Had plaintiff and his expert crafted a more tailored affidavit alleging exacerbation of the pre-existing condition, we suspect the First Department would have affirmed the lower court’s ruling.  Thanks to Justin Pomerantz for his contribution to this post.  Please email Brian Gibbons with any questions.

Pro-defense Damages Verdict Set Aside as a “shock one’s sense of justice” (PA)

A Plaintiff who was denied pain and suffering damages in a 2015 jury verdict was recently granted a new trial on non-economic (pain and suffering) damages by the Pennsylvania Superior Court.   In Zielke v. Mullen,  the appellate court reversed a Delaware County Court of Common Pleas’ order denying Plaintiff’s post-trial motion for a new trial relating to her non-economic damages.

The plaintiff suffered a fracture in her left foot when she fell while descending stairs at the defendants’ home.  Plaintiff’s injury required surgery and the removal of the fractured bone, followed by the use of a recuperative boot for several months after the surgery.  The defendants had removed the handrail on the staircase in order to paint, and had neglected to reinstall the handrail before plaintiff and her husband attended a wedding reception at their home.  The absence of a handrail contributed to the fall, and a jury determined that the defendants’negligence was a cause of plaintiff’s injuries.

The jury awarded plaintiff approximately $13,000 in damages for past and future medical expenses, as well as lost earnings.  However, the jury awarded zero damages for non-economic loss (pain and suffering, embarrassment/humiliation, loss of life’s pleasures, and disfigurement).

Following the verdict, Plaintiff’s motion for additur, or in the alternative, a new trial solely on the issue of non-economic loss, and the trial court denied the motion.  In reversing the trial court’s denial, the Superior Court of Pennsylvania determined that Plaintiff’s injuries were serious enough that they were “of the type that natural and normally cause pain and suffering.”  The Superior Court determined that the jury verdict should be set aside because it “clearly appear[ed] from uncontradicted evidence that the amount of the verdict bears no reasonable relation to the loss suffered by the plaintiff [and] is so contrary to the evidence as to ‘shock one’s sense of justice,’” citing Davis v. Mullen, 773 A.2d 764, 767 (Pa. 2001).

This was certainly a frustrating decision for defendants and their attorneys, who appear to have done “too good” of a job defending the damages claimed against them.  Thanks to Greg Herrold for his contribution to this post.  Please email Brian Gibbons with any questions.

Sleep Issues Not Serious Physical Injury in DWI Accident (PA)

In Vetter v. Millerthe plaintiffs were driving home from a wedding, where apparently they both drink a fair amount of alcohol.  Plaintiff Vetter was chosen to be the driver, but had no memory of the events of the evening.  Plaintiff Jones, the passenger, said that Vetter became annoyed that defendant Miller was tailgating their car, so Vetter exited his vehicle to confront Miller.  Miller, alleging that Vetter “did not look right” attempted to flee but knocked the plaintiff down and dragged him with his vehicle. Responding paramedics noticed a smell of alcohol on Vetter, who was cited with DUI, driving with a suspended license and harassment, and he eventually pleaded guilty to criminal charges.

Despite their actions, Vetter and Jones sued Miller for negligence and recklessness, and Jones brought a claim against Miller for negligent infliction of emotional distress. The defendant filed a motion for partial summary judgment, seeking dismissal of the negligent infliction of emotional distress claim, arguing that Jones could not establish that she suffered serious bodily injuries as required under PA law. The court granted the motion, dismissing that claim. The case went forward, and  at trial the jury found plaintiff Vetter 74% negligent and awarded no damages.

On appeal, Jones contended that the trial court erred in dismissing the negligent infliction of emotional distress claim. The Superior Court found that the trial court properly dismissed the claim, as the passenger had elected limited tort coverage on her driver’s insurance policy, and therefore had to establish a serious bodily injury, which meant a “serious impairment of a body function.” The Court found that Jones’s testimony that she suffered from sleep deprivation did not amount to a serious injury because she remained able to perform her full-time job, pursue a nursing degree and care for her son.

However, a new trial was awarded to Vetter, because although evidence of his intoxication was relevant, the appellate court found that evidence that Vetter pleaded guilty to criminal charges in connection with this incident ought to have been excluded.

Thanks to Alexandra Perry for her contribution to this post and please write to Mike Bono for more information.

Defeat Snatched From Expert Hands of Victory (NY)

There are cases where the facts present solid defenses to some or all of the plaintiff’s causes of action. Yet, favorable facts alone will not necessarily win the case.  Consultation with the appropriate experts and skillful presentation of evidence is necessary to make those facts work for the defense.  This was keenly apparent in Mazella v. Hauser, where the New York Second Department reversed summary judgment for the defendant on a conscious pain and suffering claim.

The case arose out of a fatal pedestrian-vehicle accident in which the pedestrian’s estate sought both wrongful death and conscious pain and suffering damages.  The medical evidence suggested that plaintiff’s decedent suffered so traumatic a brain injury that there could be no conscious pain and suffering – and the defense won the issue in the lower court.  The Second Department, however reversed, finding that the defendant failed to make a prima facie showing of her entitlement to judgment as a matter of law.

As the Second Department noted, “An expert witness must possess the requisite skill, training, knowledge, or experience to ensure that an opinion rendered is reliable.” Defendant’s doctor’s letter in support of the motion did not set forth what skill, training, knowledge, or experience the doctor possessed in the relevant areas of medicine so as to ensure the reliability of the opinion regarding the decedent’s time of death and whether the decedent suffered conscious pain before her death.

Further, the court found that the doctor’s opinion was conclusory and speculative and, thus, of no probative force. The expert’s opinion relied upon “findings” that the decedent had no vital signs when brought to the hospital, that there were open skull fractures showing contused and lacerated brain tissue, and that the hospital certified the cause of death as traumatic cardiac arrest. Based upon these findings, the doctor opined that due to severe brain injury, the decedent did not suffer conscious pain since the brain is the “essential organ that feels the pain.”  This was insufficient, in the appellate court’s opinion, to adequately explain how these findings led to the conclusion that the decedent died immediately after the collision and did not suffer conscious pain before her death.

It is incumbent upon the lawyer to select the proper expert and demonstrate to the court that the expert is qualified to give a reliable opinion in the respective field. When presenting an expert opinion in support of a summary judgment motion, the opinion should set forth adequate grounds for arriving at the conclusion that the lawyer seeks to have the court adopt in rendering its decision.

Thanks to Vincent Terrasi for his contribution.

For more information, contact Denise Fontana Ricci at