Category Archives: Trial Practice

When A Jury Verdict “Shocks The Conscience” (PA)

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After several rounds of appeal, the plaintiff in a personal injury case was awarded a new trial following a jury verdict that the court determined was unjust.  In Themens v Spranger, No. 1675 EDA 2017 (Pa. Super 2018), the Pennsylvania Superior Court affirmed an April 27, 2017 Order in which the trial court granted Themens’s appeal for a new trial.

The underlying case involved a motor vehicle accident in November 2012, in which S. Spranger’s vehicle collided with Themens’s vehicle in Chester County, Pennsylvania.  Themens was taken to the hospital and was diagnosed with cervical and lumbar strain/sprain and whiplash injuries.  Themens continued to complain of sciatica, lower back and leg pain, and neck and shoulder pain for years following the accident.  Themens also alleged that, as a result of her injuries suffered in the accident, she could was forced to miss time performing her secretarial duties for her husband’s business, and could no longer care for her grandchildren, visit her mother, or swim and exercise as she had done before the accident.

In December 2014, Themens was awarded $12,160 in damages following a magisterial district court decision, which the Sprangers appealed.  Themens was then awarded $25,000 by an arbitration panel following the magisterial district court appeal.  The Sprangers appealed the arbitration award to the court of common pleas.  Prior to trial, S. Spranger admitted that she failed to see Themens’s vehicle before striking it with her vehicle, and therefore stipulated that she was negligent.  Thus, the jury trial in the court of common pleas was limited to the issues of causation and damages only.

In addition to testimony from an insurance inspector, Themens, and Spranger; both parties also offered medical expert reports that were introduced by stipulation and read to the jury.  Themens’s medical expert report diagnosed Themens with various lower back, spine, lumbar, and radiating lower extremity injuries, which prevented Themens from returning “to her pre-injury baseline.”  The report also opined that Themens’s complaints were the direct result of the injures she sustained in the motor vehicle accident.  In response, Spranger’s medical expert report was also read to the jury and noted the absence of objective findings and opined that Spranger’s medical expert was unable to identify a condition that would produce a disability related to the motor vehicle accident.

In December 2016, the jury awarded Themens $2,000 in damages for past, present, and future pain and suffering, embarrassment and humiliation, and loss of enjoyment of life.  Themens appealed for post-trial relief in the form of a new trial, claiming that the damage award was grossly inadequate to fairly compensate her for her injuries.  In April 2017, the trial court issued an order granting Themens a new trial, which Spranger appealed arguing that the trial court’s issuance of a new trial constituted an abuse of discretion because the jury verdict did not ‘shock the conscience’ and the damages were not against the weight of evidence.  In its decision affirming the trial court’s granting of a new trial, the PA Superior Court emphasized that Spranger stipulated that she was negligent and that Themens’s medical expert report diagnosing her injuries was uncontroverted.  The Court went on to define “uncontroverted” as “evidence which is unopposed or unchallenged, not merely uncontradicted,” and further explained that it is not necessary that an opposing party introduce affirmative countervailing evidence, but rather that effective cross-examination and argument may suffice.  The Court then found that the trial court’s decision that the jury’s verdict was an injustice that bore no reasonable relationship to the loss suffered by Themens did not constitute an abuse of discretion by the lower court.  In reaching its decision, the Superior Court noted that, not only did Spranger concede negligence, but Themens’s medical expert was essentially uncontroverted because the medical expert report presented by Spranger failed to offer an opinion that Themens was not injured in the accident or that Themens’s injuries were not caused by the motor vehicle accident.  This case, in which the defense achieved a favorable $2,000 verdict initially, illustrates the vital role that strategic pre-trial decisions involving stipulations and expert testimony can play throughout the entire life span of a litigation.

This must have been a thoroughly frustrating decision for Spranger’s attorney, who it seems did too good of a job cross-examining plaintiff and her experts, limiting her damages to such an extent, that the Court was inclined to award her a new trial.   Sometimes, a defendant just can’t “win.”  Thanks to Greg Herrold for his contribution to this post.  Please email Brian Gibbons with any questions.

Methodology Means Most Under Frye (PA)

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On April 2, 2018, the Superior Court of Pennsylvania affirmed the trial court’s decision to admit expert testimony in Deivert v. Pittsburgh Chauffeur, LLC., over the objection of defendants.

On the night of February 1, 2014, plaintiff Matthew Deivert attended a birthday celebration for one of his friends from Allegheny College.  Several other people attended, and they rented a limousine bus to take them to a bar and back.  Around 2:00 a.m., the bus came to pick everyone up.  It could seat ten people, though twenty crammed in.  On the ride back, Deivert’s right leg became pinned between several passengers, causing excruciating pain.  When they managed to exit the bus, Deivert found that the friction from the ride had caused severe burns on his leg, requiring a later skin graft.

A jury returned a verdict against the bus company of $500,000 for Deivert.  Pittsburgh Chauffeur appealed, stating that the court incorrectly admitted Deivert’s medical expert testimony.  The court, and later Superior Court, denied this appeal on the basis that Pittsburgh Chauffeur was merely challenging Deivert’s expert on the basis that his conclusion was not generally accepted by the medical community.  Under the Frye test in Pennsylvania, the court only looks at whether an expert’s methodology is generally accepted, not their conclusion.  The court cited the fact that Deivert’s expert reviewed his records, conducted a physical exam, looked at photos, and reviewed deposition testimony, methodology which is generally accepted in the community.

This case sheds light on issues with the Frye test that is used in Pennsylvania courts.  As stated above, courts will focus on an expert’s methodology, and not the conclusion – however unique it may be from general opinion.  This is important to keep in mind when making Frye challenges in Pennsylvania and putting together motions in limine.  By properly focusing on the methodology used by the other side, instead of their end conclusions however odd, one can properly attack an opponent’s expert and try to keep out testimony from trial. But if the expert “connects the dots” between the accident and the treatment with accepted methodology, the Court will likely allow that testimony.  Thanks to Peter Cardwell for his contribution to this post.  Please email Brian Gibbons with any questions.

Insufficient Proof of Negligence Prompts Nonsuit in TBI Motor Vehicle Accident (PA)

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On March 29, 2018, the Superior Court of Pennsylvania affirmed the entry of nonsuit by the Court of Common Pleas of Dauphin County in the matter of Talley v. Bethea.  The case stems from a 2012 motor vehicle accident.  Defendant Bethea was driving the car while plaintiff Talley, along with Kramer and Rynearson, were his passengers.  Bethea pulled into a parking lot on the Penn State Harrisburg campus and Talley and Rynearson exited the vehicle. Then Bethea drove forward to another part of campus.

Moments after driving away, Kramer heard banging on the back of the car and for the first time noticed that Talley was on the back of the vehicle.  Kramer quickly requested Bethea stop the vehicle, but Talley had already fallen from the car.  Kramer and Bethea found Talley bleeding on the ground and called 911.  Bethea suffered a traumatic brain injury and had no recollection of the accident nor why he had gotten onto the car.  As a result of the injury, Bethea suffers from permanent memory loss, a loss of his sense of smell, hearing damage, and was unable to enlist in the United States Marine Corps.

At the conclusion of Talley’s case before the jury, Bethea filed a motion for nonsuit, arguing that Talley had not met his burden of proof that Bethea had breached a duty owed to him.  The trial court granted the nonsuit and directed verdict in favor of Bethea.  Talley then filed a timely appeal alleging the trial court erred in granting Bethea’s motion for nonsuit.  Talley claims that he established that Bethea was negligent in his operation of the vehicle.  Additionally, Talley argues that because the trial court “considered” Bethea’s “defense” during cross examination, nonsuit was improper.

The court indicated that Bethea owed a duty to Talley to operate the vehicle with the ordinary care of a reasonably prudent person.  However, the sole testimony given on the breach element was that Kramer did not realize Talley was on the back of the car until they began to drive away from the parking lot.  No testimony was provided regarding why Talley was on the back of the car, whether Bethea could have seen him, or how long Talley was on the back of the car.  Further, there was no evidence to establish what happened prior to the accident.  Thus, the sole evidence presented by Talley was his serious injuries which is not sufficient to establish a breach.

Further, the court quickly dismissed Bethea’s argument that nonsuit was inappropriate because Bethea’s cross examination somehow constituted “defense evidence” as cross examination is not evidence.  Lastly, the court rejected Talley’s argument that he be granted a new trial because the court rejected his request to produce demonstrative evidence.  Talley sought to produce photographs of an actor on the back of a vehicle to the jury.  However, no evidence was admitted establishing where Talley was on the vehicle, when he got on the vehicle, or how he fell off the vehicle.  Therefore, any reenactment could be nothing more than speculation and would possess a danger of misleading the jury.

Thus, the ruling of the trial court was affirmed.  However, the fact that this matter required a trial (meaning it was not resolved or dismissed through motion practice) is telling — even when the plaintiff cannot recount the accident circumstances at all, there may still be a “triable issue of fact” for jury consideration.  Here, the defendant stuck to his guns, and prevailed, after a likely stressful pretrial process.  Thanks to Garrett Gitler for his contribution to this post.  Please email Brian Gibbons with any questions.

Not So Fast – 1st Dept. Affirms Trial Court’s Reduction of Damages (NY)

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In Mosley v. E.H.J. LLC, the Appellate Division, First Department unanimously affirmed a lower court ruling that granted defendants’ motion to set aside the damages verdict.

After trial in Bronx County, a jury awarded plaintiff $350,000 for past pain and suffering and $1.3 million for future pain and suffering. The decision does not opine on the specifics of the injury, except to note that there was a twisted ankle, and a positive MRI, which presumably showed a tear.

Defense moved to set aside the verdict and direct a new trial on damages unless the plaintiff stipulated to reduce the past pain and suffering award to $150,000 and the future pain and suffering to $250,000.

Mosley fell when her ankle twisted on a sidewalk defect upon exiting defendants’ store.  The Court did not upset the jury’s liability finding, but found that the plaintiff’s expert improperly relied on a report of Mosley’s post-accident MRI which compared a pre-accident MRI that was not admitted into evidence.  An MRI report is technically hearsay, which is why radiological experts are needed under such circumstances.  Additionally, the expert had not reviewed any pre-accident medical records.  Generally, an expert’s opinion is discredited if medicals are reviewed in a vacuum without considering pertinent prior treatment or injury.  Now, the Court found this error to be harmless because plaintiff’s spine was not a major component of the damages award, but found the trial court’s ruling to reduce the damages did not deviate from reasonable compensation.

This is a major victory in Bronx County where plaintiff-friendly juries routinely award inflated damages for injuries sustained.  While it is in unknown whether Plaintiff elected to stipulate to damages or went through with a second damages trial, it’s reassuring to find Courts are not afraid to reduce jury verdicts when they go above and beyond the value of an injury. On the flip side, this decision is also a cautionary tale, which demonstrates what juries might award for a seemingly modest injury.

Thanks to Mehreen Hayat for her contribution to this post.  Please email Brian Gibbons with any questions.

Settled at Mediation? Not Until Final Releases Are Executed (PA)

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Mediations can be exhausting ordeals — and this is by design, to a degree.  After a long day (or days) of mediation, parties have time to hash out their issues and reach a middle ground to settle a case.  But once a deal is struck, the next phase of litigation — drafting the settlement documents — begins.   And attorneys need to take proper care to ensure thorough, executed releases to finalize settlement.

On January 31, 2018, the Superior Court of Pennsylvania affirmed a motion to enforce settlement in Khalil v. Travelers Indemnity.  In 2009, plaintiff Dr. Ahlam Khalil filed a lawsuit against her neighbor and Travelers Insurance Company and State Farm when water damage seeped into her apartment.  During that litigation, the apartment company, Pier 3 Condominium Association (“Pier 3”) filed a separate complaint against Khalil for outstanding fees.

In 2011, Khalil settled the claims against her neighbor and the insurance companies but refused to accept any payments in light of the second lawsuit with Pier 3.  In 2012, the second case went to trial and a jury returned a verdict in favor of Pier 3.  In light of this verdict, Khalil entered mediation with the various parties in 2014, at which a term sheet was agreed to which discussed a “global resolution of all claims” and that the settlement was “condition upon: (a) The parties reaching agreement on the terms of a final written settlement agreement”.  Following the mediation, Khalil and Travelers attempted to formalize the finalized language of the settlement agreement but were unable to come to terms.

In 2016, Khalil filed another lawsuit against the defendants which alleged that she was fraudulently induced to settle and discontinue her claims.  Travelers then filed a motion to enforce settlement which the trial court granted.

On appeal, the Superior Court looked at whether the term sheet was an enforceable settlement.  In Pennsylvania, settlement agreements are governed by contract law.  The court will look at the language of the agreement and see if it is unambiguous and then determine the intent of the parties.  After reviewing the term sheet, the court agreed with Khalil and found that it was conditioned upon the parties agreeing on the terms of a final written settlement agreement, which was never reached.  As such, it was not enforceable, and the court overturned the order.

This case demonstrates the potential for settlements to fall apart if not properly followed through on.  Though term sheets and a memorialization of mediations or settlement negotiations can lay the groundwork for a settlement agreement, it is important to follow up on these temporary agreements to either finalize a written agreement or to follow through on agreed upon conditions.  Without following through on these steps, a settlement can fall apart and extend litigation as seen in this case.   Thanks to Peter Cardwell for his contribution to this post.  Please email Brian Gibbons with any questions.

Lengthy, “Deliberate” Deliberations Are Not Cause for a Mistrial (PA)

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On December 8, 2017, the Superior Court of Pennsylvania affirmed a defense verdict on appeal in Berry v. Dickson et al. Plaintiff Berry sued several defendants, alleging negligent maintenance of a building after a piece of ceiling collapsed and injured Berry.  The jury ultimately returned a verdict for the defendants and Berry appealed on the issue that the jurors were deadlocked and that the trial court erred by instructing them to return to deliberations.

After an exhaustive three days of deliberations, the trial judge dismissed the jury and told them to return on Monday after the weekend.  He instructed them that if they were unable to return a verdict on Monday due to being “hopelessly deadlocked” that he would then declare a mistrial.  On Monday morning, the jurors requested to hear the charges re-read and then returned a defense verdict late in the afternoon.  The plaintiff appealed, arguing that the trial judge effectively coerced the jury after instructing them to resume deliberations after they indicated twice before that they were unable to reach a verdict.

The amount of time that a jury is kept together is a matter of discretion for the trial judge and will only be reversed for abuse of discretion or if there is evidence that the judge coerced the jury.  Issues to look at are the charges, the complexity of the issues, the amount of testimony, the length of trial, and the solemnity of the trial.

In the instant case, the Superior Court found that the issues were complex in that the plaintiff alleged injuries to his spine and other parts of his body.  In addition, the jury had to consider testimony from three fact witnesses and two experts.  The court also noted that the jury mentioned that they were deadlocked but not “hopelessly deadlocked”.  As such, the court affirmed the defense verdict.

This case demonstrates the importance of handling a jury during trial and to provide them with adequate jury instructions, and allowing them to deliberate appropriately.  The alternative to this verdict would have been a mistrial, and likely, a retrial within a few months.   While the plaintiff was obviously displeased with the result, lengthy deliberation is a function of the justice system, and not a grounds for reversal.  In fact, the word “deliberation” is a derivative of the word, “deliberate,” which means measured or cautious. Thanks to Peter Cardwell for his contribution to this post.  Please email Brian Gibbons with any questions.

 

WCM Achieves Favorable Verdict in Queens County Damages Trial

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On Monday, November 27, 2017, New York Office Partner Brian Gibbons completed a three week damages trial in Queens County, stemming from a 2014 motor vehicle accident.  The plaintiff, 22 at the time of the accident, was rear-ended on the Northern State Parkway, and taken to the hospital from the scene.  Eight months later, after physical therapy, epidural injections, neurological and orthopedic treatment, she underwent a cervical fusion at C6-7, and filed suit against the defendant owner and operator.   This being a rear-end collision, plaintiff was awarded summary judgment on liability back in 2016, and the damages trial commenced on November 8, 2017.

The trial involved 13 witnesses, including biomechanical experts, plaintiff’s spinal surgeon, Dr. Sebastian Lattuga, and multiple damages experts on both sides.  The plaintiff’s strategy was to stress the lack of any prior complaints or injuries to the young plaintiff’s neck or back, and her consistent treatment after the accident, eventually leading to a necessary spinal fusion surgery.  Our defense focused on the degenerative nature of herniations, and that the low-speed impact did not cause the cervical herniation.

In summation, plaintiff’s counsel asked for $7 million ($1.8 million past pain & suffering, $3.2 million future pain and suffering, and $2 million in future medicals, based upon her life care planner and economist, and claims of future fusion at C5-6.)   We pressed for a defense verdict, based upon the lack of causation.  We also took an aggressive approach during summation, arguing that plaintiff’s course of treatment and surgery was an orchestrated “money grab,” because the herniation could not have been caused by this minor impact.  In the alternative, we recommended $300,000 as an appropriate award, if the jury found plaintiff proved causation and met the serious injury “threshold.”

During the 2nd day of deliberation, the jury awarded plaintiff the $300,000 we had suggested.  (There was a high-low in place at the time of the verdict.)  Seeing that the plaintiff’s final “bottom line” settlement demand during deliberations was $3 million, the verdict was a great outcome after a particularly long damages trial that involved ten expert witnesses.  The jury was attentive throughout the trial, and we think, got this one right.

3rd Dept. Refuses to Apply Primary Assumption of Risk Doctrine to Trampoline Case

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In DeMarco v. DeMarco, the Third Department recently declined to apply the primary assumption of risk doctrine to jumping on a trampoline.

The case arose when the 48-year-old plaintiff was visiting the home of the defendants – her brother and sister in law – and plaintiff’s 9-year-old nephew asked her to join him on defendant’s trampoline. The plaintiff had never been on a trampoline before, but she agreed. After initially jumping in unison, the plaintiff’s nephew began “double jumping” the plaintiff, meaning he intentionally jumped out of unison with the plaintiff. This threw the plaintiff off balance, causing her land on the trampoline hard, fracturing several bones in her left foot. Plaintiff then commenced this action seeking damages from the defendants.

At trial, defendants sought a jury charge regarding primary assumption of risk. This request was denied and the court instead charged the jury regarding implied assumption of risk. The jury found in favor of the plaintiff and awarded her $220,000 for past pain and suffering and $580,000 for future pain and suffering.

On appeal, the Third Department noted that under CPLR 1411, any culpable conduct by plaintiff, including “assumption of the risk,” does not bar plaintiff’s recovery in New York. However, the Court of Appeals has held that CPLR 1411 does not prevent the primary assumption of risk doctrine from being used as a defense to tort recovery in cases involving certain sports or recreational activities.

But the Court of Appeals has also held that the assumption of risk doctrine “must be closely circumscribed if it is not seriously to undermine and displace the principles of comparative causation.” See Trupia ex rel. Trupia v. Lake George Cent. Sch. Dist., 927 N.E.2d 547 (2010). In practice, this means that the doctrine is limited to situations where it is considered appropriate to absolve a parties’ duty of care, such as certain designated sporting and recreational events. See id.

Defendants acknowledged that jumping on a trampoline did not fit on the narrow list of the activities that courts had previously applied the primary assumption of risk doctrine. However, they argued that applying the doctrine to the case at bar would be in keeping with the doctrine’s underlying purpose – to facilitate free and vigorous participation in athletics. The Court was not persuaded, and held that jumping on a trampoline was not the type of socially valuable activity that the doctrine seeks to encourage.

Interestingly, although the defendants also raised several issues regarding the substance of the implied assumption of risk jury charge, they failed to make those specific objections at trial. Rather, they only objected to the court’s decision to charge the jury with implied assumption of risk, instead of primary assumption of risk. Because of this, the Third Department held that these issues were not preserved for appellate review. Given the incredibly narrow scope of cases to which courts will apply the primary assumption of risk doctrine, it seems defendants would have been better served by focusing their fight on the substance of the jury charge that was actually given.  Thanks to Evan King for his contribution to this post.  Please email Brian Gibbons with any questions.

New Trial Ordered for Prejudicial Remark by Plaintiff’s Counsel (PA)

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On November 16, 2017, the Superior Court of Pennsylvania ordered a new trial in Buttaccio v. American Premier Underwriters, Inc.  after  plaintiff’s counsel made prejudicial comments and violated a preclusion order during the underlying trial.  The court also decided on several other evidentiary issues.

In the underlying case, plaintiff Mike Buttaccio, brought a claim against his former employers alleging occupational injuries and resulting economic damages.  Buttaccio was a repairman for Penn Central and Conrail for around forty years.  He alleges that his years of heavy work resulted in career-ending shoulder, knee, and carpal tunnel injuries.  The jury found for Buttaccio for $600,000.  The defendants appealed on the issues of: 1) should the plaintiff’s liability expert should have been excluded; 2) should a new trial be ordered since plaintiff’s counsel violated a preclusion order and made prejudicial comments; and 3) should evidence of other claims been admitted.

Appellants argued that plaintiff’s ergonomics expert should have been excluded since his methods were not generally accepted in the field and he failed to objectively measure factors.  In Pennsylvania, a person qualified as an expert may testify if: 1) their knowledge is beyond that of the average person; 2) their testimony will help the trier of fact; and 3) their methodology is generally accepted.  Upon review, the Superior Court agreed with the trial court and found that the expert’s testimony was admissible since it was based on his decades’ worth of experience, education, and on publications from NASA, OSHA, and the Federal Railroad Administration.  In addition, it found that the computer program that the expert used to measure factors was generally accepted in the field.

The Superior Court did agree, however, with the appellants’ second argument that a new trial should be ordered.  During trial, the court granted defendants’ motion to preclude any mention by plaintiff that there was inadequate manpower during his work.  Despite this, plaintiff’s counsel made numerous statements on the record mentioning an alleged inadequate manpower.  The Superior Court also granted a new trial on the basis that the trial court failed to properly instruct the jury and/or grant a mistrial when plaintiff’s counsel mentioned that two other employees were killed during a cross-examination.  The court argued that this statement highly inflammatory and could serve to prejudice the jury against the defendants.

This case demonstrates the importance of going into trial with an overall plan when it comes to evidence.  As seen above, by properly preserving issues, whether through pre-trial or evidentiary motions or objections during trial, counsel can limit the plaintiff’s case by cutting off certain evidentiary avenues. This can then set up the case for a dismissal or for a new trial.  Thus, by properly analyzing the evidence and what you think plaintiff’s counsel will try to introduce, one can set up the case for an endgame with a favorable defense verdict or dismissal.  Thanks to Peter Cardwell for his contribution to this post.  Please email Brian Gibbons with any questions.

Defendant Breached Partnership Agreement, Corporate Veil Pierced (PA)

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A plaintiff in Philadelphia recently prevailed in a business dispute with his former real estate partner.  In Bravo v. 2536-38 North Broad Street Associates, C.P. Philadelphia No. 141101464, the defendant was ordered to pay his former business partner over $782,000 as a result of a breach of their partnership agreement by failing to pay the plaintiff money owed under the terms of the limited liability partnership.

According to the judge’s opinion following a bench trial, the parties formed a real estate partnership in 2010. The plaintiff initially joined as a limited partner and purchased a 10% ownership stake in the business, for which he was to receive a 10% cash flow payment from the partnership.  A few months later, the plaintiff invested additional funds in exchange for a 51% ownership stake of the business.  However, subsequently, the plaintiff did not receive his proportion of cash flow payments from the partnership, and the defendant also failed to inform him that there was a lien on one of the partnership’s properties, and that the property was listed for foreclosure sale.

During the time period in which the plaintiff did not receive his proportional disbursements, the judge also found that the defendant had transferred hundreds of thousands of dollars from the partnership to other business entities under the defendant’s control; and that the defendant had paid himself a salary from the partnership.  The defendant claimed that the money was diverted from the partnership in order to maintain his ability to secure a mortgage loan for the partnership, however the judge determined that such diversion of partnership funds was not contained in the partnership agreement between the plaintiff and the defendant.  The judge was similarly un-receptive to the defendant’s claim the plaintiff was not issued cash flow payments because the partnership was unable to obtain a mortgage loan.

Ultimately, the judge determined that the corporate veil should be pierced, since the defendant essentially ignored corporate formalities.  Morover, by failing to pay the plaintiff his proportional share of the partnership’s cash flow, the defendant had breached the partnership agreement.  We surmise that the judge’s findings relied heavily on financial data supporting the plaintiff’s claims of, essentially, theft, which supported the plaintiff’s version of events.  Thanks to Greg Herrold for his contribution to this post.  Please email Brian Gibbons with any questions.