II. DAMAGES FOR FUTURE PSYCHIATRIC TREATMENT:
Plaintiff sought compensatory damages for future psychiatric treatment, and the jury awarded her $90,000 for such expenses. The defendant argues that that award was not supported by the evidence, and we agree that it was improper to submit this claim of damages to the jury.
Under the law of Pennsylvania, a plaintiff bears the burden of proof by the preponderance of evidence with regard to damages to be incurred in the future. Wallace v. Pennsylvania Railroad Co., 222 Pa. 556, 561, 71 A.1086, 1088 (1909); Baccare v. Mennella, 246 Pa. Super. 53, 369 A.2d 806, 807 (1976). See also Leizerowski v. Eastern Freightways, Inc., 514 F.2d 487, 490-91 (3d Cir. 1975). It follows that the mere possibility of future damages is insufficient proof and that such damages cannot be presumed on the basis of injury itself. Gordon v. Trovato, 234 Pa. Super. 279, 286, 338 A.2d 653, 657 (1975).
The plaintiff must demonstrate, accordingly, the probability of all the elements which are necessary for the future expenses to be incurred - including the fact that the treatment will be preformed as well as the fact of the injury itself. We conclude as a matter of law that the plaintiff did not demonstrate that it was probable she would undergo future psychiatric care, based on her own testimony that she would not undergo therapy and could not trust another doctor (apparently meaning therapist). N.T. 4-43. The testimony of plaintiff's expert supported the unlikelihood that she would undergo therapy in the future by describing the difficulties that would have to be overcome in order for her to submit to such treatment. N.T. 5-99, 5-100. There was no evidence concerning the likelihood of plaintiff submitting to another kind of psychiatric care.
The only evidence from which an inference that the plaintiff is likely to undergo therapy in the future conceivably could be drawn is two-fold: her testimony that she has been able to trust and talk freely to doctors, and her expert's statement that "I hope that I could prevail upon her to accept treatment eventually." N.T. 5-100. We find these evidentiary scraps insufficient to support a finding that the plaintiff was likely, by a preponderance of the evidence, to undergo future psychiatric care.
Plaintiff's other contentions concerning the jury's award for future medical expenses, e.g., that the award was reasonably calculated and that the parameters of future treatment necessary to arrive at the award were testified to sufficiently, are not relevant to our finding that the jury could not reasonably have concluded such future treatment was probable.
Because this element of damages should not have been submitted to the jury, we will reduce the plaintiff's verdict by the $90,000 that was awarded her for future treatment.
The defendant raises in his motion various other grounds, ranging from the mundane (the impropriety of punitive damages, the excessiveness of the damage awards) to the creative (the erroneousness of sending certain documents which had been admitted into evidence out with the jury, the denial of permission for defendant's private counsel as well as counsel representing defendant's insurer to participate fully in the case). We will deny the defendant's motion for judgment notwithstanding the verdict or for a new trial on these grounds.
JOSEPH S. LORD, III, CH. J.