The opinion of the court was delivered by: MARSH
The plaintiffs in this diversity case are citizens of Ohio and the defendant is a corporate citizen of Pennsylvania. The accident occurred in Allegheny County, Pennsylvania, and this action is subject to the provisions of the Pennsylvania No-Fault Motor Vehicle Insurance Act, Act of July 19, 1974, P.L. 489, No. 176 (40 P.S. § 1009.101 et seq.).
The case was tried in May 1979 by able and experienced counsel on each side. The jury returned a verdict in favor of Mary K. Gregory, the wife plaintiff, in the amount of $ 15,000 for pain, suffering, inconvenience, and disfigurement of her left knee, and in favor of Donald J. Gregory, Jr., the husband plaintiff, in the amount of $ 6,000 for loss of consortium.
Dissatisfied with the amount of the verdicts, the plaintiffs seek a new trial and urge as grounds that:
(1)(2) The verdict was against the applicable law, the evidence and the weight of the evidence.
(3) The court erred in failing to sustain plaintiffs' objections to certain portions of the testimony of the defendant's medical witness, Dr. Norman Minde.
(4) The court erred in refusing plaintiffs' motion to strike certain portions of the testimony of Dr. Minde.
(5) The court erred in refusing to charge the jury on wife plaintiff's impairment of earning power as an element of damages in the case.
(6) The court erred in allowing defendant to reopen defendant's case and call the husband plaintiff for the purpose of establishing payment of medical and hospital bills relating to wife plaintiff's injuries.
(7) The court erred in allowing defendant to introduce evidence that medical and hospital bills had been paid in spite of the fact that the court had resolved that problem at the preliminary pretrial conference when it was determined that the plaintiffs would not offer their medical bills in evidence as exhibits.
(8) The court erred in refusing plaintiffs' motion for withdrawal of a juror after defendant's counsel deliberately injected the term "no-fault insurance" into a question propounded to husband plaintiff concerning the payment of hospital and medical expenses.
Each of the grounds has been considered. In our opinion the motion for a new trial should be denied.
(1)(2) Adequacy of the Verdicts
On November 26, 1976, the wife plaintiff was a passenger in the rear seat of an automobile stopped at a red light on State Route 51, a four-lane highway. A tractor-trailer driven by an employee of the defendant collided with the rear of the automobile.
The plaintiffs alleged that the driver of the tractor-trailer was negligent. The defendant denied negligence and invoked the doctrine of sudden emergency alleging that the tractor-trailer had suddenly lost its braking power.
After the accident the wife plaintiff complained of pain in her head, neck and ribs. She was referred to Dr. Maley, an orthopedist, for aches in her head, neck and back; at that time she had no complaint about her knee. She complained to Dr. Myers of pain in her shins. Not until January 3, 1977 did she tell Dr. Myers about the accident on November 26, 1976. On May 2, 1977, she first complained to Dr. Myers of pain in her left knee.
On a foundation of circumstantial and opinion evidence, the defendant contended that the wife plaintiff's knee condition was not caused by the November 1976 accident.
It appears that in May 1978 the wife plaintiff was confined in a hospital for knee surgery and resulting therapy. She claims she cannot do all the normal household activities which she did before her knee started to hurt; that she had to give up bowling and outdoor activities such as camping. After surgery she walked with crutches and a walker for a period. At the time of trial she walked with a cane except in the house. Surgical scars on her knee were shown to the jury in photographs.
Insofar as the award to the wife plaintiff consists of pain, suffering, inconvenience and disfigurement, it is obviously nothing that a trial court can measure and decide whether the jury has awarded too much or too little; such items have no market value. No special damages (i. e., loss of wages, hospital or medical expenses, past or future) were submitted to the jury.
There was a serious conflict in the evidence as to whether or not a torn medial meniscus and chondromalacia in the wife plaintiff's left knee were caused by the accident since pain did not localize in her left knee until around May 1977.
Likewise, the evidence of the extent of the disability in her knee and its likely duration were in serious conflict. On cross-examination the defendant's doctor stated: "I feel this woman can get a complete recovery." (Dr. Minde's Testimony, p. 47.) The plaintiffs' doctor, Dr. Krieg, opined she would have a permanent 20% 25% Disability in her knee. Thus the dollar amount of ...