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filed: November 13, 1981.


No. 1032 April Term, 1979, Appeal from the Order of the Court of Common Pleas of Allegheny County, Civil Division, at No. G.D. 76-26365


Alfred J. Duff, Pittsburgh, for appellants.

Robert S. Garrett, Pittsburgh, for appellee.

Hester, Brosky and Van der Voort, JJ. Van der Voort, J., files dissenting opinion.

Author: Brosky

[ 295 Pa. Super. Page 95]

Appellants were denied a new trial by the court below related to an action they brought which alleged the appellee's actions harmed the appellants by aggravating a pre-existing

[ 295 Pa. Super. Page 96]

    heart condition had by appellant.*fn1 The trial court excluded deposition testimony of the treating physician from going to the jury because the court held his statements regarding aggravation of a pre-existing condition would leave the jury with purely speculative judgments with regard to damages. Damages in the amount of $35,000 for Mr. Walsh and $5,000 for Mrs. Walsh were awarded for injuries apart from any claim of aggravation. We reverse the decision of the trial court.

On January 25, 1975, John Walsh and James Snyder were involved in an automobile accident. Mr. Snyder was clearly at fault.*fn2 Several days later, Mr. Walsh found he could no longer bear the pain and discomfort arising from injuries he sustained. He then sought and received medical treatment for various symptoms manifested in the form of pain in his lower back, neck, and numbness in his hands. Physicians eventually determined his symptoms to be caused by injuries to his spinal cord. Appellant filed an action for damages arising from these injuries in November of 1976.

In September of 1977, appellant suffered from additional symptoms indicating poor health. He developed shortness of breath. On September 13, 1977, he sought the aid of Dr. Samuel I. Han. Dr. Han ordered appellant admitted to a hospital and various tests were performed which showed a 15 to 20 percent blockage of one artery. Treatment followed, not involving surgery, however, ten months later, appellant's condition had so deteriorated that more tests were ordered. These tests demonstrated that the partially blocked artery was now 70 to 80 percent occulled. Open-heart surgery was performed, shortly thereafter. On December 8, 1978, Mr. Walsh was permitted by the trial court to amend his original complaint to include damages arising out of his heart condition which alleged an aggravation of a pre-existing coronary artery disease and mental stress.

[ 295 Pa. Super. Page 97]

Mr. Walsh attempted to admit into evidence, at the subsequent trial, a deposition taken of Dr. Han, in which Han stated that the emotional stress caused by the accident substantially aggravated Walsh's pre-existing heart condition. The appellee objected to the use of this testimony and the trial court sustained the objection. The trial court determined the deponents statements would have left the jury with purely speculative evidence as to damages. The appellants, sometime later, petitioned for a new trial, and their request was denied. They appeal from the denial of a new trial.

Our scope of review in the instant case is limited. In Ditz v. Marshall, 259 Pa. Super. 31, 35, 393 A.2d 701, 703 (1978), we said:

The decision of the lower court, either granting or refusing a new trial, is considered to be within the sound discretion of the trial judge and will be reversed on appeal only if the appellate court determines that the trial court palpably abused its discretion. [Citation omitted.]

Myers v. Gold, 277 Pa. Super. 66, 69, 419 A.2d 663, 664 (1980). We find that a reversal is appropriate in the instant case.

The quantum burden of proof required for a verdict for the plaintiff in a negligence case is a preponderance of the evidence. As was stated in Hamil v. Bashline, 481 Pa. 256 n.9, 392 A.2d 1280 n.9 (1978), regarding the plaintiff's burden of proof:

[The burden of proof required of plaintiff] is made clear in Comment (a) to Section 433B of the Restatement [Restatement (Second) Torts]:

"a. Subsection (1) states the general rule [that the burden of proof as to causation is on the plaintiff]. As on other issues in civil cases, the plaintiff is required to produce evidence that the conduct of the defendant has been a substantial factor in bringing about the harm he has suffered, and to sustain his burden of proof by a preponderance of the evidence. This means that he must make it appear that it is more likely than not that the conduct of the defendant was a substantial factor in

[ 295 Pa. Super. Page 98]

    bringing about the harm. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation and conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant."

In satisfying its burden, the plaintiff should indicate to the court the factors which contributed to the harm and their number and, as stated in the Restatement (Second) of Torts ยง 433(b):

(b) Whether the actor's conduct has created a force or series of forces which are in continuous and active operation up to the time of harm, or has created a situation harmless unless acted upon by other forces for which the actor is not responsible.

See, Commonwealth v. Janek, 242 Pa. Super. 340, 363 A.2d 1299 (1976) (Concurring Opinion, Spaeth, J.); Wisniewski v. The Great Atlantic and Pacific Tea ...

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