Appeal from the Order entered December 19, 2007 In the Court of Common Pleas of Chester County, Civil, No. 05-09983.
The opinion of the court was delivered by: Klein, J.
Petition for Reargument Filed May 15, 2009
BEFORE: KLEIN, SHOGAN, JJ. and McEWEN, P.J.E.
¶ 1 Anthony Fissell appeals from the order entering a $434,757.25 judgment against him*fn1 and in favor of plaintiffs Lisa Ann Dolan and Gerald Dolan (for loss of consortium)*fn2 for a motor vehicle accident after he appealed from an arbitration award against him for $28,220. Among other arguments, Fissell claims that the court erred in 1) allowing Dolan to withdraw her stipulation to proceed on medical reports*fn3 and limit her recovery to $25,000; and 2) allowing the expert initially retained by Fissell to testify for Dolan. After review of the cogent opinion of the trial judge, the Honorable Edward Griffith, the submissions by the parties and relevant law, we affirm.
¶ 2 Fissell raises the following five complaints of error:
1. The trial court abused its discretion in allowing Dolan to withdraw a stipulation to proceed on medical reports and limit damages to $25,000.
2. The trial court erred in permitting Dolan to use testimony of the chiropractor who conducted the independent medical examination and wrote a report acknowledging the injuries.
3. The trial court erred by denying a motion for mistrial after a brief mention of insurance by an expert in defining an "independent medical exam."
4. The damage award was gross and excessive.
5. The verdict was against the weight of the evidence. We believe none of these claims has merit.
¶ 3 At trial Dolan testified that she was in traffic and slowed her van to less than five miles per hour when she heard screeching tires and her minivan was hit from behind by Fissell's car, pushing her car into the car in front of her. She claimed continuing chronic back pain as a result of the accident. Her treating physician testified for Dolan saying that she suffered from permanent chronic sprain syndrome attributable to the accident with Fissell, which would cause pain during her daily activities. Dr. Jess Armine, who was originally hired by Fissell to perform an independent medical examination, also testified for Dolan, supporting the treating physician's claim that the back injury was permanent.
¶ 4 The parties appeared for compulsory arbitration on June 23, 2006 and Dolan was awarded $28,220. Fissell appealed. On August 31, 2006, Dolan filed a stipulation under Pa.R.C.P. 1311.1 to proceed on medical reports and limit damages to $25,000. On December 7, 2006, at a settlement conference, Dolan moved for permission to withdraw the Rule 1311.1 stipulation. Counsel for Dolan claimed that he did not realize that $8,200 in property damage would be part of the $25,000 limit. Judge Griffith, over Fissell's objection, allowed the withdrawal and continued the case to February 28, 2007. The case was continued once again until the summer and it was ultimately tried on August 28, 2007.
¶ 5 After the motion to withdraw the stipulation was granted, Fissell obtained a defense medical examination by Dr. Jess Armine, R.N., D.C.*fn4 Dr. Armine examined Dolan on January 31, 2007. Doctor Armine issued an expert report shortly thereafter, diagnosing Dolan with chronic sprain syndrome.*fn5 Pursuant to Pa.R.C.P. 4010(b), Dr. Armine's report was delivered to Dolan. Fissell decided not to use Dr. Armine as a witness presumably because the doctor's report was favorable to Dolan. Thereafter, Judge Griffith found as a fact Dolan's counsel called Dr. Armine and asked if he was willing to testify as to his report. The doctor agreed and the only further conversation was about schedule and billing, and counsel never talked to the doctor about the case.
¶ 6 On August 29, 2007, the jury rendered a verdict for $410,000 which was later molded to include $24,757.25 in delay damages. Post-verdict motions were denied and this appeal followed.
1. Was it proper to allow the plaintiff to withdraw the stipulation to proceed on medical reports and limit damages to $25,000 ...