The opinion of the court was delivered by: Savage, J
In this personal injury case where the defendant admitted liability and the sole issue presented to the jury was the amount of damages, plaintiff Sophya Wodchis, by and through her parents and natural guardians, Alex Wodchis and Evgeniya Rubis, moves for a new trial under Federal Rule of Civil Procedure 59. She contends that the amount awarded for non-economic damages was against the weight of the evidence and was so inadequate as to "shock the conscience."
Although a higher damages award would have been reasonable, we conclude that the jury's award for non-economic damages was not so low as to shock the conscience. Based on the evidence presented, it was reasonable for the jury to find that after providing for medical expenses that would minimize the size and visibility of Sophya's 3.2 cm facial scar, an additional award of $23,000.00 was adequate compensation for non-economic damages.
Sophya's mother and father testified about the events surrounding the
injury,*fn1 Sophya's time in the emergency
room,*fn2 her treatment following her discharge from
the hospital,*fn3 and her past*fn4 and
present lifestyle.*fn5 They described the horrific
sight of her hanging lip when they arrived at the hospital*fn6
and the subsequent healing process.*fn7 They
discussed their daughter's excellence in school, her vibrant
personality, her participation in numerous activities, her active
interaction with her peers, and her cheerfulness.*fn8
In short, they portrayed their six-year old daughter as a happy,
self-assured and confident child.*fn9
There was no evidence that Sophya was self-conscious of the scar.*fn10 Her parents were concerned about how it might impact her as she grows older.*fn11 As her father testified, "I am not sure" how she will handle the scar as a teenager.*fn12
Dr. Manstein, the plastic surgeon who treated Sophya at the emergency room,*fn13 discussed Sophya's injury*fn14 and the possible future treatment options.*fn15 He opined that even if these options were successful, the scar would be permanent.*fn16 He did not address the future dimensions of the scar or its likely appearance as Sophya matures.
Dr. Heffelfinger, a plastic surgeon who examined and evaluated Sophya
at the defendant's request,*fn17 described possible
treatment options.*fn18 Although he agreed with
Manstein that Sophya would always have a visible scar,*fn19
he stated that laser treatments could be utilized immediately
and subsequently to significantly reduce the scar's size and
visibility.*fn20 The goal would be to make the scar so
that "it's not barely perceptible at five feet."*fn21
He also testified as to the cost of these procedures.*fn22
The jury was instructed regarding the components of non-economic
damages which consisted of past, present and future pain and
suffering, embarrassment, humiliation, loss of enjoyment of life, and
disfigurement.*fn23 The jury returned a verdict
of $37,306.21 for past and future medical expenses, and $23,000 for
non-economic damages, for a total award of $60,306.21.*fn24
The plaintiff challenges the award for non-economic
Only where "the record shows that the jury's verdict resulted in a miscarriage of justice or where the verdict, on the record, cries out to be overturned or shocks [the] conscience" can the "extraordinary relief" of a new trial be ordered for insufficiency of the evidence. Marra v. Phila. Hous. Auth., 497 F.3d 286, 307 n.18 (3d Cir. 2007) (quoting Williamson v. Consol. Rail Corp., 926 F.2d 1344, 1353 (3d Cir. 1991)). When evaluating a motion for a new trial on the grounds that a jury's decision shocks the conscience, we exercise our own judgment in assessing the evidence. Id.
Although both experts agreed that Sophya's scar is
permanent,*fn25 the defendant's expert witness
testified that with make-up and after a series of non-invasive laser
treatments, Sophya's scar would be barely noticeable.*fn26
Sophya's parents testified that she was discharged from the
hospital the same day as the incident and required little additional
medical treatment for her injuries.*fn27 Sophya was
also presented as an outgoing and well-adjusted child who excelled in
school and participated in numerous extracurricular
The plaintiffs offer several cases to support their argument that the award for non-economic damages was so small as to shock the conscience. These opinions are of limited use. As an initial matter, the factually-intensive nature of a non-economic damages award makes it difficult to compare Sophya's case to others. The standard of review "is not whether the jury's verdict deviates from a discernibly 'normal' award in comparable cases, nor whether such deviation would seem well justified." Tormenia v. First Investment Realty Co., Inc., 251 F.3d 128, 138 (3d Cir. 2000). Such considerations do not provide an appropriate justification for courts to revise damage awards that have already been decided by a jury. Id. A jury verdict will not be disturbed because the damages award was small or the court would have awarded a greater amount. Epstein v. Saul Ewing LLP, 7 A. 3d 303 (Pa. Super. 2010).
A different trial strategy may have persuaded the jury to award a greater amount than it did. However, Rule 59 is not a vehicle for plaintiffs to adjust their strategy and relitigate their claims in hopes of a higher award. Dale and Selby Superette & Deli v. USDA, 838 F. Supp. 1346, 1348 (D. Minn. 1993) (holding that Rule 59 "is not intended to routinely give litigants a second bite at the apple").
Having determined that the verdict was not against the weight of the evidence and does not "shock the conscience," we shall ...