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[U] Ector v. King

Superior Court of Pennsylvania

September 9, 2013

REGINALD ECTOR AND JAMES MARK BOUDREAU, A/K/A MARK JAMES BOUDREAU, Appellants
v.
STEPHEN A. KING AND RICHARD KING, Appellees REGINALD ECTOR AND JAMES MARK BOUDREAU, A/K/A MARK JAMES BOUDREAU,
v.
STEPHEN A. KING AND RICHARD KING, APPEAL OF: STEPHEN A. KING, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment Entered February 23, 2012 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): August Term, 2003 No. 4788

BEFORE: STEVENS, P.J., [*] BOWES, and PLATT, [**] JJ. MEMORANDUM BY BOWES, J.:[1]

Stephen A. King appeals from the judgment entered on the jury verdict in favor of Reginald Ector and James Mark Boudreau following the denial of post-trial motions in this negligence action. Mr. Ector and Mr. Boudreau have also appealed to challenge the trial court's decision to grant Mr. King's motion for remittitur, which reduced the verdicts the jury awarded to Mr. Ector and Mr. Boudreau. We refuse Mr. King's request that we enter judgment notwithstanding the verdict as to Mr. Ector, but we do conclude that Mr. King is entitled to a new trial. In light of the award of a new trial, we need not address the remittitur issue.

Mr. Ector and Mr. Boudreau filed this negligence action against Mr. King[2] in connection with a motor vehicle accident that occurred on September 5, 2001. In their complaint, Mr. Ector and Mr. Boudreau alleged that they were traveling north in Mr. Ector's car on 7th Street in Philadelphia.

Mr. King's vehicle was ahead of Mr. Ector's vehicle, traveling in the same direction. Mr. Ector and Mr. Boudreau asserted that Mr. King negligently attempted to make a left hand turn onto Spring Garden Street from the right lane and struck Mr. Ector's vehicle, which was in the left lane. Emergency personnel transported Mr. Ector and Mr. Boudreau to the emergency room at Hahnemann Hospital where they were given diagnostic tests, including CAT scans. Both men were released from the hospital later that evening.

The parties initially submitted this matter to arbitration on two separate occasions. Unsatisfied with the decisions of the arbitrators,

Mr. Ector and Mr. Boudreau appealed and demanded that the matter proceed to a jury trial. On May 9-11, 2011, the trial court conducted a jury trial where the following testimony was given. Mr. Ector and Mr. Boudreau presented the expert testimony of Dr. Vincent Baldino through his video deposition. The day after the accident, Mr. Ector consulted the doctor for back pain. He recommended a program of physical therapy, ice, heat, ultrasound, and pain medication for Mr. Ector's recovery. After these remedies did not alleviate Mr. Ector's pain, Dr. Baldino ordered a MRI of Mr. Ector's lumbar and cervical spine. Mr. King objected to the admissibility of the MRI results as he was never provided the actual MRI films, which had been lost. The trial court overruled Mr. King's objection and allowed Mr. Ector to present the portion of Dr. Baldino's video deposition setting forth the MRI results, which Dr. Baldino had referenced in his expert report.

Dr. Baldino stated that the results of the MRI revealed that Mr. Ector had cervical and lumbar herniations, which Dr. Baldino noted were consistent with Mr. Ector's symptoms. As a consequence, Dr. Baldino referred Mr. Ector to Dr. Glen Miller for steroid injections, which gave Mr. Ector relief for a certain amount of time, but eventually Mr. Ector's pain returned. Dr. Baldino discussed the option of surgery, but Mr. Ector decided against this option because it was not financially feasible. In his deposition, Dr. Baldino concluded that Mr. Ector's injuries were permanent and his symptoms caused a serious debilitation to his person, affecting his ability to perform daily living activities.

Mr. Ector testified that he continued to take pain medication daily. With the assistance of medication, Mr. Ector is able to sleep but cannot sit for long periods of time. He experiences pain in his back and neck that radiates down his legs to his toes. Mr. Ector reported that the pain prevents him from going to his son's football games, picking up his granddaughter, or volunteering at a local homeless shelter. He did not present evidence of lost wages as he is unemployed and receives social security/disability benefits.

Mr. Ector's passenger, Mr. Boudreau, also reported injuries from the crash. Specifically, Mr. Boudreau claimed his face hit the windshield and he lost two teeth. A few days after the accident, Mr. Boudreau also consulted Dr. Baldino for pain. After diagnosing Mr. Boudreau with a concussion, posttraumatic lumbar and cervical strain and sprain, and ribcage contusion, Dr. Baldino prescribed physical therapy and ice treatments. Although Mr. Boudreau claims that he continued to experience cervical and lumbar stiffness, he discontinued therapy, and he did not have another appointment with Dr. Baldino until August 2004. Dr. Baldino "assumed" the pain Mr. Boudreau reported in 2004 was related to the 2001 accident. Deposition, 11/18/10, at 15. Dr. Baldino did not mention that he observed missing teeth. Mr. Boudreau's counsel claimed at trial that Mr. Boudreau's treating dentist could not testify because he was serving in Iraq. Mr. King's counsel objected to this statement of facts not in evidence. The trial court sustained the objection.

Mr. King was not present to testify in his own defense, but his counsel presented his video deposition. Defense counsel also admitted the expert testimony of Michael Brooks, M.D., through video deposition. Dr. Brooks reviewed Mr. Ector's CAT scan results and found degenerative changes in Mr. Ector's spine that resulted from long-standing wear and tear predating the accident. Dr. Brooks asserted the CAT scan showed no sign that any of Mr. Ector's disks were herniated. Although Dr. Brooks admitted that an MRI may be a more sensitive test for investigating spinal injuries, he maintained that a CAT scan is "perfectly appropriate in [an] emergency situation to exclude disc herniation." Deposition, Brooks, 10/6/10, at 45. As the MRI films had been lost, Dr. Brooks never had the opportunity to read the actual MRI films.

At the conclusion of the trial, the jury found Mr. King's negligence caused the accident and awarded Mr. Ector and Mr. Boudreau damages in the amount of $250, 000 and $37, 000, respectively. On May 20, 2011,

Mr. King filed a motion for post-trial relief requesting judgment n.o.v. or a new trial. Mr. King thereafter, at the trial court's request, filed a second post trial motion seeking remittitur. The trial court, on September 28, 2011, denied Mr. King's first post-trial motion, but, on October 18, 2011, granted Mr. King's motion for remittitur and reduced the jury's awards to Mr. Ector and Mr. Boudreau to $50, 000 and $25, 000, respectively. These orders were docketed on November 9, 2011.

On October 31, 2011, Mr. Ector and Mr. Boudreau filed a motion for reconsideration of the trial court's order granting remittitur. The trial court denied that motion on November 15, 2011. On December 13, 2011, Mr. Ector and Mr. Boudreau filed an appeal from the order denying reconsideration of the grant of remittitur. On December 22, 2011, Mr. King filed a cross-appeal challenging the trial court's denial of his initial post-trial motion. On February 10, 2012, the trial court filed an opinion pursuant to Pa.R.A.P. 1925(a) indicating that it believed both appeals should be quashed as untimely filed. However, neither appeal was untimely because the trial court never entered final judgment.[3]

As a result, on February 16, 2012, this Court entered an order per curiam directing the parties to praecipe the prothonotary to enter judgment on the docket. Judgment was entered on the verdict on February 23, 2012. Accordingly, we will treat the parties' appeals as if they were filed from entry of judgment. See Pa.R.A.P. 905(a) ("A notice of appeal filed after the announcement of a determination but before the entry of an appealable order shall be treated as filed after such entry and on the day thereof."); American & Foreign Insurance Co. v. Jerry's Sport Center, Inc., 948 A.2d 834, 842 (Pa.Super. 2008), affirmed, 2 A.3d 526 (Pa. 2010) (treating the defendant's appeal from the verdict as having been taken from the final judgment when judgment was entered after the appeal was filed).

Due to its belief that both appeals should be quashed as untimely, the trial court had not discussed the merits of this case in its 1925(a) opinion. Thus, this panel remanded to the trial court for the preparation of a supplemental opinion addressing each of the parties' claims on appeal and cross-appeal.[4] On March 14, 2013, the trial court filed an opinion in which it admitted that it should have granted Mr. King's post-trial motion as the jury's verdict showed no reasonable relationship to the losses allegedly suffered by plaintiffs Mr. Ector and Mr. Boudreau. Specifically it noted:

In the case sub judice as pertains to Plaintiff Ector, this Court did not find him to be particularly honest or credible, based on statements he made in his prior deposition testimony. This Court also determined that Plaintiff was not entitled to economic damages since, although he testified that he was employed at the time of the accident and was unable to work after the accident, he did not present testimony showing his actual loss. Essentially, Plaintiff treated with a general practitioner for approximately four months. He did not have surgery, nor was he admitted to a hospital as an inpatient.
Similarly, Plaintiff Boudreau's evidence did not support such a damage award. His only claimed injuries were to five teeth. He presented no expert to support his claim, and his own testifying doctor examined Plaintiff's mouth within a week of the accident and found no sign in injury.

Trial Court Opinion, 3/12/13, at 2. For this reason, the trial court asks this Court vacate the judgment and remand the matter for a new jury trial. Id. at 3.

As noted above, Mr. Ector and Mr. Boudreau appealed to challenge the trial court's decision to remit the jury verdicts in their favor to $50, 000 and $25, 000, respectively. In his cross appeal, Mr. King claims the trial court erred in refusing to grant his motion for judgment n.o.v. since Mr. Ector, who was subject to the limited tort option, did not sustain serious bodily injury. In addition, Mr. King asserts that the trial court should have granted him a new trial as (1) the jury's verdict was against the weight of the evidence; (2) Mr. Ector's counsel made numerous factually unsupported and prejudicial comments; and (3) the trial court improperly admitted evidence which had never been presented to ...


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