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Ferguson v. Morton

Superior Court of Pennsylvania

December 26, 2013


Appeal from the Order Entered January 4, 2013 In the Court of Common Pleas of Philadelphia County Civil Division at No.: September Term, 2010, No. 3152




Sheila Ferguson challenges the trial court's January 4, 2013 order granting Philadelphia Cycle Center's ("PCC") post-trial motion seeking a new trial. Ferguson contends that the trial court erred in granting a mistrial based upon the misconduct of her counsel while presenting closing argument on behalf of Ferguson. We agree, and we reverse.

The sole issue presented concerns certain inflammatory comments by Ferguson's attorney, Thomas More Holland, during closing arguments that the trial court found were designed to appeal to the jurors' passions and prejudices in an effort to increase any award of damages. The trial court found that Holland's summation in effect sought the imposition of punitive damages, despite the fact that such damages were not properly pleaded or proved during the trial.

The evidence presented to the jury supports the following narrative. On June 5, 2010, Ferguson, who worked as a licensed practical nurse, was struck by a motorcycle as she walked to her vehicle. Notes of Testimony ("N.T."), 7/30/2012, at 75. She sustained various injuries, including a segmental fracture of her tibia[1] and a fracture of her fibula. As well, Ferguson suffered abrasions to her face, elbows, and knees, a "knot" on her head, and headaches, with continuing pain arising from her injuries. Id. at 81.

As a consequence of the accident and her injuries, Ferguson filed suit against the above-captioned defendants. Against Derrick Morton, allegedly the operator of the motorcycle at the time of the accident, Ferguson sought damages for negligence.[2] Ferguson raised claims against PCC of negligence and negligent entrustment for transferring the motorcycle to Morton without verifying that Morton had valid insurance coverage and a motorcycle classification on his Pennsylvania driver's license.

Ferguson offered expert witness Mark Avart, D.O., a board-certified orthopedic surgeon, to testify regarding Ferguson's injuries and treatment. Dr. Avart testified that, in addition to the above injuries, Ferguson also suffered from post-concussion syndrome after the accident. Trial Deposition of Mark D. Avart, D.O. ("Avart Depo."), 7/19/2012, at 12. The segmental fracture to Ferguson's tibia required surgery and the insertion of a rod to stabilize the bone. Id. at 16. Ferguson was hospitalized for twelve days after the accident. N.T., 7/30/2012, at 88-89. Following surgery and a period of non-weight-bearing recovery, Avart Depo. at 26-27, Ferguson required the use of a walker for an additional period of her recuperation, including when she returned to work on August 23, 2010, and at least until September, approximately three months after the accident. N.T., 7/30/2012, at 99, 110-11.

As a consequence of the injuries and surgery, Dr. Avart testified that Ferguson would have "some permanent swelling in that leg, with loss of normal strength and motion, and chronic pain." Avart Depo. at 33. He further testified that Ferguson's symptoms would "worsen with prolonged standing, sitting, walking, driving, lifting, and twisting, " and that Ferguson would continue to struggle on "stairs and uneven surfaces, and [she] has to be careful about the leg giving way." Id. Dr. Avart further testified that Ferguson's various conditions "were chronic and permanent." Id. Before the accident, Ferguson had worked sixty or more hours per week. Dr. Avart opined that, in the wake of the accident, Ferguson would be able to work, but not more than forty hours per week. Id. at 42-43.

Ferguson did not return to work until August 23, 2010. At that time she was able to return to one of the two jobs she had at the time of the accident, but not both. In furtherance of her claims regarding limitations on her ability to work that arose as a consequence of her injuries, she submitted the testimony of Philip Spergel, Ph.D., a rehabilitation psychologist and vocational expert. See N.T., 7/30/2012, at 223. Dr. Spergel noted Ferguson's history of working long hours and maintaining more than one job, id. at 239, and opined that her work capacity would be diminished permanently as a consequence of her injuries. Id. at 242. He further testified that she might be limited to jobs that "do not require a great deal of standing and do not require a great deal of walking and certainly no strenuous activities, " important limitations for a licensed practical nurse. Id. at 244-45.

Regarding the effect of the injuries on Ferguson's earning potential, Dr. Spergel made calculations based on the following two assumptions:

1. Ferguson had lost approximately twelve hours of work per week at a rate of $27.40 per hour. Because this limitation had applied for two years since the accident (as of the time of trial), this had cost Ferguson approximately $34, 232.64.
2. Ferguson, who was thirty-six years old when Dr. Spergel interviewed her, had a vocational life expectancy of twenty-nine to thirty-four years, based on retirement ages of sixty-five or seventy, respectively. Consequently, assuming Ferguson would have continued to work sixty or more hours per week until she attained those ages, her earnings loss would be between $433, 900 and $508, 759.[3]

Id. at 253-54, 273-74. In addition to the above two categories of compensable economic damages, the parties stipulated to the existence of an outstanding Pennsylvania Department of Public Welfare lien in the amount of $14, 549.70. Id. at 14-15. Consequently, the evidence presented the jury with a range of economic damages as high as $557, 541.34, in addition to Ferguson's claim for non-economic damages.

Following the close of evidence, Holland presented his summation to the jury. Holland's closing argument repeatedly was interrupted by counsel for PCC on the basis that Holland was presenting improper matter and seeking to inflame the jury by focusing attention upon the fact that PCC was a corporate rather than individual defendant, and by repeatedly suggesting that PCC was concerned only with profits and not with the safety of the greater community. Although the trial court sustained virtually all of PCC's objections, repeatedly admonished Holland, issued numerous curative instructions to the jury, and ultimately cut Holland's summation short due to Holland's failure to adhere to the court's proscriptions, the court denied PCC's oral motion for a new trial. N.T., 8/1/2012, at 112-13. Finally, the jury retired to deliberate. In response to jury interrogatories, the jury found both PCC and Morton negligent, and concluded that both defendants' negligence caused Ferguson's harm. The jury apportioned liability equally to Morton and PCC, and awarded Ferguson $575, 000 in damages. See Jury Interrogatories, 8/2/2012.

Thereafter, both parties to this appeal filed post-trial motions. Ferguson objected to various evidentiary rulings, including adverse rulings regarding the admissibility and scope of certain expert evidence, and upon that basis sought a new trial. PCC also sought a new trial on various bases, including that Holland's comments during closing were so improper that they could not be remedied by the court's curative instructions, and that they prejudiced PCC before the jury so severely as to undermine confidence in the award of damages.

By order entered January 4, 2013, the trial court granted PCC's request for a new trial because it concluded that the prejudice caused by Holland's closing argument was too great to be cured by appropriate curative jury instructions or otherwise.[4] On January 17, 2013, Ferguson filed a motion for reconsideration. On January 31, 2013, Ferguson filed a timely notice of appeal. Ferguson's motion for reconsideration was denied by operation of law on or about February 3, 2013, at the expiration of the thirty-day time limit to appeal the trial court's grant of a new trial. See Vietri v. Del. Valley High Sch., 63 A.3d 1281, 1286 (Pa.Super. 2013) (citing, inter alia, Pa.R.A.P. 1701(b)(3)).[5], [6]

Before this Court, Ferguson raises the following issue:
Did the trial court abuse its discretion or err as a matter of law by granting a new trial based upon the judge's conclusion that the verdict, as rendered, wrongly included an amount for punitive damages, when:
• [PCC] limited its defense at trial to liability;
• The jury verdict was consistent with [Ferguson's] claim for economic damages;
• [PCC] did not offer any evidence or witnesses to dispute the nature or extent of [Ferguson's] injuries;
• [PCC] did not offer any evidence or witnesses to dispute the nature or extent of [Ferguson's] vocational damages, i.e., [Ferguson's ...

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