February 11, 2014
SANDRA S. LLOYD AND ROBERT LLOYD
KEVIN J. BELL AND CLARENCE D. BELL, JR., APPEAL OF: KEVIN J. BELL SANDRA S. LLOYD AND ROBERT LLOYD Appellants
KEVIN J. BELL AND CLARENCE D. BELL, JR., Appellees
Appeal from the Order Entered February 11, 2013 In the Court of Common Pleas of Chester County Civil Division at No. 11-02039
BEFORE: BENDER, P.J., LAZARUS, J. AND FITZGERALD [*] , J.
Kevin J. Bell (Bell) appeals from the order entered on February 11, 2013, granting Sandra S. Lloyd (Lloyd) and Robert Lloyd a new trial in this negligence action. Lloyd cross-appeals. We reverse the order of the trial court, dismiss Lloyd's cross-appeal without prejudice, and remand, whereupon the parties may praecipe for the entry of judgment on the jury verdict.
On February 27, 2009, Lloyd was involved in a motor vehicle accident when Bell rear-ended the car Lloyd was driving. The parties dispute the force of impact. Lloyd's airbag did not deploy, and her car was driven from the scene of the accident. However, Lloyd subsequently testified that the car was totaled. Following the accident, Lloyd received treatment for neck and back pain. Thereafter, Lloyd and her husband initiated this action, asserting Lloyd suffered injuries in the accident.
A jury trial commenced. Bell admitted negligence at trial but disputed Lloyd's claim of injury, as Lloyd had an extensive, pre-accident medical history of back and neck problems.
The parties' medical experts agreed that there was no objective evidence that the accident exacerbated Lloyd's physical condition. However, Jeffrey Friedman, M.D., who testified on behalf of Lloyd, opined that Lloyd suffered from myofascial pain syndrome and fibromyalgia. Dr. Friedman acknowledged that Lloyd's pain complaints were subjective, but he concluded that the accident had aggravated her condition.
Bell's medical expert, David Glaser, M.D., disputed Dr. Friedman's diagnosis, suggesting that Lloyd's symptoms were more appropriately explained by her pre-existing back and neck conditions. Notes of Testimony (N.T.), 10/2/12, at 71-72. Dr. Glaser also testified, in part, as follows:
Q: All right. Doctor, after the accident, you looked at a copy of the emergency department records, correct?
A: I did.
Q: Could you tell us about that?
A: The emergency room records basically documented I think what you all heard about, that she was driving, the car hit from behind, she came in hours later. It diagnosed her with having cervical sprain. Also mentioned the shoulder contusion. There was some bruising as well mentioned.
Id. at 60-61. Thereafter, Dr. Glaser acknowledged that the "scrapes or contusions" seen in the emergency room "maybe" were objective findings of injury." Id. at 68. Dr. Glaser summarized his conclusions in the following manner:
Q: Doctor, at the time you saw Mrs. Lloyd in 2012, do you have an opinion as to whether she was suffering from any accident related injury?
A: It was my opinion when I saw her she was not suffering from any accident related injury within medical certainty.
Q: Even though there was nothing objective that you saw, you leave open the possibility that plaintiff could have suffered an injury as a result of the accident?
Mr. McDonald: Objection. Leading.
The Court: Overruled.
Dr. Glaser: Yes. Id. at 68-69 (formatting modified). In this context, Dr. Glaser testified that it was "reasonable to consider" that Lloyd suffered a strain of her neck or back. Id. at 69. However, Dr. Glaser testified further that no objective evidence of a strain existed. Id. at 70. According to Dr. Glaser, strains that are not viewable by MRI take approximately three months to heal. Id. at 72. Dr. Glaser examined Lloyd on July 11, 2012, more than three years after the accident. Id. at 45.
Following trial, the Honorable Thomas G. Gavin instructed the jury on factual cause. Lloyd did not object to this instruction. However, Lloyd objected to the first jury interrogatory on the verdict slip, which asked whether Bell's negligence was a factual cause in bringing about Lloyd's injuries. Counsel for Lloyd objected in the following manner:
MR. MCDONALD: Secondly, we object to question number one because we believe that the defendant's expert testified there was some injury. And under those circumstances, the case law is clear that the jury should not be allowed to find that there was no injury in the case because there's injury coming from both experts in the case.
Id. at 146. Judge Gavin reviewed Dr. Glaser's testimony and overruled Lloyd's objection. After deliberation, the jury returned a verdict for the defense, answering the first interrogatory in the negative, thus finding no causation.
Lloyd filed post-trial motions, alleging numerous grounds for a new trial, including one that renewed Lloyd's objection to the verdict slip:
This Honorable Court committed prejudicial/harmful errors of law and/or abused its discretion by permitting, over objection, Question #1 of the Verdict Slip to permit the jury to find that the negligence of the Defendant was not a factual cause of harm to Plaintiff, Sandra S. Lloyd, where the Defendants' medical proof, including expert medical proof and Plaintiff's medical proof, including expert medical proof, establish that there was at least some injury to the Plaintiff, Sandra S. Lloyd, caused by the negligence of the Defendant, Kevin J. Bell[.]
Lloyd's Motion for Post Trial Relief, at 3. The trial court granted a new trial on this ground, concluding that it had erred in failing to instruct the jury that it must "award some type of recovery." See Order of Court, 2/11/13, at 2 n.1.
In his timely appeal, Bell raises several arguments in support of his contention that the trial court erred in granting Lloyd a new trial. These arguments include: (1) whether Lloyd failed to preserve her claim that Bell's medical expert conceded injury; (2) whether the trial court abused its discretion in addressing this claim sua sponte; and (3) whether the court erred in finding that Bell's medical expert conceded injury. Bell also contends, in the alternative, that any new trial should be limited to damages only. Finally, Bell contends that the court erred in failing to amend the case caption to reflect the stipulated dismissal of Clarence D. Bell. See Appellant's Brief, at 5.
We review the grant of a new trial in the following manner:
When analyzing a decision by a trial court to grant or deny a new trial, the proper standard of review, ultimately, is whether the trial court abused its discretion ... A review of a denial of a new trial requires the same analysis as a review of a grant. First, the appellate court must examine the decision of the trial court that a mistake occurred.
At this first stage, the appellate court must apply the correct scope of review, based on the rationale given by the trial court. There are two possible scopes of review to apply when appellate courts are determining the propriety of an order granting or denying a new trial. There is a narrow scope of review: where the trial court articulates a single mistake (or a finite set of mistakes), the appellate court's review is limited in scope to the stated reason, and the appellate court must review that reason under the appropriate standard.
The appropriate standard of review also controls this initial layer of analysis. If the mistake involved a discretionary act, the appellate court will review for an abuse of discretion. If the mistake concerned an error of law, the court will scrutinize for legal error. If there were no mistakes at trial, the appellate court must reverse a decision by the trial court to grant a new trial because the trial court cannot order a new trial where no error of law or abuse of discretion occurred.
If the appellate court agrees with the determination of the trial court that a mistake occurred, it proceeds to the second level of analysis. The appellate court must then determine whether the trial court abused its discretion in ruling on the request for a new trial ... An abuse of discretion exists when the trial court has rendered a judgment that is manifestly unreasonable, arbitrary, or capricious, has failed to apply the law, or was motivated by partiality, prejudice, bias, or ill will. A finding by an appellate court that it would have reached a different result than the trial court does not constitute a finding of an abuse of discretion.
Huber v. Etkin, 58 A.3d 772, 775-77 (Pa.Super. 2012) (internal formatting modified) (quoting Harman ex rel. Harman v. Borah, 756 A.2d 1116, 1121–23 (2000)).
Bell asserts several grounds upon which he urges us to conclude that Lloyd waived consideration of Dr. Glaser's purported concession of injury. For example, Bell suggests that Lloyd should have requested a directed verdict on the issue of causation. See Pa. R.C.P. 226. She did not. Lloyd should have objected to the jury instruction on causation. See Livelsberger v. Kreider, 743 A.2d 494, 498 (Pa.Super. 1999). She did not. Lloyd should have objected to the jury verdict on the ground that it was inconsistent. See Criswell v. King, 834 A.2d 505, 513 (Pa. 2003) (citing Philadelphia Police Dep't v. Gray, 633 A.2d 1090 (Pa. 1993)). Again, she did not.
We decline to find waiver. Though we agree that Lloyd's preservation of this issue was inartful, the issue was before the trial court, which clearly struggled with the impact of Dr. Glaser's testimony. Lloyd's objection to the jury verdict slip was premised expressly upon her contention that Dr. Glaser conceded injury, a weight of the evidence claim, and the trial court interpreted her objection in that manner. See Andrews v. Jackson, 800 A.2d 959, 962 (Pa.Super. 2002) (observing that where a defendant concedes an injury to the plaintiff, a subsequent jury finding of no causation is contrary to the weight of the evidence). Thereafter, Lloyd's post-trial motion preserved the precise ground for objection previously raised at trial. See Criswell v. King, 834 A.2d 505, 513 (Pa. 2003) (holding that a weight of the evidence claim is properly preserved by timely post-trial motion).
In light of our conclusion that Lloyd preserved this issue for review, we do not agree with Bell's assertion that the trial court raised it sua sponte. Nevertheless, "[i]t has long been established that if sufficient cause exists, a court may grant a new trial sua sponte." Getz v. Balliet, 246 A.2d 108, 110 (Pa. 1968) (citing Trerotola v. City of Philadelphia, 29 A.2d 788 (Pa. 1943)). A trial court need not invoke any particular language in exercising this power. Rather, the trial court must establish a basis for its decision.
An arbitrary and unsupported use of this power by a trial court to avoid justifying its ruling would be clearly inappropriate. … [M]ere conclusions such as 'interest of justice' are insufficient. All judicial process necessarily is in the interest of justice. Such conclusion, in the absence of amplification, could well serve as a cloak or shield for abused judicial discretion.
Commonwealth v. Powell, 590 A.2d 1240, 1243 (Pa. 1991) (quotation and citations omitted). In this matter, the trial court acknowledged that it had committed what it viewed to be an error of law. On this basis, it granted Lloyd a new trial. We discern no abuse of the court's discretion in this regard. Powell, 590 A.2d at 1243; Getz, 246 A.2d at 110.
Thus, we turn to Bell's substantive claim. According to Bell, the trial court erred in granting a new trial because Dr. Glaser did not concede that Lloyd suffered an accident-related injury. Rather, according to Bell, Dr. Glaser merely acknowledged that it was possible Lloyd had suffered a cervical strain. Bell contends that this distinction is significant because an expert's language regarding "possibilities" does not establish the requisite degree of medical certainty, citing in support Griffin v. Univ. of Pittsburgh Med. Ctr., 950 A.2d 996 (Pa.Super. 2008). Bell concludes that because Dr. Glaser did not concede an injury to Lloyd, the jury was free to return a verdict of no causation. See Livelsberger v. Kreider, 743 A.2d 494 (Pa.Super. 1999); Henery v. Shadle, 661 A.2d 439 (Pa.Super. 1995), appeal denied, 668 A.2d 1133 (Pa. 1995).
Lloyd disputes Bell's characterization of Dr. Glaser's testimony. According to Lloyd, Dr. Glaser conceded that Lloyd suffered a cervical strain, as well as scrapes and bruises, in the accident. Lloyd contends that the injury conceded need not be identical to the injury asserted, citing in support Andrews, 800 A.2d at 965 (affirming a trial court order granting a new trial on damages where defendant's expert conceded an injury less severe than one asserted by plaintiff's expert). Therefore, according to Lloyd, the trial court did not abuse its discretion in granting a new trial. Id. Lloyd also appears to dispute Bell's reference to Griffin and notes an absence of authority specifically addressing the appropriate standard by which to evaluate expert testimony in the context of a concession of injury case.
Based upon the parties' contentions, we discern two issues in need of resolution: (1) how must expert testimony be evaluated for a concession of injury; and (2) whether the defense conceded injury in this case.
The purpose underlying the requirement that expert medical opinion be rendered with certainty is to enable the fact finder to "find as fact what the expert gave as opinion." Hamil v. Bashline, 392 A.2d 1280, 1285 (Pa. 1978) (quoting McMahon v. Young, 276 A.2d 534, 535 (Pa. 1971)). The manner in which we evaluate the sufficiency of expert testimony is well established:
In determining whether the expert's opinion is rendered to the requisite degree of certainty, we examine the expert's testimony in its entirety. Carrozza v. Greenbaum, 866 A.2d 369, 379 (Pa.Super. 2004) (citation omitted). "That an expert may have used less definite language does not render his entire opinion speculative if at some time during his testimony he expressed his opinion with reasonable certainty." Id. (citation omitted). Accordingly, an expert's opinion will not be deemed deficient merely because he or she failed to expressly use the specific words, "reasonable degree of medical certainty." See Commonwealth v. Spotz, 562 Pa. 498, 756 A.2d 1139 (2000) (indicating that "[i]n this jurisdiction, experts are not required to use 'magic words' " but, rather, "this Court must look to the substance of [the expert's] testimony to determine whether his opinions were based on a reasonable degree of medical certainty rather than upon mere speculation"). Nevertheless, "[a]n expert fails this standard of certainty if he testifies 'that the alleged cause 'possibly[, '] or 'could have' led to the result, that it 'could very properly account' for the result, or even that it was 'very highly probable' that it caused the result." Eaddy v. Hamaty, 694 A.2d 639, 642 (Pa.Super. 1997) (citation omitted). See also Corrado v. Thomas Jefferson Univ. Hosp., 790 A.2d 1022, 1031 (Pa.Super. 2001) (finding expert opinion that defendant "more likely than not" deviated from standard of care insufficiently certain).
Griffin, 950 A.2d at 1000 (quoting Vicari v. Spiegel, 936 A.2d 503, 510– 11 (Pa.Super. 2007)).
The focus of this analysis is often upon the plaintiff's expert testimony, as it is the plaintiff who bears the burden of proof. See Id . at 1003; Corrado, 790 A.2d at 1031; Eaddy, 694 A.2d at 642. In this case, we must examine the rebuttal testimony of Bell's expert, Dr. Glaser. Such evidence is not held generally to the same standard.
Pennsylvania law does not require a defense expert … to state his or her opinion to the same degree of medical certainty applied to the plaintiff['s expert.] … Absent an affirmative defense or a counterclaim, the defendant's case is usually nothing more than an attempt to rebut or discredit the plaintiff's case.
Jacobs v. Chatwani, 922 A.2d 950, 961 (Pa.Super. 2007).
However, the more relaxed standard generally suitable to rebuttal testimony does not provide an appropriate framework in which to examine expert testimony for a concession of injury, which is more akin to an affirmative defense than typical rebuttal testimony. Id. To facilitate this purpose, the rebuttal testimony must be scrutinized in the same manner as required of a plaintiff's presentation of a prima facie case. Hamil, 392 A.2d at 1285. Accordingly, where expert rebuttal testimony is to be examined to determine whether injury to a plaintiff has been conceded, we hold that the expert medical opinion standard, requiring expert testimony delivered to a medical certainty, applies. Griffin, 950 A.2d at 1000.
The need for this corollary is readily apparent where a trial court must determine whether to grant a new trial based on the weight of the evidence.
The basis for a weight claim derives from the fact that the trial court, like the jury, had an opportunity to hear the evidence and observe the demeanor of the witnesses; the hope and expectation animating a weight challenge is that the trial court will conclude that the verdict was so contrary to what it heard and observed that it will deem the jury's verdict such a miscarriage of justice as to trigger the court's time-honored and inherent power to take corrective action.
Given the primary role of the jury in determining questions of credibility and evidentiary weight, this settled but extraordinary power vested in trial judges to upset a jury verdict on grounds of evidentiary weight is very narrowly circumscribed. A new trial is warranted on weight of the evidence grounds only "in truly extraordinary circumstances, i.e., when the jury's verdict is 'so contrary to the evidence that it shocks one's sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail.'" Armbruster v. Horowitz, 572 Pa. 1, 813 A.2d 698, 703 (2002) (emphasis original) (quoting Commonwealth v. Brown, 538 Pa. 410, 648 A.2d 1177, 1189 (1994)). This Court has also noted that one of the reasons that the power and duty to upset a verdict on weight grounds is so narrowly circumscribed is because of the obvious tension between the broad, settled, exclusive role of the fact-finder in assessing credibility and the limited power of trial judges, in narrowly circumscribed circumstances, to overturn those assessments when the judicial conscience is not merely disappointed, or uncomfortable, but shocked. Id. at 704.
Criswell, 834 A.2d at 512-13.
Absent expert evidence conceding an injury to the plaintiff that is sufficiently certain, the assessment of the jury must prevail. Id.; see also Neison v. Hines, 653 A.2d 634, 637 (Pa. 1995) ("[T]he jury is free to believe all, some, or none of the testimony presented by a witness … up until the point at which [its] verdict is so disproportionate to the uncontested evidence as to defy common sense and logic."). The trial judge must defer to this assessment, decline to usurp the role of the jury as fact finder, and deny the weight of evidence claim. Criswell at 512-13. Accordingly, absent sufficient evidence, a trial court's decision to grant a new trial constitutes an abuse of discretion. Id.; see also Huber, 58 A.3d at 775-77.
The question remains whether the defense conceded injury in this case.
Where there is no dispute that the defendant is negligent and both parties' medical experts agree the accident caused some injury to the plaintiff, the jury may not find the defendant's negligence was not a substantial factor in bringing about at least some of plaintiff's injuries.
Andrews, 800 A.2d at 962 (citing Neison, 653 A.2d at 637); see also Mano v. Madden, 738 A.2d 493, 497 (Pa.Super. 1999). However, absent a concession of injury, "the fact finder resolves conflicts in evidence." Livelsberger, 743 A.2d at 496 (distinguishing Neison); see also Henery v. Shadle, 661 A.2d at 442 (defense testimony acknowledging that plaintiff "may very well have suffered" some injury did not constitute a concession).
We have reviewed Dr. Glaser's testimony in its entirety. As we have set forth the relevant testimony above in detail, we need not repeat it. Nevertheless, it is clear that Dr. Glaser rejected Dr. Friedman's diagnosis, concluding that Lloyd was not suffering from any accident-related injury when he examined her. In his expert medical opinion, Dr. Glaser further concluded that Lloyd's pre-existing conditions were responsible for her ongoing discomfort. When asked on direct examination whether it was "possible" that Lloyd "could have suffered an injury" in the accident, Dr. Glaser acknowledged that it was "reasonable to consider" that Lloyd suffered a cervical strain. We conclude that Dr. Glaser's testimony fails to meet the requisite certainty to establish a concession of injury. Griffin, 950 A.2d at 1003 (rejecting as insufficient testimony suggesting the conduct of defendant's staff "more likely than not" caused an injury). Accordingly, Andrews does not apply, and the case properly went to the jury to determine causation. Livelsberger, 743 A.2d at 496.
In its order granting a new trial, the trial court indicated that Dr. Glaser's cross-examination testimony conceded an injury to Lloyd's neck. We find no support in the transcript for this conclusion. The focus of Dr. Glaser's cross-examination testimony was upon the thoroughness with which he reviewed Lloyd's medical history and his rejection of Dr. Friedman's diagnosis. Moreover, we disagree with the court's characterization of Dr. Glaser's testimony to the extent it concluded Dr. Glaser acknowledged a "probable neck strain." Dr. Glaser never testified to the probability of a cervical strain. Nevertheless, testimony suggesting than an alleged injury was "very highly probable" has similarly been rejected. Id. (citing, e.g., Eaddy, 694 A.2d at 642 (rejecting an expert report that characterized an alleged cause as "the most reasonable probability" for the injury).
The trial court also noted Dr. Glaser's purported concession that Lloyd suffered scrapes and bruises. Again, we disagree. In recounting the manner in which he reviewed Lloyd's medical records, Dr. Glaser merely acknowledged the contents of the emergency room record, which mentioned "the shoulder contusion, " "some bruising, " and a "cervical sprain." Dr. Glaser did not adopt the emergency room record as his opinion, nor did he testify to a medical certainty that its contents were correct. To the contrary, on cross-examination, Dr. Glaser appeared to minimize such records' importance, testifying that the opinions of other doctors as contained in their reports are "great to know, " but that "they confirm my opinions … they don't change my opinions." N.T. at 83. Therefore, this testimony does not constitute a concession of injury. Id.
After reviewing Dr. Glaser's testimony in its entirety, we discern no error in the court's stewardship of this trial. The trial court properly overruled Lloyd's objection to the verdict slip interrogatory and properly submitted the question of causation to the jury. Accordingly, mindful of our standard of review, we must reverse the court's order granting a new trial. Huber, 58 A.3d at 776; Griffin; Criswell. On remand, the parties may praecipe for the entry of judgment on the jury verdict.
Order reversed; cross-appeal dismissed without prejudice; case remanded; jurisdiction relinquished.