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Chin v. New Flyer of America, Inc.

Commonwealth Court of Pennsylvania

August 24, 2017

Steven Chin
New Flyer of America, Inc. and Southeastern Pennsylvania Transportation Authority Appeal of: New Flyer of America, Inc.

          Argued: May 1, 2017




         New Flyer of America, Inc. (New Flyer) appeals from a May 12, 2016 Order of the Court of Common Pleas of Philadelphia County (trial court), entering judgment in favor of Plaintiff Steven Chin (Chin) following a six-day jury trial for personal injuries Chin suffered when he was struck by a bus owned and operated by Southeastern Pennsylvania Transportation Authority (SEPTA) while crossing a crosswalk.[1] New Flyer manufactured the bus, which Chin alleged was negligently and defectively designed. The jury found in favor of New Flyer on the product liability/defective design claim but against it on the negligence count. It returned an award of $5 million in non-economic damages and apportioned liability as 25 percent for New Flyer and 75 percent for SEPTA. Following trial, New Flyer filed a Motion for Post-Trial Relief (Post-Trial Motion), seeking judgment notwithstanding the verdict (judgment n.o.v.), a new trial on the merits and/or on damages, or remittitur. Following briefing and argument, the trial court issued its May 12, 2016 Order, denying the Post-Trial Motion and entering judgment on the jury award, along with delay damages. This appeal followed.

         On appeal, New Flyer raises several issues, which we have reordered to address those that are potentially dispositive first: (1) whether the verdict is irreconcilably inconsistent when the jury found there was no product defect but still found New Flyer negligent; (2) whether the jury's verdict is against the weight of the evidence or not supported by sufficient evidence; (3) whether the trial court erred in refusing to charge the jury on the sophisticated user and sophisticated purchaser doctrines; and (4) whether the trial court erred in refusing to grant a new trial as to damages or remittitur based upon an excessive award. We address those issues seriatim, but first, to understand the issues in this case, we must review the facts that give rise to this accident.

         I. Factual Background

         On September 5, 2012, Chin was walking west along Arch Street, near the intersection with Sixth Street in Philadelphia, on his way to work. At the same time, a bus operated by SEPTA was also traveling west on Arch Street and stopped at a traffic light at the same intersection. After the signal changed, the bus proceeded to make a left turn onto Sixth Street, where it struck Chin, who was approximately halfway across the crosswalk at the time.

          Chin, who was 25 years old at the time of the accident, suffered a degloving injury, which occurs when the skin and soft tissue are torn from the bone, to his right foot and ankle. He was initially denied pain medication because it would interfere with efforts to determine the extent of his nerve damage in his right foot and ankle. Because of the soft tissue injury, doctors could not use internal screws or pins to stabilize the multiple fractures in the foot and ankle; instead, they were stabilized using an external fixator system, which is screwed through the skin and into the bone. Chin testified that he was hospitalized for approximately one month before he was released home, where he was bedridden because of the external fixator, which was not removed until January 2013. After several months of physical therapy, Chin is able to walk, but his right ankle is stuck in a downward pointed position with very limited motion, affecting his gait. His doctors testified that the injury is permanent, and his abnormal gait is impacting his knee, hip, and back; they have not ruled out the need for future surgery. Since his injury, Chin has not been able to return to running, a sport he once enjoyed.

         At trial, the driver of the bus testified that he saw three other individuals waiting at the corner but did not see Chin because the driver's side mirror, also known as the roadside mirror, obstructed his view during left-hand turns. New Flyer designed and manufactured the buses. SEPTA provided technical specifications, which were developed by its engineering group. The technical specifications called for use of an 8" x 15" Rosco brand mirror on the driver's side but did not specify the height to mount it, stating only that it should be positioned "to minimize blind spots for the operator in front of mirrors." (R.R. at 132a, 456a-57a.) On the other hand, the specifications were specific as to the height of a curbside mirror, which is located on the right side of the bus. When New Flyer was unable to build the buses to meet the specification for the curbside mirror, it contacted SEPTA and sought a change to the height specifications. At no time did New Flyer request a change related to the driver's side mirror or advise SEPTA that the Rosco mirror should not be used.

         A design engineer at New Flyer testified that the driver's side mirror on SEPTA buses is mounted at 46 inches high whereas driver's side mirrors on buses for other transportation authorities are typically mounted between 40 to 41 inches high. In a subsequent build cycle, New Flyer lowered the mount of the driver's side mirror by five to six inches on the SEPTA buses. When SEPTA contacted New Flyer about the change, New Flyer retrofitted the buses with a new arm, which raised the height of the mount back to 46 inches. The design engineer was not aware of any other customer using a 46-inch mount, which is the highest mount he was aware of, but the mirror does not violate any laws or regulations. He explained that the mirror causes an 8-inch obstruction, and the A-post, which is the post at the end of the windshield, causes another 4-inch obstruction. No matter what height the mirror is mounted, New Flyer representatives said an obstruction would result because visual obstructions are inherent in mirrors.

         After an increase in pedestrian accidents where drivers raised concerns about sight lines related to the mirrors, SEPTA conducted various line of vision checks. Two were internally conducted in 2004 and 2012, respectively, both of which acknowledged a temporary obstruction but nonetheless determined the allegation of an engineering flaw in the New Flyer bus was unfounded. SEPTA also contracted with a third party, STV, to evaluate the driver's side mirror in 2013. The STV report states that the mirrors are located higher than the normal mount and that the Rosco mirror is taller than most bus mirrors. The STV report states that reducing the height of the top of the mirror by 4 inches would provide an additional 17 feet of visibility. STV recommended that SEPTA consider, inter alia, lowering or reducing the size of the driver's side mirror in the future. In 2015, SEPTA voluntarily retrofitted its entire fleet with a smaller mirror at its own cost.

         To help combat the visual obstruction caused by the driver's side mirrors, SEPTA developed a pedestrian awareness program to train drivers to utilize multiple techniques to mitigate it. These techniques include: waiting four seconds after a signal changes before beginning a turn as the delay would allow any pedestrians to clear the obstruction; squaring off turns, meaning drivers pull straight ahead into the intersection prior to commencing the turn, such that any pedestrians would be visible through the side window; and "rocking and rolling, " a technique whereby the driver would rock back and forth and from side to side in their seat to see around the mirror. The driver here, a 28-year veteran of SEPTA, testified he did use these techniques.

         Over the years, the union representing SEPTA drivers raised the issue of visual obstructions because of the mirrors in defending drivers involved in left-hand turn accidents.[2] Following two fatal pedestrian accidents in 2006, SEPTA contacted a representative at New Flyer, requesting that he provide testimony at arbitration hearings for the drivers involved in those accidents. The representative was advised by in-house counsel and outside counsel for New Flyer to not provide testimony regarding the mirrors because they were concerned about potential exposure to litigation.

          II. Inconsistent Verdict

         New Flyer first argues that the jury's finding that it was negligent is inconsistent with its finding that there was no product defect. In its Rule 1925(a) Opinion, [3] the trial court stated the issue was waived because, inter alia, New Flyer did not object to the verdict slip or object at the time the verdict was rendered.[4](Trial Ct. Op. at 13.) New Flyer responds that it was not required to object to the verdict slip because it did not compel an inconsistent verdict and that objection at the time the verdict was rendered would not have eliminated the need for a new trial because the jury could not cure the defect without the trial court essentially instructing the jury to change its verdict, which is not permitted. New Flyer argues there was nothing further the trial court could do, as it had already re-instructed the jury on the definition of product defects after the jury asked for clarification, and the jury was polled, which confirmed the verdict was what the jury intended.

         Under Rule 227.1(b)(1) of the Pennsylvania Rules of Civil Procedure, generally, to be entitled to post-trial relief, a party must make a timely objection at the time of trial. See Pa. R.C.P. No. 227.1(b)(1) ("[P]ost-trial relief may not be granted unless the grounds therefor . . . were raised . . . by objection . . . or other appropriate method at trial."). Our Supreme Court first explained the rationale behind requiring contemporaneous objections in Dilliplaine v. Lehigh Valley Trust Company:

This opportunity to correct alleged errors at trial advances the orderly and efficient use of our judicial resources. First, appellate courts will not be required to expend time and energy reviewing points on which no trial ruling has been made. Second, the trial court may promptly correct the asserted error. With the issue properly presented, the trial court is more likely to reach a satisfactory result, thus obviating the need for appellate review on this issue. Or if a new trial is necessary, it may be granted by the trial court without subjecting both the litigants and the courts to the expense and delay inherent in appellate review. Third, appellate courts will be free to more expeditiously dispose of the issues properly preserved for appeal. Finally, the exception requirement will remove the advantage formerly enjoyed by the unprepared trial lawyer who looked to the appellate court to compensate for his trial omissions.

322 A.2d 114, 116-17 (Pa. 1974) (footnotes omitted).

         Since that time, our Supreme Court has specifically addressed when a contemporaneous objection to a jury verdict is required. In City of Philadelphia v. Gray, 633 A.2d 1090 (Pa. 1993), despite finding a SEPTA driver was negligent but not a substantial factor in plaintiff's injuries, a jury still apportioned 25 percent causal negligence to SEPTA. On appeal, the Supreme Court found that an objection was not required to the interrogatories themselves because "the questions posed to the jury did not call for inconsistent answers"; instead, an objection "would only arise when inconsistent answers were given." Id. at 1095. The failure to object to the inconsistency at the time the verdict was rendered, however, resulted in the issue being waived. Id.

         Ten years later, the Supreme Court addressed whether a contemporaneous objection must be lodged when challenging the weight of the evidence. In those circumstances, the Court found an objection did not need to be raised prior to the jury's discharge. Criswell v. King, 834 A.2d 505, 511-12 (Pa. 2003). "Rather, it is a claim which, by definition, ripens only after the verdict, and is properly preserved so long as it is raised in timely post-verdict motions." Id. at 512. The Court in Criswell specifically reaffirmed the holding in Gray that a party seeking relief on the grounds of an inconsistent verdict must lodge a timely, contemporaneous objection at the time the verdict is rendered, whereas a party challenging the verdict on evidentiary weight does not. Id. at 513.

         The Pennsylvania Supreme Court addressed this issue most recently in Straub v. Cherne Industries, 880 A.2d 561 (Pa. 2005), a case that is factually similar to the instant action and the case primarily relied upon by the trial court and Chin. In Straub, the plaintiff brought a claim against a manufacturer alleging both negligence and strict liability for an allegedly defective product.[5] At the end of trial, the parties and the trial court held a charging conference where they discussed proposed jury instructions and a verdict slip. The trial court stated that its intent was to make clear that the jury could find the defendant liable for strict liability, negligence, or both because negligence and strict liability are distinct and independent of one another. Three verdict slips were presented to the jury - one related to the strict liability claim, one related to the negligence claim, and one related to damages. During its charge, the trial court expressly stated that the two claims were separate and distinct. Before the matter was submitted to the jury, no party objected to either the charge or verdict slip.

         The jury subsequently found the product was not defective but found the defendant was negligent. The defendant did not object before the jury was discharged but subsequently filed post-trial motions, challenging the verdict as inconsistent. After the Superior Court did not find the issue waived, plaintiff appealed to the Supreme Court. Citing to Rule 227.1, the Supreme Court concluded that the defendant was required to object to the verdict slips and the accompanying instructions so that the trial court had the opportunity to correct the issue. Straub, 880 A.2d at 567. According to the Court, defendant's argument was that, "once the jury found that the [product] was not defective, there was nothing left for the jury to do, inasmuch as all [injured person's] evidence in negligence related to the design of and warnings on the product . . . ." Id. Because no objections were voiced, the Court concluded the issue was not preserved and was therefore waived.[6] Id. at 567-68.

         Our Court and the Superior Court have applied the Supreme Court's precedent on a number of occasions. See, e.g., Cipolone v. Port Auth. Transit Sys. of Allegheny Cnty., 667 A.2d 474, 476 (Pa. Cmwlth. 1995) (challenge to weight of the evidence does not require contemporaneous objection as an inconsistent verdict does); Shelhamer v. Crane, Inc., 58 A.3d 767, 771-72 (Pa. Super. 2012) (failure to object to jury verdict that product was factual cause of injury despite a finding that product was not defective or that plaintiff was not exposed to product required an objection prior to jury's discharge to preserve issue); King v. Pulaski, 710 A.2d 1200, 1204-05 (Pa. Super. 1998) (no contemporaneous objection required because challenge was to weight of the evidence); Fillmore v. Hill, 665 A.2d 514, 517-19 (Pa. Super. 1995) (argument that award of zero damages went to weight of the evidence and did not require a contemporaneous objection before the jury is discharged).

         Similar to Straub, here, New Flyer focuses on the jury's finding "that the bus was not defective in either its design or the adequacy of New Flyer's warnings, but . . . the jury found that New Flyer was negligent in its design and/or failure to provide adequate warnings." (New Flyer's Br. at 39 (emphasis added).) It argues that because there was no finding of a product defect, there cannot be a finding of negligence, either. It claims it was not required to object at the time the verdict was rendered, pointing out that the trial court had already re-instructed the jury on the topic of product defects and also polled the jury, which confirmed that the jury intended the inconsistent result it reached. As a result, it contends that objecting once the verdict was read would have been futile because there was nothing the trial court could do to cure the error, short of directing the jury to change its verdict.

         However, as outlined above, our Supreme Court precedent makes clear that a party must contemporaneously object at the time a verdict is rendered, and before the jury is discharged, if it believes the verdict is inconsistent. New Flyer cites Fillmore for the proposition that a trial court cannot inject itself into deliberations and suggest a substantive change in the jury's findings, but Fillmore involved a challenge to the weight of the evidence, not to an inconsistent verdict, as we have here. It is noteworthy that following the Superior Court's decision in Fillmore, our Supreme Court in Criswell, explained the rationale behind the different treatment of inconsistent verdicts versus verdicts that are against the weight of the evidence:

It is one thing to tell the jury to resume deliberations because its verdict is inconsistent, but it is quite another to direct it to resume deliberations because, in the court[']s view, the verdict rendered so far departs from the evidence as to shock the judicial conscience. . . . [A]n order to resume deliberations based on a weight of the evidence instruction would intrude upon the province of the jury.

834 A.2d at 513 (emphasis added).[7]

         Applying the above legal principles to this case, we agree with the trial court that New Flyer's failure to object following the announcement of the verdict but before the jury was discharged resulted in its argument that the verdict was inconsistent being waived. Because we find this issue waived, like the Supreme Court in Straub, we need not reach New Flyer's argument that a finding of no defect necessarily requires a finding that there was no negligence.

         III. Weight and Sufficiency of the Evidence[8]

         We next turn to New Flyer's argument that there was insufficient evidence to support the jury's verdict and that the verdict was against the weight of the evidence.[9] It lists over two pages of evidence that, in its opinion, demonstrates New Flyer was not negligent. (See New Flyer's Br. at 26-28.) However, before reaching whether the verdict was not supported by sufficient evidence or was against the weight of ...

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