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Farese v. Robinson

Superior Court of Pennsylvania

November 8, 2019


          Appeal from the Judgment Entered December 4, 2017 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): April 2015 No. 01084

          BEFORE: LAZARUS, J., KUNSELMAN, J., and COLINS, J. [*]


          COLINS, J.

         Appellants, James Robinson and Venturi Technologies, Inc. ("Venturi"), appeal from the judgment entered December 4, 2017, after a jury awarded Appellees, Louis Farese ("Mr. Farese") and Katharine Farese ("Ms. Farese"), husband and wife, compensatory damages in the underlying negligence action totaling $2, 579, 000.00. We affirm.

         The facts underlying this appeal are as follows. On August 29, 2014, Mr. Farese was involved in a motor vehicle collision in Delaware County after his 1998 Ford Mustang convertible was struck from behind by a work van owned by Venturi and operated by Robinson. The impact from the collision caused Mr. Farese's vehicle to turn over onto its convertible roof and the airbags to deploy. At the time of the collision, Robinson was employed by Venturi and was acting within the scope, course, and furtherance of his employment and with the permission and knowledge of Venturi. Mr. Farese was transported from the collision scene to the hospital where he complained of left forearm, back, and facial pain to hospital personnel. Mr. Farese was evaluated, x-rayed, and released later that day. He was diagnosed with back strain, forearm contusion, and neck strain, prescribed Motrin, and instructed to follow up with his primary care physician as soon as possible. Four days after the collision, Mr. Farese began treatment with Dr. Robert Sing, a sports medicine doctor, for neck pain, back pain, and headaches; he would later receive treatment from a spinal surgeon, a neurologist, and a pain management specialist, as well. At the time of the collision, Mr. Farese was part-owner of Nick and Lou's Pines Diner in Clifton Heights, Delaware County, which is open seven days a week.

         On April 13, 2015, Appellees commenced this action by complaint. Count I of the complaint alleged:

As a result of the aforesaid collision, which was caused by the recklessness, carelessness and negligence of [Appellants], as aforesaid, [Mr.] Farese[] suffered injuries which are serious, severe and permanent, including, but not limited to: cervical disc herniations, lumbar disc herniations, lumbar strain and sprain, thoracic strain and sprain, cervical strain and sprain, forearm contusion, left wrist strain and sprain, concussion, post- concussive syndrome, headache syndrome, aggravation, acceleration and/or activation of any pre-existing condition or conditions regarding same, as well as a severe shock to [his] emotional, psychological and nervous systems, all of which have caused, continue to cause and probably in the future will cause [him] great pain and agony.

         Complaint, 4/13/2015, at ¶ 12. In Count II of the complaint, Ms. Farese sought compensation for her husband's injuries that "deprived [her of his] assistance, comfort, society and consortium." Id. at ¶ 16.

         On November 17, 2015, the parties signed an agreement wherein Appellants stipulated to: (1) their negligence for causing the motor vehicle collision involving Mr. Farese; (2) the fact that Appellees were not comparatively negligent; and (3) Appellants' negligence being a factual cause of Mr. Farese's injuries. Stipulation, 11/17/2015, at ¶¶ 1-2. Appellants also reserved the right to challenge the nature and extent of any injuries claimed by Appellees. A jury trial would thereby be held solely on the issue of compensatory damages.

         In their proposed jury instructions, submitted on September 19, 2016, Appellants requested the following charge:

You may not include in any award to the Plaintiff any amount that you might add for the purpose of punishing Defendant or to serve as an example or warning for others. Such damages would be punitive, and are not authorized. Wildman v. Burlington Northern R. Co., 825 F.2d 1392 (9th Cir. 1987); Kozar v. Chesapeake & Ohio Ry., 449 F.2d 1238, 1240 (6th Cir. 1974); Matter of Mardoc Asbestos Case Clusters 1, 2, 5 and 6, 768 F.Supp. 595, 597 (E.D. Mich. 1991); Toscano v. Burlington Northern R. Co., 678 F.Supp. 1477, 1479 (D. Mont. 1987).

         Appellants' Proposed Jury Instructions, 9/19/2016, No. 14.

         On September 21, 2016, Appellants filed a motion in limine to preclude the testimony of two of Appellees' expert witnesses, Dr. Nirav Shah and Dr. Andrew Shaer, on the basis that their testimony would be cumulative. The trial court granted the motion as to Dr. Shah but denied it as to Dr. Shaer, because "Dr. Shaer is a radiologist and reading those films, [Appellees a]re allowed to bring him in to give a reading as to that." N.T., 9/27/2016, at 8.

         During oral argument on this motion, Appellants' counsel mentioned that they intended to call Dr. Lee Harris as an expert to refute Appellees' medical experts. Id. at 24.

         The jury trial commenced on September 27, 2016. After Appellees' counsel stated during his opening that Appellants "have a low value for human well-being[, ]" the trial court sustained Appellants' objection and instantly instructed jury: "You're to disregard that last statement." N.T., 9/27/2016, at 63-64; see also id. at 67 (trial court suggests that grounds may exist for a mistrial). Appellees' counsel then stated that Appellants "know [Mr. Farese] needs ongoing medical treatment. They don't want him to have it. They don't want to pay for it. . . . The last reason we're here is because [Appellants] refused to provide full and fair compensation. We're forced to bring them to trial." Id. at 64, 69-70. Appellants' counsel immediately moved for a mistrial, claiming that Appellees' counsel's statements improperly injected the issue of punitive damages into the case before the jury. Id. at 70 (objection), 71 (defense counsel specifically moves for mistrial), 73 (defense counsel asks trial court for a specific ruling on the motion for mistrial). The trial court denied the motion. Id. at 73. Appellees' counsel concluded: "[Appellants] know how expensive this is. They bring us to court." Id. at 74. Appellees' counsel also attacked the credibility of Dr. Harris, in anticipation of Appellants calling him to testify. Id. at 89-90.

         During trial, the jury saw filmed testimony of Dr. Michael Cohen, id. at 118, who diagnosed Mr. Farese as having post-concussion syndrome. Trial Court Opinion ("TCO"), filed September 6, 2018, at 31 (citing N.T., Cohen Testimony, 5/20/2016, at 26). Dr. Cohen "explained that if a brain injury lasts more than one year there is evidence to suggest this injury would be considered permanent." Id. (citing N.T., Cohen Testimony, 5/20/2016, at 26).

The jury also heard from neuroradiologist Dr. Andrew Shaer, who conducted a study on the MRI results of [Mr. Farese]. Dr. Shaer offered his expert opinion, consistent with that of the other doctors, that [Mr. Farese] has a disc herniation at C6-7 without bone spurs whose signal intensity is greater than that of its disc origin. Shaer Testimony 5/24/2016 at 34. These results are consistent with a finding resulting from a recent traumatic event - the motor vehicle collision that occurred on August 29, 2014.

Id. Id. at 32.

         Dr. Sing testified that a magnetic resonance image ("MRI") of Mr. Farese's cervical spine showed degenerative disk disease with acute herniations at C6-7 and lower neck disc rupture. N.T., 9/28/2016, at 48.

         The jury also watched pre-recorded testimony from Dr. Christian Fras, who "offered his expert opinion that [Mr. Farese] sustained injuries of a cervical disc herniation, aggravation of cervical and lumbar spondylosis[1] and a new finding of annular tear at L4-5 directly related to the motor vehicle collision." TCO, filed September 6, 2018, at 31 (citing N.T., Fras Testimony, 7/29/2016, at 19, 25-26). Dr. Fras "acknowledged that [Mr. Farese] is a surgical candidate and very well could require surgery to both the cervical and lumbar spine." Id. (citing N.T., Fras Testimony, 7/29/2016, at 25).

         Mr. Farese's business partner, Nick Piscitelli, testified that, before the collision, he and Mr. Farese split the duties at the diner that they co-owned, including opening the diner in the mornings, seating customers, doing inventory, meeting with food suppliers, handling personnel issues, working the cash register, and interacting with the customers. N.T., 9/30/2016, at 8, 11-12. Piscitelli testified that, after the collision, Mr. Farese had to miss work to go to specialists and physical therapy two to three times per week, causing Piscitelli to have to do the majority of the work at the diner and put in long hours. Id. at 22. Piscitelli also testified that since the collision, Mr. Farese cannot do any heavy lifting or physical activities associated with his job at the diner. Id. at 24.

         Ms. Farese testified that her husband used to "help[ her] around the house" but now becomes "easily agitated [and has] mood swings" and will often "walk away mid[-]conversation" when a headache begins; she added that her "physical relationship [with him] isn't what it used to be . . . things just aren't the same between us as they used to be." N.T., 9/30/2016, at 46-48. "During cross-examination of [Ms.] Farese, [Appellants'] counsel . . . focus[ed] his questions upon issues regarding Mr. Farese's injuries, medications, presence at medical appointments, his general health before and after the injuries, and the injuries' impact on Mr. Farese's employment." TCO, filed September 6, 2016, at 36 (citing N.T., 9/30/2016, at 50-54).[2]

         Farese himself testified that, at the time of trial, he was 50 years old. N.T., 9/30/2016, at 55.

Mr. Farese testified that before the collision, he did not see[] any specialists for medical problems, was not taking medications, and was not receiving injections. [N.T., 9/30/2016, ] at 67-68. . . . Mr. Farese specifically state[d, ] "I never had an issue ... I was in great physical health. Never any problems. The thing they mentioned about the degenerative things and whatnot. If anything was there, never experienced any sign" of those problems before. Id. at 67.
After the motor vehicle collision caused by [Appellees], Mr. Farese suffered a swollen left wrist, neck pain, back pain and head pain. [Id.] at 71. Mr. Farese describe[d] these headaches as "being extremely profound to the point where [the headache] completely disables me. I got to go lay down," and at other times as though his "skull was going to explode." Id. at 100. Regarding his headaches, Mr. Farese stated they "could last the entire night. Could last the entire day. Couple very isolated incidents, I've had them an entire day, all day into night." Id. Further, the headaches "interfere with everything. It's very debilitating. Interrupts - forgetting about putting activities aside, even sleep." Id. Mr. Farese, regarding his neck pain, experiences very stiff achy pain in his neck all day which he treats with heat and a [transcutaneous electrical nerve stimulation] unit. Id. at 102. For instance, if Mr. Farese "move[s his] head too far in one direction, it sends a shooting pain into [his] neck." Id. at 103. He also experiences similar low back pain and has difficulty sitting for long periods of time. Id. . . . The injuries forced him to undergo physical therapy approximately three times per week for seven months. Id. at 76. Despite being healthy before the collision, Mr. Farese was prescribed several prescription medications including: Fioricet, Imitrex, Cambia, Sumatriptan and Meloxicam. Id. at 75, 80. Mr. Farese testified that the Cambia powder "made [him] nauseous, like he was going to be sick from either end." Id. at 81. Even the most mild of the prescription medications had adverse side effects "which made [his] stomach mildly upset[.]" Id. Mr. Farese still takes that medication, Meloxicam, daily with food. Id.
Regarding his treatments, Mr. Farese stated that he understood from his spinal surgeon, Dr. Fras, that he may require both neck and back surgery in the future. Id. at 82. Mr. Farese testified about his lumbar facet injections, which [are] three needles each time, and has had three series thus far and another scheduled. Id. at 85. Mr. Farese testified about the trigger point injections that he received in his upper neck and head. Id. Also, Mr. Farese described the process of occipital block injections wherein a "needle [is] put into your skull, the very base of your skull, put it in there. Not pleasant either." Id.

TCO, filed September 6, 2018, at 27-29.

         Mr. Farese further testified that, prior to the collision, he was active, playing pick-up football games with his friends, working out at his home gym three times per week, running regularly, coaching his children in sports, and caring for his aging parents but that he now has difficulty even picking up bags when food shopping. N.T., 9/30/2016, at 58, 61, 63, 67, 93-94; see also TCO, filed September 6, 2018, at 29. Mr. Farese also testified that the collision has had an emotional and social impact on him, his children, and his relationship with his wife, stating that his circumstances are "embarrassing and humiliating . . . even with [his] wife. Whether it's out or home. You still feel a certain way when you can't do certain things[.]" N.T., 9/30/2016, at 74, 91-94, 98; see also TCO, filed September 6, 2018, at 29. "Mr. Farese stated that his attendance to family events or movies has been significantly reduced because '[i]t's always in the back of my head. I hope I don't get a headache ... it's definitely cut down on a lot of social activities." TCO, filed September 6, 2018, at 29 (quoting N.T., 9/30/2016, at 98).

         The defense rested without calling any witnesses, including Dr. Harris. N.T., 9/30/2016, at 111.

         Prior to closing argument, the trial court instructed the jury: "[T]hese arguments are not evidence[.]" N.T., 10/3/2016, at 55.

         In closing his closing argument, Appellees' counsel made the following remarks:

They're calling Mr. Farese a fraud. That's what they're saying he is here in court, a fraud. . . . Shame on them for doing this to him, for what they've put him through for the past years and what he has to go through for the next at least 30 years and what they've done to him in this courtroom.
Shame on those defendants for doing this to him. . . .
They brought him to court, and the part about this that really is so aggravating to Mr. Farese and his family is that this saying that they've agreed to negligence, it wasn't always like that. . . . They didn't want to agree until they were forced to about what happened here. . . . They blamed Mr. Farese for what happened. They then go and file, if an accident occurred in the manner alleged by [Appellees], then such accident occurred as a result of the negligence of the plaintiff, Mr. Louis Farese.
Are you kidding me? This is what this gentleman has been tormented for in the past years. They knew exactly what they were doing. This case was going to court from day one and he had to do everything possible to protect himself from how he was being treated.
What sort of people slams [sic] somebody in the rear, causes the car to flip up in the air, causes injury to these people and then says, let's make up an excuse, let's come up with some reason why we don't have to pay them as much money as they're entitled to. . . . They could care less about what they did to Mr. Farese, trying to make him look like he's not hurt that bad. . . . [T]his is how he gets treated by these people.
You know what? The thought always is, well, let's throw out what we can, let's say that we're responsible for the accident. Because maybe the jury will like us if we do that so we can save some money.
That's not taking responsibility for anything, ladies and gentlemen. . . . These people didn't even bother to show up to court. . . . [T]hey don't even have the courtesy to show up here.
Responsibility is paying in full for what you did . . . what these people are doing here, trying to avoid what their responsibility is.
They're hiding from it. . . . You see, [Appellants] also have no limits on how they attack someone's character. . . . [W]hat's crazy is having to spend $5, 000 to pay a doctor to come in here. . . . What's crazy is forcing us to do that, and people like Venturi with companies like that and people like Mr. Robinson, they know this. What they also know is there's a certain amount of people that can't do it. . . . You may be outraged by it. You should be. That's a lot of money to have to spend. But those are the crazy numbers.

Id. at 59, 61-66, 71. Appellants' counsel objected to these remarks but never explicitly moved for a mistrial or new trial. Id. at 71. After the trial court sustained Appellants' objection, id. at 71-72, it then immediately admonished Appellees' counsel, "You can't talk about what it cost you to bring a case to trial. . . . I don't want any other references to cost of litigation." Id. at 72-73. The trial court then told Appellants, "If you want to give me a curative instruction before we break for lunch, before I charge." Id. at 73.

         Appellees' counsel's closing argument continued:

This is about real human suffering that's going on and [Appellants] just don't want to pay for it. That's the bottom line. . . . What you don't hear about is what is called frivolous defenses. Making up things for litigation. Coming in and telling you things that aren't true.

Id. at 88, 90. Appellants' counsel objected but, again, never overtly asked for a mistrial to be declared. Id. at 90. The trial court told Appellees' counsel:

         "I will preclude you from attacking him further with frivolous. [sic] He's disputing the nature and extent of the injuries." Id. at 91. Appellees' counsel then concluded his closing argument:

How [Appellants] view human well-being is in your hands. The only tool that you have that you're giving in our judicial system is one by entering a full and fair award. That will be the determinant for these people to follow the rules.
Society is going to have to know any time they're driving in front of a Venturi Technologies truck, they're going to be okay. These people have to know they need to spend more money on making the highway safe for other motorists than come to court and trying to protect their money now.
Protecting money can never be more important than protecting the safety and well-being of a human being. . . . What they've taken away from [Mr. Farese] is his good name, a good name he's enjoyed before he got involved with any of this. To prevent the amount of money. They've put Mr. Farese's good name in jeopardy in public. . . . It's all to protect their money. They'll do anything to protect that money. Blame people and tell the jury things they shouldn't be telling him.
You see, it just didn't stop there. It wasn't just [Mr. Farese] they attacked in court here. It was his doctors too. . . .
His good name will be vindicated by you.
That's what he wants. The doctors will be vindicated by you. That's what they want.

Id. at 94, 96-98.

         During his closing argument, Appellants' counsel stated,

In my opening, I discussed Dr. Harris. It became pretty clear to me that you have all paid close attention to all witnesses here, and I think you understand what's going on here, and I again saw no need to bring in another doctor to add on what was happening here.

Id. at 112-13. Appellants' counsel never mentioned Ms. Farese once during his opening statement or closing argument.

         Prior to the final jury charge, the trial court asked Appellants: "Lastly, you want a curative instruction on something. Draft something. Run it by counsel and see what we can do with this?" Id. at 146. Appellants answered, "Yes, Your Honor, thank you." Id. Nothing on record indicates that Appellants ever provided the trial court with any such instructions.

         During the final charge, the trial court instructed the jury that Mr. Farese was entitled to be "fairly and adequately compensated for all" physical harm, mental anguish, inconvenience and past and future distress, embarrassment and humiliation, and loss of ability to enjoy life's pleasures. Id. at 160-61. The court also listed the factors to consider when awarding compensatory damages: Mr. Farese's age; the severity of his injuries; whether his injuries are temporary or permanent; the extent to which his injuries affect his ability to perform basic activities of daily living; the duration and nature of his medical treatment; the duration and extent of his physical pain and mental anguish (past and future); and his health and physical condition prior to injuries. Id. at 161-62. The trial court then provided the following instruction to the jury when considering the consortium claim:

[Mr. Farese]'s spouse is entitled to be compensated for the past, present and future loss of the injuries to her, and the past, present, and future loss of companionship of her spouse. Consortium claims are losses arising out of the marital relationship. Consortium is the marital fellowship of a husband and wife and including the company, society, cooperation, affection and aid of the other in the marital relationship. Such claims include a loss of support, comfort and assistance. The loss of association and companionship and the loss of ability to engage in sexual relations.

Id. at 162. The trial court's final charge to the jury was: "You should keep your deliberations free of any bias or prejudice." Id. at 169. There is no indication in the record that the court issued that Appellants' proposed instruction No. 14.

         On October 3, 2016, the jury found Appellees were entitled to $2, 579, 000.00 in compensatory damages -- $1, 248, 000.00 for non-economic damages; $900, 000.00 for future medical bills; $15, 000.00 for past medical bills; and $416, 000.00 for loss of consortium to Ms. Farese. Appellants filed timely post-trial motions seeking a new trial or, in the alternative, remittitur of the jury's verdict. The trial court denied the motions on November 29, 2017. Judgment on the verdict was entered on December 4, 2017. Appellants filed this timely direct appeal on December 28, 2017.[3]

         Appellant presents the following issues for our review:

1. Did the trial court err and abuse its discretion in failing to grant a new trial on damages, where [Appellees'] counsel repeatedly made improper, inflammatory, offensive and highly prejudicial comments and arguments?
2. Did the trial court err and abuse its discretion in failing to grant a new trial on damages after the trial court, over [Appellants'] objection, allowed four (4) different physician experts to give cumulative and repetitive opinion testimony regarding their readings of the same MRI, to the unfair prejudice of [Appellants]?
3. Did the trial court err and abuse its discretion in failing to grant a new trial on damages to the admission of improper evidence regarding the amounts of future medical bills, which evidence violated the Pennsylvania Motor Vehicle Financial Responsibility Law?
4. Did the trial court err and abuse its discretion in failing to grant a new trial on damages [where] the verdict was [shockingly excessive and could only have been the result of passion, prejudice or other impermissible factors]?[4]

         Appellants' Brief at 4, 55 (suggested answers omitted).

         Appellees' Counsel's Opening ...

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