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.
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.
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
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.
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.
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.
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).
Proposed Jury Instructions, 9/19/2016, No. 14.
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.
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.
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.
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.
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.
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 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).
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.
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).
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.
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
defense rested without calling any witnesses, including Dr.
Harris. N.T., 9/30/2016, at 111.
to closing argument, the trial court instructed the jury:
"[T]hese arguments are not evidence[.]" N.T.,
10/3/2016, at 55.
closing his closing argument, Appellees' counsel made the
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
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
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.
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
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'
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
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.
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
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.
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.
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.
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
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
Brief at 4, 55 (suggested answers omitted).
Counsel's Opening ...