from the Judgment Entered, January 24, 2019, in the Court of
Common Pleas of Allegheny County, Civil Division at No(s): GD
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MUSMANNO, J.
Andrea Avery, appeals from the judgment entered in this
car-accident case, after a jury awarded her $18, 500 for lost
wages and pain and suffering. We vacate that judgment,
reinstate the original verdict of $8, 500 for lost wages
against Defendant Harry Spadafora, and remand for the filing
of new post-trial motions on a weight-of-the-evidence claim
regarding the pain and suffering award, because the trial
court must resolve this question in the first
February 1, 2012, Mr. Cercone let Mr. Spadafora borrow his
pick-up truck to run some errands. Mr. Spadafora unwittingly
merged Mr. Cercone's truck into a funeral procession on
an interstate highway.
recognizing that the procession was driving below the speed
limit, Mr. Spadafora rear-ended Ms. Avery and propelled her
car into the vehicle in front of her. Mr. Spadafora admitted
his fault at the scene and has stood by that admission ever
since. Ms. Avery sued Mr. Spadafora for negligence; she sued
Mr. Cercone for negligent entrustment, on the grounds that
the pick-up truck's brakes were faulty when he loaned it
to Mr. Spadafora.
jury found only Mr. Spadafora negligent. It initially
returned a verdict against him of $8, 500 for lost wages and
$0 for pain and suffering. However, both parties had
contended at trial that Ms. Avery deserved some compensation
for pain and suffering; they disputed the dollar figure on
counsel asked the trial court to send the jury back to
reconsider its pain-and-suffering award. Ms. Avery's
attorney responded that returning the jury to the
deliberation room was improper. The trial court agreed with
defense counsel and directed the jury to resume deliberations
and to award something for pain and suffering. The jury
returned a second verdict adding $10, 000 for pain and
suffering. Thus, the new verdict totaled $18, 500.
Avery filed post-trial motions, which the trial court denied.
This timely appeal followed. She raises four issues on
appeal, which we have rephrased and reordered for simplicity
1. Did the trial court err by returning the jury to
deliberations with instructions to award some amount of
compensation for pain and suffering?
2. Did the trial court err by refusing to strike the
unverified Answer filed by Mr. Spadafora and Mr. Cercone and
to enter a directed verdict against them?
3. Did the trial court err by failing to conduct a
Frye hearing before it concluded that Ms.
Avery's expert neurologist's use of DTI (Diffuse
Tensor Imaging) to confirm his diagnosis of a brain injury
4. Did the trial court err by excluding evidence of the
business relationship between the defense's expert and a
referral service to show potential bias of the defense expert
with regard to his opinion on damages?
See Ms. Avery's Brief at 19, 33, 46, 64. A.
The Verdict on Pain and Suffering
first appellate issue, Ms. Avery challenges the rejection of
the original $0 verdict for pain and suffering and the trial
court's instruction that the jurors resume deliberations.
She argues the trial judge confused an inconsistent or
illogical verdict with a verdict that is against the weight
of the evidence. In her view, it was "reversible error
for [the] trial judge to intervene to correct a verdict which
was against the weight of the evidence by instructing the
jury to reconsider its prior findings." Id. at
14. Instead, Ms. Avery believes the "only remedy
available to the court when a jury returns a verdict which is
against the weight of the evidence is to grant a new
Spadafora argues that the trial judge correctly returned the
jury to deliberate further. He claims:
Based on undisputed medical evidence, [Ms. Avery] suffered a
mild, traumatic, brain injury (a concussion) in the subject
accident, which is normally associated with some degree of
pain and suffering (headaches and dizziness, etc.).
Therefore, it was arguably inconsistent, as a matter of law,
for the jury to have awarded past wage loss, but no amount
for pain and suffering.
Mr. Spadafora's Brief at 10.
reviewing a trial court's denial of post-trial motions,
we follow a two-step process.
[First, we] review the [trial] court's alleged mistake
and determine whether the court erred, and, if so, [we then
ask] whether the error resulted in prejudice necessitating a
new trial. If the alleged mistake concerned an error of law,
we will scrutinize for legal error. Once we determine whether
an error occurred, we must then determine whether the trial
court abused its discretion in ruling on the request for a
ACE Am. Ins. Co. v. Underwriters at Lloyds and Co.,
939 A.2d 935, 939 (Pa. Super. 2007) (citations omitted),
affirmed, 971 A.2d 1121 (Pa. 2009).
the trial court agreed with defense counsel's
identification of the $0 award for pain and suffering as an
inconsistent verdict and rejected the plaintiff's view
that this was a weight of the evidence issue. Whether a court
has correctly identified the legal issue before it is itself
a legal issue. The "identification and application of
the proper legal principles . . . are questions of law . . .
." Commonwealth v. Reaves, 923 A.2d 1119, 1124
(Pa. 2007). As with all questions of law, "our standard
of review is de novo. This means we need not defer
to the determinations made by the lower tribunal."
Casselbury v. American Food Serv., 30 A.3d 510, 512
(Pa. Super. 2011).
this issue in perspective, we must differentiate between an
inconsistent verdict and a verdict that is against the weight
of the evidence. An inconsistent, irrational, or problematic
verdict is a verdict that does not clearly report the
jury's factual findings on its face. The inconsistency or
problem of such a verdict appears within the four corners of
the verdict slip. When this occurs, a trial court should - if
a party objects before the jury is dismissed - return that
jury to the deliberation room and instruct it to clarify (not
reconsider) the verdict. By contrast, a verdict that is
against the weight of the evidence is a verdict that shocks
the conscience of the trial court in light ...