Avery v. Cercone

Citation225 A.3d 873
Decision Date23 December 2019
Docket NumberNo. 174 WDA 2019,174 WDA 2019
Parties Andrea AVERY, Appellant v. Brandon CERCONE and Harry Spadafora
CourtSuperior Court of Pennsylvania

Kenneth R. Behrend, Pittsburgh, for appellant.

Edward A. Schenck, Pittsburgh, for Spadafora, appellee.

Holly M. Whalen, Pittsburgh, for Cercone, appellee.



Plaintiff, 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 instance.1

On 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.

Not 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.

The 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 that question.

Defense 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.

Ms. 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 of disposition:

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

was inadmissible?

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

In her 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 trial." Id.

Mr. 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 10.2

When 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 new trial.

ACE Am. Ins. Co. v. Underwriters at Lloyds and Co. , 939 A.2d 935, 939 (Pa. Super. 2007) (citations omitted), affirmed , 601 Pa. 95, 971 A.2d 1121 (2009).

Here, 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 , 592 Pa. 134, 923 A.2d 1119, 1124 (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).

To put 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 of the evidence presented. When this occurs, the trial court should — if a party timely raises the issue in post-trial motions — order a new trial. We provide an example of each scenario.

An inconsistent verdict occurred in Picca v. Kriner , 435 Pa.Super. 297, 645 A.2d 868 (1994). There, a jury found a defendant-driver negligent, but it also found that his conduct was not a substantial factor in causing all of the plaintiff's harm, as the verdict slip read. On appeal, we determined that, because the plaintiff had preexisting injuries, the adjective "all" in the interrogatory on proximate cause was overly broad. When the jurors answered "No," we could not determine whether they had found the defendant (a) did not cause the plaintiff's prior injuries but had caused the new ones; (b) had not caused any of the injuries (new or old); or (c) had caused some of the plaintiff's new injuries.

This lack of clarity on the face of verdict slip, arising from a poorly worded interrogatory, produced an "inconsistent, irrational, incredible, or ... problematic verdict ...." Picca, at 302, 645 A.2d 868. In such scenarios, the trial court may, upon timely objection, return the jury to deliberations for clarification of its factual findings. "This rule does not require [a court] to invade the jury's sacred deliberation process or find out why the jury did what it did; the court need only explain that the verdict returned makes no sense ...." Id. at 303, 645 A.2d 868.

By comparison, a verdict that was against the weight of the evidence occurred in Burnhauser v. Bumberger , 745 A.2d 1256 (Pa. Super. 2000). There, the plaintiff and defendant were in a motor vehicle accident, which the defendant clearly caused, so the case was tried on damages alone. The parties' experts agreed the plaintiff had suffered injuries, but they disputed the nature and severity of those injuries. The jury found the defendant was negligent and that he proximately caused the plaintiff's harm. However, the jury only compensated the plaintiff for her medical expenses and awarded nothing for pain and suffering. In post-trial motions, the plaintiff requested a new trial on the grounds that the $0 award for pain and suffering was against the weight of the evidence. The trial court agreed and ordered a new trial. Id. at 1258.

On appeal, the defendant argued that the $0 award was not a weight-of-the-evidence issue, but rather an inconsistent-verdict issue requiring the plaintiff to object before the judge dismissed the jury. We explicitly rejected this characterization of the legal issue and explained:

The trial court recognized that the jury's award equaled [the exact amount of the plaintiff's] unreimbursed medical expenses and stated "the jury obviously awarded only reimbursement for the medical bills." Trial Court Opinion, 3/1/99, at 4. Therefore, because there was no ambiguity or evidence of misunderstanding, the trial court concluded that the waiver rule [in Picca , supra ] was not applicable ... we agree. Objecting to the jury's verdict would not have eliminated the possibility of a new trial. A trial judge is not at liberty to suggest to the jury that the weight of the evidence did not support its damage award. Therefore, the trial court could not have given the jury any corrective instruction and returned them to deliberations.

Id. at 1260 (some citations omitted) (emphasis added).

In citing Burnhauser with approval, the Supreme Court...

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