Farese v. Robinson, 145 EDA 2018

CourtSuperior Court of Pennsylvania
Citation222 A.3d 1173
Docket NumberNo. 145 EDA 2018,145 EDA 2018
Parties Louis FARESE and Katharine Farese v. James ROBINSON and Venturi Technologies, Inc., Appellants
Decision Date08 November 2019

Teresa F. Sachs, Philadelphia, for appellants.

Donna A. Casasanto, Springfield, for appellees.

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

OPINION BY 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. [1971] 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...
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