Henery v. Shadle

Decision Date11 July 1995
Citation661 A.2d 439,443 Pa.Super. 331
PartiesCharles E. HENERY and H. Elizabeth Henery, Appellants, v. Dale K. SHADLE, Appellee.
CourtPennsylvania Superior Court

Richard E. Freeburn, Harrisburg, for appellants.

Karen Durkin, Hershey, for appellee.

Before CAVANAUGH, McEWEN, and DEL SOLE, JJ.

McEWEN, Judge:

This appeal has been taken from the judgment entered on a jury verdict in favor of appellee in this action for damages for personal injuries allegedly arising from a motor vehicle accident. Appellants, Charles Henery and Elizabeth Henery, contend that they are entitled to a new trial by reason of the jury's failure to award any damages for the injuries sustained by Charles Henery when a vehicle operated by Dale Shadle collided with the vehicle driven by appellant, Charles Henery. We are not persuaded that reversible error occurred and, therefore, affirm.

Appellants have presented the following three arguments in support of their request for a new trial:

The jury's verdict of zero damages was against the weight of the evidence.

The trial court erred by prohibiting appellants' trial counsel from cross-examining appellee's medical witness as to his fees for testifying at trial.

The trial court erred in granting appellee's motion in limine for an order prohibiting appellants from making any reference to the subject of appellants' insurance.

We are guided in our review by the following principles set forth in Cree v. Horn, 372 Pa.Super. 296, 539 A.2d 446 (1988), allo. denied, 519 Pa. 660, 546 A.2d 621 (1988):

Our Supreme Court has held that a new trial should be granted only where the verdict is so contrary to the evidence as to shock one's sense of justice.... A new trial should not be granted where the evidence is conflicting and the jury might have found for either party, nor where the trial judge would have reached a different conclusion on the same facts.

Hawthorne v. Dravo Corp., 352 Pa.Super. 359, 365, 508 A.2d 298, 301 (1986), allo. denied, 514 Pa. 617, 521 A.2d 932 (1987), quoting, Myers v. Gold, 277 Pa.Super. 66, 69, 419 A.2d 663, 664 (1980) (other citations omitted).

Cree v. Horn, supra at 299, 539 A.2d at 448.

Appellee presents the threshold issue, namely, whether appellants, under Picca v. Kriner, 435 Pa.Super. 297, 645 A.2d 868 (1994), allo. denied, 539 Pa. 653, 651 A.2d 540 (1994), waived their right to object to the verdict of the jury because they failed to object prior to the dismissal of the jury. We are of the mind that Picca is not applicable to the instant case since, in Picca, the jury was given specific interrogatories containing overly broad language about which Picca could have made an objection before they went to the jury. Further, since the Picca verdict revealed that the jury there misinterpreted an interrogatory, counsel should have attempted to have any confusion resolved by further deliberation. In the present case, however, there were no specific interrogatories for the jury to answer in rendering its verdict, 1 and the trial court gave a clear, concise jury charge outlining the applicable law of the case. Moreover, the jury was polled and each juror, when asked the amount of the award to appellant, replied, "zero". It would, therefore, have been specious for appellants to have pointed out any inconsistency, irrationality, or problem with the verdict. Picca v. Kriner, supra at 302, 645 A.2d at 871. Thus, it seems that application of the Picca waiver rule is more prudently restricted to verdicts of obvious inconsistency and clear, certain irrationality. In any event, we reject the claim of waiver presented by appellee.

Appellants initially argue that the concession, during cross-examination of the expert medical witness presented by appellee, that appellant Charles Henery may very well have suffered some soft tissue injury, necessitates the award of at least nominal damages to appellant. We disagree. This Court, in Holland v. Zelnick, 329 Pa.Super. 469, 478 A.2d 885 (1984), rejected a similar claim, noting that:

The issues as to whether [appellant] was really suffering any pain and whether any such pain was caused by [appellee's] conduct were for the jury. The jury was not required to award [appellant] any amount as it obviously believed that any injury [appellant] suffered in the accident was insignificant.

Holland v. Zelnick, supra at 475, 478 A.2d at 888. Accord: Gigliotti v. Machuca, 409 Pa.Super. 50, 58, 597 A.2d 655, 659 (1991).

Evidence is not proof until it is believed and accepted by a trier of fact. Persons may indeed suffer pain that they attribute to a cause, but at law the cause they assert must be accepted as the cause of their pain. Their belief, however well founded in their minds, is not the cause until it finds acceptance in the minds of the fact triers.

Boggavarapu v. Ponist, 518 Pa. 162, 168, 542 A.2d 516, 519 (1988). Appellant Charles Henery testified that he suffered pain in his neck and back as a result of the accident. This testimony was supported by that of his family physician, Francis X. Brescia, D.O., who testified that he believed that the neck and back pain experienced by appellant was caused by the back injuries sustained in the motor vehicle accident, and it was for that difficulty that appellant had visited him, two or three times a week for 27 months, to receive physical therapy, ultrasound, and manipulation treatments. The board-certified orthopedic surgeon presented by appellee, Richard J. Boal, M.D., however, testified that appellant suffered from degenerative disc disease which existed prior to the accident and which had not been affected by the accident. Thus, there was a sure and certain evidentiary basis for the determination of the jury that the negligence of appellee was not a substantial factor in the injuries suffered by appellant. As a result, we may not disturb the verdict.

Appellants next contend that the trial court erred when it excluded the videotape deposition testimony of appellee's expert medical witness as to the fees he received and prohibited any testimony on the subject of appellant's insurance. Specifically, the trial court sustained defense objections to the following questions asked of the expert medical witness of appellee:

Q. Doctor, how much do you receive from the defendant with regard to your participation in this litigation?

COUNSEL: Objection, not relevant.

A. I believe we charge $750 for this deposition.

Q. Prior to that?

A. I believe we charge similar amount to do this review.

It is well established that a party is entitled to impeach an expert witness by demonstrating partiality to the party for whom the expert is testifying. Grutski v. Kline, 352 Pa. 401, 405, 43 A.2d 142, 144 (1945); Smith v. Celotex Corp., 387 Pa.Super. 340, 348, 564 A.2d 209, 213 (1989). Thus, the trial court erred when it precluded the statement of the expert that he was paid $750.00 for the deposition appearance. Appellants, however, are not entitled to any relief as they suffered no prejudice from the ruling which sustained appellee's objection. Counsel for appellants, during cross-examination, elicited the following testimony from the expert concerning his relationship with appellee:

Q. Okay. Doctor, I assume that when you treat a patient it's the patient who is paying your charges, is that correct?

A. No, not always.

* * * * * *

Q. I assume, doctor, that there is a doctor-patient relationship that exists between yourself and that patient that you are treating, correct?

A. That's correct.

Q. Charles Henery was not and never has been a patient of yours, isn't that correct?

A. That's right.

Q. He didn't contact you to treat his injured back, correct?

A. Correct.

Q. Instead, the defendant in this lawsuit contacted you solely as a result of this lawsuit to see Mr. Henery, isn't that right?

A. That's correct.

Q. Mr. Henery didn't pay you to exam his back, is that correct?

A. No, that's correct.

Q. The defendant paid you to see Mr. Henery and examine his back, correct?

A. Correct.

Q. And even though you are a doctor, there is no doctor-patient relationship between you and Mr. Henery, correct?

A. Correct.

Q. The only professional relationship you have to this matter is the relationship that you have with the defendant, isn't that fair to say.

A. I don't know the defendant, the only--my only obligation is to say what I believe.

Moreover, upon redirect examination, the expert medical witness testified:

No. 2, when I do an independent medical exam, you may be paying a large fee to me, but you are not paying for my opinion.

If I--if I see that someone has clearly had something occur, as I was trying to point out earlier, that has caused permanent damage, you are not going to get me to say something else except that that is the case.

Since it became abundantly clear from the entire interrogation of the medical witness that his role was neither to treat nor to serve the interest of the plaintiff, but, quite to the contrary, that he was retained to assist in the defense of the case, we are unwilling to conclude that appellant suffered such prejudice that a new trial must be held.

Appellants further argue that they are entitled to a new trial because the trial court refused to permit testimony that appellant husband did not continue in the care of his physician because of a dispute with his first party benefits carrier. Appellee had filed a written motion in limine which asserted (1) that appellant's own carrier had paid Francis X. Brescia, D.O., for 150 visits to receive physical therapy, ultrasound and manipulation treatments during the 27 months which followed the accident, (2) that the carrier had refused to make further payment because it deemed the treatments unnecessary, and (3) that appellant intended to testify that he "discontinued his care with Dr. Brescia" because the carrier refused to pay for further visits. Appellants did not file an answer to the motion, and the...

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