King v. Pulaski

• Decision Date: 30 March 1998
• Citation: 710 A.2d 1200
• Parties: Marcia L. KING and Charles G. Simpson v. Lisa PULASKI, Appellee. Appeal of Marcia L. KING.
• Court: Pennsylvania Superior Court

Page 1200

710 A.2d 1200

Marcia L. KING and Charles G. Simpson v. Lisa PULASKI, Appellee.

Appeal of Marcia L. KING.

Superior Court of Pennsylvania.

Argued Jan. 28, 1998.

Filed March 30, 1998.

Mark J. Shire, Monessen, for appellant.

Kenneth Ficerai, Greensburg, for Pulaski.

Before DEL SOLE, HUDOCK, and JOAN ORIE MELVIN, JJ.

HUDOCK, Judge:

On October 31, 1992, Marcia L. King and Charles G. Simpson were involved in a two-vehicle accident with Lisa Pulaski. The collision occurred when King, who was driving, and Simpson were lawfully stopped at an intersection, waiting to make a left turn into a gasoline station. At that time, Pulaski drove her vehicle into the rear end of King and Simpson's car, thereby forcing King and Simpson's car into oncoming traffic.

After being extricated from her car approximately thirty minutes after the accident, King was treated at Mon Valley Hospital and released later that evening. From November of 1992 until September of 1994, due to muscular pain caused by the accident, King received chiropractic treatment from Dr. Philip Caffari. In September of 1994, King discontinued treatment with Dr. Caffari because she was dissatisfied with her recovery progress. She then consulted with another chiropractor, Dr. Jack Taylor, and continued her treatment with him until July of 1995.

At the time of the accident, King was employed on a full-time basis as a salad bar attendant at a Hoss's Steak and Sea House restaurant. King's fringe benefits at Hoss's included medical coverage and a profit sharing plan. Additionally, King maintained part-time employment as a dietary aid at South Hills Health System--Jefferson Hospital.

During the month following the accident, King did not work at either Hoss's or Jefferson Hospital. Thereafter, pursuant to Dr. Caffari's recommendation that she could return to "light-duty" employment, King returned to both of her jobs on December 1, 1992. Upon her return to Hoss's, King asked her supervisor, Wayne Crise, whether there were any light-duty positions at which she could work. Crise replied that, while there were several such positions at Hoss's, none were currently available. For the next several weeks, King resumed her salad bar attendant duties.

In late December of 1992, King told Dr. Caffari that the lifting and bending necessary at her Hoss's job aggravated her pain. Dr. Caffari then gave King a note excusing her from work for medical reasons and King took a leave of absence from Hoss's. Approximately one year later, in December of 1993, King formally resigned from Hoss's because she still could not physically perform the duties of her former job.

With respect to her part-time employment at Jefferson Hospital, King was able to resume her normal duties as a dietary aid following the initial, month-long, leave of absence immediately following the accident. In May of 1995, after completing training as a nurse's aid, King obtained full-time employment at Jefferson.

On October 6, 1994, King and Simpson filed a joint civil complaint against Pulaski to recover damages for their injuries arising from the 1992 auto accident. In November of 1996, following standard pre-trial procedures, the case was tried before a jury. Prior to the trial, Pulaski admitted liability. The contentious trial issues, therefore, centered upon the injuries, if any, which King and Simpson sustained in the accident and the damages to be awarded therefor.

King testified in detail relative to her job duties at Hoss's. In sum, King's testimony established that, as a salad bar attendant, she was required to do a great deal of heavy lifting and carrying, as well as bending and reaching. Further, because the job was in the restaurant service industry, it necessitated that she work at a fast pace.

King's supervisor, Wayne Crise, corroborated King's testimony relative to the scope of her work duties. Further, Crise testified that King had been a good employee for the four years preceding the accident but that, following the accident, King's pace was slower and she sometimes had to ask other employees for assistance.

King's treating physicians, Drs. Caffari and Taylor, testified by way of videotape deposition. Dr. Caffari stated that he had approved King for light-duty employment only and that activities such as heavy lifting would prolong the healing process.

Thereafter, King proposed to introduce the testimony of a vocational expert, Jay K. Jarrell, regarding the calculation of King's lost wages, health insurance benefits, and profit sharing plans. In response, Pulaski filed a motion in limine seeking to exclude Jarrell's testimony. In support thereof, Pulaski stated that King had not laid a proper foundation for the introduction of the proposed expert's testimony. More particularly, Pulaski argued that Pennsylvania law requires the introduction of specific medical evidence of a plaintiff's inability to perform a job before a jury may consider lost wages as an element of damages. Because King's doctors had not specifically stated that King was unable to perform her duties at Hoss's, Pulaski argued, Jarrell should be precluded from testifying.

At a lengthy sidebar discussion, the parties presented their respective arguments to the court. King argued that the law does not mandate that a doctor provide a specific medical opinion that the plaintiff cannot perform his or her job. Instead, King averred, medical evidence must be presented from which a jury could reasonably conclude that the plaintiff was so incapacitated. Further, King argued, such sufficient evidence was presented in the instant matter and the expert, therefore, should be permitted to testify. In response, Pulaski reiterated her prior argument that, absent a specific medical opinion pertaining to a plaintiff's inability to work, it would be improper to allow a jury to consider lost wages as a part of damages. After much discussion, the court granted Pulaski's motion in limine, stating to King: "I don't think you have the magic words." N.T., 11/15/96, at 175.

After the parties rested their cases, the court charged the jury. Because Pulaski had previously admitted her negligence, the court specifically instructed the jurors that they must find Pulaski negligent and that neither King nor Simpson could be found contributorily or comparatively negligent. Rather, the court instructed, the jury must begin its deliberations by considering whether Pulaski's negligent conduct was a substantial factor in bringing about the plaintiffs' claimed injuries.

The jury was then instructed that, should it answer the causation inquiry in favor of the plaintiffs, it must then determine the proper measure of damages to compensate the individual plaintiffs. With respect to lost wages, the court informed the jury that, while King testified that she missed a substantial amount of work due to her injuries, the jury was not to consider lost wages as an element of its damage award.

After deliberating for three hours, the jury sent a note to the court in which it asked, "Can we find for the plaintiff without giving any monetary award?" Id. at 251. The judge, in turn, asked the jury to clarify whether their question related to one or both plaintiffs. The jury responded that their question referred only to King's co-plaintiff, Simpson. After conferring with the parties, the judge answered the jury's question in the negative.

Soon thereafter, the jury returned its verdict. Despite the court's plain instructions to the contrary, the jury found for the defendant, Pulaski, in the case of Simpson v. Pulaski. In the case of King v. Pulaski, the jury found for the plaintiff, King, and awarded compensatory damages in the amount of $600.00.

King filed a timely motion for post-trial relief in the nature of a new trial. Therein, King argued, inter alia, that the verdict "bears no relationship to the uncontroverted testimony presented at trial" and was, thus, against the weight of the evidence. Motion for Post-Trial Relief, at 3. King also alleged that the court erred in granting Pulaski's motion in limine, which barred King from introducing expert vocational testimony at trial. ¹

By order dated March 10, 1997, the court denied King's post-trial motion. In its accompanying opinion, the court stated that, while "this Court is inclined to award a new trial for failure of the jury to follow the court's instructions and for inadequacy which does shock this Court's conscience, this Court believes plaintiff has waived these reasons for a new trial by failing to object to the verdict in a timely fashion." Opinion, 3/10/97, at 6 (emphasis added). By way of explanation, the court opined that King had waived her right to challenge the weight of the jury's verdict by failing to object before the jury was dismissed. In support of this decision, the court relied upon this Court's holding in Picca v. Kriner, 435 Pa.Super. 297, 645 A.2d 868 (1994).

Further, the court reaffirmed its decision to exclude the proposed testimony of King's expert vocational witness. Again, the court reiterated that "there must be specific medical evidence that a claimant is unable to perform their job before wage loss can be considered by a jury." Opinion, 3/10/97, at 4-5. This Court's holding in Gordon v. Trovato, 234 Pa.Super. 279, 338 A.2d 653 (1975), was cited in support of the decision to grant Pulaski's motion in limine.

It is well-settled that, in order for a claim of error to be preserved for appellate review, a party must make a timely and specific objection before the trial court at the appropriate stage of the proceedings. See, e.g., Brown v. Philadelphia Tribune Co., 447 Pa.Super. 52, 668 A.2d 159, 162 (1995). The failure to do so will result in waiver of the issue. Id.

In Picca v. Kriner, supra, this Court held that, under the unique facts of that case, a plaintiff who failed to object to the jury's verdict before it was dismissed was barred from requesting a new trial....