McManamon v. Washko

• Decision Date: 31 August 2006
• Citation: 906 A.2d 1259
• Parties: Teresa A. McMANAMON, an Incapacitated Person, by her Co-Guardians, James V. Greenhough and Denise Kurzmann, Individually, Appellees, v. Edward L. WASHKO and Greater Hazleton Health Alliance d/b/a Hazleton General Hospital d/b/a Hazleton St. Joseph Medical Center d/b/a MRI Dessen Center, Appellants. Appeal of Edward Washko and Greater Hazleton Health Alliance.
• Court: Pennsylvania Superior Court

Page 1259

906 A.2d 1259

Teresa A. McMANAMON, an Incapacitated Person, by her Co-Guardians, James V. Greenhough and Denise Kurzmann, Individually, Appellees, v.Edward L. WASHKO and Greater Hazleton Health Alliance d/b/a Hazleton General Hospital d/b/a Hazleton St. Joseph Medical Center d/b/a MRI Dessen Center, AppellantsAppeal of Edward Washko and Greater Hazleton Health Alliance.

Superior Court of Pennsylvania.

Argued May 24, 2005.

Filed August 31, 2006.

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Mark A. Aronchick, Daniel C. Segal and Matthew A. Hamermesh, Philadelphia, for appellants.

Matthew A. Casey and Shanin Specter, Philadelphia, for appellees.

BEFORE: STEVENS, GANTMAN, and KELLY, JJ.

OPINION BY GANTMAN, J.:

¶ 1Appellants, Edward L. Washko and Greater Hazleton Health Alliance ask us to determine whether the trial court erred when it denied their post-trial motions for a new trial and/or remittitur of the verdict in this personal injury action.We hold the court properly rejected Appellants' multiple claims of trial error; the jury instructions on pain and suffering and the verdict slip were appropriate under Pennsylvania law; and the court properly refused to grant remittitur in general or to apply the remittitur provisions of the Medical Care Availability and Reduction of Error ("MCARE") Act to this case.Accordingly, we affirm the judgment entered in favor of Appellee, Teresa A. McManamon.

¶ 2The trial court opinion fully sets forth the relevant facts and procedural history of this case.Therefore, we will only briefly summarize them here.Appellant Washko was driving a motor vehicle for Appellant Greater Hazleton Health Alliance.While in the course of his employment as a courier, Appellant Washko's motor vehicle struck Appellee, a forty-one-year-old single mother of three.Appellee was working as a flag person, for Lagana Construction Company, on a paving project adjacent to the Airport Beltway in Hazle Township.At the time of impact, Appellee was wearing an orange helmet and reflective vest and was carrying an orange flag.The project area was posted with road work warning signs.Appellee suffered serious and permanent physical injuries in the accident, including multiple fractures to her arm, shoulder blade, hip, leg, and foot.She also suffered critical brain injuries resulting in severe and permanent cognitive deficits.Appellee will require continued daily care for the rest of her life.

¶ 3 Trial began on January 12, 2004.The jury returned a verdict in Appellee's favor on January 21, 2004, in the amount of $19,098,341.00.On January 30, 2004, Appellants timely filed a motion for post-trial relief, seeking a new trial on liability and damages or a new trial on damages or remittitur.The trial court denied post-trial relief on September 22, 2004.The following day, the court entered an order awarding delay damages of $1,165,914.20, and molding the verdict to include the delay damages.On October 7, 2004, the court entered judgment on the molded verdict in the amount of $20,264,255.20.Appellants filed a timely appeal on October 8, 2004.The court did not order a Rule 1925(b) concise statement of matters complained of on appeal, and Appellants filed none.

¶ 4 On appeal, Appellants raise the following issues for our review:

DID THE TRIAL COURT DEPRIVE APPELLANTS OF A FAIR OPPORTUNITY TO PRESENT THEIR AFFIRMATIVE DEFENSE OF COMPARATIVE NEGLIGENCE BY:

(a) EXCLUDING EXTRINSIC EVIDENCE OF PRIOR INCONSISTENT STATEMENTS OF TWO OF [APPELLEE'S] WITNESSES, AFTER THE WITNESSES DENIED MAKING THE STATEMENTS;

(b) READING A STATUTORY PROVISION CONCERNING THE DUTY OF A DRIVER TO YIELD TO WORKERS IN A CONSTRUCTION ZONE WITHOUT ANY INSTRUCTION ON THE WORKERS' CORRESPONDING DUTY OF CARE, AND REPEATING THE INSTRUCTION THREE MORE TIMES IN RESPONSE TO QUESTIONS FROM THE JURY;

(c) PERMITTING [APPELLEE'S] EXPERT TO TESTIFY ABOUT THE CONCLUSIONS CONTAINED IN AN OSHA REPORT AS SUPPORT FOR HIS OWN OPINION;

(d) PERMITTING INTRODUCTION OF EVIDENCE OF [APPELLANT WASHKO'S] OPINION AS TO THE LEGAL ISSUE OF FAULT;

(e) PERMITTING [APPELLEE] TO GO BEYOND THE SCOPE OF [APPELLANTS'] EXPERT'S DIRECT TESTIMONY AND CROSS-EXAMINE HIM ABOUT HIS OPINION AS TO FAULT?

DID THE CUMULATIVE EFFECT OF THE FOREGOING ERRORS DEPRIVE [APPELLANTS] OF A FAIR OPPORTUNITY TO PRESENT THEIR COMPARATIVE NEGLIGENCE DEFENSE?

DID THE TRIAL COURT ERR IN INSTRUCTING THE JURY ABOUT AND PROVIDING THE JURY WITH A VERDICT SLIP THAT INCLUDED FOUR SEPARATE DESCRIPTIONS OF DIFFERENT ASPECTS OF PAIN AND SUFFERING DAMAGES?

DID THE TRIAL COURT ERR IN REFUSING TO CONSIDER WHETHER A REMITTITUR WAS APPROPRIATE PURSUANT TO THE PROVISIONS OF THE MEDICAL CARE AVAILABILITY AND REDUCTION OF ERROR ACT, 40 P.S. § 1303.515?

(Appellants' Briefat 5).

¶ 5 When presented with an appeal from the denial of a motion for a new trial, "absent a clear abuse of discretion by the trial court, appellate courts must not interfere with the trial court's authority to grant or deny a new trial."Harman ex rel. Harman v. Borah,562 Pa. 455, 466, 756 A.2d 1116, 1121-22(2000).

In Harman,the Court noted that the trial court must follow a two-step process in responding to a request for a new trial.The trial court must determine whether a factual, legal or discretionary mistake was made at trial.If the trial court determines that one or more mistakes were made, it must then evaluate whether the mistake provided a sufficient basis for granting a new trial.Moreover, the Court noted that "[a] new trial is not warranted merely because some irregularity occurred during the trial or another trial judge would have ruled differently; the moving party must demonstrate to the trial court that he or she has suffered prejudice from the mistake."

The Court then set forth an additional two-step analysis for appellate review of a trial court's determination to grant or deny⁹ a new trial.First, the appellate court must examine the decision of the trial court to determine whether it agrees that a mistake was, or was not, made.In so doing, the Court noted that the appellate court must apply the appropriate standard of review.If the alleged mistake involved an error of law, the appellate court must scrutinize for legal error.If the alleged mistake at trial involved a discretionary act, the appellate court must review for an abuse of discretion.The Court reiterated that a trial court abuses its discretion by rendering a judgment that is manifestly unreasonable, arbitrary or capricious, or has failed to apply the law, or was motivated by partiality, prejudice, bias or ill will.

⁹The Court specifically held that a review of a denial of a new trial requires the same analysis as a review of a grant of a new trial.

If the appellate court agrees with the trial court's determination that there were no prejudicial mistakes at trial, then a decision by the trial court to deny a new trial must stand and we need not reach the second prong of the analysis.If the appellate court discerns that a mistake was made at trial, however, it must analyze whether the trial court abused its discretion in ruling on the motion for a new trial.

Ettinger v. Triangle-Pacific Corp.,799 A.2d 95, 106(Pa.Super.2002), appeal denied572 Pa. 742, 815 A.2d 1042(2003)(internal citations omitted).

¶ 6Appellants' first two issues on appeal involve five (5) separate allegations of trial error, which Appellants contend individually and collectively deprived them of a fair opportunity to present the affirmative defense of Appellee's comparative negligence and necessitate a new trial.We will consider each challenged ruling in the order presented.

(a) IMPEACHMENT OF WITNESSES GERLOTT AND SHIELDS

¶ 7 At trial, Appellants challenged Appellee's evidence regarding the exact location of the accident.Appellants asserted Appellee was struck because she backed onto the roadway, without taking proper precautions for her own safety.On the other hand, Appellee maintained she was on the berm of the highway, and Appellant Washko was off the roadway when he struck her.In support of her contention Appellee presented two witnesses at trial, Mr. Gerlott, a supervisor for Lagana Construction, and Mr. Shields, the driver of a dump truck that was backing out of the driveway near the site of the accident.Both witnesses testified at trial that they saw the accident, and Appellee was not in the roadway.At trial, Appellants sought to impeach these witnesses by questioning the investigating officer about the witnesses' alleged inconsistent statements "to complete the impeachment."(Appellants' Briefat 19).Appellants purport the witnesses' out-of-court statements made to Trooper Hudson were offered to cast doubt on the witnesses' direct testimony at trial regarding Appellee's location at the time of the incident.Appellants reason the witnesses' investigative statements to Trooper Hudson were offered solely for impeachment purposes, not as substantive evidence.Appellants cite the Pennsylvania Rules of Evidence Rule 801 for the proposition that inconsistent statements offered solely for purposes of impeaching a witness are not hearsay.Appellants also cite Pa.R.E. 613(b), which permits a party to introduce extrinsic evidence of a prior statement, subject to specific procedures.Appellants conclude the court committed prejudicial error in precluding examination of Trooper Hudson at trial regarding the witnesses' prior statements.We disagree.

¶ 8 Initially, we observe Pa.R.E. 801 provides:

Rule 801.Definitions

The following definitions apply under this article:

(a) Statement.A "statement" is (1) an oral or written assertion, or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.

(b) Declarant.A "declarant" is a person who makes a statement.

(c) Hearsay."Hearsay" is a statement, other than one made by the declarant while testifying at the trial or...