Nazarak, S. v. Waite, R., Jr.
216 A.3d 1093
Pa. Super. Ct.2019Background
- On December 10, 2014, Waite (driving for Haranin Construction) rear-ended Nazarak (driving for his employer); Nazarak sued for negligence, vicarious liability, and negligent entrustment.
- Liability was admitted by Appellants before trial; the jury’s role was limited to causation and damages.
- Jury found Appellants’ negligence was a factual cause and awarded $750,000 in damages; trial court denied Appellants’ post-trial motions and entered judgment for Nazarak.
- Appellants challenged evidentiary rulings (workers’ compensation lien and compromise/release), expert testimony rulings (scope of vocational expert, use of non‑testifying expert material, exclusion of certain cross‑examination), and certain trial counsel arguments/testimony.
- On appeal, the Superior Court reviewed discretionary evidentiary rulings for abuse of discretion and whether any errors were prejudicial.
Issues
| Issue | Plaintiff's Argument (Nazarak) | Defendant's Argument (Waite / Haranin) | Held |
|---|---|---|---|
| Admission of workers’ compensation lien evidence | Nazarak argued he could prove and recover amounts paid so jury can assess damages; lien exists and must be repaid | Appellants argued lien evidence was inadmissible collateral‑source evidence, confused jury, and risked double recovery | Admitted: court held not collateral source here because lien is repayable; no double recovery and jury properly decides damages |
| Admission of workers’ compensation compromise/release | Nazarak relied on release evidence to show damages and employment status | Appellants argued settlement evidence is inadmissible under 42 Pa.C.S. § 6141 and prejudicial | Possibly erroneous but harmless: trial court’s use showed damages/employment, not liability; no reversible prejudice found |
| Jury instruction on repayment/subrogation (refusal to give proposed supplemental points) | Nazarak relied on the court’s instruction that Liberty Mutual would be repaid only if plaintiff recovered and only a portion | Appellants wanted more detailed instructions on §319 calculation and attorney’s fees allocation | No error: trial court’s instruction was adequate and additional detail could have confused the jury |
| Vocational expert testifying about CDL inability (post‑report stimulator) | Nazarak: testimony within fair scope—Evans’ report stated plaintiff could not renew CDL; stimulator clarified at trial | Appellants: testimony exceeded expert report and caused unfair surprise | No abuse: testimony was within fair scope; defendants could meaningfully respond |
| Use of non‑testifying neuroradiologist’s report via treating expert (Dr. Harvey) | Nazarak: treating orthopedist may rely on and explain other experts’ imaging reports as bases for his own opinion | Appellants: Dr. Harvey was a mere conduit repeating Dr. Brooks (inadmissible hearsay) | Admitted: court found Dr. Harvey used Brooks’ report among many sources and applied his own judgment—permissible under Rule 703/Primavera exception |
| Exclusion of cross‑examination suggesting preexisting condition (Dr. Rundorff) | Appellants sought testimony that MRI findings could have preexisted the accident | Nazarak argued lack of intervening imaging made that speculative | Excluded: court properly barred testimony as mere conjecture/lacked reasonable medical certainty |
| Closing argument suggesting adverse inference from defendants’ failure to call vocational/economic experts | Nazarak argued jury could infer why defendants didn’t present such experts | Appellants argued this improperly invited a missing‑witness inference | No reversible error: court allowed the argument; witness inference was within discretion because such experts were within defendants’ control |
| Testimony by Waite that brakes failed (after liability admitted) | Nazarak elicited testimony that brakes failed; contended it bore on causation/context | Appellants argued the testimony was improper after stipulation of liability | Not reversible: trial court struck the testimony and gave curative instruction (no objection to curative instruction was made) |
Key Cases Cited
- Simmons v. Cobb, 906 A.2d 582 (Pa. Super. Ct.) (collateral‑source rule bars defendant from introducing plaintiff’s third‑party benefits for same injuries)
- Ricks v. Nationwide Ins. Co., 879 A.2d 796 (Pa. Super. Ct.) (plaintiff may plead, prove, and recover amounts paid by workers’ compensation carrier where lien repayment applies)
- Burke v. Erie Ins. Exchange, 940 A.2d 472 (Pa. Super. Ct.) (distinguishes cases where insurer waived subrogation and risk of double recovery exists)
- Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa.) (trial court has broad discretion in phrasing jury instructions so long as law is accurately presented)
- Primavera v. Celotex Corp., 608 A.2d 515 (Pa. Super. Ct.) (expert may rely on extrajudicial reports if reasonably relied upon and coupled with expert’s own judgment)
- Woodard v. Chatterjee, 827 A.2d 433 (Pa. Super. Ct.) (expert cannot be mere conduit; use of multiple sources plus expert’s own analysis renders testimony admissible)
- Winschel v. Jain, 925 A.2d 782 (Pa. Super. Ct.) (expert testimony that amounts to mere possibility or speculation is inadmissible)
- Hassel v. Franzi, 207 A.3d 939 (Pa. Super. Ct.) (applications of Rule 4003.5 fair‑scope rule for expert reports)