Nazarak, S. v. Waite, R., Jr.
2019 Pa. Super. 235
| Pa. Super. Ct. | 2019Background
- On December 10, 2014, Rubin Waite, Jr., driving a Haranin Construction vehicle, rear-ended Seth Nazarak, who was stopped at a red light; both drivers were on the job for their employers.
- Nazarak sued Waite and Haranin Construction for negligence, vicarious liability, and negligent entrustment; jury found defendants negligent and awarded $750,000 in damages.
- Prior to trial, defendants sought limits on plaintiff’s damage evidence related to workers’ compensation payments and to exclude reliance on non-testifying experts; the court denied several motions in limine.
- At trial plaintiff introduced evidence that he had received workers’ compensation benefits (including a compromise and release) that would be subject to subrogation/reimbursement by the carrier; defendants objected on collateral-source and settlement-admissibility grounds.
- Disputed evidentiary issues included (1) admissibility of workers’ compensation lien and settlement evidence, (2) scope of vocational expert testimony, (3) use of a non-testifying neuroradiologist’s report through a treating surgeon, (4) exclusion of speculative opinion by plaintiff’s expert, and (5) certain closing-argument and witness-questioning remarks; defendants raised these on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of workers’ compensation lien evidence | Nazarak sought to show amount paid and that carrier would be reimbursed; evidence relevant to damages | Waite argued lien was collateral source evidence, confusing to jury and risked double recovery | Court: Admission proper because plaintiff elected to present the payments; subrogation means WC is not a true collateral source and no double recovery results because lien must be repaid |
| Admissibility of workers’ compensation compromise & release | Plaintiff introduced release to show damages and employment status | Defendants argued section 6141 bars settlement evidence and it usurped jury by providing carrier’s valuation | Court: Even if introduction implicated §6141, admission was harmless where liability was admitted and evidence bore on damages; no reversible prejudice |
| Expert testimony scope and non-testifying expert reliance | Plaintiff allowed vocational expert to testify post-report facts (stimulator implant); treating surgeon relied on neuroradiologist’s report to form his opinion | Defendants claimed unfair surprise and hearsay/"mere conduit" use of non-testifying expert | Court: Vocational testimony stayed within fair scope (implant occurred after report but concerned same employability issues); treating surgeon properly relied on and synthesized non-testifying expert’s report under Rule 703/Primavera doctrine |
| Exclusion of speculative alternative-cause testimony & trial remarks | Plaintiff’s expert limited by lack of intervening imaging; plaintiff’s counsel argued defendants failed to call vocational/economic experts; counsel asked defendant about brake failure (later stricken) | Defendants argued excluded cross-exam testimony and counsel remarks prejudiced them and required new trial | Court: Exclusion of expert speculation was proper (opinions must meet reasonable certainty); counsel’s missing-witness remark and the struck brake-failure comment (with curative instruction given) did not warrant new trial |
Key Cases Cited
- Ricks v. Nationwide Ins. Co., 879 A.2d 796 (Pa. Super. 2005) (plaintiff may plead, prove, and recover amount paid by workers’ compensation carrier where subrogation applies)
- Burke v. Erie Ins. Exchange, 940 A.2d 472 (Pa. Super. 2007) (distinguishing cases where WC carrier waived subrogation and plaintiff would otherwise receive double recovery)
- Simmons v. Cobb, 906 A.2d 582 (Pa. Super. 2006) (summary of collateral-source rule prohibiting defendant from introducing plaintiff’s collateral benefits except as limited by law)
- Beechwoods Flying Serv., Inc. v. Al Hamilton Contracting Corp., 476 A.2d 350 (Pa. 1984) (collateral-source rule protects plaintiff’s right to full recovery notwithstanding third-party coverage)
- Primavera v. Celotex Corp., 608 A.2d 515 (Pa. Super. 1992) (expert may rely on extrajudicial reports if used with own expertise and such materials are customarily relied upon in the field)
- Winschel v. Jain, 925 A.2d 782 (Pa. Super. 2007) (expert testimony must meet a reasonable degree of medical certainty; mere possibilities are insufficient)