On February 26,2002, a jury rendered a verdict in favor of defendants Harold Bender and Lewis Lumber Products Inc. finding them not liable for causing injuries allegedly sustained by plaintiff Brian Ipjian in an automobile accident. Plaintiffs have filed a post-trial motion seeking a directed verdict on the issue of causation and a new trial limited to damages, or alternatively, a new trial on both issues of causation and damages. For the reasons set forth below, plaintiffs’ motion for a new trial, on both causation and damages, is granted.
FACTS
The relevant evidence adduced during the two-day jury trial was as follows: Plaintiff Brian Ipjian was driving three of his children to school on the morning of Friday, November 5,1999. Plaintiff, who had been stopped at a stop sign, began to make a right turn into an intersection when he had to stop due to oncoming traffic. Plaintiff, driving a 1992 Dodge Grand Caravan minivan, was struck from behind by a 22,000 pound lumber delivery truck driven by defendant Harold Bender for his employer, defendant Lewis Lumber Products. (N.T. 16-17, 19, 75, 79.) Defendant Bender had been behind plaintiff at the stop sign and had also made a right turn into the
Defendant Bender admitted his negligence in striking plaintiff’s minivan. (N.T. 81.) He testified that just prior to striking the minivan, he had been at a full stop and traveled about one to two car lengths before striking plaintiff’s minivan and that he did not apply his brakes. (N.T. 76-77, 80.) He had no idea how fast he was traveling upon impact. (N.T. 80-81.) Defendant Bender was not injured and his truck was not damaged. (N.T. 77.)
Plaintiff pulled his minivan off the road, checked on his children and sat down on the curb.
Plaintiff testified that he visited his family physician, Scott Mueller M.D., that day, complaining of soreness in his neck and left shoulder. (N.T. 21.) Dr. Mueller reported that he examined plaintiff on the day of the accident and found him tender over his neck muscles and his
Dr. Mueller saw plaintiff for a third visit on January 13, 2000. Plaintiff noted improvement but still complained of some pain associated with too much activity. (Dr. Mueller dep. at 10.) Dr. Mueller found plaintiff still had ulnar nerve inflammation and some neck strain. (Dr. Mueller dep. at 13.) Dr. Mueller then saw plaintiff January 27,2000, to assess his progress after having resumed work. He reported plaintiff was having some shoulder
Dr. Mueller, who has been plaintiff’s treating physician for over 15 years, testified, within a reasonable degree of medical certainty, that plaintiff suffered neck, left shoulder, left arm and hand problems as the result of the automobile accident. (Dr. Mueller dep. at 16.) His diagnosis was cervical strain and left ulnar nerve palsy. (Dr. Mueller dep. at 24.) He noted that such injuries typically heal within four to eight weeks but can take longer. (Dr. Mueller dep. at 24.) Dr. Mueller described plaintiff as not a malingering type but one who might actually under-exaggerate complaints. (Dr. Mueller dep. at 19-20.)
As to plaintiff’s prior history, Dr. Mueller confirmed that his partner treated plaintiff in January 1994 for neck pain, left hand numbness, stiff neck. These symptoms resolved with anti-inflammatories and muscle relaxants and resolved within a week. (Dr. Mueller dep. at 28.) Also, in March 1995, Dr. Mueller treated plaintiff for a stiff neck which also resolved within a week. (Dr. Mueller dep. at 28.)
Dr. Mueller referred plaintiff to Dr. Emily Matlin for a second opinion. Dr. Matlin, a physician with specialties in neurology and pain management, testified, within a reasonable degree of medical certainty, that plaintiff’s
Plaintiff summarized his progress as follows: his neck pain resolved within a few days of the accident, his left arm and hand problems within a few months of the accident, and his shoulder pain resolved by May of 2000 following physical therapy, although, as of the trial, he had range of motion problems and some aggravating tenderness. (N.T. 35.)
The defendants did not seek an independent medical examination of plaintiff and presented no medical testimony. (N.T. 83.)
As to pre-existing conditions, plaintiff admitted to having been involved in motor vehicle accidents in 1991 and 1997 and claimed to have suffered lower back pain in those accidents. (N.T. 38.) To the extent he had suffered any neck pain from those accidents, he testified it was very minor and quickly resolved. (N.T. 39.)
At the conclusion of trial, the jury was provided with a verdict slip containing three special interrogatories. The defendants admitted, in the first interrogatory, that defendant Bender had negligently driven his truck. The jury was then asked to decide two questions; whether the negligence was “a substantial factor in bringing about the plaintiff’s harm” and if so, the amount of damages plain
LEGAL DISCUSSION
The plaintiffs argue the evidence was so weighty in his favor that the jury’s verdict — finding Mr. Ipjian did not suffer any harm from the accident — requires a new trial on this issue as well as damages. In the alternative, plaintiffs request the court direct a verdict finding defendants liable for Mr. Ipjian’s harm and limiting a trial to the issue of damages alone.
A new trial is properly granted where the verdict is against the weight of the evidence. Thompson v. City of Philadelphia, 507 Pa. 592, 598, 493 A.2d 669, 672 (1985). Although a new trial should not be granted because of a mere conflict in testimony or because the trial judge would have arrived at a different conclusion, a new trial should be awarded where a jury’s verdict is so contrary to the evidence as to shock one’s sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail. Id.
A motion for judgment n.o.v. can be entered where the evidence is insufficient to support the verdict. Lilley v. Johns-Manville Corp., 408 Pa. Super. 83, 91, 596 A.2d 203, 206 (1991), appeal denied, 530 Pa. 644, 607 A.2d 254 (1992).
The entry of judgment notwithstanding a jury verdict is a drastic remedy. A court cannot lightly ignore the findings of duly-selected jury. Thus, in considering a motion
Plaintiffs claim the only way the jury could have reached its verdict was to capriciously disregard all the evidence which was submitted. Plaintiffs note the evidence was uncontradicted that Mr. Ipjian suffered injuries to his neck, left shoulder and left arm in the accident, that he had no injuries prior to the accident, that Dr. Mueller’s examinations indicated objective findings consistent with plaintiff’s complaints, that both Drs. Mueller and Matlin rendered opinions that plaintiff’s injuries were caused by the accident, that no contrary medical opinion was put forth as to causation and that the accident was more than minor, involving an 11-ton truck.
“[T]he jury is free to believe all, some, or none of the testimony presented by a witness____However, this rule is tempered by the requirement that the verdict must not be a product of passion, prejudice, partiality, or corruption, or must bear some reasonable relation to the loss suffered by the plaintiff as demonstrated by uncontroverted evidence presented at trial. . . . The synthesis of these conflicting rules is that a jury is entitled to reject any and all evidence up until the point at which the verdict is so disproportionate to the uncontested evidence as to defy common sense and logic.” Neison v. Hines, 539 Pa. 516, 520-21, 653 A.2d 634, 637 (1995). (citations omitted)
Just a few weeks ago, the Superior Court revisited this issue in Andrews v. Jackson, 2002 Pa. Super. 173 (June 3, 2002). In Andrews, the trial court granted a new trial where the jury found that the defendant’s negligence in causing a vehicle collision was not a substantial factor in causing plaintiff’s injuries and awarded no damages. The new trial was warranted because the jury disregarded uncontroverted testimony that plaintiff suffered some injury, even though defendant’s expert claimed the injury was a minor soft-tissue injury (cervical strain). The Superior Court upheld the grant of a new trial, finding that “[wjhere there is no dispute that the defendant is negligent and both parties’ medical experts agree the accident caused some injury to the plaintiff, the jury may not find that the defendant’s negligence was not a substantial factor in bringing about at least some of plaintiff’s injuries.” Id. at ¶12.
Defendants contend these holdings are not applicable since they have not conceded or agreed that plaintiff sustained an injury in this case. Indeed, the cases cited above all involved cases in which the defendant presented ex
“While the jurors are the sole judges of credibility, and [plaintiff’s] inconsistent and perhaps exaggerated testimony could have been perceived as an indication of [plaintiff’s] interests of opportunity beyond pain which could dilute their belief in the existence of the occasion itself, the jury is not free to ignore an obvious injury. As our Supreme Court stated in Thompson v. Iannuzzi, 403 Pa. 329, 169 A.2d 777 (1961): ‘It is true that the jury is the final arbiter of facts but it may not, in law, ignore
“As in Hawley, in the present case, the jury’s refusal to believe in the existence of the sprained ankle was unwarranted. While there existed no admission from a defense expert witness that Kruczkowska suffered an injury during the accident, the existence of a sprained ankle was not questioned by Winter during her cross-examination of Kruczkowska and Dr. Gurkaynak. Rather, Winter’s cross-examination of both Kruczkowska and Dr. Gurkaynak revealed only a dispute about the severity of Kruczkowska’s injury and how long and to what extent it impaired her normal activities.
“Although Winters notes Dr. Gurkaynak’s credibility was called into question during cross-examination when she questioned his expertise in the field of orthopedic medicine, such questioning did not call into question whether Kruczkowska suffered any injury. Rather, it only spoke to the doctor’s credentials.” Kruczkowska at 630.
“While a jury may reject any and all evidence presented, it can only do so up until the point at which the verdict is so disproportionate to the uncontested evidence as to defy common sense and logic.” Neison, supra. As in Kruczkowska, the jury’s refusal here to believe the plaintiff’s injuries were caused by this accident, was unwarranted. The uncontroverted evidence established that plaintiff’s minivan was struck from behind by a 22,000 pound truck which did not brake prior to impact. The impact caused somewhat significant damage to the rear of the minivan. Plaintiff complained of immediate aching in his neck and in his left shoulder, pain which
While the defendant here, like the defendant in Kruczkowska, did not provide an expert who admitted the plaintiff suffered an injury from the accident, the existence of plaintiff’s cervical sprain and ulnar nerve injury were not questioned by the defendants during their cross-examination. Defendants’ cross of Dr. Mueller focused on the extent of plaintiff’s shoulder injury, noting plaintiff had a new complaint of pain at the back of his shoulder for first time on January 27,2000. (Dr. Mueller dep. at 23.) Dr. Mueller also stated on cross that plaintiff’s cervical strain should have healed in four to eight weeks. (Dr. Mueller dep. at 24.) Defendants also questioned plaintiff’s complaint of lack of range of motion since Dr. Mueller had not tested him prior to the accident and thus had nothing to compare his limitations to. (Dr. Mueller dep. at 30.) Dr. Mueller conceded the range of motion
Our ruling is supported by the Supreme Court’s decision in Neison v. Hines, supra. There, the court upheld the trial court’s grant of a new trial where the defendant had admitted liability in causing a rear-end collision, yet the jury awarded no damages. The court concluded, as in this case, that the evidence was uncontroverted that the plaintiff had been involved in a violent automobile accident and had suffered from obvious injuries. Id., 539 Pa. at 522, 653 A.2d at 637. Importantly, the court stated as follows:
“Thus, the uncontroverted medical evidence established that Ms. Neison suffered pain from a known medical source, a cervical sprain, fibromyalgia, and a herniated disk, much like the compression fracture in Hawley. We believe that these injuries are similar in type to the ‘obvious injury’ the Superior Court found in Hawley, and agree with the conclusion of that court that a jury cannot freely ignore evidence of obvious injury.” Id. at 525-26, 653 A.2d at 639. Dr. Mueller’s diagnosis was that the
Defendants contend the evidence of accident-related injury was not uncontroverted. They suggest the evidence of injury was inconsistent and, therefore, it was within the discretion of the jury to reject the unreliable testimony and accept that which was most credible. Specifically, they claim that the jury obviously concluded that the force of the impact was extremely minimal, as testified to by defendant Bender. Furthermore, they contend Drs. Mueller and Matlin’s medical opinions were uninformed and misinformed because the doctors had not been given a complete and accurate medical history by plaintiff and the jury was thus free to disregard their testimony.
Initially, we note that while the accident might not be described as “serious,” it could not be reasonably concluded to have been “extremely minimal,” as it involved an 11-ton truck and relatively extensive damage to plaintiff’s minivan. Regarding defendants’ assertion that plaintiff suffered from pre-existing neck and shoulder injuries, the uncontroverted evidence revealed as follows: on two occasions plaintiff made a single visit to his family doctor complaining of neck pain and stiffness, both of which resolved within one week of his visits. Furthermore, the most recent of his two visits occurred in March 1995, more than four-and-one-half years before the accident in question. No jury could have reasonably connected those minor complaints to the accident in question, given the lengthy time gaps and given that defendants provided no medical testimony to support
ORDER
And now, June 20, 2002 plaintiffs’ post-trial motion, in the nature of a motion for a new trial on the issues of legal causation and damages, is hereby granted.
. Defendants note in their brief in opposition to the post-trial motion that all claims involving the minor children were settled prior to trial for what defendants claim was a nominal amount.
. Plaintiff missed a total of 54 scheduled work days, incurring $4,736.18 in unreimbursed lost wages. (N.T. 26; plaintiffs’ exhibits 2, 5.)
. Plaintiffs were referred to in the plural on the damages section of the verdict form since Mr. Ipjian’s wife sought loss of consortium.
. The issue of whether an injury is compensable is one which has been explored by our appellate courts in a number of recent decisions, including Majczyk; Davis v. Mullen, 565 Pa. 386, 773 A.2d 764 (2001) and Monschein v. Phifer, 111 A.2d 18 (Pa. Super. 2001). These cases all stand for the proposition that where a defendant is negligent and the negligence causes an injury, the jury may nevertheless refuse to award the plaintiff pain and suffering damages, if it is reasonable for the jury to determine the injury is non-compensable. It is important to note that in this case, the issue of whether plaintiff’s injuries are compensable is not before us since the jury did not reach the issue of damages, as it did in the cases cited above. Thus, plaintiff’s reliance on Monschein and defendants’ reliance on Davis, is misplaced. Had the jury in this case found legal causation but awarded no damages, these cases would have been relevant to our analysis.
