Before the court is defendant Kirsten Janice Banks’ (appellant) appeal from the final judgment entered July 29, 2003 in the above-captioned matter.
This dispute arose out of an automobile accident that occurred on February 3, 2000 in Shillington, Berks County, Pennsylvania. Plaintiff Eric Mietelski and his wife Bonnie were stopped at a red light on Shillington Road. Appellant saw plaintiffs’ stopped car from about two blocks away. Appellant then crashed the vehicle she was driving into the back of plaintiffs’ vehicle. Plaintiffs’ vehicle spun around and crashed into the back of a truck that was stopped in front of them at the red light. As a result of the crash, Eric suffered a slipped disk in his back, an injury to his SI joint, and aggravated a preexisting neck injury. Bonnie Mietelski suffered a strain to her lower back. Eric has a guarded prognosis and may never be able to work again.
In her concise statement, appellant alleges:
(1) Is the defendant, Kirsten Janice Banks, entitled to judgment n.o.v. where plaintiffs failed to present sufficient evidence at trial to establish any of the elements of the wife-plaintiff’s claim of negligence, causing the jury to enter an erroneous award?
(2) Is the defendant, Kirsten Janice Banks, entitled to a new trial where the honorable court committed a prejudicial error of law and/or abused its discretion in denying defendant an opportunity to present evidence at trial of the surveillance of plaintiffs, since plaintiffs could not reasonably claim any prejudice to trial preparation resulted from its disclosure having been provided with this evidence more than a week before the presentation of witnesses at trial, and several days before the taking of the videotaped trial deposition of defendant’s expert neurologist, Dr. Bennett, causing the jury to enter an erroneous award?
(3) Is the defendant, Kirsten Janice Banks, entitled to a new trial where the honorable court committed a preju
(4) Is the defendant, Kirsten Janice Banks, entitled to a new trial where the authority relied upon by plaintiffs did not support the preclusion of defendant’s surveillance evidence and related testimony, causing the jury to enter an erroneous award?
(5) Is the defendant, Kirsten Janice Banks, entitled to a new trial where the honorable court committed a prejudicial error of law and/or abused its discretion when the court precluded any reference to the defendant’s surveillance evidence during the testimony of the defense medical doctor?
(6) Is defendant, Kirsten Janice Banks, entitled to a new trial where the jury’s finding that defendant was negligent as to the wife-plaintiff was against the weight of the evidence, causing the jury to enter an erroneous award?
(7) Is defendant, Kirsten Janice Banks, entitled to a new trial where the honorable court committed a prejudicial error of law and/or abused its discretion in refusing to allow counsel for defendant to cross-examine plaintiffs ’ vocational rehabilitation expert with respect to certain wage loss figures and other information relied upon by this expert which had been raised and challenged in the report of defendant’s expert and which would have otherwise been reasonably anticipated to have been a subject of cross-examination, causing the jury to enter an erroneous award?
(9) Is defendant, Kirsten Janice Banks, entitled to a new trial where the honorable court committed a prejudicial error of law and/or abused its discretion in failing to permit counsel for defendant to argue during closing regarding the contents of the medical record/report of Dr. Perkins, the basis for his report and the content of certain radiology records which were available to be taken into account causing inferences to be improperly drawn by plaintiff’s witnesses, causing the jury to enter an erroneous award?
(10) Is defendant, Kirsten Janice Banks, entitled to a new trial where the verdict was the result of passion, prejudice and improper influence?
(11) Is defendant, Kirsten Janice Banks, entitled to a new trial where the verdict is not in accord with existing law?
(12) Is defendant, Kirsten Janice Banks, entitled to a new trial on the issue of damages because the jury’s award of damage was against the clear and overwhelming weight of the evidence?
(13) Is defendant, Kirsten Janice Banks, entitled to a new trial on damages where the honorable court erred in allowing the jury to consider plaintiff-husband’s claim of injury when the jury was deprived of an opportunity to observe the surveillance videotape and testimony?
(15) Is defendant, Kirsten Janice Banks, entitled to a substantial remittitur of the jury’s verdict where the verdict is unsupported by substantial credible evidence, is excessive under the circumstances and shocks the conscience of the community as well as the court?
In her first matter complained of on appeal, appellant asserts that she is entitled to judgment n.o.v. because the plaintiffs failed to present sufficient evidence at trial to establish any of the elements of the wife-plaintiff’s claim of negligence. Pursuant to Pa.R.C.P. 227.1(b)(2), post-trial relief may not be granted unless the motion states how the grounds for relief were asserted at trial. Appellant’s post-trial motion does not indicate how the sufficiency of the evidence argument was raised at trial. We find that this issue has been waived. See generally, Bennyhoff v. Pappert, 790 A.2d 313, 317-18 (Pa. Super. 2001). Further, as to appellant’s weight of the evidence issue, while the jury found that appellant’s negligence was a substantial factor in causing harm to wife-plaintiff, it awarded her none of the damages she claimed. Therefore, it is a stretch to call this award “erroneous.”
Appellant asserts in her next 13 issues that she is entitled to a new trial. It is well settled that the grant of a new trial is a matter within the discretion of the trial court. Martin v. Evans, 551 Pa. 496, 711 A.2d 458 (1998). The standard of review of an order denying a motion for a
Five of appellant’s issues concern the issue of the admissibility of surveillance evidence. The admission of videotaped evidence is within the sound discretion of the trial court and will not be reversed absent an abuse of discretion. Commonwealth v. Long, 425 Pa. Super. 170, 183-84, 624 A.2d 200, 207 (1993), alloc. denied, 535 Pa. 645, 633 A.2d 150 (1993). The surveillance tape at issue was filmed January 25, 2003 through and including February 4,2003, the day jury selection occurred. Plaintiffs had previously requested any such information in discovery. Once they made this request, appellant had a continuing obligation to disclose such information, provided she had had the opportunity to depose plaintiff regarding the extent and effect of his injuries. See Duncan v. Mercy Catholic Medical Center, 813 A.2d 6, 10 (Pa. Super. 2002). Appellant had this opportunity during the deposition of Eric, taken on December 21, 2001. (Defendant’s exhibit 6.) The tape’s existence was not made known to plaintiffs until right before trial; the tape was not made available until the end of the day on the Friday before the deposition of appellant’s expert, Dr. Bennett, was taken on the following Monday. Coun
Further, we properly sustained the objections to questions posed to Dr. Bennett based on his viewing of the tape. Surveillance evidence is not the type of evidence customarily relied upon by doctors in rendering medical opinions, and therefore, the tape was not admissible for this purpose. See Kimberly Clark Corporation v. W.C.A.B. (Bullard), 790 A.2d 1072, 1076 (Pa. Commw. 2001). Dr. Bennett could not consider the tape as a reliable basis upon which he could change his opinion in contravention of his opinion in prior reports.
Appellant also alleges the court erred by not allowing counsel for appellant to cross-examine plaintiffs’ voca
The record does not support appellant’s contention that trial counsel for appellant, Mr. Ellixson, was not permitted to cross-examine plaintiffs’ vocational rehabilitation expert concerning information from the report of appellant’s vocational expert. We gave Mr. Ellixson great leeway on cross-examining plaintiffs’ vocational expert concerning facts which were not then in evidence on his representation that he would call a Ms. Irene Mendelsohn as appellant’s vocational expert witness, and that Ms. Mendelsohn would put these facts in evidence. (Notes of Testimony, 3/26/03, pp. 353-68, 371-76.) Relying on trial counsel’s representations, the court allowed him to cross-examine plaintiffs’ vocational expert on certain facts from Ms. Mendelsohn’s report. In spite of appellant’s counsel’s explicit promise to the court that he would call Ms. Mendelsohn, he never called her. (Id. at pp. 386-
The substantive evidence in the report was inadmissible hearsay without the testimony of the expert. We properly restricted said evidence from coming in as competent evidence, but allowed liberal cross-examination of the witness as to the report itself. Appellant was allowed to refer to the report to the degree required to question the credibility of the testifying expert in relation to her testimony encompassing the report. Plaintiff’s expert did not make misleading statements about the report, as had occurred in the Boucher case. Further, it is clear that appellant was not harmed because the jury
Appellant also alleges that the court committed error and/or abused its discretion in failing to permit counsel for defendant to argue during closing regarding the contents of the medical record/report of Dr. Perkins, the basis for his report and the content of certain radiology records which were available. The presentation of closing speeches is within the discretion of the trial court. Clark v. Philadelphia College of Osteopathic Medicine, 693 A.2d 202 (Pa. Super. 1997). While counsel usually has great latitude in his closing argument, he may not present facts to the jury that are not in evidence and which are prejudicial to the opposing party. Coffee v. Minwax Co., 764 A.2d 616 (Pa. Super. 2000). Again, counsel misrepresents what occurred at trial. (Notes of Testimony, 3/27/03, pp. 457-60.) Counsel made a representation that Dr. Perkins did not review certain records that showed no problem in the SI joint. Counsel was trying to argue something that was not in the record of the case and attempting to draw a negative inference without any basis for it. It is improper to comment on matters not in evidence during closing arguments.
Appellant also argues that the court committed an error of law in failing to charge the jury that it had to consider whether defendant’s negligence was a substantial factor in producing Eric’s injuries. We disagree. We properly applied the law of Pennsylvania in this regard. In
Appellant also argues that the trial court erred in not granting a remittitur. Judicial reduction of a jury reward is appropriate only when the award is plainly excessive and exorbitant. “The question is whether the award of damages falls within the uncertain limits of fair and reasonable compensation or whether the verdict so shocks the sense of justice as to suggest that the jury was influenced by partiality, prejudice, mistake or corruption.” Haines v. Raven Arms, 536 Pa. 452, 455, 640 A.2d 367, 369 (1994). (citation omitted) The record shows that Eric Mietelski was harmed by the negligence of appellant and will have injuries that may affect him for the rest of his life and may preclude him from ever working again. The record also shows that: Eric claimed he had $29,824.68 in past medical expenses; the jury awarded $28,660.87 for these damages. Eric claimed he had past wage losses of $102,766; the jury awarded $84,705 for these damages. Eric claimed he had between $636,960 and
Further, we properly instructed the jury with respect to damages. As we previously stated, it was not error to not give a “substantial factor” charge because it would have been error for the jury to not find a substantial factor where both plaintiffs’ and defendant’s experts agreed that plaintiff suffered some injuries as a result of the accident. When considering the charge as a whole, we instructed the jury that, under our law, a person is not entitled to recover damages just because he or she was injured in an accident. (Notes of Testimony, 3/27/03, p. 491.) The jury was told that the parties did not agree on the amount of harm Eric suffered and it needed to determine such. Id. The court gave the standard instructions on damages and on each of the categories that the jury could consider. The jury was told that plaintiffs must prove their damages with reasonable certainty. (Id. at pp. 505-12.) Appellant objected to the charge on damages, asserting that we gave our instruction without any regard to whether or not they related to the accident of February 3, 2000. (Id. at p. 518.) This is not so. In fact, every question presented on the special verdict slip instructed the jury to award only those damages related to the accident on February 3,2000. We went over that form with the jury. (Id. at pp. 515-18.) After a side-bar, we also gave additional instructions that just because each
Appellant also asserts that she is entitled to a new trial because the verdict was against the weight of the evidence, the damages were against the weight of the evidence and the verdict was the result of passion, prejudice and improper influence. Our review of the record in this case, as evidenced by the discussion above, shows that these issues are without merit.
For the foregoing reasons, we respectfully request that the Superior Court affirm the judgment entered in this matter on July 29, 2003.
[On September 26, 2003, the court amended its opinion by adding a footnote to indicate that where “appellant’s counsel” was referenced in the opinion, the court was referring to trial counsel, Thomas K. Ellixson, Esquire.]
