This opinion arises from the partial grant of the defendant’s post-trial motions in which the jury’s verdict has been remitted or, at the option of the plaintiff, a new trial has been ordered on damages in this products liability case because the verdict of $20,000,000 was excessive. The jury’s award has been remitted to the sum of $3,750,000, an amount that the trial court concludes is the highest possible and reasonable award a jury could render under the circumstances of this case. Delay damages in the amount of $271,104 are added to the remittitur. In the event that the plaintiff accepts the remittitur, then judgment is entered in favor of plaintiff and against defendant in the amount of $4,021,104. If not, a new trial is granted as to damages. Defendant’s post-trial motions as to liability have been denied.
Suit was brought by the plaintiff against the manufacturer of a tumblast machine for injuries sustained arising from its use. Plaintiff, who had been employed with Cardone Industries for five years, was injured while operating this tumblast machine on November 29,2001 at one of the company’s Philadelphia plants. Cardone Industries is engaged in, among other things, the remanufacture of auto parts. A tumblast machine is used to clean rust, dirt and other debris from auto parts. These materials are placed into a basket or dumpster, which constitute the loader part of the machine, by a fork lift operator. The operator of the machine, by means of a control panel, operates the dumpster. By pressing the button on
Although the defendant seeking judgment n.o.v. in post-trial motions argues that there was insufficient evidence to prove defect, this position is clearly erroneous. The plaintiff presented an engineering and safety expert, Craig D. Clauser, who opined the machine was defective in two respects. See N.T., 12/13/ 05 at 64. Primarily, it lacked a barrier or guard between the control panel and the area where the fork lift operated to dump the material into the machine. If such a barrier were in place, he reasoned, the accident would not have occurred. As to the utility of constructing a barrier, evidence was presented that Cardone Industries had readily erected barriers on similar machines used in the plant in question. Mr. Clauser also stated that the control panel could have been moved to the front of the machine away from the dumpster,
Defendant next argues that the accident did not arise out of the intended use of the machine; consequently, the tumblast was not defective and judgment n.o.v. should be granted. The defense maintains that there was no evidence as to how the forklift, which struck plaintiff, was linked to the intended use of the machine. To the contrary, there was more than sufficient evidence presented for the jury to conclude that the accident occurred while plaintiff was operating the machine with her right hand on the control panel, which was in turn moving the dumpster. As she was engaged in this procedure, a fellow employee operating the forklift crushed her right arm against the panel with the forklift. The jury also had a right to conclude that this unfortunate event would not have happened if the machine had contained a guard. Defendant’s assertion that since plaintiff was struck by the forklift, it had nothing to do with the operation of the tumblast machine is erroneous. The issue as to causation was clearly for the jury. See Clark v. Bil-Jax Inc., 763 A.2d 920 (Pa. Super. 2000), appeal denied, 566 Pa. 656, 782 A.2d 541 (2001). See court’s charge, N.T., 12/15/05 at 7-9 and 47-49.
Defendant argued before the jury that the cause of the accident was the operation of the forklift, not the defect of the machine. Counsel now makes the argument be
The defense also seeks a new trial because of two separate statements made by plaintiff’s counsel in his closing. At one point in his argument to the jury, he asked why the defendant did not sue plaintiff’s employer, Cardone Industries. SeeN.T, 12/15/05 at 20-21. Defense counsel immediately objected and his objection was sustained. In addition, the court gave curative instructions to the jury to disregard that argument and to not use it as a factor in their determination of the case. See N.T., 12/ 15/05 at 21-22.
The defense also maintains that in another part of his closing, plaintiff’s counsel spoke about sending a message. Id. Plaintiff’s counsel finished his closing by stating that the jury should send a message to defendant by rendering a verdict in favor of plaintiff. Id. At side-bar, after plaintiff’s counsel finished his argument, defense counsel made a motion for mistrial, which was denied. The court stated to counsel that the elements of damages would be laid out to the jury in the charge. See N.T. 12/ 15/05 at 23-24. In fact, the court did as it promised. See N.T., 12/15/05 at 50-51. In its charge, the jury was admonished that damages must be fair and reasonable, not punitive, and limited to $86,000 in medical bills/past lost wages, and $7,500 for a future operation to correct the scar. Id.
The defendant maintains that these statements collectively, made by plaintiff’s counsel, lead to the excessive verdict of $20,000,000. Therefore, the defense argues, a new trial should be granted not only as to damages, but to liability as well. It is asserted that the conduct of plaintiff’s attorney in his closing was so egregious that it prejudiced the jury in its determination of both liability
After weighing and considering the evidence presented, however, the court is constrained to either remit the award or grant a new trial on damages, at plaintiff’s option, because the verdict of $20,000,000 for the damages the plaintiff sustained was excessive and not supported by the record. See Doe v. Raezer, 444 Pa. Super. 334, 340, 664 A.2d 102, 105 (1995), appeal denied, 544 Pa. 630, 675 A.2d 1248 (1996). As described by plaintiff’s treating physician and orthopedic surgeon, James S. Raphael M.D., in his videotaped deposition, plaintiff suffered an acute compartment syndrome of her right hand and forearm. This syndrome arose from a profound crush injury to the dorsal and volar compartments of the forearm as well as her carpal tunnel. As a result of the crush injury, the muscle in her forearm was pulled out, or avulsed. Shortly after the accident, she was taken to the emergency room at Albert Einstein Medical Center. Dr. Raphael, who was the head of hand surgery at Einstein, performed a carpal tunnel release to decompress the pressure in the arm and debrided the wound of all non-viable tissue, including muscle. This procedure is called a fasciotomy. On December 3,2001, Dr. Raphael performed further surgery to debride the dead or necrotic tissue of the skin and performed a skin graft, taking tis
Remittitur is justified only under limited instances where the verdict is plainly excessive, exorbitant and beyond what the evidence warrants. Smalls v. Pittsburgh-Corning Corp., 843 A.2d 410, 414 (Pa. Super. 2004). The criteria laid out in Smalls, when applied to the facts of this case, compel remittitur. The elements are: (1) weighing the severity of the injury; (2) whether the injury is demonstrated by objective physical or subjective evidence; (3) whether the injury is permanent; (4) plaintiff’s ability to continue employment; (5) disparity between the amount of out-of-pocket expenses and the amount of the verdict; and (6) the amount of damages requested in plaintiff’s complaint, citing Stoughton v. Kinzey, 299 Pa. Super. 499, 503, 445 A.2d 1240, 1242 (1982). It cannot be denied that the evidence presented in this case clearly demonstrates that plaintiff, at only 27
The disparity between out-of-pocket expenses and the amount of the verdict was immense. The special damages presented to the jury were merely for past loss of wages and medical bills, which totaled $86,000 (the extent of the workers’ compensation lien). The only assertion for future medical expenses arose from Dr. Raphael’s opinion that the plaintiff would have to undergo a future scar revision surgery at a cost of approximately $7,500. The court specifically charged the jury that they were limited as far as out-of-pocket expenses to the $86,000
The court, in its order, has given plaintiff the right to accept the remitted sum of $3,750,000 (plus delay damages calculated on the remitted sum) or be granted a new trial on damages. After review of the evidence of dam
Consequently, defendant’s post-trial motions as to liability are denied, but the verdict is remitted to $3,750,000, plus delay damages in the amount of $271,104,
And now, March 31, 2006, the post-trial motions of the defendant are granted in part and denied in part. Defendant’s post-trial motion pertaining to liability is denied. Defendant’s post-trial motion to remit damages is granted with the option by the plaintiff to either accept remittitur or be given a new trial. The jury’s verdict of $20,000,000 is remitted to the sum of $3,750,000 because the damage award was excessive. The verdict is remitted to $3,750,000, an amount equal to what could constitute reasonable compensation for the injuries suffered by the plaintiff under the particular factual circumstances of this case. Delay damages are calculated on this sum in the amount of $271,104.
If the plaintiff declines to accept the award as remitted, then a new trial is ordered, limited to damages only. If the remittitur is accepted by plaintiff, then judgment is entered in the sum of $4,021,104 (including delay damages) in favor of plaintiff, Guillermina Leyva, and against defendant, International Surface Preparation Corp. d/b/a Wheelabrator Corp.
. The delay damage calculation was based on the time periods and interest contained in plaintiff’s amended petition for delay damages. The time period for the commencement of delay damages was October 1,2004, one year after service of the writ of summons. Defendant argued in its reply petition that the starting date should have been April 1, 2005; one year after plaintiff’s amended complaint was filed. The court disagrees. Pa.R.C.P. 238(a)(2) clearly provides that the time period begins to run from one year of the date the original process was served. Defendant also maintains that plaintiff’s counsel requested a continuance due to a vacation when the case was called for trial in October 2005. Consequently, defendant maintains that the calculations should have ended on October 1, 2005 instead of the date of the verdict on December 15, 2005. Since the docket entries showed no trial listing of this case in October 2005, delay damages were computed to the verdict date as maintained in plaintiff’s petition.
