New Trials Granted From Defense Verdicts Where Uncontested Evidence Negligence Caused Some Injury - DD 12/03

Defense Digest

New Trials Granted From Defense Verdicts Where  Uncontested Evidence Negligence Caused Some Injury

In two recent cases from the Superior Court of Pennsylvania, new trials were granted from defense verdicts where the evidence was uncontested that the negligence caused some injury to the plaintiffs.  In Campagna v. Rogan, 2003 Pa. Super. 257 (July 10, 2003),  the appellate court granted a new trial and concluded that the jury was not permitted to find, based on all of the experts' testimony that the plaintiff suffered some injury, that the defendant's negligence was not a substantial factor in causing the plaintiff some injury.    In Lombardo v. Deleon, 2003 Pa. Super. 231 (June 17, 2003), the appellate court held that the plaintiffs were entitled to a new trial on the uncontested injuries, despite the jury verdict of zero damages.  These cases make it more difficult to uphold a defense verdict on causation or zero damages where there is uncontested evidence that the negligence caused at least some injury to the plaintiff.

In Campagna, the plaintiff was injured when the defendant's car slid on snow into his lane of travel.  The plaintiff complained of chronic neck pain and headaches, but did not see a doctor until almost a month after the accident.  His doctors testified that his neck pain, cervical herniated discs, and aggravation of preexisting migraine headaches were caused by the accident.  The injuries limited his ability to be a soccer coach.  The defense IME doctor refuted much of the plaintiff's claimed injuries.  He testified that the disc injury was degenerative in nature, that the plaintiff had preexisting neck and head pain, and that there was no objective evidence, when he saw him, to support the plaintiff's complaints of pain.  However, he did concede that the plaintiff had a diagnosis of whiplash, or a myofascial, or a sprain/strain type of injury to his neck area from the accident. 

After hearing the evidence, the jury in Campagna returned a verdict finding that the defendant was negligent, but that such negligence was not a substantial factor in causing the plaintiff's injuries.  The trial court refused to direct a verdict for the plaintiff on causation, and denied post trial motions.

On appeal, the Pennsylvania Superior Court reversed and remanded the case for a new trial on the issue of damages.  The court concluded that based on all of the experts' testimony that the plaintiff suffered some injury, the jury should have answered "yes" to the substantial factor question and proceeded to determine whether the injury was compensable.  The court also concluded that the trial court erred in failing to grant the plaintiff's request for a directed verdict on the issue of causation.  The court did rule that the new trial is limited to the uncontested injuries, i.e., whiplash/cervical sprain or strain.  The plaintiff did not get a "second bite at the apple" for the major injuries, such as the herniated disc, which the jury rejected.  Further, the court left open the question for the jury on remand to conclude that the injury was so minor as to be non-compensable as damages, sometimes called a zero damage award.

The Campagna opinion suggests that, had the jury found that the accident caused some injury to the plaintiff, but declined to award damages because the jury concluded the injury was so minor as to be non-compensable, the verdict would not be disturbed.  However, the Pennsylvania Superior Court, in an opinion released less than a month earlier, affirmed in part the trial court's granting of a new trial from such a zero damage award.  In Lombardo, the court held that the plaintiffs were entitled to a new trial on the uncontested injuries - that is the soft injuries- only.

The facts in Lombardo do not appear significantly different than Campagna to explain the justification for a new trial on the zero damage award.  In Lombardo, the plaintiffs were a father and a son who were involved in a motor vehicle accident.  Both were taken to the emergency room and then followed up with an orthopedist, who referred them to a chiropractor.  The father complained of a stiff neck, headache and pain in his back.  He limited his work activities.  The son was not able to perform his pre-accident work duties as an executive chef, but continued to work in restaurants primarily in supervisory positions.  The defense stipulated to negligence for the rear end collision, but disputed the herniated disc and other injuries by defense experts.

The jury in Lombardo found that the injuries sustained were substantially caused by the negligence of the defendant, but awarded zero damages, finding the injuries were not compensable.  The issue on appeal was whether the jury verdict of zero damages should have been upheld by the trial court.  The trial court ordered a new trial and found that its conscience was shocked by the award of zero damages. 

The court in Lombardo reasoned that compensable pain is an issue of credibility, and juries must believe that a plaintiff suffered pain before they compensate for that pain.  A jury is not required to award money if the injuries are insignificant, which means the jury could conclude that a plaintiff's injuries did not result in compensable pain and suffering.  The jury is allowed to conclude that a plaintiff's discomfort was the sort of "transient rub of life" for which compensation is not warranted.   The court concluded in Lombardo that the nature of the plaintiffs' injuries could not be properly characterized as the sort of "transient rub of life" for which no compensation is awardable. 

In Lombardo, the Pennsylvania Superior Court affirmed the trial court's granting of a new trial on behalf of both plaintiffs, finding there was not an abuse of discretion.  However, the appellate court reversed the trial court to the extent that it granted a new trial encompassing all claimed damages and limited the new trial on damages to the uncontested soft tissue injuries only. 

In conclusion, where there is uncontested evidence that the defendant's negligence caused some injury to the plaintiff, it will be very difficult to sustain a jury verdict finding of no causation and somewhat difficult to sustain a jury verdict of zero damages.  To contest causation, there needs to be an effective cross-examination of the plaintiff's experts and/or a strong IME which does not concede any injury caused by the accident.  A jury is still free to find zero damages under limited circumstances, where the injuries are so minor as to be non-compensable as damages.

*Brad is a shareholder in the Philadelphia, PA, and Tampa, FL, offices.  He can be reached at (215) 575-2759 or bgoewert@mdwcg.com.