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HomeMy WebLinkAbout97-5100 Civil (2)TERRY L. BULKLEY, SR., and VERAELLEN BULKLEY, in their Own right and as Parents and Natural Guardians of TERRY L. BULKLEY, JR., and CALLYROSE BULKLEY, Minors WARD TRUCKING CORPORATION and DAVID H. CARROLL IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 97-5100 CIVIL TERM CIVIL ACTION - LAW IN RE: OPINION RELATING TO ORDER OF JULY 21, 2003 ADDRESSING DEFENDANTS' POST TRIAL MOTIONS BEFORE GUIDO, J. OPINION JULY ,2003 These actions arose out of a motor vehicle accident which occurred in October of 1995 on U.S. Route 15 in Upper Allen Township. Plaintiffs were traveling in two separate vehicles which were stopped in a line of traffic when the accident occurred. Defendant David Carroll was operating a tractor trailer on behalf of his employer Ward Trucking Corporation. He failed to see the stopped traffic in time to avoid a collision. His vehicle rammed into the rear of the station wagon occupied by Plaintiff Veraellen Bulkley and her 6 year old daughter, Callyrose.~ The force of the impact forced the station wagon into a panel truck occupied by Veraellen's husband, Terry Bulkley, Sr. and their 15 year old son, Terry Bulkley, Jr.2 Callyrose was born on September 18, 1989. Terry, Jr. was born on September 1, 1980. NO. 97-5100 CIVIL TERM Since the defendants admitted liability, the trial was limited to the issue of damages. Separate verdict slips were given to the jury in connection with each plaintiff. Furthermore, since the items of damage recoverable by each plaintiff were different, counsel agreed that the verdicts slips should list the various items the jury could consider in making each award.3 After deliberation, the jury returned the following verdicts: Veraellen Bulkley Terry L. Bulkley, Sr. Terry L. Bulkley, Jr. Callyrose Bulkley $455,000 $ 75,000 $ 75,500 $150,000 In addition, Veraellen Bulkley and Terry L. Bulkley, Sr. were awarded $10,000 each for their loss of consortium claims. Defendants filed timely post trial motions seeking a new trial in connection with each plaintiff. They contended that new trials were warranted because 1) the verdicts were excessive, and 2) plaintiffs' counsel made improper remarks in his closing argument. We issued an order on July 21, 2003, granting a new trial in connection with the claims of Terry L. Bulkley, Jr. and Callyrose Bulkley. In all other respects, the ~ Each verdict slip contained the following language: NOTE: THERE IS EVIDENCE THAT THE PLAINTIFF HAS SUSTAINED, OR WILL SUSTAIN, THE FOLLOWING DAMAGES. IF YOU BELIEVE THE EVIDENCE, YOU SHOULD ASSIGN A DOLLAR FIGURE TO EACH ITEM FOR WHICH YOU FIND THE PLAINTIFF HAS SUSTAINED THE BURDEN OF PROVING WAS CAUSED BY THE NEGLIGENT CONDUCT OF DEFENDANTS. YOU SHOULD ADD THESE SUMS TOGETHER AND RETURN YOUR VERDICT IN A SINGLE LUMP SUM. It then went on to list the items of damage to be considered by the jury in reaching its verdict for the plaintiff at issue. For instance, the verdict slip for Veraellen listed the following items of damage to be considered: PAST AND/OR FUTURE MEDICAL EXPENSES PAST AND/OR FUTURE LOST EARNINGS AND EARN1NG CAPACITY PAST AND/OR FUTURE PAIN AND SUFFERING EMBARRASSMENT AND HUMILIATION DISFIGUREMENT LOSS OF ENJOYMENT OF LIFE'S PLEASURES NO. 97-5100 CIVIL TERM defendants' post trial motions were denied. The reasons for that order are set forth in this opinion. Excessiveness of the Verdicts. In Tulewicz v. Southeastern Pennsylvania Transportation Authority, 529 Pa. 584, 606 A.2d 425 (1991) the Pennsylvania Supreme Court stated: The Court is not warranted in setting aside, reducing, or modifying verdicts for personal injuries unless unfairness, mistake, partiality, prejudice, or corruption is shown, or the damages appear to be grossly exorbitant. The verdict must be clearly and immoderately excessive to justify the granting of a new trial. The amount must not only be greater than that which the Court would have awarded, but so excessive as to offend the conscience and judgment of the Court. (emphasis added) 529 Pa. at 586, 606 A.2d at 426, quoting Stack v. Lehigh Foundries, 388 Pa. 1, 23, 130 A.2d 123, 135 (1957). InBey v. Sacks', 789 A.2d 232 (Pa. Super. 2001) the Superior Court provided further guidance: We previously have stated that six factors are to be considered in determining whether a verdict is excessive or exorbitant in light of the evidence at trial: (1) the severity of the injury; (2) whether the injury is manifested by objective physical evidence or whether it is only revealed by the subjective testimony; (3) whether the injury is permanent; (4) whether the plaintiff can continue with his or her employment; (5) the size of out-of-pocket expenses; [and] (6) the amount of compensation demanded in the original complaint. Harding v. ConsofidatedRail Corp., 423 Pa. Super. 208, 225-226, 620 A.2d 1185, 1193 (1993). However, because every case is unique, the trial court should apply only those factors which are relevant to the particular case in question before determining if the verdict is excessive. 3dineo v. Tancini, 349 Pa. Super. 115, 126, 502 A.2d 1300, 1305 (1986), afl'd, 517 Pa. 335, 536 A.2d 1323 (1988). Id. at 242. NO. 97-5100 CIVIL TERM Applying the above law to the cases at bar, we were satisfied that the awards to Veraellen Bulkley and Terry L. Bulkley, Sr. were supported by the evidence and must stand.4 We were equally satisfied that the awards to the children had to be set aside. Neither of the children sustained any serious physical injury in the accident. Terry, Jr. had received a contusion to his left forearm. He was treated and released at the emergency room of the Polyclinic Medical Center. He received one follow up visit with his family doctor upon returning to New York. His total medical expenses were less than $500. Furthermore, according to his own testimony, his physical injuries resolved quickly without residual effects. Callyrose was also treated and released at the emergency room of the Polyclinic Medical Center. She had sustained an abrasion on her right shoulder. Like her brother, she had only one follow up visit with her family doctor and incurred less than $500 in medical expenses. In addition, there was some very brief testimony to the effect that she had exhibited some post-traumatic stress symptoms, in the form of nightmares, several years after the accident. While she did not testify at trial, it was clear that her physical injuries resolved quickly without residual effects. After consultation with counsel, and with their agreement, we instructed the jury as to the items of damage that could be considered for each child. In the case of Terry, Jr., those items included "past medical expenses", "past pain and suffering", and "property damage".5 The jury was limited to considering only "past medical expenses" 4 Since defendants' counsel conceded as much in his oral argument, no further discussion of this issue as it relates to the parents' claims is necessary. s See Verdict Slip for "Terry L. Bulkley, Jr. v. ~Fard Trucking Corporation and David H. Carroll." The property damage was stipulated to be $800. NO. 97-5100 CIVIL TERM and "past pain and suffering" in connection with the claim of Callyrose.6 Notwithstanding the relatively minor nature and limited duration of their physical injuries, the jury awarded the children $75,500 and $150,000 respectively. Not only was each award so excessive as to shock our "conscience and judgment", we were also convinced that both were based upon a "mistake" of law. Tulewicz, supra. Defense counsel filed a motion in limine seeking to preclude any evidence regarding the effect of Veraellen's injuries upon her children. Since Pennsylvania does not recognize a claim for loss of parental consortium, we granted the motion.7 However, at the same time, we ruled that Veraellen could testify regarding the changed family dynamic as part of her claim for "loss of life's pleasures" as well as the "suffering" component of her "pain and suffering" claim. Consequently, plaintiffs presented considerable evidence in that regard. The evidence showed that Veraellen's physical injuries, as well as her emotional inability to accept and deal with them, had a devastating impact upon this family.8 She became so consumed with her own recovery that she could no longer fulfill her role as a mother. In fact, to a large extent, the roles were reversed, with her young children, especially Callyrose, being required to care for her. The evidence regarding the effect of her injuries upon the children was both emotional and dramatic. While such evidence could properly be considered by the jury in making its award to Veraellen, it was not relevant to the claims of the children. 6 See Verdict Slip for "Callyrose L. Bulkley v. Ward Trucking Corporation and David H. Carroll." 7 See Wapner v. Somers, 428 Pa. Super. 187, 630 A.2d 885 (1993). 8 The devastation was compounded by the fact that Terry, Sr., had previously sustained a disabling back injury which had been aggravated in this accident. NO. 97-5100 CIVIL TERM The evidence of Veraellen's suffering resulted in an "unfair" award to her children. It would have been difficult for the jury to disregard the huge impact their mother's injuries had upon the lives of these children, even if we had specifically instructed it to do so. The exorbitant verdicts, especially in relation to the minimal injuries, convinced us that it considered that impact as part of the "suffering" component of each child' s claim. We could conceive of no other rational explanation for the size of the verdicts. Whatever the reason for the awards, we were satisfied that the verdict rendered in favor of each child was grossly out of proportion to the injuries suffered. Therefore, the defendants' post trial motions in connection with the children were granted. Improper Remarks of Plaintiffs' Counsel. Defendants contended that they should be granted a new trial in connection with Veraellen's claim because of certain improper remarks made by her counsel during his closing argument. Specifically, they argued that the following statement was not supported by the evidence: Now, if you just assume that she would be relegated to only the $20,025.00 of net income each year into the future, she has an expectancy now, because of the basic assumption that one will work to age 65, of another 20 years to do that, and multiplying that by just the income that she received in 1995 that would amount to another $400,500.00.9 We agreed with counsel that the argument assumed facts not in evidence. Therefore, we sustained his objection and specifically advised the jury that there had been no evidence 9 See Transcript of Closing Arguments, p. 8. NO. 97-5100 CIVIL TERM with regard to Veraellen's work expectancy, l0 We did not, however, feel that the argument required a mistrial. Therefore, we denied the defense counsel's request at trial. Nor did we feel that it was so prejudicial as to require the grant of a new trial. ~ Therefore, we denied the defendants' post trial motion. For the reasons set forth above, we entered the following order: ORDER OF COURT AND NOW, this 21sT day of JULY, 2003, the Defendants' Post Trial Motions are GRANTED in part and DENIED in part. The verdicts entered on behalf of Terry Bulkley, Jr. and Callyrose Bulkley are hereby set aside and a new trial limited to damages is GRANTED in connection with the claims of those two Plaintiffs. In all other respects the Post Trial Motions are DENIED. By the Court, /s/Edward E. Guido Edward E. Guido, J. DATE Edward E. Guido, J. 10 We note, however, that the record contained evidence as to Veraellen's age being 45 at the time of trial, as well a tax return from 1995 showing her income to have been $20,000 in that year. 11 In retrospect, we are not entirely sure that the argument was inappropriate. This was certainly not a well to do family before the accident. Terry Bulkley, Sr. had been permanently disabled due to a prior back condition. Veraellen had supported the family, at least in the time frame leading up to the accident. Furthermore, it is common knowledge that Americans can receive full social security benefits at age 65. Therefore, one could conclude that counsel's argument to the effect that Veraellen would have worked until age 65 was based upon the evidence and the reasonable inferences to be drawn therefrom. NO. 97-5100 CIVIL TERM B.G. Stephenson, Esquire 4157 Chain Bridge Road Fairfax, Virginia 22030 C. Kent Price, Esquire 305 North Front Street P.O. Box 999 Harrisburg, Pa. 17108