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HomeMy WebLinkAbout94-0814 Civil WAYNE M. GONDAL, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : CIVIL ACTION - LAW : ROGER L. HOCKENBERRY, : Defendant : NO. 94-0814 CIVIL TERM IN RE: PLAINTIFF'S MOTION FOR A NEW TRIAL LIMITED TO DAMAGES BEFORE SHEELY, P.J., HOFFER and OLER, JJ. ORDER OF COURT AND NOW, this ~%~ day of May, 1995, after careful consideration of Plaintiff's Motion for a New Trial Limited to Damages, and for the reasons stated in the accompanying Opinion, the motion is DENIED. BY THE COURT, Richard A. Sadlock, Esq. 4503 North Front Street Harrisburg, PA 17110 Attorney for Plaintiff Richard H. Wix, Esq. 200 Prince Street Harrisburg, PA 17109-3099 Attorney for Defendant :re WAYNE M. GONDAL, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : CIVIL ACTION - LAW : ROGER L. HOCKENBERRY, : Defendant : NO. 94-0814 CIVIL TERM IN RE: PLAINTIFF'S MOTION FOR A NEW TRIAL LIMITED TO DAMAGES BEFORE SHEELY, P.J., HOFFER and OLER, JJ. OPINION and ORDER OF COURT Oler, J. This is a negligence action arising out of a motor vehicle accident. In the accident, Plaintiff allegedly received personal injuries when his vehicle was rear-ended by Defendant's vehicle. Following a trial, the jury found Defendant to have been negligent but found his negligence not to have been a substantial factor in bringing about Plaintiff's harm.~ For disposition at this time is "Plaintiff's Motion for a New Trial Limited to Damages." The Motion for a New Trial Limited to Damages was based upon the following contention: The jury verdict bears no resemblance to the proven damages, shocks one's sense of justice, ignores obvious and painful injuries and was based on a misapplication of the Court's charge, especially the instruction on causation, and outside influences; therefore, Wayne M. Gondal should be granted a new trial.2 For the reasons stated in this Opinion, the motion must be denied. ~ Verdict slip, September 27, 1994. 2 Plaintiff's Brief in Support of His Motion for a New Trial Limited to Damages, at 5. Under Cumberland County Rule of Court 210-7, issues raised but not briefed are deemed abandoned. NO. 94-0814 CIVIL TERM STATEMENT OF FACTS On Friday, May 8, 1992, a car being driven by Plaintiff was rear-ended by a pick-up truck being driven by Defendant.~ Plaintiff's car was stopped at the time.4 The accident occurred at about 1:50 in the afternoon, in Lower Allen Township, Cumberland County, Pennsylvania, on Creek Road, about 25 feet north of its intersection with Boxwood Lane.~ The roadway was wet.6 Estimates as to the severity of the accident can be characterized as disparate. Descriptions ranged from a "fender- bender" and "very minor"7 to a collision occurring at "about 48, 50 miles an hour."8 Vehicle damage, however, was minor.9 Plaintiff testified that after the accident he felt "light- headed." He stated, "My neck hurt. My back hurt. Everything. Mostly my neck.''~° On May 3, 1993, Plaintiff was examined by Rex A. Herbert, 3 Vol. I, N.T. 11-12, 20, Gondal v. Hockenberry, No. 94-814 (Cumberland County) (hereinafter Vol. __, N.T. __). Vol. I, N.T. 13. Vol. I, N.T. 11-12. Vol. I, N.T. 15. Vol. I, N.T. 19. Vol. I, N.T. 26. Vol. I, N.T. 15. Vol. II, N.T. 29. 2 NO. 94-0814 CIVIL TERM D.O., a board-certified orthopedic surgeon practicing in Harrisburg, Pennsylvania, who diagnosed a herniated disk between the C-5 and C-6 vertebrae~ and recommended surgery.~2 The surgery, in which the disk was removed and replaced with a bone graft held in place with a small metal plate and four screws,TM was performed on May 24, 1994.TM Plaintiff's recovery from this "fusion" surgery was uneventful, according to Dr. Herbert.~5 On the matter of causation, Dr. Herbert testified as follows: Q Doctor, do you have an opinion within a reasonable degree of medical certainty based on Mr. Gondal's history, his fact history that there was no prior problems with his neck, your examination, your review of the MRI films, the myelogram films, the surgery, whether the herniated disk that you described so well for the jury is directly, causally related to his May 8, 1992, motor vehicle accident? A Yes. Q And what is your opinion, sir? A It is my opinion with reasonable medical certainty that Mr. Wayne Gondal sustained a herniation to the disk at C5-6 as a result of the motor vehicle accident that he sustained on May 8th, 1992, when he was driving prisoners back to the prison [where he Plaintiff's Exhibit 4, at 3-4, 12. Plaintiff's Exhibit 4, at 14. Plaintiff's Exhibit 4, at 14. Plaintiff's Exhibit 4, at 18. Plaintiff's Exhibit 4, at 20-21. 3 NO. 94-0814 CIVIL TERM worked]. This opinion is made by considering the history that Mr. Gondal did not have neck problems prior to his accident; that he complained of neck pain following his accident; and that he subsequently had treatment rendered for his neck following the accident that led to diagnostic studies that indicated the disk was herniated.~ On August 11, 1994, Plaintiff was examined by Defendant's expert, Perry A. Eagle, M.D., a board-certified orthopedic surgeon practicing in York, Pennsylvania.~7 Dr. Eagle testified that in his opinion Plaintiff suffered from degenerative arthritis of the spine and that the ruptured disk which occasioned his surgery was unrelated to the May 8, 1992, accident.~8 Q Did you form an opinion as to the cause of the plaintiff needing this operation? A Yes. Q What was your opinion, doctor? A It was my opinion that this patient needed this operation because of a ruptured disk and problems associated with what we call cervical spondylosis which is a fancy name for degenerative arthritis of the spine. Q Did that have anything to do with the automobile accident that he was involved in in May of 19927 Plaintiff's Exhibit 4, at 24-25. Defendant's Exhibit 6, at 3-6. Defendant's Exhibit 6, at 21. 4 NO. 94-0814 CIVIL TERM A No, not in my opinion.~9 In its charge to the jury on the matter of legal causation, the Court made it clear, at Plaintiff's request and to Plaintiff's satisfaction, that the issue was whether Defendant's negligence was a substantial factor in bringing about any harm to the Plaintiff.2° Following deliberations, as noted above, the jury answered the question in the negative. DISCUSSION To the extent that Plaintiff's Motion for a New Trial Limited to Damages should be regarded as a motion for judgment notwithstanding the verdict on the issue of causation, the rule is that "a judgment notwithstanding the verdict may be entered only in a clear case, where after viewing the evidence in the light most favorable to the verdict winner, no two reasonable minds could fail to agree that the verdict was improper." Murray v. Philadelphia Asbestos Corp., 433 Pa. Super. 206, 212, 640 A.2d 446, 449 (1994). To the extent that Plaintiff's motion should be regarded as a motion for a new trial based on the weight of the evidence, the rule is that a "trial judge may not grant a new trial, unless the verdict was so against the weight of the evidence that injustice 'stands forth like a beacon,' or more commonly, where the verdict 'shocks the conscience of the court.'" Reed v. Shu, 419 Pa. Super. ~9 Defendant's Exhibit 6, at 16-17. 20 Vol. II, N.T. 116-17. 5 NO. 94-0814 CIVIL TERM 227, 232, 615 A.2d 109, 111 (1992), citing Bortner v. Gladfelter, 302 Pa. Super. 492, 448 A.2d 1386 (1982). "It is the plaintiff's burden to prove that the harm suffered was due to the conduct of the defendant .... Whether in a particular case that [burden] has been met with respect to the element of causation is normally a question of fact for the jury .... " Little v. York County Earned Income Tax Bureau, 333 Pa. Super. 8, 16, 481 A.2d 1194, 1198 (1984). In exercising its responsibility as factfinder, a jury "is free to believe all, some or none of a witness's testimony." Douglass v. Licciardi Construction Co., Inc., 386 Pa. Super. 292, 298, 562 A.2d 913, 916 (1989). This is true of the testimony of an expert as well as a non-expert. Zearfoss v. Frattaroli, 435 Pa. Super. 565, 646 A.2d 1238 (1994). Even where the testimony of both parties' experts on the issue of causation is similar, a court should be extremely reluctant to withdraw consideration of the issue from the jury. See, e.g., Moriens v. Albert Einstein Hospital, 363 Pa. Super. 557, 526 A.2d 1203 (1987). A jury is not, of course, required to accept a plaintiff's testimony as to pain allegedly resulting from an incident where such a conclusion is dependent upon the witness's credibility. Lupkin v. Sternick, 431 Pa. Super. 300, 636 A.2d 661 (1994). In the present case, it was within the province of the jury to accept the opinion of Defendant's expert as to the lack of a causal NO. 94-0814 CIVIL TERM connection between Plaintiff's herniated disk and the accident in 1992 caused by Defendant's negligence. Similarly, the jury was free to believe all, part or none of the testimony as to more subjective symptoms of Plaintiff allegedly resulting from the accident. Under these circumstances, the Court is unable to conclude that the jury's verdict was one which no reasonable person could believe was proper, or that it represented an injustice "stand[ing] forth like a beacon" and shocking to one's conscience, or that it demonstrated a misapprehension of the law, or that it was the product of outside influences.2~ For these reasons, the following Order will be entered: ORDER OF COURT AND NOW, this /~ day of May, 1995, after careful consideration of Plaintiff's Motion for a New Trial Limited to Damages, and for the reasons stated in the accompanying Opinion, the motion is DENIED. BY THE COURT, J. ~Wesley Oler//Jr-., j. ~/~' 2~ In view of the Court's disposition of Plaintiff's motion, it is unnecessary to rule upon Defendant's contention that the issue of the verdict's inconsistency with the evidence was waived at the time the verdict was returned. See Defendant's Brief in Opposition to Plaintiff's Motion for a New Trial, at 16. It is noted, however, that Plaintiff's counsel did object to the verdict before it was recorded. Vol. II, N.T. 120-22. 7 NO. 94-0814 CIVIL TERM Richard A. Sadlock, Esq. 4503 North Front Street Harrisburg, PA 17110 Attorney for Plaintiff Richard H. Wix, Esq. 200 Prince Street Harrisburg, PA 17109-3099 Attorney for Defendant :rc