J-A27035-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KAREN COWHER, ADMINISTRATRIX 

OF THE ESTATE OF JAMES L. 

COWHER, II, DECEASED

v.

SOBHAN KODALI, M.D., ST. LUKE'S 

UNIVERSITY HEALTH NETWORK AND 

ST. LUKE'S CARDIOLOGY 

ASSOCIATES 

Appellants

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1111 EDA 2020

Appeal from the Judgment Entered April 7, 2020

In the Court of Common Pleas of Lehigh County Civil Division at No(s): 

No. 2018-C-0264

BEFORE: STABILE, J., NICHOLS, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED: FEBRUARY 8, 2021

Appellants Sobhan Kodali, M.D., St. Luke's University Health Network 

and St. Luke’s Cardiology Associates (collectively, Defendants) appeal from a 

judgment entered on a jury verdict in favor of the plaintiff, Karen Cowher, 

Administratrix of the Estate of James L. Cowher, II, Deceased (Plaintiff) in a 

wrongful death and survival medical malpractice action. For the reasons set 

forth below, we affirm the trial court’s judgment as to liability and its damages 

judgment on Plaintiff’s wrongful death claim, but vacate the damages 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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judgment on Plaintiff’s survival claim and remand for a new trial on damages 

with respect to the survival claim. 

This action arose out of the death of James L. Cowher, II (Decedent) 

from cardiac arrest at the age of 48. In September 2015, Decedent had an 

episode of chest pain and underwent a stress echocardiogram test that was 

normal. Joint Ex. 1 at 1158, 1850; N.T. Trial, 12/4/19, at 148-49; N.T. Trial, 

12/5/19, at 236-55. On July 11, 2016, Decedent saw his primary care 

physician for episodes of chest pain that were becoming more frequent and 

severe and that radiated from the chest to his arms and were accompanied 

by some shortness of breath, nausea, and sweating. Joint Ex. 1 at 1152; N.T. 

Trial, 12/6/19 P.M., at 15-21, 33-34. Decedent’s primary care physician 

performed an electrocardiogram and had a test done for troponin, a chemical 

marker of heart damage, both of which were normal. N.T. Trial, 12/6/19 P.M., 

at 13, 22-23. 

Decedent’s primary care physician arranged for Decedent to be seen by 

an affiliated cardiology group, and defendant Dr. Sobhan Kodali, a cardiologist 

in that group, saw Decedent on July 13, 2016. Joint Ex. 2 at 1-2; N.T. Trial, 

12/6/19 P.M., at 23, 25, 39; N.T. Trial, 12/5/19, at 258; Joint Ex. 1 at 1375. 

Decedent reported to Dr. Kodali that for the last six months he had been 

experiencing chest pain that radiated to both arms, often with shortness of 

breath, dizziness, and tingling in his fingers. Joint Ex. 1 at 1375-76; N.T. 

Trial, 12/5/19, at 264-67. Decedent also reported to Dr. Kodali that he was 
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regularly running for exercise without symptoms. Joint Ex. 1 at 1375-76; N.T. 

Trial, 12/5/19, at 269; N.T. Trial, 12/6/19 A.M., at 18-20. Dr. Kodali was 

aware that Decedent had a family history of premature coronary artery 

disease, had high cholesterol, and was overweight. Joint Ex. 1 at 1375-76; 

N.T. Trial, 12/5/19, at 264-65; N.T. Trial, 12/6/19 A.M., at 49. Dr. Kodali did 

not order or perform any tests other than an additional electrocardiogram, 

which was normal, and a lipid test, and concluded that Decedent’s chest pain 

was “not cardiac,” stating that “[n]o further evaluation is necessary at this 

time” and that “[o]verall the clinical picture is suggestive of anxiety/panic 

attacks.” Joint Ex. 1 at 1375, 1378; N.T. Trial, 12/6/19 A.M., at 27-28, 95-

96.

On August 23, 2016, Decedent suffered cardiac arrest while jogging and 

died. N.T. Trial, 12/3/19, at 73-78; Joint Ex. 1 at 1531; Plaintiff’s Ex. 24, 

Death Certificate. The pathologist who performed an autopsy on Decedent 

found that Decedent had blockages of 80% and over 90% in the left main and 

left anterior descending coronary arteries and listed the cause of Decedent’s 

death as “[f]avor cardiac arrhythmia secondary to ASCVD [arteriosclerotic 

cardiovascular disease].” Joint Ex. 1 at 1657, 1659, Autopsy Report at 3, 5. 

The coroner reported the cause of Decedent’s death as acute myocardial 

infarction due to severe coronary artery disease. Plaintiff’s Ex. 24, Death 

Certificate. 
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On January 31, 2018, Plaintiff, Decedent’s widow, brought this medical 

malpractice wrongful death and survival against Defendants. In her 

complaint, Plaintiff averred that Dr. Kodali was negligent in failing to recognize 

that Decedent was suffering from unstable angina and in failing to diagnose 

Decedent’s severe coronary artery disease. Complaint ¶¶15-22, 25, 31; 

Amended Complaint ¶¶15-22, 25, 31. Plaintiff averred that St. Luke’s 

Cardiology Associates (Associates), Dr. Kodali’s practice group, and St. Luke’s 

University Health Network (Health Network), the health network that owns 

Associates, were liable for Dr. Kodali’s negligence. Complaint ¶¶8-12; 

Amended Complaint ¶¶8-12. Plaintiff averred in her complaint that Dr. 

Kodali’s failure to diagnose Decedent caused Decedent’s death and that 

Decedent died from an acute myocardial infarction. Complaint ¶¶23-24, 27-

28, 34; Amended Complaint ¶¶23-24, 27-28, 34. 

Plaintiff’s cardiology expert opined in his report, dated March 28, 2019, 

that Dr. Kodali was negligent in failing to diagnose Decedent as suffering from 

unstable angina and in failing to recommend diagnostic testing, including 

cardiac catheterization, that would have shown Decedent’s severe coronary 

artery disease, which could have been successfully treated by coronary bypass 

surgery. Hayek 3/28/18 Report at 5-9. Plaintiff’s cardiology expert also 

opined in that report that Decedent died from cardiac arrhythmia caused by 

severe left main and left anterior descending coronary artery disease and 

briefly stated that Decedent experienced conscious pain and suffering before 
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his death. Id. at 8-9. On October 28, 2019, Defendants filed motions in 

limine to preclude Plaintiff’s cardiology expert from testifying that Decedent 

died of a cause other than acute myocardial infarction and to preclude him 

from testifying that Decedent experienced conscious pain and suffering. On 

November 27, 2019, the trial court denied both of these motions.

The case was tried to a jury from December 3, 2019 to December 9, 

2019. Seven witnesses testified at trial: a neighbor who was present when 

Decedent’s fatal event occurred, Plaintiff’s cardiology expert, Plaintiff’s 

economic expert, Plaintiff, Defendants’ cardiology expert, Dr. Kodali, and

Decedent’s primary care physician. 

Plaintiff’s cardiology expert testified at trial that Decedent was suffering 

from unstable angina due to severe coronary artery blockages when he saw 

Dr. Kodali and that Decedent died from a cardiac arrhythmia caused by 

insufficient blood supply to the heart as a result of those coronary artery 

blockages. N.T. Trial, 12/3/19, at 152, 156-58, 166, 172-77, 186-89, 220. 

Plaintiff’s cardiology expert opined that, given the chest pain symptoms that 

Decedent reported, Dr. Kodali breached the standard of care in failing to 

diagnose Decedent’s unstable angina and in failing to order cardiac 

catheterization, which would have revealed the blockages and resulted in 

bypass surgery, and opined that Decedent’s untreated coronary artery disease 

caused his death. Id. at 143, 162-64, 169-71, 177, 190-202, 211-13, 215-
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20. He also opined that Decedent experienced conscious pain and suffering 

at the time of his fatal cardiac event. Id. at 221. 

Plaintiff’s economic expert opined that the economic loss from 

Decedent’s death, including all earnings, fringe benefits and value of the loss 

of his household services, totaled $1,070,145 to $2,700,498, depending on 

assumptions concerning age of retirement, salary increases, and economic 

conditions. N.T. Trial, 12/4/19, at 28, 48-60. Defendants stipulated that 

Associates and Health Network were vicariously liable for Dr. Kodali’s conduct. 

Id. at 9-14. 

Defendants’ cardiology expert opined that Dr. Kodali did not breach the 

standard of care in concluding that Decedent’s chest pain was non-cardiac, 

given the lack of correlation between the pain and his physical activity. N.T. 

Trial, 12/5/19, at 34, 39-44, 49-51, 56-59, 66, 81-83, 178-83. Defendants’ 

cardiology expert further opined that it could not be concluded that Decedent’s 

coronary artery disease caused his death because no damage to the heart 

muscle was found on autopsy. Id. at 71-81, 177-78, 183, 186-87. 

On December 9, 2019, the jury returned a verdict in favor of Plaintiff 

and against Defendants awarding Plaintiff $2,475,000 in wrongful death 

damages and $3,833,000 in damages on the survival claim. Defendants 

timely filed post-trial motions seeking a new trial, or alternatively a new trial 

on damages or a remittitur, and Plaintiff moved to add delay damages to the 

verdict. On April 7, 2020, the trial court denied Defendants’ post-trial 
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motions, granted Plaintiff’s delay damages motion, and entered judgment in 

favor of Plaintiff and against Defendants in the amount of $6,631,642.70. This 

timely appeal followed. 

Defendants present the following issues for review:

1. Whether the trial court erred and abused its discretion in failing 

to vacate the verdict where Plaintiff failed to prove liability under 

her new, eleventh-hour cause of death theory by presenting 

expert testimony identifying a specific standard of care for 

treatment of cardiac arrythmia (as opposed to other coronary 

conditions), which Defendants breached and thus caused 

Plaintiff's harm?

2. Whether the trial court erred and/or abused its discretion in 

permitting Plaintiff's expert to testify to his assumptions regarding 

the purported pain and suffering decedent experienced?

3. Whether the trial court erred and abused its discretion in failing 

to vacate the Survival Act award where the record is devoid of 

evidence that decedent was conscious, able to feel pain or indeed 

felt pain immediately prior to death and, thus, any award for pain 

and suffering is against the weight of the evidence?

4. Whether the trial court erred and/or abused its discretion in 

denying Defendants' requests for a new trial on damages and/or 

remittitur, where the jury’s Survival Act verdict award of $377,000 

per minute (at best) for 2-3 minutes of pain and suffering is 

grossly excessive, unmoored from the record, and against the 

weight of the evidence?

Appellants’ Brief at 5-6 (suggested answers omitted).

In their first issue, Defendants argue that the verdict is against the 

weight of the evidence because, as a result of the difference between a 

myocardial infarction, which is a heart attack, and an arrhythmia as the cause 

of death, Plaintiff allegedly did not establish a breach of the standard of care 
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or causation.1 This Court’s review of a claim that a verdict was against the 

weight of the evidence is limited to determining whether the trial court abused 

its discretion in denying a new trial. Brown v. Halpern, 202 A.3d 687, 703

(Pa. Super. 2019); Corvin v. Tihansky, 184 A.3d 986, 992 (Pa. Super. 

2018). A party is not entitled to a new trial on weight of the evidence grounds 

where the evidence presented was conflicting and the fact-finder could have 

decided in favor of either party. Brown, 202 A.3d at 703; Corvin, 184 A.3d 

at 992-93.

Defendants’ contention that Plaintiff failed to prove breach of the 

standard of care and causation is without merit. Contrary to Defendants’ 

assertions, the negligence at issue in this case was failure to diagnose and 

treat Decedent’s severe coronary artery disease, not the diagnosis or 

treatment of myocardial infarction or cardiac arrhythmia. Complaint ¶¶15-

22, 31; Amended Complaint ¶¶15-22, 31; N.T. Trial, 12/3/19, at 162-64, 169-

____________________________________________

1 This would normally be a sufficiency of the evidence argument for judgment 

notwithstanding the verdict (JNOV). Defendants, however, did not move for 

a nonsuit or directed verdict on the ground that Plaintiff failed to prove 

negligence or causation. N.T. Trial, 12/4/19, at 177-79; N.T. Trial, 12/6/19 

P.M., at 45-54. The only such motion that Defendants made was a motion for 

nonsuit on any direct liability claims against Associates and Health Network 

and that motion was granted, limiting Plaintiff’s claims against those 

Defendants to vicarious liability for Dr. Kodali’s conduct. N.T. Trial, 12/4/19, 

at 178-80. Defendants are therefore barred by waiver from seeking JNOV and 

the only relief that they may seek on this basis is a new trial on weight of the 

evidence grounds. Corvin v. Tihansky, 184 A.3d 986, 990-91 (Pa. Super. 

2018); Haan v. Wells, 103 A.3d 60, 68 (Pa. Super. 2014).
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72, 174-76, 186-202, 211-13, 215-20. The absence of evidence concerning 

the standard of care for diagnosis and treatment of arrhythmias is therefore 

irrelevant to whether Plaintiff satisfied her burden of proof.2

At trial, Plaintiff’s cardiology expert testified that Dr. Kodali breached 

the standard of care for cardiologists in the diagnosis and treatment of 

patients who report the symptoms that Decedent reported by failing to 

diagnose Decedent’s severe coronary artery disease, and testified that 

Decedent’s untreated severe coronary artery disease caused him to suffer a 

fatal cardiac arrhythmia and die. N.T. Trial, 12/3/19, at 143, 162-64, 169-

77, 186-202, 211-13, 215-20. With respect to whether Dr. Kodali breached 

the standard of care, Plaintiff’s cardiology expert explained:

Q. Let’s talk about the definition of acute coronary syndrome. How 

does it commonly present?

A. So the most common presentation of acute coronary syndrome 

is substernal, chest discomfort, often radiating to the left arm or 

arms with recent onset with an increase in frequency of severity 

of symptoms. It can occur at rest or with exertion and is often 

accompanied by other associated symptoms such as nausea, 

sweating, dizziness and shortness of breath. So that’s your classic, 

out of the textbook presentation of unstable angina, which is part 

of an acute coronary syndrome.

* * *

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2

In the trial court, Defendants also argued that the averments in the 

complaint that Decedent died of a myocardial infarction constituted a binding 

judicial admission that barred Plaintiff from introducing evidence at trial that 

he died from an arrhythmia. Defendants, however, do not argue that issue in 

this appeal. 
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Q. And what is supposed to happen under the standard of care if 

a patient presents to a cardiologist with signs and symptoms of 

acute coronary syndrome?

A. I either -- you know, if they’re having discomfort, you know 

right there they’re going straight to the hospital. And I’m going to 

check enzymes and an EKG. But catheterization. You need to 

define what’s blocked because you’ve already got a history from 

the patient. You already have your risk factor profile of the patient. 

So you already know this, you know, is or is not an individual 

who’s likely going to develop or already have heart disease. So 

you're going to treat a 20-year-old with no medical problems 

differently than a 48-year-old with high cholesterol and a family 

history, is a little bit overweight. So when you’ve got the risk 

factors and you’re at the right age and the gender and then you’ve 

got the story, you need a cath because, you know, the question is 

no longer about what is the problem. I think the problem is 

virtually certain. The question only comes down to where are the 

blockages -- I know they’re severe because your symptoms of 

acute coronary syndrome imply that you have a severe obstructed 

and unstable plaque? Is which arteries are blocked, how severely 

and basically, are you fixable with medications alone, stents or 

bypass surgery. And the only way you’re going to find that out is 

to do a catheterization ....

Id. at 161-64. 

With respect to the cause of Decedent’s death, Plaintiff’s cardiology 

expert explained:

Q. ...[W]hat is your opinion with respect to the cause of his death?

A. Severe coronary artery disease involving the left main and the 

left anterior descending causing insufficient coronary flow and 

ventricular tachycardia fibrillation cardiac arrest which are two 

arrhythmias -- can't tell which one -- but that he would have been 

shocked by the paramedics for.

Q. How does severe coronary artery disease cause an arrythmia

that can lead to death?

A. If you’re not getting adequate blood supply to your heart 

muscle, one of the things that can happen, unfortunately, besides 
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a heart attack, is what we call sudden cardiac death or cardiac 

arrest, is that when your heart is being starved of oxygen, your 

heart can, what we call, fibrillate. All of us now are in a normal 

heart rhythm, where it’s beating in a regular fashion, and that’s 

an organized rhythm and that allows blood to be pumped to create 

your blood pressure. Ventricular fibrillation is a completely 

disorganized arrythmia or ventricular tachycardia where the 

ventricle or main pumping chamber goes so fast and erratic when 

it’s beating that it cannot push any blood out to the body. So it is 

an arrythmia that is incompatible with life. It’s incompatible with 

a pulse or generally respirations. It causes a cardiac arrest and it 

looks -- when you see it, it looks like a heart that’s wriggling like 

a bag of worms. It’s not doing anything purposeful. And that’s 

what happened to Mr. Cowher.

N.T. Trial, 12/3/19, at 172-73.

These opinions were consistent with the cause of action that Plaintiff 

alleged in the complaint. Although the complaint averred that the fatal cardiac 

event was a myocardial infarction, the complaint, like the expert’s testimony, 

asserted that Dr. Kodali was negligent in failing to diagnose Decedent’s severe 

coronary artery disease. See Complaint ¶¶15-22, 31; Amended Complaint 

¶¶15-22, 31. Indeed, the complaint referred to the risk of myocardial 

infarction “and/or cardiac arrest” as the reason that further cardiac evaluation 

was required. Complaint ¶25; Amended Complaint ¶25. 

Neither Pomroy v. Hospital of University of Pennsylvania, 105 A.3d 

740 (Pa. Super. 2014) nor Maurer v. Trustees of University of 

Pennsylvania, 614 A.2d 754 (Pa. Super. 1992) (en banc), relied on by 

Defendants, support their argument that Plaintiff failed to prove breach of the 

standard of care and causation. In Pomroy, there was no proof of causation 

because the evidence showed that the decedent would have rejected the 
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treatment that the plaintiff claimed that the defendant physician should have 

recommended and no proof of breach of the standard of care because the 

plaintiff’s expert’s opinion required the physician to refuse to provide medically 

necessary treatment. 105 A.3d at 745-48. In Maurer, the plaintiff’s expert 

repeatedly equivocated about what constituted the standard of care. 614 A.2d 

at 760-63. Here, in contrast, there was no evidence that Decedent would 

have refused cardiac catheterization or bypass surgery and, as set forth 

above, Plaintiff’s cardiology expert testified unequivocally concerning the 

standard of care, that Dr. Kodali breached that standard in failing to diagnose 

Decedent’s coronary artery disease, and that if Dr. Kodali had properly 

diagnosed Decedent’s coronary artery disease, a coronary bypass would have 

been performed and Decedent would not have died. 

In their second issue, Defendants argue that the admission of Plaintiff’s 

cardiology expert’s pain and suffering opinion testimony was error and 

requires a new trial on damages. This Court reviews a trial court’s ruling on

the admissibility of expert testimony for an abuse of discretion. McFeeley v. 

Shah, 226 A.3d 582, 596-97 (Pa. Super. 2020); Nobles v. Staples, Inc., 

150 A.3d 110, 113 (Pa. Super. 2016). An abuse of discretion exists where 

the trial court overrides or misapplies the law. Commonwealth v. Taylor, 

230 A.3d 1050, 1072 (Pa. 2020); Nobles, 150 A.3d at 113.

Plaintiff’s cardiology expert testified with respect to Decedent’s pain and 

suffering:
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Q. In addition to the other opinions that you’ve given today, do 

you have an opinion regarding whether Mr. Cowher experienced 

pain and suffering prior to his death?

A. Yes.

Q. And what is that opinion and what’s it based on?

A. That, based on the testimony I heard earlier this morning, I 

believe he did suffer conscious pain and suffering on that run on 

August 23rd when he realized that something was very wrong 

before he became unconscious.

N.T. Trial, 12/3/19, at 221. No medical explanation or further basis for this 

opinion was given by the expert. The “testimony ... earlier this morning” that 

the expert referenced was testimony of the neighbor who saw Decedent 

collapse. This neighbor testified that she saw Decedent walking slowly, 

kneeling, and laying down, that Decedent said “I need help,” and that 

Decedent appeared to be “in pain” and “not himself” and “was very 

distraught.” Id. at 74-77. The neighbor also testified that Decedent was 

conscious for approximately three minutes before he passed out. Id. at 77-

78.

To be admissible, expert opinion testimony must go beyond the 

knowledge possessed by lay persons. Pa.R.E. 702(a), (b) (requiring that “the 

expert’s scientific, technical, or other specialized knowledge is beyond that 

possessed by the average layperson” and that “the expert’s scientific, 

technical, or other specialized knowledge will help the trier of fact to 

understand the evidence or to determine a fact in issue”); Nobles, 150 A.3d

at 114; Snizavich v. Rohm & Haas Co., 83 A.3d 191, 194 (Pa. Super. 2013). 
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In addition, the expert testimony must be based on application of the witness’s 

expertise and must not merely be a lay opinion offered by an expert. Nobles, 

150 A.3d at 114; Snizavich, 83 A.3d at 194-95. 

“It is the job of the trial court to ‘assess the expert’s testimony to 

determine whether the expert’s testimony reflects the application 

of expertise or strays into matters of common knowledge.’ ... 

Admissible expert testimony that reflects the application of 

expertise requires more than simply having an expert offer a lay 

opinion. ‘Testimony does not become scientific knowledge merely 

because it was proffered by a scientist.’”

Nobles, 150 A.3d at 114 (quoting Snizavich) (citations omitted); see also

Snizavich, 83 A.3d at 194-95. This Court has further explained that

[t]he exercise of scientific expertise requires inclusion of scientific 

authority and application of the authority to the specific facts at 

hand. Thus, the minimal threshold that expert testimony must 

meet to qualify as an expert opinion rather than merely an opinion 

expressed by an expert, is this: the proffered expert testimony 

must point to, rely on or cite some scientific authority—whether 

facts, empirical studies, or the expert’s own research—that the 

expert has applied to the facts at hand and which supports the 

expert’s ultimate conclusion. When an expert opinion fails to 

include such authority, the trial court has no choice but to 

conclude that the expert opinion reflects nothing more than mere 

personal belief.

Nobles, 150 A.3d at 114-15 (quoting Snizavich); see also Snizavich, 83 

A.3d at 197.

Plaintiff’s cardiology expert’s opinion on Decedent’s pain and suffering 

did not satisfy these standards. He did not apply his medical expertise to the 

facts to which the neighbor had testified. Nor did he point to or rely on any 

medical or other scientific authority or principles beyond the knowledge of lay 

persons. Instead, he simply adopted the neighbor’s fact testimony as his 
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purportedly expert opinion. As such, the testimony was nothing more than 

the expert’s personal opinion and was not admissible expert testimony. 

Nobles, 150 A.3d at 114-17; Snizavich, 83 A.3d at 194-98. The trial court 

therefore erred in admitting this expert testimony that Decedent experienced 

conscious pain and suffering. 

Plaintiff argues that even if the admission of this testimony was error, 

Defendants have not shown that they were prejudiced. We do not agree. 

An evidentiary ruling constitutes grounds for reversal only if the 

complaining party was prejudiced by the ruling. Wright v. Residence Inn 

by Marriott, Inc., 207 A.3d 970, 974 (Pa. Super. 2019); Reott v. Asia 

Trend, Inc., 7 A.3d 830, 839 (Pa. Super. 2010), aff’d, 55 A.3d 1088 (Pa. 

2012). A party is prejudiced where the trial court’s error could have affected 

the verdict. Wright, 207 A.3d at 974; Reott, 7 A.3d at 839. The damages 

that the jury could award on the survival claim here were damages for 

Decedent’s pain and suffering and for the loss of his gross earning power, less 

personal maintenance expenses, for his estimated working life span. 

McMichael v. McMichael, 241 A.3d 582, 587-88 (Pa. 2020); Kiser v. 

Schulte, 648 A.2d 1, 4 (Pa. 1994). Plaintiff’s counsel referred to the 

cardiology expert’s pain and suffering testimony in his closing argument. N.T. 

Trial, 12/9/19, at 79. 

Improperly admitted expert testimony has significant potential for 

prejudice because jurors may perceive expert testimony as having greater 
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weight and credibility than the testimony of other witnesses. 

Commonwealth v. Hopkins, 231 A.3d 855, 876-77 (Pa. Super. 2020); see 

also Masgai v. Franklin, 787 A.2d 982, 985 (Pa. Super. 2001) (expert 

testimony “may in some instances assume a posture of mystic infallibility in 

the eyes of a jury of laymen”) (quoting Commonwealth v. Topa, 369 A.2d 

1277 (Pa. 1977)).

Expert witnesses can have an extremely prejudicial impact on the 

jury, in part because of the way in which the jury perceives a 

witness labeled as an expert. To the jury an “expert” is just an 

unbridled authority figure, and as such he or she is more 

believable. A witness who has been admitted by the trial court as 

an expert often appears inherently more credible to the jury than 

does a lay witness.

Hopkins, 231 A.3d at 876 (quoting Commonwealth v. Smith, 995 A.2d 

1143 (Pa. 2010) (Saylor, J., concurring and dissenting)).

Moreover, it is clear from the verdict that the jury awarded Plaintiff a 

high amount of pain and suffering damages, even though the evidence showed 

that Decedent was conscious for only approximately three minutes.3 Damages 

____________________________________________

3 To the extent that Defendants argue that there was no evidence that 

Decedent experienced any conscious pain and suffering at the time of the fatal 

event, we do not agree. The neighbor’s fact testimony was sufficient to show 

that Decedent was conscious for a brief period during his fatal cardiac event 

and appeared to be upset and in some discomfort during that brief period. 

Ory v. Libersky, 389 A.2d 922 (Md. App. 1978), on which Defendants rely 

does not support their contention that no conscious pain and suffering was 

shown here. Rather, it held that pain and suffering damages were not 

recoverable because there was no evidence of any kind that was sufficient to 

show that the decedent was conscious in the period between the accident and 

his death where there was no expert testimony that he was conscious and the 
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for pain and suffering cannot be awarded for periods that Decedent was 

unconscious. Cominsky v. Donovan, 846 A.2d 1256, 1260 (Pa. Super. 

2004); Nye v. Commonwealth, 480 A.2d 318, 321 (Pa. Super. 1984); 

Teamann v. Zafris, 811 A.2d 52, 65-66 & n.14 (Pa. Cmwlth. 2002), 

abrogated on other issue, McCreesh v. City of Philadelphia, 888 A.2d 

664 (Pa. 2005). The only evidence of economic damages at trial was Plaintiff’s 

economic expert’s testimony and the highest amount of economic damages to 

which the economic expert testified was $2,700,498. The jury’s survival 

award was $3,833,000, $1,132,502 more than Plaintiff’s evidence of economic 

damages.

Plaintiff contends that the error cannot be held prejudicial because the 

award could have included pain and suffering for the six-week period between 

Decedent’s visit to Dr. Kodali and his fatal cardiac event and because 

Defendants did not request an itemized verdict sheet. These arguments are 

without merit. Plaintiff’s counsel represented to the trial court that the only 

pain and suffering claim was for the brief period of the fatal cardiac event and 

the only evidence of pain and suffering that Plaintiff’s counsel argued to the 

jury was pain and suffering during that event. N.T. Motion in Limine 

Argument, 11/26/19, at 95-96; N.T. Trial, 12/9/19, at 79-80. In addition, the 

____________________________________________

decedent did not engage in any communicative behavior or other behavior 

that showed that he was conscious or in pain. Id. at 928-30.
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trial court charged the jury that they could award damages for pain and 

suffering only for the period “from the time of the injury until his death.” N.T. 

Trial, 12/9/19, at 145 (emphasis added). The injury here was Decedent’s fatal 

cardiac event, not Dr. Kodali’s examination or diagnosis. 

While absence of an itemization of damages can affect a court’s ability 

to review a challenge to the amount that a jury awarded for a particular item 

of damages, see Birth Center v. St. Paul Companies, Inc., 727 A.2d 1144, 

1163 & n.16 (Pa. Super. 1999), aff'd, 787 A.2d 376 (Pa. 2001), the issue 

here is whether the improper admission of evidence was prejudicial, not 

whether the amount of the pain and suffering award was excessive or 

unsupported. The standard for whether error is prejudicial, as stated above, 

is whether it could have affected the verdict. The ability to ascertain the 

precise amount of the jury’s pain and suffering award is unnecessary to that 

analysis. The fact that the damages verdict that included pain and suffering 

was over $1 million more than Plaintiff’s expert’s highest calculation of 

economic damages is sufficient for the Court to conclude that this verdict could 

have been affected, even if an actual amount of pain and suffering damages 

cannot be determined. 

Given the fact that the jury awarded a high amount of pain and suffering 

damages for a brief period of time coupled with the undue weight that jurors 

are likely to give to expert testimony, we conclude the admission of Plaintiff’s 

cardiology expert’s opinion on pain and suffering was prejudicial error. 
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The expert testimony on pain and suffering, however, could have only 

affected one part of the jury’s verdict, the amount of damages that it awarded 

on Plaintiff’s survival claim, and could not have affected the liability verdict. 

No new trial is therefore necessary on liability. Evidence on pain and suffering 

likewise had no possible effect on or the amount of the wrongful death award, 

as this award includes only Plaintiff’s losses as Decedent’s widow, not damages 

suffered by Decedent. See 42 Pa.C.S. § 8301; McMichael, 241 A.3d at 588. 

Where an error in a wrongful death and survival action has affected only 

the jury’s damages award on the survival claim, a new trial may properly be 

limited to the damages that the plaintiff seeks on the survival claim. Rettger 

v. UPMC Shadyside, 991 A.2d 915, 933-35 (Pa. Super. 2010); Davis v. 

Steigerwalt, 822 A.2d 22, 30-31 (Pa. Super. 2003); Bortner v. Gladfelter, 

448 A.2d 1386, 1390 (Pa. Super. 1982). Indeed, Defendants have conceded 

that the trial court’s error can be remedied by a new damages trial limited to 

the survival claim. Although Defendants in their brief requested a new trial 

on damages without limiting the request to the survival claim, at oral 

argument, Defendants stated in response to the Court’s questions that errors 

affecting only the issue of pain and suffering can be remedied by a new trial 

on damages on Plaintiff’s survival claim. Because neither the liability verdict 

nor the wrongful death damages award could have been affected by the 

erroneous admission of expert testimony on pain and suffering, we vacate 
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only the damages judgment with respect to Plaintiff’s survival claim and 

remand for a new trial on damages limited to that claim.

Defendants’ remaining issues challenge the jury’s damages award on 

the survival claim as excessive. In light of our conclusion that the survival 

award must be vacated and a new trial on damages must be held with respect 

to the survival claim, we need not and do not address these claims of error. 

For the foregoing reasons, we affirm the trial court’s judgment as to 

Defendants’ liability and its damages judgment with respect to Plaintiff’s 

wrongful death claim, but vacate the judgment as to Plaintiff’s survival claim 

and remand for a new trial on damages with respect to that claim. 

Judgment affirmed in part and vacated in part. Case remanded for a 

new trial on damages limited to Plaintiff’s survival claim. Jurisdiction 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/8/21