J-A03045-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

RENAE HAMM AND ALVIN HAMM IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellants

v.

NATHAN HANDWERK AND GLEN 

HANDWERK

Appellees No. 1109 EDA 2015

Appeal from the Judgment Entered April 14, 2015

In the Court of Common Pleas of Lehigh County

Civil Division at No(s): 2012-C-3314

BEFORE: GANTMAN, P.J., MUNDY, J., and DUBOW, J.

MEMORANDUM BY GANTMAN, P.J.: FILED MARCH 08, 2016

Appellants, Renae Hamm and Alvin Hamm, appeal from the judgment 

entered in the Lehigh County Court of Common Pleas, following a jury trial 

on Appellants’ personal injury claims. We affirm. 

The relevant facts and procedural history of this case are as follows. 

At about 4:00 a.m. on August 15, 2010, Appellee Nathan Handwerk was 

driving while intoxicated when he lost control of his vehicle and struck 

Appellants’ home. Police arrived shortly after the accident and administered 

field sobriety tests before arresting Nathan Handwerk. None of the officers 

who responded to the scene reported that any person sustained injuries as a 

result of the accident. The trial court continued:

Mrs. Hamm was fifty years old at the time of the accident. 

She was employed, as she had been for many years, as a 
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cafeteria worker in a local school. Her job required 

repetitive standing on her feet, bending and lifting up to 

forty pounds. She earned $20,212.22 in 2010. 

Although Mrs. Hamm professed not to have any significant 

back issues before the accident, she had an MRI in 2002 

that revealed a disc bulge at the L4—L5 level and some 

age-related degenerative changes, and on May 11, 2010, 

three months before the accident, she reported to her 

employer that she had strained her back by bending and 

lifting a case of lettuce.

Mrs. Hamm said the accident occurred at about 4:00 a.m. 

on August 15, 2010. She said she was sleeping in bed 

when [the] vehicle struck her house with such force that it 

threw her out of the bed and “next thing I know, I’m 

hitting the cedar chest and hitting the floor.” She thought 

“the gas station exploded[.]” According to Mr. Hamm, he 

was awake at the time of the accident sitting in a back 

room of the house having coffee. Although he is hard of 

hearing, he neither heard nor, more importantly, felt the 

impact of the house being struck by [the] vehicle.

In any event, Mr. Hamm transported Mrs. Hamm to the St. 

Luke’s Hospital around 11:00 a.m. She did not complain 

of radicular symptoms. There was no history of head or 

neck injury. There was no evidence of bruising, only some 

tenderness in the muscles that run up and down her back, 

muscle spasms of the lower back and a contusion on her 

right forearm. She was discharged with medications.

She returned to work without any restrictions after only 

two days of rest. She saw her family physician, Dr. 

Slompak, on October 23, and November 26, 2010, on 

complaint of pain in her back and thighs. X-rays of her

[lumbosacral] spine showed degenerative disc and facet 

disease of the lumbar spine. She underwent an MRI on 

December 2, 2010, that revealed disc herniation at T11—

T12 and L2—L3, and the previously noted pre-existing disc 

bulge at L4—L5 and/or L3—L4 and some aggravation of 

the age-related degenerative changes.

She went to Florida when school closed for the Christmas 

holidays to visit her 81 year-old, ailing and infirm parents. 
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Although she had intended to return to work after the 

holidays, when school resumed, she remained in Florida 

under an emergency family leave from work and continued 

to care for her parents until early March. Within two 

weeks of her return from Florida, Mrs. Hamm claimed to 

have suffered a work-related injury to her back on March 

28, 2011. When she saw a physician on April 13, 2011, to 

describe the March 28, 2011 work-related accident, she 

failed to mention the August 15, 2010 accident. She 

[later] claimed to have suffered another work-related 

injury to her back on September 21, 2011.

Although Mrs. Hamm testified she was pain-ridden and felt 

needy and useless after the August 15, 2010 accident, she 

managed to care for her elderly parents while in Florida 

without incident or complaint. She received no treatment 

or physical therapy after the August 15, 2010 accident, 

even after the December MRI and while she was caring for 

her parents in Florida, until after the March 28, 2011 workrelated accident. When she returned to work in March 

2011, she did so without any restrictions even though her 

work consisted of repetitive standing, bending and lifting. 

It was only after the March 28, 2011 work-related accident 

that she began treatment. 

Mrs. Hamm’s expert witness, Dr. Weiss, evaluated her on 

May 10, 2012, when she was 52 years old and weighed 

240 pounds. At that time, Mrs. Hamm reported that 

between the August 15, 2010 and March 28, 2011 

accidents she was able to perform without difficulty all 23 

of the activities of daily living listed by Dr. Weiss. She had 

no restrictions on her activities of daily living. Dr. Weiss 

concluded that following the August 15, 2010 accident, 

Mrs. Hamm suffered a “permanent orthopedic 

impairment,” the herniated discs at T11—T12 and L2—L3, 

but that those impairments did not manifest themselves 

until after the March 28, 2011 accident. 

When [Nathan Handwerk’s] IME doctor, Dr. Williams, 

evaluated Mrs. Hamm on September 16, 2013, she 

weighed 235 pounds. He concluded, as did Dr. Weiss, Mrs. 

Hamm suffered pre-existing degenerative disc and facet 

disease of the lumbar and thoracic spines and a lumbar 

sprain/strain as a result of the August 15, 2010 accident. 
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He characterized the sprain/strain injuries as 

“subjective...unless the sprain or strain is sufficient to 

severely tear tissues.” Dr. Weiss also indicated it was his 

experience that “depend[ing] on the degree...most patients 

recover [from a sprain and strain] within three, perhaps 

six months at most.” He also said it was his experience 

that patients with a sprain and strain continue to treat with 

a medical provider “[u]nless they have treated for so long 

they finally give up.” As noted, Mrs. Hamm underwent no 

treatment between the August 15, 2010 and March 28, 

2011 accidents. Furthermore, Dr. Williams concluded the 

injuries Mrs. Hamm sustained from the March and 

September 2011 work-related accidents were not caused 

by the August 15, 2010 accident.

(Trial Court Opinion, filed March 16, 2015, at 2-5) (internal citations 

omitted). 

On January 3, 2013, Mrs. Hamm and her husband Mr. Hamm sued 

Nathan Handwerk and his father Glen Handwerk, who owned the vehicle 

involved in the crash, based on claims of negligence and loss of consortium. 

Prior to trial, the parties entered into a stipulation removing Glen Handwerk 

as a party in the case. The case proceeded to a jury trial on September 15, 

2014. Based on an agreement between the parties’ experts at trial, the 

court instructed the jury to find against Nathan Handwerk on causation, and 

to find Mrs. Hamm suffered a sprain and strain of her lower back and a 

symptomatic aggravation of her preexisting lumbar and thoracic 

degenerative disc disease as a result of the accident. The jury found Nathan 

Handwerk was reckless, and it awarded Mrs. Hamm $1,000.00 in 

compensatory damages and $10,000.00 in punitive damages. The jury 

awarded Mr. Hamm no damages for loss of consortium. The court molded 
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the verdict to reflect a judgment in favor of Mrs. Hamm for a total of 

$11,000.00. 

On September 25, 2014, Appellants timely filed post-trial motions 

requesting a new trial. Nathan Handwerk also filed a post-trial motion 

requesting remittitur of the punitive damages verdict. The court denied both 

motions on March 16, 2015. Upon praecipe of Appellants, the court entered 

judgment on the verdict on April 14, 2015. Appellants timely filed a notice 

of appeal the same day. On April 22, 2015, the court ordered Appellants to 

file a concise statement of errors complained of on appeal pursuant to 

Pa.R.A.P. 1925(b), and they timely complied on April 29, 2015.1 

Appellants raise the following issues for our review:

MUST THE ORDER DENYING APPELLANTS’ NEW TRIAL 

MOTION BE REVERSED SINCE THE VERDICT OF $1,000.00 

WAS CLEARLY INADEQUATE AND AGAINST THE WEIGHT 

OF THE EVIDENCE, CONSIDERING THAT THE VERDICT 

DOES NOT EVEN COMPENSATE FOR RECOVERABLE 

MEDICAL EXPENSES OR WAGE LOSS LET ALONE PAIN AND 

SUFFERING, AND CONSIDERING THE ADMISSIONS OF 

DEFENSE ORTHOPEDIC EXPERT JOHN WILLIAMS, M.D., 

THAT: A) [MRS. HAMM] SUFFERED A LUMBAR SPRAIN AND 

STRAIN AND SYMPTOMATIC EXACERBATION OF LUMBAR 

____________________________________________

1 To the extent Appellants challenge on appeal the inadequacy of the jury’s 

verdict regarding Mr. Hamm’s claim for loss of consortium, Appellants 

waived that argument by failing to identify it clearly in their post-verdict 

motions or include it in their Rule 1925(b) concise statement. See

Majorsky v. Douglas, 58 A.3d 1250 (Pa.Super. 2012), appeal denied, 620 

Pa. 732, 70 A.3d 811 (2013) (reiterating general rule that issues not raised 

before trial court are waived and cannot be raised for first time on appeal, 

citing Pa.R.A.P. 302; likewise, issues absent from court-ordered Rule 

1925(b) statement are waived for purposes of appellate review). 
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AND THORACIC DEGENERATIVE DISC DISEASE; B) IT 

WOULD REQUIRE AT LEAST 3-6 MONTHS TO RECOVER 

FROM THE LUMBAR SPRAIN AND STRAIN AND THERE IS A 

25-30% CHANCE THAT THE INJURY MIGHT BE 

PERMANENT; C) [MRS. HAMM] IS DISABLED FROM 

RETURNING TO HER JOB AS A CAFETERIA WORKER; D) 

[MRS. HAMM’S] COMPLAINTS HAVE AN OBJECTIVE BASIS 

FROM THE MRIS AND X-RAYS; E) ALL OF [MRS. HAMM’S] 

TREATMENT HAS BEEN REASONABLE AND NECESSARY; F) 

[MRS. HAMM’S] CONDITION IS PERMANENT; G) THE 

8/15/2010 ACCIDENT CAUSED AT LEAST SOME OF 

[MRS. HAMM’S] PERMANENT DISABILITY (AND 

THEREFORE PERMANENT INJURY); AND H) IF SHE 

EXPERIENCE[D] RADIATING PAIN AND NUMBNESS PRIOR 

TO 03/28/11, THEN THE PRESSURE ON THE NERVE HAD 

TO PRE-EXIST HER FIRST WORK ACCIDENT?

MUST A NEW TRIAL BE GRANTED BECAUSE THE TRIAL 

COURT ERRED IN FAILING TO GIVE PENNSYLVANIA 

SUGGESTED STANDARD JURY INSTRUCTION 7.90 (OR 

EQUIVALENT CHARGE) ON OTHER CONTRIBUTING 

CAUSES?

MUST A NEW TRIAL BE GRANTED BECAUSE THE TRIAL 

COURT ERRED IN REFUSING TO GIVE [APPELLANTS’] 

SUPPLEMENTAL POINTS FOR CHARGE 1 & 2 REGARDING 

CAUSATION OF SUBSEQUENT INJURIES ARISING FROM 

HER IMPAIRED PHYSICAL CONDITION CAUSED BY THE 

AUGUST 15, 2010 ACCIDENT?

DID THE TRIAL COURT COMMIT PREJUDICIAL ERROR BY 

FAILING TO PRECLUDE THE [DEFENSE] IME DOCTOR, 

JOHN WILLIAMS, M.D., FROM TESTIFYING CONCERNING 

HIS REVIEW OF MRI FILMS WHICH WERE NOT CONTAINED 

IN HIS REPORT AND WHICH HE GAINED ACCESS TO BY 

VIOLATING THE DISCOVERY RULES AND HIPPA RULES 

CONCERNING ACQUIRING PATIENT INFORMATION?

BECAUSE THE FOLLOWING ISSUES HAVE BEEN FAIRLY 

DECIDED: A) THAT [NATHAN HANDWERK] WAS 

NEGLIGENT AND THAT HIS NEGLIGENCE CAUSED [MRS. 

HAMM] HARM; B) THAT [NATHAN HANDWERK] WAS 

RECKLESS AND THAT HIS RECKLESSNESS CAUSED [MRS. 

HAMM] HARM; AND C) THAT [NATHAN HANDWERK’S] 
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CONDUCT WAS OUTRAGEOUS AND DESERVING OF 

PUNITIVE DAMAGES; SHOULD THE NEW TRIAL BE 

LIMITED TO DETERMINING THE FOLLOWING ISSUES: 1) 

THE AMOUNT OF COMPENSATORY DAMAGES TO BE 

AWARDED FOR THE NATURE AND EXTENT OF 

[APPELLANTS’] HARM RESULTING FROM [NATHAN 

HANDWERK’S] CONDUCT; AND 2) THE AMOUNT OF 

PUNITIVE DAMAGES TO BE AWARDED AS A RESULT OF 

[NATHAN HANDWERK’S] RECKLESS AND OUTRAGEOUS 

CONDUCT?

(Appellants’ Brief at 3-4). 

Appellants essentially argue they are entitled to a new trial because 

(a) Nathan Handwerk admitted liability for the accident; (b) Mrs. Hamm is 

permanently disabled and cannot resume her job as a cafeteria worker; (c) 

Nathan Handwerk’s own defense expert conceded Mrs. Hamm suffered from 

a lumbar sprain and strain from the accident and cannot continue to work; 

(d) both parties’ experts agreed that the August 15, 2010 accident 

contributed to Mrs. Hamm’s ultimate disability; (e) Nathan Handwerk’s 

expert admitted Mrs. Hamm’s course of medical treatment was reasonable 

and necessary; (f) the trial court directed a verdict because both parties’ 

experts agreed Mrs. Hamm suffered injuries from the accident; (g) the jury 

award of $1,000 in compensatory damages was inadequate and against the 

weight of the evidence; (h) given the directed verdict, the trial court should 

have instructed the jury that an intervening cause of harm such as Mrs. 

Hamm’s subsequent work-related injuries would not relieve Nathan 

Handwerk of his responsibility for causing Mrs. Hamm’s disability; (i) the 

court erred in refusing to give Appellants’ proffered points for charge 
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regarding Mrs. Hamm’s impaired physical condition caused by the accident; 

(j) the court should have precluded defense expert Dr. John Williams from 

testifying to MRI film results he allegedly obtained outside of discovery. 

Appellants contend they are entitled to a new trial on damages as a result of 

these errors. We disagree. 

After a thorough review of the record, the briefs of the parties, the 

applicable law, and the well-reasoned opinion of the Honorable Edward D. 

Reibman, we conclude Appellants’ issues merit no relief. The trial court’s 

opinion fully discusses and properly disposes of Appellants’ issues on appeal. 

(See Trial Court Opinion, filed March 16, 2015, at 5-12) (finding: (1) & (5)

Mrs. Hamm had history of back issues prior to 8/15/10 accident; Mrs. 

Hamm’s description of force of 8/15/10 collision was inconsistent with her 

husband’s description of that force; Mrs. Hamm’s injuries at time of hospital 

visit six hours later consisted of only muscle tenderness and spasms, and 

single contusion on her forearm; Mrs. Hamm’s job required repetitive 

standing, bending, and lifting, but she returned to work full time after only 

two days without any restrictions; Mrs. Hamm cared for her elderly parents 

in Florida from end of December 2010 until March 2011, without injury or 

complaint; Mrs. Hamm did not seek treatment after 8/15/10 collision until 

after new work-related 3/28/11 injury; at treatment for 3/28/11 injury, Mrs. 

Hamm did not mention 8/15/10 accident; court instructed jury to find Mrs. 

Hamm suffered sprain/strain of her lower back as result of 8/15/10 that 
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aggravated pre-existing degenerative condition; Mrs. Hamm’s injuries from 

8/15/10 accident are wholly subjective and difficult to quantify; jury 

concluded $1,000.00 was appropriate amount of compensatory damages for 

Mrs. Hamm’s 8/15/10 accident-related injuries; jury was free to evaluate 

Mrs. Hamm’s credibility and compensate her for portion of injuries it 

attributed to 8/15/10 accident; Appellants rely on cases which are not 

dispositive here; jury awarded Mrs. Hamm punitive damages of $10,000.00; 

ratio between punitive damages award and compensatory damages award of 

10:1 is just over single-digit range favored in case law; nevertheless, jury’s 

verdict was reasonable and serves as both punishment and deterrent; 

rejection of jury’s award would substitute court’s judgment for that of jury; 

court declines to disturb jury’s award of compensatory or punitive damages; 

(2) & (3) jury instruction 7.90 on other contributing causes is relevant to 

past injuries that contributed to plaintiff’s injury in 8/15/10 accident; in such 

cases, tortfeasor accepts plaintiff as plaintiff existed at time of tortfeasor’s 

negligent act; here, Mrs. Hamm sought to make Nathan Handwerk 

responsible for subsequent injuries she sustained from her subsequent workrelated accidents on 3/28/11 and 9/21/11; Mrs. Hamm offered no evidence 

to demonstrate her work-related accidents were caused by injuries she 

sustained from 8/15/10 collision; Mrs. Hamm’s subsequent injuries might 

have been exacerbated because of her compromised condition resulting from 

8/15/10 incident, but she failed to present evidence demonstrating either 
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work-related injury was directly caused by injuries from 8/15/10 collision; it 

would have been inappropriate to instruct jury that Nathan Handwerk should 

be liable to Mrs. Hamm for her later, independent work-related injuries 

simply because her physical condition might have been weaker on dates of 

those later injuries; (4) Dr. Williams’ testimony was limited to agreement 

with reports by radiologist, and his review of Mrs. Hamm’s films was simply 

confirmation that Dr. Williams agreed with radiologist; thus, Dr. Williams’ 

opinion was fully revealed to Appellants, and no new or potentially 

prejudicial conclusions were set forth or present prejudicial surprise; 

regarding Dr. Williams’ access to MRI films, Dr. Williams had access to 

review Mrs. Hamm’s records based on her consent; Dr. Williams was unable 

to read copies of records produced through discovery due to poor copying of 

records, so he reviewed same records he had consent to review through 

different medium of Lehigh Valley Hospital’s computer system; Dr. Williams 

did not exceed scope of Mrs. Hamm’s consent). The record supports the 

court’s decision on Appellants’ properly preserved claims. Accordingly, we 

affirm on the basis of the trial court’s opinion. 

Judgment affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/8/2016
and struck Plaintiffs' house. Plaintiff Renae Hamm ("Mrs. Hamm") claimed she received 

(''Defendant") while driving intoxicated, lost control of his vehicle> which then left the roadway 

During the early morning hours of August 15, 2010, Defendant, Nathan Handwerk, 

EDWARD D. REIBMAN, J. 

* * 

Jill M. Moffitt, Esquire 

FORRY ULLMAN 

on behalf of Defendants Nathan Handwerk and Olen Handwerk 

Michael A. Snover, Esquire 

on behalf of Plaintiffs Renae Hamm and Alvin Hamm 

APPEARANCES: 

* * 

OPINION 

Defendants. 

Nathan Handwerk, Glen Handwerk, 

v. 

No. 2012,.C-3314 

(Hon. Edward D. Reibman) 

Plaintiffs, 

Renae Hamm, Alvin Hamm, 

IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA 

CIVIL DIVISION 

FILED 3/16/2015 9:33·"'~ AM.Clerk of Judicial Records, Civil r 'sion, Lehigh County, PA 

2012-C-3314 /s/J W 

Circulated 02/19/2016 01:41 PM
In their post-trial motions, Plaintiffs also claimed the court erred in denying their motion 

for a mistrial after Defendant argued in closing the jury should infer adversely to the Plaintiffs 

the fact Plaintiffs did not call Mrs. Hamm' s treating physician to testify, and Defendant claimed 

the court erred in not removing Defendant Glen Handwerk from the caption of the ease. 

However, those claims were abandoned by counsel at oral argument. 

2 

on her feet, bending and lifting up to forty pounds. She earned $20,212.22 in 2010-. 

been for many years, as a cafeteria worker in a local school. Her job required repetitive standing 

Mrs, Hamm was fifty years old at the time of the accident. She was employed, as she had 

patient privacy, and (2) remitter of the punitive damage verdict,' 

that were not referenced in his report and which he viewed in violation of rules of discovery and 

failing to preclude Defendant's IME doctor from testifying concerning his review of MRI films 

to give requested charges to the jury with respect to contributing causes and causation and (b) 

verdict was inadequate and against the weight of the evidence, and the court erred in (a) refusing 

Before the court are Plaintiffs' post-trial motions seeking (1) a new trial on the bases the 

to Mr. Hamm. 

jury found Defendant was reckless, and it awarded Mrs. Hamm compensatory damages in the 

amount of$1,000.00 and punitive damages in the amount of$10,000.00. It awarded no damages 

her preexisting lumbar and thoracic degenerative disc disease as a result of the accident. The 

that Mrs. Hamm suffered a sprain and strain of her lower back and a symptomatic aggravation of 

find Defendant was negligent and, based upon statements made by the parties' expert witnesses, 

A trial by jury was held from September 15 through 19, 2014. The jury was instructed to 

her consortium. 

disabled. Her husband, Alvin Hamm ("Mr. Hamm"), claimed damages as a result of the loss of 

for those injuries she would not have suffered. subsequent work injuries that left her permanently 

serious injuries when the force of the accident caused her to be thrown from .her bed, and that but 

FILED 3/16/2015 9:33•"'1 AM.Clerk of Judicial Records, Civil r 'slon, Lehigh County, PA 

2012-C-3314 /s/J W 
3 

and/or L3·L4 and some aggravation of the age-related degenerative changes. 

herniation at Tl l-Tl2 and L2-L3, and the previously noted pre-existing disc bulge atL4-L5 

disease of the lumbar spine. She underwent an MRI on December 2, 2010, that revealed disc 

her back and thighs. X-rays of her lumbrosacral spine showed degenerative disc and facet 

family physician, Dr. Slompak, on October 23, and November 26, 2010, on complaint of pain in 

She returned to work without any restrictions after only two days of rest. She saw her 

discharged with medications. 

her back, muscle spasms of the lower back and a contusion on her right forearm. She was 

There was no evidence of bruising, only some tenderness in the muscles that run up and down 

a.m. She did not complain of radicular symptoms. There was no history of head or neck injury. 

In any event, Mr. Hamm transported Mrs. Hamm to the St. Luke's Hospital around 11 :00 

impact of the house being struck by Defendant's vehicle. 

having coffee. Although he is hard of hearing, he neither heard nor, more importantly, felt the 

to Mr. Hamm, he was awake at the time of the accident sitting in a back room of the house 

She thought "the gas station exploded". N.T., Vol. II, pp. 59:14-60:1, 122:24-123:1. According 

her out of the bed and the "next thing I know, I'm hitting the cedar chest and hitting the floor," 

she was sleeping in bed when Defendant's vehicle struck her house with such force that.it threw 

Mrs. Hamm said the accident occurred at about 4:00 a.m. on August 15, 2010. She said 

reported to her employer that she had strained her back .by bending and lifting a case of lettuce. 

related degenerative changes> and on May 11, 2010, three months before the accident, she 

Although Mrs. Hamm professed not to have any significant back issues before the 

accident, she had an MRI in 2002 that revealed a disc bulge at the L4-L5 level and some agesion, Lehigh County, PA 

/s/J W 

FILED 3/16/2015 9:3? -~ AM, Clerk of Judicial Records, Civil r 

2012-C-3314 
4 

that those impairments did not manifest themselves until after the March 28, 2011, .accident. 

suffered a "permanent orthopedic impairment," the herniated discs at Tl 1-Tl2 and L2-L3, but 

daily living. Dr. Weiss concluded that following the August 15, 2010, accident, Mrs, Hamm 

of the activities of daily living listed by Dr. Weiss. She had no restrictions on her activities of 

52 years old and weighed 240 pounds. At that time, Mrs. Hamm reported that between the 

August 15, 2010, and March 28, 2011, accidents she was able to perform without difficulty all 23 

Mrs. Hamm's expert witness. Dr. Weiss, evaluated her on May 10, 2012, when she was 

treatment. 

and lifting. It was only after the March 28, 2011, work-related accident that she began 

did so without any restrictions even though her work consisted of repetitive standing, bending 

after the March 28, 2011 work-related accident. When she returned to work in March, 2011, she 

accident, even after the December MRI and while she was caring for her parents in Florida, until 

incident or complaint. She received no treatment or physical therapy after the August 15, 2010, 

August 15, 2010, accident, she managed to care for her elderly parents while in Florida without 

Although Mrs. Hamm testified she was pain-ridden and felt needy and useless after the 

suffered another work-related injury to her back on September il, 2011. 

related accident, she failed to mention the August 15, 2010, accident. She claimed tohave 

2011. When she saw a physician on April 13, 2011, to describe the March 28, 2011, workFlorida, Mrs. Hamm claimed to have suffered a work-related injury to her back on March 28, 

continued to care for her parents until early March. Within two weeks of her return from 

when school resumed, she remained in Florida under an emergency family leave from work and 

She went to Florida when school closed for the Christmas holidays to visit her 81 yearold, ailing and infirm parents. Although she had intended to return to work after the holidays, 

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witness." Neison, 653 A.2d at637 (citing Gaita v. Pamula, 122 A.2d 63 (Pa. 1956); Algeo v .. 

Pittsburgh Rys. Co, 198 A.2d 415, 416-17 (Pa. Super. 1964)). However, "the verdict must not be 

(Pa. 1994)). "[TJhe jury is free to believe all, some or none of the testimony presented by a 

suffered by the plaintiff." Burnhauser, 745 A.2d at 1261 (citing Kiser v. Schulte, 648 A.2d 1~ 4 

uncontradicted evidence that the amount of the verdict bears no reasonable relation to the loss 

(Pa. 1995)). "A jury verdict is set aside as inadequate where it clearly appears from 

Bumberger, 745 A.2d 1256, 1260 (Pa. Super. 2000) (quotingNeison v. Hines, 653 A.2d 634, 636 

jury's verdict is so contrary to the evidence that it 'shocks ones sense of justice. m Burnhauser v. 

the weight of the evidence are well-settled. "A trial court may only grant a new trial when the 

The relevant principles oflaw to evaluate whether the verdict was inadequate and against 

by-the August 15, 2010, accident. 

Hamm sustained from the March and September, 2011, work-related accidents were not caused 

2010, andMarch 28, 2011, accidents. Furthermore, Dr. WilJiams concluded the injuries Mrs. 

41:25; 43:21-44:4. As noted, Mrs. Hamm underwent no treatment between the August 15, 

"[u]nless they have treated for so long they finally give up." Williams Depo., id., pp . .38: 19- 

his experience that patients with a sprain and strain continue to treat with a medical provider 

recover [from a sprain and strain] within three, perhaps six months· at most." He also said it was 

Weiss also indicated it was his experience that "depend[ing] on the degree, ... ~ most patients 

injuries as "subjective ... unless the sprain or strain is sufficient to severely tear tissues." Dr. 

sprain/strain as a resu1t of the August 15, 20 I 0, accident. He characterized the sprain/strain 

existing degenerative disc and facet disease of the lumbar and thoracic spines and a lumbar 

2013, she weighed 235 pounds. He concluded, as did Dr. Weiss, Mrs. Hamm suffered preWhen Defendant's IME doctor, Dr. Williams, evaluated Mrs. Hamm, on September 16, 

rision, Lehigh County, PA 

/s/J W 

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6 

than some muscle tenderness and spasms, and a contusion on her forearm, no other injuries were 

that allegedly aggravated. a pre-existing, degenerative condition - are difficult to quantify. Other 

Mr. Hamm. The injuries the jury was instructed to find- a sprain and strain of her lower back 

description of the force of the collision of Defendant's vehicle with her house wasnot shared by 

Mrs. Hamm had a history of back issues before the August 15, 2010, accident. Her 

February 18, 2015). 

Ricciuti v. Estate of Pohlman,_ A.3d _ (Pa.Super. 20 l 5)(No. 706 WDA 2014, decided 

constituting inadequacy." Hill v. Com .• Bureau of Corrections, 555 A.2d 1362, 1368 (Pa. 

Cmwlth, 1989) ("Each case must be examined in thelight of its unique facts."). See, also, 

pain and suffering damages to special damages or any particular dollar figure as automatically 

Bronchak v. Rehmann, 397 A.2d 438. 440 (Pa. Super. 1979). There is not "any particular ratio of 

or anything the plaintiff and her doctor· said, even if their testimony was uncontradicted." 

542 A.2d 516, 519 (Pa. 1988) (emphasis in original). A jury is "not required to accept everything 

fact of human experience that every tortproduces compensable pain." Boggavarapu v. Ponist, 

Further, .. jurors are not compelled to find pain where there was no objective injury .. .it is.not a 

in an accident is insignificant. See Holland v .. Zelnick, 478 A.2d 885, 888 (Pa. Super. 1984). 

A.2d at 637. A jury is not required to award plaintiff any amount if it believed the injury suffered 

disproportionate to the uncontested evidence as to defy common sense and logic." Neison, 653 

a jury is entitled to reject any and al] evidence up until the point at which the verdict is so 

Neison, 653 A.2d at 637 (citing Elza v. Chovan, 152 A.2d 238, 240 (Pa. 1959); Slaseman v. 

Myers, 455 A.2d 1213, 1215 (Pa. Super. 1983)). "The synthesis of these conflicting rules is that 

the loss suffered by the plaintiff as demonstrated by uncontroverted evidence presented at trial," 

a product of passion, prejudice, partiality, or corruption, or must bear some reasonable relation to 

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2012-C-3314 /s/J W 
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have been a contributing cause to the plaintiff's present complaints." (Emphasis added.) In other 

defendant is liable for the plaintiff's entire present condition, even though a prior condition may 

873 (Pa. 1965), "The Supreme Court' s standards in such situations clearly announce that the 

subcommittee note following Instruction 7.90 states, citing Majors v. Broadhead Hotel, 205 A.2d 

relevant to past injuries that contributed to a plaintiff's injury in a current accident. As the 

The subcommittee notes following Instruction 7 .90 make it clear that the instruction is 

an impaired physical condition caused by the August 15, 2010, accident. 

supplemental points for charge 1 and 2 regarding causation of subsequent injuries arising from 

Jury Instruction 7.90, or an equivalent charge, on other contributing causes and their requested 

Plaintiffs next claim the Court erred in failing to give Pennsylvania Suggested Standard 

the jury. Consequently, the jury's award of compensatory damages will not be disturbed. 

2010, accident. To reject the jury's award would be to substitute the court's judgment for that of 

credibility and compensate her for only the portion of her injuries it attributed to the August 15, 

inapposite because here the jury did award darn.ages. The jury was free to evaluate Mrs. Hamm 's 

accident. Plaintiffs' references in their brief to cases where the jury awarded no damages are 

compensatory damages for those injuries Mrs. Hamm sustained as.a result of the August, ;2010, 

The jury, in its collective wisdom, concluded $1,000.00 was the appropriate amount of 

not mention the August, 2010, accident. 

August, 2010, accident until.after the March 28, 2011~ work-related accident and, even then, did 

Decem her until March without incident or complaint. She underwent no treatment after the 

work without any restrictions. She cared for her elderly parents in Florida from the end of 

repetitive standing, bending and lifting, she missed only two days ofwork before returning to 

noted at the hospital. She was discharged with medications. Although her job required 

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responsible for the subsequent injuries. As the court stated: "Evidence of a subsequent injury is 

the plaintiff slipped from an independent cause and that therefore the original accident was not 

plaintiff contended her subsequent fall was attributable to the failure of the limb injured in the 

first accident to function properly, i.e. the result of the original injury; the defendant contended 

sustained from her first accident. In Bender v. Welsh, 344 Pa. 392, 25 A.2d 182 (Pa. 1942), the 

accident -- her work-related accidents in March and September, 2011 --were caused by injuries 

A.2d at 284. Here, there was no evidence or offer of proof to believe Plaintiffs second or third 

original accident, the second injury may properly be referred back to the original injury." 105 

truth and in fact the second accident was caused by the weakened condition of the leg due to the 

accident. There was no independent, subsequent accident. The Supreme Court stated: "If in 

rather, the issue was whether the injured leg gave way from weakness as a result of the first 

same leg as the original injury. There was no evidence of negligence as to the second injury; 

weight on the injured leg which failed to support him and, as a result, he fell and injured the 

convalescing from a broken leg suffered as a result of an automobile accident when he placed 

action. In Nikisher v. Benninger, 377 Pa. 564, 105 A.2d 281 (Pa.1954), the plaintiff was 

Pittsburgh, 180 A. 733 (Pa. Super 1935), is a workmen's compensation case, not a negligence 

Plaintiffs' authority in support of their. position is unavailing. Marshall v. City of 

accidents. 

existed at the time of the negligent act. Here, Mrs. Hamm sought to make Defendant responsible 

for the subsequent injuries she sustained from th.e March and September 2011, work-related 

present complaints. To state it more casually, the tortfeasor accepts the plaintiff as the plaintiff 

tortfeasor's actions even though the plaintiffs prior condition contributed to the plaintiff's 

words, a tortfeasor would be responsible for all injuries the plaintiff suffered as a result of that 

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which would fail to reveal fully the facts andopinions of the expert or his grounds therefor,' In 

2003) ("The purpose of [the fair scope rule] is '[t]o prevent incomplete 'fudging' of reports 

prejudicial conclusions were.set forth. See Woodard v. Chatterjee, 827 A.2d 433, 441 (Pa. Super. 

Therefore, Dr. Williams's opinion was fully revealed to Plaintiffs, and no new or potentiaJly 

his review of Mrs. Hamm's films was simply a confirmation that he agreed with the radiologist. 

Dr. Williams' s testimony was limited to agreement with reports by the radiologist, and 

medical rules for acquiring patient information. 

expert report and Dr. Williams gained access to those films by violating discovery rules and 

bases Dr. Williams'stestimony concerning his review of MRI films was not contained in his 

Dr. Williams, M.D., from testifying concerning his review of Mrs. Hamm's MRI films on the 

Next, Plaintiffs contend the Court erred by failing to preclude Defendant's lME doctor, 

as it existed in March and September 2011. 

March and September, 201 l, simply because he may have contributed to her physical condition 

that Defendant should be liable to Mrs. Hamm for her independent, work-related injuries in 

Hamm as he found her in August 2010, and it would have been inappropriate to instruct the jury 

by the injuries incurred from the August, 2010, accident. Defendant is only responsible to Mrs. 

there was no evidence to believe either of the March or September; 2011, accidents was caused 

exacerbated because of a compromised condition resulting from the August, 2010, accident, 

While Mrs. Hamm's injuries sustained in the second and third accidents may have been 

subsequent accident not caused by the impairment resulting from original injuries.) 

"Damages, Death Actions, Consortium," § 6.4 (Defendant not liable for subsequent accident if 

admissible to affect the measure of damages on the original injury only if the subsequent injury 

was proximately caused by the original negligence," 25 A.2d at 185. See, also, Pa. Trial Guide, 

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Amendment. 

damages are $1 million, was excessive and violated the Due Process Clause of the Fourteenth 

Supreme Court held that a punitive damages award of $145 million, where full compensatory 

In State Fann Mut. Auto. Ins. Co. v. Campbell. 538 U.S. 408. (2003), the UnitedStates 

1998); · 

arbitrariness or unfettered discretion." Shiner v. Moriarty, 706 A.2d 1228, 1241 (Pa. Super. 

punishing and deterring the particular behavior of the defendant and not the product of 

"The size of a punitive damages award must be reasonably related to the State's interest in 

proportion to the award of actual damages." Mitchell v. Randall, 137 A. 171, 172 (Pa. 1927). 

is the rule in Pennsylvania that an award of exemplary damages must bear a reasonable 

Finally, as to Defendant's claim that the punitive damage award should be reduced, "[i]t 

Hamm or improperly affected the verdict in any way. 

Mrs. Hamm's consent. The record does not suggest Dr. Williams' testimony prejudiced Mrs. 

litigation process that he concluded made them difficult to read. He did not exceed the scope of 

Hospital's computer system, rather than utilize the films copied and produced through the 

upon himself to access Mrs. Hamm' s films through a different medium, the Lehigh Valley 

Dr. Williams had Mrs. Hamm' s consent to review her films. Dr. Williams apparently took it 

patient's information in violation of discovery rule Pa.R.C.P. No. 4003.6. However, 

Hospital Network Computer System, Dr. Williams engaged in the ex parte acquisition of a 

Mrs. Hamm 's MRI films, Plaintiffs contend that by accessing the films on the Lehigh Valley 

testimony did not present prejudicial surprise. On the issue of Dr. Williams's access to 

unfair and prejudicial surprise.:" (internal citations omitted)). The content of Dr. Williams's 

otherwords, the fair scope rule 'favors the liberal discovery of expert witnesses and disfavors 

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amount of compensatory damages it awarded to Mrs. Hamm. The ratio here between the punitive 

to the interests of others, does not shock the conscience of the court even in relation to the 

driving while intoxicated, which the jury found to be outrageous and with a reckless indifference 

Considering the factors set forth in Campbell, the award of $10,000 for conduct of 

cases.:" 

the punitive damages award and the 'civil penalties authorized or imposed in comparable 

of economic damages." Id. Lastly, Campbell instructs courts to examine "the disparity between 

comport with due process where 'a particularly egregious act has resulted in only a small amount 

While "single digit multipliers are more likely to comport with due process," greater ratios "may 

noted that awards exceeding a single-digit ratio may potentially violate due process. Id. at 425. 

"declinejd] to impose a bright-line ratio which a punitive damages award cannot excess," but 

potential harm suffered by the plaintiff and the punitive damages award." Id. at 418 . Campbell 

damages, Campbell instructs that a court should look to the "disparity between the actual or 

deterrence." Id. (citing Gore, 517 U.S. at 575). Next, when reviewing an award of punitive 

reprehensible as to warrant the imposition of further sanctions to achieve punishment or 

damages, so punitive damages should only be awarded if the defendant's culpability ... is so 

(1996)). «It should be presumed a plaintiff has been made whole for his injuries by compensatory 

defendant's conduct." Id. at 419 (quoting BMW ofN. America. Inc. v. Gore, 517 U.S. 5'59, 575 

of the reasonableness of a punitive damages award is the degree of reprehensibility of the 

property." Id. at 417. The Court in Campbell begins by stating that "the most important indicium 

grossly excessive, it furthers no legitimate purpose and constitutes an arbitrary deprivation of 

Campbell noted that "punitive damages serve a broader function [than compensatory 

damages]; they are aimed at deterrence and retribution." Id. at 416. "To the extent an award is 

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both a punishment and deterrent, and will not be disturbed. by the court. 

/)f'-,,;'i~. il#l'.r' ~-J-. - .... 

trial. The punitive damages award of$10,000.00 imposed by the jury is reasonable, serves as 

In any event, Defendant testified he was employed at the time of the accident and at the time of 

damages may be imposed. Vance v. 46 and 2, Inc., 920A.2d 202, 206-207 (Pa. Cm.with. 2007). 

Restatement (Second) of Torts), evidence of wealth is not a prerequisite as to whether punitive 

Kirkbride v. Lisbon Contractors. Inc., 555 A.2d 800, 803 (Pa. 1989) (citing Section 908(2) of the 

factor in determining an appropriate amount of punitive damages in cases tn Pennsylvania, see 

Finally, as the issue was raised by Defendant, although wealth has been considered as a 

at 425. That is not an unconscionable result. 

and compensatory damages of I 0:.1 is just beyond the single-digit range- favored in. Campbell, id. 

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2012-C-3314