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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. Th e 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 aft er 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 fift y years old at the time of the accident. She was employed, as she had been for many years, as aJ
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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 accide nt, 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 wit h 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 di d 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 s ome 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.J
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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 therap y 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 work

related 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 o f the lumbar and thoracic spines and a lumbar sprain/strain as a result of the August 15, 2010 accident.J
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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 indica ted 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 medica l 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 M arch 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 Handwer k 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 sympto matic 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. Th e jury awarded Mr. Hamm no damages for loss of consortium. The court moldedJ
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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. Nat han 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 time ly 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 fol lowing 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 RECOVERABL E 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 Rul e 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 appea l, citing Pa.R.A.P. 302; likewise, issues absent from court

- ordered Rule 1925(b) statement are waived for purposes of appellate review).J
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- AND THORACIC DEGE NERATIVE 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 D ISABILITY (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 FA ILING 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 REGAR DING 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 C ONCERNING 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]J
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- CONDUCT WAS OUTRAGEOUS AND DESERVING OF PUNITIVE DA MAGES; 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 DAMAGE S 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 c onceded 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 admitt ed 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 ina dequate 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 chargeJ
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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 brief s 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 on ly 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 thatJ
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-

aggravated pre

- existing degenerative condition; Mrs. Hamm’s inju ries 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 com pensate 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 existe d at time of tortfeasor’s negligent act; here, Mrs. Hamm sought to make Nathan Handwerk responsible for subsequent injuries she sustained from her subsequent work

related accidents on 3/28/11 and 9/21/11; Mrs. Hamm offered no evidence to demonstrate her wo rk

- 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 demonstr ating eitherJ
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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 he r 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 radiol ogist; 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.J
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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/8/2016and 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 PMIn 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 j ury 

### was instructed to her consortium. dis abled. 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 W3

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-33144

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, 20 1 1 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 ho li days, FILED 3/16/2015 9:3? · -'18 AM,Clerk of Jud i cial Records, Civil r · · i i sion, Lehigh County, PA

. 2012-C-3314 islJ W5

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 FILED 3/16/2015 9:~"

- 18 AM, Clerk of Judicial Records, Civi'



### . 2012-C-33146

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 speci al 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 FILED 3/16/2015 9:33·~B AM.Clerk 

### of Judicial Records, Civil 

### r 'slon, Lehigh County, PA 2012-C-3314 /s/J W7

have been a contributing cause to the plaintiff's present compl aints." (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, Thejury, 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 Decemher 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 FILED 3/16/2015 9:3~ · "'~ AM.Clerk of Judicial Records, Civil r 'slon, Lehigh County, PA 2012-C-3314 /s/J W8

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 . lslon, Lehigh County , PA /s/J W FILED 3/16/2015 9:2"

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. 2012-C-33149

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 c aused 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, r ision, Lehigh County, PA /s/J 

### W FILED 3/16/2015 9:2" ' 18 AM, Clerk of Judicial Records, Civ! ·

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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 F ann 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 FILED 3/16/2015 .9:3?·".)~ AM,Clerk of Judicial Records, Civil· ' sion, Lehigh County, PA

. 2012-C-3314 · /s/J W11

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 ision, Lehigh County , PA /s/J W FILED 3/16/20159:3" · ~8 AM.Clerk of Judicial Records, Civil

. 2012-C-331412

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. ' slon, Lehigh County, PA /s/J W FILED 3/16/2015 9:3?

-- '.'l~ AM,Clerk of Judicial Records, Civil· 2012-C-3314