Dappolone v. Andrews

8 Pa. D. & C.3d 17, 1978 Pa. Dist. & Cnty. Dec. LEXIS 203
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedJune 20, 1978
Docketno. 4518
StatusPublished

This text of 8 Pa. D. & C.3d 17 (Dappolone v. Andrews) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dappolone v. Andrews, 8 Pa. D. & C.3d 17, 1978 Pa. Dist. & Cnty. Dec. LEXIS 203 (Pa. Super. Ct. 1978).

Opinion

GREENBERG, J.,

— Presently before the court is defendants’ motion for new trial.

The factual setting of this case is as follows:

On January 11, 1975, plaintiff-husband was injured when a van-truck he was operating was struck head-on by a tractor trailer being operated by defendant, Kenneth Andrews. As a result of the accident, plaintiff suffered serious injuries which are, in part, permanent. At the conclusion of the trial, the jury returned a verdict in favor of plaintiff and against defendants in the sum of $480,000 ($20,000 of which was awarded to plain tiff-wife for loss of consortium).

Defendants have filed their motion for new trial on the ground that we erred: first, by permitting the plaintiffs expert witness, Dr. Les Seplaki, an economist, to testify to his opinion of the age to which plaintiff-husband would have worked if he had not been injured; second, by permitting the same witness, in projecting plaintiffs future lost earnings, to include a $10 per week increase as set forth in past and present uilion contracts; and third, by permitting the projection of future lost earnings based upon plaintiffs contention that he is permanently and totally disabled, when defendants contend that this was not proven.

In addition, defendants have moved for a new trial on the ground that the verdict was excessive.

We believe defendants’ contentions are without merit and accordingly deny their motion for new trial.

[19]*19First, defendants argue that we committed reversible error in permitting plaintiffs expert, an economist, to testify that in his opinion plaintiff had a work-life expectancy from the date of trial of 10.8 years or to age 70. Defendants assert that the expert’s opinion went well beyond the permissible bounds of expert testimony and constitutes a ground for a new trial. Defendants argue that the issue of future lost earnings is determined on the basis of anticipated future yearly earnings multiplied by the number of years he would have worked had he not been injured. In making this calculation, the jury is required to consider factors which traverse virtually every aspects of life: sex, prior state of health, nature of daily employment and its perils, if any, manner of living, personal habits, individual characteristics and other facts which may affect the duration of the injured party’s life; in short, imponderables which simply are not subject to clear scientific assessment. To have permitted Dr. Seplaki to give his opinion of the work-life expectancy of plaintiff constituted an obvious intrusion into a pivotal part of the jury’s fact-finding process, defendants conclude.

We believe that this court committed no reversible error by permitting Dr. Seplaki to testify. The Pennsylvania Supreme Court in the case of Reardon v. Meehan, 424 Pa. 460, 227 A. 2d 667 (1967), has said that:

“ ‘A qualified expert may be permitted to assert a relevant fact not generally known but known to him because of his special training and experience. But this special training and experience must be confined to technical knowledge which is beyond that of the average man and to that which would be of [20]*20assistance in determining the ultimate issues in the case.’ ” The opinion of Dr. Seplaki was in accordance with this standard.

Dr. Seplaki testified that he considers work-life expectancy tables “much less accurate than using the actual retirement age of a specific person in a specific situation because such tables of the Department of Labor are based on age ranges.” Dr. Seplaki testified that, as an economist, he was familiar with “the current legislative trends where even the presently prevailing rather widely used age 65 at the moment is being challenged and may very well be eliminated ... so I would think in the case of an individual who has a consistent working history that age 70 would be quite reasonable.” Dr. Seplaki also considered the fact that plaintiffs union agreement provided for no mandatory retirement age, thus he testified that it was important to him that plaintiff “was not going to be under compulsion to retire at age 65.”

Thus it was Dr. Seplaki’s special training and experience as an economist which enabled him to become familiar with the current legislative trend toward establishing retirement at age 70, as well as the significance of the type of union agreement in question. That this is so is substantiated by the fact that both Congress and the United States Supreme Court recognized age 70 as a proper retirement age a short time after he testified.

Defendants did not produce any testimony as to the legislative trends or the usual age at which workers such as plaintiff retire or any evidence about his living habits or anything else which might affect his work-life expectancy. All of this [21]*21evidence, including the expert’s opinion, was introduced by plaintiff. All of it could properly be considered by an expert economist such as Dr. Seplaki as he did in this case. Defendants argue now that the jury was not entitled to the expert’s opinion based on his expertise and the testimony. As indicated, the law is to the contrary. Defendants’ argument might have more validity if they had presented evidence to contradict that of plaintiff as to his work habits, life style, etc. But where, as here, the evidence is undisputed, their contention has no merit, especially in light of the charge of the court on this subject as hereafter discussed.

Here the opinion of Dr. Seplaki related to the value of work-life expectancy tables as opposed to the background of the injured party, the current legislative trend as to retirement age and the significance of a union agreement without a mandatory retirement age, and the age to which plaintiffs father worked, all factors within the expertise of Dr. Seplaki: Reardon v. Meehan, supra.

Assuming that an argument could be made that this testimony was improper, at most it was harmless error in view of our charge to the jury on this subject.

We specifically discussed the opinion of Dr. Seplaki in our charge to the jury and instructed the jury to consider the qualifications and reliability of Dr. Seplaki and the reasons given for his opinion. We further advised the jury that it was not bound by Dr. Seplaki’s opinion merely because he was an expert and that the jury could accept or reject such opinion. Further the court stated that it was up to the jury to give the weight, if any, to which it deemed the opinion of Dr. Seplaki to be entitled.

[22]*22In addition, we specifically charged the jury as to the criteria to be considered in connection with future lost earnings: “In considering that amount you may consider the type of work plaintiff has done, the type of work in view of his physical condition, experience, education and age he would have been doing and would be doing in the future, the extent or duration of plaintiffs injuries, together with all other matters which are reasonably relevant.”

We further discussed in our charge as to how the jury should consider the specific testimony in this case as to work-life expectancy stating as follows:

“Now, with respect to work expectancy you heard testimony about that. The expert did not use any table on that.

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Related

Havens v. Tonner
365 A.2d 1271 (Superior Court of Pennsylvania, 1976)
Reardon v. Meehan
227 A.2d 667 (Supreme Court of Pennsylvania, 1967)
McCaffrey v. Schwartz
132 A. 810 (Supreme Court of Pennsylvania, 1926)
Pauza v. Lehigh Valley Coal Co.
80 A. 1126 (Supreme Court of Pennsylvania, 1911)

Cite This Page — Counsel Stack

Bluebook (online)
8 Pa. D. & C.3d 17, 1978 Pa. Dist. & Cnty. Dec. LEXIS 203, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dappolone-v-andrews-pactcomplphilad-1978.