Deivert, M. v. Pittsburgh Chauffeur

Superior Court of Pennsylvania

Deivert, M. v. Pittsburgh Chauffeur

DecidedApril 2, 2018

Docket1314 WDA 2017

StatusUnpublished

This text of Deivert, M. v. Pittsburgh Chauffeur (Deivert, M. v. Pittsburgh Chauffeur) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Deivert, M. v. Pittsburgh Chauffeur, (Pa. Ct. App. 2018).

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Opinion

J-A06042-18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

MATTHEW T. DEIVERT, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : PITTSBURGH CHAUFFEUR, LLC, : : Appellant : No. 1314 WDA 2017

Appeal from the Judgment Entered September 1, 2017 in the Court of Common Pleas of Allegheny County Civil Division at No(s): GD No 15-019904

BEFORE: BENDER, P.J.E., SHOGAN, and STRASSBURGER, JJ.*

MEMORANDUM BY STRASSBURGER, J.: FILED April 2, 2018

Pittsburgh Chauffeur, LLC, appeals from the judgment entered against

it on September 1, 2017, after a jury awarded Matthew T. Deivert $500,000

for injuries sustained during a limousine ride provided by Pittsburgh Chauffer.

We affirm.

The facts of this case are summarized in the trial court opinion authored

by the Honorable Alan J. Hertzberg, and filed on October 27, 2017; thus, we

need not recite them in full here. See Trial Court Opinion, 10/27/2017, at 1-

4. Briefly, on February 1, 2014, Deivert was invited by a friend to celebrate

her birthday, which involved riding between bars and night clubs in vehicles

owned by Pittsburgh Chauffeur. Around 2:00 a.m. on February 2, Deivert and

approximately 19 others “cramm[ed] into the limousine” meant to fit 10

people. Id. at 2. During the ride, Deivert felt intense pain near his knee, and

*Retired Senior Judge assigned to the Superior Court. J-A06042-18

when he got out of the limousine, he saw a burn on his leg. Eventually, Deivert

was referred to a burn specialist, who diagnosed Deivert with having sustained

a third-degree burn. Deivert had two surgical grafts performed and was left

with two large, permanent scars on his thigh and knee.

On November 9, 2015, Deivert filed a complaint against Pittsburgh

Chauffeur alleging it was negligent in providing too small of a limousine to

accommodate the number of passengers that night. Deivert alleged that the

proximate cause of his third-degree burn was due to riding in that limousine.

A jury trial was held from May 9 to May 11, 2017. Prior to trial,

Pittsburgh Chauffeur presented a motion in limine to exclude testimony of

Deivert’s medical and causation expert, Dr. Gregory Habib. The trial court

denied that motion. The jury trial commenced, and on May 11, 2017, the jury

returned a verdict in favor of Deivert and against Pittsburgh Chauffeur for

$500,000. Pittsburgh Chauffeur filed post-trial motions, which were denied

on August 7, 2017. Pittsburgh Chauffeur filed a timely notice of appeal, and

both Pittsburgh Chauffeur and the trial court complied with Pa.R.A.P. 1925.

On appeal, Pittsburgh Chauffeur sets forth the following six questions

for our review.

1. Whether the court abused his discretion or committed an error of law in denying the motion in limine to exclude testimony of [Deivert’s] medical expert when Dr. Habib could not support his methodology opinion with medical literature, studies or testing and when his testimony lacked foundation to support his opinion that an injury of this severity could ever be caused in the manner as alleged.

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2. Whether the court committed an error of law in denying the motion for post-trial relief and/or the motion for judgment notwithstanding the verdict when the verdict was against the weight of the evidence and when [Deivert] lacked competent evidence in the form of medical testimony or otherwise show that an overloaded or overcrowded limousine could result in a full thickness third[-]degree burn caused by one person’s leg rubbing against another under the circumstances presented or under any circumstances.

3. Whether the court abused its discretion or committed an error of law in denying the motion for post-trial relief when the court permitted [Deivert’s] medical expert, Dr. Habib, to give testimony in the form of argument; to assign an unfair burden of proof upon [Pittsburgh Chauffeur]; and to testify that [Pittsburgh Chauffeur’s] expert testimony was defective for failing to provide an alternate theory of causation.

4. Whether the court abused its discretion or committed an error of law in denying the motion for post-trial relief when the court refused proposed points for charge regarding the mere happening of an accident; the mere fact of damages and speculation not being a basis for any award.

5. Whether the court abused its discretion or committed an error of law in denying the motion for post trial relief when the court re-drafted the jury verdict slip to have the jury question on negligence refer to the standard of care – “highest duty of care,” as opposed to whether or not Pittsburgh Chauffeur was negligent.

6. Whether the court abused its discretion or committed an error of law in denying the motion for remittitur.

Pittsburgh Chauffeur’s Brief at 3-5 (unnecessary capitalization omitted).

Following a review of the certified record and the briefs for the parties,

we conclude that the opinion of the Honorable Alan Hertzberg thoroughly

addresses Pittsburgh Chauffeur’s issues and arguments and applies the

correct law to facts that are supported by the record. We discern no error or

abuse of discretion. Therefore, we adopt the trial court’s opinion of October

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27, 2017 as our own and affirm Deivert’s judgment based upon the reasons

stated therein.1 See Trial Court Opinion, 10/27/2017, at 4-8 (explaining that

it did not err or abuse its discretion in denying Pittsburgh Chauffeur’s motion

in limine seeking to exclude Dr. Habib’s testimony where Dr. Habib did not

employ a novel methodology, and Dr. Habib did not need to support his expert

medical opinion with literature or studies); id. at 6-9 (concluding that it did

not err by not granting judgment notwithstanding the verdict or by not

awarding a new trial with respect to purported inaccuracies in Dr. Habib’s

testimony);2 id. at 9-11 (concluding that there was no error in the jury charge

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1 The parties shall attach a copy of the trial court’s October 27, 2017 opinion to this memorandum in the event of further proceedings. 2 Pittsburgh Chauffeur also claims that the verdict was against the weight of the evidence. See Pittsburgh Chauffeur’s Brief at 33-42 (arguing the testimony of “Deivert and his two friends was grossly incompetent,” and that the “expert testimony by Dr. Habib … does not support a conclusion that an overloaded or overcrowded limousine could result in” the injury Deivert sustained).

A motion for a new trial alleging that the verdict was against the weight of the evidence is addressed to the discretion of the trial court. An appellate court, therefore, reviews the exercise of discretion, not the underlying question whether the verdict is against the weight of the evidence. The factfinder is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. The trial court will award a new trial only when the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice. In determining whether this standard has been met, appellate review is limited to whether the trial judge’s discretion was properly exercised, and relief will only be granted where the facts and inferences of record disclose a palpable abuse of discretion. Thus, the trial court’s denial of a motion for a new

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where Pittsburgh Chauffeur’s proposed points for charge were repetitious); id.

at 11-12 (concluding that it did not abuse its discretion in fashioning the

verdict slip in a way it believed would not confuse the jurors); id. at 12-15

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