Fischer v. Troiano

44 Pa. D. & C.4th 372, 2000 Pa. Dist. & Cnty. Dec. LEXIS 368
CourtPennsylvania Court of Common Pleas, Lackawanna County
DecidedJanuary 12, 2000
Docketno. 96-CV-753
StatusPublished

This text of 44 Pa. D. & C.4th 372 (Fischer v. Troiano) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lackawanna County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fischer v. Troiano, 44 Pa. D. & C.4th 372, 2000 Pa. Dist. & Cnty. Dec. LEXIS 368 (Pa. Super. Ct. 2000).

Opinion

NEALON, J.,

— Plaintiffs, Robert Fischer and Stella Fischer, have filed a motion for a new trial on damages only and a petition for delay damages under Pa.R.C.P. 238 following a verdict in their favor in which the jury declined to award any noneconomic damages. Since the defense medical expert testified that plaintiff, Stella Fischer, sustained a vertebral fracture which took at least three months to resolve, the motion for a new trial on damages only will be granted on her behalf, [373]*373but denied with respect to the personal injury and consortium claims of plaintiff, Robert Fischer. In light of the grant of a new trial on damages, the petition for prejudgment interest pursuant to Pa.R.C.P. 238 will be dismissed as moot relative to plaintiff, Stella Fischer, and granted as to plaintiff, Robert Fischer.

I. FACTUAL BACKGROUND

Plaintiffs, Robert Fischer and Stella Fischer, commenced this litigation based upon a slip-and-fall incident that occurred on April 23,1994, at the home of defendants, Joseph Troiano and Sophia Troiano, as a result of which Mr. Fischer and Mrs. Fischer sustained personal injuries. In their complaint, Mrs. Fischer sought to recover damages for her medical expenses and pain and suffering causally related to her injuries, whereas Mr. Fischer claimed damages for loss of his injured wife’s consortium. Although Mr. Fischer also advanced a separate claim for medical costs and noneconomic damages attributable to his own relatively minor injury, Mrs. Fischer did not assert a cause of action for loss of her husband’s consortium.

At the time of trial, the Fischers argued that they were both injured when they simultaneously fell during a bridal shower at the Troianos’ home. The Fischers maintained that their falls were caused by an obscured single step which led into a sunken living room, and they offered lay and expert testimony in support of their negligence claims. The Troianos denied any liability for the fall and further posited that the Fischers’ alleged injuries were the product of their own contributory negligence.

With respect to the issue of damages, Mrs. Fischer introduced the expert testimony of her family physician, James J. McGraw Jr. M.D., and an orthopedic specialist, [374]*374Albert M. Murtland M.D. Both medical experts opined that Mrs. Fischer sustained a chest wall contusion, an aggravation of a preexisting degenerative condition in her lumbar spine, and a compression fracture of the thoracic vertebra at the T-ll level which had been objectively demonstrated by radiographic studies such as x-rays and bone scans. Dr. McGraw and Dr. Murtland also testified as to Mrs. Fischer’s symptomatology and the physical restrictions that they had imposed upon her as a result of her injuries. (See transcript of Dr. James J. McGraw Jr. deposition dated 10/2/98, pp. 8-20; transcript of Dr. Albert M. Murtland deposition dated 9/17/98, pp. 12-29.) In addition, Mr. Fischer offered the medical testimony of Matthew T. Kuber M.D. who treated him on three occasions on May 3, 1994, June 6, 1994 and August 28, 1994, for a “contusion to the right elbow” which had completely healed by August 1994. (See transcript of Dr. Matthew T. Kuber deposition dated 10/ 2/98, pp. 7-13.)

Inasmuch as Mr. Fischer was not claiming a serious or permanent injury, the Troianos did not introduce any expert testimony to rebut the opinions of Dr. Matthew T. Kuber. However, the defense did have Mrs. Fischer examined by an orthopedic surgeon, Jeffrey A. Mogerman M.D., who testified at trial by way of videotaped deposition. Dr. Mogerman disputed the nature and extent of Mrs. Fischer’s injuries and opined that her condition had completely resolved as of the date of his examination on July 22,1998. Notwithstanding that fact, Dr. Mogerman did agree that Mrs. Fischer sustained a compression fracture of her thoracic vertebra which was causally related to the fall on April 23, 1994. (See transcript of Dr Jeffrey A. Mogerman deposition, pp. 25, 33, 36, 39-40.) Furthermore, although Dr. Mogerman denied that the [375]*375fracture caused permanent symptoms, he testified that Mrs. Fischer’s injury would have caused some temporary pain that would have subsided within three to five months. (Id., pp. 26, 38.)

At the conclusion of three days of testimony, the jury returned a verdict finding both the Fischers and the Troianos causally negligent. In accordance with the provisions of the Comparative Negligence Act, the jury apportioned the parties’ respective liability by allocating 60 percent causal negligence to the Troianos and 40 percent responsibility to the Fischers. With regard to Mrs. Fischer’s claim for damages, the jury answered special verdict interrogatories by awarding $24,588.73 for medical expenses, but zero damages for past and future pain and suffering, mental anguish, discomfort, inconvenience, embarrassment and humiliation, and loss of the ability to enjoy the pleasures of life. The jury also assessed zero damages to Mr. Fischer in connection with his loss of consortium claim and awarded $231.70 to Mr. Fischer for his own personal injuries, which amount was equal to the medical expenses that he had incurred. By order dated April 7,1999, Mrs. Fischer’s gross award of $24,588.73 was molded to $14,753.24, and Mr. Fischer’s verdict of $231.70 was reduced to $139.02 to reflect the causal negligence which had been assigned to them by the jury.

The Fischers filed a timely motion for a new trial on the issue of damages only and contemporaneously submitted a petition for delay damages seeking an award of prejudgment interest pursuant to Pa.R.C.P. 238. The Troianos filed a response to the Fischers’ post-trial motions and alternatively argued via new matter that if a new trial was deemed warranted, it should be granted as to all issues “since the plaintiffs should not have the ben[376]*376efit of a liability verdict which the jury may not have made if the jury were not permitted to award only the compromised amount that the jury did award.”

In their motion for a new trial, the Fischers contend that the jury could not return a zero award for noneconomic damages inasmuch as the uncontroverted evidence established that the Fischers suffered injuries which were “of the type that naturally and normally cause pain and suffering.” (See plaintiffs’ motion for new trial on damages only, ¶4.) The Troianos counter that it was within the province of the jury to gauge the credibility of the witnesses and award no damages to the Fischers for their claims for noneconomic damages. On November 30, 1999, the court reporter filed the transcript of the trial proceedings, and the parties were thereafter afforded 30 days within which to submit their memoranda of law, at which time this matter became ripe for disposition.

II. DISCUSSION

(A) Standard of Review

When ruling on a motion for a new trial, the court must view all the evidence, and if it concludes that the judicial process has effected a serious injustice, only then should it grant a new trial. Clack v. PennDOT, 710 A.2d 148, 151 n.5 (Pa. Commw. 1998). “A new trial is warranted when the jury’s verdict is so contrary to the evidence that it shocks one’s sense of justice.” Martin v. Evans, 551 Pa. 496, 501, 711 A.2d 458, 461 (1988); Kiser v. Schulte, 538 Pa.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Putt v. Yates-American MacHine Co.
722 A.2d 217 (Superior Court of Pennsylvania, 1998)
Costa v. Lauderdale Beach Hotel
626 A.2d 566 (Supreme Court of Pennsylvania, 1993)
Slaseman v. Myers
455 A.2d 1213 (Superior Court of Pennsylvania, 1983)
Kiser v. Schulte
648 A.2d 1 (Supreme Court of Pennsylvania, 1994)
Wirth v. Miller
580 A.2d 1154 (Supreme Court of Pennsylvania, 1990)
Clack v. Commonwealth, Department of Transportation
710 A.2d 148 (Commonwealth Court of Pennsylvania, 1998)
Boggavarapu v. Ponist
542 A.2d 516 (Supreme Court of Pennsylvania, 1988)
Tindal v. Southeastern Pennsylvania Transportation Authority
560 A.2d 183 (Supreme Court of Pennsylvania, 1989)
Miller v. Hellman
641 A.2d 592 (Superior Court of Pennsylvania, 1994)
Rozanc v. Urbany
664 A.2d 619 (Superior Court of Pennsylvania, 1995)
City of Pittsburgh v. Jodzis
607 A.2d 339 (Commonwealth Court of Pennsylvania, 1992)
Catalano v. Bujak
642 A.2d 448 (Supreme Court of Pennsylvania, 1994)
Neison v. Hines
653 A.2d 634 (Supreme Court of Pennsylvania, 1995)
Thompson v. City of Philadelphia
493 A.2d 669 (Supreme Court of Pennsylvania, 1985)
Arthur v. Kuchar
682 A.2d 1250 (Supreme Court of Pennsylvania, 1996)
Hixson v. Barlow
723 A.2d 716 (Superior Court of Pennsylvania, 1999)
Martin v. Evans
711 A.2d 458 (Supreme Court of Pennsylvania, 1998)
Lupkin v. Sternick
636 A.2d 661 (Superior Court of Pennsylvania, 1994)
Hughes v. GAF Corp.
528 A.2d 173 (Supreme Court of Pennsylvania, 1987)
Todd v. Bercini
92 A.2d 538 (Supreme Court of Pennsylvania, 1952)

Cite This Page — Counsel Stack

Bluebook (online)
44 Pa. D. & C.4th 372, 2000 Pa. Dist. & Cnty. Dec. LEXIS 368, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fischer-v-troiano-pactcompllackaw-2000.