Rivers v. Burger

72 Pa. D. & C.4th 150
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedMarch 30, 2005
Docketno. 0594
StatusPublished

This text of 72 Pa. D. & C.4th 150 (Rivers v. Burger) 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
Rivers v. Burger, 72 Pa. D. & C.4th 150 (Pa. Super. Ct. 2005).

Opinion

SYLVESTER, J,

FACTUAL AND PROCEDURAL HISTORY

The above-captioned matter was tried before the undersigned sitting with a jury on August 2, 2004 through August 4, 2004. The facts adduced at trial showed that on August 10,2001, plaintiff Gladys Rivers was driving on Ditman Street in Philadelphia when she stopped approximately five feet behind a truck, which was stopped for a red light. While stopped, her vehicle was struck in the rear by a vehicle being driven by the defendant, James Burger. The impact pushed plaintiff into the vehicle in [152]*152front of her. Although plaintiff testified that the defendant told her that he thought the light was green, defendant testified that the accident occurred when his foot slipped off the brake as he was looking on the floor for his sunglasses. Whatever the reason, the defendant stipulated to liability for causing the rear-end collision.

Plaintiff testified that her body went backwards, forward and backwards again when struck by defendant’s vehicle. Immediately following the accident, plaintiff drove home where she put ice on her shoulder and neck. When she could barely get out of bed the next morning, plaintiff went to the emergency room at Frankford Hospital, complaining of pain in her neck, back, right shoulder and arm. She was treated and released with instructions to see her family doctor. Plaintiff’s physician, Dr. Richard Cautilli, treated her for the pain with a series of epidural injections and sent her for physical therapy. Ms. Rivers’ medical records showed physical injuries to her neck and back, resulting in radiculopathy and injuries to her nerves, and disc protrusions at C5 and C6. Defendant’s medical expert, Dr. Edward Resnick, testified that Ms. Rivers sustained strains in her neck and back as a result of the motor vehicle accident. Plaintiff, who was employed as an assistant manager with Strauss Discount Auto at the time of the accident, testified that she was unable to work for a period of six months due to the injuries she sustained in the rear-end collision.

On August 5, 2004, the jury returned a verdict in favor of the defendant, finding that the defendant’s conduct was not a substantial factor in causing any injury to Ms. Rivers. On August 12, 2004, plaintiffs filed a motion for post-trial relief on grounds that the verdict was [153]*153against the weight of the evidence where both parties’ medical experts agreed that Ms. Rivers was injured as a result of the rear-end collision with defendant. On January 6, 2005, this court granted plaintiffs a new trial on the issue of damages. Unfortunately, the grant of post-trial relief did not occur within 120 days of the filing of the motion for post-trial relief, and, thus, was a legal nullity. As a result of the confusion caused by the late grant of post-trial relief by this court, both parties filed notices of appeal.

LEGAL DISCUSSION

Anew trial should be awarded where a jury’s verdict is so contrary to the evidence as to shock one’s sense of justice, and the award of a new trial is imperative so that right may be given another opportunity to prevail. Craft v. Hetherly, 700 A.2d 520 (Pa. Super. 1997); Randt v. Abex Corp., 448 Pa. Super. 224, 671 A.2d 228 (1996). Indeed, it is the duty of a trial court to grant a new trial when it believes the verdict was against the weight of the evidence and resulted in a miscarriage of justice. Burchard v. Seber, 417 Pa. 431, 438, 207 A.2d 896, 899 (1965). Atrial court has broad discretion to grant a new trial, and this decision should not be disturbed absent an abuse of that discretion or an error of law. Harman ex rel. Harman v. Borah, 562Pa. 455, 756 A.2d 1116, 1121 (2000). Although decided too late, this court properly granted post-trial relief in the form of a new trial on the issue of damages, where both plaintiffs’ and defendant’s medical experts, while in disagreement regarding the extent of Ms. Rivers’ injuries from the motor vehicle accident, nevertheless, agreed that she was injured as a result thereof.

[154]*154At trial, plaintiff introduced her medical records documenting the injuries she sustained as a direct result of the accident, as well as the testimony of her treating physician, Dr. Richard Cautilli, a board-certified orthopedic surgeon. Dr. Cautilli testified in pertinent part as follows:

“Q. February 18,2002. And up until that time, doctor, she had been out of work and do you have an opinion, doctor, to a reasonable degree of medical certainty as to the cause of her being out of work and what was the cause?
“A. Yes.
“Q. What was that?
“A. Low back pain, radiculopathy and cervical pain with radiculopathy.
“Q. Was that as a result of the accident of August 10, 2001?
“A. Yes.
“Q. The automobile accident?
“A. Yes.”

Later on in his testimony, Dr. Cautilli reiterated that there was no doubt in his mind that Ms. Rivers sustained these injuries as a direct result of the accident.

Defendant’s medical expert, Dr. Edward Resnick, also a board-certified orthopedic surgeon, testified in pertinent part as follows:

“Q. Now, doctor, as a result of your examination, did you reach any conclusions or opinions with regard to her medical condition when you examined her?
“A. I did.
[155]*155“Q. And could you state to the ladies and gentlemen of the jury your opinion with regard to that examination?
“A. Yes. If I may refer to my report for accuracy.
“Q. At any point, doctor, if you need to refer, please do.
“A. Thank you. I made two diagnoses that day. One was of strains of her neck and back, which she had sustained on the date of her accident, August 10, 2001, from her history; that is, from what she had told me. I said that they had objectively resolved, which means I felt that there was no evidence on my examination of anything left from those injuries physically. And the second diagnosis I made was of a possible minor right shoulder impingement syndrome, which means, for practical purposes, what people commonly call tendonitis or bursitis of the shoulder. Those were the diagnoses.”

Later on in Dr. Resnick’s testimony, he again stated that he could say “with a reasonable degree of medical certainty that the diagnosis does include strains of her neck and back, which I felt that she had sustained in that accident in August of 2001 on the basis of history and the records which I had been reviewing, and I felt again that they had objectively resolved or recovered.”

In Pentarek v. Christy, 854 A.2d 970 (Pa. Super.

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Related

Randt v. Abex Corp.
671 A.2d 228 (Superior Court of Pennsylvania, 1996)
Harman Ex Rel. Harman v. Borah
756 A.2d 1116 (Supreme Court of Pennsylvania, 2000)
Cacurak v. St. Francis Medical Center
823 A.2d 159 (Superior Court of Pennsylvania, 2003)
Burchard v. Seber
207 A.2d 896 (Supreme Court of Pennsylvania, 1965)
Craft v. Hetherly
700 A.2d 520 (Superior Court of Pennsylvania, 1997)
Pentarek v. Christy
854 A.2d 970 (Superior Court of Pennsylvania, 2004)

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Bluebook (online)
72 Pa. D. & C.4th 150, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rivers-v-burger-pactcomplphilad-2005.