Corvin, J. v. Tihansky, D. , 184 A.3d 986 ( 2018 )

J-A06027-18
2018 PA Super 91JAMES K. CORVIN III, AN : IN THE SUPERIOR COURT OF
INDIVIDUAL : PENNSYLVANIA
:
Appellant :
:
:
v. :
:
: No. 1263 WDA 2017
DENNIS P. TIHANSKY, AN :
INDIVIDUAL :
Appeal from the Judgment Entered July 21, 2017
In the Court of Common Pleas of Washington County Civil Division at
No(s): 2011-9139
BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER*, J.
OPINION BY SHOGAN, J.: FILED APRIL 20, 2018
Appellant, James K. Corvin III, appeals from the judgment entered on
July 21, 2017, in the Court of Common Pleas of Washington County,
following the trial court’s denial of Appellant’s post-trial motion for judgment
notwithstanding the verdict (“JNOV”) or for a new trial. We affirm.
The trial court summarized the facts and history as follows:
On November 9, 2010, [Appellant] was stopped at a stop
sign in Washington County, when he was rear-ended by an
automobile driven by Dennis P. Tihansky, [Appellee
(“Tihansky”)]. An ambulance took [Appellant] to the
Washington Hospital where he was examined, treated and
released. On November 10, 201[0], he visited his primary care
physician, Dr. Means, complaining of neck pain, headache and
dizziness, lightheadedness and arm pain. Dr. Means prescribed
pain medication and ordered physical therapy. Two weeks later
[Appellant] returned with the same complaints. He related that
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* Retired Senior Judge assigned to the Superior Court.
J-A06027-18
he had not been to work because he could not focus while
driving or on paperwork. Approximately two weeks later,
[Appellant] returned and reported he was no better. Dr. Means
prescribed an MRI test. After viewing the MRI results, Dr. Means
referred [Appellant] to Dr. Maroon, a neurosurgeon, who
examined [Appellant] on January 11, 2011. Dr. Maroon
diagnosed a herniated disc at C6-7 and recommended an
anterior cervical discectomy and interbody fusion.[1]
A complaint was filed and eventually the matter came to
be heard by a jury in October of 2016. [Tihansky] admitted
negligence. On the fourth day of trial, the case was handed to
the jury along with a verdict slip. Question 1 asked:
Do you find from a preponderance of the evidence
that the negligence of [Appellee], Dennis P.
Tihansky, was a factual cause of any harm to
[Appellant], James K. Corvin, III?
The jury answered “No” and returned to the courtroom.
[Appellant] filed a timely motion for post-trial relief,
requesting in the alternative, [JNOV], or a new trial. (Given
[Tihansky’s] admission of negligence, granting either form of
relief would result in another trial limited to the issue of
damages).
Trial Court Opinion, 7/7/17, at 1–2. Appellant filed a court-ordered
Pa.R.A.P. 1925(b) statement on September 20, 2017. In lieu of a Pa.R.A.P.
1925(a) opinion, the trial court relied upon its opinion denying post-trial
relief filed on July 7, 2017.
Appellant raises the following issues for our review:
I. Did the Trial Court commit error in denying [Appellant’s]
Motion for Judgment Notwithstanding the Verdict (JNOV)
on the issue of causation, when the verdict was such that
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1 Appellant underwent surgery in January of 2011. N.T., 10/25/16, at 53.
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no two reasonable minds could disagree that there should
have been a causation finding in favor of [Appellant]?
More specifically, did the Trial Court commit error by
denying [Appellant’s] Motion for Judgment Notwithstanding
the Verdict (JNOV) on the issue of causation despite the
fact that [Tihansky’s] own expert admitted that [Appellant]
sustained an injury as a result of the subject automobile
accident?
II. Did the Trial Court commit error in denying [Appellant’s]
Motion for a New Trial on the issue of causation when the
verdict was against the clear and substantial weight of the
evidence? Specifically, in light of the fact that [Tihansky’s]
own expert admitted that [Appellant] sustained an injury
as a result of the subject automobile accident, did the
jury’s finding of “no causation” shock one’s “sense of
justice?”
Appellant’s Brief at 6.
Appellant’s first issue involves the following standards. The propriety
of a JNOV is a question of law, and therefore, our scope of review is plenary.
Foster v. Maritrans, Inc., 790 A.2d 328, 330 (Pa. Super. 2002). When the
denial of JNOV is challenged on the basis that the evidence was such that no
two reasonable minds could disagree that the outcome should have been
rendered in favor of the movant, as here, this Court reviews the evidentiary
record and must conclude “that the evidence was such that a verdict for the
movant was beyond peradventure.” Reott v. Asia Trend, Inc., 7 A.3d 830,
835 (Pa. Super. 2010). Moreover,
In reviewing a trial court’s decision whether or not to grant
judgment in favor of one of the parties, we must consider the
evidence, together with all favorable inferences drawn
therefrom, in a light most favorable to the verdict winner. Our
standards of review when considering motions for a directed
verdict and judgment notwithstanding the verdict are identical.
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We will reverse a trial court’s grant or denial of a [JNOV] only
when we find an abuse of discretion or an error of law that
controlled the outcome of the case. Further, the standard of
review for an appellate court is the same as that for a trial court.
Reott, 7 A.3d at 835.
Appellant argues that because Tihansky’s medical expert admitted that
Appellant sustained an injury when Tihansky rear-ended Appellant, who was
stopped at a stop sign, the jury’s finding that Tihansky’s negligence was not
a factual cause of any harm “is incomprehensible.” Appellant’s Brief at 16.
Moreover, because Tihansky admitted negligence, Appellant contends that
“no two reasonable minds could disagree that a causation finding should
have been rendered in favor of [Appellant,] and [Appellant’s motion for
JNOV] should have been granted.” Id.Before we address the merits of this issue, we must ascertain whether
it was preserved for our review. Following our careful review of the record,
we agree with Tihansky that the issue is waived because Appellant failed to
move for a directed verdict at the close of Tihansky’s evidence and withdrew
his request for a binding jury instruction. Tihansky’s Brief at 10. Appellant
acknowledges that he failed to move for a directed verdict but posits we
should overlook the waiver, relying upon Ty-Button Tie, Inc. v. Kincel and
Co., Ltd., 814 A.2d 685 (Pa. Super. 2002), and Soderburg v. Weisel, 687
A.2d 839, 845 (Pa. Super. 1997), in support. Appellant’s Brief at 16 n.1;
N.T., 10/26/16, at 175. Appellant suggests, like the appellant in Ty-
Button, that while he “technically waived [his] right to JNOV by not moving
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for a directed verdict,” this Court should overlook the error and address the
issue on the merits “because the trial court took the opportunity to address
any error it may have made by its review of Appellant’s Post-Trial Motions.”
Appellant’s Brief at 16–17 n.1. Tihansky counters that the exception
addressed by this Court in Ty-Button does not apply herein. Tihansky’s
Brief at 11.
This Court requires a motion for directed verdict during trial as a
prerequisite to a post-trial motion for JNOV based on the state of the
evidence. Thomas Jefferson Univ. v. Wapner, 903 A.2d 565, 570 (Pa.
Super. 2006). This approach has the salutary effect of submitting the issue
to the trial judge for initial evaluation during trial, when the proofs are still
fresh. Commonwealth v. U.S. Mineral Products, 927 A.2d 717, 725 (Pa.
Cmwlth. 2007). The right to seek JNOV likewise is preserved if the moving
party requests, and is denied, a binding jury instruction. See Pa.R.C.P.
227.1(b)(1); Hayes v. Donohue Designer Kitchen, Inc., 818 A.2d 1287,
1291 n.4 (Pa. Super. 2003) (“[C]ases indicate that in order to preserve the
right to request a JNOV post-trial[,] a litigant must first request a binding
charge to the jury or move for directed verdict at trial.”). Thomas
Jefferson, 903 A.2d at 570.
Herein, Appellant initially requested a jury instruction in accordance
with 7.50 of the Pennsylvania Suggested Standard Civil Jury Instructions
regarding undisputed negligence and injury. N.T., 10/26/16, at 178–179.
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Tihansky objected to this instruction on the basis that he did not concede
that Appellant was injured in this accident. In response, Appellant’s counsel
acquiesced and stated, “I would like to omit [proposed point 7.50 of the
standard jury instructions, undisputed negligence and injury] and [I] agree
with [defense counsel’s] objections to this in terms of the negligence caused
some injury to [Appellant].” N.T., 10/26/16, at 179–180.
The above scenario is nearly identical to the situation in Thomas
Jefferson. There, in reviewing the parties’ points for charge, the trial court
indicated an inclination to utilize the defendants’ points for charge, but it
entertained the parties’ objections and argument on the issue. Regarding
the binding instruction that the appellant had sought, the appellant “agreed
not to pursue the instruction it initially proffered . . . .” Thomas Jefferson,
903 A.2d at 571. We concluded in Thomas Jefferson that the appellant did
not preserve its right to request JNOV by moving for a binding jury
instruction. Although it initially requested a binding instruction, as Appellant
herein, it decided during the jury-instruction sidebar not to pursue it. Id. at
571–572.
As to Appellant’s suggestion that we should overlook waiver based
upon this Court’s action in so doing in Ty-Button, we conclude that case is
distinguishable. Ty-Button concerned a party’s failure to file a motion for a
directed verdict on the issue of insurance coverage. While noting the
appealing party’s failure to preserve its claim, we nonetheless addressed the
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merits “because the trial court took the opportunity to address any error it
may have made by its review of [the appellant’s] Post–Trial Motions.” Ty-
Button, 814 A.2d at 689–690 (citing Soderberg, 687 A.2d at 845) (holding
that “Superior Court will not preclude presentation of issue for failure to
comply strictly with Pa.R.Civ.P. 227.1(b) when trial court had an opportunity
to correct error by addressing Post–Trial Motions and chose to address
them”).
Here, as in Thomas Jefferson, however, Ty-Button and Soderberg
are inapplicable. While the instant trial court discussed the merits of
Appellant’s claim in the opinion denying post-trial motions, “its efforts
cannot be construed as an opportunity to review a prior ruling or correct an
error it made.” Thomas Jefferson, 903 A.2d at 573. As noted supra,
Appellant did not request a binding instruction that the trial court
erroneously denied. Rather, as in Thomas Jefferson, Appellant
submitted a proposed instruction, and when Tihansky objected to it,
Appellant “affirmatively abandoned it” and withdrew its request. Id.; N.T.,
10/26/16, at 179–180. “Therefore, there could have been no error
committed by the trial court, as that court was not asked to rule on the
instruction, and, in fact, issued no ruling at all.” Thomas Jefferson, 903
A.2d at 573. Moreover, similar to our conclusion in Thomas Jefferson:
We note that even if it were the case that the Soderberg
exception applied to every matter in which a trial court
addressed an unpreserved issue in its opinion, we nonetheless
would conclude that the exception is inappropriate here.7 This is
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not a garden-variety waiver case in which Jefferson failed to
lodge an exception following the trial court’s adverse ruling on a
requested jury instruction. Rather, it is a case in which Jefferson
affirmatively approved the instruction given by the trial court.
Under these circumstances, Jefferson simply is not entitled to
appellate review.
7 We note that in Takes [v. Metropolitan Edison
Co., 655 A.2d 138 (Pa. Super. 1995) (en banc),
rev’d in part, 695 A.2d 397 (Pa. 1997)], the case
upon which Soderberg relied, our Supreme Court
reversed the panel’s decision to consider a waived
issue. Takes, 695 A.2d [at] 401. The Court
cautioned that a “trial court may not eliminate the
entire purpose of making a record and invalidate the
directive in Dilliplaine [v. Lehigh Valley Trust Co.,
322 A.2d 114 (Pa. 1974)] simply by addressing an
issue” and the appellate court need not blindly defer
to a trial court that does so. Id. Further,
Soderberg's continued application is questionable in
light of the development of the law in a similar
context, namely the mandate of Pa.R.A.P. 1925(b),
as espoused in Commonwealth v. Lord, 719 A.2d
306 (Pa. 1998). . . . The rationale for this rule is
plain: whether an appellate court reviews an issue
cannot be based on the conduct, decision or whim of
the trial court; rather, it must be based on the
actions of the appellant in properly preserving issues
for review. Id. at 779–80.
Id.Thus, we conclude that Appellant has waived his right to seek JNOV by
his failure to seek a directed verdict. In addition, Appellant’s withdrawal of
the request for the binding jury instruction and instead, his asserted
acquiescence in the trial court’s charge, constituted waiver.
Appellant’s second issue alleges the trial court improperly denied his
request for a new trial. “Our standard of review in denying a motion for a
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new trial is to decide whether the trial court committed an error of law which
controlled the outcome of the case or committed an abuse of discretion.”
Stapas v. Giant Eagle, Inc., 153 A.3d 353, 359 (Pa. Super. 2016), appeal
denied, 171 A.3d 1286 (Pa. 2017) (quoting Cangemi ex rel. Estate of
Cangemi v. Cone, 774 A.2d 1262, 1265 (Pa. Super. 2001)). Here,
Appellant’s challenge is to the weight of the evidence.
[A]ppellate review of a weight claim is a review of the [trial
court’s] exercise of discretion, not of the underlying question of
whether the verdict is against the weight of the evidence.
Because the trial judge has had the opportunity to hear and see
the evidence presented, an appellate court will give the gravest
consideration to the findings and reasons advanced by the trial
judge when reviewing a trial court’s determination that the
verdict is against the weight of the evidence. One of the least
assailable reasons for granting or denying a new trial is the
lower court’s conviction that the verdict was or was not against
the weight of the evidence and that a new trial should be
granted in the interest of justice.
Phillips v. Lock, 86 A.3d 906, 919 (Pa. Super. 2014) (internal quotation
marks and citation omitted).
We stress that if there is any support in the record for the trial
court’s decision to deny the appellant’s motion for a new trial
based on weight of the evidence, then we must affirm. An
appellant is not entitled to a new trial where the evidence
presented was conflicting and the fact-finder could have decided
in favor of either party.
Winschel v. Jain, 925 A.2d 782, 788 (Pa. Super. 2007) (citing Carrozza v.
Greenbaum, 866 A.2d 369, 380 (Pa. Super. 2004), and Kruczkowska v.
Winter, 764 A.2d 627, 629 (Pa. Super. 2000)).
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In examining the evidence presented, and in concluding the verdict did
not shock its sense of justice, the trial court noted the following:
Four physicians testified, all by video deposition, two on
behalf of [Appellant] and two on behalf of [Tihansky]. Dr.
Means, [Appellant’s] primary care physician, saw him the day
after the accident, when [Appellant] complained of neck pain and
headaches, and then two weeks later, and then again two weeks
after that. Dr. Means treated him conservatively, with pain
medications and physical therapy, but eventually referred him
for an MRI. After reviewing the MRI results, Dr. Means referred
[Appellant] to Dr. Maroon, a neurosurgeon. Dr. Means made no
diagnosis, either of a herniated disc or muscle sprain or strain.
Dr. Means acknowledged on cross examination that during his
post-accident treatment of [Appellant,] he was unaware that
[Appellant] made several visits to a chiropractor eight months
before the accident, naming many of the same complaints with
which he presented to Dr. Means after the accident.
Dr. Maroon accepted Dr. Means’ referral and examined
[Appellant]. He testified that [Appellant] told him that after the
accident he developed headaches, neck pain and arm pain. He
also testified that he had been unaware of [Appellant’s] March
2010 chiropractor visits where he complained of many of the
same symptoms. From the MRI results, Dr. Maroon saw
evidence of preexisting degenerative changes in [Appellant’s]
cervical spine, typical in a man of [Appellant’s] age. Dr. Maroon
diagnosed a herniated disc at C6-7, and after consultation with
[Appellant], performed an anterior cervical discectomy and
interbody fusion. This procedure afforded [Appellant] significant,
but not total, relief. Dr. Maroon opined: “Well, given the history
that I obtained that he was not under any treatment plan with
any other practitioner at the time and he had a history of a
motor vehicle accident and immediately following the motor
vehicle accident experienced these particular symptoms, it was
my understanding or my conclusions that the proximate cause of
his complaints were (sic) related to the automobile accident even
though he did have preexisting degenerative disc disease which
is present in probably eighty percent, seventy percent of people
his age.” Maroon Dep 14. Dr. Maroon diagnosed a herniated
disc resulting from the accident. He nowhere diagnosed a
muscle or cervical strain or sprain.
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[Tihansky] called Dr. Shaer, who never examined
[Appellant] and based all his opinion on a review of the medical
records and diagnostic test results. He opined “that there is no
imaging evidence of injury as a result of the motor vehicle
accident of November 9, 2010.[”] Shaer Dep 28. He testified
that the condition of [Appellant’s] cervical spine was due solely
to aging and degenerative disc disease process.
Finally, [Tihansky] called Dr. Zorub, who reviewed the
records and examined [Appellant] in November of 2012. During
that examination, [Appellant] told him “that he had no prior
symptomology. And, yet, when I looked at the records, it’s quite
obvious he did.” Zorub Dep 12. Later, he testified that “my
opinion was that he sustained a cervical strain in the vehicular
event.” Id 21. He said [Appellant] “sustained a mechanical
flexion/exterior strain or injury, if you want, in the vehicular
event[.]” [I]d 26. Under cross examination, he testified that
[Appellant] “simply sustained a mechanical flexion and exterior
injury or strain, if you wish...In other words, I think it’s a
muscular and ligamentous aggravation or injury[.]” [I]d 36.
Finally, he said “but I will credit that he sustained an acute strain
in the event, which became more symptomatic... but I do not
think, that based upon the records, as well as my own findings
that the treatment he underwent was simply because due [sic]
to the vehicular event. There would be no reason to treat him if
he didn’t have the pre-existing condition.” Id 39.
This case was tried to recover damages for [Appellant’s]
herniated disc. He never claimed to have suffered a cervical
strain and neither physician that he called diagnosed him as
having suffered a cervical strain. Both expressed some surprise
when they learned that similar symptoms had sent [Appellant] to
a chiropractor some eight months before the accident. There
certainly was no consensus among the medical experts that
[Appellant] suffered a cervical strain. Dr. Maroon testified
[Appellant] suffered from a herniated disc and described the
procedure to remedy that injury. Dr. Means testified that his
opinion was that [Appellant] is permanently disabled because of
the motor vehicle accident and the treatment he received
because of it, including the discectomy, which he believes the
accident made necessary. He did not opine that [Appellant] is
permanently disabled because of a cervical strain.
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This case is very similar to Maiczyk vs. Oesch, 789 A.2d
917 (Pa. Super. 2001), an en banc decision. In that case, the
plaintiff was a passenger in a car that was rear-ended by the
defendant’s vehicle. She alleged that the impact caused a
herniated disc which required surgery to repair. The defendant’s
expert conceded that the plaintiff had sustained some injury, but
not a herniated disc. Instead, he opined that the plaintiff had
suffered a cervical strain. The jury returned a defense verdict.
The Superior Court framed the issue thusly: May a jury find for a
defendant despite his or her obvious negligence where it does
not believe that the plaintiff’s pain and suffering are
compensable? The Superior Court first observed that not all pain
and suffering is compensable, Boggavarapu vs. Ponist, 542 A.2d
516 (Pa. 1988) and then pointed out that the plaintiff was
seeking compensation for a serious injury, a herniated disc and
subsequent surgery, and not for a few days or weeks of
discomfort. It was entirely within the jury's province to find that
the plaintiff had suffered no compensable injuries. The trial
court was therefore affirmed.
Here, the only evidence of [Appellant’s] cervical strain was
his description of his symptoms to his doctors and Dr. Zorub.
Given the fact that he kept the knowledge of the pre-accident
existence of similar symptoms from all the physicians he
encountered, it might be observed that he presented to the jury
an issue of credibility.
Trial Court Opinion, 7/7/17, at 3–6.
In making his argument that the jury’s verdict was against the weight
of the evidence, and while acknowledging that the case is distinguishable,
Appellant’s Brief at 24, Appellant relies on Neison v. Hines, 653 A.2d 634(Pa. 1995). In Neison, the defendant’s vehicle struck the plaintiff’s vehicle
in the rear, as here. The defendant admitted liability, but the jury awarded
no damages on the ground that the defendant’s negligence had not caused
the plaintiff harm. The trial court had awarded a new trial, this Court
reversed the award of a new trial, and our Supreme Court reversed us. Id.- 12 -
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Based on the fact that the defense had failed to produce any evidence to
refute the existence of injury from the accident and that common sense
dictated that the accident, at least, caused pain, the Supreme Court
concluded that the trial court correctly determined that the jury’s verdict
bore no rational relationship to the evidence presented at trial. Id. at 638.
Neison is distinguishable. The plaintiff in Neison did not suffer from
a pre-existing condition, as did Appellant. The Neison defendant did not
present a medical expert that denied the plaintiff’s injuries, as herein.
Moreover, Appellant was involved in a low–speed collision that resulted in
minimal damage, whereas the collision in Neison was described as “violent.”
Neison, 653 A.2d at 637.
In making his argument, Appellant fails to acknowledge that one of
Tihansky’s expert witnesses, Dr. Andrew Shaer, who testified by deposition,
did not concede that Appellant was injured in the accident. Deposition of
Andrew H. Shaer, M.D., 10/17/13, at 28–30; N.T., 10/26/16 (Vol. II), at
168. In fact, Dr. Shaer testified that his opinion, with reasonable medical
certainty, was that Appellant did not suffer any injury as a result of the
accident with Tihansky. Deposition of Andrew H. Shaer, M.D., 10/17/13, at
28–30; N.T. (Vol. II), 10/26/16, at 168.
Tihansky’s expert, David S. Zorub, M.D., also testified by deposition.
He examined Appellant in November of 2012 in addition to reviewing the
records of the other physicians. Deposition of David S. Zorub, M.D.,
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10/18/13, at 33; N.T., 10/26/16 (Vol. II), at 175. After examining records
but before examining Appellant, Dr. Zorub testified that “it was possible”
that “at most [Appellant] sustained a mechanical cervical flexion/extension
strain as a result of the accident.” Deposition of David S. Zorub, M.D.,
10/18/13, at 31. After examining Appellant in November of 2012, he opined
that Appellant did not have “an aggravation of a pre-existent injury,” but
rather, “had a preexisting condition injury.” Id. at 35–36. Dr. Zorub opined
that Appellant’s injury “could constitute an aggravation of a pre-existent
process . . . to the muscles and the ligaments of the spine, as there was no
evidence of . . . “anything that happened mechanically to the spine in that
particular event.” Id. at 36. The phraseology that Appellant “could have” or
“may have” suffered injury is reminiscent of this Court’s suggestion that
such language does not constitute consensus among medical experts. See
Andrews v. Jackson, 800 A.2d 959, 963 (Pa. Super. 2002) (phrases that
accidents “could have” or “may have” caused injury did not contradict a
consensus among medical experts that the accident caused some injury).
Dr. Maroon, the physician who performed Appellant’s surgery, in his
report of January 11, 2011, stated that Appellant “did explain to me at his
visit today that he had no problems with his neck or upper extremities
prior to the accident and was never seen by any doctor or had
undergone any testing in regard to this prior to this accident.”
Deposition of Joseph C. Maroon, M.D., 10/10/16, at 24; N.T., 10/25/16 (Vol.
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I), at 104 (emphasis added). Dr. Maroon confirmed that the above self-
reporting “turned out to be inaccurate.” Deposition of Joseph C. Maroon,
M.D., 10/10/16, at 26. Dr. Maroon agreed that an understanding of a
patient’s “pre-accident or pre-visit history . . . is vital to a physician not only
in treating the disorder but in determining the cause of it.” Id. at 23.
Appellant’s argument required the trial court to conclude that the jury
had to ignore 1) that the impact of the accident may not have been
sufficient to cause injury; 2) that Appellant withheld information concerning
his pre-accident medical history; and 3) that Dr. Shaer opined that Appellant
did not suffer an injury in the accident. Such a claim suggests the trial court
should substitute its judgment for that of the jury, the fact finder herein.
Accordingly, we discern no abuse of discretion in the trial court’s denial of
Appellant’s motion for a new trial based on the weight of the evidence.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/20/2018
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