Giko, T. v. Calgiano, J. ( 2023 )

J-A01031-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
TUMULY GIKO : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JAMES CALGIANO : No. 1262 EDA 2022
Appeal from the Judgment Entered April 20, 2022
In the Court of Common Pleas of Delaware County Civil Division at
No(s): CV-2018-010098
BEFORE: LAZARUS, J., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY LAZARUS, J.: FILED MARCH 29, 2023
Tumuly Giko appeals from the judgment,1 entered in the Court of
Common Pleas of Delaware County, following the trial court’s order denying
her post-trial motion for judgment notwithstanding the verdict and/or a new
trial on damages only. Following trial, the jury found that Giko sustained
injuries in a rear-end motor vehicle accident and that defendant James
Calgiano was 75% liable. The jury, however, awarded Giko zero damages.
We conclude the jury’s award of zero damages is against the weight of the
evidence, and, therefore, we reverse and remand for a new trial limited to
damages.
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1We have corrected the caption to indicate this appeal is taken from the April
20, 2022 judgment entered on the verdict, and not the April 5, 2022 order
denying post-trial motions.
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Giko sustained injuries as a result of an automobile accident that
occurred on September 20, 2018 at 9:20 a.m. near the intersection of
Middletown Road and Old Baltimore Pike in Media, Delaware County. Giko
was stopped at a stop sign and was rear-ended by Calgiano. At the scene,
Giko declined medical treatment and proceeded to work. Later that day,
however, Giko’s supervisor suggested she leave work early and get treatment
for neck and back pain. Giko went to an Urgent Care facility for evaluation.
There, she complained of lower back, neck, and shoulder pain, was prescribed
medication, and instructed to apply ice for 2-3 days, and then heat. From
September 26, 2018, through February 26, 2019, Giko attended physical
therapy at the Injury Care Center, underwent bilateral sacroiliac joint
injections and TENS2 treatment, as well as EMG and MRI testing for back and
neck pain. Overall, Giko has had more than 35 treatment visits. See N.T.
Trial, 12/20/21, at 160-65.3 Giko incurred medical bills in the amount of
$26,069.01.
Following trial, the jury made the following findings: Calgiano was
negligent; Calgiano’s negligence was a factual cause of Giko’s
injuries; Giko was negligent; and Giko’s negligence was a factual cause in
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2 Transcutaneous electrical nerve stimulation (TENS) therapy involves the use
of low-voltage electric currents to treat pain.
https://my.clevelandclinic.org/health/treatments/15840-transcutaneous-
electrical-nerve-stimulation-tens (last visited 3/10/23).
3Approximately two years after the 2018 vehicle accident, Giko, along with
her fiancé and two others, was injured in a second rear-end collision.
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bringing about harm to herself. Jury Verdict Sheet, 12/21/21. The jury
apportioned the parties’ negligence as follows: Calgiano— 75%, and Giko—
25%. Id. at 5.4 Damages were broken down into six categories, as follows:
(1) Past Medical Expenses; (2) Future Medical Bills; (3) Past Pain/Suffering;
(4) Future Pain/Suffering; (5) Past Loss of Ability to Enjoy Life’s Pleasures;
and (6) Future Loss of Ability to Enjoy Life’s Pleasures. Id. at 6. For each
category, the jury entered a “zero,” for a total of zero damages. Id.
After entry of the verdict, Giko filed a motion for post-trial relief on
December 29, 2021. Calgiano filed a response to the motion and, on April 5,
2022, the trial court denied the post-trial motion. On April 7, 2022, Giko filed
a praecipe for entry of judgment and, on April 19, 2022, filed a timely notice
of appeal. Judgment was entered on April 20, 2022.5 Both Giko and the trial
court have complied with Pa.R.A.P. 1925. Giko raises one issue for our review:
Did the trial court commit error and abuse its discretion when it
denied Giko’s motion for post-trial relief to vacate the verdict that
found negligence and factual cause against Calgiano, but did not
award Giko a single dollar [for] medical bills or for her pain and
suffering, where no reasonable finder of fact could determine that
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4 Calgiano testified that he was behind Giko’s vehicle for approximately five to
six minutes, “before [she] finally started to move her car. When she released
her foot from the brake” he started to move forward. See N.T. Trial,
12/21/21, at 10-11. Calgiano stated he looked to the left to make sure traffic
was clear, when he “made impact with [Giko’s] vehicle.” Id. at 12. Giko
testified that she never moved her vehicle, and that Calgiano simply struck
her vehicle in the rear. See N.T. Trial, 12/20/21, at 83-34.
5 See Pa.R.A.P. 905(5) (“A notice of appeal filed after the announcement of
a determination but before the entry of an appealable order shall be treated
as filed after such entry and on the day thereof.”).
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Calgiano was negligent and caused Giko to be injured but that she
was entitled to zero dollars to compensate her for medical bills in
excess of $26,000.00 or for her pain and suffering?
Appellant’s Brief, at 5 (reworded).
Our standard of review [of an order] denying a motion for a 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. A new trial will be granted on the grounds that the
verdict is against the weight of the evidence where the verdict is
so contrary to the evidence it shocks one’s sense of justice.
Campagna v. Rogan, 829 A.2d 322, 328 (Pa. Super. 2003) (citations
omitted). A jury award should be set aside as inadequate “when it appears
to have been the product of passion, prejudice, partiality, or corruption, or
where it clearly appears from uncontradicted evidence that the amount of the
verdict bears no reasonable relation to the loss suffered by the plaintiff.”
Womack v. Crowley, 877 A.2d 1279, 1283 (Pa. Super. 2005) (citations
omitted).
Here, the jury determined that Calgiano’s negligence had caused harm
to Giko, and the uncontradicted evidence established Giko incurred over
$26,000.00 in medical bills. We conclude, therefore, that the jury’s finding
that Giko’s harm was not compensable, was against the weight of the
evidence. An award of zero damages in this case bears no reasonable relation
to the loss suffered. Womack, supra. See also Zeigler v. Detweiler, 835
A.2d 764, 768-69 (Pa. Super. 2003) (en banc) (concluding trial court did not
err in granting new trial on issue of damages where evidence demonstrated
plaintiff experienced pain and suffering due to car accident); Marsh v.
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Hanley, 856 A.2d 138, 139-40 (Pa. Super. 2004) (concluding trial court erred
in denying motion for new trial where evidence demonstrated plaintiff should
have been awarded damages for pain and suffering, as well as damages for
lost wages where plaintiff suffered compensable injuries).
As a general proposition, victims must be compensated for all that they
suffer from the tort of another. Boggavarapu v. Ponist, 542 A.2d 516, 518
(Pa. 1988) (citing Spangler v. Helm's New York–Pittsburgh Motor Exp.,
153 A.2d 490 (Pa. 1959)). We recognize, however, that not every injury
results in compensable pain. Boggavarapu, supra. See also Davis v.
Mullen, 773 A.2d 764 (Pa. 2001) (jury verdict awarding plaintiff medical
expenses, but no compensation for pain and suffering, can be upheld where
trial court had reasonable basis to find jury did not believe plaintiff suffered
any pain and suffering, or preexisting condition injury was sole cause of
alleged pain and suffering).
In Boggavarapu, plaintiff was bitten by his neighbor’s dog. Plaintiff
claimed that the tetanus shot administered in the hospital after the bite
pierced his sciatic nerve. It was uncontested that the plaintiff had been bitten;
however, the extent of the injury to the sciatic nerve was disputed. The jury
awarded plaintiff $42.60 in damages, solely for the cost of emergency room
treatment, thereby excluding damages for loss of consortium and pain and
suffering resulting from the pierced sciatic nerve. The trial court determined
that the injury dictated the award of some compensation, and the court
ordered a new trial. Our Supreme Court reversed, noting that the plaintiff’s
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complaints were the product of the tetanus needle, not the dog bite itself, and
held that not all pain is compensable. Id. at 518-19. The Boggavarapu
Court stated:
[T]here are injuries to which human experience teaches there is
accompanying pain. Those injuries are obvious in the most
ordinary sense: the broken bone, the stretched muscle, twist of
the skeletal system, injury to a nerve, organ[,] or their function,
and all the consequences of any injuries traceable by medical
science and common experience as sources of pain and suffering.
. . . Pain may be subjective, and[,] if believed[,] is compensable.
If the pain, however, has no known medical source and is
subjective to the person, the triers of fact must believe and accept
that it could and in fact exists. They are not to be faulted, however
if they do not believe all they are told and all that their common
experience does not accept. That is not to say, they may
disregard obvious injury. It is, however, to say that they are not
obliged to believe that every injury causes pain or the pain
alleged.
Id. at 518 (citations omitted).
Thus, a jury may decline an award of compensation for pain and
suffering if it determines that the discomfort suffered by the plaintiff was the
sort of “transient rub of life” for which compensation is not warranted.
Majczyk v. Oesch, 789 A.2d 717, 726 (Pa. Super. 2001), quoting
Boggavarapu, supra at 518. See Davis, supra. That, however, is not the
case here.
The jury clearly found Giko was injured as a result of Calgiano’s
negligence, albeit attributing 25% of negligence to Giko, and the
uncontradicted evidence established that Giko underwent various treatments
and therapies for approximately seven months, incurring over $26,000.00 in
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medical expenses. Although we need not expound upon the evidence
presented at trial since the jury did find Giko suffered injury as a result of
Calgiano’s negligence, we briefly summarize the expert medical testimony,
and Giko’s testimony, as follows:
Nerav K. Shah, M.D., a neurological surgeon,6 testified that, within a
reasonable degree of medical certainty, Giko sustained disc protrusions at
C4/C5 and C5/C6, cervicalgia, cervical radiculopathy, L4/L5 and L5/S1 disc
protrusions, and lumbar radiculopathy as a result of the 2018 accident. N.T.
Trial, 12/20/21, at 166-68. He testified this was “confirmed by EMG.” Id. at
168. Doctor Shah also reviewed Giko’s medical bills pertaining to the 2018
accident, which included bills for laboratory tests, MRI images, treatment at
the Injury Care Center, prescriptions, and a heating device, amounting to
$26,069.01, and he opined that these were “reasonable and necessary” for
her treatment. Id. at 175-78.
Andrew Shaer, M.D., a radiologist/neuroradiologist, testified as an
expert for the defense. Doctor Shaer opined that the imaging evidence did
not show injury from the 2018 accident. Id. at 260-65. Doctor Shaer
acknowledged, however, that he never examined Giko, never consulted with
her treating doctors or therapists, and never reviewed Giko’s Injury Care
Center records, physical therapy records, or injection records. Id. at 276-77.
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6 Doctor Shah testified that he attended Jefferson Medical College in
Philadelphia and completed a six-year residency training at the University of
Maryland. N.T. Trial, 12/20/21, at 152-53. He is board certified in
neurological surgery. Id. at 152.
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Lucas Margolies, M.D., a neurologist, also testified as an expert for the
defense. Doctor Margolies stated that he reviewed Dr. Shah’s report, the
Urgent Care and Injury Care Center records, and the MRI and EMG reports,
and, in his opinion, Giko did not suffer either lumbar or cervical radiculopathy
as a result of the accident. N.T. Trial, 12/21/21, at 46-47. Doctor Margolies
acknowledged, however, that Giko may have suffered injuries as a result of
the accident, that two to four months of treatment may have been reasonable
to treat for those injuries, and that physical therapy would be appropriate
treatment for those type of injuries. Id. at 80-81. See also id. at 72 (Doctor
Margolies acknowledging on direct examination that Giko may have had a
sprain, “and if she did have a sprain, two to four months treatment would be
reasonable”). Doctor Margolies testified that he did examine Giko; however,
that examination took placed in October 2019, over one year after the
accident. Id. at 37.
Additionally, Giko testified that the accident occurred while she was
stopped at a stop sign, and that although she did go to work, she felt pain in
her neck and back later that day and was instructed to go to Urgent Care.
N.T. Trial, supra at 60-62. Thereafter, she treated at the Injury Care Center,
undergoing injections in her neck, back and shoulders, and she then continued
with physical therapy. Id. at 62-63. Giko also testified that she was
prescribed medications for muscle spasms, and that while her “neck pain
improved a lot,” she continues to suffer back pain. Id. at 65. Giko stated
that her back pain inhibits her daily activities, particularly cleaning, and
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inhibits her activities with her two young children, ages 6 and 12. Id. at 68-
69. Giko testified that she relies on her parents and her oldest child to help
her with daily activities. Id. at 69-71.
The jury found Calgiano’s negligence was a factual cause in bringing
about the harm to Giko. The uncontradicted evidence established that Giko
underwent treatment and physical therapy from late September 2018 to
March 2019, incurring medical bills amounting to over $26,000. The jury’s
decision to find that Giko was harmed by Calgiano’s negligence, but to award
zero damages, bears no rational relationship to the evidence produced at trial
as to the loss suffered by Giko. Womack, supra. Giko’s injuries were not
so insignificant or transient that one could reasonably conclude that no
compensation was required. Back, neck, and shoulder pain, lasting at a
minimum seven months and requiring multiple injections and physical therapy
treatments, are not the type of “rub of life” injuries for which the jury is free
to award no damages. See Neison v. Hines, 53 A.2d 634 (Pa. 1995) (new
trial is appropriately ordered where plaintiff suffers injuries greater than
“transient rub of life” and jury awards no damages); Burnhauser v.
Bumberger, 745 A.2d 1256, 1261 (Pa. Super. 2000) (finding award of no
damages for pain and suffering where opposing experts agreed victim suffered
soft tissue injuries that would require up to six months to resolve was against
the weight of evidence). In sum, a jury is entitled to reject any and all
evidence up until the point at which the verdict is so disproportionate to the
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uncontested evidence as to defy common sense and logic. Van Kirk v.
O'Toole, 857 A.2d 183, 185 (Pa. Super. 2004).
In light of the foregoing, we conclude that the jury’s award of zero
damages is against the weight of the evidence. Womack, supra.Accordingly, we reverse and remand for a new trial on damages. Nykiel v.
Heyl, 838 A.2d 808, 812 (Pa. Super. 2003) (new trial limited to issue of
damages will be granted where: (1) issue of damages is not intertwined with
issue of liability, and (2) issue of liability has been fairly determined).
Judgment reversed. Case remanded for new trial on damages only.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/29/2023
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