Contesting Damages in the Face of Liability

Although the contest of liability is often (for obvious reasons) thought of as the main event in litigation, damages can in certain situations take center stage, as two recent decisions from the Pennsylvania Superior Court demonstrate. In one case—which involved Marshall Dennehey successfully arguing in the trial and appellate phases—it was shown that, even if liability is not decisively eliminated in the eyes of the jury, a vigorous contest of liability can significantly reduce the damages awarded in an amount beyond what would otherwise be called for by comparative fault. And in another case, even though liability was not disputed, only a nominal amount of damages—five dollars—was awarded due to the subjective, unverified nature of damages claimed.

In Kindermann v. Cunningham, 110 A.3d 191 (Pa.Super. Feb. 11, 2015), the Superior Court affirmed the trial court’s refusal to order a new trial limited to damages. The plaintiff was injured while he was a passenger on the defendant’s boat, suffering broken bones in an ankle that required surgery. Timothy D. Rau, a shareholder in our Philadelphia office, represented the defendant at trial. Liability was “hotly contested” at the trial, where conflicting accounts of the events leading up to the injury were presented and the parties’ experts’ testimony were based on those conflicting accounts. The plaintiff’s medical bills and lost wages totaled in excess of $35,000.

The jury returned a verdict finding the injured plaintiff and the defendant each 50 percent negligent. However, rather than awarding damages based on the amount of medical bills and lost wages, the jury awarded damages in the amount of only $10,000, which was then molded to $5,000 to reflect the percentage of negligence assigned to the plaintiff. Further, the jury awarded no damages to the injured plaintiff’s wife for her loss of consortium claim.

On appeal, the Superior Court rejected the plaintiffs’ argument that a new trial on damages should have been awarded. Adopting the argument of Carol A. VanderWoude, a shareholder in our appellate practice group, the court held that the jury’s verdict was sustainable as a “compromise verdict,” i.e., a verdict “where the jury, in doubt as to the defendant’s negligence or plaintiff’s freedom from contributory negligence, brings in a verdict for the plaintiff but in a smaller amount than it would have if these questions had been free from doubt.” There was also no error which would have otherwise affected the jury’s verdict or evidence of the verdict’s being the result of “passion, prejudice, partiality, or corruption.” Under these circumstances, a new trial on damages only would have been unfair since, in this instance, the verdict as to damages bore some relation to the “hotly contested” liability issues as well; that is, significant doubts about the plaintiff’s own liability drove down the total amount of damages awarded, even before the apportionment of damages according to percentages of fault. Furthermore, the plaintiff’s wife’s loss of consortium claim, as derivative of the underlying liability claim, was also subject to a compromise verdict. The Superior Court thus sustained the verdict.

One week later, the Superior Court decided another case, Ricciuti v. Estate of Pohlman, No. 706 WDA 2014, J-A01026-15 (Pa.Super. Feb. 18, 2015), in which liability was uncontested, but only a total of five dollars was awarded to a personal injury plaintiff. In that case, the plaintiff was driving her vehicle when it was struck on the side by the decedent, causing airbags in the plaintiff’s vehicle to deploy. Right after the accident, the plaintiff was able to stand outside her vehicle, and though she complained of some pain (neck and left side), she had no visible injuries. The defendant conceded liability, and the trial proceeded on damages only. After initially awarding no money, the jury returned with a verdict awarding the plaintiff one dollar in damages for each of the five counts of her complaint. The trial court denied the plaintiff’s motion for a new trial.

The Superior Court upheld the trial court’s refusal to conduct a new trial, finding that the plaintiffs had presented no objective evidence of the injury. Rather, all of the plaintiff’s damages evidence was based on her subjective complaints, where objective evidence (physical examinations, x-rays, other tests) showed no injury. As the court stated, “[e]very accident is unique, and … every pain is not compensable.” The jury’s five dollar verdict stood intact.

These two cases, thus, show the different ways in which damages can be minimized. Careful attention to the nature of and evidence for a plaintiff’s claims of injury can yield significant results, and the existence of some, or even total, liability may not be the end of the defense of a case.

*Eric, an associate in our Philadelphia, Pennsylvania office, can be reached at 215.575.2773 or eiyun@mdwcg.com.

_{Defense Digest, Vol. 21, No. 2, June 2015}

_{Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2015 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.}