Nadal, C. v. Buckwalter, S.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CHASTITY V. NADAL : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : SHAWN BUCKWALTER : No. 1984 MDA 2019

Appeal from the Judgment Entered November 25, 2019 in the Court of Common Pleas of Lebanon County Civil Division at No(s): 2016-00160

BEFORE: PANELLA, P.J., STABILE, J., and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.: FILED OCTOBER 15, 2020

Chastity V. Nadal (“Nadal”) appeals from the Judgment entered against Shawn Buckwalter (“Buckwalter”) in the amount of $916.56 in this case involving a motor vehicle accident. We affirm.

The trial court summarized the facts underlying the instant appeal as follows:

A jury trial was conducted in the above-referenced case on July 16, 2019. Because the automobile accident in question was caused when [Buckwalter] drove his vehicle into the rear of the one operated by [Nadal], the defense admitted negligence prior to trial. The trial then took place on issues of causation and damages only.

[Nadal] testified that she continued to her place of employment following the accident. Because she was feeling dizzy and ill, co-workers sent her to the Med-Express clinic. From there, [Nadal] was taken by ambulance to the Lebanon Good Samaritan Hospital. She was treated there and then released.

[Nadal] continued to suffer neck and back pain for which she [was] treated [by] numerous medical providers. Ultimately, she

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received several trigger point injections in her neck and back. At trial, [Nadal] testified that she continues to experience discomfort in her neck and back.

[Nadal] presented Dr. Fotis Mystakas [(“Dr. Mystakas”)] as her expert witness. Dr. Mystakas testified that he diagnosed [Nadal] with “chronic cervical strain.” While Dr. Mystakas declined to declare [Nadal] to be permanently disabled, he did state that her prognosis was only “fair” and that she could be expected to continue to experience discomfort as a result of the accident.

[Buckwalter] pointed out to the jury that [Nadal] was operating a relatively large van, while [Buckwalter] drove a small Ford Focus. [Buckwalter] also presented photographs of his Ford Focus that depicted only minor damage. [Buckwalter] argued that [Nadal] could not have suffered extensive injuries as a result of such a minor accident.

In addition, [Buckwalter] presented Dr. Devanand Dominique [(“Dr. Dominique”)] as an expert witness. Dr. Dominique evaluated [Nadal] on one occasion and reviewed all of [Nadal’s] medical records. Dr. Dominique opined that [Nadal] suffered a “mild cervical strain, mild left shoulder strain and a soft tissue injury to the left forehead.” He defined cervical strain as “a soft tissue injury characterized by pain and soreness.” He also stated that, by definition, a cervical strain will cause symptoms for only six (6) weeks.

Dr. Dominique testified that he palpated areas of [Nadal’s] back during his examination. He described her complaints of pain as “mild and inconsistent.” When asked to describe what he meant by “inconsistent,” Dr. Dominique testified that [Nadal] would “wince” when he touched an area of her back. If he would touch the same area several minutes later, she would display no reaction. Dr. Dominique also indicated that all of [Nadal’s] x-rays and MRIs were negative and that no evidence existed of any structural or nerve injury. Given everything, Dr. Dominique testified that [Nadal’s] complaints were “difficult to understand.”

Even though Dr. Dominique concluded that [Nadal’s] complaints were difficult for him to understand, he stopped short of characterizing [Nadal] as a liar. In addition, while Dr. Dominique stated that he certainly would have approached [Nadal’s] treatment in a manner different than her own doctors,

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he would not characterize any of [Nadal’s] treatment as “inappropriate.”

After listening to everything, the jury … awarded [Nadal] the sum of $916.5[6]. This was the amount sought for past medical expenses and for past lost earnings. However, the jury declined to award anything at all for pain and suffering.[FN]

The award was broken down as follows: (1) $716.06 for past [FN]

medical expenses; (2) $199.50 for past lost wages; (3) [$]0 for past, present and future pain and suffering.[1]

[Nadal] filed Post-Trial Motions. A briefing schedule was established for the Post-Trial Motions. Both parties filed briefs. Unfortunately, for some reason not known to [the trial court], the briefs were never forwarded to the [c]hambers of [the assigned trial court judge]. Because of this, th[e] jurist did not [write] a timely [o]pinion regarding the Post-Trial Motions. Ultimately, the Post-Trial Motions were denied by operation of law. An [a]ppeal was then filed. When [the trial court judge] received the [a]ppeal paperwork, he solicited and received copies of the parties’ briefs.

Trial Court Opinion, 2/2/20, at 2-4 (citations to Notes of Testimony omitted; one footnote added; one footnote in original). The trial court then issued an ____________________________________________

1 We note that the verdict, as set forth in the Notes of Testimony, states a combined award of medical expenses and past lost earnings of $916.56. See N.T., 7/16/19, at 78. However, the award of $716.06 for past medical expenses, $199.50 for past lost wages, and zero for pain and suffering, combined, totals $915.56. No objection was made as to the mathematical error at that time.

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Opinion pursuant to Pa.R.A.P. 1925(a).2

Nadal presents the following claims for our review:

A. Whether a new trial on damages should have been granted when the jury’s award regarding past medical expenses, past/lost earnings, and general damages was against the weight of the evidence[?]

B. Whether the trial court erred and/or abused its discretion by failing to grant [Nadal’s] Motion for post-trial relief[?]

Brief for Appellant at 4 (initial capitalization omitted).

It is well-established that “[t]rial courts have broad discretion to grant or deny a new trial ... [and] absent a clear abuse of discretion by the trial court, appellate courts must not interfere with the trial court’s authority to grant or deny a new trial.” Kindermann v. Cunningham, 110 A.3d 191, 193 (Pa. Super. 2015) (internal citations and quotation marks omitted).

We will address Nadal’s claims together, as they are related. Nadal first claims that the trial court improperly concluded that the jury’s damages award was not against the weight of the evidence. Id. at 10. Nadal argues that the jury’s award “bore no reasonable relation to the injuries [she] suffered[.]” Id. at 14. Relying upon the Pennsylvania Supreme Court’s decision in Davis v. Mullen, 773 A.2d 764 (Pa. 2001), and this Court’s decisions in Aweigler v. ____________________________________________

2 Nadal filed a Praecipe for judgment on November 25, 2019. Accordingly, her appeal is now properly before us for review. See Pa.R.A.P. 905(a)(5) (stating that “[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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Detweiler, 835 A.2d 764 (Pa. Super. 2003), and Burnhauser v. Bumberger, 745 A.2d 1246 (Pa. Super. 2000), Nadal asserts that the jury’s award is contrary to the weight of the evidence. Brief for Appellant at 14. According to Nadal, there is no dispute that she had

sustained injuries because of the accident and would have experienced pain and suffering. At a minimum, medically, Dr. Dominique opined that [Nadal] suffered a mild cervical strain, mild left shoulder strain, soft [t]issue injury to her forehead, and a concussion because of the accident. Dr. Dominique opined that a cervical strain and a shoulder strain are soft tissue injuries characterized by pain and a soreness with movement. Dr. Dominique indicated that a cervical strain is an injury that lasts at least six (6) weeks before it would resolve. As such, based upon [Buckwalter’s] own doctor, [Nadal] would have had pain and soreness with movement for six (6) weeks. Thus, stronger than the plaintiff in Davis[,] and similar to the plaintiffs in Zeigler and Burnhauser, the jury’s verdict/decision not awarding [Nadal] any general damages was against the weight of the evidence.

Id. at 14-15. Nadal, additionally, challenges the award of $199.50 for past/lost earnings, and $716.06 in past medical expenses, on the same basis. See id. at 15-16.

In her second claim, Nadal argues that the trial court erred in not granting her Motion for post-trial relief. Id. at 16. This claim is entirely premised on Nadal’s first claim challenging the damages award as against the weight of the evidence. See id.

As this Court has explained,

[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

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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.

Kindermann, 110 A.3d at 193 (emphasis omitted).3

Further, we are cognizant that the jury, as fact finder,

is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. The trial court may award a judgment notwithstanding the verdict or a new trial only when the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice. In determining whether this standard has been met, appellate review is limited to whether the trial judge’s discretion was properly exercised, and relief will only be granted where the facts and inferences of record disclose a palpable abuse of discretion. When a fact finder’s verdict is so opposed to the demonstrative facts that looking at the verdict, the mind stands baffled, the intellect searches in vain for cause and effect, and reason rebels against the bizarre and erratic conclusion, it can be said that the verdict is shocking.

Haan v. Wells, 103 A.3d 60, 70 (Pa. Super. 2014) (some citations, quotations, and quotation marks omitted). ____________________________________________

3 Buckwalter has filed an Application to Dismiss the appeal, based upon Nadal’s failure to set forth in her Post-Trial Motion where, in the record, her claim was preserved. See Application to Dismiss, 1/21/20, at ¶¶ 16-20. However, because a weight claim, generally, may be raised for the first time in post- trial motions, we decline to dismiss the appeal on this basis. See Criswell v. King, 834 A.2d 505, 513 (Pa. 2003) (recognizing that a challenge to the weight of the evidence, generally, may be made for the first time in a post- trial motion). But see Stapas v. Giant Eagle, Inc., 197 a.3d 244, 252 (Pa. 2018) (wherein the Pennsylvania Supreme Court held that a weight challenge “premised on trial errors, correctable before the jury is discharged,” must be raised prior to the dismissal of the jury).

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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.

McFeeley v. Shah, 226 A.3d 582, 594 (Pa. Super. 2020) (citation omitted).

In its Opinion, the trial court extensively reviewed the applicable law, and concluded that Nadal’s challenge to the verdict as against the weight of the evidence lacks merit. See Trial Court Opinion, 2/2/20, at 5-21. In particular, we acknowledge the trial court’s conscientious analysis and discussion of the competing interests involved:

[T]he decision before this [c]ourt is by no means self-evident. There are legitimate factual arguments that can be made both for and against a new trial. Moreover, there is [a]ppellate precedent that could be cited in support of both possible outcomes. Stated simply, this is not an easy call.

In the end, [the court will] err on the side of respecting the decision of twelve unbiased citizens[,] whose sole purpose was to effectuate justice[,] given the facts presented before them. As our Commonwealth’s highest Court proclaimed in Davis, it is not the job of this [c]ourt to usurp the function of a jury. Here, the jury obviously concluded that [Nadal] was exaggerating or fabricating her claim. While the jury wanted to ensure that the out[-]of[-]pocket expenses were compensated, the jury also wanted to send the message that it would not reward [Nadal’s] exaggerations and/or fabrications.

From a very general perspective, the job of a judge is to respect and not second guess the decision of a jury. We will afford the jury’s decision with the respect it deserves.

Id. at 20-21.

Although, as the trial court acknowledged, its decision was not an “easy call,” we discern no abuse of discretion by the trial court in denying Nadal

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relief on this claim. See id. at 5-21. Consequently, we affirm on the basis of the trial court’s Opinion with regard to this claim. See Trial Court Opinion, 2/20/20, at 5-21.

Application to Dismiss denied. Judgment affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/15/2020

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