- An Injury is Not an "Injury" If the Pain is Non-Compensable
- May 5, 2003 | Author: Walter F. Kawalec
- Law Firm: Marshall, Dennehey, Warner, Coleman & Goggin - Cherry Hill Office
In an automobile accident case where the defendant was undeniably negligent in hitting the plaintiff's car, the defendant's own medical expert conceded that the impact did, in fact, cause the plaintiff harm. Would a defense verdict be reversible error as clearly against the evidence? According to the Superior Court's decision in Majczyk v. Oesch, ___ A.2d ___, 2001 PA Super 378 (Pa. Super. 2001), the answer is: not necessarily.
In Majczyk, the defendant was stopped at a red light behind the plaintiff. The light changed, and the defendant let his car roll forward into the plaintiff's car. The plaintiff claimed that, as a result of this collision, she suffered a herniated disc. The jury returned a verdict for the defense. The Superior Court granted en banc review to examine the plaintiff's claim that the verdict was against the evidence.
The plaintiff argued that the verdict was erroneous because the defendant's negligence was not at issue, and because the defense experts conceded that the car accident had caused some injury to the plaintiff. The verdict for the defendant was, thus, against the evidence, the plaintiff argued, because the defense expert conceded causation and she should have received at least something in damages.
The court defined the issue as "whether a jury may find for the defendant despite his or her obvious negligence because it does not believe that plaintiff's pain and suffering, if any, are compensable."
The defendant's expert, Dr. Euliano, did concede during his testimony that the plaintiff received a cervical strain as a result of the accident, although he disputed whether the greater injury --the herniated disc -- was related to the accident. The Superior Court noted that Dr. Euliano testified that eight weeks after the accident, the strain was resolved and the plaintiff was 100 percent better.
The plaintiff also relied upon the testimony of Dr. Funk, the second of the defendant's medical expert witnesses. He testified that the plaintiff received an injury "at least to some extent" as a result of the collision, and admitted that the accident was the only reasonable explanation for the plaintiff's condition.
The plaintiff cited a number of cases and argued that a new trial must be granted in a situation where the defendant's expert concedes that the plaintiff suffered some injury as a result of the accident, yet the jury finds for the defense. The Superior Court did recognize that it would be error not to grant a new trial where the injury was of a type which would reasonably be expected to cause compensable pain and suffering.
However, the court also stated that the recent decision of the Pennsylvania Supreme Court in Davis v. Mullen, 773 A.2d 764 (Pa. 2001), had to be considered. In Davis, the defendant crossed the center line and crashed head-on into the plaintiff's tractor-trailer. The tractor flipped over, and the plaintiff was sent to the hospital. He was given prescription pain medication and was in pain for the remainder of the weekend. At trial, the jury found for the plaintiff, but only awarded damages equal to the plaintiff's medical expenses and property damages; nothing was awarded for pain and suffering.
Recognizing the need to reconcile those conflicting cases, the Davis Court held that the jury's verdict must stand where there is an evidentiary basis for a jury's belief that the plaintiff did not experience any pain and suffering, or that the alleged pain and suffering stemmed from a pre-existing condition. The court in Davis found that the severity of the alleged injuries were a key component in determining whether a new trial was appropriate. If the jury could believe that the injury was minor and disbelieve the claim of greater injury, then awarding the amount of medical expenses, but nothing for pain and suffering, would not be error.
Of significance to the Superior Court's analysis in Majczyk, the Supreme Court in Davis recognized that a jury has the power and responsibility to make number of determinations: "[t]hose determinations include¿whether the defendant caused the plaintiff's injuries and whether the plaintiff suffered from compensable pain. Indeed, the existence of compensable pain is an issue of credibility and juries must believe that plaintiffs suffered pain before they compensate for that pain."
The Superior Court then refined the concept of compensable pain, noting that, although there are some injuries which are invariably accompanied by pain, a jury is not required to believe that every injury must cause pain, or that the plaintiff suffered the specific pain alleged. Some injuries, moreover, are simply "transient rubs of life" for which a jury could award little or no compensation.
Some injuries, such as compound fractures, are by their very nature severe, and common experience dictates that they are always accompanied by pain which would be compensable. However, where there is a reasonable basis for a jury to decide that pain did not accompany the injury, that the pain was not to the extent claimed, or that the pain resulted from a pre-existing condition, then a small damage award or defense verdict would not be error, even though liability is not at issue and causation is conceded.
This key determination -- deciding whether an injury is as severe as the plaintiff might claim, or even exist at all -- must be left to the jury to be resolved based on the evidence presented. If the jury were to conclude, based on the evidence, that the injury suffered by the plaintiff is "insignificant," i.e., non-compensable, then no amount of damages need be awarded and the jury's award must be upheld.
Applying those precepts to the case before it, the Majczyk Court noted that the plaintiff was attempting to recover for on-going pain, and not for the temporary neck strain which the defendant's medical expert conceded was caused by the car accident. The Superior Court recognized that, although there was conflicting evidence on the record, the jury could disbelieve none, some, or all of it. Sufficient testimony and evidence existed on the record for the jury to have reasonably found that the plaintiff's pain was mild, or solely the result of a pre-existing condition. The court also could not discount the possibility that the plaintiff's injury was just a "painful inconvenience," and "the sort of transient rub of life for which compensation is not warranted."
The court detailed the evidence, finally concluding that the determination of what is a compensable injury is a determination which is uniquely and unquestionably within the purview of the jury.
The Superior Court's analysis in Majczyk has unquestionable importance where the plaintiff attacks a jury's verdict as being too small or against the weight of the evidence. The decision not only solidifies the jury's role in determining the amount of damages, but also shifts the question from an inquiry of whether the expert conceded that an injury took place to a determination of whether the injury was compensable or insignificant. Moreover, in cases where the defendant's negligence is obvious and where the facts of the case require the defense's medical expert to admit to at least the existence of some harm to the plaintiff, Majczyk provides a roadmap to argue that the injury, though present, was not compensable.