In the Supreme Court of Pennsylvania case involving Karen Cowher, Administratrix of the Estate of James L. Cowher, II (Deceased), the court reviewed the Superior Court's decision that partially affirmed and partially vacated a judgment from the Lehigh County Court of Common Pleas. The central issue was whether the defendants, Dr. Sobhan Kodali and St. Luke's University Health Network, waived their right to a new trial regarding survival damages due to the general verdict rule, which prohibits challenges to a verdict that is based on both valid and invalid grounds if a special verdict slip was not requested.
The jury had awarded damages under the Survival Act without itemizing pain and suffering, leading the Superior Court to grant a new trial based on claims that the plaintiff's expert testimony on pain and suffering was erroneously admitted. However, the Supreme Court determined that the defendants failed to request a special verdict slip that would have clarified the basis for the jury's verdict. As a result, the court ruled that the defendants waived their right to a new trial under the general verdict rule and reversed the Superior Court's order for a new trial.
The case background details the medical history of James L. Cowher, II, who experienced chest pains and subsequently sought medical attention. Despite undergoing various tests that returned normal results, he was misdiagnosed by Dr. Kodali as having anxiety-related issues. Tragically, Cowher collapsed and died, with an autopsy revealing severe cardiovascular disease as the cause. Following his death, his widow filed a wrongful death and survival action against the defendants in January 2018.
A survival action under 42 Pa.C.S. 8302 allows the administrator or executor of a decedent's estate to seek damages for the decedent's pain and suffering, loss of gross earning power from injury to death, and loss of earning power for the decedent's estimated working life, minus personal maintenance expenses. In contrast, a wrongful death action under 42 Pa.C.S. 8301 compensates the deceased's spouse, children, and parents for financial losses resulting from the death, which may include the present value of services the decedent would have provided and funeral and medical expenses.
On November 7, 2019, defendants filed a motion in limine to exclude evidence of the decedent’s pain and suffering, arguing that neighbor testimony would be speculative and unreliable, and the plaintiff’s expert lacked sufficient opinion on the matter. The trial court denied this motion. During a pretrial conference on December 2, 2019, the court agreed with the defendants that the verdict slip should contain separate amounts for wrongful death and survival actions.
At trial, witness Diana Kanowski testified about the decedent's collapse during a run, describing his atypical slow pace and his plea for help before losing consciousness after approximately three minutes. Based on this testimony, plaintiff's expert Dr. Emil Hayek concluded that the decedent experienced pain and suffering prior to death, while actuarial expert David Hopkins estimated economic losses from $1,070,145 to $2,700,498. After evidence presentation, the trial court reviewed the verdict slip with the parties, making minor adjustments as suggested. The court instructed the jury on survival damages, detailing four components: pain and suffering, loss of life's pleasures, past lost earnings, and future lost earnings.
The court instructed that under the Survival Act, the Plaintiff is entitled to compensation for three types of damages: past non-economic damages, past lost earnings, and future loss of earnings. Non-economic damages include compensation for mental and physical pain, suffering, and loss of life's pleasures experienced by James Cowher from his injury until his death. The jury was directed to consider factors such as Cowher's age, education, work experience, and his economic contributions to his family when calculating lost earnings.
The jury returned a unanimous verdict in favor of the Plaintiff, finding that Dr. Sobhan Kodali's conduct was negligent and a factual cause of harm to Cowher. The jury awarded $2,457,000 in wrongful death damages and $3,833,000 in survival damages, with the amounts recorded on the verdict slip. The Defendants declined to review the verdict slip but requested a jury poll, confirming agreement with the verdict. They did not ask for itemization or clarification of the damages awarded.
The Defendants appealed to the Superior Court, arguing that the admission of expert testimony from Dr. Hayek regarding Cowher's pain and suffering was erroneous and warranted a new trial on damages. The appellate panel agreed, stating that the testimony was merely the expert's personal opinion and inadmissible. The panel found the error prejudicial, noting that jurors tend to find expert testimony more credible than lay testimony, and observed that the jury's awarded amount for pain and suffering was disproportionately high given the evidence of Cowher's limited consciousness before death. The panel dismissed the Plaintiff's argument regarding the lack of an itemized verdict sheet, stating that the prejudice from the improper admission of evidence was the key consideration, not the ability to determine specific damage amounts.
The panel determined that the damages verdict significantly exceeded the highest calculation of economic damages provided by the plaintiff's expert, indicating potential influence of the pain and suffering component on the jury's decision. It found the admission of the plaintiff's cardiology expert's opinion on pain and suffering constituted a prejudicial error, leading to the conclusion that while this error did not affect the jury's liability verdict or damages in the wrongful death claim, it could have impacted the survival claim's damages. Consequently, the panel vacated the damages judgment related to the survival claim and remanded for a new trial limited to that claim.
The Court granted the plaintiff’s petition for allowance of appeal, focusing on whether the defendants, who did not request an itemized verdict slip or object to the general verdict slip, are estopped from seeking a new trial on damages. The Court's review standard is de novo, and it will consider the issue of waiver as a question of law. The plaintiff argues that the general verdict rule prohibits a new trial under the Survival Act, asserting that a verdict loser cannot benefit from their own strategic failures. She cites the Birth Center case, where a failure to request a structured verdict slip precluded a challenge to the jury's award. Additionally, in Krock v. Chroust, the court upheld a reduced jury award, assuming the jury aimed to compensate for economic detriment.
The Superior Court determined that general verdicts do not support specific findings and ruled that the defendant had the opportunity to obtain necessary jury findings through special interrogatories but failed to do so, thereby waiving the right to contest an inflated verdict. The Krock Court subsequently vacated the amended verdict, reinstating the original $100,000 verdict. The plaintiff contends the Superior Court's decision should be reversed, arguing that the defendants did not contemporaneously object to testimony regarding pain and suffering, did not request clarifying questions on the verdict slip, and did not challenge the jury charge on damages. The plaintiff claims these failures resulted in an inadvertent or affirmative waiver of the right to contest the jury’s pain and suffering award. Defendants counter that the Superior Court correctly evaluated whether the erroneous admission of expert testimony on pain and suffering was prejudicial, asserting that Pennsylvania law does not require proof of the exact impact of such errors. They argue they were indeed prejudiced by the erroneous testimony under the established standard. The Pennsylvania Association for Justice supports the plaintiff's view, suggesting that the defendants' lack of a request for special interrogatories hindered their ability to demonstrate prejudice from the expert testimony. The Association argues that the waiver does not apply here as the defendants failed to take the necessary steps to show prejudice. The defendants maintain that the significant damages awarded, which exceeded the expert's estimates, indicate the expert's testimony influenced the jury. They claim their objections to the expert testimony were made prior to trial and insist that the plaintiff’s waiver argument was itself waived as it was only introduced in her appeal petition. Additionally, defendants dispute the applicability of the general verdict rule in this case.
Shiflett and Halper are deemed irrelevant by the defendants because those cases involved separate claims where one was invalidated, leading to lump-sum verdicts. In contrast, the jury here issued separate verdicts for Wrongful Death and the Survival Act, and the Superior Court did not rule out either theory for jury submission. The defendants argue that Shiflett and Halper do not apply to cases with erroneous evidentiary rulings. They contend that the plaintiff's claim that Dr. Hayek's testimony was a "harmless error" implies that even if the awards for wages and pain and suffering were itemized, the plaintiff would argue that defendants waived the issue unless they proved the basis for the pain and suffering award.
Defendants reference Pennsylvania’s Suggested Standard Civil Jury Instructions, asserting that damages under both acts are typically awarded as lump sums. They challenge the plaintiff’s reliance on Birth Center, stating it is not relevant since it did not involve wrongful death or survival claims requiring itemization. They differentiate their case from Birth Center and Krock by noting that the disputed jury award is clear from the record.
The defendants also raise policy objections, arguing that the plaintiff's proposed rule would unfairly apply only to defendants, implicating equal protection issues. They assert that this rule would only pertain to improperly introduced evidence, not excluded evidence. Furthermore, they claim that denying a new trial due to a lack of itemization would retroactively change the law, violating due process. If a new rule of estoppel or waiver is adopted, they argue it should only apply prospectively to avoid harming their property interest in a nearly $4 million verdict.
Support for the defendants comes from the AMA/PMS, who argue that improper expert testimony necessitates a new trial if it likely influenced the verdict. They assert that the substantial disparity between the plaintiff's expert's economic loss estimate and the total survival award indicates that at least $1.1 million was awarded for pain and suffering, suggesting the jury could not have disregarded the expert’s opinion. They reference Kiser v. Schulte to emphasize that jury verdicts must reasonably reflect proven damages.
Plaintiff's reliance on the general verdict rule is contested by AMA/PMS, who argue that the plaintiff waived this reliance by not mentioning it in earlier proceedings. They assert that the rule does not apply, as the case lacks two separate theories of relief—one valid and one invalid—leading to a lump sum verdict that obscures the jury's reasoning. Amici support this by citing established Pennsylvania practices that permit lump-sum awards in wrongful death and survival cases, suggesting that if itemization of survival awards is deemed necessary, it should only apply prospectively to allow for adjustments in jury instructions.
The plaintiff argues that the court's review is limited to the specific issue for which appeal was granted, not to the jury's rationale for the award amount. She contends that the jury's verdict is not excessive, referencing a precedent where a $2,500,000 award was upheld despite a lower expert valuation. Additionally, she proposes a third option for the court: to affirm part of the trial court's judgment totaling $5,157,000 (comprising $2,457,000 from the Wrongful Death Act and $2,700,000 for undisputed economic damages under the Survival Act) while remanding for a new trial regarding the pain and suffering component.
The ruling concludes that defendants waived their right to a new trial on survival damages under the general verdict rule, which states that a general verdict is upheld if supported by at least one issue. The court emphasizes that a defendant who does not request a special verdict form forfeits the ability to contest the jury's reliance on unsupported theories when valid grounds for the verdict exist. This rule, established in Pennsylvania law since 2009, aims to enhance judicial efficiency and fairness.
The ruling references prior case law, establishing that the absence of a request for special verdicts or interrogatories by the appellant limits the scope of appeal. The trial court's instructions, which did not include a 'rivet' theory, were deemed not prejudicial enough to warrant judgment reversal. Despite discussions regarding work loss issues before trial, no formal agreement or special interrogatories were submitted. The defendants had prior knowledge that the plaintiff's expert testimony on pain and suffering could be an appellate issue yet failed to request itemization of damages under the Survival Act throughout the trial process. Instead, they proposed a verdict slip requesting a single lump sum for survival damages, which the court ultimately adopted without objection. Defendants' inaction in seeking a structured verdict slip or clarification post-verdict led to a waiver of their ability to contest the verdict's inflation. The jury's lump sum award for Survival Act damages was ultimately supported by other valid evidence, irrespective of the contested expert testimony.
Jurors were instructed on four components of survival damages: pain and suffering, loss of enjoyment of life, past lost earnings, and future lost earnings. Evidence supported the latter three components, allowing the jury to base the survival award on one or more of these grounds. Plaintiff's counsel emphasized the need for a fair compensation for the decedent's loss of life's pleasures, asserting that jurors had discretion in valuing this loss. The highest estimate for lost earnings was approximately $2.7 million, but counsel advised the jury to determine an appropriate award amount, acknowledging uncertainty about the decedent's future earnings.
The court clarified that jurors were not obligated to accept expert testimony and could weigh it according to their judgment. The jury's general survival damages verdict could be substantiated by valid evidence of lost enjoyment and earnings. The absence of a special verdict slip asking the jury to itemize damages could have clarified the allocation of damages related to expert testimony, potentially negating the need for a new trial as ordered by the Superior Court.
Ordering a new trial would allow defendants to re-litigate the entire award, benefiting from their failure to request a special verdict slip. This failure occurred despite their awareness that the expert's testimony could be contested on appeal. Given these circumstances, including the defendants' knowledge before trial and their missed opportunities to request clarification, the court concluded they waived their claim for a new trial under the general verdict rule. The court emphasized it would not presume the verdict was based on improper grounds or remand the case for retrial, as the responsibility to clarify the matter rested with the defendants. Arguments against applying the general verdict rule were found unpersuasive.
Defendants argue they were prejudiced by Dr. Hayek’s testimony on pain and suffering, but the issue at hand is whether they waived their challenge to the survival award under the general verdict rule by failing to request a special verdict slip. Even if Dr. Hayek’s testimony was a prejudicial error, that does not negate the waiver issue, as non-harmless errors can still be waived. The court finds that the plaintiff did not waive reliance on the general verdict rule, as she was not the moving party in the trial court—defendants had filed a motion to exclude pain and suffering evidence. Additionally, although the plaintiff is the appellant now, she was the appellee in the Superior Court, supporting her non-waiver status. Citing previous cases (In re Vencil, Commonwealth v. Shaffer), the court asserts that the plaintiff had no obligation to preserve the issue of the general verdict rule.
Defendants’ distinction between this case and previous cases (Halper and Shiflett) is rejected; the general verdict rule applies equally here, regardless of whether the issue stems from an evidentiary error or an invalid liability theory. A general verdict that is supported by at least one valid issue cannot be reversed on appeal if no special verdict slip was requested. The court emphasizes that the erroneous introduction of evidence falls under the same "issue" category as invalid liability theories. Moreover, the argument that the neighbor’s testimony on pain and suffering negates the need for a special verdict slip is unconvincing, as expert testimony typically carries significant weight and went unrebutted. The jury’s specification of an amount for pain and suffering could have indicated that the expert testimony notably impacted the verdict. Thus, the court concludes that waiver under the general verdict rule is appropriate in this case.
In the absence of a request for a special verdict slip, it remains uncertain whether the jury awarded pain and suffering damages based on Dr. Hayek’s testimony or other evidence related to loss of life’s pleasures and lost earnings. Justice Mundy disagrees with the assertion that plaintiff’s counsel did not emphasize Dr. Hayek’s testimony during closing arguments, noting that the trial transcript contradicts this claim. Mundy expresses that expert testimony is not always required to award pain and suffering damages, countering the Majority’s implication that it is necessary in this case. Furthermore, Mundy argues that the defendants waived their right to a new trial by not requesting a special verdict form, rendering the discussion on the impact of Dr. Hayek’s testimony as "obiter dicta." The general verdict rule necessitates that a special verdict slip would clarify the basis for a general verdict, which was not requested by the defendants. The court will not impose the burden of a new trial on the plaintiff due to the defendants’ failure to seek clarification through a special interrogatory. Additionally, the defendants' reliance on Pennsylvania’s Suggested Standard Civil Jury Instructions is deemed misplaced, as these instructions are not binding and serve merely as guidelines. The court’s precedents in Halper and Shiflett establish the necessity for waiver in this situation, regardless of the suggested instructions. The court also clarifies that there is no prohibition against itemizing survival damages, as previously asserted by the defendants.
The Death Statute mandates that any recovery in wrongful death actions is distributed to beneficiaries according to intestacy laws, requiring the jury to issue a lump sum award rather than apportioning it among beneficiaries. The case of Ferne is distinguished as it addressed a lump sum under the Wrongful Death Act, whereas the current matter pertains to the Survival Act. Furthermore, Ferne's disapproval of apportionment does not affect the admissibility of expert testimony. The absence of itemization in the damage award led to a waiver in this case, a point supported by precedents such as Birth Center, which emphasized that the lack of special interrogatories hindered appellate review. The jury's verdict in the current case is unclear regarding the specific allocation of pain and suffering damages, which was one of several components of survival damages, including loss of life’s pleasures and lost earnings. The jury was instructed that they were not bound by expert testimony, and it is uncertain if they awarded any pain and suffering damages at all. The general verdict rule promotes judicial economy and fair treatment, and precedent dictates a finding of waiver in this situation. The request to apply the general verdict rule prospectively has been previously rejected.
The majority opinion emphasizes that their ruling does not expand the general verdict rule established in Halper but applies it straightforwardly. The Court asserts that the defendant had prior notice of this rule since Halper was decided seven years before the current trial. Similar to the Shiflett case, the defendants failed to request a special verdict slip that would clarify the basis for the general verdict, which was grounded on valid reasoning. The defendants were aware of both Halper and Shiflett prior to the trial. Consequently, the Court applies its holding to the current case, determining that the application of the general verdict rule aligns with its established interpretation over the past 27 years. The defendants are deemed to have waived their right to a new trial regarding survival damages under this rule. As a result, the Superior Court's order is reversed, and the case is remanded for consideration of appellate issues not previously addressed, including whether certain claims are waived due to the defendants’ failure to request a special verdict slip detailing pain and suffering damages. Chief Justice Baer and Justices Todd, Donohue, Wecht, and Brobson concur with the opinion, while Justice Mundy files a concurring and dissenting opinion.
