Compromise Verdicts in PA

Enter the Parties in Darwish v. EINSPAHR

In Darwish v. EINSPAHR, No. 2588 EDA 2019 (Pa. Super. Ct. Sept. 24, 2020) - a limited tort case, the defendant had reason to celebrate -- even before selecting the jury. Everything was going well, defense-wise. Plaintiff had elected limited tort, which means, she had to prove that her injuries from the motor vehicle accident at issue resulted in a severe limitation of an important bodily function.  Otherwise, no money could be awarded for pain and suffering. 

Only, no such evidence existed. The Plaintiff, Mary Darwish had barely received any treatment for the accident.  She went to ER that day, was treated and released. No hospital admission. There were no broken bones. No serious injuries. With limited tort, that usually means, a recovery of nothing, if the claim is mainly for "pain and suffering." 

No Exceptions Applied 

There are other exceptions to tort election restrictions - such as the Defendant's drunk driving, or having a vehicle registered out of state -- but none of those the applied.  The injury occurred in a private passenger vehicle, not a commercial vehicle, thus limited tort could apply.

Al of this was great news for the defense, because Plaintiff's attempt to prove "severe impairment" came up short at trial.  So now, all Plaintiff could hope for from the jury was an award for future medical bills -- mainly just some chiropractic treatment -- but no pain and suffering, which was the main part of her case.  

Uh oh, for the Plaintiff, right? Slam dunk for the defense. Pop the champagne bottles, defense counsel? 

Not so fast. The Darwish jury still had to deliberate.  

A Compromise Verdict in Pennsylvania

The jury in Darwish  found for the Plaintiff, Mary Darwish, awarding her $50,000, in a case worth far less, since no pain and suffering could properly be awarded. However, the clever jury was careful to avoid mentioning "pain and suffering." Instead, they awarded $50,000 entirely for "future medical bills," even though there was no evidence that future chiropractic or other treatment would definitely add up to $50,000. That would be a lot of adjustments! This is why we say:  every trial is a gamble. There are no guarantees in litigation. 

But the defense attorneys had one more card to play. 

Motion to Mold the Verdict to Reflect the Evidence

The defense (very wisely) asked the trial judge to mold the verdict -- to reflect the simple fact that no chiropractor charges "$50,000 for adjustments," for a barely injured patient. Plus, the whole point of treatment is to improve from it. Otherwise, none of the treatment would be reasonable, necessary, or properly payable in any amount, much less $50,000! The jury engaged in improper speculation to reach a verdict of $50,000 for future "medical" treatment, arguably. Sounds good, right? 

The trial judge bought it. He found the verdict inconsistent with the evidence and reduced the $50,000 verdict to zero. 

End of story?  Not quite.   

Mary Darwish Appeals Her Case to the Superior Court 

Mary Darwish indicated in her appeal that the jury could have reached a compromise verdict. Yes, an award for pain and suffering was almost certainly not warranted, but there was conflicting evidence as to how much future medical treatment was needed. There was even some evidence that Plaintiff would need cortisone injections for pain management. Though not expressly adding up to $50,000, the jury could have inferred -- without speculating -- that $50,000 of treatment was possible (though unlikely). The superior court ultimately opined:

"[Here,] the jury was correctly instructed that it could award damages for future medical expenses even though it found no serious impairment of bodily function. ... In reviewing a trial court's order molding the jury verdict to eliminate the award for future medical expenses, we are mindful of the following. "A jury is given wide latitude to fashion a verdict on damages." Farese v. Robinson, 222 A.3d 1173 (Pa.Super. 2019) (citing Nelson v. Hines, 653 A.2d 634 (Pa. 1995))." 

in other words, the Plaintiff won. The superior court vacated the trial court's decision to reduce the verdict, requiring that it enter judgment on the verdict for $50,000.