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Damages must bear reasonable relationship to injury.

CASE ON POINT: Carroll v. Avallone, 2007 PASC 14 EAP(12/28/07) A.2d -PA

ISSUE: In this unusual Pennsylvania case a woman suffered a stroke and died. Her husband, as administrator of her estate, brought suit against her treating physician and his group, alleging that they were responsible for her death. Although after a jury trial the jury came back with a verdict for the plaintiff administrator, the amount of damages awarded to the administrator bore little or no relationship to the actual loss incurred by the death of the patient. The Superior Court of Pennsylvania awarded damages which it determined were more consistent with the actual loss.

CASE FACTS: Kelly Ann Carroll suffered a stroke and died. He husband, as administrator of her estate, filed a medical malpractice suit against his deceased wife's attending physician, Dr. Michael Avallone and his medical group, asserting wrongful death and survival actions. After a jury, trial, the jury returned a verdict finding the decedent and the defendants each 50% negligent, and awarded $29,207 in the wrongful death suit and no damages in the survival suit. After the verdict was reduced by the 50% negligent apportionment, the administrator was awarded $14,603.50. A motion was filed to "Mold" the Verdict Pursuant to the Pennsylvania Property and Insurance Guaranty Association Act's non-duplication of recovery provision. The court reduced the award to zero. On appeal, the Superior Court affirmed various evidentiary rulings, but remanded the case for a new trial on damages. That court concluded that the evidence the appellee's expert provided was uncontroverted since the opposing party offered no contradictory evidence. Thus, the court held that the "award of $29, 207 [bore] no reasonable relationship to the proven damages ... "The Superior Court followed the precedent set in the leading Pennsylvania case on the issue, Kaiser v. Schulte, 648 A.2d 1,4 (Pa. 1994), in which the Pennsylvania Supreme Court ruled that a jury's verdict may be set aside if it is the product of passion, prejudice, partiality, or corruption, or it is clear the verdict bears no reasonable relationship to the loss suffered by the plaintiff based on the uncontroverted evidence presented. The Supreme Court of Pennsylvania granted an allowance of an appeal to consider whether the Superior Court erred in holding that because the damages awarded bore no reasonable relationship to the evidence presented, and whether the evidence was "uncontroverted" within the meaning of Pennsylvania law, the court could overturn a jury verdict.

COURT'S OPINION: The Supreme Court of Pennsylvania held that the failure to present affirmative evidence made the opposite party's evidence uncontroverted, rendering it "proven damages" that must be reflected in the jury's verdict. However, the Superior Court's order granting a new trial on damages was reversed. The court held, inter alia, that if there is no argument or opposition on a particular point, a jury may not be free to disregard such information. Indeed to "controvert" means "[t]o raise arguments against; voice opposition to." The court concluded that "uncontroverted" evidence is evidence which is unopposed or unchallenged, not merely uncontradicted. If one party has the burden of proof, opposing counsel may strenuously controvert the evidence through cross-examination and argument. Reasons not to accept the plaintiff's evidence may suffice to prevent the meeting of that burden even without affirmative countervailing evidence. The court noted that the evidence in this case was not uncontroverted, and the expert's opinion did not amount to "proven damages." Appellant's counsel challenged the underlying facts supporting the opinion of loss posed by the appellee's expert witness. It was admitted by that expert witness that if the decedent never returned to the workforce, her net economic loss would be zero. Indeed, every scenario concerning the net economic loss of the decedent was based on speculation as to whether she would return to work, and in what capacity she would be employed. She did not concede that she would return in any capacity mentioned by the expert, and the jury was free to consider both his testimony on direct examination and his admissions during cross-examination. Thus, the court could not say that the damages awarded bore a rational basis to the facts.

LEGAL COMMENTARY: Both concurring and dissenting opinions were filed. In one, the judge concurred with the majority's holding that the appellants sufficiently challenged the damages evidence with regard to the appellee's survival action such that the jury's award should not be disturbed on appeal, However, the same judge vehemently disagreed with the majority's holding to the extent that it did not award a new trial on the issue of damages for the appellee's wrongful death suit. The judge was convinced that the award did not bear a reasonable relationship to the uncontroverted evidence of the damages recoverable.

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Regan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as all attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, Who's Who in America and Who's Who in the World.
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Title Annotation:Medical Law Case of the Month
Author:Tammelleo, A. David
Publication:Medical Law's Regan Report
Article Type:Case study
Geographic Code:1USA
Date:Mar 1, 2008
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