Estoppel; Waiver of New Trial; Failure to Request Itemized Verdict

Estate of Cowher v. Kodali, 2021 WL 423070 (Pa. Super.) (unreported), allocatur granted Oct. 19, 2021, appeal docket 77 MAP 2021

James Cowher died from a cardiac arrest. Prior to his death, Cowher met with Dr. Kodali regarding chest pains and other systems. Dr. Kodali did not order or perform any tests other than an additional electrocardiogram, which was normal, and a lipid test, which was normal, and determined that the chest pain was “not cardiac” and no further evaluation was necessary. Slip op. at 3. Over a month later, Cowher suffered cardiac arrest while jogging and died. The pathologist who performed an autopsy on Cowher found that Cowher “had blockages of 80% and over 90% in the left main and left anterior descending coronary arteries and listed the cause of Decedent’s death as ‘[f]avor cardiac arrhythmia secondary to ASCVD [arteriosclerotic cardiovascular disease].’” Id. (citation to record omitted). The coroner reported the cause of Cowner’s death as acute myocardial infarction due to severe coronary artery disease. Cowher’s widow filed a medical malpractice wrongful death and survival lawsuit on behalf of the estate, alleging Dr. Kodali was negligent in failing to recognize that Cowher was suffering from unstable angina and in failing to diagnose Cowher’s severe coronary artery disease.  Superior Court summarized the testimony and evidence related to Cowher’s pain and suffering that was presented at trial:

Plaintiff’s cardiology expert testified with respect to Decedent’s pain and suffering:

Q. In addition to the other opinions that you’ve given today, do you have an opinion regarding whether Mr. Cowher experienced pain and suffering prior to his death?

A. Yes.

Q. And what is that opinion and what’s it based on?

A. That, based on the testimony I heard earlier this morning, I believe he did suffer conscious pain and suffering on that run on August 23rd when he realized that something was very wrong before he became unconscious.

N.T. Trial, 12/3/19, at 221. No medical explanation or further basis for this opinion was given by the expert. The “testimony … earlier this morning” that the expert referenced was testimony of the neighbor who saw Decedent collapse. This neighbor testified that she saw Decedent walking slowly, kneeling, and laying down, that Decedent said “I need help,” and that Decedent appeared to be “in pain” and “not himself” and “was very distraught.” Id. at 74-77. The neighbor also testified that Decedent was conscious for approximately three minutes before he passed out. Id. at 77-78.

Slip op. at 12-13. The jury entered a general verdict including a survival award for $3,833,000, $1,132,502 more than estate’s evidence of economic damages. Dr. Kodali appealed, arguing that the admission of the estate’s cardiology expert’s pain and suffering opinion testimony was prejudicial error necessitating a new trial on damages. The estate contended that the error was not prejudicial because the award could have included pain and suffering for the six-week period between Cowher’s visit to Dr. Kodali and his fatal cardiac event, which was unknown because Dr. Kodali failed to request an itemized verdict sheet.

Superior Court concluded that, “given the fact that the jury awarded a high amount of pain and suffering damages for a brief period of time coupled with the undue weight that jurors are likely to give to expert testimony … the admission of Plaintiff’s cardiology expert’s opinion on pain and suffering was prejudicial error.” Slip op. at 18. In so holding, the court explained that Dr. Kodali’s failure to request an itemization of damages did not affect the ability to challenge the verdict, reasoning that:

While absence of an itemization of damages can affect a court’s ability to review a challenge to the amount that a jury awarded for a particular item of damages, see Birth Center v. St. Paul Companies, Inc., 727 A.2d 1144, 1163 & n.16 (Pa. Super. 1999), aff’d, 787 A.2d 376 (Pa. 2001), the issue here is whether the improper admission of evidence was prejudicial, not whether the amount of the pain and suffering award was excessive or unsupported. The standard for whether error is prejudicial, as stated above, is whether it could have affected the verdict. The ability to ascertain the precise amount of the jury’s pain and suffering award is unnecessary to that analysis. The fact that the damages verdict that included pain and suffering was over $1 million more than Plaintiff’s expert’s highest calculation of economic damages is sufficient for the Court to conclude that this verdict could have been affected, even if an actual amount of pain and suffering damages cannot be determined.

Slip op. at 18 (emphasis in original).

Superior Court affirmed the liability verdict and the wrongful death damages award but vacated the damages judgment with respect to the survival claim, reasoning:

Because neither the liability verdict nor the wrongful death damages award could have been affected by the erroneous admission of expert testimony on pain and suffering, we vacate only the damages judgment with respect to Plaintiff’s survival claim and remand for a new trial on damages limited to that claim.

Slip op. at 19-20.

The Supreme Court granted allocatur limited to the following issue:

Where, as here, Respondents failed to request an itemized verdict slip such that the jury would have been required to separately value the amount of each element of damages under Pennsylvania’s Survival Act and where the Respondents failed to object to the general verdict slip given by the Trial Court to the jury to answer during deliberations, knowing that they intended to challenge any pain and suffering award rendered by the jury, whether those same Respondents are estopped from requesting and receiving or have waived a new trial on damages?


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