Benjamin v. Henderson

258 A.3d 498 (Table)

Eugene BENJAMIN and Latisha Benjamin, H/W

v.Christopher P. HENDERSON, M.D. and Scranton Orthopaedic Specialists, P.C.

Appeal of: Eugene Benjamin

No. 715 MDA 2020

Superior Court of Pennsylvania.

Filed June 04, 2021

Reargument Denied August 13, 2021

MEMORANDUM BY COLINS, J.:

In this medical malpractice case, Appellant, Eugene Benjamin,¹ appeals from the judgment entered on April 17, 2020, in his favor in the amount of $50,000.00, and against Appellees, Christopher P. Henderson, M.D., and Scranton Orthopaedic Specialists, P.C. We affirm.

In its opinion, the trial court set forth the relevant facts of this case. See Trial Court Opinion, filed April 16, 2020, at 1-4.² Therefore, we have no reason to restate them at length here. For the convenience of the reader, we briefly note that, following a work-related injury, Appellant underwent three lumbar spine surgeries performed by Dr. Henderson between September and December 2015. Id. at 1-3.

On February 1, 2017, Appellant brought this suit for alleged negligence by Appellees. Id. at 4. After completion of a status conference, the trial court issued an order on February 1, 2018, setting deadlines for discovery, submission of expert reports, and submission of other motions. Id. at 8. The order directed, inter alia , that all supplemental or rebuttal reports of any expert witness were due by October 30, 2018. Appellant "produced the August 15, 2018 initial expert report of [John O. Grimm, M.D.,] in support of his claims on August 20, 2018." Id. Appellant "then produced another report of Dr. Grimm dated December 12, 2018, and produced the expert report of [Linda Lajterman, R.N., his damages expert,] on December 24, 2018." Id. Prior to the commencement of trial, Appellees filed motions in limine seeking to preclude certain opinions contained in Dr. Grimm's supplemental expert report and to preclude the entirety of Nurse Lajterman's untimely report, along with her opinions and testimony. The trial court granted the motions.

Trial commenced on January 22, 2019. Id. at 4. During voir dire , Venireperson Number One and Venireperson Number Six both stated that they may not be able to be fair and impartial due to Appellant's criminal history. N.T., 1/22/2019, at 31, 56. However, Venireperson Number One acknowledged that any previous mistakes on Appellant's part "would have nothing to do with what happened here [in this case]." Id. at 31. The following exchange then occurred during Venireperson Number Six's individual voir dire :

[APPELLANT'S COUNSEL]: Are you able to fully put it aside and go in with a completely open mind and say all right, let's see what the evidence shows?

[VENIREPERSON NUMBER SIX]: I would certainly try, but you have to realize that that bias existed.

[APPELLANT'S COUNSEL]: Okay, thank you.

THE COURT: Well, I appreciate your candor, but you just said that you would be like everybody else in the jury room.

[VENIREPERSON NUMBER SIX]: Yeah, definitely try that.

Id. at 60-61. Appellant moved to have both of these venirepersons dismissed for cause, but the trial court denied the motions.

Also during voir dire , Venireperson Number Eighteen admitted that his wife is a nurse, that his daughter and son-in-law were both doctors, and that he is "a very biased father." Id. at 100. His individual voir dire continued:

[VENIREPERSON NUMBER EIGHTEEN]: So do I have a slant to favoring and appreciating what doctors do? Yeah. Did I have that 20 years ago? No. But I certainly do now.

[APPELLANT'S COUNSEL]: And is that going to play a role in your decision making in this case or could it?

[VENIREPERSON NUMBER EIGHTEEN]: I guess I could say it could. It would? I can't answer that. It could, yes, to be honest.

[APPELLANT'S COUNSEL]: I guess the question I'm asking is can you guarantee it won't?

[VENIREPERSON NUMBER EIGHTEEN]: No.

THE COURT: If I instruct you such emotions shouldn't enter into your deliberations, along with the jury, are you going to be able to follow the law and do that?

[VENIREPERSON NUMBER EIGHTEEN]: I would try my best, but even though I respect you and the office you hold I can't give you an absolute. If there would be no bias on my part, I can't do that. But I would do my best to follow your instructions and follow them completely to the best of my ability.

Id. at 101. Appellant moved to have Venireperson Number Eighteen dismissed for cause, which the trial court denied.³

At trial, "the jury was presented with evidence regarding the seriousness of [Appellant]’s injuries and his need for future care." Trial Court Opinion, filed April 16, 2020, at 13. Appellant "testified that he suffered back pain prior to his surgeries with Dr. Henderson[.]" Id. His testimony continued:

[APPELLANT'S COUNSEL]: Now, the third surgery, did it help?

[APPELLANT]: Yes, sir.

[APPELLANT'S COUNSEL]: In what way?

[APPELLANT]: It freed everything up. I was able to use my leg again. It wasn't dragging. The only thing was I couldn't lift my toes no more still. It didn't bring everything back. But I was told in time it could still heal and but it didn't. I was told that nerves regenerate so much every so often, so I had hopes that it was going to fully return.

N.T., 1/23/2019, at 301.

At the close of evidence, the [trial] court provided this instruction to the jury.⁷

⁷ Throughout the instruction, the bold language identifies where the present jury instruction differs from the Pennsylvania Suggested Standard Jury Instruction.

Mr. Benjamin has made a claim for a damage award for past and future noneconomic loss. If you find in his favor and determine that an award of damages for past and future non-economic loss is appropriate, you must consider that there are several items that make up an award for non-economic loss , both past and future: pain and suffering, embarrassment and humiliation, loss of ability to enjoy the pleasures of life, and disfigurement.^[8]

First, Mr. Benjamin must have experienced pain and suffering in order to be able to claim damage awards for past non-economic loss and future noneconomic loss.^[9] You are instructed that he is entitled to be fairly and adequately compensated for all physical pain, mental anguish, discomfort, inconvenience, and distress that you find he has endured from the time of the injury until today, and that he's also entitled to be fairly and adequately compensated for all physical pain, mental anguish, discomfort, inconvenience, and distress, which you find he will endure in the future as a result of his injuries.

Second, Mr. Benjamin must have experienced embarrassment and humiliation in order to claim noneconomic loss.^[10] He is entitled to be fairly and adequately compensated for such embarrassment and humiliation as you believe he has endured and will continue to endure in the future as a result of his injuries.

Third, Mr. Benjamin must suffer a loss of enjoyment of life.^[11] He is entitled to be fairly and adequately compensated for the loss of his ability to enjoy any of the pleasures of life as a result of the injuries from the time of the injuries until today, and to be fairly and adequately compensated for the loss of his ability to enjoy any of the pleasures of life in the future as a result of the injuries.

There must also be disfigurement.^[12] The disfigurement that Mr. Benjamin has sustained is an item of damages recognized by the law. So in addition to any amount you consider for pain and suffering for embarrassment or humiliation and for loss of enjoyment of life, the Plaintiff is entitled to be fairly and adequately compensated for the disfigurement he has suffered from the time of the injury to present, and that he will continue to suffer during the future duration of his life.

⁸ The Pennsylvania Suggested Standard Jury Instruction reads, "[t]here are four items that make up a damage award for noneconomic damages, both past and future: (1) pain and suffering; (2) embarrassment and humiliation; (3) loss of ability to enjoy the pleasures of life; and (4) disfigurement." 14.150 MEDICAL MALPRACTICE-DAMAGES (UNDER THE MCARE ACT, EFFECTIVE FOR ALL CLAIMS ARISING SUBSEQUENT TO MARCH 20, 2002), Pa. SSJI (CIV), 14.150.

⁹ The Pennsylvania Suggested Standard Jury Instruction reads, "[t]he first item to be considered in the plaintiff[’]s claim for damage awards for past noneconomic loss and for future noneconomic loss is pain and suffering." Id.

¹⁰ The Pennsylvania Suggested Standard Jury Instruction reads "[t]je second item that goes to make up noneconomic loss is embarrassment and humiliation." Id.

¹¹ The Pennsylvania Suggested Standard Jury Instruction reads "[t]he third item is loss of enjoyment of life." Id.

¹² The Pennsylvania Suggested Standard Jury Instruction reads "[t]he fourth and final item is disfigurement." Id.

Trial Court Opinion, filed April 16, 2020, at 15-16 (bold emphasis in original; italicized emphasis added) (some footnotes omitted) (quoting N.T., 1/25/2019, at 264-66).

Appellant's counsel objected to the above bolded language from trial court's instruction on noneconomic damages. Following a sidebar conference, the trial court agreed with Appellant's counsel. N.T., 1/25/2019, at 271. The trial court gave a curative instruction, which appears below in its entirety:

Members of the jury, when I was going through the different items that comprise past and future non-economic loss, I said to you that the Plaintiff must have experienced embarrassment and humiliation in order to recover for non-economic loss. If you are going to make an award for that portion of non-economic loss, he's got to have presented evidence of that . These are not cumulative. They're separate items. One is not dependent upon the other. You look at each one, and if there's evidence to support it, and you feel he's entitled to that, then you can award pain and suffering. If you feel he hasn't met his burden for embarrassment and humiliation, but he has for pain and suffering, you can award pain and suffering and not for embarrassment and humiliation. They're not

...