Cowher v. Kodali

283 A.3d 794 (Mem)

Karen COWHER, Administratrix of the Estate of James L. Cowher, II, Deceased, Appellant

v.Sobhan KODALI, M.D., St. Luke's University Health Network and St. Luke's Cardiology Associates, Appellees

No. 77 MAP 2021

Supreme Court of Pennsylvania.

Argued: April 12, 2022

Decided: September 29, 2022

David Samuel Senoff, Esq., Andrew Samuel Youman, Esq., Youman & Caputo, LLC, for Appellant.

Maureen Murphy McBride, Esq., James C. Sargent Jr., Esq., Lamb McErlane, PC, West Chester, PA, Laurie Beth Shannon, Esq., Kilcoyne & Nesbitt, LLC, Mark R. Zolfaghari, Esq., St. Luke's University Health Network, for Appellees.

Charles Lyman Becker, Esq., Ruxandra Maniu Laidacker, Esq., Kline & Specter, PC, for Amicus Curiae Pennsylvania Association for Justice.

John Jacob Hare, Esq., Marshall Dennehey Warner Coleman & Goggin, PC, for Amici Curiae The American Medical Association, The Pennsylvania Medical Society.

BAER, C.J., TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.

OPINION

JUSTICE DOUGHERTY

The jury in this medical malpractice case awarded the plaintiff Karen Cowher a lump sum amount of damages under the Survival Act, 42 Pa.C.S. § 8302, and did not itemize the amount of pain and suffering damages or other components of its aggregate award. Thereafter, the Superior Court granted the defendants Dr. Sobhan Kodali, St. Luke's University Health Network, and St. Luke's Cardiology Associates (defendants) a new trial on survival damages based on their claim the admission of plaintiff's expert opinion testimony on pain and suffering was erroneous. The narrow question we address in this appeal is whether defendants waived their right to a new trial under the general verdict rule. This rule applies and mandates waiver when a general verdict rests upon both valid and invalid grounds, and the litigant challenging the verdict failed to request a special verdict slip that would have clarified the basis for the verdict. As detailed below, these are the circumstances here. Accordingly, we hold defendants waived a new trial under the general verdict rule and reverse the Superior Court's order for a new trial.

I.

In December of 2015, James L. Cowher, II (decedent), experienced chest pain that woke him from his sleep. He sought medical attention and underwent a stress echocardiogram test, the results of which were normal. Subsequently, on July 11, 2016, decedent saw his primary care doctor with complaints of ongoing chest pain, as well as shortness of breath, nausea, and sweating. The doctor performed an electrocardiogram test and ordered decedent's blood tested for troponin, a heart muscle enzyme released into the bloodstream when there is heart damage. The results of both tests were normal. Decedent's primary care doctor referred him to St. Luke's Cardiology Associates.

Dr. Kodali, a general cardiologist with St. Luke's Cardiology Associates, saw decedent on July 13, 2016. Decedent told Dr. Kodali that for the last six months he had been experiencing chest pains radiating to both arms, which were often associated with shortness of breath, dizziness, and tingling in his fingers. He also told the doctor he was running three miles every other day at a nine-minutes-per-mile pace without any symptoms. Dr. Kodali knew decedent had three risk factors for heart disease : a family history of premature coronary artery disease, high cholesterol, and obesity. Dr. Kodali concluded decedent's issues were not cardiac related, further evaluation was unnecessary, and his clinical picture was suggestive of anxiety/panic attacks.

On August 23, 2016, decedent was running in his neighborhood when he collapsed in front of a neighbor. He was subsequently transported to the hospital, where he was pronounced dead. He was forty-eight years old. An autopsy revealed he had severe atherosclerotic cardiovascular disease. The coroner reported his primary cause of death to be acute myocardial infarction.

On January 31, 2018, plaintiff, who is decedent's widow and the administrator of his estate, filed suit against defendants. Her complaint raised causes of action under the Wrongful Death Act and the Survival Act,¹ set to be tried before a jury. On October 28, 2019, defendants filed in the trial court a proposed verdict slip for the jury. They proposed the following question with respect to damages:

Question 3:
State the amount of damages sustained by Plaintiff as a result of the negligence of the health-care provider(s):
Wrongful Death Action	$_______________
Survival Action	$_______________

Proposed Verdict Slip of Defendants at 2 (filed 10/28/19).

On November 7, 2019, defendants filed a motion in limine to preclude plaintiff from introducing any evidence at trial regarding decedent's pain and suffering. Defendants argued "[t]estimony from the neighbors about pain and suffering would constitute a speculative lay opinion that is unreliable and not able to provide an appropriate basis for a jury to find there was pain and suffering[,]" and plaintiff's "sole expert does not offer a sufficient opinion on the subject and cannot testify outside the four corners of his expert report." Memorandum of Law in Support of the Motion in Limine of Defendants, Sobhan Kodali, M.D., St. Luke's University Health Network, and St. Luke's Cardiology Associates, to Preclude Plaintiff from Offering Any Evidence or Testimony Regarding Decedent's Pain and Suffering at 3 (filed 11/7/19). The trial court denied the motion.

At the pretrial conference on December 2, 2019, the parties and the trial court discussed the verdict slip. See N.T. 12/2/19 at 20-22. Defendants argued the damages question should have two blanks, one for the jurors to supply an amount for the wrongful death action and the other for them to provide an amount for the survival action, as indicated on their previously submitted verdict slip. The court agreed. See id. at 22 ("Mr. Zolfaghari: It's the Wrongful Death Act and the Survival Act. The Court: Right. ...The Court: I think Mr. Zolfaghari is right, they just get the two, but that sounds right.").

At trial, the neighbor who witnessed decedent collapse while on a run, Diana Kanowski, testified she was walking her dogs when she saw decedent approaching her. She recounted he was walking at a "really slow" pace, which was atypical for him, and as she got closer to him, he went down on one knee. N.T. 12/3/19 at 74. Kanowski recalled she jokingly asked him whether he was taking a break, and he answered "No," and stated, "I need help." Id. She testified decedent went down on two knees, then on to his side, and then finally on to his back and passed out. See id. at 74-78. She stated approximately three minutes elapsed between when she first saw decedent and when he lost consciousness, and during this time he was in pain, breathing heavily, and very distraught. See id.

Based on Kanowski's testimony, plaintiff's expert in cardiology, invasive cardiology, and internal medicine, Dr. Emil Hayek, offered the opinion decedent experienced pain and suffering prior to his death:

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. 12/3/19 at 221.

Plaintiff's expert in actuarial economics, David Hopkins, opined the total economic loss stemming from decedent's death ranged from $1,070,145 to $2,700,498. See N.T. 12/4/19 at 59.

Upon the conclusion of the presentation of evidence, the trial court provided the parties with a copy of the verdict slip to review. Defendants suggested the reference to "the Plaintiff" in question 2, which concerned causation, should be replaced with the name of decedent, and the court and plaintiff agreed to the change. Otherwise, defendants voiced no objection to the slip. See N.T. 12/6/19 (Afternoon Session) at 55-56. The court and parties then turned to discussion of the parties’ proposed points for charge. Defendants agreed the jury should be instructed that past non-economic damages under the Survival Act include damages for pain and suffering. See id. at 74, 101.

On December 9, 2019, in its closing instructions to the jury, the trial court instructed the jurors there were four components of survival damages, specifically, pain and suffering, loss of life's pleasures, past lost earnings, and future lost earnings:

So under the Survival Act, the Plaintiff is entitled to be compensated for the following damages. And there are three components to this as well. First, we're going to talk about past noneconomic damages.

The Plaintiff is entitled to be awarded an amount that you believe will fairly and adequately compensate for the mental and physical pain, suffering and inconvenience and loss of life's pleasures that James Cowher endured from the moment of his injury to the moment of his death as a result of this incident. There are two items that make up a damage award for noneconomic loss: 1. Pain and suffering and 2. Loss of ability to enjoy the pleasures of life. First, the Plaintiff, on behalf of James Cowher's estate, is entitled to be fairly and adequately compensated for all physical pain, mental anguish, discomfort, inconvenience and distress that you find that the Decedent – that James Cowher endured from the time of the injury until his death. Second, the Plaintiff on behalf of James Cowher's estate is entitled to be fairly and adequately compensated for James Cowher's loss of his ability to enjoy any of the pleasures of life as a result of the injury, as a result of the injuries from the time of those injuries until the time of his death.

The second one is past lost earnings. The Plaintiff is entitled to be awarded the total net amount that James Cowher would have earned between the

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