In the case of Avery v. Cercone, 2019 Pa. Super. 366 (2019), the Superior Court addressed whether the trial court erred in denying Plaintiff’s Post-trial motions from the judgment entered in the amount of $18,500 where the jury awarded Avery $8,500 for lost wages and $10,000 for pain and suffering after initially returning an award for pain and suffering in the amount of $0 dollars.
The Superior Court ultimately vacated the judgment of the lower court, reinstated the original verdict of $8,500 for lost wages, and remanded the case for the filing of new Post-trial motions on a weight of the evidence claim regarding the pain and suffering award.
Avery v. Cercone arises from a motor vehicle accident where liability was undisputed and both sides agreed that Plaintiff was entitled to some degree of damages for pain and suffering. The amount of damages was at issue in the trial. Following the trial, the jury returned a verdict for the Plaintiff in the amount of $8,500 for economic damages (lost wages) and awarded the Plaintiff $0 dollars for pain and suffering. When the jury returned the initial verdict solely for lost wages and no pain and suffering, the Judge, as well as the defense counsel, argued that it was “inconsistent” and agreed to send the jury back to deliberate with a curative instruction. Avery’s attorney argued that returning the jury to deliberate was improper.
The trial judge ultimately sent the jury back to deliberate for pain and suffering. The jury ultimately awarded the Plaintiff an additional sum of $10,000 in pain and suffering. Plaintiff filed Post-trial Motions, one of which was on the basis that the verdict was against the weight of the evidence, which was denied.
Avery filed an appeal in the Superior Court. The Superior Court held that it was reversible error for the trial judge to intervene in order to correct a verdict which was against the weight of the evidence by instructing the jury to reconsider their prior findings. Avery argued that the only remedy available to the court when a jury returns a verdict against the weight of the evidence is to grant a new trial. Avery also argued that the trial judge confused an inconsistent/illogical verdict with a verdict that is against the weight of the evidence. Avery argued that, providing the jury with such an instruction, invades the province of the jury. The jury was under no legal obligation to award monetary compensation for pain and suffering, because it was free to reject both side’s evidence of pain and suffering as “the rub of life.” The jurors could have concluded that Avery did not suffer any compensable pain and suffering because it was possible that they rejected all of the evidence supporting a pain and suffering award. However, the Superior Court noted that, in some instances, such a verdict can be against the weight of the evidence, particularly where the injury is not contested by the defense. In these situations, the proper procedure is to let the verdict stand and allow a party to file Post-trial Motions that the verdict was against the weight of the evidence. By sending the jury back after its initial award of $0 dollars for pain and suffering, the judge directed a de facto award to the Plaintiff of at least $1 dollar.
For these reasons, the Superior Court held that the revised verdict was in error and was vacated. The Avery case was remanded back to the trial court to determine whether the original “zero” verdict was indeed against the weight of the evidence under the “shocks the conscience” standard.
Questions regarding this opinion can be directed to David R. Friedman.
