Pennsylvania Supreme Court Concludes Defendant Waived New Trial Under the General Verdict Rule
James L. Cowher, II (“Cowher”) was 48-years-old when presented to Dr. Sobhan Kodali, St. Luke’s University Health Network, and St. Luke’s Cardiology Associates (defendants) in July 2016 with complaints of chest pain that radiated into his arms, and was often associated with shortness of breath, dizziness and tingling in his fingers. Cowher also reported running three miles every other day at a nine-minutes-per-mile pace without any symptoms. However, Cowher was considered obese, had high cholesterol, and a family history of coronary artery disease. All tests were negative for cardiac issues. Dr. Kodali concluded that Cowher’s issues were not cardiac related, further evaluation was unnecessary, and his clinical picture was suggestive of anxiety/panic attacks.
In August 2016, Cowher 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. An autopsy revealed he had severe atherosclerotic cardiovascular disease. The coroner reported his primary cause of death to be acute myocardial infarction.
In 2018, Cowher’s wife, Karen Cowher (“Plaintiff”), filed suit against defendants. Her complaint raised causes of action under the Wrongful Death Act and the Survival Act. Prior to trial, the trial court accepted the Defendants proposed verdict slip, which provided one-line general damage entries (“blank spaces”) for the Wrongful Death Action and the Survival Action, but denied the Defendants motion to preclude Plaintiff from introducing any evidence at trial regarding Cowher’s pain and suffering.
At trial, the neighbor who witnessed decedent collapse testified Cowher 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, stating, “I need help.” He then went down on two knees, then on to his side, and then finally on to his back and passed out. Three minutes elapsed between when she first saw Cowher and when he lost consciousness, and during this time he was in pain, breathing heavily, and very distraught. Based on these facts, Plaintiff’s cardiology expert concluded that Cowher experienced pain and suffering prior to his death. Plaintiff’s expert economist opined the total economic loss stemming from Cowher’s death ranged from approximately $1,000,000 to $2,700,498. At the close of the evidence, the trial court instructed the jurors there were four distinct components of survival damages: pain and suffering, loss of ability to enjoy the pleasures of life, past lost earnings, and future lost earnings.
The jury returned a verdict for Wrongful Death damages in the amount of $2,457,000 and Survival Act damages in the amount of $3,833,000. Defendants did not ask the trial court to require the jury to itemize or otherwise clarify its damages awards. Defendants appealed to the Superior Court, arguing the admission of the expert opinion testimony of plaintiff’s expert regarding decedent’s pain and suffering was erroneous and required a new trial on damages. The Superior Court agreed, and determined that the admission of this evidence was prejudicial, and served the basis for a verdict for Survival Act pain and suffering in the amount of $1,132,502, i.e., the difference between the verdict amount and the evidence of economic loss. Cowher v. Kodali, 249 A.3d 1134, at *7 (Pa. Super. 2021). The panel rejected Plaintiff’s argument prejudice could not be determined because Defendants did not request an itemized verdict sheet showing the precise amount of the jury’s pain and suffering award.
On appeal, the Pennsylvania Supreme Court held the Defendants waived a new trial on survival damages under the general verdict rule. Cowher v. Kodali, No. 77 MAP 2021 (April 12, 2022). This rule provides: “‘when the jury returns a general verdict involving two or more issues and its verdict is supported as to at least one issue, the verdict will not be reversed on appeal.’” Shiflett v. Lehigh Valley Health Network, Inc., 217 A.3d 225, 234 (Pa. 2019), quoting Halper v. Jewish Family & Children’s Service, 963 A.2d 1282, 1289 (Pa. 2009). “‘[A] defendant who fails to request a special verdict form in a civil case will be barred on appeal from complaining that the jury may have relied on a factual theory unsupported by the evidence when there was sufficient evidence to support another theory properly before the jury.’” Id. The Court also concluded there was competent evidence supporting the distinct components of survival damages, other than pain and suffering, i.e., loss of ability to enjoy the pleasures of life, past lost earnings, and future lost earnings to support the verdict amount of $1,132,502 beyond the “estimated” economic loss claim, which the jury could consider, but was not binded.