In a non-precedential opinion authored by the Honorable Mary P. Murray, the Superior Court of Pennsylvania recently remanded a medical malpractice matter for a new trial on the issue of damages based on a finding that the verdict may have been excessive.

In Kimble v. Laser Spine Institute, LLC., et al. [1], Decedent suffered from back pain for which she took numerous narcotic and other pain medications. Decedent underwent spine surgery at the Laser Spine Institute. Following discharge, on the date of the surgery Decedent stopped breathing. Emergency responders arrived and found Decedent unresponsive. Decedent was transported to the hospital and pronounced dead. Decedent’s autopsy revealed the presence of pulmonary edema [2]. The toxicology report revealed the presence of multiple opioids and several central nervous system depressants (“CNSD”). The cause of death was listed as “synergistic” effect of multiple CNSD.

Robert Kimble as the Administrator of the Estate of Sharon Kimble and in his own right brought suit against Laser Spine Institute, LLC; Laser Spine Institute Philadelphia; Laser Spine Institute of Pennsylvania, LLC (collectively “LSI”); and Glen Rubenstein, M.D (all referred to collectively as “Appellants”) alleging claims under the Pennsylvania Wrongful Death and Survival Acts [3]. The case proceeded to trial and a verdict was returned in favor of Kimble awarding 10 million dollars in Wrongful Death Act damages and 10 million dollars in Survival Act Damages. Appellants filed post-trial motions and the trial court granted Appellants’ request for judgment notwithstanding the verdict as to the Survival Act damages but denied the request for judgment notwithstanding the verdict regarding the Wrongful Death Act award.

Appellants argued that the 10-million-dollar Wrongful Death Act award was so excessive that it shocked the conscience. The Superior Court explained that it will not find a verdict excessive unless it is so grossly excessive as to shock our sense of justice [4]. The beginning premises is that large verdicts are not necessarily excessive, each case is unique and dependent on its own special circumstances [5].

In Kimble, the jury heard limited evidence from Kimble and his sons regarding the nature of the relationship between Kimble and the Decedent; they spoke generally of Kimble’s sadness following Decedent’s death and testified that Kimble had to move in with his mother because he did not like living alone. When addressing the issue of excessiveness, the trial court stated, “how much is a marital relationship worth to a surviving spouse? We leave that determination to the wisdom of the jury. To compare verdicts of other juries/fact finders in order to determine an appropriate award herein strikes at the independence of the jury process.” The Superior Court explained that the trial court abused its discretion by failing to vacate the damages award. The trial court’s decision reflected no examination of the testimony presented at trial related to non-economic damages; Kimble did not present evidence of economic damages arising from Decedent’s death, the evidence presented related to non-economic damages and did not support a 10-million-dollar award.

The Superior Court also noted that the 10-million-dollar award was far greater than other wrongful death awards for loss of society and comfort that the Superior Court had affirmed in other cases. The Superior Court explained that it was proper to look at other decisions in determining the appropriateness of a wrongful death award. Due to the trial court’s failure to examine the evidence and the award’s inconsistency with other awards for loss of society and comfort, the trial court’s award to Kimble was excessive. The Superior Court vacated the judgment entered against Appellants and remanded the matter to the trial court for a new trial limited to the issue of damages.

The opinion also serves as a reminder that the Superior Court will look for and rely upon waivers of appellate issues in order to preserve the validity of trial court rulings during the course of the trial. By way of example, LSI argued that the trial court erred in entering judgment against the specific named entities because the jury returned a verdict against “Laser Spine Institute” and did not specifically list the entities on the verdict slip. The Superior Court ruled that LSI failed to preserve this issue because they failed to raise the issue in their pre-trial motions. Moreover, even if LSI had not waived the issue, the trial record was full of instances demonstrating that the Parties commonly referred to the entities collectively as “Laser Spine Institute” or “LSI”.

Additionally, Appellants challenged the trial court’s decision to deny the requested JNOV. Specifically, Appellants argued that Kimble did not establish a prima facie case of negligence against Dr. Rubenstein as Kimble failed to present evidence establishing the applicable standard of care and was therefore unable to establish a breach of the standard of care or causation. LSI argued that JNOV was proper because Kimble did not establish that they were vicariously liable for Dr. Rubenstein’s conduct. The Superior Court ruled that Appellants had waived nearly all of their JNOV claims as there was no dispute that Appellants never moved for a directed verdict on any issue, which is a pre-requisite to a post-trial motion for JNOV. The Superior Court explained that Appellants’ movement for non-suit at the close of Kimble’s case-in-chief was insufficient to preserve the right to seek JNOV because the appropriate issues were not raised in the movement for non-suit. Appellants further failed to preserve their right to move for JNOV by not requesting a binding jury instruction setting forth the parties to be named on the verdict slip.

Additionally, Appellants argued they were entitled to a new trial because the evidence was insufficient to support a verdict reflecting that LSI was 65% liable for Decedent’s death. According to Appellants, because Kimble’s claim against LSI was for vicarious liability, LSI and Dr. Rubenstein were not joint tortfeasors and LSI could not be 65% liable and therefore, the trial court erred by allowing apportionment of liability on the verdict slip. The Superior Court noted that Appellants waived any argument as to the wording of the verdict slip as immediately prior to the closing arguments, counsel for Appellants specifically expressed that he had no issue with the verdict slip and Appellants raised no issue with the verdict slip at trial.

[1] Kimble v. Laser Spine Institute, LLC, et al., No. 617 EDA 2019 (Pa. Super, April 19, 2020).

[2] Pulmonary edema is a condition commonly observed in drug deaths involving opiates.

[3] 42 Pa. C.S.A. §§ 8301-83002.

[4] Tillery v. Children’s Hosp. of Philadelphia, 156 A.3d 1233 (Pa. Super. 2017).

[5] Id.