July 23rd, 2019 by Rieders Travis in Damages


In this case from our office, Pittinger v. Hartzell, No. 20-0239 (C.P. Union July 27, 2020) Anderson, S.J., the court will allow punitive damages to go forward because of evidence that the doctor knew he caused a tear in the lens capsule at the time of cornea surgery, and even though the patient was seen a number of times thereafter, no one ever looked through the vitreous at the retina.  Had they done so, clearly they would have seen that capsular material had entered the vitreous with the potential of causing blindness.  In fact, the patient became blind.  The fact that the doctor knew he caused the tear and nevertheless did not do any follow-up to identify the possibility of capsule material, even though the patient was blind immediately after the surgery, could lend itself to the proof of deliberate indifference and hence punitive damages.


DAMAGES-COLLATERAL SOURCE RULE-WORKERS’ COMPENSATION PAYMENTS- Nazarak v. Waite, 216 A.3d 1093 (Pa. Super. August 2, 2019) Stevens, P.J.E.  Plaintiff put in evidence of workers’ compensation payments, lien, and need to pay back.  Defendant objected to this as violation of the collateral source rule.  The court noted that the collateral source rule is intended to protect the plaintiff, but it was plaintiff who put in this evidence.  The evidence also did not suggest liability.  To the extent that the trial court erred in permitting the plaintiff to enter into evidence the fact that he settled his workers’ compensation claim, we agree with the trial court that the error does not constitute reversible error.  Evidence of a settlement should not go into evidence.


Ponzini v. Monroe County, 2019 U.S. App. LEXIS 34731 (3d Cir. November 21, 2019) McKee, C.J., pursuant to I.O.P. 5.7 does not constitute binding precedent.  When health care institutions act or fail to act with intentional or reckless disregard for a patient’s health and welfare, they may be held liable for punitive damages.  

The record is filled with evidence of policies ignored, medical records not reviewed, medical orders not followed, medication prescribed but not given (after verification), and PrimeCare ignoring nursing staff complaints about insufficient staffing and doctors not visiting MCCF sufficiently frequently. The evidence is clearly sufficient to allow a reasonable juror to conclude that PrimeCare recklessly disregarded Barbados’s welfare; and the jury here did just that. 

Viewing the evidence in the light most favorable to Plaintiffs (as we must), we conclude that the jury could easily find that PrimeCare is a company that regularly misrepresents its operational structure, fails to properly supervise its staff, and takes affirmative steps to mislead the public and the government. Therefore, the record supports the jury’s conclusion that PrimeCare’s actions were “of such an outrageous nature as to demonstrate intentional, willful, wanton or reckless conduct.” 

As noted at the outset, the District Court should only have set the punitive damages award aside if “no reasonable inference from the facts alleged support[ed] [the] award of punitive damages.” That is simply not the case here. Therefore, we will reverse the District Court’s order vacating the award of punitive damages.


Carlini v. Glenn O. Hawbaker, Inc., 2019 Pa. Super. LEXIS 911 (September 13, 2019) Nichols, J. Appellant/Cross-Appellee Glenn O. Hawbaker, Inc. (Hawbaker) and Appellee/Cross-Appellant Susan Carlini (Carlini) appeal from the judgment entered in favor of Carlini in her actions for wrongful discharge and invasion of privacy. Hawbaker challenges various evidentiary rulings and the amount of damages awarded by the jury. Carlini argues that the trial court erred in refusing to instruct the jury that it could award non-economic compensatory damages for the wrongful discharge claim. We affirm the jury’s verdict as to Hawbaker’s liability for Carlini’s wrongful discharge and invasion of privacy claims. We also affirm the compensatory damages awarded for the invasion of privacy claim and the economic damages awarded for the wrongful discharge claim. Nevertheless, we vacate the judgment and remand for a new trial limited to the issues of punitive damages and the non-economic damages for the wrongful discharge claim.

On this record, Carlini did not present testimony to establish that the financial records satisfied the business record exception to the hearsay rule, and the trial court abused its discretion in permitting the admission of the financial records and testimony regarding Hawbaker’s net worth. See Maisano, 204 A.3d at 523; Brown, 202 A.3d at 708; see also Keystone Dedicated Logistics, 77 A.3d at 12 (vacating the judgment and remanding for a new trial on damages where, among other things, the trial court abused its discretion in admitting invoices that were not properly authenticated at trial). Because this evidence was the only evidence on which the jury could have based its calculation of the punitive damages, Hawbaker is entitled to a new trial limited to the issue of punitive damages for the wrongful discharge and invasion of privacy claims.

The trial court denied Carlini’s request for a jury instruction concerning non-economic damages incurred as result of the wrongful discharge, noting that “[t]he cases relied on by [Carlini] either do not directly discuss what non-economic damages are permitted in a wrongful discharge award or are not controlling in this matter since they are from different jurisdictions.” Op. and Order at 11. The trial court, however, failed to acknowledge the theoretical underpinnings for the award of non-economic damages. Based upon the foregoing, we conclude that the victim of a wrongful discharge is entitled to recover damages for emotional distress that can be reasonably expected to result from the wrongful discharge. See Kilpatrick, 632 F. Supp. at 550; Restatement (Second) of Torts § 905 cmt. a. Because the trial court committed an error of law by failing to instruct the jury that it could award non-economic damages under such circumstances, the court abused its discretion in denying Carlini’s post-trial motion. See Stalsitz, 814 A.2d at 771. Therefore, Carlini is entitled to a new trial limited to the issue of compensatory damages for the wrongful discharge claim.

Accordingly, we affirm the jury’s verdict as to Hawbaker’s liability for Carlini’s wrongful discharge and invasion of privacy claims. We also affirm the compensatory damages awarded for the invasion of privacy claim and the economic damages awarded for the wrongful discharge claim. We vacate the judgment and remand for a new trial limited to the issues of punitive damages and the non-economic damages for the wrongful discharge claim.

Judgment vacated. Case remanded with instructions. Jurisdiction is relinquished.


Jester, et al. v. Hutt, et al., 3rd Cir. Nos. 18-3114 and 18-3197 (August 28, 2019).This cases discusses how to handle punitive damages when the actual damage award was nominal.  The Court discusses ratio guideposts and how the United States Supreme Court has addressed this.  How do courts evaluate constitutionality of punitive damage awards?  For starters, they have recognized that higher ratios between nominal and punitive awards “are to be expected.”  Romanski, 428 F.3d at 645; see also Saunders, 526 F.3d at 154; Fabri v. United Techs, Int’l, Inc., 387 F.3d 109, 126-27 (2d Cir. 2004); Williams, 352 F.3d at 1016.  And after acknowledging that the punitive award can exceed the single-digit ratio, courts often “compare it to punitive awards examined by courts ‘in [similar cases] to find limits and proportions.’” Romanski, 428 F.3d at 645 (quoting Lee v. Edwards, 101  F.3d 805, 811 (2d Cir. 1996)); see, e.g., Fabri, 387 F3.d at 126-127 (comparing punitive damages award to others in similar cases); Williams, 352 F.3d at 1016 n. 78 (same); see also Saunders, 526 F.3rd at 154 (comparing the punitive damages award “to other cases involving similar claims” and assessing whether a lower award would act as a meaningful deterrent). 


Shiflett v. Lehigh Valley Health Network, Inc., 2019 Pa. LEXIS 5420 (Pa. S.Ct. September 26, 2019) Donohue, J.  The court, on special verdict form, listed each defendant separately but then had one question for damages.  The plaintiff should not have been permitted to proceed against one of the defendants because of the statute of limitations.  The Supreme Court said that the Superior Court was wrong to send the matter back for trial.  It is up to the defendant to say if they wanted damages broken down between the parties and they did not do that.  There would be no retrial on damages.  The court has adopted the “general verdict rule” which provides that when the jury returns a general verdict involving two or more issues and its verdict is supported by at least one issue, the verdict will not be reversed on appeal. We recognize the concern of the Superior Court and the hospital that without a new trial there is a possibility that the plaintiffs obtained an award that may include damages awarded on a time-barred theory of liability that should not have been submitted to the jury.  The hospital was aware of this possibility throughout the course of the trial and yet failed to request special interrogatories that could have prevented the problem.  


Dutra Group vs. Batterton, 2019 U.S. LEXIS 4202.   This case asks whether a mariner may recover punitive damages on a claim that he was injured as a result of the unseaworthy condition of the vessel.   We have twice confronted similar questions in the past several decades, and our holdings in both cases were based on the particular claims involved.  In Miles, which concerned a wrongful-death claim under the general maritime law, we held that recovery was limited to pecuniary damages, which did not include loss of society.  498 U.S., at 23.  And in Atlantic Sounding, after examining centuries of relevant case law, we held that the award on the traditional maritime claim of maintenance and cure.  557 U.S. at 4017.  Here, because there is no historical basis for allowing punitive damages in unseaworthiness actions, and in order to promote uniformity with the way courts have applied parallel statutory causes of action, we hold that punitive damages remain unavailable in unseaworthiness actions.


Murga v. Lehigh Valley Physicians Grp. 2018 Pa. Dist. & Cnty. Dec. LEXIS 3053 (November 26, 2018) Johnson, J.-Court would not grant partial summary judgment on negligent affliction of emotional distress claim. Plaintiff argued that NIED claims have evolved and broadened in Pennsylvania and that her NIED claims were appropriate under multiple theories of recovery including the duty of care arising from a special relationship, a physical impact theory and a bystander theory. The court distinguished between transitory, nonrecurring physical phenomena like fright as opposed to depression, nightmares, stress and anxiety. Plaintiff’s severe emotional and psychological injuries which were accompanied by physical injuries, pain and suffering are sufficient to satisfy the physical harm requirement. 


Dittman v. UPMC, 2018 Pa. LEXIS 6051 (Pa. S.Ct. November 21, 2018) Baer, J.  We granted discretionary review in this matter to determine whether an employer has a legal duty to use reasonable care to safeguard its employees’ sensitive personal information that the employer stores on an internet-accessible computer system. We also examine the scope of Pennsylvania’s economic loss doctrine, specifically whether it permits recovery in negligence for purely pecuniary damages. For the reasons discussed below, we hold that an employer has a legal duty to exercise reasonable care to safeguard its employees’ sensitive personal information stored by the employer on an internet-accessible computer system. We further hold that, under Pennsylvania’s economic loss doctrine, recovery for purely pecuniary damages is permissible under a negligence theory provided that the plaintiff can establish the defendant’s breach of a legal duty arising under common law that is independent of any duty assumed pursuant to contract. As the Superior Court came to the opposite conclusions, we now vacate its judgment.

We conclude that the lower courts erred in finding that UPMC did not owe a duty to Employees to exercise reasonable care in collecting and storing their personal and financial information on its computer systems. This conclusion notwithstanding, Employees’ claim cannot proceed if we nonetheless hold that it is barred by the economic loss doctrine.

Purely “economic loss” may be recoverable under a variety of tort theories. The question, thus, is not whether the damages are physical or economic. Rather, the question of whether the plaintiff may maintain an action in tort for purely economic loss turns on the determination of the source of the duty plaintiff claims the defendant owed. A breach of a duty which arises under the provisions of a contract between the parties must be redressed under contract, and a tort action will not lie. A breach of duty arising independently of any contract duties between the parties, however, may support a tort action.

Here, there is a claim under § 552 of the Restatement of Torts which does not require privity.  The Economic Loss Doctrine is inapplicable to negligent representation claims under § 552.


Gray v. Huntzinger, 147 A.3d 924 (Pa. Super. 2016).  The Pennsylvania Supreme Court clearly articulated in Kazatsky (Kazatsky v. King David Memorial Park, Inc., 527 A.2d 988 (1987)) that to the extent the tort of intentional infliction of emotional distress is recognized in this Commonwealth, recovery is limited to those cases in which competent medical evidence of emotional distress is presented by the claimant.  It is also supported by Hackney v. Woodring, 652 A.2d 291 (1994).  Because we have determined that Gray was not entitled to recover for IIED based on the lack of medical evidence presented at trial, we need not address the remainder of Appellants’ claims.


Donaldson v. Davidson Brothers, Inc., 144 A.3d 93 (Pa. Super. 2016).  This case arises out of a fatal three-way motor vehicle accident.  Donnelly rear-ended Donaldson.  Donaldson was thrust into the opposite lane of oncoming traffic, where she collided head-on with LJF.  LJF settled property damage claim with Davidson, but in the release reserved any claim for loss of contract.  LJF’s contract claim was dismissed by the lower court as violating the economic loss doctrine.  The court said that the economic loss doctrine does not bar the claim since there was undoubtedly and agreeably some property damage.  The economic loss doctrine provides that no cause of action exists for negligence that results solely in economic damages unaccompanied by physical injury or property damage.  It is beyond dispute that some property damage occurred.  However, LJF’s claim was dismissed anyway because they did not say in their pleading what the contract was that was violated, and the claim was not sufficiently explicit.



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