Cowher v. Kodali, 2022 Pa. LEXIS 1408 (S. Ct. September 29, 2022) (Dougherty, J.) 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. 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, set to be tried before a jury. Defendants filed in the trial court a proposed verdict slip for the jury. They proposed the following question with respect to damages:
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 $______________
At the pretrial conference on December 2, 2019, the parties and the trial court discussed the verdict slip. 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. 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:
- 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?
- And what is that opinion and what’s it based on?
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.
Defendants declined the court’s offer to review the verdict slip but did request the jury be polled, and each juror confirmed they agreed with the verdict as stated. Defendants did not ask the trial court to require the jury to itemize or otherwise clarify its damages awards. Defendants further contend Pennsylvania’s Suggested Standard Civil Jury Instructions call for damages under the Wrongful Death Act and Survival Act to be awarded in two lump-sum amounts. See id. at 26, citing Pa. Suggested Standard Jury Instructions (Civil) 7.190, 14.170. And, they allege this Court has in fact “required wrongful death and survival awards to be rendered in lump sum amounts.” when a litigant fails to request a special verdict slip that would have clarified the basis for a general verdict, and the verdict rests upon valid grounds, “the right to a new trial is waived.” Id. at 234 n.8. Moreover, putting to one side and not considering Dr. Hayek’s testimony, the jury’s general damages verdict under the Survival Act is nonetheless supported by other valid evidence. Under these circumstances, where defendants knew prior to trial the propriety of Dr. Hayek’s testimony was a possible appellate issue but declined to take advantage of multiple opportunities to request a special verdict slip clarifying the impact of this evidence, where the survival damages verdict was supported by other valid evidentiary grounds properly before the jury, and where efficiency and fairness concerns support a finding of waiver, we conclude defendants waived their claim to a new trial under the general verdict rule. We will not simply presume the verdict rested on an improper basis and remand for a retrial burdening plaintiff and expending finite judicial resources where defendants had it readily within their power to clarify the matter via a special verdict slip.