Itemize Damages or Waive Appeal? Pennsylvania’s Supreme Court Will Consider Whether Failure to Request an Itemized Verdict Waives the Right to Challenge an Award on Appeal


In many personal injury cases, including products cases, the most significant exposure is pain and suffering or similar damages that cannot readily be measured in dollars. Juries are usually constrained by specific testimony or documentary evidence in awarding lost income, medical expenses, or other losses that can be measured specifically, but awards for pain and suffering and similar damages are constrained only by jurors’ subjective views (and usually permissive standards of legal review such as whether the award “shocks the conscience”).

Not surprisingly, when large verdicts are appealed, the damages arguments often focus on the excessive amounts of pain and suffering or similar awards. But a recent order from Pennsylvania’s highest court carries a warning for defendants, as the Court agreed to consider whether a failure to demand an itemized list of each category of damages on the verdict sheet waives defendant’s right to challenge the award.

Cowher v. Kodali, No. 1111 EDA 2020 (Pa. Super. Ct.), is a medical malpractice case. The jury found defendants liable for failing to diagnose cardiovascular disease in a patient who then suffered a fatal cardiac arrest while jogging. In its non-precedential opinion, the intermediate appellate court held the evidence was sufficient to support liability and wrongful death damages but remanded for a new trial on damages for the survival claim. The court ruled an opinion from plaintiff’s medical expert, that decedent suffered conscious pain and suffering before losing consciousness, had no scientific basis and merely cloaked as expert opinion the observations of a lay witness who spoke briefly with decedent after he collapsed. Emphasizing that jurors often ascribe special weight to expert opinions, the court concluded the opinion could have affected the damage award.

In addition to challenging the expert opinion, defendants argued the jury awarded excessive damages for pain and suffering. The jury awarded $3.8 million, and plaintiff’s economist opined that economic loss did not exceed $2.7 million, so Defendants argued the balance of $1.1 million constituted damages for pain and suffering, which was excessive because decedent was conscious for no more than three minutes after the cardiac arrest. Plaintiff argued the court could not determine the amount awarded for pain and suffering without an itemized list on the verdict sheet, and defendant’s failure to ask for one waived the issue. On October 21, the Pennsylvania Supreme Court granted appeal solely on the issue whether defendant waived its right to challenge the damages by failing to request an itemized verdict.

Earlier cases, including Shiflett v. Lehigh Valley Health Network, Inc., 217 A.3d 225 (2019), addressed analogous issues, such as what happens when multiple theories of liability are submitted but only one is supported by adequate evidence, or several claims are submitted to the jury, but one is timely while the other is time-barred. Those cases generally held that a general verdict must be upheld if it could be justified on any viable theory, explaining that the general verdict leaves the court unable to determine whether the jury imposed liability on the viable claim or on the legally insufficient one. In hick, the Supreme Court will examine the related but separate question whether a defendant must request that categories of damages be itemized to preserve its right to challenge the award, on the theory that a general verdict leaves the court unable to determine whether the award includes a specific item of damages for which inadmissible evidence was offered — or a particular but un-itemized item of damages that is excessive in amount.

If the Court rules that failure to request an itemized verdict waives any right to challenge the award, defendants will face a difficult tactical question. In many injury cases, defendants do not seek an itemized verdict, on the theory that putting multiple lines on the verdict sheet covering each type of damages encourages jurors to answer each question with a large number — thus ultimately producing a larger total award than a single line general verdict would. But if submission of a general verdict waives any right to challenge the damages on appeal, defendants will have to consider in each case whether the need to preserve those potential challenges outweighs the risk that itemizing will produce a larger award. Defense counsel will have some basis to judge, at the time the verdict sheet is submitted to the court, whether there is a significant evidentiary issue relevant to a particular category of damages that may be raised on appeal. But the defendant will not know, of course, whether the jury is going to award an amount that credibly might be challenged as excessive.

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About the Author: David F. Abernethy

David Abernethy is a partner in Products Liability Practice Group, resident in the Philadelphia office. He represents global pharmaceutical and medical device companies in mass tort and individual products actions at the trial and appellate level. David is a Fellow of the American College of Trial Lawyers.

About the Author: Alicia Hickok

Alicia Hickok co-leads the appellate team and focuses her practice on appeals in both state and federal courts, including ten of the federal Courts of Appeals and the United States Supreme Court. She has a wealth of pretrial experience as well, particularly including matters involving commonwealth or local government or agency actions and corporate governance.

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