Polett v. Public Communications Inc. (dissenting memorandum)
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J-A06028-12 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 MARGO POLETT AND DANIEL POLETT, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellees v. PUBLIC COMMUNICATIONS, INC., ZIMMER, INC., ZIMMER USA, INC., AND ZIMMER HOLDINGS, INC., Appellants No. 1865 EDA 2011 Appeal from the Judgment Entered June 10, 2011 In the Court of Common Pleas of Philadelphia County Civil Division at No. 02637, August Term 2008. BEFORE: GANTMAN, J., SHOGAN, J., and WECHT, J. DISSENTING MEMORANDUM BY WECHT, J. Filed: March 1, 2013 Following careful review, I am unable to join in the learned majority s decision, which vacates the lower court s judgment and remands this case for a new trial. Accordingly, I respectfully dissent. The majority aptly summarizes the history of the case. Maj. Mem. at 1-3. I need not repeat that history here. Appellants first two issues relate to their motion for JNOV. I join the majority in its disposition of those issues.1 ____________________________________________ 1 I follow the majority s reordering of Appellants six issues. Maj. Mem. at 4-5. J-A06028-12 The third issue raised by Appellants relates to the trial judge s jury instructions. Appellees assert that the issue is waived. I join the majority in concluding that the issue is not waived. Yet, I disagree with the majority s determination that the causation instruction was fatally infirm. As explained below, I would decline Appellants invitation to mandate a new trial by reason of the trial court s jury charge. Appellants fourth issue challenges Dr. Booth s expert testimony on causation. I join the majority in finding that the expert testified with sufficient certainty. However, the majority finds reversible error in the trial court s refusal to bar that expert testimony for violation of Rule 4003.5 s disclosure mandate. For reasons I detail below, I differ with the majority s disposition of this issue. Appellants fifth issue relates to the tolling agreement executed between Appellees and Dr. Booth in his capacity as Mrs. Polett s treating physician. I would affirm the trial court s decision to exclude the agreement from the trial evidence. By virtue of these holdings, I would reach Appellants sixth and final issue challenging the denial of their request for remittitur. As discussed below, I would affirm the trial court s ruling in this regard as well. JNOV I join the majority s holding that the trial court did not err in denying Appellants motion for JNOV. I agree that Appellees presented sufficient -2- J-A06028-12 evidence that the exercise bike was a substantial factor in causing Mrs. Polett s injuries. I also join in affirming the trial court s ruling that the general risk of harm from use of the exercise bike was reasonably foreseeable to Appellants. Maj. Mem. at 6-11. Jury Instructions I agree with the majority that Appellants challenge to the causation jury instruction is not waived. Maj. Mem. at 12-15. However, I disagree with the majority s treatment of the merits of that challenge. In the context of jury instructions, we will grant a new trial only if the charge, viewed in its entirety, was unclear, inadequate, or tended to mislead or confuse the jury. McSorely v. Deger, 905 A.2d 524, 532 (Pa. Super. 2006). It is clear beyond peradventure that we are not free to view the challenged instruction outside the context of the entirety of the charge. Id. We also are bound to remember that the trial judge has wide discretion in choice of language so long as the charge conveys the appropriate law. Id. Moreover, we do not reverse a trial court for isolated inaccuracies in the jury charge. Butler v. Kiwi, S.A., 604 A.2d 270, 273 (Pa. Super. 1992). Causation was contested at this trial. testimony on that issue. Both parties offered expert At the charging conference, Appellants counsel agreed to an instruction that would state that the jury could not speculate on any fact. N.T., 2/18/2010 (a.m.), at 44-45. Appellees counsel, however, -3- J-A06028-12 requested a more detailed speculation instruction because Appellants expert had not testified to a cause for Mrs. Polett s injuries other than the exercise bike. N.T., 2/18/2010 (a.m.), at 46. Appellees counsel was concerned that Appellants counsel would argue in closing that other events caused the injuries despite the fact that there was no causation evidence specifically supporting such a theory. N.T., 2/18/2010 (a.m.), at 46-47. Following discussion of the proposed speculation charge, the trial judge concluded that she would not give the instruction. N.T., 2/18/2010 (a.m.), at 49. Appellees counsel again raised the concern that Appellants might argue that there were other causes, whereupon the trial judge decided to take the issue under advisement, assertedly in order to allow review of the issue following closing arguments. N.T., 2/18/2010 (a.m.), at 51.2 Due to timing issues, ____________________________________________ 2 Appellees counsel argued that a speculation charge should be given because Appellants counsel should not be permitted to argue that something other than the bike caused Mrs. Polett s synovitis, in view of the fact that Appellants expert testified that the bike was the cause of that condition. Appellees counsel made clear that he was not requesting an instruction tantamount to a directed verdict on causation, nor one that shifted the burden. N.T., 2/18/2010 (a.m.), at 45-47. After hearing from both sides, the trial judge said, So I m not going to read the [speculation] charge as given. N.T., 2/18/2010 (a.m.), at 49. Appellees counsel then inquired whether Appellants could argue that there was some other cause. The court agreed that Appellants could not. Significantly, Appellants counsel said, They re not going to. N.T., 2/18/2010 (a.m.), at 49. After continued discussion, the trial judge said, If there s an issue, then I m going to hold this under advisement. ¦ And let s see how the (Footnote Continued Next Page) -4- J-A06028-12 Appellees counsel suggested that the court charge the jury prior to closing arguments. Appellants counsel concurred. N.T., 2/18/2010 (a.m.), at 5253. The court agreed, and then gave its charge, including instructions concerning the burden of proof of each party with respect to claims asserting Appellants negligence and Mrs. Polett s comparative negligence. 2/18/2010 (a.m.), at 73-77. speculation. N.T., The court did not give an instruction on After a lunch recess, a different attorney made the closing argument for Appellants.3 Following (and in view of) that argument, the trial judge determined that she did in fact need to give an instruction on speculation. N.T., 2/18/2010 (p.m.), at 104. The judge instructed the jury that it needed medical testimony to find that something other than the bike caused Mrs. Polett s injuries, and that the jury could not speculate as to other causes. N.T., 2/18/2010 (p.m.), at 105. When viewed in developed context (as our law requires), although this instruction came later in time, it (Footnote Continued) _______________________ closings go for both sides ¦. So let s see how that goes. N.T., 2/18/2010 (a.m.), at 51. 3 From the transcript, it appears that the attorney who made Appellants closing argument was not present at the charging conference. While no one noted that lawyer s absence, there is no record of him speaking during the charging conference. Later, after Appellants closing, the judge indicated that she had thought that counsel who participated in the charge conference for Appellants would convey the judge s warning about speculation to his colleague, N.T., 2/18/2010 (p.m.), at 104. This also suggests that the lawyer who closed for Appellants was not present at the charging conference. -5- J-A06028-12 constituted no more than a warning that the jury must not speculate as to the causes of Mrs. Polett s injuries, but instead should rely solely upon the evidence presented. We have observed: [A] jury of laypersons generally lacks the knowledge to determine the factual issues of medical causation ¦. In such cases, the cause and effect of a physical condition lies in a field of knowledge in which only a medical expert can give a competent opinion .... Without experts we feel that the jury could have no basis other than conjecture, surmise or speculation upon which to consider causation. Grossman v. Blake, 868 A.2d 561, 567 (Pa. Super. 2005) (internal citations and quotation marks omitted). Appellees offered expert testimony on the medical cause of Mrs. Polett s injuries. Appellants countered that, notwithstanding this expert testimony, Appellees failed to meet their burden of proof. Appellants argued that Appellees demonstrated insufficient causal connection between Appellants actions and Mrs. Polett s injuries. Appellants used Mrs. Polett s other activities to undermine her expert s testimony on causation. Each of these defense tactics was proper. Conversely, Appellants were not free to rebut Appellees evidence of causation with mere speculation. The majority holds that the trial court s speculation instruction improperly shifted the burden of proof to Appellants. The majority characterizes that instruction as temporally isolated from the rest of the court s instructions, and finds that this isolation improperly focused the -6- J-A06028-12 jury s attention on what the majority deems an incorrect burden of proof. Maj. Mem. at 17. But the majority s argument is itself isolated from the full trial context. First, it bears noting that the lower court charged the jury on the burden of proof thoroughly, as follows: In a civil case such as this the plaintiff has the burden of proving those contentions which entitle them to relief. When a party has the burden of proof on a particular issue, the party s contention on that issue must be established by a fair preponderance of the evidence. The evidence establishes a contention by a preponderance of the evidence if you are persuaded that it is more probably accurate and true than not. So think of a balance scale, and that s the kind of scale with a pan on each side. Okay? On one side of the scale place all of the evidence that you find favorable to the plaintiffs. On the other side, place all of the evidence that you find favorable to the defendants. If after considering the comparable weight of the evidence you feel that the scales tip ever so slightly or to the slightest degree in favor of the plaintiffs, your verdict must be for the plaintiffs. If the scales tip in favor of the defendants or if they re equally balanced, then your verdict must be for the defendants. In this case Margo and Dan Polett have the burden of proving that the defendants were negligent and that their negligence was a factual cause in bringing about the damages claimed. If after considering all of the evidence you feel persuaded that these propositions are more probably true than not, then your verdict must be for the plaintiffs. Otherwise, your verdict must be for the defendants, PCI and Zimmer. * * * The defendants claim that the plaintiff was negligent and that the negligence was a substantial factor causing the plaintiff s injury. The burden is not on the plaintiff to prove her freedom from negligence and, that is, she does not have to prove that she was not negligent. The defendants have the burden of proof by a fair preponderance of the evidence that the plaintiff was -7- J-A06028-12 negligent and that the plaintiff s negligence was a substantial factor of her injury. You must decide whether defendants have proven that the plaintiff under all the circumstances failed to use reasonable care for her own protection. N.T., 11/18/10 (p.m.), at 73-74, 76-77. This instruction provided an accurate statement of law. The majority does not suggest otherwise. I am unconvinced that the subsequent short instruction on speculation, considered in the context of the entire trial record -- and particularly the colloquy at the charge conference, the closing arguments of Appellants counsel, and the court s longer and more detailed instructions on burden of proof -- impermissibly shifted that burden. Indeed, even if the additional instruction fairly could be construed to suggest some shift in the burden, this would not demand vacatur of judgment and remand for a new trial. We cannot view the speculation instruction outside the context of the entire charge, which clearly articulated the burdens of proof. Nor will we reverse on the basis of isolated inaccuracies in the charge. See Butler, supra. We do not demand a perfect or immaculate instruction, on pain of vacatur. The cases are legion. See, e.g., Cooper ex rel. Cooper v. Lankenau Hosp., 51 A.3d 183, 187 (Pa. 2012) ( In reviewing a challenge to a jury instruction, the entire charge is considered, as opposed to merely discrete portions thereof. ¦ Trial courts are given latitude and discretion in phrasing instructions and are free to use their own expressions so long as the law is clearly and accurately presented -8- J-A06028-12 to the jury. ); Boutte v. Seitchik, 719 A.2d 319, 324-25 (Pa. Super. 1998) ( A charge will be found adequate unless the issues are not made clear to the jury or the jury was palpably misled by what the trial judge said or unless there is an omission which amounts to fundamental error. A reviewing court will not grant a new trial on the ground of inadequacy of the charge unless there is a prejudicial omission of something basic or fundamental. ); Havasy v. Resnick, 609 A.2d 1326, 1335 (Pa. Super. 1992) ( The trial court has wide latitude in formulating its charge so long as it clearly and adequately covers the law pertaining to the issues raised by the evidence. ¦ An isolated inaccuracy in an otherwise accurate charge is not a proper basis for reversal. ) I acknowledge the majority s conclusion that Appellants closing argument did not attempt to link speculative causes to Mrs. Polett s injuries. The majority finds that Appellants closing challenged merely the sufficiency of the evidence and aimed properly to demonstrate Mrs. Polett s comparative negligence and comment on her credibility. Maj. Mem. at 1920. I arrive at a different conclusion. I believe that Appellants closing argument went beyond a mere demonstration of insufficient causal connection and a mere challenge to the adequacy of Appellees evidence. In essence, causation. Appellants closing argument raised N.T., 2/18/2010 (p.m.), at 85-101. alternative theories of Those theories must be based upon trial evidence. There was no such basis here. The trial court s decision to retain the proposed speculation instruction under advisement -9- J-A06028-12 was vindicated when Appellants chose to venture into this terrain in closing. Thereupon, the supplemental instruction was restored to viability. A litigant may not simply throw any theory against a wall and see if it sticks. Kennedy v. Sell, 816 A.2d 1153, 1159 (Pa. Super. 2003). Given Appellants closing argument and the broad deference we afford trial courts in charging juries, I would find no error in the court s speculation instruction. Appellants raise additional issues related to the jury charge regarding the use of substantial factor versus factual cause, the multiple sufficient cause instruction, and the egg shell skull instruction. Appellants Brief at 50-55. The majority does not reach these challenges to the jury instructions, because it remands on the basis of the speculation instruction. Having parted ways with the majority on the latter, I would perforce reach these additional challenges. instructions were appropriate I agree with the trial court that these statements of the law, were properly calibrated to the issues of the case, and were not misleading for the jury. Trial Court Memorandum and Order ( T.C.M. ), 6/10/2011, at 41-46. Dr. Booth s Testimony Appellants next challenge the trial court s admission of Dr. Booth s causation testimony. sufficient certainty. Appellants argue that Dr. Booth s testimony lacked I agree with the majority that the trial court did not abuse its discretion in denying a new trial on this issue. However, I disagree - 10 - J-A06028-12 with the majority s decision that Dr. Booth s testimony should have been precluded because he was not disclosed as an expert witness prior to trial. We reverse a trial court s decision to admit evidence only when there has been a clear abuse of discretion or an error of law. Katz v. St. Mary Hospital, 816 A.2d 1125, 1127 (Pa. Super. 2003). Appellants allege a violation of Rule 4003.5. Appellant s Brief at 23-27. Rule 4003.5 permits a trial court to exclude an expert witness whose identity is not disclosed by the party upon whom interrogatories have been propounded requesting such information. Pa.R.C.P. 4003.5(a), (b). The facts known to the expert and opinions developed in anticipation of litigation also are discoverable under this rule. Pa.R.C.P. 4003.5(a). Our Supreme Court has held that, when expert opinions are not developed in anticipation of litigation, Rule 4003.5 does not apply. Miller v. Brass Rail Tavern, Inc., 664 A.2d 525, 532 (Pa. 1995). In Miller, there was an objection to the coroner testifying about time of death, because that testimony required an expert. Id. at 527. The coroner had been identified as a witness, but not as an expert witness. Id. at 530. Because the coroner had not developed his opinion as to time of death in anticipation of litigation, the Court held that Rule 4003.5 was not violated. Id. at 531-32. We have, of course, adhered faithfully to Miller, holding that expert testimony is admissible without prior disclosure when the expert opinions were not developed in anticipation of litigation. See, e.g., Jahanshahi v. Centura Development Co., Inc., 816 A.2d 1179, 1185 (Pa. Super. 2003) (expert - 11 - J-A06028-12 testimony on lost profits admissible where opinion developed in anticipation of opening business, not litigation); Katz, 816 A.2d at 1127-28 (Rule 4003.5 did not apply where treating physician developed opinions during treatment, not in anticipation of litigation).4 Our cases pivot on the point in time at which the witness forms his or her opinions. The question before us is: When did Mrs. Polett s treating physician, Dr. Booth, develop his opinion as to the cause of her injuries? Based upon three notes in Mrs. Polett s file, the trial court determined that Dr. Booth s opinion (to wit, that the bike caused Mrs. Polett s synovitis) was developed prior to the time that Dr. Booth became aware of any anticipated litigation. T.C.M. at 24-25. I agree with the majority that the third office note was written after Dr. Booth was approached by Appellees with a proposed tolling agreement. I therefore agree that the third note must have been made with some anticipation of litigation. However, focusing on deposition testimony, the majority further determines that Dr. Booth formed no causation opinion prior to writing that third note because his sole concern was treatment, not ____________________________________________ 4 Compare Kurian ex rel. Kurian v. Anisman, 851 A.2d 152, 154-56 (Pa. Super. 2004) (treating physician not disclosed as expert until after defendants moved for summary judgment; because treating physician did not form his opinions on causation prior to anticipation of litigation, plaintiff was required to disclose him timely as expert witness). In the case before us, because Dr. Booth reached his causation opinion prior to anticipation of litigation, Appellees were not required to disclose him as an expert. - 12 - J-A06028-12 etiology. Maj. Mem. at 24. After reviewing Dr. Booth s trial testimony, I am constrained to disagree. At trial, Dr. Booth testified that, as of October 23, 2006, when the second note was written and before any discussion of a tolling agreement, he formed the opinion that riding the bike caused Mrs. Polett s synovitis. N.T., 11/15/2010 (p.m.), at 11.5 Dr. Booth went on to explain that the synovitis was the first link in a chain of events that led to failure of the knee replacement. N.T., 11/15/2010 (p.m.), at 13-14, 19, 24-25. Dr. Booth admitted that his information about Mrs. Polett riding the bike came from Mrs. Polett herself. N.T., 11/15/2010 (p.m.), at 94, 104. However, Dr. Booth maintained that he made the connection between the bike and the synovitis at the time that he wrote the note, prior to any anticipation of litigation. N.T., 11/15/2010 (p.m.), at 106. Dr. Booth stated that he was concerned about the cause, because this would indicate whether the inflammation and pain were due to an infection or due to something mechanical. N.T., 11/15/2010 (p.m.), at 106-07. While this testimony undoubtedly is relevant to Dr. Booth s treatment of Mrs. Polett, it also ____________________________________________ 5 There was also a September 20, 2006 progress note in Mrs. Polett s chart (i.e., the first of the three notes). That note also makes a connection between the synovitis and the bike. While this corroborates Appellees view that Dr. Booth had formed an opinion as to the cause of Mrs. Polett s synovitis, Dr. Booth was not specifically asked if he had formed an opinion at that time. N.T., 11/15/10 (p.m.), at 4-5. - 13 - J-A06028-12 establishes his formation of an opinion on causation prior to any anticipation of litigation.6, 7 Given the deference we are bound to afford the trial court s evidentiary rulings, and in view of the testimony indicating that Dr. Booth reached his conclusions before any anticipation of litigation, I would affirm the trial court and would decline to grant a new trial on this issue. Tolling Agreement Appellants next challenge the trial court s decision to preclude the use of the tolling agreement that Dr. Booth signed with Appellees. Appellants wished to use that agreement to impeach Dr. Booth s credibility. majority, while acknowledging that there is no direct authority The in Pennsylvania on the use of tolling agreements for impeachment, concludes ____________________________________________ 6 Later, Dr. Booth testified that he was not trying to scrutinize the cause. N.T., 11/15/2010 (p.m.), at 114. However, from context, it is clear the Dr. Booth was referring specifically to the cause of Mrs. Polett s patellar fracture and to the question of whether that fracture resulted directly from riding the bike or from a fall caused by the synovitis. Whether Dr. Booth s level of inquiry was as rigorous as possible goes to the weight of his testimony, not to its admissibility. That testimony certainly and appropriately was challenged on cross-examination and in argument. Weight, of course, is for the jury. 7 Dr. Booth s deposition testimony also supports this conclusion. He testified that, as of the October 23, 2006 office visit, the bike was the most likely explanation of the synovitis. N.T. (Booth Deposition), 6/26/2009, at 52-53, 105. While Dr. Booth acknowledged that there could be other factors, he explained that the bike was the most likely cause. N.T. (Booth Deposition), 6/26/2009, at 180. - 14 - J-A06028-12 that the agreement is relevant because Dr. Booth did not form a causation opinion until after being approached by Appellees with that tolling agreement. Maj. Mem. at 33-36. I disagree. The trial judge has broad discretion in deciding the admissibility of misleading or confusing evidence. Relevant evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice or confusion. Sprague v. Walter, 656 A.2d 890, 909 (Pa. Super. 1995). Here, the tolling agreement had obvious and patent potential to confuse or mislead the jury. It can hardly be gainsaid that tolling agreements lie outside the realm of an average lay juror s knowledge. Testimony would have to be introduced, almost certainly by an expert witness, to explain what a tolling agreement is and what its purpose would be in this case. There would be manifest danger that such testimony would invade areas protected by attorney-client privilege, as litigation strategy necessarily would come into play. Issues presumably discussed between Appellees and their counsel, such as whom to sue and when to initiate litigation, as well as the reasons for later dissolving the tolling agreement, would have to be excavated, aired, and examined thoroughly so that the jury might be able fully to evaluate the extent to which the agreement might have influenced Dr. Booth s testimony. Perhaps Appellees counsel would have to be disqualified and new counsel retained. - 15 - At the least, the case J-A06028-12 would have been lengthened substantially, and the jury would have been treated to the proverbial trial within a trial. Nor did the tolling agreement have much probative value in any event. The agreement was cancelled prior to trial. The parties stipulated prior to trial that Dr. Booth was not negligent. Moreover, my above-stated disagreement with the majority about the timing of the formation of Dr. Booth s causation opinions figures significantly here: as I would hold that Dr. Booth s opinions were developed prior to the anticipation of litigation, the tolling agreement could offer little to no probative value in impeaching Dr. Booth s testimony on causation. The tolling agreement would have been confusing to the jury, and would have been of limited probative value. I would affirm the trial court s decision to exclude evidence of that agreement. Remittitur As it remands for a new trial, the majority does not reach Appellants sixth issue, their request for remittitur. Because I would affirm the trial court on the other issues, I would reach this request. We have held: Judicial reduction of a jury award is appropriate only when the award is plainly excessive and exorbitant. The question is whether the award of damages falls within the uncertain limits of fair and reasonable compensation or whether the verdict so shocks the sense of justice as to suggest that the jury was influenced by partiality, prejudice, mistake, or corruption. - 16 - J-A06028-12 Rettger v. UPMC Shadyside, 991 A.2d 915, 932 (Pa. Super. 2010) (quoting Potochnick v. Perry, 861 A.2d 277, 285 (Pa. Super. 2004)). The decision to grant or deny remittitur is within the trial court s sound discretion, and will be overturned only upon a showing of abuse of discretion or error of law. Id. We cannot substitute our judgment for that of the factfinder, and we must view the record with consideration of the evidence accepted by the jury. Smalls v. Pittsburgh-Corning Corp., 843 A.2d 410, 414 (Pa. Super. 2004). In determining whether a jury's award of damages is supported by the evidence, the following factors are taken into account: 1.) the severity of the injury; 2.) whether the injury is demonstrated by objective physical evidence or subjective evidence; 3.) whether the injury is permanent; 4.) the plaintiff's ability to continue employment; 5.) disparity between the amount of out of pocket expenses and the amount of the verdict; and 6.) damages plaintiff requested in his complaint. Smalls, 843 A.2d at 415 (quoting Stoughton v. Kinzey, 445 A.2d 1240, 1242 (Pa. Super. 1982)). Appellants argue that the award was excessive, given that Appellees did not request any economic damages (e.g., medical expenses or lost earnings). Appellants contend that Mrs. Polett, though required to use a walker, is nonetheless able to engage in many of the same activities in which she engaged prior to her injuries. Appellants argue that the damages - 17 - J-A06028-12 award shocks the conscience, given Mrs. Polett s age and the asserted lack of impact on her daily life. Appellants Brief at 64-69. Appellees reply that the record supports the award. Mrs. Polett testified about her pain and about her multiple surgeries. Dr. Booth testified to the surgical procedures, including the tendon allographs (using cadaver tissue), and the pain and difficulties attendant thereto. Mrs. Polett spoke about her need to use a walker, her constant fear of falling, her multiple falls, and her dependence on others to assist her with daily activities and to monitor her safety. Mr. Polett also testified about the surgeries and about Mrs. Polett s pain and lack of mobility. As well, Mr. Polett addressed Mrs. Polett s increased dependence on others and her withdrawal from community activities. Appellees Brief at 52-56. The trial court found the jury award to be supported by the record, particularly given Mrs. Polett s surgeries, loss of mobility, and the continuing nature of her disability. T.C.M. at 52. See Gillingham v. Consol Energy, Inc., 51 A.3d 841, 862, 864 (Pa Super. 2012) (jury award did not shock conscience where plaintiffs provided comprehensive testimony of pain and suffering endured). The trial court noted also that the jury was able to observe Mrs. Polett pre-injury through the video created by Appellants themselves. Id. The trial court found that the record as a whole, including testimony of Dr. Booth, Mrs. Polett, and Appellants own expert, supported the jury s award. T.C.M. at 53-56. - 18 - J-A06028-12 A fair assessment of the record supported the jury s conclusion that Mrs. Polett s pre-injury activities were curtailed and that she required increased assistance. I would hold that the trial court did not abuse its discretion in denying remittitur and deferring to the jury s considered judgment. In sum, I would affirm the trial court. dissent. - 19 - Therefore, I respectfully
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