GERHART, et al vs. PA NATURAL CHICKS, INC., et al No. 2007-00779

Civil Action – New Trial – Factual, Legal or Discretionary Mistake – Sufficient Prejudice Required – Conscience of Court – Proof of Damages – Jury Question – Methods to Appraise Realty – Admission of Expert Testimony – Fair Scope Limitations – Inconsistent Verdict – Contemporaneous Objection – Weight of Evidence.

 

1. Pa.R.C.P. No. 227.1 provides that a trial court may order a new trial on any issue upon motion of any party.  The trial court must decide whether any factual, legal or discretionary mistakes occurred at trial.  If the Court finds that a mistake did occur, it must determine whether the mistake was a sufficient basis for granting a new trial.
2. A new trial is not warranted merely because some irregularity occurred during the trial or another trial judge would have ruled differently; the moving party must demonstrate to the trial court that he has suffered prejudice from the mistake.  A new trial should be granted when the court finds that the jury’s verdict was capricious or against the weight of the evidence and resulted in a miscarriage of justice.
3. In order to obtain a new trial, the jury’s verdict must be so contrary to the evidence as to shock the conscience of the court.
4. The plaintiff bears the burden of proving damages by a preponderance of the evidence, but is required only to provide the jury with a reasonable amount of information to enable it to fairly estimate damage without engaging in speculation.
5. Damages need not be proven with mathematical certainty; uncertainty as to amount of damages should not hinder recovery where it is clear that damages resulted from the defendants’ conduct.
6. The determination of damages is a factual question to be decided by the jury.  The jury’s duty of assessing damages should not be interfered with unless it clearly appears that the amount awarded resulted from partiality, caprice, prejudice, corruption or some other improper influence.
7. It is within the jury’s province to assess the testimony and to accept or reject the estimates given by witnesses.  If the verdict bears a reasonable resemblance to the proven damages, it is not the function of the court to substitute its judgment for the jury.
8. A new trial limited to the issue of damages may be granted only when the issue of damages is not intertwined with the issue of liability and the issue of liability has been fairly determined or is free from doubt.
9. The formal Standards applicable to real estate appraisals do identify three often used approaches, but that this does not preclude the use of other methods when none of those approaches is practical in a given situation.
10. Surveys are routinely used for various purposes in the real estate field and the use of hypotheticals in appraisals is permitted if the use of that technique is disclosed.
11. The Court found nothing to suggest that the methodology employed by Plaintiffs’ expert resulted in any improper consideration by the jury and that the amount awarded was reasonable in light of the evidence offered by both parties; the verdict did not shock the Court’s conscience by any means.
12. The Court noted that even if the admission of the expert testimony had been in error, the Court found no prejudice to Defendants as the jury award was closely in line with the damage evidence introduced by Defendants themselves.
13. A trial court is vested with wide discretion in deciding whether to allow the admission of expert testimony into evidence, and that decision is not subject to reversal absent a clear abuse of discretion.  Only when the admission of the testimony is harmful or prejudicial to the party complaining will reversible error exist.
14. Discovery of information concerning expert testimony is governed by Pa.R.C.P. No. 4003.5.  An expert is permitted to submit an expert report in lieu of providing answers to expert interrogatories pursuant to Pa.R.C.P. No. 4003.5(a)(1)(b).
15. The direct testimony of an expert at a trial may not be inconsistent with or go beyond the fair scope of his or her testimony in the discovery proceedings as set forth in the deposition, answer to an interrogatory, separate report, or supplement thereto.  This rule is intended to prevent the submission of incomplete reports or the fudging of reports which do not reveal fully the facts and opinions of the expert or his grounds therefor.  The essential purpose of this Rule is to prevent unfair surprise to the other party. However, the expert is not prevented from testifying as to facts or opinions on matters on which the expert has not been interrogated in the discovery proceedings.
16. While the law is well-established that experts may only testify at trial to matters that are within the fair scope of their pretrial report, there is no hard and fast rule for determining when a particular expert’s testimony exceeds the fair scope of his pretrial report.  The question is whether the discrepancy between the expert’s pretrial report and his trial testimony is of a nature that would prevent or mislead the adversary from preparing a meaningful response.
17. An expert’s trial testimony that constitutes a reasonable explanation or even an enlargement of the expert’s written words may be deemed to fall within in the coverage of “fair scope”.
18. It appeared to the Court that Defendants had adequate knowledge of and time to prepare for Plaintiff’s appraiser’s testimony in regard to subsequent surveys and to prepare a response/rebuttal to the use of this information.  Therefore, the Court found no unfair surprise to Defendants and it, therefore, did not grant a new trial on the issue of damages on this basis.
19. An inconsistent verdict provides grounds for objection and, if a party seeks relief upon grounds of verdict inconsistency, it must make a timely, contemporaneous objection upon the rendering of the verdict.
20. Under Rule 227.1(b) if no contemporaneous objection is made to an error that could have been corrected during trial, that error may not constitute a ground for post-trial relief.
21. Since Defendants failed to lodge any objection at the time the jury’s verdict was returned, thus depriving this Court of the opportunity to correct any alleged inconsistencies or errors at the appropriate time, it was unable to consider Defendants’ inconsistency assertion as a basis for post-trial relief.
22. A new trial will not be granted on the basis of a weight of the evidence claim unless the evidence supporting the verdict is so inherently improbable or at variance with admitted or proven facts or with ordinary experience as to render the verdict shocking to the court’s sense of justice.
23. A claim that the verdict was against the weight of the evidence concedes that the evidence presented by the verdict winner was sufficient to satisfy the elements of the cause of action but contends that the evidence was unreliable and untrustworthy to such a degree that a verdict based upon it would shock one’s sense of justice, and, therefore, a new trial would be necessary to cure the injured party.
24. The Court issued an Order denying Defendants’ Post-Trial Motion  for New Trial on the Issue of Damages.

Post-Trial Motion for New Trial,  C.P. of Lebanon County, Civil Action-Law, No. 2007-00779.

John Wilmer, Esquire, for Plaintiffs

Kandice J. Giurintano, Esquire, for Defendants

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

 

CIVIL ACTION

 

ROBERT M. GERHART, BOBBY                :           NO. 2007-00779

GERHART’S TRUCK WORLD, INC. and  :

GERHART RACING, INC.                            :

Plaintiffs                    :

:

v.                                                         :

:

PA. NATURAL CHICKS, INC., RICHARD :

L. SHENK and DOUGLAS M. SHENK,     :

Defendants              :

 

APPEARANCES:

 

JOHN WILMER, ESQUIRE                                    FOR PLAINTIFFS

LAW OFFICE OF JOHN WILMER

 

KANDICE J. GIURINTANO, ESQUIRE    FOR DEFENDANTS

MCNEES WALLACE & NURICK

 

OPINION, TYLWALK, P.J.,  MARCH 30, 2013.

 

Defendant PA. Natural Chicks has operated a chicken hatchery at 2401 East Cumberland Street in Lebanon since 1996 and owned the property on which the hatchery is operated  until July 26, 2006.  On July 26, 2006, the property was sold to the current owners, Defendants Richard L. Shenk and Douglas M. Shenk.  (Hereafter, all Defendants will be referred to collectively as “PNC.”)

The PNC property is located directly across Cumberland Street[1] from property owned by Plaintiff Robert M. Gerhart (“Gerhart”).  That property is leased to Plaintiffs Bobby Gerhart’s Truck World, Inc., and Gerhart Racing, Inc. (“the Corporations”).  The Amended Complaint alleges that Gerhart is the President of and operates Bobby Gerhart’s Truck World, Inc. and that he personally works on the site.

Gerhart and the Corporations instituted this action, alleging that PNC discharged industrial waste consisting of dead chickens, eggs, fecal matter, bacteria and viruses, onto the hatchery property where it mixed with surface water, flowed through a stormwater drain to Gerhart’s property and contaminated the groundwater and drinking water.  They also alleged that leaks in PNC’S sewer system carried sewage and chicken matter to Gerhart’s property and caused additional pollution.  Plaintiffs alleged the contamination caused illness to Gerhart and several employees of the Corporations, property damage and diminution in property value.  The Amended Complaint included counts for violation of the Clean Streams Law, private nuisance, public nuisance, trespass, failure of a landowner’s duty to manage surface water and negligence.[2]

A jury trial in this matter was scheduled for the November 2012 Term of Civil Jury Trials.   During discovery, Plaintiffs provided Defendants with an Appraisal Report dated February 9, 2008 which was prepared by John J. Hosey, IV (“Hosey”).  In the Report, Hosey assigned values to the Gerhart property both before and after contamination and Plaintiffs identified Hosey as an expert who would testify at trial.  The Report contained a final figure of $997,500.00 for the diminution in value caused by the contamination.  Prior to trial, Defendants filed a Motion in Limine to Exclude the Testimony of Plaintiffs’ Expert Real Estate Appraisers, claiming that Hosey’s testimony as to the value in the property post-contamination should be precluded.  In the Motion in Limine, Defendants complained  that Hosey’s opinon did not conform to the standards for admissibility of expert testimony established in Frye v. United States, 293 F.2d 1013 (D.C.Cir. 1923) and in Pa.R.E. 702[3], and that his analysis violated the Uniform Standards of Professional Appraisal Practice (“USPAP”), Standard 1 (2008-2009 Ed.).  Plaintiffs countered that Frye was inapplicable as Hosey’s analysis did not involve novel scientific methodology and was based on an appropriate method of evaluation.

We held a hearing in response to Defendants’ Motion in Limine on October 17, 2012.  At the Frye hearing, Defendants offered the testimony of their own expert in the field of real estate appraisal, Val Pasquarella.  Pasquarella testified that the method utilized by Hosey in reaching his opinion was not accepted in the field of real estate appraisal.  Defendants also called Hosey as on cross-examination and he was also called as a witness by Plaintiffs.   Hosey explained that he had formed his opinion based on the results of a survey he had conducted in 2006.  He described the manner in which he had conducted the 2006 survey and how he used those results in forming his opinion for diminution in value.    In addition, he discussed two additional surveys he had conducted in 2010 and 2012 which involved hypotheticals similar to the facts of this case.  Both parties submitted post-hearing Briefs.  By Order dated November 6, 2012, we held that Hosey was qualified as an expert in the area of real estate appraisal, denied Defendants’ Motion and ruled that Hosey would be permitted to offer expert testimony at trial.

Trial was then conducted on November 13 through 16, 2012.  At trial, Hosey testified as an expert and offered his opinion on the diminution in value of the property.  Hosey offered his opinion that the value of the property pre-contamination was $1,500.00.00, having reached this figure using the Income and Cost Approach to real estate appraisal.[4]  With regard to the value of the property after it had been affected, Hosey offered a figure of $502,500.00 which resulted in the value diminution figure of $997,500.00.   In addition to presenting testimony regarding the 2006 survey, Plaintiffs’ counsel also posed questions regarding the 2010 survey.   During cross-examination, defense counsel also questioned Hosey about the survey conducted in 2012.   Plaintiffs presented the testimony of the owner of the property, Bobby Gerhart, who offered his opinion that the diminution in value was the same as that determined by Hosey.  During their case, Defendants introduced expert testimony that a new water filtration system could be installed on the property at a cost of $354,000.00 in order to remedy problems caused by contamination.

At the conclusion of the trial, we conducted a conference with counsel in Chambers in order to jointly fashion jury instructions and a verdict slip.   After discussion, and with input from both counsel for Plaintiffs and Defendants, the instructions and verdict slip were agreed upon with no objections.

After the jury reached its decision, the verdict slip returned provided as follows:

VERDICT SLIP

 

1.  Defendants have admitted that there was a one-time release of waste from the PA Natural Chicks facility that caused E. Coli and coliform bacteria to appear in Plaintiffs’ well water.  Do you find that Plaintiffs suffered damages as a result of the release of waste in August 2006?

 

Yes ___X_______                                                 No __________

 

Please go to Question 2.

 

 

2.  Have Plaintiffs established that the groundwater beneath the Gerhart Property is currently contaminated by E. coli and/or coliform bacteria?

 

Yes  ___X_______                                                            No __________

 

If your answer to Question 2 is Yes, please go to Question 3.

 

If your answer to Question 2 is No, and your answer to Question 1 was also no, please have the Jury Foreperson sign this form and return to the Courtroom.

 

If your answer to Question 2 is No, and your answer to Question 1 was Yes, please go to Question 10.

 

 

3.  Have Plaintiffs established that any current contamination of the groundwater beneath the Gerhart Property is the result of the actions or inactions of the Defendants and not some other cause?

 

Yes __________                                                    No ____X_______

 

If your answer to Question 3 is Yes, please go to Question 4.

 

If your answer to Question 3 is No, and your answer to Question 1 was No, please have the Jury Foreperson sign this form and return to the Courtroom.

 

If your answer to Question 3 is No, and your answer to Question 1 was Yes, please go to Question 10.

 

 

4.  Have Plaintiffs established that Defendants are committing a private nuisance upon the Gerhart Property by currently discharging E. coli and/or coliform bacteria into the groundwater beneath the Gerhart Property?

 

Yes ____________                                                           No __________

 

Please go on to Question 5.

 

 

5.  Have Plaintiffs established that Defendants are creating a public nuisance by      currently discharging E. coli and/or coliform bacteria into the groundwater beneath the Gerhart Property?

 

Yes __________                                                    No ___________

 

Please go on to Question 6.

 

 

6.  Have Plaintiffs established that Defendants are committing a trespass upon the Gerhart Property by discharging E. coli and/or coliform bacteria into the groundwater beneath the Gerhart Property?

 

Yes ___________                                                 No ___________

 

Please go on to Question 7.

 

 

7.  Have Plaintiffs established that Defendants are breaching a duty to manage surface waters by continuing to discharge E. coli and/or coliform bacteria into the groundwater beneath the Gerhart Property?

 

Yes ____________                                                           No __________

 

Please go on to Question 8.

 

 

8.  Have Plaintiffs established that Defendants are negligent by discharging E. coli and/or coliform bacteria into the groundwater beneath the Gerhart Property?

 

Yes ___________                                                 No ____________

 

Please go on to Question 9.

 

 

9.  Have Plaintiffs suffered damages as a result of the current contamination of the groundwater beneath the Gerhart Property?

 

Yes ____________                                                           No ___________

 

If your answer to Question 9 is Yes, please go to Question 10.

 

If your answer to Question 9 is No, and your answer to Question 1 was Yes, please go to Question 10.

 

If your answer to Question 9 is No, and your answer to Question 1 was No, please have the Jury Foreperson sign this form and return to the Courtroom.

 

 

10.  By your answers to the Questions above, you have determined that the groundwater beneath the Gerhart Property is or was contaminated by E. coli and/or coliform bacteria as a result of actions or inactions of the Defendants and not some other cause.  If you have determined that Plaintiffs have suffered damages as a result of the current contamination of the groundwater on the Gerhart Property, you are permitted to award damages to Plaintiffs.  Please state the amount of damages suffered by Plaintiffs as a result of the contamination of the groundwater on the Gerhart Property.

 

Amount to compensate Plaintiffs for diminution in value to the Gerhart Property:

 

$_____$500,000.00_________________

 

 

 

 

Amount to compensate Plaintiffs for any loss of use and enjoyment of the Gerhart Property:

 

$_______________________________

 

 

Amount for the costs of a replacement or upgrades to the drinking water filtration system:

 

$_______$10,000.00_______________

 

 

After this Question is answered, and the Jury Foreperson has signed and dated the form below, please return to the Courtroom.

 

 

 

Dated:  ________________        _____________________________

Jury Foreperson

 

Once the jury’s verdict was returned, Defendants neither objected to, or made any request for, clarification of the jury’s findings on either liability or damages.

On November 30, 2012, Defendants filed a Post-Trial Motion for a New Trial on the Issue of Damages.  Defendants contend that a new trial on the issue of damages should be awarded on the bases that (1) Hosey should have been precluded from testifying as to the figure for the value of the property in its contaminated state; (2) the Court permitted Hosey to testify beyond the scope of his expert report; and (3) the jury’s award of damages for diminution in property value was against the weight of the evidence.  Oral argument was held on the Post-Trial Motion and the matter is now ripe for disposition.

Pa.R.C.P. No. 227.1 provides that a trial court may order a new trial on any issue upon motion of any party.  Pa.R.C.P. No. 227.1.  The trial court must decide whether any factual, legal or discretionary mistakes occurred at trial.  Harmon v. Borah, 756 A.2d 1116 (Pa. 2000).  If it finds that a mistake did occur, it must determine whether the mistake was a sufficient basis for granting a new trial.  Id.  A new trial is not warranted merely because some irregularity occurred during the trial or another trial judge would have ruled differently; the moving party must demonstrate to the trial court that he has suffered prejudice from the mistake.  Id.  A new trial should be granted when the court finds that the jury’s verdict was capricious or against the weight of the evidence and resulted in a miscarriage of justice.  Clewell v. Pummer, 131 A.2d 375 (Pa. 1957).  In order to obtain a new trial, the jury’s verdict must be so contrary to the evidence as to shock the conscience of the court.  Davis v. Mullen, 773 A.2d 764 (Pa. 2001).

The plaintiff bears the burden of proving damages by a preponderance of the evidence, but is required only to provide the jury with a reasonable amount of information to enable it to fairly estimate damage without engaging in speculation.  Bolus v. United Penn Bank, 525 A.2d 1215 (Pa. Super. 1987), appeal denied 541 A.2d 1138 (Pa. 1998).  Damages need not be proven with mathematical certainty; uncertainty as to amount of damages should not hinder recovery where it is clear that damages resulted from the defendant conduct.  Scullion v. EMECO Industries, Inc., 580 A.2d 1356 (Pa. Super. 1990), appeal denied 592 A.2d 45 (Pa. 1991).

The determination of damages is a factual question to be decided by the jury.  Delahanty v. First Pennsylvania Bank, 464 A.2d 1243 (Pa. Super. 1983).The jury’s duty of assessing damages should not be interfered with unless it clearly appears that the amount awarded resulted from partiality, caprice, prejudice, corruption or some other improper influence.  Pa. Dept. General Services v. United States Mineral Co., 809 A.2d 1000 (Pa. Commw. 2002), rev’d on other grounds, 898 A.2d 590 (Pa. 2006).  It is within the jury’s province to assess the testimony and to accept or reject the estimates given by witnesses.  Id.  If the verdict bears a reasonable resemblance to the proven damages, it is not the function of the court to substitute its judgment for the jury.  Id.   A new trial limited to the issue of damages may be granted only when (1) the issue of damages is not intertwined with the issue of liability; and (2) the issue of liability has been fairly determined or is free from doubt.  Smith v Putter, 832 A.2d 1094, 1101 (Pa. Super. 2003).

1.  Methodology Employed by Plaintiffs’ Expert

Defendants first claim that a new trial on the issue of damages should be awarded on the basis that the Court erred in permitting Hosey to testify as to his opinion of the value of the property in its contaminated condition, relying on those arguments raised in Plaintiffs’ Motion in Limine to Exclude the Testimony of Plaintiffs’ Real Estate Appraisers.  After we conducted the Frye hearing in response to that Motion, we issued a lengthy Opinion on November 6, 2012.  Upon reconsideration of the Post-Trial Motion, we find no error in permitting Hosey to testify.

Defendants reiterate their argument that Hosey’s opinion on the after-contamination value of the property should not have been admitted because he did not utilize one of the three methods which are generally accepted in the practice of real estate appraisal.  These are the Sales Comparison Approach, the Cost Approach and the Income Capitalization Approach.   Defendants also argue that Hosey’s testimony was excludable under Pa.R.E. 403 which provides that “[a]lthough relevant, evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”  Defendants argue that his valuation of the property in its after-contaminated state is based

solely on unsupported assumptions due to the methodology used by Hosey in arriving at his conclusion, thereby lacking a proper factual foundation and tending to mislead the jury.

 

During the Frye hearing, Hosey explained that the situation here is unique in that the property is “stigmatized”[5] due to the contamination and, for that reason, he experienced difficulty in arriving at a figure which truly reflected the affected value of the property through any of those three common methods.   Instead he used an analysis based on the survey he conducted in 2006.  Based on hypothetical situations, the participants (a group of real estate professionals) provided opinions on the value of real property affected by a “stigma” caused by pollution or contamination.

In reaching our conclusion that Hosey’s opinion on this subject was admissible, we noted that the formal Standards applicable to real estate appraisers identify the three approaches mentioned above, but do not preclude the use of other methods when none of those approaches is practical in a given situation.  Both Hosey and Pasquarella indicated that surveys are routinely used for various purposes in the real estate field and that the use of hypotheticals in appraisals is permitted if the use of that technique is disclosed.  Thus, we found that the methods and techniques used by Hosey in reaching his opinion were already employed in this field and were therefore not novel.  Having found that Hosey’s opinion satisfied the Frye standard, we further noted that Hosey would be subject to cross-examination on Defendants’ perceived shortcomings of his analysis at trial and that the jury could thereby determine the reliability of his opinion and the weight to be accorded it.

Moreover, we cannot say with certainty that the jury based their decision on damages solely on the figures offered by Hosey.   The property owner, Bobby Gerhart, testified to the same figure for the  diminution in value to his property.    We also note that the jury awarded only approximately one-half of what Hosey determined the diminution in value of the property to be.  This figure was much closer to the $364,000.00 figure offered by Defendants for the cost of repair.  Thus, the jury could have accepted that opinion as well.  The jury’s decision could be based on any of this evidence.

In conclusion, we find nothing to suggest that the jury’s verdict was the result of any improper consideration.  The amount awarded was reasonable in light of the evidence offered by both parties and does not shock our conscience by any means.  Even if the admission of the expert testimony had been in error, we find no prejudice to Defendants as the jury award was closely in line with the damage evidence introduced by Defendants themselves.

 

2.  Expert Testimony Regarding Subsequent Surveys

At trial, Hosey was asked questions about not only the 2006 survey which was referenced in his expert report dated February 9, 2008, but also the 2010 and 2012 surveys which were discussed in the Frye hearing.  At trial, Plaintiffs’ attorney first questioned Hosey about the 2010 survey and Defendants’ counsel then posed questions to him regarding the 2012 survey.  Defendants had also listed the 2012 survey as Exhibit No. 89 in the Joint Exhibit List.   This was used when Hosey was called as on cross-examination.[6]  Defendants’ claim that Hosey was permitted to testify beyond the scope of his expert report at trial in that he never filed a formal supplement to his 2008 report to include any information regarding the 2010 and 2012 surveys.

A trial court is vested with wide discretion in deciding whether to allow the admission of expert testimony into evidence, and that decision is not subject to reversal absent a clear abuse of discretion.  Daddona v. Thind, 891 A.2d 786 (Pa. Commw. 2006), appeal denied 909 A.2d 306 (Pa. 2006), citing Allegheny Ludlum Corp. v. Municipal Auth. of Westmoreland County, 659 A.2d 20 (Pa. Commw. 1995).  Only when the admission of the testimony is harmful or prejudicial to the party complaining will reversible error exist.  Id.

Discovery of information concerning expert testimony is governed by Pa.R.C.P. No. 4003.5.   An expert is permitted to submit an expert report in lieu of providing answers to expert interrogatories pursuant to Pa.R.C.P. No. 4003.5(a)(1)(b).  At trial an expert may not testify beyond the fair scope of his report for Rule 4003.5 states, in part:

[T]he direct testimony of the expert at the trial may not be inconsistent with or go beyond the fair scope of his or her testimony  in the discovery proceedings as set forth in the deposition, answer to an interrogatory, separate report, or supplement thereto.  However, the expert shall not be prevented from testifying as to facts or opinions on matters on which the expert has not been interrogated in the discovery proceedings.

 

Pa.R.C.P. No. 4003.5(c).  The explanatory comment to that Rule 4003.5(c) explains that it is intended to “prevent the submission of incomplete or ‘fudging’ of reports which would fail to reveal fully the facts and opinions of the expert or his grounds therefor.”  Pa.R.C.P. No. 4003.5(c), Explanatory Comment–1978  The essential purpose of this Rule is to prevent unfair surprise to the other party.  Feden v. Consolidated Rail Corp., 746 A.2d 1158, 1162 (Pa. Super. 2000).  .   As pointed out by Plaintiffs, the term “supplement” is not defined in the Rules related to discovery and there is no explicit requirement that any supplement to an expert report be in a formal writing.

While the law is well-established that experts may only testify at trial to matters that are within the fair scope of their pretrial report, there is no hard and fast rule for determining when a particular expert’s testimony exceeds the fair scope of his pretrial report.  Expressway 95 Business Center, LP v. Bucks County Board of Assessment,  921 A.2d 70 (Pa. Commw. 2007).  The question is whether the discrepancy between the expert’s pretrial report and his trial testimony is of a nature that would prevent or mislead the adversary from preparing a meaningful response.  The opposing party must suffer prejudice as a result of the testimony going   beyond the fair scope of the expert’s report before admission of the testimony is considered reversible error.  Id.  An expert’s trial testimony that constitutes a reasonable explanation or even an enlargement of the expert’s written words may be deemed to fall within in the coverage of “fair scope.”   Id.

We view these surveys as an attempt by Plaintiffs to enlarge and explain the opinion rendered by Hosey in his expert report. We fail to understand how Defendants can claim that they were surprised by Hosey’s testimony regarding the 2010 and 2012 surveys.  Hosey testified as to both at the Frye hearing.  Defendants had the opportunity to fully explore this information during cross-examination at the Frye hearing and had nearly one month to prepare any rebuttal prior to trial.  Defendants discussed the surveys in their Brief following the Frye hearing and even listed the 2012 survey on the Joint Exhibit List prior to trial.  In addition, Defendant used the 2012 survey to question Hosey as on cross-examination at trial, indicating that they made use of this material in trial preparation.  Defendants complain that Hosey did not adequately explain the methodologies employed and results of the two subsequent surveys.  However, Defendants had those two opportunities to question Hosey on that basis and attack to the reliability based on his responses.

For these reasons, it appears that Defendants had adequate knowledge of and time to prepare for this testimony and to prepare a response/rebuttal to the use of this information.  Defendants were in the advantageous position of knowing exactly what Hosey would testify to at trial and what responses to their own questions could be expected.   We find no prejudice or unfair surprise to Defendants under these circumstances.  Given the advantages afforded to them, we find no unfair surprise and we therefore will not grant a new trial on the issue of damages on this basis.

 

 

3.  Weight of the Evidence

Defendants concede that there was a one-time release of waste from their facility in August 2006 which caused E. coli and coliform bacteria to appear in the well water on the Gerhart property.  On the verdict slip, the jury indicated that there was the one-time release and that Plaintiffs suffered damages as a result of the incident.  In addition to seeking damages for the one-time release, Plaintiffs further sought damages for ongoing harm.  Defendants argued that any continuing contamination of this nature was caused by sources unrelated to their facility. The jury concluded that the groundwater beneath the Gerhart property is currently contaminated by E.coli and coliform bacteria but that the current contamination was not proven to be the result of Defendants’ conduct.  In awarding damages, the jury assessed $500,000.00 for diminution in value to the property and $10,000.00 for loss of use and enjoyment of the property.  Defendants claim that the award of $500,000.00 for permanent diminution is inconsistent with its finding on liability and is an excessive award for the one-time release.

Prior to deliberation, the Court gave the following instruction to the jury on the issue of diminution of value:

If you find that Pa.Natural Chicks is liable under any or all counts and if you find that harm cannot be removed, i.e., the property and groundwater cannot be brought back to their original condition then you must assume the harm is permanent.

 

If you find that the harm is permanent then you may award Gerhart an amount equal to the diminution in value of its property, i.e., the difference between what the property should be worth in a n unpolluted condition and what the property is now worth in a polluted condition.

 

The diminution in value of the Gerhart Property may not exceed the total value of the property in an unpolluted condition.

 

Defendants argue that the jury failed to follow these instructions and that they rendered an inconsistent verdict.   They assert that the verdict slip indicates that the jury found only a one-time discharge in 2006  (Verdict Slip, Answer to Question 1), and then indicated that only temporary harm resulted from that discharge (Verdict Slip, Answer to Question 2).   Their argument follows that the jury could not then properly award damages for permanent harm if it had followed the above instruction.  However, in assessing damages, it awarded $500,000.00  diminution in value to the Gerhart property.  Unfortunately, this issue is not properly before us.

Pa.R.C.P. No. 227.1 provides, in part, as follows:

 

 

 

Rule 227.1. Post-Trial Relief

 

(b) Except as otherwise provided by Pa.R.E. 103(a), post-trial relief may not be granted unless the grounds therefor,

 

(1) if then available, were raised in pre-trial proceedings or by motion, objection, point for charge, request for findings of fact or conclusions of law, offer of proof or other appropriate method at trial; and

 

Note: If no objection is made, error which could have been corrected in pre-trial proceedings or during trial by timely objection may not constitute a ground for post-trial relief.

 

Pa.R.E. 103(a) provides that the specific ground for an overruled objection, or the substance of excluded evidence, need not be stated at or prior to trial, or without having made an offer of proof, if the ground of the objection, or the substance of the evidence sought to be introduced, was apparent from the context.

 

Pa.R.C.P. No. 227.1(b)(1).  A party arguing an inconsistent verdict is required to

 

make a contemporaneous object at the time the jury’s verdict is announced. Shelhamer v. Crane, 58 A.3d 767 (Pa. Super. 2012).   In Shelhamer, it was noted that:

…[A]n inconsistent verdict provides grounds for objection and, if a party seeks relief upon grounds of verdict inconsistency, it must forward a timely, contemporaneous objection upon the rendering of the verdict.” By our decision in Dilliplaine[7], we sought to advance judicial economy and the efficient use of judicial resources at trial and on appeal by insuring that the trial court was given the opportunity to correct alleged errors.

This court has applied Dilliplaine’s contemporaneous objection requirement to a party who moves for a judgment n.o.v. or other post-trial relief based on the assertion that a jury’s answers to special interrogatories were inconsistent. In  City of Philadelphia v. Gray, 633 A.2d 1090 (Pa. Super. 1993), we held that a post-trial challenge to the jury’s answers to special interrogatories was waived because that challenge was not preserved by an objection to the verdict when it was rendered.
…

Under Rule 227.1(b) if no contemporaneous objection is made to an error that could have been corrected during trial, that error may not constitute a ground for post-trial relief.

Id. at 771 (citations omitted), citing Dilliplaine v. Lehigh Valley Trust Co., 322 A.2d 114 (Pa. 1974).

Defendants failed to lodge any objection at the time the jury’s verdict was returned, thus depriving this Court of the opportunity to correct any alleged inconsistencies or errors at the appropriate time.  Thus, we are unable to consider this assertion as a basis for post-trial relief.

We have undertaken to review the evidence in its entirety and find that a new trial on the issue of damages is not warranted here.  A new trial will not be granted on the basis of a weight of the evidence claim unless the evidence supporting the verdict is so inherently improbable or at variance with admitted or proven facts or with ordinary experience as to render the verdict shocking to the court’s sense of justice.  King v. Stefenelli, 862 A.2d 666 (Pa. Super. 2004).  A claim that the verdict was against the weight of the evidence concedes that the evidence presented by the verdict winner was sufficient to satisfy the elements of the cause of action but contends that the evidence was unreliable and untrustworthy to such a degree that a verdict based upon it would shock one’s sense of justice, and, therefore, a new trial would be necessary to cure the injured party.  Morin v. Brassington, 871 A.2d 844 (Pa. Super. 2005).

Although not at issue, we must point out that the jury’s verdict was not inconsistent with the instructions.  At trial, Hosey testified that due to the contamination, the Gerhart property continued to suffer from a “stigma.”   Hence, it was entirely possible that the jury found that the property was subject to such stigma which resulted from the conceded one-time 2006 release of waste.  With regard to the amount of damages awarded, it is entirely possible that the jury found that the stigma caused a diminution in value.  As we indicated earlier in this Opinion, we find that the amount awarded was supported by the evidence presented at trial and we did not find it excessive by any means.  There was ample evidence to support the damages awarded.  In addition to Hosey’s testimony, Bobby Gerhart offered testimony to the decrease in value of the property and Defendants also presented evidence which closely aligns with the jury’s assessment.

For the above reasons, we will deny Defendants’ request for post-trial relief and will issue an appropriate Order.