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In a decision rejecting a standard jury instruction, a split Superior Court panel has ruled that trial judges may not shape their jury charges in a way that allows jurors to categorize awards for various forms of “pain and suffering.” The court ruled 2-1 that a Luzerne County trial court had committed an error when it invited the jury in its verdict interrogatory (following the jury charge) to enter six separate awards for pain and suffering. The “better practice,” the court said, “is to charge on pain and suffering and to allow counsel to argue the components within reason.” Awarding pain-and-suffering damages as well as damages for a subcategory of pain and suffering essentially duplicates the pain and suffering award, Senior Judge James R. Cavanaugh explained in Carpinet v. Mitchell. For example, “loss of pleasures and enjoyment of life” and “loss of feeling of well-being” are “subdivisions of pain and suffering and do not set forth separate categories of damages recognized by law which may be tabulated in addition to damages awarded for pain and suffering,” Cavanaugh wrote. Concluding the Carpinet verdict interrogatory was prejudicial, the Superior Court vacated the award – $650,000 before delay damages – and ordered a new trial on damages. In Carpinet, a personal injury case, the Luzerne County trial judge relied at least in part upon the uniform jury instructions recommended by the Pennsylvania Suggested Standard Civil Jury Instructions, according to the opinion. Most states have a uniform set of jury instructions, which are designed to make the trial process more efficient by standardizing jury charges statewide. Lee C. Swartz, a Harrisburg attorney and reporter for the Pennsylvania Supreme Court’s nine-member civil instructions subcommittee of the committee for proposed standard jury instructions, said it’s the first time he’s seen an appellate court disapprove of one of Pennsylvania’s standard instructions since they were first published in 1979, when he joined the committee. The state Supreme Court doesn’t endorse the unofficial standardized instructions as a whole but approves – along with the Superior Court – individual instructions as they come before them on a case-by-case basis, said Swartz, who practices at Tucker Arensberg. The standard instructions, revised and republished in April 2003, are used in some form by most trial judges around the state, Swartz explained. “Irrespective of the fact these are not ‘official,’ they are viewed as almost official by the trial courts of Pennsylvania,” he said. Judges are not obligated to use the standard instructions, he noted. Judge Mary Jane Bowes joined Cavanaugh’s Carpinet opinion. Judge Correale F. Stevens wrote separately to dissent, saying the jury could have “easily” understood from the instructions and interrogatories together that one award for pain and suffering was permissible in the case. Common Pleas Judge Mark A. Ciavarella had directed jurors to award damages, if they saw fit, for “pain and suffering,” “emotional distress and anxiety,” and “loss of feeling of well-being” – categories the majority of the Superior Court panel said were “clearly” duplicative. Ciavarella also included in the verdict interrogatory other categories of damages, including one for “loss of the pleasures and enjoyments of life.” Cavanaugh noted that the law hasn’t been “particularly clear” as to whether “loss of life’s pleasures” is separate from or a component of pain and suffering. “While it may seem harsh to fault the trial court for reliance on the suggested instruction, the fact that the charge was taken from the instruction is not dispositive of its legal propriety,” Cavanaugh wrote. Cavanaugh emphasized that the Supreme Court has never adopted the Pennsylvania Standard Jury Instructions. The two volumes of nearly 300 recommended instructions serve “‘only as a reference material available to assist the trial judge and trial counsel in preparing for a proper charge,’” Cavanaugh wrote, quoting a 1998 Superior Court decision, Jeter v. Owens-Corning Fiberglas Corp. “Further,” Cavanaugh wrote, “it appears the piecemeal awards for various forms of pain and suffering have never been the law of Pennsylvania, and we see no authority which would allow juries to break into separate, individual compartments” what has traditionally been seen as one type of damages. But in 1982, Swartz said, the Superior Court issued an opinion in a case captioned Pratt v. Stein, which held differently. In that case, the defendant argued a judge’s charge on pain and suffering was erroneous because it discussed various measures of damages, including loss of life’s pleasures and inconvenience and embarrassment – without noting expressly that these items were mere subcategories of pain and suffering. The Pratt court disagreed. Quoting Lebesco v. Southeastern Pennsylvania Transportation Authority, the court held that the loss of “‘pleasures of life is a separate and compensable element of damages in a personal injury action’” and that an instruction so informing the jury was proper. Pratt also noted another Superior Court decision that described a “loss of well-being” to be as much a loss as an amputation. In response to Pratt, the standard instruction that the Carpinet court rejected May 27 was added, Swartz said. “Up to this point, no court has ever attacked it,” Swartz said. Swartz said his committee would not look to changing the instruction to comply with Carpinet until the plaintiffs in the case have exhausted their opportunities for appellate review before an en banc panel of the court or the Supreme Court. The plaintiffs’ attorney, Melissa Scartelli of the Scartelli Law Firm in Scranton, did not return calls for comment. Joseph A. Murphy of Murphy Piazza & Genello in Scranton, who represented the defendant, was not available for comment yesterday. A jury awarded the plaintiffs, Robert and Susan Carpinet, $650,000 for personal injuries and loss of consortium stemming from a 1996 Luzerne County car accident in which the defendant, Darlene Mitchell, rear-ended Robert Carpinet’s Ford pickup, according to the opinion. Stevens, in his dissent, noted that although the verdict interrogatory didn’t say “distress” was a part of pain and suffering, the judge’s instructions to the jury did explain this caveat. He found no reversible error in the instructions and interrogatories as a whole. (Copies of the 29-page opinion in Carpinet v. Mitchell, PICS No. 04-0849, are available from The Legal Intelligencer . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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