Phila. judge denies defendant's post-trial relief motion; Upholds $10 million-plus med mal verdict

By Jon Campisi | Dec 8, 2011

A Philadelphia Common Pleas Court judge last week upheld a $10 million-plus jury verdict in the case of a wheelchair-bound man who had sued the University of Pennsylvania Health System and related entities over what he contended was a misdiagnosis that ultimately led to his paralyzed condition.

In a Dec. 1 ruling, Judge Frederica A. Massiah-Jackson denied a motion for post-trial relief that had been filed by medical doctor Leo F. McCluskey, the University of Pennsylvania Health System, Clinical Practices of the University of Pennsylvania and the Trustees of the University of Pennsylvania in response to a jury’s verdict following a two-week trial last spring.

The plaintiff in the case, Eric Davenport, sued the defendants in 2007 after learning that the 2003 MRI films of his back revealed multi-level spinal stenosis and myelopathy with spinal cord impingement.

The problems led to spasticity and parathesis and caused Davenport to become wheelchair dependent by 2005.

It was argued by Davenport’s attorneys that with timely diagnosis and proper surgery in 2003, after the MRI was taken, the condition would have been treatable and the progressive deterioration could have been prevented.

Davenport had also learned that he had been misdiagnosed in 2003 as having Amyotrophic Lateral Sclerosis, better known as Lou Gehrig’s Disease, court papers show. The misdiagnosis wasn’t discovered until 2006.

On April 4, the jury returned a plaintiff’s verdict in the amount of $9,654,551, according to the court papers. The verdict was a tabulation of past, present and future earnings losses, future medical and personal care, and past and future non-economic damages. The damage period covered 28 years.

The verdict breakdown included $2,154,551 for economic losses and $7.5 million for non-economic damages.

The defendants filed numerous post-trial challenges in the months after the verdict, arguments for which were heard in late October.

McCluskey, the physician, and the Trustees of the University of Pennsylvania sought judgment notwithstanding the verdict or a new trial based on their claim that the jury verdict was against the weight of the evidence and that they agreed with certain trial court evidentiary rulings.

Judge Massiah-Jackson disagreed and denied the defendants’ motions.

“Our Appellate Courts have long recognized that in entering Judgment Notwithstanding The Verdict, the ruling must be based upon the evidence in the record as it existed at the close of trial,” the judge wrote. “The reviewing court may not eliminate evidence which was improperly admitted, nor insert offers of evidence which should have been admitted but which were excluded.”

The ruling determined that Davenport met his burden of proof in the medical malpractice litigation he initiated against the defendants.

“The plaintiff demonstrated that Dr. McCluskey’s 2003 failure to rule out treatable spinal cord injury and the ‘certain’ diagnosis of ALS directly caused the harm and increased the risk of permanent paraplesia,” the judge’s ruling states. “The record in this trial furnished a solid basis for the jury to find that the increased risk was a substantial factor in bringing about the resulting harm.”

The judge also ruled that McCluskey had failed to present sufficient grounds for a new trial.

“This jury was charged to weigh the evidence and inferences, to judge the credibility of witnesses, and draw the ultimate conclusion as to the facts,” the judge wrote. “There was ample evidence in this two week trial which support the verdict on liability, causation and damages.”

The judge’s ruling states that judgment will be entered in the plaintiff’s favor in the amount of $9,654,551 plus delay damages of $515, 989.46 for a total of $10,170,540.46.

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