Thomas Mazur v. HELEN L. KELCHNER On Appeal From the United States District Court For the Middle…

NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-3600
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THOMAS MAZUR,
Appellant
v.
HELEN L. KELCHNER
____________________________________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. No.01-cv-00607)
District Judge: Honorable Malcolm Muir
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Argued September 8, 2003
Before: BARRY, BECKER, and GREENBERG, Circuit Judges.
(Filed: October 1, 2003)
THOMAS P. LANG, ESQUIRE (Argued)
Law Office of Dale E. Anstine
Two West Market Street
P.O. Box 952
York, PA 17405
Counsel for Appellant
THOMAS J. KELLEY, ESQUIRE (Argued)
Thomas J. Kelley & Associates
330 Montage Mountain Road
Suite 103
Moosic, PA 18507
Counsel for Appellee

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_______________________
OPINION
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BECKER, Circuit Judge.
This is an appeal by plaintiff Thomas Mazur from a jury verdict and denial of post-
trial relief by the United States District Court for the Middle District of Pennsylvania.
For the reasons that follow, we affirm. The facts and procedural history are well known
to the parties and we will not rescribe them here.
The motor vehicle accident giving rise to Mazur’s claim was a rear end collision,
and hence there would appear to be no question that defendant Kelchner was liable for
any injuries sustained in the accident. The major issue before the jury was therefore the
question of the extent of Mazur’s injuries. The plaintiff’s case was tried to the jury on the
theory that Mazur sustained cervical and lumbar herniated discs with radiculitis, which
left him with a severe and disabling back condition. This claim was supported by the
testimony of Dr. Vincent Ambruso, a neurosurgeon.
The defense challenged Mazur’s serious injury claim through the testimony of Dr.
Eugene D. Kim, an orthopedic surgeon. According to Dr. Kim, Mazur’s condition
reflected, not disc herniations, but a degenerative process, i.e.“wear and tear” over time.
Dr. Kim stated that Mazur did sustain a low back strain which likely aggravated a pre-
existing condition, and also a neck strain, but opined that these would resolve in a short
period of time.

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The case was submitted to the jury by the use of three special verdict questions.
The first question asked whether the defendant Kelchner was negligent. The jury
responded “yes”. The second question read as follows: “If your answer to the previous
question is “yes,” was the negligence of Helen L. Kelchner a substantial factor in bringing
about harm to plaintiff Thomas J. Mazur?” To this question, the jury answered “no” and
hence it did not reach the third question which would have required it to state the amount
of damages to which Mazur was entitled. It is the jury’s response to the second question
that spawns this appeal in which Mazur contends that he should be granted a new trial
because the verdict of the jury was “so contrary to the weight of the evidence.”
Mazur’s argument, as summarized in his appellate brief, is as follows:
The jury was presented with undisputed medical expert evidence that
Thomas Mazur suffered injuries in this accident. The jury’s verdict that the
Defendant’s negligence was not a substantial factor in bringing about harm
to the Plaintiff is insupportable. There is a difference between a finding of
“no substantial factor” and a finding of “zero damages.” The former
question is one of causation, and the latter question is one of
compensability. Case law in Pennsylvania clearly provides that a jury is not
free to ignore uncontradicted evidence on the issue of causation. In denying
Plaintiff’s motion for post-trial relief, the trial court asserts that Plaintiff
waived his claim for damages resulting from any soft tissue injuries. The
trial court apparently felt that the Plaintiff was limited in his claim for
damages at trial solely to whether he sustained a herniated disk. However,
this is not the case. Plaintiff never waived his claim that he sustained soft
tissue injuries in this accident. The jury was presented with uncontradicted
evidence that Plaintiff did sustain soft tissue injuries, and was not free to
ignore this evidence.
The testimony of Kelchner’s medical expert, Dr. Kim, was quite clear. He

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disagreed as to the nature and extent of Mazur’s injuries. Kelchner accordingly argued to
the jury that Mazur was not as severely injured as he wished the jury to believe. To be
sure, in disputing the severity of Mazur’s injuries, Dr. Kim conceded that Mazur
sustained some injury as a result of the Kelchner’s negligence. Mazur thus submits that
the trial court erred by instructing the jury on “substantial factor,” when the evidence at
trial did not support giving that charge.
While Mazur’s argument has a certain intuitive appeal, at bottom it fails. Had
Mazur moved under Fed. R. Civ. P. 50 for judgment as a matter of law, he might have
been entitled to relief that would mold the verdict in his favor, but he did not. We
therefore are limited to reviewing the District Court’s decision to deny a new trial, and do
so for abuse of discretion – a narrower scope of review which requires that we give
deference to the trial judge who saw and heard the witnesses. It is plain that the jury
rejected Mazur’s contention of serious injury, obviously crediting the testimony of Dr.
Kim over that of Dr. Ambruso. We have carefully scrutinized Dr. Ambruso’s trial
testimony and find no reference to soft tissue injury.
Mazur’s trial strategy, for obvious reasons, was to put all his eggs in the serious
injury basket. He did not ask the jury to award him damages for the (transitory) lower
back pain. In Majczyk v. Oesh, 789 A.2d 17 (Pa. Super. Ct. 2001), the en banc Court
upheld the refusal of the trial court to grant a new trial on damages where the jury had
found the defendant negligent yet had refused to award damages for pain and suffering

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1We acknowledge that there appear to be conflicting decisions in the Pennsylvania
jurisprudence; the cases seem to turn on their facts. Where the injury is greater, the less
likely the court is to accept a defense verdict in a clear liability situation.
2We find no merit in Mazur’s claim that the District Court abused its discretion in
admitting the surveillance tape.
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even in the presence of the defense’s medical testimony that plaintiff had been injured:
While the jury may have concluded that appellant suffered some painful
inconvenience for a few days or weeks after the accident, it may also have
concluded that appellant’s discomfort was the sort of transient rub of life
for which compensation is not warranted.
Majczyk, at 726 (citations omitted).1 The facts of Majczyk are remarkably similar to the
case at bar. Plaintiff claimed a serious disc injury and defendant argued that the plaintiff
has incurred no more than a (transitory) low back strain.
We find Majczyk persuasive here. The jury’s decision that Mazur had not suffered
any significant back pain was obviously based on a disbelief of the testimony of plaintiff
and Dr. Ambruso coupled with its own observations of plaintiff’s apparent pain-free
mobility in the surveillance video shown by defendant.2 Thus, there was ample basis in
the evidence for its verdict that defendant, even though negligent, had not caused any
more than some transient discomfort, see Majczyk supra, hence no real harm to plaintiff.
We are satisfied that the able District Judge did not abuse his discretion in denying the
motion for a new trial. The judgment of the District Court will be affirmed.

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TO THE COURT:
Please file the foregoing opinion.
/s/Edward R. Becker
Circuit Judge

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