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A Pennsylvania Superior Court panel on Monday vacated a $2.7 million punitive damages award against a nursing home and its parent company, ruling that the plaintiff improperly raised a new recklessness theory during the trial, catching the defense by surprise and undermining a fair proceeding.

The appellate decision stems from a suit filed against Green Ridge Care Center and Saber Healthcare Group LLP, alleging that their negligence led to resident Mildred Bernavage’s fractured hip. The jury in Lackawanna County originally awarded roughly $300,000 in compensatory damages and $2.7 million in punitive damages.

The three-judge panel upheld the compensatory damages but said the punitive damages could not stand due to procedural missteps by the plaintiff's legal team.

Recklessness Raised Too Late, Panel Says

The court's published opinion emphasized that Carolyn Vanston, Bernavage’s daughter and the plaintiff in the case, failed to raise any theory of recklessness during three years of pretrial litigation. The issue only surfaced during trial testimony, specifically in questioning of certified nursing assistant Virginia Czankner, who attended to Bernavage during the incident in the shower room.

Czankner admitted she had “gambled” with the resident’s safety, and when asked, affirmed that her actions were reckless. Other staff members also answered affirmatively when asked if their actions constituted recklessness.

That testimony prompted Vanston’s counsel to move midtrial to amend the complaint and seek a directed verdict under a recklessness theory, which the trial judge granted. The appellate panel, however, found this constituted an "unfair surprise" to the defense.

“There was no indication appellee intended to assert recklessness until appellee’s counsel examined Czankner at trial,” the opinion stated.

Panel: Recklessness Theory a New, Improper Addition

Judges Mary Jane Bowes, Judith Ference Olson, and Victor P. Stabile criticized the plaintiff’s tactics as a late-game shift in strategy that gave the defense no opportunity to properly prepare or respond.

“At the eleventh hour, appellee solicited the word ‘reckless’ from witnesses who could not be expected to understand the legal significance of that term,” the panel wrote. “The witnesses’ use of the word ‘reckless’... was of no legal significance until the trial court subsequently permitted appellee’s amended complaint.”

The panel found that raising a new theory of liability—recklessness—in the middle of trial violated due process principles and was procedurally improper under Pennsylvania law.

“We conclude that unfair surprise exists here, where a negligence plaintiff, without explanation, withholds the precise theory of recovery until the latest possible time,” the court held.

Plaintiff Plans Further Appeal

Attorney Jamie J. Anzalone, who represents Vanston along with Kelly M. Ciravolo of Anzalone & Doyle Trial Lawyers, told Law360 that they strongly disagreed with the ruling.

“We believe it is inconsistent with Pennsylvania law directly on point regarding this exact issue,” Anzalone said. “The trial court judge, now federal judge, Judge Julia K. Munley, authored a well-reasoned opinion consistent with Pennsylvania precedent on amendment of pleadings related to punitive damages. We will exercise every appellate right available to the plaintiff.”

Defense Yet to Comment

Attorneys for Green Ridge Care Center and Saber Healthcare Group LLP—Bill Mundy, Ira L. Podheiser, and Philip M. Mintz of Burns White LLC—did not immediately respond to requests for comment.

Case Information

Case Title: Bernavage v. Green Ridge Healthcare et al.
Case Number: 1576 MDA 2023
Court: Superior Court of Pennsylvania
Original Trial Court: Lackawanna County
Presiding Trial Judge: Hon. Julia K. Munley (now U.S. District Judge)