Opinion
C.A. No. 01C-11-150 MMJ.
Submitted: September 1, 2005.
Decided: October 31, 2005.
Upon Defendants' Motion for a New Trial Pursuant to Superior Court Civil Rule 59 or in the alternative Defendants' Motion for Remittitur and Plaintiff's Amended Petition for Costs
Gary W. Aber, Esquire, Aber, Goldlust, Baker Over, Wilmington, Delaware, Attorneys for Plaintiff
Norman H. Brooks, Jr., Esquire, Marks, O'Neill, O'Brien Courtney, P.C., Wilmington, Delaware; Charles P. Coates, III, Esquire, Newark, Delaware, Attorneys for Defendants
MEMORANDUM OPINION
Plaintiff brought this action for damages arising from personal injuries suffered as a result of an automobile accident. Plaintiff filed the complaint as an arbitration case. The arbitrator found in favor of Defendants. Plaintiff demanded a trial de novo. Both liability and the amount of damages were vigorously contested during the jury trial. At the conclusion of trial, the jury apportioned liability equally among Plaintiff and Defendants and awarded Plaintiff the sum of $450,000.
Superior Court Civil Rule 16.1 requires that all civil actions are subject to mandatory arbitration when counsel for the claimant has not certified that damages exceed $100,000.
The parties presented competing versions of how the accident occurred. The jury considered the testimony of the parties and a non-party fact witness. The parties' expert witnesses provided their opposing theories. The jury had ample opportunity to assess the credibility of the lay witnesses and the weight to be given the expert testimony. These are quintessential issues for resolution by the fact-finder.
Prior to trial, the court resolved motions in limine concerning expert testimony and exhibits. The court concurred with the parties that the anticipated evidence warranted a jury instruction that prevented consideration of future medical expenses in any award of damages . The court declined to instruct the jury that it could assume that Defendants' lack of expert testimony on certain topics, meant that if Defendants had presented expert testimony on those topics, such testimony would have been adverse to Defendants. During trial, the court declined to direct a verdict, ruling that there was sufficient evidence to be considered by the jury on the issue of liability.
Defendants argue that the jury improperly determined negligence "on the basis of two questionable premises: speed and drinking," without sufficient evidentiary support. Plaintiff responds that the parties' versions of how the accident occurred were diametrically opposed: Plaintiff contending that she was struck while stopped and waiting to enter the intersection and Defendant drifted off the roadway and struck her broadside; and Defendant claiming that Plaintiff pulled into the roadway into Defendant's path and that Defendant's version was supported by an independent eyewitness.
There is no reason to conclude that the jury found negligence on the basis of anything other than assessment of admissible evidence and any reasonable inferences drawn from the evidence. Objections to admission of the witnesses' estimates of the vehicles' speeds, and to admission of evidence that Defendant had consumed one beer prior to driving (something Defendant had denied under oath during the arbitration), were overruled. The testimony of the parties, the eye witness, and both experts was subject to thorough cross-examination. The hotly-disputed factual issues included the weather, road conditions, visability, movement of the vehicles, and point of impact. The jury assessed the credibility of all witnesses and determined the weight to be given to their testimony.
A motion to grant a new trial on the ground of an excessive verdict is directed to the sound discretion of the court. The court has the authority to grant a new trial if the verdict was so out of proportion to the injury that the verdict shocks the court's conscience and sense of justice, or if the verdict was based upon passion, partiality, prejudice, mistake, or misapprehension on the part of the jury. In the absence of exceptional circumstances, the jury's award of damages should be deemed appropriate.
Mills v. Telenczak, 345 A.2d 424, 426 (Del. 1975); Storey v. Castner, 314 A.2d 187, 193 (Del. 1973); McCloskey v. McKelvie, 174 A.2d 691, 693 (Del.Super. 1961).
Young v. Frase, 702 A.2d 1234, 1236 (Del. 1997).
After considering all of the relevant factors, I conclude that a remittitur must be granted because the verdict is sufficiently out of proportion to the injury so as to shock the court's conscience and sense of justice. Although I am reluctant to draw any conclusion which is contrary to the jury's determination, the facts require a reduction of the amount of damages awarded.
See Storey, 401 A.2d at 466-67.
Plaintiff presented medical evidence supporting herniation of a disc in her neck, resulting in radiculopathy into her arms, and protruding discs in her low back causing radiculopathy into her legs. Both injuries were confirmed by objective medical tests. These injuries are permanent. Nevertheless, Plaintiff has neither sought nor received medical treatment for over four years, with the exception of one examination in 2004. There was no claim for future medical expenses, lost wages, or the expenses of any future surgery. Past medical expenses were approximately $13,000.
This case began as an arbitration case, indicating that Plaintiff estimated that any damages recovery would not exceed $100,000. Even Plaintiff's counsel has stated that "the verdict is on the high end of the spectrum." All counsel, as officers of the court, agreed that the verdict was "surprisingly high." When the jury verdict was read, the court observed that all of the attorneys present plainly appeared to be shocked by the amount awarded.
Even when viewed in the light most favorable to Plaintiff, Plaintiff's injuries cannot justify a monetary award in the amount of $450,000. Plaintiff will continue to suffer pain and discomfort, and certain of her activities, such as walking her dogs, have become more difficult. Her life expectancy exceeds twenty years. Having considered the nature, extent and duration of Plaintiff's injuries, past and future pain and suffering, her life expectancy, past and future impairment of activities, and the permanent nature of her injuries, the absolute maximum just and reasonable compensation to Plaintiff is $200,000, offset by 50% comparative negligence, resulting in an award to Plaintiff in the total amount of $100,000.
THEREFORE, Defendants' Motion for a New Trial Pursuant to Superior Court Civil Rule 59 is hereby DENIED. Defendant's alternative Motion for Remittitur is hereby GRANTED. The maximum award to Plaintiff is $100,000. If Plaintiff fails to accept this remittitur by written notice no later than 20 days from the date of this Opinion, a new trial will be ordered on the issue of damages only.
Plaintiff's Petition for Costs is GRANTED IN PART AND DENIED IN PART, as follows:
Court Costs:
Filing Fee $175.00 Sheriff 35.00 Appeal De Novo 150.00 Docket Entries 225.00
TOTAL $365.00
Videotaping of Deposition of Dr. Stuart G. Dubowitch, D.O. $459.48
Expert Witness Fees: Stuart G. Dubowitch, D.O. $1,500.00 Michael Whittier $1,000.00 Anthony F. Calzaretto, D.C. $1,000.00
TOTAL $3,500.00 _________ GRAND TOTAL $4,324.48 =========