Opinion
C.A. No. 97C-07-177-JOH
Submitted: February 2, 2000
Decided: February 17, 2000
Plaintiff's Motion for New Trial — DENIED
W. Christopher Componovo, Esq., Law Offices of Joseph J. Rhoades
Keith E. Donovan, Esq., of Swartz, Campbell Detweiler
Counsel:
On February 27, 1996, plaintiff Steven Bensinger was stopped in traffic on Kirkwood Highway headed towards Newark. Nearby there was an accident in the eastbound lanes. While stopped and looking to his left, his vehicle was hit from behind by defendant Allison Eck who was distracted by the same accident. The impact was minimal.
The trial involved only damages as Eck admitted negligence. After a two-day trial, the jury found that Eck's negligence was not a proximate cause of any injury to Bensinger. He now has moved for a new trial offering two arguments (1) the verdict was against the great weight of the evidence and (2) the Court erred in not excusing a juror who overheard a conversation during lunch. The Court concludes that neither of these contentions warrants a new trial.
FACTUAL BACKGROUND
Both parties testified about the accident. Bensinger said he was "hit pretty hard." At most, there was a 4-5" mark on the rear bumper of his 1990 Ford Mustang. Eck saw no damage or marks on the front bumper of her 1988 Chevrolet Corsica. A state trooper investigating the accident in the opposite lanes investigated this accident, too, and found it to be "unreportable."
Bensinger left the accident scene after a while and went to work. There, a little later, he felt tingling in his fingers and the beginnings of a headache which became worse, causing him to leave work early that day. On March 1, 1996, Bensinger saw Dr. Richard Gold, a chiropractor. He told the jury that Bensinger complained of a moderate headache, difficulty in turning his head and cervical and dorsal pain.
Bensinger was not a stranger to Dr. Gold. He had treated Bensinger several times in 1992 for mid back, dorsal and cervical pain. He saw Bensinger again in July 1994 for neck and low back pain. He prescribed physical therapy, a TENS unit and other treatments. Another chiropractor treated Bensinger on March 16, 1995 for mid-to-low back pain. In March 1996, after this accident, Dr. Gold noted dorsal and cervical spine pain and spasm.
Bensinger undertook chiropractic treatment for the next four-to-five months. While he improved, the symptoms persisted prompting Dr. Gold to refer Bensinger to Dr. William Atkins, a physiatrist. He ordered an MRI which revealed a C6-7 disk bulge. The report, however, mentioned no nerve impingement resulting from this bulge.
Dr. Atkins also reported that Bensinger was having difficulty sleeping and reduced range of motion in his neck. In August 1997, Dr. Atkins indicated that Bensinger was experiencing moderate left side neck pain, especially when getting up. He said Bensinger should do no prolonged or repetitive lifting overhead. The injury, the doctor said, was soft tissue and permanent.
Bensinger testified he stopped treatment with Dr. Gold in August 1996, since the treatments were not helping. The headaches are now less frequent, he said, but he has had some difficulty sleeping. Raising his hands above his head creates unbearable pain. When he tilts his head back for one-to-two minutes, he experiences severe pain. Bensinger said he had none of this before this 1996 accident. He has tried various exercises to learn what is bearable. Among those exercises is weight lifting where he is currently bench pressing over 300 pounds. He had started karate in 1999 but due to his hand injury, he stopped.
This 1996 rear-end accident was not his first. He had had five prior rear-end accidents though he claimed he was not injured in any of them. In 1990, Dr. Wai Wor Phoon had diagnosed him with chronic neck pain which he had had for up to six years at that point.
Eck had Bensinger examined in December 1998 by Dr. James Bonner, also a psychiatrist. Earlier in his testimony, Bensinger had described Dr. Bonner as uncaring and "unprofessional." Dr. Bonner told the jury that a 1992 chiropractor's record indicated Bensinger was suffering from neck tightness resulting from one of his rear-end accidents. As to the bulging disk, Dr. Bonner noted there was no nerve impingement found and that Bensinger had no symptoms correlating to an impingement, such as radiating pain. A significant number of people, the doctor said, have bulging disks but they are asymptomatic. He found no objective signs of injury and elicited no pain complaints even with "deep palpation." He described Bensinger as very muscular. Whatever subjective symptoms Bensinger had, the doctor told the jury, existed prior to the 1996 accident. Nor, Dr. Bonner said, was there an aggravation of any pre-existing condition from the 1996 accident.
Bensinger argues that the verdict of no injury resulting from the 1996 accident was against the great weight of the evidence. He also argues the Court should have dismissed juror number six, Margaret Hester. The failure to do so was also error and should prompt a new trial.
This contention arises from a conversation which the juror overheard during the lunch break on the first day of trial. While seated at a counter in the Wall Street Deli, Eck and her father sat near the juror. Without insuring no jurors were around, Eck and her father discussed the trial, among other subjects.
Upon her return, the juror, who was sitting alone, reported to the Court that she heard Eck's father tell her to tell the truth. She also overheard Eck express concern about going to jail and only having $100. The juror said she felt awkward being there when this conversation was going on. The Court, of course, inquired whether what she heard would affect her ability to serve impartially:
THE COURT: Can you tell me whether what you overheard in any way affects you ability from this point forward to be an impartial juror in this case?
JUROR NO. 6: It would not affect it, no, sir.
THE COURT: One way or the other?
JUROR NO. 6: No.
THE COURT: For or against anybody?
JUROR NO. 6: No. I would have to listen to both sides and make my opinion from that.
THE COURT: Do you understand that nothing which you heard at lunch is evidence in the case and in no way can be considered by you?
JUROR NO. 6: Exactly. It was just it was awkward, and I felt as though I should tell. I mean after all, I'm sitting right next to them.
Bensinger moved to have the Court excuse the juror. Eck's counsel took no position. The Court decided the juror's response showed she could continue to be impartial and would be able to evaluate the evidence without influence of what she had heard at lunch. Her answers and demeanor were quite sincere. Her concern was more for the awkwardness of the situation. She had not discussed any of this with any other jurors. Finally, the Court instructed her to not allow any of what she had heard outside the courtroom influence her verdict.
It should be noted that Bensinger testified about Eck's insurance company taking pictures of the vehicles.
APPLICABLE STANDARD
A jury's verdict is assumed to be correct. It may be set aside if it is against the great weight of the evidence. The jury is the arbiter of witness credibility, not the Court.
Mills v. Telenczak, Del.Supr., 345 A.2d 424, 426 (1975).
Gannett Co. v. Re, Del.Supr., 496 A.2d 553, 558 (1985).
Williams v. State, Del.Supr., 539 A.2d 164, 168 (1988).
DISCUSSION A
Not unlike many persons whose vehicles are hit from behind and believe the impact caused much damage, there was little or none on Bensinger's car. There was no damage on Eck's car. Once more, as with so many low-impact cases which go to trial, there is prior medical history of the same or similar injury. Often, these factors bring into sharper focus the issue of the plaintiffs credibilityThe jury's verdict reflects one of two opinions. First, it could have determined that Bensinger was injured but not to a degree warranting an award of damages. Such a verdict is within a jury's province. Second, the jury could have determined that Bensinger was not injured in this accident. Neither conclusion is against the great weight of the evidence.
Szewczyk v. Doubet, Del.Supr., 354 A.2d 426 (1976); compare Maier v. Santucci, Del.Supr., 697 A.2d 747 (1997).
As to the first conclusion, there was a minor impact. Bensinger did improve even though his subjective complaints remained. There was not extensive treatment by any health care provider, be it a chiropractor or a medical doctor. The MRI showed a disk bulge but there were no correlating symptoms such as tingling or radiating pain. So the one objective finding could not be causally linked to pain or other sensation.
Bensinger's descriptions of his pain resulting from tilting his head back for over a minute did not seem consistent with anything. Further, Dr. Bonner could not elicit a pain complaint even upon deep palpation. Finally, Bensinger is bench pressing over 300 pounds and had undertaken karate before injuring his hand. Added up, the jury's verdict is much more consistent with this evidence than an injury meriting damages.
The second possible conclusion — that of no injury at all — overlaps the first in some ways. What supports the jury's verdict for the first conclusion also supports a conclusion of no injury. In addition, Bensinger had been in five prior rear-end accidents and had a chronic neck pain diagnosed as long ago as 1990.
He denied being injured in any of those prior accidents, but the record showed at least one chiropractic treatment for neck pain predating this accident. Bench pressing 300 pounds does not seem to reflect the kind and severity of pain he described to doctors and jurors. In short, Bensinger's credibility was on the line. His complaints to the doctors were subjective. When a jury questions a plaintiffs credibility, it can suspect or reject a doctor's opinion which rests upon that credibility. The Court cannot say which of the two bases is reflected in the jury's verdict, but it can say the jury's verdict is not against the great weight of the evidence.
Breeding v. Contractors-One-Inc., Del.Supr., 549 A.2d 1102, 1104 (1988).
B
Bensinger's second basis for seeking a new trial is this Court's refusal to excuse juror number 6. It is regrettable, of course, that Eck and her father put the juror in the awkward situation she brought to the Court's attention. She was convincing in her statements that what she heard would not affect her impartiality or her verdict. It is too much to conclude that all the jurors were "infected" by what she heard. She was instructed not to mention it to anyone and had not discussed what she heard with any other juror.
The Court was impressed that her answers were sincere, that she would, as she said, decide the case on the evidence and not decide it on the overheard remark. She came across as a conscientious juror. Nor does the Court expect that the rest of the jury was influenced by plaintiffs mention of insurance, a taboo subject, of course.
In sum, this Court has no basis to believe this juror decided this case on anything other than the evidence.
CONCLUSION
Based on the foregoing, the motion of plaintiff Steven J. Bensinger for a new trial is DENIED.
IT IS SO ORDERED.
HERLIHY, Judge.