Opinion
C.A. No. 97C-12-033
Submitted: March 30, 2000
Decided: May 4, 2000
Upon Defendant's Motion for New Trial on the Issue of Damages and In the Alternative, Remittitur. Denied in part; Granted in part.
David N. Rutt of Moore Rutt, P.A., Georgetown, Delaware for the Plaintiffs.
Norman H. Brooks, Jr. of Bouchelle Palmer, Newark, Delaware for the Defendant.
ORDER
Before the Court is Defendant's Motion for a New Trial on the Issues of Damages, or m the alternative, Motion for Remittitur. This motion is the result of a jury trial which began on Monday, February 14, 2000 and concluded on Thursday, February 17, 2000. The key issues were the comparative negligence of the Plaintiff as well as damages sustained as a result of the accident. After the four day trial, the jury returned a verdict in favor of the Plaintiffs finding that the Defendant was fully at fault for the accident and that Plaintiff, Donald Bloom, suffered damages in the amount of $512,000, and Plaintiff, Nancy Bloom, suffered damages in the amount of $45,000 for loss of consortium.
The Defendant has moved this Court, pursuant to Superior Court Civil Rule 59, to grant her a new trial. "The Superior Court has ample power to grant a new trial to prevent injustice." "Thus, on weight of the evidence motions . . . a trial judge is only permitted to set aside a jury verdict when in his judgment it is at least against the great weight of the evidence. In other words, barring exceptional circumstances, a trial judge should not set aside a jury verdict on such ground unless, on a review of all the evidence, the evidence preponderates so heavily against the jury verdict that a reasonable jury could not have reached the result.""On a motion to grant a new trial the verdict must be manifestly and palpably against the weight of the evidence or for some reason, or combination of reasons, justice would miscarry if it were allowed to stand." Both parties cite this language as the applicable test that our Supreme Court utilizes in reviewing a verdict against the weight of the evidence.
Rule 59. New trials and rearguments.
(a) Grounds. A new trial may be granted as to all or any of the parties and on all or part of the issues in an action in which there has been a trial for any reasons for which new trials have heretofore been granted in the Superior Court.
McCloskey v. McKelvey, Del. Super., 174 A.2d 691, 693 (1961).
Storey v. Camper, Del. Supr., 401 A.2d 458, 465 (1979).
McCloskey at 693.
Since the comparative negligence verdict by the jury is not being questioned by the defense, I will not delve into the factual background of the accident nor the issue of liability. It is the Defendant's contention that a verdict in this amount should shock the conscience of the Court in order to warrant a new trial or remittitur of the verdict. In addition, the Defendant is claiming that the Court made various legal errors during the trial of this matter. The Plaintiff submits that the Court should be deferential to the jury's verdict and that none of the Court's rulings were against the law in a way that prejudiced the Defendant's case. After reviewing the lengthy submissions of the parties, as well as reviewing the Court's own recollection of this trial, and for the reasons that follow, I reluctantly find that the jury's verdict does shock the conscience of the Court. I am not going to order that a new trial on the issue of damages be held, in the alternative, I find that Donald Bloom's award should be reduced from $512,000 to $307,200 and Nancy Bloom's award should be reduced from $45,000 to $10,000. This is a reduction of $239,800 of the total award and is the highest verdict that the Court feels the evidence can support.
In the case at bar, an accident occurred on December 29, 1995. A complaint was filed on December 19, 1997, as an arbitration eligible case. An arbitration was held, with a favorable verdict for the Plaintiff in the amount of $9,000. Thereafter, the Plaintiffs, believing that the award was insufficient, appealed for a de novo determination before the Superior Court. The aforementioned result of the Superior Court trial is the subject matter of this motion.
The Defendant uses the fact that this case was filed as an arbitration case in support of her claim that the verdict could not have come in for more than $100,000. The Court does not find this argument persuasive. Whether a tactical decision by counsel, or a decision mandated by the Superior Court rules, the fact that this was filed as an arbitration case does not influence the Court in any way in determining whether a new trial or remittitur is appropriate.
The gist of the Defendant's complaints revolves around the Plaintiffs' expert medical testimony not being in accord with the amount of the verdict. In support of their claims, the Plaintiffs' medical expert was Dr. DuShuttle and their chiropractic expert was Dr. Schreppler. To rebut the Plaintiffs' contentions, the Defendant called a medical expert of her own, Dr. Sopa.
At trial, Dr. DuShuttle testified via video deposition, while Dr. Schreppler appeared live. Initially. Mr. Bloom treated with Dr. Schreppler for chiropractic treatment for back pain that allegedly occurred as a result of this accident. He was later referred to Dr. DuShuttle when his symptoms did not improve. At the onset of Plaintiffs treatment with Dr. DuShuttle the diagnosis was a ligamentous muscle injury to the neck. This treatment was commenced concurrently with Mr. Bloom's chiropractic treatment with Dr. Schreppler.
Dr. DuShuttle testified that, on May 2, 1996, Mr. Bloom's condition had "plateaued." At that point in time, Dr. DuShuttle ordered an MRI for the Plaintiff. As a result of the MRI, it was determined that Mr. Bloom had a disk protrusion, a form of herniation, at the C 3-4 level. In August 1996, Dr. DuShuttle told Plaintiff that he had reached maximum improvement. Therefore, Dr. DuShuttle opined that Mr. Bloom had a permanent condition that could not be improved surgically. It was Dr. DuShuttle's belief that Mr. Bloom would require sporadic treatment and medication for the remainder of his natural life.
Dr. Schreppler testified in accord with Dr. DuShuttle. He stated that Plaintiff had a permanent impairment that could be expected to persist for the rest of his natural life and would require chiropractic treatment to alleviate the pain whenever it came to a point that was unbearable. The following restrictions were placed on Mr. Bloom by Dr. DuShuttle: not to use power tools, not to shovel, not to use vibrating equipment and to resist from doing overhead work.
These restrictions are important to the instant matter because Mr. Bloom is a contractor in the business of building and marketing colonial recreation homes. At trial, Mr. Bloom, as the parties state in their briefs, testified quite candidly that he continued to work through his treatment with Drs. DuShuttle and Schreppler, sometimes 50-60 hours a week. However, Mr. Bloom also stated that this was his family's livelihood. That if he did not work, then there would be nobody who could take over the business. The testimony was clear that Mr. Bloom is the principal employee of his business and without his active, hands-on involvement, his business would fail. Most importantly though, Plaintiff testified that although he continued to work, he was always in pain and always on medication, neither of which occurred before this accident.
The Defendant devotes a major portion of her brief describing the discrepancies in the medical experts and indicating the activities that Mr. Bloom could in fact do. This argument ignores the fact that the Plaintiff admitted on the stand that he could still do all of the activities that he could do before the accident, but now did them with pain. Mr. Bloom stated that this pain was not present before the accident. He also noted that he had to subcontract work out that he used to do himself, albeit a minimal amount. Therefore, even though Mr. Bloom continued to work, and on occasion assisted the subcontractors with their work, he did so with pain that did not exist before this accident.
Mr. Bloom also mentioned that he was restricted in some of his recreational activities, i.e., amusement park roller coasters and white water rafting, and could not assist as much in his wife's antique business as he had in the past. As a result, the jury had evidence before it to demonstrate that Mr. Bloom had undergone an extreme change in lifestyle as a result of this accident. The question before the Court now is what is the monetary value that can be placed on this lifestyle change.
The parties have extensively briefed when a jury's verdict is so disproportionate that it should shock the conscience of the Court and warrant the granting of either a new trial or remittitur and when the verdict should not be disturbed. The sum total of the cases cited by the parties is that this a case-sensitive determination that is to be undertaken by the trial judge when viewing the particular facts before him. The Court is aware that it can, in its discretion, grant a new trial solely on the issue of damages. However, this trial was continued once before it was eventually heard starting on February 14, 2000, and this trial has already taken up four days of court time in determining the issues. There is no reason to believe that another jury would decide the issues differently than the one that has already heard all of the evidence. Unfortunately, the jury's verdict demonstrates that they were overly sensitive to the Plaintiffs' plight. Therefore, the Court will deny the Defendant's Motion for a New Trial on the Issue of Damages and grant the Defendant's alternative Motion for Remittitur.
Although the Plaintiff testified that he can still do all of the activities that he could previously do before the accident, the pain that the Plaintiff now suffers when doing these activities was enough to lead the jury to award the Plaintiff a substantial recovery. Nevertheless, the record before the Court exhibits that Plaintiff had only $1,000 of out-of-pocket expenses, after the exhaustion of his PIP benefits, in addition to having to subcontract some work out that he did not have to before. The Court does not consider that these figures warrant a jury verdict in the amount of $512,000 for Plaintiff, Donald Bloom.
The Defendant has vehemently argued that the verdict is grossly disproportionate to the evidence. Conversely, there was uncontroverted testimony that the homes the Plaintiff was in the business of building and marketing sold for a fairly substantial figure. Thus, the totality of the evidence leads the Court to find that the verdict is in fact disproportionate to this evidence, and will reduce the award to Plaintiff, Donald Bloom, by $204,800. This puts the final award to Mr. Bloom more commensurate with the amount of lifestyle change that he has had to endure.
Mr. Bloom testified that he still works long days and does a majority of the work himself, but has to endure pain throughout the day. He also stated that he has to subcontract some work out that he was previously able to do himself. Moreover, Mr. Bloom stated that he has trouble sleeping and must miss work to undergo treatment for his pain on an intermittent basis. Additionally, as was noted by the Defendant in her brief, the Plaintiff was "emotional" during his testimony. While this may have caused the jury to overvalue the case, it does demonstrate that the Plaintiff had endured a drastic change of circumstances in his lifestyle. The pain endured by the Plaintiff, as well as the drastic change in his lifestyle, establish a basis for the jury to award the Plaintiff a significant recovery, but not to the extent that the jury so found. Accordingly, remittitur is appropriate.
As for Mrs. Bloom, she did testify that her husband cannot assist her as much as he used to in the past with her antique business. She also commented that their relationship, although not deteriorating, has declined slightly as a result of Mr. Bloom's problems sleeping which make him more irritable. For these reasons, an award for loss of consortium was appropriate; however, an award of $45,000 was grossly disproportionate to the amount of loss. Therefore, the Court is going to reduce the amount of the loss of consortium award from $45,000 to $10,000. This is more in tune with the actual loss that Mrs. Bloom suffered. Although her husband has not been as productive as before in their antique business, he has still been a major contributor to the business and has driven her to antique shows up and down the east coast and assists her virtually every weekend. As a result, a remittitur is also appropriate to the loss of consortium claim.
In addition, the Defendant is contending that the Court made various legal errors in the case that would warrant a new trial. First, Defendant claims that the jury was prejudiced by the testimony regarding the Plaintiffs liability coverage. At trial, Mr. Bloom testified that at the accident scene he retrieved his "insurance card" from his car after the accident. The Defendant claims that this demonstrated to the jury that Mr. Bloom had insurance coverage and this caused the jury to award a high verdict because they knew that the insurance company would pay any verdict rendered. This is just not the case.
Common sense dictates that if one was in an accident, the parties would have to exchange insurance information. Although Delaware Rules of Evidence 411 prohibits the introduction of a party's liability coverage, this is not the case that D.R.E. 411 set out to protect against. In the instant case, the Plaintiff merely stated that he had to retrieve his insurance card as a result of the accident. The Court believes that the jury was intelligent enough to understand that after an automobile accident, the individuals involved would want to exchange insurance information for practical purposes. After all, most people who drive understand that it is illegal not to have liability insurance on your vehicle. Therefore, this innocent testimony by the Plaintiff was not in error.
D.R.E. 411. Liability insurance.
Evidence that a person was or was not insured against liability is not admissible upon the issue whether he acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership or control, or bias or prejudice of a witness.
The next contention by the Defendant is that the Plaintiff testified that Dr. Sopa was the insurance company doctor. This comment by the Plaintiff was unsolicited by Plaintiffs' counsel. It was in response to a question asking how the examination of Plaintiff by Dr. Sopa was conducted. Mr. Bloom was attempting to contest the validity of Dr. Sopa's examination because of its brevity and the fact that he did not even remove his shirt during the exam. Defendant had every opportunity at trial to counteract this statement by demonstrating that Dr. Sopa's examination was in fact thorough and not just an insurance company formality. Therefore, the admission of this testimony by Plaintiff did not leave the jury with the impression that the Plaintiffs insurance company was going to foot the bill for any verdict rendered in this case because the comments went to the credibility of Dr. Sopa's examination and not to who was paying for the Mr. Bloom's treatment. Thus, the admission of this testimony was not in error, and even if this is the type of testimony is precluded by D.R.E. 411, it was harmless error that did not affect the jury's deliberations.
The next error claimed by the Defendant is the presentation of Dr. DuShuttle's videotape deposition at trial. Dr. DuShuttle's trial testimony was taken prior to trial via videotape and was to be played for the jury during the presentation of the Plaintiffs' case-in-chief at trial. At the calendar conference, the Court struck certain portions of Dr. DuShuttle's testimony regarding the cost of future medical treatment by the Plaintiff. At trial, it was the responsibility of Plaintiffs' counsel to either mute the sound of these stricken lines or to fast-forward the videotape past the excluded portions. Unfortunately, Plaintiffs' counsel was not versed in the Court's technical equipment and had difficulties muting out the redacted portions of Dr. DuShuttle's deposition. According to the Defendant, the jury heard the excluded testimony three times as a result of Plaintiffs' counsel's inability to work the Court's VCR. The Defendant submits that since the jury allegedly heard the excluded testimony three times, the jury in turn found it more credible than the Defendant's medical expert, whose testimony they only heard once.
This occurrence at trial was unfortunate, but does not rise to the level of warranting a new trial and is mainly the pitfall of parties not working out their objections to the testimony of experts whose trial testimony has been put on video prior to trial. It is the Court's recollection of these events that when Plaintiffs' counsel was attempting to mute the appropriate passages of testimony, the jury's attention, as well as the Court's attention, was directed toward Plaintiffs' counsel and his attempt to stop the tape and not at the testimony of Dr. DuShuttle and the excluded portions of his testimony. This was an innocent mistake made by Plaintiffs' counsel and defense counsel's objection at trial properly turned the jury's attention away from the video and toward the Court so the jury could not concentrate on the excluded testimony. Therefore, the playing of the redacted testimony in front of the jury was not in error and even if it could be considered in error, was harmless error because the jurors did not even realize the significance of the events that were allegedly taking place.
The Defendant next asserts that the Court was in error by striking the testimony of Ron Gray, a private investigator hired by the Defendant's insurance company to provide surveillance on the Plaintiff. Just prior to trial, the Defendant turned over a videotape of the Plaintiff doing certain activities that the Defendant claims were not in concert with the restrictions placed upon him by Dr. DuShuttle. At trial, the Defendant played the videotape for the jury and called Ron Gray, the private investigator who took the surveillance, to the stand. Mr. Gray testified to taking the video, what the video contained and the subsequent written report that he prepared. The Plaintiffs' first follow-up question on cross-examination was whether a report was prepared by Mr. Gray in unison with his taking the surveillance. Mr. Gray stated that one was, which was in contradiction to answers supplied by the defense during discovery.
During discovery, the Plaintiffs' propounded an interrogatory to the Defendant asking for any such information. The Defendants answered that no such information existed, neither a videotape, nor a report. The Court did allow the videotape to be played for the jury at trial because Mr. Bloom independently corroborated all of the activities depicted on the tape. However, the Court excluded the report and testimony of Mr. Gray because his report had not been turned over to the Plaintiffs prior to trial when it was explicitly requested.
Superior Court Rule 16 mandates that a pre-trial conference be held to dissuade any surprise at trial and limit the issues before the Court in order to expedite the forthcoming trial. As such, the Court expects both parties to be forthcoming in their discovery leading up-to-and-including the pre-trial conference. In the case at bar, the Defendant had the surveillance video of the Plaintiff almost two years prior to trial, yet did not find it relevant enough to turn over to the Plaintiffs. This is not the type of behavior that the Court expects to see during civil discovery, and is exactly the type of information that must be made known, at the latest, at the final pre-trial conference. Nonetheless, the Court allowed the videotape to be played for the jury because Mr. Bloom had already testified to all of the activities that he was showing doing on the video. The Court did not allow the report of Mr. Gray to be entered into evidence and struck Mr. Gray's testimony from the record upon the Plaintiffs objection. This was not in error. The Defendant still accomplished his purpose by having the video played for the jury. Any prejudice that resulted from having Mr. Gray's testimony stricken from the record was self-inflicted. A question asking for just this type of information was propounded to the Defendant via an interrogatory and the Defendant stated that none existed when obviously a videotape and report did exist. It was proper for the Court to exclude this testimony.
See Sup.Ct. R. 16.
Finally, the Defendant contests the Court's ruling on a Motion in Limine concerning the admission of Dr. DuShuttle's testimony regarding the cost of Plaintiffs future medical treatment. Before trial, the Court ruled that Dr. DuShuttle's testimony regarding the cost of future medical expenses of the Plaintiff would not be allowed as to a specific number because an economist was not going to testify to discount the amount to present value, but testimony would be allowed to indicate that Plaintiff would have medical treatment in the future. It is the Defendant's contention that this gave the jury room to speculate to the amount of Plaintiffs future medical expenses and come to such a grossly disproportionate verdict.
The Court does not find this to be the case. Dr. DuShuttle's testimony regarding how much Mr. Bloom would spend on future medical treatment was stricken from his deposition and not played for the jury (except for the contested portion of video that was inadvertently played by Plaintiffs' counsel). The Court merely let Dr. DuShuttle state that the Plaintiff would require treatment in the future, thus rendering this a permanent condition. Dr. DuShuttle testified that the treatment would be sporadic, on an as needed basis. His testimony did not leave any room for the jury to speculate and base their high verdict on the amount of Mr. Bloom's future medical expenses. In the Court's view, this testimony went to the pain and suffering of the Plaintiff and did not cause the jury to speculate as to the amount of future medical bills the Plaintiff would have to endure. This testimony by Dr. DuShuttle was not in error, and even if it could be considered in error, it was harmless error because there was ample evidence in the record to support a substantial award for the Plaintiff.
In conclusion, the Defendant's Motion for a New Trial on Damages is denied . The Defendant's alternative Motion for Remittitur is granted . The jury's award of $512,000 to Plaintiff, Donald Bloom, is hereby reduced to $307,200. The jury's award of $45,000 to Mrs. Bloom for loss of consortium is reduced to $10,000.
IT IS SO ORDERED.