Opinion
C.A. No. 03 C-08-166 JRS.
Submitted: April 6, 2005.
Decided: May 25, 2005.
Francis J. Murphy, Esquire Murphy Spadaro Landon Wilmington, DE.
John A. Elzufon, Esquire Elzufon, Austin, Reardon, Tarlov Mondell, P.A. Wilmington, DE.
Dear Counsel:
As you know, on February 16, 2005, a jury returned a verdict totaling $2.3 million in favor of the plaintiffs in this medical negligence action. The jury awarded $2.0 million in general damages to Donna G. Caldwell ("Mrs. Caldwell") for injuries sustained as a proximate result of the admitted medical negligence of Russell A. White, M.D. ("Dr. White"), and $300,000.00 for loss of consortium to Mrs. Caldwell's husband, Mark J. Caldwell. Pending before the Court are three motions: (1) Defendant's Motion for New Trial or, In The Alternative, Remittitur; (2) Plaintiffs' Motion for the Addition of Interest to the Final Judgment; and (3) Plaintiffs' Bill of Costs and Related Motion. This is the Court's decision resolving each of the pending motions.
A. Defendant's Motion for New Trial or, In The Alternative, Remittitur
1. Facts
On August 18, 2001, Dr. White performed surgery on Mrs. Caldwell to remove her uterus, cervix and left ovary. Dr. White acknowledges that during the surgery he lacerated Mrs. Caldwell's bladder and then failed to recognize and repair the injury. As a proximate result of this admitted breach of the standard of care, Mrs. Caldwell developed a large fistula (hole) in her bladder, the repair of which ultimately required major abdominal surgery.
Mrs. Caldwell was 35 years old (soon to be 36) at the time of her hysterectom y. She had been working various jobs at General Motors, including the assembly line, for more than 15 years. She has been married to her husband since 1987 and they have one child, a son, who is a senior in high school. Mrs. Caldwell has an Associate's Degree in Computer Information Sciences, and is presently taking courses to complete her bachelor's degree.
After the hysterectomy, Mrs. Caldwell was incontinent. She was leaking urine from her vagina. She was required to use feminine pads in an effort to prevent her clothing from becoming soaked with urine. Mrs. Caldwell testified that by November, 2001, she was using approximately 30 feminine pads a day. Mrs. Caldwell's difficulties with incontinence made it extremely difficult for her to return to work. She was required to explain to her supervisors, all males, that she would need to use the rest room frequently during the course of her work shift. During this time frame, Mrs. Caldwell testified that she was using the bathroom more than 25 times per day. Mrs. Caldwell was unable to get a good night's sleep. She awakened every hour to use the restroom. This affected her husband's sleep as well.
Mrs. Caldwell consulted with a surgeon at Thomas Jefferson University Hospital to address her post-hysterectomy complications. Corrective surgery was proposed and ultimately performed on December 3, 2001. Unfortunately, when the surgeon saw the size of the fistula, he determined that he was unable to repair the fistula with the surgical approach he had planned to utilize. Mrs. Caldwell awoke from anesthesia only to be told that the surgery would need to be rescheduled.
Mrs. Caldwell was referred to a urologist at the University of Pennsylvania Hospital for further care. During the course of the urologist's first examination of Mrs. Caldwell, he placed pressure on her bladder which caused urine to "shoot" out of her vagina. The urologist gave Mrs. Caldwell a chart to document her urinary frequency. The chart confirmed that Mrs. Caldwell was using the bathroom in excess of twenty five times per day. A second surgery was proposed by the urologist and ultimately performed on December 27, 2001. Mrs. Caldwell provided compelling testimony regarding her fears not only of the surgery itself, but also of the possibility that the surgery would not correct her ongoing difficulties. After a six-hour surgery, Mrs. Caldwell awoke with catheters coming out of her vagina and her thigh. When she was discharged from the hospital, she left with two bags to collect urine from the catheters. She described the discomfort and embarrassment she experienced as people were required to assist her after surgery, including emptying her bags full of urine. The bags were removed on January 15, 2002.
Mrs. Caldwell has been told that her bladder will never be the same. It has less capacity and, consequently, Mrs. Caldwell is required to urinate frequently. She testified that she currently goes to the bathroom more than ten times per day. She gets up at least twice per night, every night, to urinate. This, of course, affects the quality of her sleep and also affects the quality of her husband's sleep. She explained that she now plans her life around her proximity to restroom facilities. She cannot leave her house without first mapping out where the closest restroom will be. When she arrives at a restaurant, she immediately looks for the restroom. When she goes to a shopping mall, she must first locate the restroom before she can begin to shop. As she explained, "I just have to base my life on going to the bathroom all the time, and it's — it's something I've got to live with the rest of my life."
Donna Caldwell trial transcript at 32.
In addition to urinary frequency, Mrs. Caldwell also experiences regular urinary tract infections. Her doctors have advised her that she will experience two to three severe bladder infections every year for the rest of her life. As Mrs. Caldwell explained:
Bladder infections are not pleasant at all. When you get a bladder infection, you have an urgency and your bladder contracts and it makes you feel as if you need to go to the bathroom. I'm in the bathroom every 15 minutes. When my bladder gets to the point where it's very painful, I double over in pain. I have to get up and go to the bathroom every 15 minutes. As the contractions [sic], due to the infection, even if you don't have to go, you have to go. You don't have a choice. It burns, it's very painful. They last for about a week and, during that time, I get no sleep. My husband gets no sleep.
Id.
Overall, Mrs. Caldwell made a compelling presentation to the jury. She was not an angry witness; she did not attack or criticize Dr. White. Nor did she overstate her injuries or the consequences of her injuries. Rather, she offered the jury a straightforward and convincing explanation of the remarkable demonition in her quality of life since the surgery performed by Dr. White. She regularly experiences pain, embarrassment and disruption of her daily activities. Her self-esteem, understandably, has been dramatically affected by her injury. She is, for all intents and purposes, tethered to the bathroom throughout the day and night, and she can expect to be so for the rest of her life.
2. The Trial
Prior to trial, Plaintiffs moved for summary judgment on the ground that Dr. White had not rebutted Plaintiffs' experts' opinion that Dr. White breached the standard of care and that the breach proximately caused Mrs. Caldwell's injuries. Dr. White acknowledged that he could not contest the motion. Accordingly, the Court, without objection, entered summary judgment on Plaintiffs' behalf with respect to liability. The only legal issue prior to trial involved the amount of special damages that could be presented to the jury. The Defendants moved in limine in this regard, and the Court granted their motion thereby limiting the amount of special damages Plaintiffs could recover. The parties then stipulated regarding the amount of special damages and removed the issue from the jury's consideration. At the start of the trial, the jury was told that their only function was to evaluate the evidence and determine a fair and reasonable amount of compensation for Mrs. Caldwell's injuries, and Mr. Caldwell's loss of consortium.
As trials go, this one presented very few issues for the Court. To counsel's credit, most issues were resolved by agreement and compromise. Indeed, the Court can discern no legal issue in the record upon which an appeal could be based and, indeed, the Defendants have raised no claims of legal error in their Motion for New Trial. The sole issue for the Court to determine, then, is whether the jury's verdict is so excessive as to "shock" the Court's conscience.
3. The Standard of Review
The standard of review on a Motion for New Trial is well settled:
In this state, a jury's verdict is presumed to be correct and just. A verdict will not be disturbed as excessive unless it is so clear as to indicate that it was the result of passion, prejudice, partiality, or corruption; or that it was manifestly the result of disregard of the evidence or applicable rules of law. Otherwise stated: A verdict should not be set aside unless it is so grossly excessive as to shock the court's conscience and sense of justice; and unless the injustice of allowing the verdict is clear. Moreover, a verdict will not be set aside because it is excessive in the mind of the court, but only where, under the attendant facts, a grossly excessive verdict is clearly manifest. Recognizing that it would be remiss in its duties to invade an area within the exclusive province of the jury, the courts will yield to the verdict of the jury where any margin for reasonable difference of opinion exists in the matter of a verdict.
Storey v. Castner, 314 A.2d. 187, 193 (Del. 1973) (citations omitted).
This court has reaffirmed this standard, and particularly the deference to be given to jury verdicts, on numerous occasions.
See e.g., Mitchell v. Haldar, 2004 Del. Super. LEXIS 255, at * 8-9; Sullivan v. Sanderson, 2002 Del. Super. LEXIS 356, * 6; Dunkle v. Prettyman, 2002 Del. Super. LEXIS 400, at * 5.
A Motion for New Trial does not entitle the movant to a "fresh" review of the evidence by the trial court. The Court's function here is not that of a fact finder. In the jury trial process, that function is reserved for the jury. Rather, on a Motion for New Trial, the Court performs a legal analysis of the jury's verdict to determine whether the verdict reveals on its face an inconsistency with the law, an improper motive on the part of the fact finder, or a gross miscarriage of justice. While this analysis necessarily requires some review of the evidence presented at trial, the Court does not and will not substitute its own impressions of the evidence, or conclusions from the evidence, for those of the jury. Thus, vel non the Court would have reached a different verdict if the matter had been tried to the bench is of no moment, and has no place in the Rule 59 analysis.
See Storey, 314 A.2d at 193 ("A verdict will not be set aside simply because it is excessive in the mind of the Court. . . .").
4. The Jury Verdict Will Stand
The Court's conscience is not shocked by the jury's verdict in this case. Mrs. Caldwell offered moving testimony regarding the extent of her pain, discomfort, embarrassment and diminished quality of life. The fact that she is required constantly to focus on a bodily function to which most people pay little mind (until the need arises) is, of itself, a legitimate basis upon which to award substantial damages. Stated bluntly, this young woman will worry for the rest of her life about whether she will make it on time to the bathroom before urinating on herself. She will also live everyday waiting for her next urinary tract infection, a painful and disruptive complication of her condition that she knows she will suffer at least three times per year for the rest of her life. While reasonable minds can differ regarding the monetary value of these damages, this Court cannot conclude that the consensus reached by the twelve minds comprising this jury is so unreasonable or excessive as to shock the Court's conscience and sense of justice. As this court has stated previously, "the Court's conscience is not easily `shocked'; it is grounded by a high regard for the jury system and a respect for the decision of a party who chooses to avail him selfof it."
The defendants have urged the Court to take judicial notice of jury verdicts in other medical negligence cases and to conlclude that the verdict in this case is so out of line with other verdicts as to render it shocking and unjust. The Court declines to engage in this exercise of comparison. As stated by Judge Herlihy in Estate of Bissell v. Taylor, 1994 Del. Super. LEXIS 451, at *20:
It is difficult, if not potentially danerous, to refer to other kinds of cases to argue a particular verdict is too high or too low. There are too many variables such as the age of the parties, length of illness, response to illness and/or treatment, [and] type of [illness],. . . . In addition, mental anguish is a proper form of compensatory damages. That is more subjective and harder to compare.See also, McCredie v. Howard, 2004 Del. Super. LEXIS 265, at *8-9 (same); Bounds v. Delmarva Power Light Co., 2004 Del. Super. LEXIS 39, at *25 ("It is inevitable that there will be dissimilar results in personal injury suits because no two juries will judge the effect of a plaintiff's injuries identically.") (citation omitted).
See Dunkle, 2002 Del. Super. LEXIS 440, at * 9, n10. Dr. White suggests in his moving papers that it would be unfair to apply this language to him because he did not "choose" to avail himself of the jury system; only the Plaintiffs did so when they filed their complaint and demanded a trial by jury. This, of course, is an accurate observation as far as it goes. It fails to take into account, however, that Dr. White did "choose" to go to trial rather than resolve the case by negotiated settlement. This was clearly his right. But, when parties elect to proceed to trial, by jury or by the court, they by necessity lose control over the outcome of the case. This risk of uncertainty, therefore, is present in every trial. And the court will not eliminate the risk by improperly substituting its judgment post-trial for the judgment of the fact finder during trial, particularly when the results of this judgment are not shocking or unjust. See Mitchell, 2004 Del. Super. LEXIS 255, at * 22-23 ("those of us involved in the judicial system cannot [and should not] make litigation risk free.") (citations omitted).
Just as the Court's conscience is not `shocked' by the jury's award for Mrs. Caldwell, it is also not `shocked' by the award to Mr. Caldwell for loss of consortium. Mr. Caldwell has lived through his wife's discomfort in very real and tangible ways. He has had to watch as his wife's self-image has nearly been destroyed. He has had to assist her with the most intimate matters of personal hygiene. He has lost countless hours of sleep. And he must share in his wife's constant concern that she will urinate on herself in public, along with the attendant limitations this legitimate concern has placed on the Caldwell's personal freedom. These elements of damages, persuasively presented by Mr. Caldwell during trial, justify the jury's award to him.
5. Conclusion
Based on the foregoing, Defendants' Motion for New Trial or, in the Alternative, Remittitur is DENIED.
B. Plaintiffs' Motion for the Addition of Interest to the Final Judgment
As indicated, prior to trial, the parties agreed to the amount of Plaintiffs' special damages, subject to Plaintiffs' exception to the Court's ruling on their Motion in Limine. After the jury returned its verdict, the Court added the special damages plus interest to the jury's verdict. Plaintiffs now seek prejudgment interest on the total award. Defendants oppose the motion only to the extent that the Plaintiffs seek a "double recovery" of prejudgment interest on the special damages.
After careful consideration of the parties' positions, the Court concludes that Plaintiffs' application improperly seeks a "double recovery" of prejudgment interest on the special damages. Accordingly, prejudgment interest is awarded as follows: As to the jury award for Mrs. Caldwell — $557,500.00; as to the jury award for Mr. Caldwell — $86,625.00.
The Court has based these amounts on the calculations set forth in Defendants' response papers.
C. Plaintiffs' Bill of Costs
Plaintiffs have sought a total $4,385.00 in prevailing party costs, which amount includes an expert witness fee and court costs. The Defendants have not filed an opposition to the motion. Accordingly, pursuant to the Court's Civil Case Management Plan, the motion is deemed unopposed. Plaintiffs are awarded $4,385.00 as recoverable prevailing party costs.