Opinion
Civil Action No. 05C-10-202-JOH.
Submitted: March 25, 2008.
Decided: April 9, 2008.
Upon Motion of Plaintiff for New Trial — GRANTED — If Additur Not Accepted.
Kevin G. Healy, Esquire, of Morris James LLC, Newark, Delaware, attorney for plaintiff.
Thomas P. Leff, Esquire, of Casarino Christman Shalk, Wilmington, Delaware, attorney for defendant.
MEMORANDUM OPINION
Plaintiff Shirley Junginger has moved for a new trial complaining that the jury's verdict finding defendant Rebecca Betts negligently caused the accident yet awarding her no damages is against the great weight of the evidence. Basically, her contention is that there were objective signs of injury and a zero damage award is inconsistent with that uncontroverted evidence. The verdict was returned March 4, 2008.
An examination of the record does indicate a few, objective signs of injury. The Court, however, does not find there is a need to retry the case, but will instead award additur in the amount of $13,500.00.
Factual Background
Junginger was backing out of a parking space in the Community Plaza Shopping Center when Betts, driving a van perpendicular to her, stuck Junginger's car. The accident was on September 4, 2004. Junginger described the impact as "incredible," and said she was "tossed" to her left side. Her head, she said, hit the passenger window. At the scene, she testified she could not straighten her neck and head. She was taken to Christiana Hospital. There she described the impact as "mild" (according to the hospital records).
Betts was never quite sure she even hit Junginger's car. She testified she did not hear anything. There was, she said further, no jolting or jarring, but since Junginger did not move her car, she assumed something happened. Betts' daughter who was riding with her sensed her mother braking but nothing else.
Photos of the two vehicles showed no damage to Betts' van but several dents to Junginger's car. One long dent higher up, however, does not correspond to anything on Betts' van.
Junginger had mild pain symptoms at Christiana and was released. She began treatment for her symptoms on September 7, 2004 with Dr. George Buhatiuk. He had treated her in 1998-2000 for a prior accident wherein she had similar problems in some of the same areas: neck and back. Junginger testified these problems resolved, however, prior to the 2004 accident.
Junginger treated with Dr. Buhatiuk from September 7th through May 2005. She had a treatment visit in August that year but did not see him again until a month before the trial. On her first visit, the doctor noted positive foreman's compression and Spurling's tests. These, he testified, are objective findings. But starting with her visit later in September 2004, she had no such positive tests until her visit in 2008. There were times in March, April, and May that he reported she was "guarded" in turning and looking over left shoulder.
Dr. Buhatiuk reported that Junginger told him she had trouble sleeping and that at times when she had slept on her left side, she would wake up with her arm feeling numb or tingly. He also testified she was 90% improved as of February 2005 and many of her symptoms, had resolved within two to four weeks of the accident. The only lingering problem, according to the doctor, was mild upper back pain. Since this was present in 2008, he opined it was permanent. Junginger had exhausted her $15,000 PIP coverage and owed Dr. Buhatiuk $6,780.
Dr. Buhatiuk has prescribed some therapy for her among other treatment modalities. She was restricted to lifting no more than twenty to twenty-five pounds. Her job at Joy Cleaners, however, meant she had to pick clothes off an overhead rack. At trial, she said she has upper back pain under the left shoulder blade and neck pain. She takes Advil for flare ups in her pain. She favors her left side. But she was unable to say other activities had been impaired by the accident.
A significant part of this two day trial involved whether an impact had occurred, who was at fault or whether both parties were at fault. The jury determined that: (1) Betts was negligent, (2) her negligence proximately caused the accident, and (3) her negligence proximately caused injury to Junginger. It did not award damages to Junginger, however, even though it was instructed to award her damages.
Applicable Standard
When considering a motion for new trial which attacks a jury's verdict, there are several key principles the Court must follow. Enormous deference is given to jury verdicts. A jury's verdict is assumed to be correct. To be set aside, a jury's verdict must be against the great weight of the evidence. The Court will not set aside a verdict unless it is clear the jury disregarded the evidence or the rules of law.
Young v. Frase, 702 A.2d 1234, 1236 (Del. 1997).
Lacey v. Beck, 161 A.2d 579, 580 (Del. 1960).
Burgos v. Hickock, 695 A.2d 1141, 1145 (Del. 1997).
Riegel v. Aastad, 272 A.2d 715, 717-18 (Del. 1970).
Discussion
Junginger appropriately cites Amalfitano v. Baker, in support of her argument that where there are uncontroverted objective findings of injury, a jury must award damages. In this case there is a mixture of a lot of subjective complaints with occasional objective and uncontroverted medical tests. Those tests are foreman's compression and Spurling's. There is mention in March-May 2005, of guarding, which is a report of pain when Junginger turned her head to the left to look over her shoulder. But there is no concurrent physician report of spasm. And when this guarding was noted, the two tests just mentioned either were not done, or they were negative. They were negative, in fact, from September 9, 2004 until next reported positive in February 2008. It is less than clear, therefore, whether, the "guarding" which Dr. Buhatiuk noted is an "objective" finding in this case.Many of Junginger's complaints and those reported to her doctor were subjective. This is key for several reasons. The doctor based his opinions about her injuries on subjective complaints, most of which, resolved in late September or early October 2004 — just a few weeks after the accident. Respectfully, Junginger was not the most convincing plaintiff. Counsel handling personal injury litigation and judges know how much personal injury cases can rise and fall on the plaintiff's credibility. Further, a jury is entitled to reject a physician's testimony if it is based on a patient's subjective complaints and that patient's credibility is suspect.
Breeding v. Contractors-One-Inc., 549 A.2d 1102, 1104 (Del. 1988).
There is a strong hint here that the jury's zero damages award reflects its problem with Junginger's credibility; perhaps exaggerating the impact, the pain, its pervasiveness in so many areas of the body and its degree. This is speculative, of course, but it is a likely explanation considering the brief period many of her injuries lasted and negative results on two objective tests starting September 9, 2004.
In earlier decisions, this Court has made these observations:
1. ". . . this Court has noted before the disconnect which juries have in low impact . . . accident cases and claims of significant injury (footnote omitted)." Roberts v. Cisneros, 1998 WL 737993 (Del.Super.) at *2.
2. "Low or minimum impact, soft tissue (now colloquially labeled in the bar as LIST or MIST) cases continue to vex the Court, as well as counsel, litigants and juries. This case is no different. It joins the legions of cases, and now post-trial opinions, where there is a very low or zero verdict. There is no discernible, single thread running through all these verdicts nor how this Court has dealt with them. Indeed, even the Supreme Court has struggled with cases such as this, as illustrated in two diametrically opposed and irreconcilable opinions. A comparison of Szewczyk v. Doubet, 354 A.2d 426 (Del. 1976), with Maier v. Santucci, 697 A.2d 747 (Del. 1997), shows this point. A plaintiff's credibility and demeanor are very, if not the most, significant factors, ones uniquely observed by a trial judge." Garrett v. Virges, 2000 WL 140878 (Del.Super.) at *3.
The difficulty remains that there were "positive" results on two objective medical tests and uncontroverted medical records from Christiana on September 4th and Dr. Buhatiuk that Junginger suffered injury. This Court has the authority to award additur, and even do so where there has been zero damages awarded. In the Court's opinion the amount of that additur must account for three factors: pain and suffering, medical bills above PIP, and the minimal nature of Junginger's injuries (a conclusion supported by the jury's zero damage award). Dr. Buhatiuk testified that all of his treatment was reasonable and necessary and he believed he was appropriately treating what he found and/or was reported to him. Accounting for all of these factors, therefore, the Court will enter an additur award of $13,500.
Carney v. Preston, 683 A.2d 47 (Del.Super. 1996).
Hall v. Dorsey, 1998 WL 960774 (Del.Super.); Reid v. Hindt, 2008 WL 795306 (Del.Super.).
Accordingly, a new trial on damages will be ordered unless Betts by written filing accepts additur of $13,500 within ten (10) days from the date of this opinion. If no action is taken by Betts, Junginger's motion for a new trial on the issues of damages only will be granted. If Betts accepts the additur, judgment for her will be set aside and a judgment will be entered in favor of Junginger in the amount of $13,500.
IT IS SO ORDERED.