Opinion
C.A. No. 08C-07-018 JTV.
Submitted: July 12, 2010.
Decided: October 6, 2010.
Upon Plaintiffs' Motion for a New Trial.
Denied.
Defendant's Motion for Additur.
Granted.
Scott E. Chambers, Esquire of Schmittinger and Rodriguez, P.A., Dover, Delaware; attorneys for Plaintiffs.
Brian T. McNelis, Esquire of Young McNelis, Dover, Delaware; attorneys for Defendant.
ORDER
The issue before the Court is whether to grant Plaintiff's Rule 59 Motion for a New Trial or, as Defendant suggests, order an additur to modify the jury's zero-dollar verdict.
FACTS
Albert Littleton, III ("Plaintiff") and Donald Ironside ("Defendant") were involved in a traffic accident on November 3, 2006. Plaintiff subsequently brought a personal injury action in which he sought compensation for injuries to his neck, back and shoulder. The parties stipulated that Defendant negligently caused the accident. Thus, the issue for trial was whether and to what extent Plaintiff had been injured by the accident. Each party called its own expert witnesses, and a familiar "battle of the experts" ensued.
The Plaintiff presented expert testimony from doctors Rowe, Lieberman, and Camp. Dr. Camp had been Plaintiff's physician for several years before the accident, and had treated Plaintiff for a pre-existing shoulder injury. Doctors Rowe and Lieberman only treated the Plaintiff after the accident. Under cross-examination, both Rowe and Lieberman conceded that Plaintiff had failed to inform them of the pre-existing shoulder injury. Nonetheless, both doctors held to their opinion that the accident had caused Plaintiff to suffer injuries, including a cervical sprain.
The Defendant offered expert medical testimony from Dr. Gordon. Dr. Gordon disagreed with Plaintiff's experts on some points, but he agreed with them that the accident caused Plaintiff to suffer a cervical sprain.
At the conclusion of the three-day trial, the jury was asked to decide "what amount of damages" Plaintiff is entitled to recover for injuries caused by the traffic accident. The jury returned a verdict in favor of the Plaintiff for a sum of $0. Plaintiff moved for a new trial on the ground that the verdict is manifestly and palpably against the weight of the evidence. In his responsive motion, Defendant encourages the Court to grant additur rather than a new trial if the verdict must be modified.
STANDARD OF REVIEW
A jury's verdict is presumed correct. It will not be set aside unless it is manifestly against the great weight of the evidence or so grossly out of proportion to the injuries suffered that it "shocks the conscience." The Court will only set aside a verdict as insufficient if it is clear that the verdict was the result of passion, prejudice, partiality, corruption, or if it is clear that the jury disregarded the evidence or law. A jury may accept a witness's testimony in whole or in part, and it may accept the testimony of one expert over that of another. However, if the Court finds the verdict to be grossly disproportionate to the evidence presented, it may correct the error with additur or order a new trial.
Lacey v. Beck, 161 A.2d 579, 580 (Del. Super. 1960).
Gannett Co., Inc. V. Re, 496 A.2d 553, 558
Young v. Franse, 702 A.2d 715, 717-18 (Del. 1970).
Pryor v. State, 453 A.2d 98, 100 (Del. 1982).
Del. Tax Ctr. V. Fox, 401 A.2d 97, 100 (Del. Super. 1979).
Brandshaw v. Trover, 1999 WL 1427770, at *1 (Del. Super. 1999).
DISCUSSION
The jury's zero dollar award cannot be sustained. In Maier v. Santucci, the Delaware Supreme Court found that a jury award of zero dollars was inadequate as a matter of law when liability was established and there was un-controverted medical evidence of the existence of an injury. In this case, the parties have already stipulated that the Defendant negligently caused the traffic accident. Additionally, each of the many expert witnesses in this case agreed that Plaintiff suffered a cervical sprain as a result of the accident. Thus, under Maier, the jury's verdict is inadequate as a matter of law.Defendant argues that the verdict should be sustained because it represents the jury's determination that the Plaintiff is simply not a trustworthy claimant. It is certainly possible that the jury punished Plaintiff for his dubious failure to inform several of his medical experts about his pre-existing (shoulder) injury, which is in the same general area of his body for which he sought damages in this case. Of course, the jury is the sole judge of credibility. As such, it may accept a witness's testimony in whole or in part. However, the jury's discretion is not absolute. It may not ignore un-controverted facts against which no inference lies, and it may not deny all recovery when the record clearly demonstrates that the defendant negligently inflicted an injury upon the plaintiff. As previously noted, there was substantial expert testimony that Plaintiff suffered a cervical sprain. That testimony was un-controverted, and thus there was no basis for the jury to ignore Plaintiff's injury. Therefore, unfortunately, the jury's verdict cannot stand.
Pryor v. State, 453 A.2d 98, 100 (Del. 1982).
Haas v. Pendleton, 272 A.2d 109, 110 (1970).
Maier, at 749; McCulley v. Mulligan, 1996 WL 280851, at *2 (Del. Super. Apr. 25, 1996) (motion for new trial on damages was granted where it was undisputed that McCulley sustained a concussion and laceration as a result of defendant negligence); Nickerson v. Price, 1993 WL 1889450 at *2 (Del. Super. Apr. 20, 1993) (Court granted a new trial where defendant was negligent and testimony established the plaintiff suffered injury even though defendant presented conflicting testimony as to the injury).
However, at this stage, the Court declines to order a new trial. A new trial would burden the parties with additional costs and would delay Plaintiff's compensation by at least several months. Instead, the Court will modify the verdict by ordering an additur that increases the damages to the minimum amount the record will sustain. In this case, the record shows that Plaintiff's cervical sprain caused him to incur substantial costs, including lost wages, medical expenses, and physical pain and suffering. The Court finds that $15,000 is the minimum recovery that the record will support. The Defendant now has the option of either accepting the additur or submitting to a new trial on the issue of damages.
Reid v. Hindt, 976 A.2d 125, 131 (Del. 2009).
Carney v. Preston, 683 A.2d 47, 50 (Del. Super. Ct. 1996).
CONCLUSION
Plaintiff's motion for a new trial is denied. The Defendant has the option of accepting the Court's $15,000 additur or submitting to a new trial on the issue of damages. If Plaintiff does not accept the additur in thirty days from the date of this Order by letter to the Court, the Court will order a new trial.IT IS SO ORDERED.