Opinion
C.A. No. 02C-04-007-ESB.
Submitted: April 16, 2004.
July 28, 2004.
Randall E. Robbins, Esquire, Ashby Geddes, Wilmington, DE.
Mason E. Turner, Jr., Esquire, Prickett Jones Elliott, P.A., Wilmington, DE.
Dear Counsel:
This is my decision on the post-trial motions filed by the parties in this medical negligence case. The plaintiffs are Deanne McCredie ("Deanne") and her husband, Ian McCredie ("Ian"). The defendants are Paul Howard, M.D. ("Dr. Howard"), and his employer, Bayside Health Association Chartered ("Bayside Health"). Dr. Howard is an otolaryngologist. Deanne was one of Dr. Howard's patients.
An otolaryngologist is a medical doctor who specializes in the diagnosis and treatment of diseases or conditions of the ear, nose and throat.
BACKGROUND
Deanne went to see Dr. Howard, complaining of swollen lymph nodes in her neck. He performed an excisional biopsy on her to determine if the lymph nodes were cancerous. During the procedure, Dr. Howard severed Deanne's spinal accessory nerve. The spinal accessory nerve supplies the trapezius muscle, a large muscle of the shoulder. Deanne is no longer able to properly use her trapezius muscle, causing her right shoulder to droop down and forward. To stabilize her shoulder, Deanne will have to undergo a scapulothoracic fusion, a surgical procedure that involves screwing her right shoulder to her rib cage.
Deanne alleged, and the jury found, that Dr. Howard (1) performed an unnecessary surgical procedure on Deanne, (2) performed the surgical procedure negligently, and (3) failed to realize that he had severed Deanne's spinal accessory nerve. The jury awarded Deanne $4,000,000 for her injuries and damages, and Ian $1,000,000 for his loss of consortium. Dr. Howard and Bayside Health have filed a Motion for Remittitur, New Trial and/or Amendment of Judgment to Require Periodic Payments. Deanne and Ian have filed an Application for Bill of Costs. The motion filed by Dr. Howard and Bayside Health is denied. The motion filed by Deanne and Ian is granted, in part, and denied, in part.
I. Remittitur or New Trial
It is well established in Delaware that "a jury's verdict is presumed to be correct and just." Storey v. Castner, 314 A.2d 187, 193 (Del. 1973), citing Lacey v. Beck, 161 A.2d 579 (Del.Super.Ct. 1960). Delaware courts traditionally afford great deference to jury verdicts. Morris v. Maternity and Gynecology Assoc., P.A., 2001 WL 1729133, at *2 (Del.Super.Ct.), citing Young v. Frase, 702 A.2d 1234, 1236 (Del. 1997). On a Motion for a New Trial, this Court will not disturb a jury verdict 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." Storey, 314 A.2d at 193, citing Riegel v. Aastad, 272 A.2d 715, 717-718 (Del. 1970). It follows that "[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 to stand is clear." Id., citing Riegel v. Aastad, 272 A.2d at 718; Bennett v. Barber, 79 A.2d 363 (Del. 1951). Furthermore, this Court will not set aside a verdict simply because the Court perceives it to be excessive. It will only set aside a verdict where, "under the attendant facts, a grossly excessive verdict is clearly manifest." Id., citing Lacey, 161 A.2d at 581. Thus, very substantial awards have been upheld where the circumstances of the injuries warrant such an award. Morris, 2001 WL at *2, citing Delaware Electric Co-Op, Inc. v. Duphily, 703 A.2d 1202, 1210-1211 (Del. 1997). The Delaware Supreme Court has further recognized "that it would be remiss in its duties to invade an area within the exclusive province of the jury where any margin for reasonable difference of opinion exists in the matter of a verdict." Storey, 314 A.2d at 193, citing Burns v. Delaware Coca-Cola Bottling Co., 224 A.2d 255, 258 (Del.Super.Ct. 1966). Moreover, remittitur should not be granted unless the award "is so out of proportion to the injuries as to shock the Court's conscience and sense of justice." Riegel, 27 A.2d at 717-718.
I. (a) Damages
The defendants argue that since, in their view, there is so little evidence of damages to support the jury's verdict, that the jury's verdict must have arisen out of the jury's dislike of Dr. Howard. This argument is unavailing. There is overwhelming evidence of damages in this case to support the jury's verdict. Deanne, who is now 46 years old, has clearly suffered a devastating injury as a result of Dr. Howard's negligence. Her right shoulder now droops down and forward. It is weak, partially dislocated, and cannot be moved normally. Put bluntly, it appears that Deanne's shoulder is falling off of her body. This condition, not surprisingly, is very painful and, as such, has severely impaired Deanne's health and, in turn, the quality of her professional and personal life. Deanne, who won a number of awards in her teaching career, is no longer is able to teach middle school students. She now works part-time at the University of Delaware, teaching and counseling college students. Deanne's wage-loss claim alone is approximately $1,000,000.
Deanne has gone to great lengths to regain her health and, unfortunately, suffered even more for her efforts. She underwent 46 sessions of physical therapy for her right shoulder over a six-month period. The physical therapy records indicate that Deanne complained of intense pain and sleep deprivation. Despite this, she was a very motivated patient who wanted to be pain-free so that she could continue to teach. Once Deanne's injury was properly diagnosed, she underwent nerve graft surgery using a nerve from her right ankle in an effort to repair her spinal accessory nerve. Unfortunately, not only was the nerve graft surgery a failure, which was not unexpected given the long delay in diagnosing her condition, she developed a painful neuroma in her right foot, which will require further surgery to correct.
When the nerve graft surgery failed, Deanne, on the advice of her neurosurgeon, underwent breast reduction surgery in an effort to lessen her pain by reducing the weight on her right shoulder. This surgery, and the recovery from it, as one might imagine, was not pleasant. Unfortunately for Deanne, the surgery, in addition to not achieving the hoped-for goal of reducing her pain, did not go well and resulted in a follow-up surgery to repair her left nipple, which had inverted. During the trial, she described the surgery as "terrible" and a "very sad" experience.
Deanne will never regain the proper use and function of her right shoulder. She now merely hopes to stabilize it and reduce the pain to a tolerable level. The last thing that she can do is to undergo scapulothoracic fusion surgery. This is a rare and complicated procedure that involves screwing her right shoulder to her rib cage to keep it from drooping. It is not an option for the fainthearted. Moreover, while Deanne can expect that this procedure will stabilize her shoulder, there is no guarantee that it will eliminate her pain. In all likelihood, Deanne faces a lifetime of reliance on strong pain medications such as methadone.
Deanne's and Ian's life together has forever been altered. They no longer sleep together because Deanne is such a poor sleeper that she does not want to keep Ian awake at night. She is also fearful that he might bump into her shoulder. Although they once enjoyed an intimate life together, they have been intimate only one time since Deanne had breast reduction surgery. They no longer vacation or walk their dogs together. Ian now does virtually all of the household chores. He also has to help Deanne to get dressed. It is certainly not the life that it once was.
The defendants argue that the size of the jury award suggests that the jury was motivated by a desire to punish them. Although the Court may infer an improper determination from the size of the verdict alone, there was no bias, prejudice or improper motive here. Burns v. Delaware Coca-Cola Bottling Co., 224 A.2d at 257. The jury's award reflects their understanding and appreciation of the magnitude of Deanne's injuries, past and future expenses, as well as her pain and suffering. The jury's verdict does not shock my conscious and sense of justice at all.
I. (b) Other Medical Negligence Cases
The defendants also argue that because the jury's verdict in this case is so much higher than in other cases, which in the defendants' view are more serious than this case, that the jury's verdict is wrong. The defendants have cited a number of medical negligence cases in an attempt to show that the jury's verdict is wrong. Rowlands v. Lai, 2000 WL 706 (Del.Super.Ct.); McCray v. Rupp, 1999 WL 743990 (Del.Super.Ct.); West v. Maxwell, 2001 WL 789654 (Del.Super.Ct.). I also reviewed some other medical negligence cases not cited by the defendants. Esry v. St. Francis Hospital, Inc., 2002 WL 558878 (Del.Super.Ct.); Morris v. Maternity and Gynecology Associates, P.A., 2001 WL 1729133 (Del.Super.Ct.). The range of jury awards in these five cases is $850,000 to $7,100.000. None of these cases stand for the proposition that the jury's verdict in this case is out of line. The cases are simply too different, both from each other and this case, to be of any help at all to the defendants' argument. Even if the cases cited by the defendants as comparable were essentially similar to this case, which they are not, the mere fact that this verdict is higher than other verdicts does not make it shocking, particularly in light of the overwhelming damages in this case. Due to the unique nature of each medical negligence case, this Court has found that:
[i]t is difficult, if not potentially dangerous, 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, type of cancer, survivability, type of treatment, etc. In addition, mental anguish is a proper form of compensatory damages. That is more subjective and harder to compare.Bissell v. Taylor, 1994 WL 555340 at *7, (Del.Super.Ct.). This reasoning is certainly applicable here. Jury verdicts will, of course, vary depending on the factual circumstances of the case and the jury's understanding and appreciation of the damages. Upon my review of the record, it is clear to me that this jury's verdict is not against the great weight of the evidence. Furthermore, there is simply no evidence at all to suggest that the jury was improperly motivated. I remain satisfied that the jury's verdict in this case is proper.
II. Periodic Payments
The defendants have asked me to apply the provisions of 18 Del. C. § 6864 to the jury's verdict. This would allow them to pay the "future damages" portion of the $5,000,000 jury award to Deanne and Ian in monthly installments over 36 years. Section 6864 is, by its own terms, optional. I have concluded that its application is not appropriate in this case. The defendants did not, before trial, notify the plaintiffs and the Court that they would, if a verdict was rendered against them, seek the application of Section 6864. Notice of the defendants' intentions is important because it would have allowed the plaintiffs to present their evidence on damages to the jury in a manner consistent with the breakdown in damages of Section 6864. It would have also allowed me, in the jury instructions, to more clearly instruct the jury on the various elements of damages and to submit to the jury a verdict sheet that properly reflected the various elements of damages. Now I am left in the position of having to, at least to some extent, somewhat arbitrarily calculate the "future damages" portion of the jury's verdict. This problem could have easily been avoided if the defendants had given timely notice of their intention to seek the application of Section 6864.
I am also not satisfied that the defendants are financially able to make the monthly payments over 36 years. The parties have only told me that the jury's verdict substantially exceeds the amount of the defendants' insurance coverage. The plaintiffs, at this point in time, have the right to seek enforcement of the full jury award. If I take this right away from the plaintiffs, then I should replace it, at the very least, with satisfactory security to ensure that the payments continue in the event that, for whatever reason, the defendants do not make them. Unfortunately, I am unable to do this. Section 6864 provides no such authority for me to do this and it does not appear that the defendants, if ordered to do this, could do so.
III. Costs
Pursuant to 10 Del. C. § 8906, expert witness fees may be taxed as costs against the unsuccessful party. Stevenson v. Henning, 268 A.2d 872 (Del. 1972); Weinberger v. UOP, Inc., 517 A.2d 653 (Del.Ch. 1986). 10 Del. C. § 8906 specifically provides the following:
The fees for witnesses testifying as experts or in the capacity of professionals in cases in the Superior Court, the Court of Common Pleas and the Court of Chancery, within this State, shall be fixed by the court in its discretion, and such fees so fixed shall be taxed as part of the costs in each case and shall be collected and paid as other witness fees are now collected and paid. However, "[w]itness fees allowed under s 8906 should be limited to time necessarily spent in attendance upon the court for the purpose of testifying." State v. 0.0673 Acres of Land, 224 A.2d 598, 602 (1966). The Delaware Supreme Court further narrowed the application of § 8906 by finding that it "does not include time spent in listening to other witnesses for `orientation,' or in consulting and advising with a party or counsel or other witness during trial." Id. Attendance includes "a reasonable time (a) traveling to and from the court house, (b) waiting in the court house for the call to the witness stand, and (c) testifying." State ex rel. State Hwy. Dep't v. Concord Heights, 238 A.2d 837, 838-839 (Del. 1968).
The defendants contest the plaintiffs' request for costs pursuant to § 8906 for six expert witnesses and three court reporter fees for deposition transcripts. Each of the plaintiffs' experts testified for only three hours or less but were required to take an entire day off because of the travel time. Sliwinski v. Duncan, 608 A.2d 730, (Table) 1992 WL 21132, at *3 (Del.), provides that
when a physician testifies as an expert, for three hours or less, a minimum witness fee should be allowed based upon a flat amount for a one-half day interruption in the physician's usual schedule. Such minimum allowance would usually be adequate to cover the transportation and waiting time for a local physician and would result in the uniform treatment of many of the witness fees submitted by physicians.
Unfortunately, there is no clear formula to determine reasonable expert fees. This Court in Dunkle v. Prettyman, Del. Super. Ct., Civ.A. 99C-10-265, Slights, J. (May 1, 2002), referred to a 1995 study of the Delaware Medico-Legal Affairs Committee and found a reasonable range of fees for court appearances for experts was between $1300 to $1800 per half day. The plaintiffs have provided a statement from the U.S. Department of Labor Bureau of Statistics medical care price index for years 1991 to 2002. Due to a price increase of approximately 30%, the Plaintiffs claim that the 1995 half day rates would be equivalent to $1800 to $2500 for half days and approximately $3600 to $5000 for entire days. Based on these guidelines, the fees sought are unreasonable.
This Court found that although reasonable and ordinary traveling expenses of an expert may be reimbursed, "costs should not be accessed [sic] at the expert's hourly testifying rate." Dunning v. Barnes, 2002 WL 31814525, at *4, (Del.Super.Ct.), citing Burns v. Scott, 1998 Del. Super. Ct. LEXIS 130. The Court in Dunning found a claim for $800.00 for four hours of traveling expenses to be excessive and reduced the amount to $250.00. Dunning, 2002 WL at *4. In Plauche v. Doctors for Emergency Services, P.A., 2002 WL 31008045 (Del.Super.Ct.), this Court refused to award costs relating to travel.
A. Expert Witnesses
1. Roger Rose, M.D.: $7,405.10
The plaintiffs request that this Court tax as costs $7,405.10 to compensate Dr. Rose. Defendants contend that this is an unreasonable amount to tax as costs. I agree. Although Dr. Rose resides in Connecticut, it is unreasonable to tax as costs an amount that is double the reasonable range of fees for court appearances for medical experts, based on the aforementioned guidelines. Further, no bill or documentation was submitted to the Court in support of this exorbitant amount. Defendants concede that a maximum of $3,000 is more than reasonable.
2. Kevin Shumrick, M.D.: $7,730.94
The plaintiffs seek $7,730.94 in experts fees to compensate Dr. Shumrick. Although Dr. Shumrick resides in Cincinnati, it is unreasonable to tax as costs against the defendants an amount that is double the range of fees for court appearances for medical experts. Furthermore, Dr. Shumrick testified for no more than one hour. Despite the small amount of time on the stand, the plaintiffs are entitled to an entire day's rate of fees based on Dr. Shumrick's time in attendance at court and traveling. Defendants once again concede that a maximum of $3,000 is more than reasonable.
3. Allan Belzberg, M.D.: $6,000
The plaintiffs seek $6,000 in expert fees to compensate Dr. Belzberg. Dr. Belzberg practices in Baltimore, M.D. He testified for approximately two hours. Following the rationale in Dunning, it is reasonable to award the plaintiffs fees equal to one half day's rate for court appearances and $250 for traveling expenses, totaling $2050 for expert fees and expenses. Dunning, 2002 WL at *4.
4. Randy Davis, M.D.: $7,750
The plaintiffs seek $7,750 in expert fees to compensate Dr. Davis. Dr. Davis traveled from the Baltimore area and testified for less than two hours. Applying Dunning, it is reasonable to award fees equal to one half day's rate for court appearances and $250 for traveling expenses, totaling $2050 for expert fees and expenses.
5. Sherif Meleka, M.D.: $4,949.90
The plaintiffs seek $4,949.90 in expert fees to compensate Dr. Meleka. Dr. Meleka testified for one hour and also traveled from the Baltimore area. The analysis is the same as paragraphs 3 and 4 above and Dr. Meleka is entitled to $2050.
6. Samuel Kursh, Ph.D.: $3,190
The plaintiffs seek $3,190 in expert fees to compensate Dr. Kursh. Dr. Kursh is not a physician, testified for less than two hours, and traveled from Wilmington. Applying Dunning, I agree with the defendants that a maximum of $1,200 is reasonable for this witness.
B. Court Reporter Fees
The plaintiffs request to be reimbursed for fees paid for the transcription of deposition testimony, pursuant to Superior Court Civil Rule 54(d). However, Rule 54(d) permits only the cost of the transcription of the Court's copy of a deposition introduced into evidence. The Rule does not permit the award of the attendance fee or the cost of an additional copy, as reflected on the bill. However, the Court in Dunning allowed an award for $3.00 per page, which would equal $60.00 for the deposition of Romain, $180.00 if the deposition of Howard was introduced into evidence, and $222.00 for the deposition of Luft if it was introduced into evidence. Dunning, 2002 WL at *3.
CONCLUSION
For the reasons set forth herein, the motion filed by the defendants is denied, and the motion filed by the plaintiffs is granted, in part, and denied, in part.
IT IS SO ORDERED.