Summary
following the approach that costs recoverable under Rule 68 are "no more extensive than those authorized by Rule 54(d)."
Summary of this case from Rash v. MoczulskiOpinion
C.A. No. 98C-12-296-JRS
April 19, 2001
April 25, 2001
Maria R. Eskin, Esquire, Jacobs Crumplar, P.A. for Appellant
Beth H. Christman, Esquire, Casarino Christman Shalk for Appellee
Dear Counsel:
Leonard and Carol Mulford ("plaintiffs") have filed a Motion for New Trial pursuant to Delaware Superior Court Civil Rule 59. The trial resolved disputes arising from an automobile accident which occurred on June 8, 1997, at the intersection of Shipley and Silverside Roads in Wilmington. Plaintiffs were stopped at a traffic light on Shipley Road when the vehicle operated by the defendant, Warren Haas ("defendant"), failed to stop and struck the rear of plaintiffs' vehicle. Both Plaintiffs alleged that they sustained personal injuries as a result of the accident. In addition, each spouse claimed the loss of the other's consortium.
The matter was tried to a jury over three days. The defendant admitted fault for the accident leaving the issues of proximate cause and damages for the jury. On March 7, 2001, the jury returned a verdict in response to special interrogatories finding that the accident did not proximately cause injury to either Mr. or Mrs. Mulford. Plaintiffs' motion for new trial challenges this verdict on the ground that it is contrary to the great weight of the evidence adduced at trial. For the reasons that follow, the Motion for New Trial is DENIED.
The Trial
Plaintiffs presented the expert testimony of two medical experts on the issue of proximate cause. Dr. Michael Fitchett, a chiropractor, opined that both Mr. and Mrs. Mulford sustained soft tissue injuries as a result of the accident. Dr. Magdy Boulos, a neurosurgeon, testified that Mr. Mulford sustained soft tissue injuries to his lumbar spine. Both experts relied substantially upon the history provided by Mr. and/or Mrs. Mulford in reaching their diagnoses and prognoses. Plaintiffs correctly observe that this was the only medical evidence presented at trial.
Dr. Boulos treated only Mr. Mulford.
Defendants proposed to counter plaintiffs' expert presentation with the testimony of Robert Fijan, Ph.D., a biomechanical engineer. It was proffered before trial that Dr. Fijan would describe the biomechanical implications of this collision, included the forces it would have generated and their effects on the human body, and would opine that the collision could not have caused the injuries allegedly suffered by the plaintiffs. Plaintiffs moved in limine to limit Dr. Fijan's testimony. This motion is significant as much for the relief it did not seek as for the relief it did seek. Specifically, plaintiffs did not seek an order excluding Dr. Fijan's testimony in its entirety. Rather, the motion "request[ed] that Dr. Fijan be prohibited from testifying regarding the likelihood or unlikelihood that the accident caused the plaintiffs' injuries." (D.I. 47 at 5) The motion also sought to exclude Dr. Fijan's reference to certain literature which reported injuries sustained by others involved in low impact automobile accidents. Relying upon its own recent precedent, the Court granted the motion. Consequently, Dr. Fijan was permitted to testify only as to the forces generated by the impact and the effects on the human body caused by such forces. He was not permitted to refer to any published studies which discussed injuries sustained by others involved in low impact accidents.
See Kelly v. McHaddon, Del. Super., C.A. No. 98C-12-176, Slights, J. (Jan. 24, 2001) (Mem. Gp.) (holding that biomechanical engineer was not qualified to offer medical opinions).
Id.
Dr. Fijan testified that the forces generated by the impact involved in this case were minimal. He estimated the "delta-V" of defendant's vehicle to have been five miles per hour or less at the time of the accident; he estimated the "delta-V" of the plaintiffs' vehicle at approximately three miles per hour — typical walking speed for an adult. He quantified the forces exerted on the spinal structures during the accident to be less than those that would be generated by day-to-day lifting or bending activities.
At the close of the evidence, the Court read several jury instructions which emphasized the jury's role in determining the credibility of witnesses. The Court advised the jury that they could reject the testimony of a witness if it determined that the witness was not credible. (D.I. 51 at 11) The Court also instructed that the jury could disregard the testimony of an expert if it questioned "the reliability of the information supporting the expert's opinions." ( Id. at 15) The Court advised the jury that they were to determine what amount, if any, to award plaintiffs for damages proximately caused by the accident, and that damages must be proven to a degree of reasonable probability. ( Id. at 3, 20) The jury deliberated for several hours before returning a verdict for the defendant.
The Standard of Review
When considering a motion for new trial under Rule 59, the Court must appreciate that "[t]raditionally, the court's power to grant a new trial has been exercised cautiously with extreme deference to the findings of the jury." Further, "when the case involves a controverted issue of fact in which the evidence is conflicting and out of the conflict may be gathered sufficient evidence to support a verdict for either party, the issue of fact will be left severely to the jury. . . ." The Court will not upset the verdict of a jury unless "the evidence preponderates so heavily against the jury verdict that a reasonable juror could not have reached the result." The Jury's Verdict
Maier v. Santucci, Del. Super., 697 A.2d 747, 749 (1997) (citation omitted).
Storey v. Camper, Del. Supr., 401 A.2d 458, 462 (1979).
Id. at 465.
The jury's conclusion that the accident did not injure the plaintiffs indicates that the jury questioned plaintiffs' credibility. In this regard, the Court is mindful of the evidence elicited at trial which suggested that after the accident the plaintiffs acted in a manner which was inconsistent with the injuries they claimed to have suffered and, perhaps, consistent with a premature design to pursue litigation. For instance, the evidence revealed that immediately after the accident Mr. Mulford aggressively sought to have the defendant sign a written statement that he had struck the Mulford vehicle. The defendant declined to sign the statement but suggested that the parties wait for the police to arrive. Mr. Mulford declined to wait and, instead, went on to the Mulfords' original destination (dinner at a local restaurant). This, and other instances of conduct inconsistent with injury, prompted the theme of defense counsel's closing argument (to which there was no objection): "this is how one would act if injured, this is how one would act if planning to file a lawsuit." The Court is satisfied that the jury's verdict reflected a successful attack on plaintiffs' credibility. And the Court will not interfere with the jury's province with respect to credibility determinations. (D.I. 51 at 11)
See Savage v. Cooke, Del. Super. C.A. No. 94C-01-210, Quillen, J. (Oct. 27, 1995) (Letter Op.) (on a motion for new trial, the trial judge may not substitute his own assessment of a witness' credibility for the assessment of the jury).
Plaintiffs contend that the jury's verdict flies in the face of the Supreme Court's holding in Maier, supra. There, the trial court directed a verdict for plaintiff on the issue of fault but declined to set aside a jury verdict of "zero damages" on a motion for new trial. The Supreme Court reversed and held that when the evidence presented at trial conclusively demonstrated the existence of an injury and the jury nevertheless awards zero damages, the trial court abuses its discretion when it denies a motion for new trial. Maier is easily distinguishable from this case. In Maier, both the plaintiffs and defendant's experts testified that the plaintiff sustained some injury as a proximate result of the accident. Only the extent of the injury was in dispute. In this case, however, the defendant did not concede that either plaintiff had been injured even a little bit in the accident. Plaintiffs were "put to their proofs," then, on both issues before the jury: (a) whether there was an injury caused by the accident; and (b) the extent of any such injury. The jury's verdict indicates that plaintiffs did not carry their burden of proof on the first issue.
Maier v. Santucci, Del. Supr. 697 A.2d 747 (1997).
Id. at 749.
Defendant correctly observes in his response papers that the logical extension of the plaintiffs' argument is that any time a plaintiff presents expert evidence of injury, and the defendant chooses not to defend with expert(s) of his own, the plaintiff must ipso facto and ipso jure receive a damages verdict. This result would obliterate the jury's role in determining questions of credibility and improperly shift, or at least diminish, the plaintiff's burden of proof.
The Court is compelled to address another decision of the Supreme Court which was issued after the jury's verdict in this case and after the parties' post-trial submissions were filed. In Davis v. Maute, the Supreme Court concluded that the trial court erroneously admitted in evidence photographs of the vehicles involved in a low impact accident so that defense counsel could argue, without expert support, that the plaintiff could not have sustained the injuries she claimed to have suffered in the accident. Defense counsel referred to the collision throughout the trial as a "fender bender." The gravamen of the Court's concern was the absence of any evidence upon which defense counsel could predicate his argument that the minor impact of the accident could not have caused injury to the plaintiff. Using the photographs of the vehicle to support the argument was not proper because there was no evidence that minor damage to a motor vehicle was indicative of minor or no damage to the human occupants.
Davis v. Maute, Del. Supr., No. 307, 2000, Veasey, C.J. (March 30, 2001) (Mem. Op.).
Id. Mem. Op. at 5-6.
Id. Mem. Op. at 9-10.
The concerns addressed by the Supreme Court in Davis did not surface during this trial. Defendant presented the expert testimony of a biomechanical engineer to explain the correlation between a low impact accident and forces exerted upon a human body involved in such an accident. The defendant's expert relied upon the photographs of the incident vehicles and explained their relevance to his opinions. The evidentiary foundation was present, therefore, to allow defense counsel to argue that the low impact accident did not cause injury to the plaintiffs.
Finally, in upholding the jury's verdict in this case, the Court takes comfort in the fact that the cases in Delaware, including those of our highest court, which likewise have upheld "zero damages" verdicts under circumstances similar to those sub judice are now legion. Accordingly, the Court does not write on a clean slate.
See Hayes v. Bartoli, Del. Super.. C.A. No. 99C-03-299 SCD, Slights, J. (Feb. 27, 2001) (Letter Op. at 8 n. 7) (compiling sample of decisions upholding "zero damages" verdicts in admitted fault cases).
"Trials involve risk and those of us involved in the judicial system cannot make litigation risk-free." In this case, the jury's verdict was not against the great weight of the evidence. Plaintiffs' Motion for New Trial, therefore, must be DENIED.
Id.(citation omitted).
Defendant's Motion for Costs
Defendant has moved for reimbursement of costs incurred in the defense of this case. Defendant contends that the Court does not have discretion to deny costs under either Rule 54 or Rule 68. The Court disagrees, at least with respect to "prevailing party" costs under Rule 54. Both Rule 54 and Section 5101 allow for an exercise of discretion in the trial judge's determination of whether to award costs. In this case, but for the offers of judgment, the Court would be inclined to deny prevailing party costs in view of the defendant's acknowledgment of fault for the accident and the conflicting evidence on causation. The offers of judgment, however, make the award of costs in this case a more difficult issue.
See Del. Super. Ct. Civ. R. 54, 68; 10 Del. C. § 5101, 8906 ("Sections 5101 and 8906", respectively). With respect to Rule 68 costs, the defendant alleges that it properly served offers of judgment upon the plaintiffs in sufficient advance of the trial and that the offers of judgment were in an amount greater than the jury's verdict.
See Donovan v. Delaware Water Air Resources Comm'n, Del. Supr., 358 A.2d 717, 722-23 (1976) (relying upon Section 5101's use of "generally" and "for the most part", and Rule 54's reference to "unless the court otherwise directs", the Court concluded that an award of prevailing party costs was not mandatory); Welsh v. Delaware Clinical Laboratory Physicians, P.A., Del. Super., C.A. No. 98C-06-003 WLW, Witham, J. (March 19, 2001) (Mem. Op. at 10-11) (denying costs to prevailing defendants under Rule 54 and Section 5101).
See Welsh, supra (citing Moore v. Garcia, Del. Super., C.A. No. 93C-08-26, Quillen, J. (July 10, 1995) (Letter Op.) (in certain situations "it is right and just and fair for the defendant to bear the defense cost burden of the successful defense").
Unlike Rule 54, the costs provided for in Rule 68 are mandatory. Accordingly, the Court must determine if the offers of judgment were effective and, if so, determine costs as appropriate under the rule. Plaintiffs contend that the offers of judgment were not effective because they were not "individualized as to each claim." Specifically, the offers did not address the loss of consortium claim filed by both plaintiffs separately from the bodily injury claim. Consequently, according to plaintiffs, the offers did not allow the plaintiffs to accept that portion of the offer which applied to a particular claim, e.g., the loss of consortium claim, but reject the offer to the extent it applied to another aspect of the claim, e.g., the bodily injury claim.
Rule 68 provides in part: "If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer."
See Smith v. Sante Volpe, Inc., Del. Super., C.A. No. 82C-DE-5, Babiarz, J. (Jan. 19, 1992) (Mem. Op.) (holding that a single offer of judgment which purported to apply to the claims of multiple plaintiffs was not effective).
The Court does not agree with plaintiffs' characterization of the offers of judgment in this case. Unlike the offer in Smith, which offered a single sum to many plaintiffs, the offers in this case were directed separately to Mr. and Mrs. Mulford. The offers state that the defendant "permits judgment to be entered against him . . . in the total amount of $1000.00 . . ." for Mrs. Mulford' s claims and "in the total amount of $2500.00" for Mr. Mulford's claims. The two plaintiffs' claims were separated in the offers of judgment simply by virtue of the fact that two separate offers of judgment were served. Although the offers did not separate the bodily injury claim from the loss of consortium claim, the Court is not aware of any requirement explicit or implicit in Rule 68 that the proponent of an offer judgment separate out each individual legal claim for which he is willing to offer money in compromise of litigation. The Court is unwilling to endorse such a requirement here. Indeed, to do so would probably turn the practice of utilizing offers of judgment on its head as defendants would be forced to value damages on multiple individual claims for relief in contexts which do not easily allow for such a compartmentalized approach to case valuation, e.g., breach of contract, misappropriation of trade secrets, and promissory estoppel arising from the same conduct.
The Court can discern no reason why a compilation of such claims would be excepted from the interpretation of Rule 68 which the plaintiffs urge upon the Court here. Under the plaintiffs' approach to Rule 68, offers of judgment would have to provide a breakdown of the offer to correspond to each claim or count of the complaint.
Having concluded that Rule 68 costs are mandatory, and that the offers of judgment in this case were effective, the Court turns now to the amount of costs recoverable in this case. of course, Rule 68 offers no interpretive guidance as to what are or are not recoverable "costs." Federal courts, interpreting the identical Federal Rule 68, have concluded that the "costs" contemplated by Rule 68 are no more extensive than those authorized by Rule 54(d). This approach is consistent with the jurisprudence of this Court, and will be followed by the Court today.
See e.g. Thomas v. Caudill, D. Md., 150 F.R.D. 147 (1993).
See Beiger v. Shreeve, Del. Super., C.A. No. 95C-06-104 RRC, Cooch, J. (May 7, 1997) (Order at 3).
The Court will award Dr. Fijan's trial appearance costs of $562.50. The costs are reasonable and recoverable under Rule 54. The Court will not allow costs for the discovery deposition of Dr. Fijan as it was not presented as evidence at trial. Likewise, the Court will not award costs for the transcript of Dr. Bose's video trial deposition since the video was played for the jury at trial and the transcription of the testimony was duplicative. Conclusion
Nygaard v. Lucchesi, Del. Super., 654 A.2d 410, 413 (1994).
See Beiger v. Shreeve, Del. Super., C.A. No. 95C-06-104 RRC, Cooch, J. (April 15, 1997) (Mem. Op. at 7) (citations omitted).
For the foregoing reasons, plaintiffs' Motion for New Trial is DENIED. Defendant's Motion for Costs is GRANTED in the amount of $562.50.
IT IS SO ORDERED.