Opinion
C.A. No. 99C-10-265 JRS.
Date Submitted: April 24, 2002.
Date Decided: May 1, 2002.
On Plaintiff's Motion for New Trial or Additur — DENIED.
On Defendant's Motion for Costs — GRANTED in part.
Robert Jacobs, Esquire Jacobs Crumplar, P.A., Wilmington, DE.
Donald Ransom, Esquire Casarino Christman Shalk, Wilmington, DE.
Dear Counsel:
This personal injury action was tried to a jury from April 10 through April 12, 2002. The jury returned a verdict in favor of the plaintiff and awarded $10,000 in damages. Plaintiff has moved for a new trial or for additur on the grounds that the damages award is inadequate and its insufficiency should shock the conscience of the Court. Prior to trial, defendant served an offer of judgment on the plaintiff in which he consented to have judgment entered against him in the amount of $20,000. Having faired better at trial than his pretrial offer of judgment, defendant now moves for costs. To follow is the Court's decision on both motions.
Super.Ct.Civ.R. 68 ("Rule 68").
I. The Facts
On October 31, 1997, plaintiff, Jessica Dunkle, was traveling through a road construction site on Delaware Route 72 when her vehicle was struck from behind by the vehicle operated by the defendant, Craig Prettyman. Mr. Prettyman alleged that he was distracted momentarily just prior to the impact by a jackhammer which appeared to be discharging debris into his lane of travel. When he looked back to the roadway he noticed that Ms. Dunkle's vehicle had stopped suddenly in front of him. He was unable to stop his vehicle before striking hers. Ms. Dunkle was 24 years old at the time of the accident.
Shortly after the accident, Ms. Dunkle began to experience pain in the regions surrounding her cervical and lumbar spine. She sought treatment from her family physician, a chiropractor and, ultimately, from a physical medicine and rehabilitation specialist, Dr. Frank Falco. As the weeks passed after the accident, the pain in Ms. Dunkle's cervical spine subsided but the pain in her lumbar spine persisted and eventually worsened.
Ms. Dunkle continued to work as a gymnastics instructor for several months after the accident. She also worked evenings on a part-time basis as a waitress. As the pain worsened, she eventually quit her jobs and focused on completing her college studies. At the time of trial, she was working full time as a high school Spanish teacher.
Ms. Dunkle told the jury that her activities of daily living had been impaired significantly by the injuries she sustained in the accident. She enjoyed many recreational activities prior to the accident including jogging, dancing, gymnastics and roller blading. She also was able to perform chores around the house without difficulty. After the accident, her ability to engage in these activities was limited by general soreness and occasionally by sharp pain. Her father and her fiancé corroborated this testimony. She presented more than $8000 in post-PIP medical expenses and approximately $6500 in lost wages. The medical expenses included costs for invasive procedures performed by Dr. Falco, including spinal injections and discography.
Significantly, the evidence demonstrated that Ms. Dunkle had sustained injuries to her spinal region prior to the accident. Indeed, the medical records revealed that she was under the care of a chiropractor for back and neck pain only weeks before the accident. She reported that carrying her backpack to and from class (at the time she was still in college) worsened her pain. The evidence also revealed that Ms. Dunkle did not report her prior treatment for this injury to her primary treating physician, Dr. Falco. Indeed, Dr. Falco learned of her prior treatment for the first time just moments before his trial deposition. Defense counsel suggested that Ms. Dunkle's lack of complete candor with her own treating physicians raised questions about her credibility.
Ms. Dunkle's credibility took on greater significance after the testimony of the defendant's medical expert, Dr. Richard Katz. Dr. Katz, a neurologist, opined that Ms. Dunkle presented to him with no objective signs of injury; only her subjective complaints of pain could support a diagnosis of injury. Based on his review of her medical history, he also opined that the accident-related injuries were minor and that her ongoing complaints of pain were more likely caused by a long-standing and progressive soft tissue injury to the muscles and joints surrounding her spine which began years before this accident.
The jury deliberated for several hours and, as stated, ultimately returned a verdict in favor of Ms. Dunkle for $10,000.
II. Discussion A. 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." Stated differently, "[a] jury's award is presumed correct and just unless so grossly out of proportion to the injuries suffered as to shock the Court's conscience and sense of justice."
Super.Ct.Civ.R. 59.
Maier v. Santucci, 697 A.2d 747, 749 (Del.Super.Ct. 1997) (citation omitted).
Storey v. Camper, 401 A.2d 458, 462 (Del. 1979).
Id. at 465.
Porter v. Murphy, Del. Super., C.A. No. 99C-08-258, Cooch, R.J. (Oct. 2, 2001) (Mem. Op. at 3-4).
B. The Court Will Not Disturb the Jury's Verdict
The Court's conscience is not shocked by the jury's verdict in this case. The jury heard conflicting evidence with respect to damages and, by its verdict, announced that it believed the defendant's expert over the plaintiff's expert. Weighing conflicting testimony is within the sole province of the jury. Moreover, legitimate questions were raised regarding the plaintiff's credibility or, at the very least, the extent to which she provided a complete medical picture to her treating physician. We instruct our juries that they may consider the reliability of the information upon which an expert bases his opinions when determining what weight to give his testimony. Finally, there was credible evidence of a preexisting injury which could explain much of Ms. Dunkle's current disability. Although it is impossible to know which, if any, of these factors animated the jury's deliberations, the Court's function here is not to ascribe a motive or rationale for the verdict. Rather, the Court must simply determine if the jury returned a verdict which is contrary to the great weight of the evidence or if, by its verdict, the jury otherwise shocked the conscience of the Court. This jury did neither."One must wonder why an institution so soundly and regularly criticized on motions for new trial is so widely demanded upon initiation of a lawsuit." The rhetorical question posed by Judge Babiarz in Esry exposes the fallacy which frequently surfaces in motions for new trial when the movant's showcase argument attacks the adequacy of the jury verdict. Indeed, when considering a motion for new trial, this Court is ever-mindful of the substantial effort that is expended to accommodate a litigant's demand for a trial by jury. First and foremost, fourteen citizens of this state are asked to interrupt their lives to consider evidence and resolve a dispute that has nothing to do with them. Then, court personnel are assigned to orient, accommodate, feed, escort and protect the jury. And finally, the Court and counsel exert substantial energy to create a set of suitable voir dire questions at the outset of the trial, and suitable jury instructions at the close of the trial.
Esry v. St. Francis Hospital, Inc., Del. Super., C.A. No. 99C-02-209, Babiarz, J. (April 15, 2002) (Mem. Op. at 2).
While certainly not dispositive of the issue, the strict standard of review by which a motion for new trial is measured no doubt recognizes that it is the parties themselves who elect to present their claims to a jury of their peers and, by so doing, it is the parties who activate the machinery which is our jury trial system. When the parties activate the jury trial system, they activate the risk inherent in the system. And, of course, trials by jury implicate the most risky element of dispute resolution — uncertainty.
Ms. Dunkle's complaint demanded a trial by jury. She got one, and a fair one at that. Now, unhappy with the result, she asks the Court to supplant the jury or, at least, to ignore the product of its deliberative efforts. The Court will not do so in this, or any other case where the trial was fair and the resulting verdict is not "shocking". "[T]hose of us involved in the judicial system cannot [and should not] make litigation risk-free." Plaintiff's motion for new trial or additur is DENIED.
Remarkably, this judge has seen a motion for new trial following every jury verdict he has taken over the last 17 months which resolved claims for personal injuries involving disputed damages. In recognition of the deference to be given jury verdicts, the Court has set aside the jury's verdict in only one instance. See Bateman v. Lada, Del. Super., C.A. No. 99C-07-285, Slights, J. (July 2, 2001) (Letter Op.) There, the verdict clearly was contrary to the law of proximate cause and the uncontested evidence. Id. at 10-11. Otherwise, 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 himself of it. Compare Hayes v. Bartoli, Del. Super; C.A. No. 99C-03-299, Slights, J. (Feb. 7, 2001) (Letter Op.) (upholding "zero verdict" in soft tissue injury case) with Hovis v. Hughes, Del. Super., C.A. No. 99C-01-293, Slights, J. (Dec. 28, 2001) (Letter Op.) (upholding $80,000 verdict in soft tissue injury case).
Savage, supra, Letter Op. at 3.
C. The Motion for Costs
This Court previously has determined that the award of costs under Rule 68 is mandatory. And, unlike Mulford, there is no contention here that the Offer of Judgment was ineffective. Accordingly, on this motion, the Court must simply determine the amount of costs recoverable. In this regard, "Rule 68 offers no interpretive guidance as to what are or are not recoverable `costs.'"
Mulford v. Haas, Del. Super., C.A. No. 98C-12-296, Slights, J. (Apr. 25, 2001) (Letter Op. at 11).
Id. at 12-13.
Defendant has requested reimbursement of costs in the amount of $3375. The amount is broken down as follows: $375 for "court costs"; $2500 for Dr. Katz' trial appearance fee; and $500 for Dr. Katz' travel time. The request for court costs can be addressed summarily; they are recoverable. Having said that, defendant has not broken down his court costs. Before plaintiff will be required to reimburse these costs, she may request that defendant itemize them. If disputes remain, the Court will address them.
Del. C. Ann. tit. 10 Del. C. § 5101 (1999); Super.Ct.Civ.R. 54(e).
The award of costs for expert witness testimony is committed to the sound discretion of the trial court. When determining reasonable reimbursement for expert costs, the Court must "recognize that a significant disruption to a physician's practice occurs when a physician is called to testify as an expert witness and that such testimony is important to the Court since it assists the trier of fact and serves a significant public interest." There is no fixed formula to determine reasonable expert fees. Nevertheless, this Court has referred to studies of the Delaware Medico-Legal Affairs Committee for guidance. The most recent work of this committee of which the Court is aware is the 1995 study. This study indicates that a reasonable range of fees for court appearances for medical experts is $1300 to $1800 per half day. In Clough, the Court adjusted this figure to make it current in accordance with the medical care price index. This approach has been followed in other cases as well.
See Donovan v. Delaware Water Air Resources Com'n, 358 A.2d 717, 723 (Del. 1976); Del. C. Ann. tit. 10 Del. C. § 8906 (1999).
Sliwinski v. Duncan, Del. Supr., No. 261, 1991, Christie, C. J. (June 15, 1992) (ORDER at 7).
Id.
Clough v. Walmart Stores, Inc., Del. Super., C.A. No. 94C-05-030, Ridgely, P.J. (Sept. 9, 1997) (Letter Op. at 1).
E.g. Lurch v. Roberts, Del. Super., C.A. No. 96C-06-004, Witham, J. (Jan. 25, 2001) (ORDER at 3).
In Slawinski, the Court determined that "when a physician testifies as an expert, for three hours or less, a minimum witness fee should be allowed based on a flat fee should be allowed based upon a flat amount for a one-half day interruption in the physician's schedule." And, as stated, the most recent studies of the Medico-Legal Affairs Committee indicates that a flat fee of between $1300 to $1800 per half day is appropriate.
Sliwinski, supra (ORDER at 7).
It appears that Dr. Katz has requested a "flat fee" for his trial appearance. Defendant has not, however, provided any information with respect to the duration of Dr. Katz' trial testimony or his travel time to the courthouse. The Court's best recollection is that Dr. Katz' trial testimony lasted no more than an hour and a half and that he traveled from the greater Philadelphia area. In total, the time amounted to no more than three hours. In view of the fact that Dr. Katz consumed nearly if not all of three hours, and considering his level of training and expertise, the Court will award the defendant the highest end of the recommended range, $1800. While normally the Court would be willing to adjust this figure to reflect the current medical care price index, the Court has not been supplied with up-to-date information with respect to the index and, therefore, the adjustment will not be made in this case.
See Sweren v. Sheeny, Del. Super., C.A. No. 99C-10-249, Slights, J. (Dec. 12, 2001) (Letter Op. at 4).
Based on the foregoing, the Court awards costs to the defendant pursuant to Rule 68 as follows: $375 for court costs (to be itemized by defendant) and $1800 for expert witness fees.
IT IS SO ORDERED.