Opinion
C.A. No. 99C-04-373-FSS
Submitted: April 8, 2002
Decided: July 29, 2002
Upon Plaintiff's Motion for Judgment As A Matter of Law Or, In The Alternative, Motion for A New Trial — DENIED.
James F. Bailey, Jr., Esquire, Bailey Wetzel, P.A., Wilmington, Delaware, Attorney for Plaintiff.
Colleen D. Shields, Esquire, Elzufon Austin Reardon Tarlov Mondell, Wilmington, Delaware, Attorney for Defendant.
MEMORANDUM OPINION
Plaintiff alleged injuries proximately caused by an automobile accident in 1997. Shortly before trial, Defendant conceded that the accident was her fault, but she went to trial over causation and damages. The jury, through a special verdict form, found that Plaintiff failed to prove by a preponderance of the evidence that the accident proximately caused injury. Accordingly, the jury did not even consider awarding damages to Plaintiff.
Plaintiff filed a timely motion for new trial, or in the alternative, additur. Plaintiff claims that she presented expert medical opinion, based on objective tests, which established causation. She further claims that Defendant failed to rebut Plaintiff's experts. Although Plaintiff does not cite Maier v. Santucci or Amalfitano v. Baker, they are touchstones for cases like this one. Maier and Amalfitano clearly stand for the proposition that unrebutted medical expert opinion supported by objective test results is conclusive. Unless a defendant presents contrary expert opinion, the jury must find causation and award at least some damages.
697 A.2d 747 (Del. 1997).
794 A.2d 575 (Del. 2001).
In this case, Plaintiff was involved in accidents in 1995, 1997 and 2000. As mentioned above, this case involves the 1997 accident. Plaintiff presented expert medical testimony based, in part, on objective test results that supported her claim.
The jury could have accepted that evidence as having established causation, and consequently would have been obligated to award damages.
Jones v. Shisler, Del. Super., C.A. No.: 98C-04-070-FSS (May 16, 2002) (discussing Hall v. Dorsey, Del. Super., No. 96C-02-053, Quillen, J. (Nov. 19, 1998)).
Defendant here, in contrast to the defendants in Maier and Amalfitano, presented medical opinion from one of Plaintiff's former treating physicians, a neurologist. He rejected the 1997 accident as a cause of injury. On cross-examination, the physician admitted he was unaware that Plaintiff had undergone an EMG that produced positive findings. The neurologist, however, reviewed the EMG report during a brief recess and testified that the EMG made no difference to his opinion, and he explained why.
The neurologist testified that he "found no evidence for nerve or root injury on [his] physical examination, so [he] would not have ordered an EMG." The doctor added, "I like to have a clinical finding that supports a diagnosis, and then the EMG will support my clinical impression." In other words, the neurologist's examination of Plaintiff did not reveal clinical symptoms even justifying an EMG in the first place.
Moreover, after reviewing the EMG, the doctor concluded that it "does not correlate to [his] clinical findings." The neurologist testified:
[I]f I for some reason had ordered this report and received this, all I would be able to say is, "Gee, you know, it's interesting that there are some abnormalities in the muscles of the back."
There really were no substantial abnormalities in the leg muscles. There is a mention of increased insertional activity in a single muscle, which does not make a diagnosis of radiculopathy.
And also, the H-reflex latencies were normal. I would expect that if someone had a S1 radiculopathy, there would be an abnormality in the H-reflex on that side, since that's a reflex that is subserved specifically by the S1 nerve root. So again, if I had these findings, I would basically discount them because I don't feel that they're useful in telling me what is going on with [Plaintiff].
The neurologist also testified that there is an element of subjectivity on an EMG examiner's part. When asked about that the neurologist testified:
Well, again, there can be, particularly when you're looking at the motor unit potentials. When you're looking at increased insertional activity as opposed to more hardcore, hard objective findings, such as fibrillation potentials, again, there is a level of subjectivity in this test.
Throughout his testimony, Plaintiff's former treating physician remained steadfast in his opinion that during his examinations of Plaintiff after the 1997 accident, Plaintiff's clinical findings were normal.
The neurologist's testimony provided a non-speculative basis for the jury to reject Plaintiff's case, including her experts' opinions and the EMG results. While Plaintiff now argues that the neurologist testified "incredulously," the jury obviously disagreed with Plaintiff's view of the neurologist's testimony and it "basically discount[ed]" the EMG for the reasons offered by the neurologist.
Plaintiff further points out that the neurologist conceded Plaintiff's subjective claims of injury. The jury, however, had ample reason to discount or disbelieve the complaints. Plaintiff did not stand up under cross examination. Most likely, she left the jury with the impression that her subjective complaints were linked to her litigation. Her symptoms' seriousness seemed to fluctuate depending on her claim of the moment. The court suspects that the jury was highly skeptical of Plaintiff's subjective complaints and any medical opinions based on them.
In any event, given Defendant's medical opinion to the contrary, the court cannot conclude that Plaintiff conclusively proved that the 1997 automobile accident proximately caused compensable injury. All-in-all, assuming that the jury exercised its prerogative to view Plaintiff's testimony with skepticism, the court concludes that the verdict was lawful and not against the great weight of the evidence.
Finally, because the jury's verdict is sustainable the court does not have to address additur. The court observes, however, that Plaintiff asks for $50,000. That amount is inconsistent with the court's approach to additur, discussed in Jones v. Shisler. If additur were called for, the court would award only a few thousand dollars, at most.
Id.
The court does not doubt Plaintiff's sincerity. But taking her three accidents and her inconsistent testimonies into account, the notion that she ever would receive a damage award for this case approaching $50,000 is unreasonably optimistic. In other words, viewing this case in a reasonable light most favorable to the verdict-winner, which is the proper standard of review, the verdict was appropriate. Even viewing the evidence in a more favorable light to Plaintiff, her claim arising from the 1997 accident is marginal.
In any event, for the foregoing reasons, Plaintiff's Motion for Judgment as a Matter of Law or, In the Alternative, Motion for a New Trial or Remittitur is DENIED.
IT IS SO ORDERED.