Summary
denying motion for new trial following jury verdict of zero damages - despite defendant's expert's agreement that plaintiff suffered soft tissue injury - where "the credibility of the Plaintiff was very much at issue," in part because plaintiff was a "symptom exaggerator"
Summary of this case from Adams v. SheldonOpinion
C.A. No.: 97C-09-224 RRC.
Submitted: June 29, 1999.
Decided: September 24, 1999.
On Plaintiffs Motion for a New Trial. DENIED.
On Defendant's Motion for Costs. DENIED.
Joseph B. Green, Esquire; Green, Green, Godowsky McFadden Attorney for Plaintiff
Eric D. Boyle, Esquire; Chrissinger Baumberger, P.A. Attorney for Defendant
Dear Counsel:
I. Plaintiffs Motion for a New Trial
Plaintiff filed a Motion for a New Trial on June 18, 1999 claiming that the jury verdict of $0 damages is against the great weight of the evidence. Defendant opposes the motion. For the reasons set forth herein, Plaintiffs Motion for a New Trial is DENIED.
On June 15, 1999 the jury found the Defendant not liable for the September 27, 1995 automobile accident. In a motion for a new trial, the court must weigh the evidence in order to determine if the verdict was one which might have reasonably been reached. Furthermore, the verdict must be manifestly and palpably against the great weight of the evidence or for some reason, or a combination of reasons, justice would miscarry if it were allowed to stand. Where the evidence results in a verdict that is totally without legal support, justice requires a new trial.
McCloskey v. McKelvey, Del. Super., 174 A.2d 691 (1961).
Peters v. Gelb, Del. Supr., 314 A.2d 901 (1973).
The legal issue in this Motion is whether the verdict can be sustained in spite of Dr. Fink's testimony (the defendant's expert) that the Employee suffered a soft tissue injury. Here, the credibility of the Plaintiff was very much at issue. Plaintiff made several inconsistent statements which could have supported the jury's conclusion that Plaintiff was not telling the truth and her complaints were not credible. The jury heard testimony from the Plaintiff that she had complaints of pain in her back and arms but had denied any previous injury when asked by her physicians. Specifically, Plaintiff gave a different account of the accident to each of the health care providers and she admitted to a prior back injury which had not been disclosed either to Dr. Fink or to Dr. Beneck. Furthermore, the evidence regarding Plaintiff's soft tissue injuries came solely from her subjective complaints and it was based on her complaints that Dr. Fink came to his conclusion that Plaintiff had suffered a soft tissue injury. However, the jury may well have not found the testimony or the subjective complaints of the Plaintiff to be credible.
Dr. Fink characterized the Plaintiff as a "symptom exaggerator." Dr. Fink testified that he determines a patient's condition by examination of the patient's medical history and from observations during the physical exam. Dr. Fink determined, based on the subjective complaints by Plaintiff, that Plaintiff had a soft tissue injury. However, Dr. Fink also was of the opinion that the Plaintiff was a "symptom exaggerator," and defined the term as the following:
Patients who are symptom exaggerators have complaints that don't have an underlying organic or anatomical explanation. You cannot explain them on the basis of normal anatomy, or biochemistry, or physiology of the brain, spinal cord nerves, or muscles. And basically, those individuals are enlarging symptoms, making them worse, or sometimes even just making them up."
Fink dep. pp. 21-22, lines 19-24 and 1-2.
The facts of this case are distinguishable from the case cited in the briefs, Maier v. Santucci, which held that the Superior Court had abused its discretion by not granting a new trial. In Maier, the Supreme Court of Delaware reversed the judgment of the Superior court and stated, "where the evidence conclusively establishes the existence of an injury, however minimal, a jury award of zero damages is against the great weight of the evidence and it is an abuse of discretion to deny a new trial." However, in that case, unlike the case presently before this Court, the injuries to the Plaintiff were more serious and identifiable than just subjective complaints. In Maier medical experts on both sides found a cervical sprain and a pre-existing arthritic condition. In the case presently before this Court, the injuries derive only from the Plaintiff's subjective complaints and not uncontroverted medical evidence.
Del. Supr., 697 A.2d 747 (1997).
Id. at 748.
Id. at 749.
Based on the foregoing, the jury could have reasonably based its verdict for the Defendant on the evidence concluding that Plaintiff had not suffered anything other than minimal damage. The jury could have reasonably concluded that Plaintiff's complaints were not credible and therefore rejected Dr. Fink's opinion that Plaintiff suffered a soft tissue injury. An award of zero damages is not inconsistent as a matter of law with a finding of negligence which was a proximate cause of injury to the plaintiff. Furthermore, the jury could have reasonably concluded that the conflicting opinion set forth by Dr. Fink that the Plaintiff was a "symptom exaggerator" was a theory it accepted. There was sufficient evidence to support the jury verdict and therefore Plaintiffs Motion for a New Trial is DENIED.
Joseph v. Truitt, Del. Super., CA. No. 95C-07-003, Lee, J. (June 14, 1999) (Mem. Op.).
II. Defendant's Motion for Costs
Defendant filed a Motion for Costs for the testimony of Dr. Fink in the amount of $1,250.00 and for the transcription of Dr. Fink's testimony in the amount of $276.99. Plaintiff opposes that motion. For the reasons set forth herein, Defendant's Motion for Costs is DENIED.
10 Del. C. 5101 provides, in pertinent part "[g]enerally a party for whom final judgment in any civil action . . . shall recover, against the adverse party, costs of suit, to be awarded by the court." This is one of those cases when the issue of costs should not be automatically determined by the verdict. Although the statute says that costs are "generally" given, it has been held that this means something less than always. In the present case, judgment was entered for the Defendant on June 15, 1999. The costs sought by Defendant are those which were necessary to provide an adequate defense. Although the jury had found no injury and this Court denied Plaintiff's Motion for a New Trial, Dr. Fink did testify that Defendant had subjective complaints of an injury. The Plaintiff had legitimate reason to bring this lawsuit. This Court believes that, under all of the circumstances, it is appropriate for Defendant to bear the costs of its successful defense. Accordingly, Defendant's Motion for Costs is DENIED.
Donovan v. Delaware Water and Air Resources Commission, Del. Supr., 358 A.2d 717, 722 (1976).
IT IS SO ORDERED.