Opinion
C.A. No. 98C-08-021-FSS
Submitted: January 4, 2002 Submission of Transcripts: May 14, 2002
Decided: May 30, 2002
Upon Plaintiff's Motion for a New Trial — DENIED.
Upon Defendant's Motion for Costs — GRANTED.
Beverly L. Bove, Attorney at Law, Wilmington, Delaware, Attorney for Plaintiff.
James J. Haley, Jr., Esquire, Ferrara Haley Bevis Solomon, Wilmington, Delaware, Attorney for Defendant.
ORDER
This is yet another "zero damages" case. This time, the issue concerns the jury's rejection of causation, despite the medical experts' agreement that the accident caused some injury. The wrinkle here is that the experts all relied on Plaintiff's subjective complaints in order to conclude that Plaintiff was hurt. At issue is whether a jury can reject medical expert opinions based entirely on subjective symptoms.
In August 1996, Bernadette Sullivan, Plaintiff, and Katherine Sanderson, Defendant, were involved in an auto accident. Sullivan sued Sanderson for negligence, which Sanderson admitted. Trial was held August 8 through August 10, 2001. The jury returned a verdict for Defendant, specifically finding that the accident did not proximately cause Plaintiff's injuries. Pursuant to Superior Court Civil Rule 59, Plaintiff filed a post-trial Motion for New Trial. As the prevailing party, Defendant filed a post-trial Motion for Costs.
I.
Sullivan claimed that the car accident aggravated her prior neck injury and her left shoulder was injured. Both parties presented medical expert testimony. Dr. Craig Sternberg, a physiatrist, testified on Sullivan's behalf by videotape deposition. He opined that the accident aggravated Sullivan's prior neck injury. Dr. Robert Steele, an orthopedist, also testified for Sullivan. He opined that the accident caused Sullivan's left shoulder injury.
Dr. Andrew Gelman, an orthopedic surgeon, and Dr. Daniel Gross, a retired orthopedic surgeon, testified for Sanderson. They clearly rejected Sullivan's claims that the collision caused serious injury. Based on subjective complaints, however, Sanderson's medical experts allowed that Sullivan probably had "some" injury from the collision. Dr. Gelman testified:
A: My impression was that Miss Sullivan had some residual complaints of a neck or cervical sprain and strain. That would be a soft tissue injury to the muscles up in the neck area. She did volunteer that, at times, there was some elements of discomfort. . . .
Q: Was that based on objective science or simply her report of continuing pain, Doctor?
A: It's based primarily on Miss Sullivan's complaints that she volunteered to me over an approximate four-year period. From my perspective, I was not particularly impressed with the neck area as being a source of ongoing pathology. So, my initial impression was that she did have some subjective complaints or volunteered complaints of some achiness or soreness in the neck area.
When asked whether Sullivan's injuries were related to the 1996 accident, Gelman stated:
Q: You issued a report on March 10th, 1998, after reviewing additional records from Dr. Sternberg; is that correct?
A: Yes.
Q: And it was your opinion, as of March 10th, 1998, and I am reading from the second paragraph, that Miss Sullivan probably did sustain soft tissue injuries to the cervical dorsal spinal segment — is that another word for the neck?
A: The neck and upper back, yes.
Q: — causally related to the motor vehicle accidents of July 1994 and August 1996.
A: Yes.
Q: The mechanism of the injury, as recorded in the available records, — and when you say "available records," are you referring to the records that you have reviewed of Dr. Sternberg and the records you have reviewed previously?
A: Yes.
Q: — is not consistent with a primary left shoulder injury; is that correct?
A: That's correct.
Dr. Gross testified that Sullivan had "residual complaints," which were "what she presently complains of presently that she relates to the accident of 8/12/96." Gross was further questioned:
Q: One of the things you testified to regarding [Sullivan's] injuries — and you — you did — You do agree that you found she was injured as a result of the August 12th, 1996, incident; correct?
A: Yes, yes. Essentially, Sanderson's medical experts agreed with Sullivan's experts that Sullivan had injury from the 1996 accident, but their reports and diagnoses were based on Sullivan's subjective complaints.
II.
Sullivan maintains that the jury's finding that the accident did not proximately cause her injuries is "contradictory to all of the evidence presented at trial." She contends that "every single medical witness agreed that Plaintiff sustained at a minimum, some type of injury/aggravation of an injury as a result of the 1996 collision." Sullivan claims that she proved, "by a preponderance of the evidence . . . [she] . . . was injured, however minimally, by the admitted negligent conduct of the defendant." Finally, she states that even when viewing the evidence in the light most favorable to Defendant, "it is clear that the findings of the jury are not consistent or even based in evidence."Sanderson contends that viewing the evidence in the light most favorable to her, the verdict winner, the court must deny Sullivan's motion. First, Sanderson maintains that the evidence supports the finding that Sullivan was "suffering from a pre-existing, permanent condition that had arisen from a prior motor vehicle accident of July 1994." Second, she argues that all the testifying doctors collectively stated that their diagnoses rested on Sullivan's credibility in relaying her subjective complaints. And that Sullivan's testimony differed from her prior sworn statement.
Sanderson further states that the instructions correctly enabled the jury to "give full credit to Plaintiff's sworn statement . . . [and] . . . to regard the opinions of any physician regarding causation of Plaintiff's symptoms as no more credible or reliable than Plaintiff's subjective reports." Finally, Sanderson argues that despite evidence showing that the accident caused aggravation to Sullivan's permanent neck injury, "there was no reason why the Jury could not conclude that said aggravation was `de minimus' and not worthy of compensation."
III.
Generally, on a Motion for New Trial, the Court must determine whether the "verdict is against the great weight of the evidence." Only when a jury's verdict is "clearly the result of passion, prejudice or partiality, or it was manifestly in disregard of the evidence or rules of law," is a new trial justified. The Court must uphold a jury verdict that is supported by the evidence. When presented with a Motion for New Trial on sufficiency of the evidence, the Court views the evidence in a light most favorable to the non-moving party. Finally, Delaware courts, historically, give great deference to jury verdicts. Zero verdicts, however, are special.
Storey v. Camper, Del. Supr., 401 A.2d 458, 465 (1979).
Storey v. Castner, Del. Supr., 314 A.2d 187, 193 (1973).
Medical Ctr. of Delaware v. Lougheed, Del. Supr., 661 A.2d 1055, 1061 (1995).
Stewart v. Genesco, Inc., 406 A.2d 25 (Del. 1979); Moody v. Patterson, 1987 WL 12437 (Del. Su per. 1987).
Young v. Frase, 702 A.2d 123 4, 1236 (Del. 1997).
See Carney v. Preston, 683 A.2d 47 (Del.Super. 1996); Hall v. Dorsey, Del. Super. C.A. No. 96C-06-045, Quillen, J. (Nov. 5, 1998) (Mem. Op.); Szewczyk v. Doubet, 354 A.2d 426 (Del. 1976) (new trial denied).
IV.
If Sanderson's negligence is established, and if Sullivan conclusively proves that Sanderson's negligence proximately caused some injury, Sullivan is entitled to some damages. As mentioned, Sanderson admitted negligence. Sullivan, therefore, had to have proved causation conclusively before the court can disturb the verdict.There are two ways to prove causation conclusively, so far. Sullivan could have presented undisputed medical expert opinions based on objective symptoms. Or, the jury could have found for Sullivan based on subjective symptoms alone, which it did not do. Here, the expert opinions about Sullivan's injuries were based on what Sullivan related to the experts. Thus, their opinions were based on subjective symptoms alone. Even if the experts accept Sullivan's subjective account of the injuries, the jury was entitled to reject the experts' opinions and award zero damages.
Amalfitano, 794 A.2d at 576.
See Jones v. Shisler, Del. Super., C.A. No. 98C-04-070, Silverman, J. (May 16, 2002).
Under Delaware law, when experts' opinions are:
largely based upon the plaintiff's subjective complaints, the jury [can] conclude that the experts had given undue weight to these subjective complaints, even though the medical testimony concerns matter not within the experience of the average juror.
Debernard v. Reed, 277 A.2d 684, 686 (Del. 1971). See also Gullo v. Walther, Del. Supr., No. 254, 2000, Steele, J. (June 28, 2000) (ORDER).
Thus, "the jury is free to reject in its entirety plaintiff[`s] testimony as to pain and suffering . . ." And, it is the jury's province to "award no damages for personal injury."
Id. See also Szewczyk, 354 A.2d at 430; Dunkle v. Prettyman, Del.Super., C.A. No. 99C-10-265, Slights, J. (May 1, 2002) ("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 [or her] testimony.").
Id.
Again, the experts here based their opinions on what Sullivan related to them. Neither side presented any objective findings, not even the presence of "spasms." The record demonstrates that the experts' opinions and testimony were based on subjective complaints, rather than objective tests such as MRIs, EMGs, X-Rays, etc.
In considering the jury's rejection of the experts' opinions, the court appreciates that Sanderson's experts did not agree with Sullivan that the accident caused much injury. Sanderson's experts largely rejected Sullivan's complaints. In that sense, the zero damages verdict does not represent a large leap on the jury's part. The court also understands that Sullivan presented ample evidence to the effect that Sullivan was hurt in the accident. The extent of her injury, if any, and her damages, if any, turned on her believability and on what the jury made of her testimony. Sullivan asked for a jury trial. Obviously, she believed that a jury would be more willing to believe her claim and award substantial damages. Clearly, however, the jury that Sullivan drew did not view her collision with Sanderson as a source of compensation. The court sees no lawful basis on which to disturb the jury's verdict.
See Dunkle, at *3 ("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 o f dispute resolution — uncertainty.").
V.
As to Sanderson's motion for costs, her motion is in accord with Superior Court Civil Rules 54 and 68. Sullivan filed no opposition. On its face, the unopposed motion is neither excessive nor unreasonable.VI.
For the foregoing reasons, Plaintiff's Motion for New Trial is DENIED. Defendant's Motion for Costs is GRANTED.IT IS SO ORDERED.