Opinion
C.A. No. 97C-12-227/JOH/FSS
Submitted: February 12, 2001
Decided: June 29, 2001
Upon Defendants' Motion for Remittitur or New Trial On Damages — DENIED Upon Plaintiffs' Motion for Bill of Costs — GRANTED, in part; DENIED, in part.
Melanie K. Sharp, Esquire, Young Conaway Stargatt Taylor, Attorney for Plaintiff.
Richard Galperin, Esquire, Morris James Hitchens Williams, Attorney for Defendants.
OPINION and ORDER
This is a medical negligence case involving a fatal misdiagnosis. A jury returned a multi-million dollar verdict in favor of Plaintiffs. Now, Defendant accepts liability and the award to the patient's estate. But Defendant challenges the award to the patient's husband and teenage son. Defendant asks for remittitur or a new trial on the husband's and son's damages. Plaintiffs, of course, defend their favorable outcome and they ask for costs, including medical expert witness fees.
I. A. Liability
As mentioned, Defendant, Dr. Maxwell, does not contest the jury's finding of liability: negligence and causation. Nor does he challenge the award to the estate. Claiming the verdict was emotional, punitive or both, Dr. Maxwell questions the amount that the jury awarded Mrs. West's husband, Gary, and her child, Chad Greener. Some familiarity with the underlying facts is a helpful starting-point in evaluating the verdict.
The parties adamantly disagree about important details. Even so, they broadly agree that Paula R. West contracted influenza around Christmas 1995. The parties further agree that pneumonia and sepsis are recognized, dangerous complications of influenza. While the parties fundamentally differ as to when it happened, they agree that Mrs. West's influenza evolved into pneumonia and sepsis. And despite heroic measures by medical teams at the Christiana Medical Center and then the University of Maryland Shock Trauma Unit, Mrs. West died of pneumonia on January 28, 1996.
The parties also agree that Mrs. West sought treatment from an associate of Dr. Maxwell on December 28, 1996 and from Dr. Maxwell on January 2, 1996. They diagnosed and treated her for influenza, not pneumonia. Despite the treatment, her condition worsened and she called Dr. Maxwell's group on January 4, 1996. The physician on-call suspected an infection or bronchitis. He prescribed a mild antibiotic and told her to see him the next day. The physician, however, had trouble getting through to Mrs. West's pharmacy. He called her back and told her about the problem. Over the telephone, the doctor heard Mrs. West sigh. The sound prompted the doctor to ask if she was having trouble breathing. When she said that she was, the doctor told her to go to the emergency room at the Christiana hospital. After he saw her there, Dr. Maxwell's associate immediately admitted Mrs. West to the intensive care, step-down unit. She was in serious condition. The principal diagnosis upon admission was pneumococcal pneumonia.
At the risk of oversimplification, Plaintiffs and their experts alleged that Dr. Maxwell failed to recognize that Mrs. West was developing pneumonia and that her pneumonia was diagnosed after it was too late. Dr. Maxwell and his experts insisted that the symptoms presented by Mrs. West were inconsistent with pneumonia, that her fatal pneumonia's onset was sudden, coming after he saw her, and that the disease's progression was stunningly rapid and lethal. Some strains of pneumonia, when associated with meningitis, are so virulent they kill within hours of onset.
At trial, both sides tacitly agreed that Mrs. West's symptoms were not perfectly consistent with either influenza or pneumonia. For example, Plaintiffs emphasized that by the time Dr. Maxwell saw her, Mrs. West had been ill for too long. If she had influenza without complications, she should have been improving. Yet, she still was failing. The essence of Plaintiffs' case was the idea that even if her pneumonia was not obvious, it should have been apparent to Dr. Maxwell that Mrs. West's illness was not following influenza's expected course and he should have been more concerned about the possibility that Mrs. West was developing complications, such as pneumonia or sepsis. Dr. Maxwell had x-ray equipment onsite. If he had sent Mrs. West "downstairs" for a chest x-ray when he saw her and if it had revealed pneumonia, she could have been placed on antibiotics, when they would have been more effective.
Dr. Maxwell emphasized the ways that Mrs. West's symptoms were inconsistent with pneumonia or sepsis. For example, Dr. Maxwell's testimony that Mrs. West's chest did not sound like pneumonia was undisputed. Certain characteristic sounds, "crackles," were absent. She had a cough, but it was not consistent with the cough associated with pneumonia. She had chest pain, but it too was wrong for pneumonia. Dr. Maxwell testified that he rendered medically appropriate care based on Mrs. West's symptoms. He denied that he had a reasonable basis for ordering an x-ray or other diagnostic procedures and treatment. He insisted that Mrs. West had not developed pneumonia when he saw her. The defense experts stood by Dr. Maxwell, insisting that an earlier x-ray would not have revealed pneumonia and antibiotics were uncalled for when Dr. Maxwell saw Mrs. West. The defense was consistent and steadfast for the claim that even in hindsight, Dr. Maxwell's diagnosis and treatment were appropriate.
Both sides presented impressive, extensive, medical expert testimony. The experts' credentials were top notch. Despite questioning about bias, none of the medical experts appeared to be a "hired gun." To the contrary, all the experts' medical opinions seemed sincere. They presented the jury with a strong difference of medical opinion concerning the timing of Mrs. West's final illness and the reasonableness of Dr. Maxwell's care.
Presumably, the jury agreed with Plaintiffs that Mrs. West's case was at least unusual enough that Dr. Maxwell's duty of care required him to undertake further examination and treatment on January 2, 1996 and that his failure to do that proximately caused Mrs. West's death. In any event, in evaluating Dr. Maxwell's challenge to the verdict, it is important to appreciate that the trial focused at length on the standard of care and proximate cause. The substantial evidence on those issues was far from one-sided and it was unemotional. Moreover, while Dr. Maxwell's and the defense experts' extensive testimony was less convincing, it surely undermined any thought that Dr. Maxwell was callous and that he deserved a punishing verdict. Everyone agreed that Dr. Maxwell did not miss an obvious diagnosis.
B. Damages
While the trial concentrated most heavily on the experts' conflicting opinions, Mrs. West's husband, her son, her brother, her best friend, a co-worker and her employer also testified. By its nature, their testimony invited the jury's sympathy. But their testimony's presentation, individually, was brief and not excessively emotional. As discussed in more detail below, Mrs. West's survivors made clear what she meant to them and how seriously her loss affected them. Again, their testimony was impressive and sad, but it was no more emotional than what typically would be expected from people in their unfortunate circumstances. And the court repeatedly instructed the jury during the trial and during the charge not to base its verdict on sympathy. Besides giving formal instructions on sympathy, the court informally mentioned sympathy during evidentiary rulings made in front of the jury.
Mrs. West's former employer's testimony was highly relevant to the issue of lost income. It also was sentimental because the witness and the decedent were close. Overall, however, it was not particularly emotional. The same is true for the co-worker's testimony. Mrs. West's brother and her best friend not only were lifestyle witnesses, they were eyewitnesses to Mrs. West's end and her relationship to her son. Also, a video tape also was played showing Mrs. West at a party with her fellow workers. That evidence was sentimental. But before the tape was played, the court cautioned the jury directly about sympathy. The court also ordered that the tape be redacted to remove inflammatory titles and. that the tape be played without audio.
Nevertheless, the trial could not be sterilized, nor should it have been. Mrs. West's death was neither quick, nor merciful. When she was hospitalized, she immediately was put on a respirator. In order for her to tolerate it, her doctors completely paralyzed her with drugs. So, for several weeks before she died, Mrs. West probably was conscious, yet unable to rove at all. While the pneumonia irreparably destroyed Mrs. West's lungs, it did not leave her unaware of what was happening to her. And after she finally was trucked to Maryland where she died, her condition, as presented below, was ghastly.
Sadly, Mrs. West was not the only one who suffered. Gary and Chad watched her death unfold. For example, as soon as he took her to the hospital Gary saw his wife being escorted to an examining room. She was walking like an old woman. The next time he saw her, she was on a respirator. She never spoke again, and for almost a month, "24/7," Gary "camped out" at his wife's bedside. Mrs. West's loved ones not only saw what was happening, they knew she knew.
As mentioned above, on January 12, 1996, when her disease-ravaged lungs could no longer sustain her even with the respirator's support, Mrs. West was transferred to the University of Maryland for extracorporeal oxygenation. She was put on a machine that removed her blood through transparent hoses, oxygenated it and returned it to her body through other transparent hoses. Mrs. West and her loved ones lived through all this, too. The drugs not only paralyzed Mrs. West, they bloated her to the point that she was unrecognizable. At the very end, Mrs. West began bleeding internally. She died during emergency, bedside surgery.
While those gory facts surely had an impact on the jury, they were related directly to Plaintiffs' damages and it was appropriate for the jury to take them into account. Presumably, as discussed below, the large verdict partly reflects how truly terrifying and terrible Mrs. West's final month was for her and her survivors.
II.
Under Delaware law, a cause of action exists on behalf of a husband and child for the wrongful death of their wife and mother proximately caused by negligence. The wrongful death statute directs that the:
jury shall consider all the facts and circumstances and from them fix the award at such sum as will fairly compensate for the injury resulting from the death.
The law permits the jury to consider several damage categories, including:
(1) Deprivation of the expectation df pecuniary benefits to the . . . beneficiaries that would have resulted from the continued life of the deceased; (2) Loss of contributions for support; (3) Loss of parental, marital and household services . . . (4) Reasonable funeral expenses not to exceed $2000 . . .
Id.
The wrongful death statute also allows damages to the deceased's surviving husband and child for mental anguish resulting from the death. The jury was instructed to that effect.
Id.
III.
The jury award totaled almost $4,300,000. Mrs. West's estate was awarded $1,218,335.59. Her spouse was awarded $1,005,565 and her only child received $2,070,000. Defendant's post-trial motion is focused tightly. As presented above, Defendant does not challenge liability here, nor does he challenge the award to Mrs. West's estate. As he must, Defendant tacitly concedes that the estate's wrongful death claim is substantial. Nonetheless, concentrating heavily on Gary's and Chad's alleged failure to establish that Paula's death cost them financially and minimizing Gary's and Chad's mental anguish, Defendant concludes that the large verdict for Gary and Chad was impermissibly emotional and punitive.
The motion's fundamental shortcoming is that it does not present the evidence in the proper light. Instead of balancing the evidence, the motion highlights facts that support the way Defendant sees the verdict. The motion largely ignores or glosses over the facts that do not support Defendant's view, but which probably influenced the jury.
Burgos v. Hickok, Del. Supr., 695 A.2d 1141, 1145 (1997) ("when considering a motion for a new trial, the court weighs the evidence in order to determine if the verdict is one which a reasonably prudent jury would have reached" (citing McCloskey v. McKelvey, Del. Super., 174 A.2d 691, 693 (1961))).
For example, while Defendant broadly concedes that "Paula West's husband and son suffered a great loss," Defendant minimizes Gary West's loss in detail. Defendant points out that, "At the time of her death, Gary and Paula West had been married just one year." That is true, implying that Gary's and Paula's marriage was more casual, less well established and, therefore, less valuable. But the full record reveals that Gary and Paula actually met in high school. They went separate ways and married others. After their first marriages ended, they resumed their old acquaintanceship. They dated and lived together for approximately four years before they finally wed.
Gary described himself as devastated by Paula's death. Specifically, Gary testified that after Paula died, "My whole world was gone. To this day I can't seem to get it together." At this point, Defendant cannot undermine that testimony merely by pointing out, as he does, that Gary went back to his primary job after limited grief counseling. The court must assume that the jury believed that losing Paula was devastating to Gary and he still suffers greatly from what happened to him.
Another way that Defendant minimizes Gary's loss is by arguing that Gary can support himself financially without Paula's help. That is beside the point. Gary is entitled to recover for "the expectation of pecuniary benefits" that his wife's death cost him. He also is entitled to recover for "loss of marital and household services." An economist testified that the lost value of Paula's household services, alone, was over $181,000. All of that comes before the jury puts a value on Gary's mental anguish.
To minimize Gary's mental anguish, Defendant argues:
While Gary certainly experienced grief as the result of his wife's death, he did not receive any long-term psychological injury. He was on antidepressant medication and received counseling for a very short period of time. He missed just one month of work following his wife's death. There was no evidence presented that Gary has been either psychologically or physically impaired in his functioning since his wife's death.
Not only is Defendant's argument too narrow and one-sided, it understates the evidence. As presented above, Gary testified that he still "can't seem to get it together." Moreover, since his wife's death Gary has tried dating. He even had a continuing relationship. But that died, too. At trial, Gary associated his social isolation with losing Paula.
Similarly, Gary testified that he missed more than a month at his primary job. More importantly, Defendant ignores the fact that for five years before Paula died, Gary worked a second job. After she died, Gary gave that up. While Gary no longer is in therapy like he was after Paula died, it is inconsistent with the entire record to assume from that fact alone that Gary suffers no lasting psychological impairment.
Mental anguish and actual impairment are not necessarily directly proportional. Having been through a divorce, Gary cautiously made a deep commitment to Paula. He suffered through her month-long final illness and now he is alone. He is without her support in any sense. The record supports the jury's finding that Gary suffered a large, permanent emotional and financial loss when his wife and friend died. Defendant simply does not come to grips with the suffering and misery that Paula West's death and the horrible month leading up to it probably caused and still causes her husband and, as discussed below, her son.
Paula's son was hurt even more by his mother's untimely death. The Plaintiffs' lay witnesses testified about Mrs. West as a mother. In describing her, everyone used words like "excellent" and "great." Her contributions as a mother were particularly valuable to Chad. His natural father is not part of Chad's life. So, Paula's death left Chad even more alone than Gary. When Chad's mother died he was sixteen. Not only was he young, Chad has learning disabilities. Before he lost her, Chad counted heavily on his mother almost completely for financial and emotional support.
Before his mother died, Chad lived in a stable, loving world. He had a devoted mother and a solid step-father. Since his mother's death, Chad has drifted from place to place. He started out with Gary, but Paula's death changed what had been a good relationship. In hindsight, Chad now admits, "I was out of control." After a year of strife following his mother's death, Chad moved in with an aunt and uncle. Six months later he moved in with a friend's family. Next, he lived with "Pete," a friend from school. Then he rented a place from Gary. At trial he testified that he was living with a girlfriend in New Jersey. He described his living situation: "It's pretty crazy right now." If his mother had lived, Chad's living arrangements probably would be stable. Since his mother's death, Chad has supported himself working as a waiter or doing menial office work. Viewed in the light most favorable to Chad, he saw his mother, who was his rock, die a slow, miserable death. His life will never be the same because of what happened to his mother and him.
Defendant describes Chad: "[H]e is now twenty-one. He is employed, he supports himself, and he lives on his own." Defendant emphasizes the point that his mother had no "legal obligation to support Chad indefinitely into the future, nor would there be a practical expectation that she would do so." Again, that views the evidence in Defendant's favor and unrealistically. Based on the testimony about Chad and his mother's relationship and her financial circumstances, it is entirely reasonable to believe that Paula would have helped Chad indefinitely in every way, regardless of her legal obligations to him. Meanwhile, it is misleading to imply that Chad is doing well because he can wait tables or do menial office work.
To minimize Chad's loss further, Defendant observes that Chad's "problems pre-existed his mother's death," and he had a "troubled childhood." Actually, that also is Chad's point. Chad's hardships form a compelling basis for a wrongful death award because they partly explain what losing his mother meant to him, under the circumstances. Thanks to his pre-existing hardships, which he still faces, Chad needed and he still needs his mother more than other children.
IV.
It is well-settled that jury verdicts must be given great weight. If a trial has been conducted properly, a jury is the best way to determine an injured plaintiffs damages. A jury is the true conscience of the community. And Delaware juries are renown for their ability to put aside emotional considerations and render fair and impartial verdicts, including damage awards. Time and again, Delaware juries have awarded sympathetic plaintiffs little or nothing. In Delaware, very large awards in medical negligence cases are not unheard of, but they are less common.
Alston v. Chrysler Corp., Del. Super., C.A. No. 97C-09-214, Quillen, J. (May 24, 1999) (awarding punitive damages, "as well as any amount," is the province, of the jury (citing 22 Am. Jur. 2d Damages, § 739, p. 792-793 (1988))). See also Medical Center of Delaware, Inc. v. Lougheed, Del. Supr., 661 A.2d 1055, 1061 (1995).
See Porter v. Ferrence, Del. Super., C.A. No. 97C-04-0 19, Herlihy, J. (July 22, 1998).
The wrongful death award here is very large, in every sense. It undeniably represents a lot of money and it reflects compensation for an enormous loss. The jury was not stinting. Nevertheless, to justify remittitur or a new trial, the award must be so large that it is shocking, or it must appear to be the product of emotion, or it must be punitive.
Mills v. Telenczak, Del. Supr., 345 A.2d 424, 426 (1975) (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."); Storey v. Castner, Del. Supr., 314 A.2d 187, 193 (1973) (A jury's verdict is not disturbed as excessive unless it is clearly a "result of passion, prejudice, partiality, or corruption; or that it was manifestly the result of disregard of the evidence or applicable rules of law." (citing Rie gel v. Aastad, Del. Supr. 272 A.2d 715, 717-718 (1970))).
The court simply is unwilling to ignore or minimize the loss here and stretch to divine an improper cause for the verdict. Between appropriate sensitivity to Gary's and Chad's loss and sympathy or vindictiveness, the record supports the conclusion that the verdict was proper. It is beyond dispute that Paula was an excellent wife and mother, that she was financially productive and that she died a terrible death. While there is a point at which a damage award for such a person's death becomes unconscionable, the court cannot say that the large jury award in this case crossed the line. In the final analysis, a proper jury verdict is the best way to put a price on what Plaintiffs lost here. And the court is satisfied that the verdict was not improperly motivated.
VI. Plaintiffs' Costs
As the prevailing parties, Plaintiffs have applied for costs under Superior Court Civil Rule 54(d)-(h). Consistent with 10 Del. C. § 8906, Plaintiffs have included their expert witness fees. Plaintiffs' application is in the form of an itemized bill of costs. Defendants broadly agree that, under the circumstances, Plaintiffs are entitled to costs, in an amount to be determined by the court. Defendants do not contest specific parts of Plaintiffs' bill of costs, including Plaintiffs' court costs and their trial exhibits' costs. Defendants also do not challenge an award of costs for Plaintiffs' expert witness fees, generally. Defendant's, however, object to the amount that Plaintiffs request for their expert witnesses.
The court agrees with Defendants that Plaintiffs are not entitled to expert witness fees in connection with the first trial, which ended after the jury could not reach a verdict. The court also agrees with Defendants' general objections to how the expert witness fees were calculated, including excessive travel and preparation time. The court, however, is not able to calculate how much time each expert spent on each trial's preparation, the experts' travel expenses, and the experts' billing rates.
Defendants also challenge the costs associated with an unsuccessful attempt to take a deposition in Tennessee. The court agrees that the costs associated with that endeavor are not reimbursable. Similarly, Plaintiffs request reimbursement for the deposition transcript for an expert that was not admitted at trial. That cost is not reimbursable.
Finally, Plaintiffs request reimbursement for the cost of two, court-ordered mediations. Under the circumstances, the court will exercise its discretion in favor of Plaintiffs' application.
Counsel is directed to confer and attempt to reach an agreement as to the appropriate award for Plaintiffs' expert witnesses, consistent with this decision. Upon submission, the court will enter a specific order awarding costs.
VII.
For the foregoing reasons, Defendant's Motion for Remittitur or a New Trial on Damages is DENIED. Plaintiffs' Motion for Costs is GRANTED, in part;
DENIED, in part.
IT IS SO ORDERED.