Opinion
C.A. No. 01C-07-028 JTV.
Submitted: July 11, 2003.
Decided: January 29, 2004.
Upon Consideration of Defendant's Motion For a New Trial or, in The Alternative, For Amendment or Alteration of The Judgment. DENIED.
Motion For a New Trial or, in The Alternative, Remittitur. DENIED.
Wayne N. Elliott, Esq., Prickett, Jones Elliott, Dover, Delaware. Attorney for Plaintiffs.
Somers S. Price, Jr., Esq., Potter, Anderson Corroon, Wilmington, Delaware. Attorney for Defendant.
OPINION
On June 3, 2003 a jury awarded plaintiff Craig Bounds $1,500,000 and his wife, plaintiff Leslie Bounds, $275,000 in compensatory damages. The defendant, Delmarva Power Light Company ("DPL") has filed two post-trial motions: a motion for a new trial or, in the alternative, for amendment or alteration of the judgment; and a motion for a new trial or, in the alternative, remittitur. Mr. Bounds was an electrician. On April 7, 2000 he was working for GAICO, Inc. GAICO was doing electric work for DPL at its Indian River power plant. As Mr. Bounds came off an elevator carrying heavy electric wire, he allegedly tripped over a pipe cap which protruded up from the floor, causing substantial injury to his knee. The necessary facts will be set forth as each issue is addressed.
STANDARD OF REVIEW
When considering a motion for a new trial, the jury's verdict is presumed to be correct. A verdict should be set aside only when it is against the weight of the evidence, or where the amount of an award "is so grossly out of proportion to the injuries suffered as to shock the court's conscience and sense of justice." A jury's verdict should not be disturbed unless it is manifest that it was the result of passion, prejudice, partiality or corruption, or that it was clearly in disregard of the evidence or applicable rules of law. 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
Lacey v. Beck, 161 A.2d 579, 580 (Del.Super. 1960).
James v. Glazer, 570 A.2d 1150, 1156 (Del. 1990).
Young v. Frase, 702 A.2d 1234 (Del. 1997).
Storey v. Camper, 401 A.2d 458, 465 (Del. 1979).
McCloskey v. McKelvey, 174 A.2d 691 (Del.Super. 1961).
MOTION FOR NEW TRIAL OR, IN THE ALTERNATIVE, FOR AMENDMENT OR ALTERATION OF THE JUDGMENT
In its motion for a new trial or, in the alternative, for amendment or alteration of the judgment, the defendant sets forth three grounds upon which it contends relief should be granted.Superceding cause. The first is that the Court should have instructed the jury that it could consider whether the workers' compensation carrier's ("CNA") alleged bad faith, wrongful failure to pay for medical treatment for Mr. Bounds was a superceding cause of injury. A form of such an instruction was submitted by the defendant at trial, but rejected by the Court. The theory of this argument is that where a workers' compensation carrier is obligated to pay for medical treatment for work-related injuries caused by an alleged tortfeasor, and wrongfully fails to do so, or at least fails to do so in bad faith, the carrier's failure may become a superceding cause of injury to the plaintiff. The logic of this theory is not confined to the workers' compensation situation. Presumably the theory might apply to a PIP carrier in the automobile insurance context, or any other case where a party covered by health insurance is injured by the negligence of another.
The defendant cites no authority where an insurer's bad faith failure to pay for medical treatment has been deemed an intervening, superceding cause of injury.
The plaintiff contends that a superceding cause must itself be a tortious act, and that the conduct of the workers' compensation carrier cannot be a superceding force because it is contractual in nature; that the defendant should not be permitted to benefit from a contractual relationship to which it was not a party; that a workers' compensation carrier's decision to deny a claim is not uncommon or unforeseeable; that the defendant's theory would place injured plaintiffs in the untenable position of having to defend an insurer's decision to deny treatment which the plaintiff had requested; and that the defendant's proposed instruction lacked evidentiary support.
The defendant based its request for the instruction on certain evidence that CNA had denied, or not approved, medical treatment which had been recommended by Mr. Bounds' physicians after he underwent outpatient, arthroscopic surgery in June of 2000. The recommended treatment consisted of the use of Synvisc, which is a lubricant for the knee, aqua care therapy, and physical therapy. The defendant also presented the testimony of Robert Gray, who stated that a denial of medical treatment by a carrier should be based on a medical examination. The evidence as to why these treatments were not administered and what affect they might have had on Mr. Bounds' condition was much disputed. I view the evidence on this issue in the light most favorable to the defendant.
The evidence also included the deposition of Sandra J. Kirkpatrick, the CNA adjuster who handled Mr. Bounds' claim at the time. When asked about Synvisc, she stated that she remembered it being recommended. When asked whether she approved payment for Synvisc, she stated "To the best of my knowledge, I don't really — I don't really remember, but I don't think so." When asked why, she stated "Well, the plans were to get an independent medical employee's medical examination — employer's. And to determine whether it was necessary and — And to determine whether it was necessary and — reasonable and necessary, but that never took place." When asked whether she approved aqua care therapy, she stated "Not to my knowledge. I don't remember receiving a request either." When asked whether she ever received a request that Mr. Bounds undergo physical therapy for the injury, she stated "I'm sure we did, and it was — physiotherapy was approved and paid at one time, when it was being — when the injury was still, you know, active." When she was then asked whether Dr. DuShuttle had recommended physical therapy, including back strengthening for Mr. Bounds, she stated "I did deny any treatment for the back because that was not part of the accepted injury."
A superceding cause is a new, independent act which proximately causes injury and breaks the chain of causation between the injury and the original tortious conduct. In order to be a superceding cause, however, the new act must be one which is not reasonably foreseeable. Even assuming that a workers' compensation carrier's refusal or failure to pay a claim can be a superceding cause, I think that the evidence in this case is clearly insufficient to support the requested instruction. Disputes over workers' compensation coverage such as those involved here are foreseeable consequences of a work-related injury. I do not think that any reasonable juror could find that the conduct of CNA in this case rose to the level of a superceding cause which broke the chain of causation between the original accident and Mr. Bounds' injuries.
Duphily v. Delaware Elec. Co-Op., Inc., 662 A.2d 821, 829 (Del. 1995).
Id.
Workers' Compensation instruction. The second ground asserted by the defendant in support of its motion for a new trial or, in the alternative, for amendment or alteration of the judgment is that an instruction which the Court did give concerning workers' compensation was confusing and erroneous and allowed for jury speculation. The instruction which was given reads as follows:
You have heard testimony about the workers' compensation benefits that Craig Bounds has received. You should not consider the fact that some of the medical expenses and lost wages that he claims in this lawsuit have been paid through workers' compensation because Craig Bounds has a legal obligation to repay this compensation from any money that you might award in this case. On the other hand, if he does not recover in this case, there is no obligation for Craig Bounds to reimburse.
The defendant contends that giving this instruction was error because there was never any testimony about the amounts of workers' compensation payments that Mr. Bounds actually received or any amount that Mr. Bounds would have to repay; there was testimony only about types of medical treatments that were not paid for; the jury was left to speculate about any amounts of workers' compensation benefits that Mr. Bounds had to repay; the jury had no basis in the evidence to make any determination of the effect of the repayment obligation and could only guess about that number; it is possible that the jury believed that the number was far higher than the lien claimed by the workers' compensation carrier; the instruction, although legally correct as a concept, lacked any evidentiary basis; and the instruction had the effect of creating confusion for the jury and may also have created undue sympathy for Mr. Bounds based on jury speculation on the amounts to be repaid. In its reply brief, the defendant also contends that the effect of the instruction was substantially worsened by comments which plaintiffs' counsel made in his summation. The comments complained of are as follows:
Now, the Court charged you on Workmen's Compensation. I am not sure you understand that. Craig Bounds has received Workmen's Compensation, but out of any verdict that you return in his favor he is going to have to repay everything he has received. Not just the money, but the payment, the weekly payments he has been receiving for three years. So that comes off the top. That goes back to the comp carrier. So the Court is saying, Hey, jury, don't try to deduct from Workmen's Compensation. Award him everything that you feel he is entitled to because he is going to have to pay back to the comp carrier what the comp carrier has paid to him.
The defendant argues that the jury never heard any testimony or evidence about three years of payments or any amount of payments; that the jury was left to speculate as to the amount of "the weekly payments" and any other workers' compensation payments that had to be repaid by Mr. Bounds; that the jury could easily have speculated as to extensive amounts that Mr. Bounds had received for three years and increased their award to Mr. and Mrs. Bounds accordingly; that there was no evidence on the amount to be repaid, even though the instruction stated that Mr. Bounds had received such payments; and that the jury was left with no evidentiary basis for its decision.
The plaintiffs contend that the defendant waived any objection to the instruction on worker's compensation because it did not object to it at trial. They also contend that the instruction was correct. The defendant responds to this contention by stating that it objected before trial to the admission of any evidence of damages paid by workers' compensation. This objection is discussed below. It also contends that the comments of counsel complained of were made after the jury instruction was given.
If the defendant did preserve an objection to the instruction, however, the objection is again rejected. The workers' compensation instruction which was given is a pattern civil instruction which, in conjunction with the instruction on damages, is designed to inform the jury that if it finds for the plaintiff, it should award the full amount of lost wages and medical expenses which it finds to exist by a preponderance of the evidence, without deduction for any amount paid by workers' compensation. It is also intended to dispel any jury concerns about possible double recovery by the plaintiff of medical bills or lost wages. The defendant cites no authority to support its contention that the instruction is objectionable. I see no merit to the defendant's objections to this instruction.
Admissibility of evidence of amount of workers' compensation benefits paid. The third ground asserted by the defendant in support of its motion for a new trial or, in the alternative, for amendment or alteration of the judgment is that the Court should not have admitted any evidence which included the amount of workers' compensation benefits paid.
In April, prior to the May trial date, a dispute arose over whether there had been a waiver of the workers' compensation lien. On April 8, 2003, counsel for DPL brought to all parties attention an agreement between the defendant and GAICO stating that GAICO would carry workers' compensation insurance and that "[t]his item requires a Waiver of Subrogation against [DPL]." This resulted in communications between the parties which culminated in a letter dated May 6, 2003 (six days before the scheduled trial date), in which counsel for the employer and its workers' compensation carrier ("GAICO/CNA") acknowledged that the workers' compensation lien was waived in accordance with the agreement. This letter was then followed by a letter from the same attorney for GAICO/CNA dated May 9, the Friday before the Monday trial date, in which the employer and the workers' compensation carrier reversed their position and stated that a lien was asserted.
The defendant then moved in limine to exclude from evidence at trial the amount of worker's compensation benefits paid to the plaintiff on the ground that GAICO/CNA had expressly and voluntarily waived the right of subrogation and that the introduction of such evidence would be unfairly prejudicial to the defendant. It included with its motion an affidavit of a representative of Indian River Operations, Inc., a corporation apparently associated with the defendant, stating that the agreement with the waiver provision was in effect at the time of Mr. Bounds' accident, and attaching copies of extensions of the original agreement. The motion also asked the Court to exclude from evidence all evidence of lost wages or medical expenses which had been paid by workers' compensation. By analogy to the treatment of no-fault, personal injury protection payments in automobile accident cases, the defendant asked the Court to instruct the jurors at trial as follows:
You have heard testimony about workers' compensation benefits that Craig Bounds has received, but have heard no testimony regarding the amounts or details of those benefits. Some of you may be aware that under Delaware law an employee who receives workers' compensation benefits has a legal obligation to repay this compensation from any money that a jury might award. This legal obligation does not exist in this case. The party that paid those benefits to Craig Bounds has voluntarily waived its right to payment. Craig Bounds is, therefore, not obligated to reimburse any payments he received through workers' compensation. The amounts and details of any workers' compensation benefits Craig Bounds has received, and of any bills paid through such benefits, are not in evidence because they have been paid. The law does not permit Craig Bounds to recover losses or expenses that have been paid as part of his workers' compensation benefits, and which he is not obligated to repay.
The defendant also asked the Court to enforce GAICO/CNA's waiver of its right of subrogation under the doctrine of promissory estoppel. The defendant also contended that had it realized earlier in the proceeding that GAICO/CNA did intend to assert a workers' compensation lien, it may have sought to take a Rule 30(b)(6) deposition of GAICO and/or CNA, and that it did not do so, to its prejudice, because the agreement plainly provided that any lien was waived.
The Court denied the defendant's motion in limine and the case proceeded to trial on Monday, May 12. As a result of the declaration of a mistrial on an unrelated issue, however, it was rescheduled for the next Monday, May 19. On May 14, the attorney for GAICO/CNA wrote a letter to the Court reaffirming her clients' assertion of a workers' compensation lien. The letter stated, in apparent conflict with the affidavit of the representative of Indian River Operations, Inc., that "there is no indication by way of signature, amendment, etc. that the particular contract in question was in effect at the time of the plaintiff's work injury." It further stated that "in the absence of evidence to the contrary, the contractual provision of the 1993 Agreement is not currently binding on GAICO and its carrier and GAICO should not be prohibited from recovering what it has paid to the Plaintiff by way of workers' compensation benefits."
Such was the state of the record when trial commenced on May 19. I continue to believe that the denial of the defendant's motion in limine was proper. GAICO/CNA was not, and is still not, a party to this proceeding. The defendant was, in essence, asking the Court to adjudicate the rights of a non-party. Even if that obstacle were overcome, the existing record was clearly insufficient to allow the Court to make any informed decision on the merits of the issue. The lien exists by statute and any decision that the lien has been waived should be made on a complete and proper record. Furthermore, even if the lien was properly held to be waived, it is not at all clear that it necessarily follows that the plaintiff is barred from introducing lost wages and medical expenses paid by workers' compensation as elements of damages in his case against DPL. PIP payments are an exception to the collateral source rule by statute. No such analogous statute has been brought to the Court's attention for damages covered by workers' compensation where the lien has been waived. I express no opinion on this issue. I mention it only as it relates to the unsettled state of the record at the time.
If the Court had purported to adjudicate that GAICO/CNA had waived its lien, it is doubtful that the ruling would have been binding on GAICO/CNA under the circumstances. If the plaintiffs were barred from introducing evidence of workers' compensation benefits or the underlying medical expenses and lost wages, and subsequent litigation proved that the lien was not waived, the Mr. Bounds may have been subjected to the unfair prejudice of being obligated to pay the lien from his recovery but of having been wrongly denied the opportunity to present those elements of his damages to the jury.
The decision to admit evidence of lost wages and medical expenses paid by workers' compensation exposed DPL to substantially less prejudice, if any. The defendant was placed in no different position than any other defendant in an action in which a plaintiff's recovery is subject to a workers' compensation lien. The denial of the motion in limine was without prejudice to the defendant to move post-trial to add GAICO/CNA as parties, litigate the question of the lien waiver, and, if successful on that issue, litigate whether the court should reduce the Mr. Bounds' judgment by the amount paid by workers' compensation. The defendant has apparently decided not to pursue these remedies in this case, however. No motion has been filed to add GAICO/CNA as parties. A footnote in the plaintiffs' brief indicates that the defendant has apparently filed a separate action against GAICO or its successor for purposes of litigating the issue of the lien waiver.
MOTION FOR NEW TRIAL OR, IN THE ALTERNATIVE, REMITTITUR
In its motion for a new trial or, in the alternative, remittitur, the defendant contends that the verdict is excessive and the product of passion, prejudice, partiality or sympathy. Ancillary to this contention, it contends that the verdict was influenced by improper comments on the part of opposing counsel. I will first address the contention that a new trial should be granted because of the comments of plaintiffs' counsel.
The Supreme Court has held that "any effort to mislead the jury or appeal to its bias or prejudice is inappropriate and, where objection is made, the trial court is obliged to act firmly with curative instructions even where no objection is forthcoming until after summations." The court has also ruled that it is improper for counsel to make a factual statement which is not supported by the evidence, to comment on the legitimacy of a client's claim or defense, to suggest to the jury that the jurors place themselves in the plaintiff's position, to comment on a witness' credibility based on personal knowledge or evidence not in the record, or to vouch for a client's credibility. It is also improper for an attorney to misstate knowingly the evidence or use inflammatory language designed to appeal to the juror's passions and prejudices. In order to determine whether a new trial is called for in connection with improper comments, the trial court must determine whether the improper comments prejudicially affected substantial rights of a party. In doing so, the court should consider: (1) the closeness of the case, (2) the centrality of the issue affected by the improper comments, and (3) the steps taken in mitigation. Recently, the Supreme Court has modified this analysis by adding an additional factor. In addition to the three-part test, the court should consider whether counsel's statements are repetitive errors that require reversal because they cast doubt on the integrity of the judicial process.
DeAngelis v. Harrison, 628 A.2d 77, 80 (Del. 1993).
Id.
Hunter v. State, 815 A.2d 730, 732 (Del. 2002).
Hughes v. State, 437 A.2d 559, 571 (Del. 1981).
Hunter, 815 A.2d at 733.
The defendant makes a broad attack on the comments of plaintiffs' counsel at trial, from the opening statement to the closing argument. The defendant complains that in the opening, counsel referred to Mr. Bounds as a "cripple" who had been "maimed" by DPL's conduct. The defendant complains that counsel interjected personal or editorial comments throughout the trial, asked leading questions of Mr. Bounds while he testified, asked questions such as why DPL would not do the "right thing" with respect to Mr. Bounds, or whether a witness believed another witness was lying. The defendant complains that although objections were made and sustained, the practice continued.
The defendant particularly complains about counsel's closing argument and rebuttal. It complains about the following comments which plaintiffs' counsel made in his closing:
This is truly the little guy against the big corporation. I assume you realize that. They are entitled to fight tooth and nail, and they have, and we are entitled to fight tooth and nail, and we have. We have given them a good fight, but it has been extremely expensive for both of us in terms of money.
The defendant complains that its objection to these comments was sustained but that, despite its request, no cautionary instruction was given. Having reviewed a transcript of the sidebar concerning the objection, it is not clear to the Court whether the defendant asked for a cautionary instruction for the jury, as it now contends, or merely that plaintiffs' counsel be cautioned against any further, similar comments. The jury was well aware from the testimony of the experts that both sides had incurred expense in preparing for trial. The instructions clearly defined for the jury the elements of damages which were recoverable by the plaintiff.
The defendant also contends that counsel improperly asked for a "big verdict"; referred to a minimal cost of lowering the pipe cap flush with the floor, even though there was no claim for punitive damages and no evidence on the issue; challenged the jury to send Mr. Bounds out with nothing if the jury did not agree with plaintiffs' position; made a disguised request for the jury to ignore the medical expense evidence when he could not find the record of past medical expenses to refer to; asked the jurors to compare their lifestyle with that of Mr. Bounds; challenged the jury by stating that "partial justice" was "injustice;" and claimed with respect to pain, suffering and disability that "[t]hese are the numbers that are the big numbers and the one that you are going to hopefully — well, you are going to have to agonize over." The defendant further contends that counsel improperly manifested a clear pattern throughout his summation of ignoring references to actual numbers, medical records and the other evidence, and, instead, making references to "big" numbers or a "big" verdict, the length of the trial, litigation expense, and Mr. Bounds' obligation to repay three years of workers' compensation payments which were not in evidence. The defendant further complains that counsel engaged in theatrical conduct by making references to Mr. Bounds' medication and his ability to testify with and without medication. Another example of improper conduct, the defendant contends, was a question to one of the defendant's witnesses, Mr. Gray, when counsel asked "[d]id you ever go to DPL and say, `[h]ey, let's do the right thing for this man, authorize me to assist him and you pay for retraining, and we will get it going?'" The defendant contends it was frequently left with the Hobson's Choice of either reemphasizing the impermissible point with an objection or allowing the case to proceed.
Without a complete transcript of the trial and specific references thereto, it is difficult to respond to each, individual matter complained of. The Court does not find plaintiffs' counsel's request for a "big" verdict objectionable. The plaintiff had introduced evidence of a significant amount of special damages. This evidence clearly informed the jury that the plaintiffs' sought a substantial verdict. During Mr. Bounds' direct examination, objections to leading questions were sustained. The mode of Mr. Bounds' direct examination did not cause unfair prejudice to the defendant. The complaint that plaintiffs' counsel challenged the jury to send Mr. Bounds out with nothing if it did not agree with plaintiffs' position was a response to efforts by the defendant to insinuate that Mr. Bounds was making up the whole story about tripping over the pipe cap, as opposed to just falling. In the context of the case, it was fair comment. Plaintiffs' counsel did not make a disguised request for the jury to ignore medical expense evidence. I do not recall plaintiffs' counsel making any improper request that the jurors compare their lifestyles with those of the plaintiffs or making a "golden rule" argument.
After considering all of the comments of plaintiffs' counsel complained of and the Hughes and Hunter factors, I am not persuaded that any of counsel's comments individually, or all collectively, affected substantial rights of the defendant.
Finally, the defendant contends that the verdict was excessive and the product of passion, prejudice, partiality or sympathy. In addition to the arguments concerning the conduct of plaintiff's counsel discussed above, the defendant analyzes Mr. Bounds' injuries and compares the verdicts in a number of other cases. He contends that the maximum future wage loss which the evidence will support is approximately $235,000 and that the maximum non-economic loss for Mr. Bounds possible under the facts is between $200,000 and $300,000.
The defendant also contends that the verdict of $275,000 for Mrs. Bounds is excessive. It emphasizes that Mrs. Bounds was at the trial for only half a day, that the jurors had no opportunity to observe interaction between Mr. and Mrs. Bounds, that she testified that the relationship between she and Mr. Bounds was "minimal" and that their life was "boring," with no vacations, and little interaction when Mr. Bounds was home. It contends that there was no testimony about socializing or activities outside the home, and that there was no significant testimony about changes in their relationship or the effect of the accident.
The defendant also contends that jury prejudice can be inferred from the fact that during deliberations, the jury sent a note asking when the case was filed and whether DPL had made any settlement offers.
This Court has previously noted that "[i]t is difficult, if not dangerous, to refer to other cases to argue that a particular verdict is too high or too low." It is inevitable that there will be dissimilar results in personal injury suits because no two juries will judge the effect of a plaintiff's injuries identically.
Berl v. Cyrus Trading Corp., 1998 WL 109855 (Del.Super.).
Brinkley v. CAT Enterprises, Inc., 1994 WL 146018 (Del.Super.).
In this case the evidence established that Mr. Bounds suffered an injury which ended his career as an electrician, which was the only occupation he was trained for up until that time. Mr. Bounds' special damages exceeded $200,000. There was evidence he has permanent injury. There was evidence from which the jury could conclude that Mr. Bounds has suffered significant pain, suffering, depression and frustration.
The jury was informed that Mrs. Bounds would only be attending the trial one day because she operated a daycare business and had to be at the daycare, but the evidence permitted the jury to conclude that the damaging effect which the accident had upon Mr. Bounds affected Mrs. Bounds as well. The fact that the Bounds' lived a simple lifestyle or described it and their relationship in modest terms does not lead to the conclusion that the verdict is excessive. Mr. Bounds' injury was a significant, life-changing event for both of them.
The jury's note was answered appropriately. I am not persuaded that any inferences should be drawn from the jurors questions.
It is of some significance that the jury found Mr. Bounds to be 12% contributorily negligent. This supports an inference that the jury duly considered the evidence and the instructions.
Ultimately, the question is whether the verdict is so excessive that it indicates it was the result of passion, prejudice, partiality or sympathy, that it was in disregard of the evidence and the law, or that it was so grossly disproportionate to the injuries suffered that the result shocks the court's conscience and sense of justice. My judgment is that this standard is not met and that the verdict should not be disturbed.
CONCLUSION
For the foregoing reasons, the defendant's motions are denied.