Opinion
C.A. 04C-11-003-ESB.
Submitted: December 13, 2005.
March 2, 2006.
Edward C. Gill, Esquire, Law Offices of Edward C. Gill, P.A., Georgetown, DE.
Jeffrey A. Young, Esquire, Young McNelis, Dover, DE.
Dear Counsel:
This is my decision on the Motion for a New Trial filed by Plaintiffs Wade Butler ("Butler") and Susan Breasure ("Breasure"). I have denied their motion for the reasons set forth herein.
STATEMENT OF THE CASE
Butler and Breasure were in a stationary motor vehicle that was rear-ended by a motor vehicle driven by Defendant Jeff Tharp ("Tharp") on December 2, 2002. A two-day jury trial was held starting on December 5, 2005. Tharp admitted that his negligence caused the accident, but he denied that the accident caused any injury to Butler and Breasure. Tharp and Butler and Breasure, and their treating physician, Paul Gorrin, M.D. ("Dr. Gorrin"), were the only witnesses who testified. After hearing their testimony, the jury returned a verdict of zero damages
STANDARD OF REVIEW
In a Motion for a New Trial, the court starts with the fundamental principle that the jury's verdict is presumed to be correct. In a jury trial, the function of the fact finder does not belong to the court, but rather to the jury. The jury's verdict should not be disturbed unless it is clearly shown to be the result of passion, prejudice, partiality or corruption, or that it was manifestly in disregard of the evidence or applicable rules of law. Furthermore, the court will not upset the verdict of a jury unless "the evidence preponderates so heavily against the jury verdict that a reasonable jury could not have reached the result." Verdicts awarding no damages have been upheld under this standard of review.
Young v. Frase, 702 A.2d 1234, 1236 (Del. 1997).
Caldwell v. White, 2005 WL 1950902 at *3 (Del.Super.).
Young, 702 A.2d at 1237.
Storey v. Camper, 401 A.2d 458, 465 (Del. 1979).
Hall v. Dorsey, 1998 WL 960774 (Del.Super.).
DISCUSSION
This case involved an auto accident in which the defendant admitted liability for the accident. The issues of proximate cause and the nature and extent of the plaintiffs' injuries were submitted to the jury. After deliberation, the jury returned a verdict of zero damages. The Supreme Court has held that "where the evidence conclusively establishes the existence of an injury, however minimal, a jury award of zero damages is against the weight of the evidence." Additionally, "where medical experts present uncontradicted evidence of injury, confirmed by objective medical tests supporting a plaintiff's subjective testimony about her injuries and offer opinions that the injuries relate to the accident about which the plaintiff complains, a jury award of zero damages is against the weight of the evidence".Butler and Breasure argue that the jury's verdict is against the great weight of the evidence. They point out that Dr. Gorrin was the only medical expert to testify and that he testified that they both aggravated pre-existing injuries in their accident with Tharp. Tharp argues that the jury's verdict is proper because Dr. Gorrin's opinions were based upon the subjective complaints of pain by Butler and Breasure and that the jury was free to disregard their testimony because they were not credible witnesses.
Both plaintiffs had significant pre-existing medical problems. Butler fell off a loading dock at work in June of 2002, fracturing his tail bone and herniating a disc. He was unable to work and was taking pain medication at the time of the accident with Tharp. He saw Dr. Gorrin on December 6, 2002, four days after the motor vehicle accident. Dr. Gorrin testified that Butler had sustained whiplash injuries to his neck and shoulders in the accident. He also testified that Butler had aggravated his pre-existing back problem.
Breasure had a herniated disc. She was totally disabled and was taking pain medication at the time of the accident with Tharp. Breasure also went to Dr. Gorrin's four days after the accident and then again on December 26, 2002. However, she did not complain of pain from the accident until January 24, 2003, seven and a half weeks after the accident. Dr. Gorrin testified that Breasure had sustained whiplash injuries to her neck and aggravated her pre-existing back problem.
Dr. Gorrin's opinions do rest upon the subjective complaints of Butler and Breasure. Thus, their case rests upon their credibility. Both Butler and Breasure gave the jury a good reason to reject their testimony.
Dr. Gorrin testified that Butler had an absence of deep tendon reflexes at the biceps, triceps and brachial radialis. He considered this to be an objective indication that Butler had sustained an injury in the motor vehicle accident. However, Dr. Gorrin later testified that deep tendon reflexes could be suppressed, raising doubts about whether this truly was an objective test result. Dr. Gorrin did not testify as to any objective test results that showed that Breasure was injured in the accident with Tharp.
Butler had previously testified that his accident at work was minor and that he had no physical problems before the accident with Tharp. However, at trial he was forced to admit that his injuries were so severe that they prevented him from working and that he was being treated by Dr. Gorrin for low back problems.
Breasure did not complain of pain to Dr. Gorrin until seven and a half weeks after the accident, even though she had seen him twice in the interim. Dr. Gorrin testified that he would not expect to see such a long delay in the onset of pain.
Given Dr. Gorrin's testimony about when he would expect to see a patient complain of pain, Breasure's long delay in reporting complaints of pain to Dr. Gorrin, and Butler's admission that he had not testified truthfully before about his work-related accident and resulting injuries, the jury was certainly justified in rejecting the subjective complaints of injury by Butler and Breasure and not awarding them any damages.
Philips v. Loper, 2005 WL 268042 at * 2 (Del.Super.), citing Walker v. Campanelli, 2004 Del. Lexis 462, at * 8.