Opinion
C.A. No. 05C-06-217-JRJ.
Submitted: August 13, 2007.
Decided: October 22, 2007.
Upon Plaintiffs' Motion for New Trial and Judgment as a Matter of Law-GRANTED.
Kenneth M. Roseman, Esq. Wilmington, DE.
Richard Goll, Esq. Goldfein Joseph Wilmington, DE.
Dear Counsel:
Plaintiffs move for a new trial and partial judgment as a matter of law after the jury awarded the following to them:
$124,000.00 $ 32,000.00 $ 0.00 $ 11,000.00
Damages to plaintiff Vera Elwood for personal injuries and medical expenses proximately caused by defendant's negligence Damages to plaintiff Vera Elwood for loss of her husband's consortium proximately caused by defendant's negligence Damages to plaintiff Richard Elwood for personal injuries proximately caused by defendant's negligence Damages to plaintiff Richard Elwood for loss of his wife's consortium proximately caused by defendant's negligenceVera Elwood
Plaintiffs argue that because the "uncontradicted medical opinion evidence" established that Vera Elwood incurred medical expenses of $155,568.21 as a proximate result of defendant's negligence, and the jury awarded less than this amount, the verdict is against the great weight of the evidence, thus necessitating a new trial. Plaintiffs also seek a partial judgment as a matter of law in the amount of Mrs. Elwood's medical expenses.Plaintiff Vera Elwood had a history of cervical spine complaints for several years prior to the car accident at issue here. The pre-existing cervical spine complaints were first evaluated by Dr. Bruce Rudin on February 23, 2000. Dr. Rudin did not recommend surgery and opined that "it was best to avoid surgery." On January 13, 2005, Mrs. Elwood was involved in the car accident. The defendant admitted that his negligence caused the accident. On March 16, 2005, the plaintiff returned to Dr. Rudin for a surgical evaluation. Dr. Rudin testified that:
So she presented to me very different than she did originally in 2000 and specifically had the problem — the reason I told her she didn't need surgery in 2000 was she didn't have any cervical myelopathy or myelomalacia. That's damage to the cord or compression of the cord. And when she came to see me at this point, she had both of those things.
So at this point, this was completely different pathology. She had a completely different neurologic exam, all evidence of spinal cord compression.
Videotape Dep. of Bruce Rudin, M.D. (hereinafter "Rudin Dep.") 8:20-9:6, April 24, 2007.
Dr. Rudin recommended that Mrs. Elwood undergo surgery to correct the problems caused by the January 13, 2005 accident:
Q. And what recommendation did you make to fix the problem that was caused by the motor vehicle collision?
A. She needed a three-level cervical fusion and decompression."
Id. at 12:6-10.
Dr. Rudin performed this surgery on April 14, 2005. Following surgery, Mrs. Elwood developed an impacted bowel which necessitated a second hospitalization on April 28, 2005. According to Dr. Wesley Clayton, the development of the impacted bowel and the subsequent hospitalization were caused by the cervical spine surgery of April 14, 2005:
Well, we felt — at that time the preliminary diagnosis was constipation with an impaction that caused local inflammation, proctitis, and had led to the bleeding. We felt that this was a result of the surgery for her cervical fusion."
Videotape Dep. of J. Wesley Clayton, III, M.D. (hereinafter "Clayton Dep.") 10:23-11:3, Feb. 26, 2007.
Because the cervical spine surgery of April 14, 2005 did not completely resolve Mrs. Elwood's symptoms, she underwent a second surgical procedure on October 18, 2005. Dr. Rudin testified that the surgical procedure of October 18, 2005 was made necessary by the injuries suffered in the January 2005 accident:
Q. In your opinion, was that surgery made necessary by the injuries suffered in the motor-vehicle collision of January 13, 2005?
A. Absolutely.
Rudin Dep. at 18:20-24.
Dr. Rudin also testified that Mrs. Elwood's medical expenses of $155,568.21 were reasonable and made necessary by the January 2005 accident:
Q . . .In your opinion, were those medical expenses reasonable and made necessary by the motor vehicle collision of January 13, 2005?
A. Yes.
Id. at 22:24-23:4.
The defendant presented no expert testimony to rebut or contradict Dr. Rudin's opinions. As a result of the surgeries made necessary by the defendant's negligence, Mrs. Elwood suffered a bowel impaction, inability to swallow necessitating the placement of a feeding tube, placement of a metal plate in the cervical spine resulting in a 70% loss of function of the cervical spine, and permanent impairment to the cervical spine. As noted above, the jury award to Mrs. Elwood was less than her medical expenses.
Richard Elwood
Dr. Arnold Glassman testified that as a result of the January 2005 accident Richard Elwood suffered a "pinched nerve in his neck, what was called radiculophathy or he had a problem with the nerves in his wrist and hand." Dr. Glassman's diagnosis was objectively supported by an abnormal EMG. The defendant offered no expert testimony to rebut Dr. Glassman's opinion. The jury awarded no damages to the plaintiff, Richard Elwood. Mr. Elwood claims he is entitled to a new trial because the verdict is against the great weight of the evidence.
Videotape Dep. of Arnold Glassman, M.D. (hereinafter "Glassman Dep.") 8:12-14, March 13, 2007.
See Id. at 7.
DISCUSSION
Plaintiffs argue that under Christiana School District v. Reuling , the Court must grant a new trial and enter partial judgment as a matter of law in the amount of Mrs. Elwood's medical expenses because the defendant offered no expert testimony contradicting causation of plaintiffs' injuries. The defendant claims Reuling is distinguishable because although defendant presented no expert testimony on causation, he established through cross-examination of plaintiffs' medical experts factual disputes regarding the cause of plaintiffs' injuries and impeached their credibility by exposing inconsistencies in their testimony. According to defendant, Reuling is inapposite here because there was evidence of a pre-existing condition. Defendant also argues that, unlike in Reuling, here (1) there were pre and post accident MRIs which showed no objective change in Mrs. Elwood's spine; (2) Dr. Rudin's testimony regarding his recommendation for surgery was inconsistent with his pretrial report and February 2000 progress note; and (3) Dr. Rudin noted signs of myelomalcia but the radiologists did not.
1990 WL 72598 (Del.Supr.).
In Reuling, plaintiff was injured when his truck was rear-ended by a school bus at a red light. Two medical experts opined at trial that the accident caused Reuling's injuries. Both experts based their opinions on Reuling's subjective complaints which they confirmed by an objective medical test (CT scan). At the close of evidence, the Court granted Reuling's motion for a partial directed verdict on causation. On appeal, defendant claimed the trial judge erred by granting the directed verdict on causation because of factual disputes exposed through defendant's cross-examination of Reuling's medical experts. Defendant claimed his cross-examination demonstrated there was a span of a year and two months during which Reuling received no medical treatment, there was almost a three year gap between the accident and the corrective surgery, and the experts had no knowledge of the nature or extend of the accident. On appeal, the Delaware Supreme Court affirmed the trial court, finding that defendant's cross-examination of the medical experts did not elicit any testimony that would have changed their medical opinions as to causation.
Reuling, 1990 Del. LEXIS 146, at *9.
Defendant argues this case is more like Burkett-Wood v. Haines than Reuling. In Burkett-Wood, the plaintiff moved for a directed verdict on causation, arguing that her expert's testimony on causation was uncontradicted. The trial court denied plaintiff's motion. The jury awarded no damages to plaintiff, finding that defendant's negligence did not proximately cause plaintiff's injuries. Plaintiff then filed a motion for new trial. The trial court denied that motion, noting that under Amalfitano, zero damage verdicts are only against the great weight of the evidence when uncontradicted expert testimony establishes causation. When that expert testimony is based on a patient's subjective symptoms, it must be supported and confirmed by independent objective findings. The trial judge further noted that during the cross-examination of the medical expert, the defendant exposed discrepancies and potential bias flowing from the doctor's financial interest in the outcome. On appeal, the Delaware Supreme Court affirmed the trial court, finding that the expert's testimony was "confusing and contradictory." The expert's videotaped testimony and live testimony contradicted each other and failed to make clear whether the plaintiff's disc herniation was causally related or pre-existed the car accident. In one operative report, the expert indicated the surgery was for a herniated disc, and failed to mention the accident. In another, he described a preoperative diagnosis of degenerative disc disease and related it to the accident. According to the Delaware Supreme Court, in Burkett-Wood, the expert never "clearly" opined whether the trauma plaintiff sustained in the accident "slight though it may have been caused her herniated discs or whether her preexisting abnormality caused the herniated discs which prompted the surgery." The distinction between Reuling and Burkett-Wood drawn by the Delaware Supreme Court is the consistency and clarity of plaintiff's expert testimony on causation:
. . .[ Burkett-Wood] is easily distinguishable from Reuling. During Rudin's cross-examination, counsel reveals that Rudin had given two arguably inconsistent operative reports, and had also offered confusing testimony about the relationship between a herniated disc and degenerative disc disease. Despite Rudin's attempts to reconcile his testimony, Rudin's arguably inconsistent reports created a factual dispute about the cause of . . .[plaintiff's] injuries for the jury to resolve.
906 A.2d 756 (Del. 2006).
Amalfitano v. Baker, 794 A.2d 575 (Del. 2001).
The plaintiff's medical expert in Burkett-Wood was Dr. Rudin.
Burkett-Wood, 906 A.2d at 761, 765.
Id. at 762.
Id.
Id. at 764.
Id.
In sum, a plaintiff is not entitled to a directed verdict on causation just because a defendant offers no expert medical testimony to rebut causation. ". . .[A]rguably conflicting evidence given by a single expert related to causation cannot conclusively establish that the accident caused the injuries." The question here then is, was the expert testimony on causation in this case "uncontradicted" within the meaning of Amalfitano and Reuling, or was it contradictory and confusing like that in Burkett-Wood? After reviewing the record, the Court finds it to be the former. Although Defendant claims there are inconsistencies between Dr. Rudin's testimony and his records, at no point in his cross-examination did defense counsel "elicit any testimony from . . .[plaintiffs' expert] that would have changed . . .[his] medical opinion as to the cause of the surgery." Unlike in Burkett-Wood, Dr. Rudin's testimony here was not contradictory or confusing. He did not waver on his opinion that Mrs. Elwood's surgery was causally related to the accident. According to Dr. Rudin, following the car accident in question, Mrs. Elwood had "completely different pathology" and a "completely different neurologic exam." Dr. Rudin clearly opined that as a result of the auto accident Mrs. Elwood "was significantly hurt compared to what she had before. Before [the accident] she had a nuisance problem. [After the accident] . . .she had a . . .threatening problem." When asked if the three level cervical fusion and decompression surgery performed on April 14, 2005 was "made necessary" by the injuries suffered in the car accident, Dr. Rudin replied, to a reasonable degree of medical probability, "absolutely."
Id. at 765.
See Id. at 764.
Rudin Dep. at 9:3-5.
Id. at 12:1-4.
Id. at 12:19.
The inconsistencies and confusion noted in Burkett-Wood are not present in this case. Having now had the benefit of thoroughly reviewing the transcript of Dr. Rudin's trial testimony, the Court realizes it should have granted Plaintiffs' motion for partial judgment as a matter of law in the amount of Mrs. Elwood's medical expenses and finds that the jury verdict is against the great weight of the evidence. Consequently, the Court GRANTS plaintiffs' motion for a new trial pursuant to Amalfitano and Reuling and enters partial judgment as a matter of law in the amount of Mrs. Elwood's medical expenses of $155,568.21.
Mr. Elwood
Loss of Consortium Award to Mrs. Elwood
See Plaintiffs' Opening Brief in Support of Their Motions for a New Trial and For Judgment as a Matter of Law, D.I. 40 at 4-5.
* * *
For all these reasons, Plaintiffs' Motion for New Trial and Partial Judgment as a Matter of Law is GRANTED.
IT IS SO ORDERED.