Opinion
Civil Action Number 97C-02-249-RRC.
Submitted: December 20, 1999.
Decided: January 21, 2000.
Upon Motion of Plaintiff for New Trial and/or Additur — Additur GRANTED
Robert K. Beste, J r., Esq., of Biggs and Battaglia, attorney for plaintiff
Keith E. Donovan, Esq., of Swartz, Campbell Detweiler, attorney for defendant
MEMORANDUM OPINION
Plaintiff Neshama Lynn Garrett has moved for a new trial or in the alternative for additur. Following a one-day trial, the jury awarded her damages of one dollar. Negligence had been admitted.
The Court has determined that the jury's damage award is inadequate. It awards Garrett additur which, if accepted by the defendant, negates the need for a new trial. If rejected, a new, trial on damages will be awarded.
FACTUAL BACKGROUND
Garrett, who is 35 years old, was driving northbound on Walnut Street on March 7, 1995. She had just passed the light at Fifth and Walnut Streets when the car in front of her slowed to pull into a driveway. She slowed but Preston Virges, then 74, who was behind Garrett, could not stop in time and his vehicle hit hers. She says she was pushed forward about one half of a car length. He did not think that happened.
The damage to the respective vehicles was minimal. Garrett said a picture showing a gouge in the rear bumper was a poor one since it was taken in less than ideal weather. A police officer examined the damage to both vehicles and determined it was insufficient to warrant reporting.
When Garrett was hit, her seat belt engaged. She, however, did not strike her head on the steering wheel. There was no report to the police officer of injury. Both cars were drivable after the accident. Garrett said, as she drove off, her left front tire squeaked for the first time, although, on cross-examination, she told the jury a repair person attributed the squeaking to a non-accident-related cause.
Later the night of the accident, Garrett said her muscles became sore. When she called an emergency room, she was told it was not necessary to come in. She went to work the next day but felt stiff. While there, she said, she dropped a book due to numbness in her fingers. At her supervisor's suggestion, she went to the St. Francis emergency room. While there, she was given a neck brace which she testified she wore for three weeks. She was referred to two physicians and the Delaware Spine Center where she started treating on March 16, 1995. At that time, she says, she had severe neck pain, pain in her top left shoulder which radiated down her left arm. She said her fingers were numb, too.
Garrett treated at the Spine Center eleven times for neck, shoulder and back symptoms. Its records indicate that some or all of her problems were resolved as of May 5, 1995. She was cleared to resume normal activities. She continued, or resumed after a flare-up, with more physical therapy first at Physical Therapy and Spine Rehabilitation and then Delaware Curative Workshop. She switched to the latter, she said, since it was closer to her home. While her neck, shoulder and arm pain was the focus in the first few months of treatment, her back became the focus around August 1995 at the Workshop. The Workshop's records indicate that her neck and shoulder problems got better. The back pain, she said, caused some limitations. Garrett said she had no back problems prior to this accident. She had, however, had shoulder problems. The symptoms were shoulder "clicking," "cracking" and "crunching." Her last visit for this problem was to an orthopaedist in 1993.
Dr. Joel Stern of the Spine Center sent Garrett to Dr. James Cho, a chiropractor. She treated with him 56 times. Eventually, Dr. Cho sent Garrett to Dr. William Atkins, a physiatrist. She saw him for the first time on March 7, 1996. She complained to him of left neck pain, radiating down her left arm to her fingers. She told Dr. Atkins she had left sided mid-back pain and low back pain.
Dr. Atkins examined Garrett and palpated a spasm on the L4 — S1 area and one in the neck. These, he said, were consistent with the accident. When he saw her again in April 1996, there was some improvement. Her next visits in August and October indicated some improvement but the symptoms were about the same.
Garrett suffered flare-ups in 1997 which, Dr. Atkins said, can result from normal activities. When he saw Garrett on June 30, 1997, she had a spasm and tenderness in the left trapezius muscle. As of that time, she was to return to him on an as needed basis. Due to a flare-up in August 1998, he placed some work restrictions on her.
Her injuries, basically neck and back strain and sprain, are permanent and will flare-up from time to time. Dr. Atkins testified bulges in her L4 — L5, L5 — S1 area shown on MRI's taken post-accident helped explain the lower back pain she was having. He denied that cysts shown on the same MRI's were the cause of her lumbar pain as their location was inconsistent with the areas of pain Garrett described.
Garrett testified she lost 30 to 35 days from work due to her back pain. Her above-PIP lost wage claim was $2,516. Her medical expenses not covered by PIP came to $6,019.31, which Dr. Atkins said were reasonable and necessary. Even though she testified she feels much better now, she has occasional flare-ups in her neck and shoulder. She placed her current neck pain on a three out of ten scale. Her last pain medication prescription was around a year before the trial.
She also told the jury of the pain's impact on her activities. While with her daughter in Disney World in 1996, she said she had a flare-up and spent most of the time in a hotel room. A drive to Virginia Beach in early 1997 resulted in back pain and caused her to sleep on the floor. Even though she can drive, she avoids long distances. Garrett said that due to back pain, she has given up other activities, such as assisting with a girl scout troop, a teenage mentoring program and being active in her community association.
After absorbing all of this, the jury awarded Garrett one dollar prompting her motion for new trial or additur.
DISCUSSION
A jury's verdict is presumed to be correct. The Court will not set aside a verdict as insufficient unless it was the result of passion, prejudice, partiality or it is clear the jury disregarded the evidence or the rules of law. To set aside a jury's verdict, it must be against the great weight of the evidence. Or, it must be so grossly disproportionate as to shock the Court's conscience.
Young v. Frase, Del.Supr., 702 A.2d 1234, 1236-37 (1997).
Lacey v. Beck, Del.Super., 161 A.2d 579, 580 (1960).
Storey v. Camper, Del.Supr., 401 A.2d 458, 465 (1979).
Mills v. Telenczak, Del.Supr., 345 A.2d 424, 426 (1975).
Low or minimum impact, soft tissue (now colloquially labeled in the bar as LIST or MIST) cases continue to vex the Court, as well as counsel, litigants and juries. This case is no different. It joins the legions of cases, and now post-trial opinions, where there is a very low or zero verdict. There is no discernable, single thread running through all these verdicts nor how this Court has dealt with them. Indeed, even the Supreme Court has struggled with cases such as this, as illustrated in two diametrically opposed and irreconcilable opinions. A comparison of Szewczyk v. Doubet with Maier v. Santucci shows this point. A plaintiff's credibility and demeanor are very, if not the most, significant factors, ones uniquely observed by a trial judge.
Del.Supr., 354 A.2d 426 (1976).
Del.Supr., 697 A.2d 747 (1997).
These and features of such cases were present here, too. There was some degree of pre-existing injury, a point which Garrett sought to minimize and which may have lessened her credibility to the jury. Another is that the defense, as in other cases, followed the deft strategy of admitting negligence. This meant whatever credibility backlash which could hurt the defendant was reduced or eliminated. It would also appear that this jury, like so many others, had difficulty in equating a low impact, soft tissue injury to the span of time of Garrett's injuries, losing over a month from work and the above-PIP medical bills.
Virges, 79 at trial, came across as a sweet, elderly man. It is doubtful, because of his personality, that the jury focused on his probable impaired driving judgment betrayed during his testimony.
See cases cited in Essler v. Valentine, Del.Super., C.A. No. 93C-12-005, Herlihy, J. (May 8, 1996).
Unlike so many other cases, however, this jury determined the plaintiff was injured. It was not unusual in earlier jurisprudence to award one dollar in damages, but it is a phenomenon not seen recently. It is the jury's award of that token damage which separates this case from zero verdict cases. In this case, the Court finds that token award is against the great weight of the evidence and that its conscience is shocked. To reach that conclusion about a jury award, giving great deference to the verdict and the role of juries in our system, is not a conclusion lightly or easily reached.
In reaching this conclusion, the Court is also mindful that the jury, not the Court, is the determiner of witness credibility. There were areas of Garrett's testimony prone to credibility problems. But, the medical evidence was internally consistent and significantly uncontradicted. A jury is free to reject that evidence even if uncontradicted. Also, where a jury has reason to doubt a patient's credibility and a doctor's opinion is premised, in part or in whole, on a patient's (plaintiffs) complaints, it is free to reject the medical opinion.
Sheeran v. State, Del.Supr. 526 A.2d 886, 892 (1987).
Longoria v. State, Del.Supr., 168 A.2d 695, 704 (1961).
DiSabatino Bros., Inc. v. Wortman, Del.Supr., 453 A.2d 102, 106 (1982).
But, there was far more than Garrett's subjective complaints. There were spasms present even over a year later when Dr. Atkins' palpated Garrett. There were disc bulges in areas of her lumbar spine consistent with, the doctor said, the areas of complaint she mentioned. The progression of her therapy, feeling better, being able to return to work but nagging occasional flare-ups were all consistent with an injury; an injury commanding more than one dollar to provide just, fair and reasonable compensation.
Even discounting what might arguably be Garrett's exaggerated response to her injury — giving up all of her activities — one dollar is still not enough. There was no evidence of a pre-existing back injury and no evidence any prior medical problem causing lost days from work, as with this accident.
For these reasons, the jury's verdict cannot stand. The alternatives are to grant a new trial or grant additur. This Court has already crossed the legal Rubicon on additur. Where there is a zero verdict, this Court has granted additur. But, in this case, there was not a zero verdict; there was a verdict too small to justly compensate this plaintiff. This Court has crossed that tributary of the Rubicon by awarding additur when it deemed the damage award was too low.
Hall v. Dorsey, Del.Super., C.A. No. 96C-06-045, Quillen, J. (November 5, 1998).
Carney v. Preston, Del.Super., 683 A.2d 47 (1996).
In this case, additur is an appropriate remedy. In granting additur, every reasonable factual inference must be given to Virges. As noted, Garrett introduced evidence of medical expenses and lost wages not covered by PIP. In determining the amount of additur, the Court is keeping in mind that the jury was instructed that Garrett's claims for lost wages and medical expenses were above those already covered by PIP. The above-PIP claims totaled $8,535.31. Neither the Court knows now nor did the jury know then how Garrett's PIP payments were divided between lost wages and medical expenses. It goes without saying that in awarding one dollar, the jury determined the above-PIP expenses were not to be recovered. In light of the role of additur, the Court will not grant additur for those expenses.
Id. at 56.
But, since PIP provided coverage for "specials" and not pain and suffering, the Court finds that an award for pain, suffering and disability is an appropriate element of damage to award. Based on (1) several months of intensive treatment, (2) the on-going flare-up nature of her injury, (3) the objective symptoms of spasm, (4) the thirty plus days missed from work, and (5) affect on her life, the Court awards Garrett an additional $3,100 for her pain and suffering.
CONCLUSION
A new trial in damages will be ordered unless the defendant Preston Virges files a written acceptance of that amount within ten days of the date of this opinion. If the defendant rejects this additur or takes no action, there will be a new trial on damages. If the defendant Preston Virges accepts the additur, the jury's verdict of one dollar will be stricken and an award of $3,100 will be entered on the record in Neshama Lynn Garrett's favor.
IT IS SO ORDERED.