Opinion
Civil Action No. 98C-03-126SCD
Submitted: April 27, 2001
Decided: May 8, 2001
Somers S. Price, Esquire Potter, Anderson Corroon.
James J. Haley, Jr., Esquire Ferrara, Haley, Bevis Solomon, P.A.
Dear Counsel:
This case arises out of an automobile accident which occurred on March 15, 1997. The defendant struck the vehicle occupied by the plaintiff and her husband from the rear. The force of the impact drove the stopped van forward approximately 50 feet. The vehicle was not repaired; it was considered a total loss. The negligence of the defendant was admitted, the personal injury claim of Mr. Hans Gass was settled prior to trial. The issue before the jury was the nature and extent of the injuries sustained by Mrs. Annette Gass ("Gass") and the value of Mr. Gass consortium claim. The jury returned a verdict of $75,000 for Gass, and $10,000 for her husband.
The defendant has filed a motion for remittitur arguing that the verdict is too high; that it is against the great weight of the evidence.
Storey v. Camper, Del. Supr., 401 A.2d 458, 465 (1979).
This case was unusual in that Gass had been treated for breast cancer for a number of years before the accident. She had finally reached the point where her cancer was considered cured, and she could move on with her life. She had aspired to go to school and become a nurse but the cancer, its treatment, and associated recuperation had interfered with those plans. She was working at a physician's office at the time of the accident. It was a Saturday when the accident occurred. She went to work the following Monday in spite of her pain because it was a small office and she was concerned about not being there. Her employer treated her initially, for her neck and right scapula pain. It was her employer, who had seen the before and after condition of the plaintiff, and had observed her condition for an extended period of time after the accident, who testified that her condition may continue to be intermittent. Because of her cancer treatment, she was limited in the use of her left shoulder, the right shoulder was injured in the accident because of the seat belt which restrained her. Thus it became difficult for her to carry things.
It is easy to understand why the jury would like Gass. She persevered in the face of her injuries, continued to work, then went back to school to secure the education she desired. Her activity resulted in periods of severe pain which were documented in the medical records.
During the post-accident period Mr. Gass was called upon to assume more of the responsibilities at home for the family. He shared the burdens associated with her determination to work because working left Gass exhausted, so Mr. Gass had to take care of the domestic responsibilities to a greater degree.
The defendant's doctor testified that the plaintiff had a post-concussive headache syndrome secondary as a result of the accident and that she had an inter-scapular pain syndrome. There was an issue as to whether he had seen all 1f the plaintiffs treatment records. He expressed the opinion that her symptoms were not permanent.
As is often the case, the experts disagreed. The most compelling testimony was that of the plaintiffs, neither of whom was given to exaggeration. They presented themselves as hard working people who continued to be hard working in the face of two major set-backs, Gass' cancer and the automobile accident.
Given the nature of the complaints described, which had persisted on an intermittent basis until the day of trial some four years later, the chronic nature of the injury was in evidence. The jury was also informed that a person of Gass' age and sex has a life expectancy of 44.9 years. Under the totality of the circumstances, the jury's verdict as to either plaintiffs injuries, or the consortium claim, is not unreasonable or excessive. The motion for remittitur is DENIED.
IT IS SO ORDERED.