Opinion
C.A. No. 99C-05-006
Submitted: November 7, 2001
Decided: February 22, 2002
Upon Consideration of Plaintiff's Motion For a New Trial or Additur. DENIED.
Bernard A. Van Ogtrop, Esq., Wilmington, Delaware, Attorney for Plaintiff.
Louis B. Ferrara, Esq., Wilmington, Delaware, Attorney for Defendant.
ORDER
Upon consideration of the plaintiff's motion for a new trial or additur, the defendant's response, and the record of the case, it appears that:
1. The plaintiff moves for a new trial after a jury awarded him $5,200 for injuries received in an automobile accident. The accident occurred on May 9, 1997 when the plaintiff was struck from behind while stopped at a red light. On the day following the accident, the plaintiff realized that he had sustained an injury to his shoulder. He went to his family doctor who referred him to Dr. Jani, an orthopedic surgeon. Dr. Jani determined that the plaintiff had tendinitis and winging of the left scapula. An EMG was normal. An MRI showed a "posterior labril tear perhaps" and a "questionable posterior glenoid fracture." The plaintiff saw Dr. Jani approximately five times between May 14, 1997 and August 6, 1997. In August he began seeing Dr. Fenlin. Dr. Fenlin performed a CT arthrogram which was normal. X-rays were also normal. On February 2, 1998 Dr. Fenlin performed a diagnostic arthroscopy. It demonstrated that the plaintiff did sublux posteriorly and did have a laxed capsule. It also demonstrated that there were posterior labral wear changes and posterior instability. The arthroscopy did not result in any further treatment. Dr. Fenlin's final conclusion, expressed in a report dated November 30, 1999, was that the plaintiff suffered some permanent residual injury from the May 9th accident consisting of mild posterior instability and scapular winging. He concluded that the plaintiff could perform all daily routine activities without restriction and could work without restriction, but that the plaintiff should not engage in power lifting. Prior to the injury the plaintiff had been heavily involved in the sport of power lifting.
2. The plaintiff submitted lost wages of $8,500.12 over PIP and medical expenses of $6,985.71 over PIP. He contends that the verdict of $5,200 is manifestly and palpably against the great weight of the evidence. The defendant opposes the plaintiff's motion and contends that the verdict is supported by the evidence.
3. 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, Del. Super., 161 A.2d 579, 580 (1960).
James v. Glazer, Del. Supr., 570 A.2d 1150, 1156 (1990).
Young v. Frase, Del. Supr., 702 A.2d 1234 (1997).
Storey v. Camper, Del. Supr., 401 A.2d 458, 465 (1979).
McCloskey v. McKelvey, Del. Super., 174 A.2d 691 (1961).
4. Although the jury obviously rejected the plaintiff's claim for lost wages and medical expenses, I am not persuaded that the evidence in this case satisfies the standard for granting a new trial. The plaintiff saw Dr. Jani approximately five times between May and August 1997. There was evidence that he was scheduled for at least one appointment with Dr. Jani after that which he did not keep. Yet as late as November 1997, three months after he last saw the plaintiff, Dr. Jani submitted an attending physician's report to the plaintiff's PIP carrier indicating the plaintiff was unable to work. Between December 23, 1997 and May 7, 1998, the plaintiff had five appointments with Dr. Fenlin, three of which, according to Dr. Fenlin's records, he did not keep. The plaintiff testified he was out of work from May 1997 to May 1998. Dr. Fenlin noted in May that the plaintiff could return to work without restriction, but this notation came after the plaintiff did not keep appointments in February and March and had not been seen by the doctor since the February 2nd diagnostic arthroscopy. There was evidence that the defendant never filled a prescription for pain medication which Dr. Jani gave him in May 1997 because he never exhausted some free samples of the medication which Dr. Jani gave him at that initial appointment. The plaintiff had a total of approximately eight doctor's appointments between the two physicians, not including the visit to the hospital where Dr. Fenlin performed the diagnostic arthroscopy. The evidence seems to indicate that the plaintiff did not undergo any extensive treatment.
5. While the evidence supports a conclusion that the plaintiff received a shoulder injury in the accident, a jury could reasonably have serious reservations about the plaintiff's claim that he couldn't work for a year. Similarly, while I have no doubt that there was nothing wrong with Dr. Fenlin's decision to do the diagnostic arthroscopy, a jury could reasonably have reservations about the actual necessity of that procedure, which apparently accounted for most of the outstanding medical bills. An award of $5,200 is not against the weight of the evidence and does not shock the Court's conscience and sense of justice.
6. The plaintiff's motion for a new trial or additur is denied.
IT IS SO ORDERED.