Opinion
Civil Action No. 99C-01-001.
Date Submitted: January 27, 2000.
Date Decided: June 8, 2000.
Motion for Additur or New Trial DENIED
Scott E. Chambers, Esquire, Schmittinger and Rodriguez, P.A., Delaware, Attorney Dover, for Plaintiff.
Robert J. Leoni, Esquire, Mason, Ketterman, Morgan and Shelsby, P.A., Newark, Delaware, Attorney for Defendant.
MEMORANDUM OPINION
INTRODUCTION
Following a jury trial, plaintiff was awarded $10,000 for injuries sustained in an automobile accident where negligence was admitted. The matter is now before the Court on a Motion for Additur, or, alternatively, for a new trial. In this regard, objection is made to the use of in formation from a settlement letter in an unrelated suit, and from a ruling that forbade plaintiff from commenting on the absence of an independent medical examiner as a defense witness. These motions are denied for the reasons discussed below.
STATEMENT OF FACTS
Plaintiff, Trudy Jackson ("Jackson" or "plaintiff") brought this personal injury action for general damages following an accident with defendant, Katherine Rotach ("Rotach" or "defendant") on June 18, 1997 ("June accident"). Jackson was a passenger in the vehicle of Earlyn Jackson. It was struck by Rotach, who passed through an intersection and hit the driver's side of the Jackson vehicle. No impact damages occurred to the passenger part of the car. Jackson was seen at Beebe Medical Center ("BMC") and was hospitalized for six (6) days, being discharged on June 24, 1997. Her treatment focused primarily on her sternum and left leg. Her right knee and breast were also bruised. The chest bone was fractured. Xrays ruled out fractures to her legs or knees, and no other broken bones were noted. Although there was initial concern about possible heart and lung damage, injuries of this nature were ruled out following observation.
At BMC, Jackson received bed rest, physical therapy, and medication for her pain. A physical therapy note of June 20, 1997, indicated her rehabilitation potential to be good. On June 23, 1997, Jackson was able to walk independently without assistance. No walkers or crutches were needed or prescribed. After several visits with her treating physician, Dr. Anis Saliba, her recovery progressed well. She returned to work in September at BMC where she is an aide and knows Dr. Saliba. From an office note (September 25, 1997) and testimony, Dr. Saliba intended to discharge Jackson from further treatment after one last visit. His office note reports her condition: "Improving, doing much better. The leg has a small hematoma, but subsiding slowly. Localized tenderess . . . Continue her work and to be rescheduled, probably for the last time, in six weeks." By September 25, 1997, Jackson had largely recovered from all of her injuries, except for the small area of the left leg.
Before her final visit, however, plaintiff, when driving her car, was rear-ended in a second accident caused by Travis Lee White on October 11, 1997 ("October accident"). Her legs were pinned under the dashboard, and, being trapped, she had to be extricated from the vehicle. Taken to BMC by helicopter, Jackson was seen by emergency room personnel and another doctor covering for Dr. Saliba. Her injuries encompassed her hip, back, neck and right leg. Injury to the left leg was reported. Thereafter, Jackson was also treated by Dr. Saliba, Dr. James Marvel, an orthopedic surgeon, and by a physician in a pain management clinic. Dr. Marvel found that the October accident aggravated a preexisting degenerative disease of the lumbar spine. Jackson's last visit with Dr. Saliba was in July of 1998, and her follow-up appointment was missed.
Jackson made a claim for damages against White following the second accident. A six page demand letter was sent by her present attorney on August 11, 1999, to Progressive Casualty Insurance Company (the "Progressive letter"). It was shared with plaintiff beforehand, and a copy was provided for her information. This claim was settled for the policy limit of $25,000. At the time the demand letter was issued, counsel and Jackson had a letter from Dr. Saliba, dated March 25, 1998. That letter was also a trial exhibit in the present matter. It attributed permanent left leg disability with walking difficulties solely to the June accident.
In the complaint against Rotach, damages were sought for permanent and other injuries from the June 1997 accident. An independent medical examination (IME) was done by Dr. Ali Kalamchi. His trial deposition was noticed, and he was listed as a defense expert witness in the pretrial stipulation. The plaintiff reserved the right to call any defense witnesses. The IME report, although provided to plaintiff, was not listed as an exhibit, nor did plaintiff subpoena Dr. Kalamchi to testify after the trial deposition was canceled.
In his opening statement, plaintiffs counsel emphasized the claim for continuing left leg pain and resulting altered lifestyle. Earlyn and Trudy Jackson testified, and Dr. Saliba's video deposition was played for the jury. Plaintiff presented nine (9) exhibits. The defendant relied on cross-examination of Dr. Saliba, together with seven (7) exhibits. The documents from both sides showed pictures of the plaintiff, together with medical records from both accidents.
Following verdict, these motions were filed.
DISCUSSION Additur or New Trial on Damages
When considering requests to nullify a jury's verdict, like a motion for additur or a new trial, the trial court must not impinge on the jury's province. As the judge of the facts, its verdict, if supported by the evidence and law, must be upheld and is given deference. Gannett Co., Inc. v. Re, Del. Supr., 496 A.2d 553 (1985). Because a jury has latitude, a verdict is rescinded only in the presence of inconceivable findings where it is evident that a great injustice has occurred. Grand Ventures, Inc. v. Whaley, Del. Supr., 632 A.2d 63 (1993). The Court must review the record and determine whether "the jury's award of damages is within a range supported by the evidence." Young v. Frase, Del. Supr., 702 A.2d 1234, 1237 (1997). If the Court's sense of justice is so offended as to "shock the conscience," then additur may be granted. Id., citing Mills v. Telenczak, Del. Supr., 345 A.2d 424 (1975).
A $10,000 award is not inadequate in this case, is within a range of a reasonable verdict, and is not the product of passion, prejudice or sympathy. The jury is entitled to determine the credibility of the claims and to determine their worth. At BMC, the emergency room doctor only reported "mild"distress. Although disputed by Dr. Saliba, the record was before the jury as was plaintiffs testimony and demeanor. When discharged after six (6) days, plaintiff was able to walk and returned to work in September. Dr. Saliba's office notes were optimistic before the October accident, and Jackson only had a small hematoma to her left leg.
The parties recognized, and the jury was instructed, that damages could not be awarded for the second accident. In the photos of Earlyn Jackson's car, the damage to the driver's side was obvious, and an inference could be made that the impact did not seriously affect plaintiff She was wearing a seatbelt.
The medical records also provide a rational basis for the verdict. The plaintiff was mostly healed by September. After the second accident, Jackson was injured in other areas of her body. In reviewing the records, a jury could conclude that Jackson reinjured her left leg and that any walking problems were attributed to the second accident. Even Dr. Saliba acknowledged this possibility in the following exchange:
Q. All right. And just to get back to my point, but she also was having pain and problems with her right leg, as well?
A. Yes, indeed.
Q. And that was radiating from her right hip and her lower back?
A. Uhhuh.
Q. And all that had nothing to do with the first accident; is that right?
A. Yes, that's true.
Q. January 5, 1998, and again you saw her because of the pain in her lower back which was going to her right leg and, in fact, causing her some positive objective findings regarding her right leg; is that right?
A. That's right.
Q. And, again there, there is no mention of any leg problem?
A. No, this is from the second accident, yes.
Q. And in January of 1998 when you saw her, she wasn't complaining of any left leg problem?
A. There is no mention.
Q. Okay. You saw her again on January 20 of 1998, and again there is no complaint of any left leg problem; is that right?
A. It's not specific about the leg, but she is still having difficulty with walking and lifting. I do not know how much the leg is contributing to that. I have a brief summary here, but she is still, you know, having problems with walking and lifting, but I don't have any difference due to the back or due to the leg. I do not know. I do not remember.
Q. . . . What you have written there on January 20, 1998 is "back problem on the right side, still having difficulty with lifting and walking around, but improving slowly as expected."
A. Uhhuh.
Q. Now, that difficulty with walking and lifting is from the back problem.
A. It should be, mostly. Yes, I agree, according to that.
Dr. Saliba transcript video deposition at pages 44-45.
From this testimony and similar evidence, a jury could rationally conclude that Jackson's left leg was not permanently impaired from the Rotach incident and that any walking problems came from the second accident. Dr. Saliba did not give a permanency rating until March 20, 1998. His notes indicated a 10 percent rating while plaintiffs letter of March 28, 1998, had 15 percent. His March 20, 1998 note indicated soft tissue injury, but this finding was inconsistent with a radiologist's examination while at BMC. In July of 1998, his rating was between 8-10 percent.
While these discrepancies were thought by Dr. Saliba to reflect clerical mistakes (10 percent for 15 percent), a jury could conclude that the rating was affected by the second accident, or that Dr. Saliba did not fully appreciate critical facts, such as the pinning of her legs, and the reports of injury to the left leg after the October collision. When pressed about the absence of documentation of Jackson's walking problems, Dr. Saliba recalled that she had crutches during an office visit. Plaintiffs medical records reflect that assistance devices were not ordered because of the Rotach accident. Further, plaintiff even contradicted Dr. Saliba's recollection.
The plaintiff testified. She denied hurting her left leg in the second accident before trial. This was inconsistent with the record, and even Dr. Saliba found a slight aggravation. According to Jackson, she has constant pain and suffering and had to buy larger size shoes. This is not reflected in any of the treatment records as would be expected. Although Dr. Saliba's notes in September of 1997 reflect a good recovery, and although his records show an absence of complaints about the left leg, plaintiff insisted her left leg gave her continuing problems. This is in sharp contrast to her representation of good health in the Progressive letter.
In light of the evidence, Jackson could be seen as "gilding the Lilly." Jackson made a quick recovery in a short period of time. The jury's award was within the range of possible verdicts and is not against the weight of the evidence. The size of the award is not shocking nor a great injustice. Neither additur nor a new trial on damages is appropriate for these reasons.
In any event, plaintiff did not sustain the burden to delineate the injuries between the first and second accidents. The jury properly followed the instruction that compensation could not be awarded for problems resulting from the October accident.
Settlement Information
At trial, plaintiffs physical condition was in issue. From the opening statement through introduction of records and testimony, Jackson sought money for continuing pain and suffering and changed lifestyle. When demanding settlement on August 11, 1999, for the second accident, however, the following sentence was written: "Prior to this accident, Ms. Jackson was able to move about doing all her normal activities pain free." When questioned, over objection, about this assertion, plaintiff denied the statement was true.
Plaintiff contends, as she did at trial, that the information was not admissible under Delaware Rules of Evidence ("DRE"), Rule 408. According to counsel, "I would have never sent this letter unless it was done in accordance with the Rules of Evidence with the offer of compromise. It's without prejudice and that's precisely what it means. It's without prejudice to any subsequent-any other position that I may take . . ."
Trial transcript at page 27.
Rule 408 states, in pertinent part, that evidence relating to compromise or compromise offers is "not admissible to prove liability for or invalidity of the claim or its amount." The policy reasons require no citation. Parties should be able to settle cases without fear of disclosure of sensitive matters. The courts are overwhelmed with litigation, and efforts to reduce the volume of cases include protection of negotiations. As stated in Fiberglass Insulators, Inc. v. Dupuy, 4th Cir., 856 F.2d 652, 654-655 (1988), this rule is broader than the common law exclusionary rule and excludes from evidence all statements made in the course of settlement negotiations to foster the public policy favoring settlement of disputes. It applies to matters raised in the same transaction or parties to the same or closely related suits. Id.
On the other hand, the rule does not limit evidence that is offered for "another purpose." DRE 408. Impeachment on a prior inconsistent statement about a subject at issue is a legitimate "another purpose" for which settlement information may be used. Roclien v. Huang, Del. Super., C.A. No. 87C-JN-96, Gebelein, J. (January 6, 1989). Here, the Progessive letter involved a second, unrelated accident in October of 1997. The statement in the letter was factual and equivalent to Jackson saying it. It was offered for another purpose, namely impeachment of plaintiffs claim against Rotach for the left leg injury.
Even in the same dispute, statements of fact made in settlement negotiations may impeach changing factual positions at trial. On this subject, the Superior Court has opined:
. . . a statement of fact made by a party during settlement negotiations which is contradicted later may be used to impeach the later statement. However, the court must limit the evidence so that only the specific statement of fact is impeached . . . If at trial the defendant should contradict a statement of fact he made during settlement negotiations, the defendant's trial testimony may be impeached by using the prior statement.Id.
In Rochen, comments by a litigant's prior lawyer that defendant might or might not admit to imprudent conduct did not constitute sufficient statements of fact and were excluded. An attorney's subjective belief is not a factual assertion.
In this case, the sentence, "Prior to this accident, Ms. Jackson was able to move about doing all her normal activities pain free" states a fact completely at odds with the factual position advanced at the Rotach trial. Either she recovered before the October accident as claimed in the August 11, 1999 letter or she did not. It cannot be both. What is the truth of her injury claim?
Let us not forget the purpose of the Rules if not of our justice system. DRE 102 states: "These Rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined." This rule has been applied to settle questions of interpretation. See, Ohler v. United States, 68 U.S.L.W. 4396, 4398-99 (2000); United States v. American Cyanamid Co., SDNY, 427 F. Supp. 859, 866 (1977).
Plaintiff argues unfair prejudice because the statement only reflected the attorney's words. Yet, a lawyer can bind a client in many ways. For example, in a civil suit for damages, a trial court improperly restricted a defendant from using allegations contained in an earlier lawsuit filed by the plaintiff. See, Williams v. Union Carbide Corp., 6th Cir., 790 F.2d 552, 555-556 (1986). The plaintiff sought recovery for damages from toxic exposure from Union Carbide but also claimed the same damages resulted from an acetylene explosion. Despite his attorney writing the first complaint, the court ordered the varying positions could nonetheless be used for cross-examination of the party to show prior inconsistent statements and substantive party admission. The explosion involved causation, and the belief it caused his injuries was probative to impeach the accusation against Union Carbide. Id.
An attorney's opening statement in an earlier trial may also be used adversely. A lawyer cannot say his client's wife was not involved in criminal activity at one trial and then change the story for convenience. See, United States v. McKeon, 2d Cir., 738 F.2d 26, 31-33 (1984). As was observed by that court:
We believe that prior opening statements are not per se inadmissible in criminal cases. To hold otherwise would not only invite abuse and sharp practice, but would also weaken confidence in the justice system itself by denying the function of trials as truth-seeking proceedings. That function cannot be affirmed if the parties are free, wholly without explanation, to make fundamental changes in the version of the facts within their personal knowledge between trials and to conceal these changes from the final trier of fact.
Support for this conclusion may be found in the analogous issue of the admissibility of superseded pleadings in civil litigation. The law is quite clear that such pleadings constitute the admissions of a party opponent and are admissible in the case in which they were originally filed as well as in any subsequent litigation involving that party . . . A party thus cannot advance one version of the facts in its pleadings, conclude that its interests would be better served by a different version, and amend its pleadings to incorporate that version, safe in the belief that the trier of fact will never learn of the change in stories . . .Id. at 31. (Internal citations omitted.)
These principles were recognized in Andrews v. Metro North Commuter R. Co., 2d Cir., 882 F.2d 705, 707 (1989) where a district court's refusal to permit the jurors to be informed of an amendment and to examine the original complaint for comparison was a substantial abuse of discretion.
Thus, words of attorneys carry consequences. Counsel acknowledged he was Jackson's authorized agent, shared the letter with her, and sent plaintiff a copy. These points were not disputed by Jackson. Presumably, plaintiff told counsel the full story before the August demand was sent and before filing the Rotach suit on January 4, 1999, as required by Superior Court Civil Rule 11. See Id. There is every reason to believe that plaintiff participated in the development of strategy regarding her leg, pain and restricted activities for both accidents. She may reasonably be said, therefore, to have manifested a belief in the differing versions of the facts [DRE 802(d)(2)(B)], and to have authorized their presentation [DRE 801(d)(2)(C)]. See, United States v. McKeon, supra, at 34. The sentence in the Progressive letter was Jackson's-stating she was able to move about doing all her normal activities pain free before the second accident.
Trial Transcript at pages 26, 31.
Nor was plaintiff unfairly prejudiced under DRE 403. In United States v. Firestone, 11th Cir., 816 F.2d 583 (1987), the 11th Circuit stated:
The district court's discretion to exclude evidence under Rule 403 is limited. Evidence may be excluded only when its probative value is substantially outweighed by the danger of unfair prejudice. As we have cautioned, Rule 403 is an extraordinary remedy which should be used only sparingly since it permits the trial court to exclude concedely probative evidence.
Id. at 585 (citations and internal quotations omitted).
In this regard, the Superior Court held:
The unfair prejudice contemplated by D.R.E. 403 means an undue tendency to suggest a decision should be made on an improper basis such as an emotional one, one characterized to shift the jury's focus away from the incident in question or to create risk of a minitrial thereby unnecessarily wasting time. Rule 403 is unlimited in the form of evidence to which it applies. J. Weinstein, Evidence § 403 (01) at 403-5 (1991).
State v. Long, Del. Super., Cr. A. No. K91-12-0047, Steele, J. (July 23, 1992) (Mem. Op.).
The prejudice to plaintiff was not unfair. She accused Rotach of causing permanent and painful injury and interference with her lifestyle and activities. The statement in the August 11, 1999 letter was clearly to the contrary. The second accident itself was before the jury. Realistically, the jurors knew a claim would have been made for it. The settlement amount and insurance were not mentioned. Defendant desired to use more information from the Progressive letter on cross-examination. However, the scope was limited to only one sentence.
Under these circumstances, Rules 408 and 403 do not provide a safe harbor for plaintiff.
Rule 35 Examination Information
Plaintiff claims error when she was prevented from showing that defendant had an Independent Medical Examination without calling the physician to testify. Plaintiff wanted to argue the negative inference accruing from a missing witness instruction. Jackson claims defendant unfairly attacked Dr. Saliba "in a vacuum."
Dr. Saliba's evidence was presented by video deposition taken six weeks before trial. At that time, he was cross-examined extensively and with reference to medical records and other matters pertaining to the first and second accidents. The defense introduced some of these documents. The weaknesses of her impairment claim and involvement of the second accident were highlighted by the questioning. Rather than a "vacuum," documentary evidence belied Dr. Saliba's position, some of which came from his own notes.
Notwithstanding the obvious, Jackson chose not to subpoena the IME physician to share the Rule 35 report with the jury, knowing full well the exposure that was foreshadowed. The IME report was available to plaintiff, the physician was listed as an expert witness on the pretrial stipulation, and his trial deposition had previously been noticed. It is as reasonable to assume, by her choice, that the report was not favorable to plaintiff. Nevertheless, Jackson wished the jury to conclude that this doctor was Dr. Saliba's alter ego. Essentially, plaintiff sought to avoid the risks of calling the IME doctor while reaping benefits as though the physician testified in her favor.
Certainly, plaintiff could have called Dr. Kalamchi. No ethical objection to the testimony was asserted. As the Supreme Court held:
. . . As required by Superior Court Civil Rule 35 (b), a copy of this report was also provided to Brittingham's counsel . . . Over Pinkett's objection, the trial judge permitted Dr. Fink to testify on behalf of the plaintiff, with his testimony limited to the contents of his earlier written report to counsel . . . When Dr. Fink agreed to examine Brittingham, he did so as an independent medical practitioner and was not in the employ of Pinkett or his insurer. Under the requirement of Rule 35(b), Dr. Fink was required to share the results of his examination with plaintiff and his counsel. Where, as here, an examining physician's trial testimony is limited to the contents of his report, the decision to compel the appearance at the behest of the opposing party is a discretionary one that may turn on the interests of fairness.
(Internal citation omitted.) Pinkett v. Brittingham, Del. Supr., 567 A.2d 858 at 860 (1990).
IME testimony has been compelled in many decisions. See, Home v. Kent General Hospital, Inc., Del. Super., Cr. No. 85C-AP-29, Bifferato, J. (Aug. 28, 1990) (slip op.) at 3; Sims v. Zayre Corp., Del. Super., Cr. No. 88C-DC-2 II, Gebelein, J. (May 8, 1990) (where defendant failed to subpoena its own medical expert, and expert did not object to plaintiffs subpoena, court permitted plaintiff to call defendant's medical expert). When the testimony is presented, the identity of the party who requested the exam is not permitted. Winchester v. Hertrich, Del. Super., 658 A.2d 1016 (1995). As Winchester states, "as a starting point, the evidence of who hired the expert is inadmissible unless events or testimony at the trial dictate otherwise." Id. at 1022. Here, the witness was not called, and nothing else warranted a different conclusion.
Nor was plaintiff entitled to a missing witness instruction. It may be an improper comment on the evidence, implicating the Delaware Constitution's restriction on this subject. Boyer v. State, Del. Supr., 436 A.2d 118 (1981). In Boyer, there were other nonconstitutional reasons to preclude a missing witness instruction as well. Id. at 1124.
The background of the missing witness instruction was described by then Judge Terry in Buckley v. R.H. Johnson Co., Inc., Del. Super., 25 A.2d 392 (1942). The litigation concerned a wrongful death suit involving a child. The father dropped his daughter off at school. She was killed by a truck crossing the street. When deadlocked, a juror asked about two individuals sitting in the courtroom with the operator of the truck. Only the driver testified, his companions were passengers, and the juror was interested about their information. This was not permitted. The motion for new trial argued, in part, that a missing witness instruction was required. The point was explained this way:
The plaintiff contends that where evidence exists which would properly be a part of the party's case, and where that evidence is found to be material and important to the issues involved, and such evidence is under the power or within the control of the party to whose advantage it would be to produce it at the time of trial, and the party does not produce the evidence, nor give a satisfactory explanation as to why such evidence was not produced, the jury may draw an inference that the evidence, if produced, would have been unfavorable to the party.Id. at 396.
This followed the rationale for the uncalled witness rule announced by the United States Supreme Court in Graves v. United States, 150 U.S. 118, 14 S.Ct. 40, 41, 37 L.Ed. 1021 (1893):
The rule . . . is that, if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable.
In Buckley, the rule was not applicable for several reasons. The witnesses, although passengers and observing the accident, were not shown to be employees and within the control of the defendant at the time of trial. The rule further did not apply to corroborative or cumulative testimony or where defendant met the plaintiffs case without producing the witness. Buckley, supra. Here, defense counsel confronted the impairment claim through cross-examination and various records without the need to rely upon the Rule 35 report. Nor did plaintiff proffer the contents of the report-rather the request was to have Jackson say the defense had her examined with automatic adverse inferences.
On this subject, the Fifth Circuit has noted the uncalled witness rule in civil cases is notjustified under Federal Rules of Evidence as complemented by the Federal Rules of Civil Procedure. Herbert v. Wal-Mart Stores, Inc., 5th Cir., 911 F.2d 1044 (1990). As that Court observed:
. . . A litigant may use modern discovery procedures to ascertain the identity and proposed testimony of witnesses identified with her opponent. If the district court finds that a party is concealing the identity and location of persons with knowledge of discoverable matter, the court may impose an appropriate remedy. If a litigant wishes to call a hostile witness but the witness is unwilling to testify, the litigant may resort to compulsory process. When the litigant has the hostile witness on the stand, she may use leading questions to interrogate the witness, and if necessary to impeach the witness under Rule 607 by any of the standard means, including use of the witness's prior inconsistent statements.Id. at 1048.
The Court was inclined to rule generally that no negative inferences could be drawn by the failure to subpoena witnesses and that counsel could not argue to the jury that such an inference is permissible. The holding, however, rested on the physician not being employed or controlled by Wal-Mart. Id. at 1049. Likewise, Dr. Kalamchi is engaged in an independent, professional practice, not employed or controlled by Rotach. He was not a person "peculiarly within the power [of Rotach] to produce" as cited in Graves v. United States, supra. Parties do not "control" witnesses under the Rules. Any competent witness whose testimony is not privileged may be summoned, questioned and impeached by any litigant. If his evidence was desired, he should have been called to testify by Jackson. While a party, for economic or strategic reasons, may decide not to subpoena a witness, litigation is not risk free. There is no reason to infer that testimony of Dr. Kalamchi would be adverse to Rotach.
CONCLUSION
For the foregoing reasons, plaintiff's motions in this civil case are denied. IT IS SO ORDERED.
As reference was made to Dr. Saliba's trial deposition and the Progressive letter, copies of the transcript and demand, provided before or at trial, are made part of the record.