Opinion
C.A. No. 02C-01-109 MMJ.
Submitted: September 21, 2005.
Decided: December 13, 2005.
Upon Creekside Condominium Association, Inc's Motion for a Remittitur and/or New Trial Pursuant to Superior Court Civil Rule 59
Gary S. Nitsche, Esquire, Weik, Nitsche, Dougherty Componovo, Wilmington, Delaware, Attorneys for Plaintiff
Daniel A. Griffith, Esquire, Marshall, Dennehey, Warner, Coleman Goggin, Wilmington, Delaware, Attorneys for Creekside Condominium Association
MEMORANDUM OPINION
Plaintiff Melvin Jerman brought this action for damages arising from personal injuries sustained from a fall on the steps outside his condominium unit. Plaintiff claimed that his fall was caused by an accumulation of snow and ice on the steps. At the conclusion of trial, the jury awarded Plaintiff the sum of $300,000.
Defendant Creekside Condominium Association, Inc. ("Creekside") filed a Motion for Remittitur and/or New Trial Pursuant to Rule 59. The Motion raises two issues:
I. Whether the Court abused its discretion in disallowing evidence of Mr. Jerman's pre-existing disabilities and physical condition, resulting in a jury award based upon improper premises, and a new trial on the issue of damages is warranted?
II. Whether the jury's $300,000 damages award to Mr. Jerman is supported by the evidence presented, or shocks the conscience sufficient to support remittitur?Exclusion of Evidence of Pre-Existing Disabilities and Physical Condition
Prior to trial, the court considered Plaintiff's motion to exclude evidence of his pre-existing physical condition and evidence that Plaintiff had filed other lawsuits. With regard to other lawsuits, the court determined that no mention of such litigation would be permitted, unless Plaintiff opened the door. In the absence of demonstration of any specific vindictive motivation on the part of Plaintiff, the probative value of the fact of filing of other actions was outweighed by the potential for confusion and prejudice.
The court made the following ruling on the issue of Plaintiff's pre-existing neck and back injuries:
I have ruled that the carpel tunnel syndrome is relevant, directly relevant to the wrist injury, and that may come into evidence both in opening statements and in whatever form counsel wish to bring it.
I have ruled that for opening statement, the defense may not discuss the neck and back injuries specifically, but may discuss with the jury the need to listen to all evidence of the plaintiff's preexisting condition.
If the plaintiff confines testimony strictly to a wrist injury that cannot have any possible relationship to a neck or back injury with regard to activities and curtailment of activities, then my ruling will stand.
If, however, the plaintiff opens the door, however slightly, for any relevance to preexisting neck and back injuries, then I am going to allow the defense not only to question on those and to bring evidence of those injuries in, but also to discuss other injuries in closing argument.
In this Motion, Plaintiff argues that the door was opened. During direct examination by Plaintiff's counsel, Plaintiff's lifestyle witness testified in part:
Q. I want to ask you about specifically as it relates to Mr. Jerman's wrist.
A. Yes.
Q. All right. Have you seen changes as it relates to the function of his wrist since January of 2000?
A. Yes. Personally between him and myself the first and foremost is the inability to shake his hand anymore. I cannot shake his hand like I would a normal friend.
Between a construction mechanic and another man you're used to good handshakes. I can't wrestle with him, play with him anymore. You have to be careful about how you touch him. You just can't come up and grab him.
I notice when we go driving, when we go to dinner or lunch or something and such, he has trouble with certain types of safety belts and such.
I've noticed when I drive with him he has problems. Sometimes he will injury his own self while he's driving his car trying to get going. Door systems, getting in and out of buildings.
Q. You mean with the doors themselves?
A. With the doors themselves, yes. Some are easy to pull, some are not so easy. He has to watch everything that he does basically. I mean it's trial and error but it's trial and error by pain.
Q. What do you mean by that?
A. I mean when you try to do something with that arm and it doesn't work you're going to know that doesn't work because you're going to get pain.
Counsel for Creekside timely requested a sidebar conference. Creekside argued that the references to wrestling, care in touching, and avoiding grabbingopened the door. Creekside requested that Plaintiff be permitted to explore Plaintiff's physical activities before and after the accident. Creekside specifically argued that he be permitted to question the lifestyle witness concerning the difference between the time Plaintiff had available for his son, as compared to the time other fathers might have. The court denied Creekside's application. When viewed in context, the testimony of the lifestyle witness was explicitly limited to the effects of injury to Plaintiff's wrist. Additionally, the amount of time available to Plaintiff's son was found by the court to be irrelevant because the witness did not compare the time spent before with time available after the wrist injury.
Whether evidence should be excluded or admitted is an issue addressed to the trial court's discretion. Having reviewed: the pretrial ruling excluding evidence of pre-existing disability and physical condition; the trial testimony; and the contemporaneous arguments of counsel, the court finds that the testimony of the lifestyle witness did not open the door to admission of the previously excluded evidence.
Remittitur
The jury assessed the credibility of all witnesses and determined the weight to be given to their testimony. In the absence of exceptional circumstances, the jury's award of damages should be deemed appropriate. Under Delaware law, enormous deference is given to jury verdicts. Reasonable differences of opinion are resolved in favor of the jury's opinion. The court will set aside a jury's verdict only in the rare case where it is "clear that the award is so grossly out of proportion to the injuries suffered, as to shock the court's conscience and sense of justice." Remittitur is required only when the award of damages is so excessive that it must have been based on passion, prejudice or misconduct, rather than on objective consideration of evidence presented at trial.
Young v. Frase, 702 A.2d 1234, 1236 (Del. 1997).
The jury heard lengthy testimony concerning Plaintiff's wrist pain as a result of the injury. Plaintiff suffered a fracture of the radius bone, a ligament injury, and a cartilage tear. Plaintiff's orthopaedic expert testified that the blood supply had been broken and could not repair itself. The expert described Plaintiff's injury as severe and confirmed that Plaintiff's options for pain relief were extremely poor. Additionally, future surgery to reduce pain was not indicated. Creekside did not present any expert testimony refuting Plaintiff's subjective evaluation of his pain or Plaintiff's expert's confirmation that Plaintiff suffers from permanent substantial pain and impairment.
In reconsidering the evidence presented at trial, as compared to the jury's award of damages, it is clear that the jury accepted the essentially unrefuted testimony that Plaintiff will endure disability and significant pain and suffering for the remainder of his life.
As courts consistently instruct juries, there is no measurement of pain and suffering or the effects of a conceded disability other than a jury's common sense application of their jointly considered life experiences to the facts of a given case. There will be disparate results in personal injury cases because no two juries may interpret the facts and apply their experiences with life identically. Our State Constitution, the written will of those governed by our laws, recognizes this eventuality and legitimizes the process. No judge, nor group of judges, may substitute the Court's judgment for a jury's judgment except when a result is so grossly disproportionate to the facts when viewed in the light most favorable to the non-moving party that the result "shocks the conscience of the Court."
Brinkley v. CAT Enterprises, Inc., 1994 WL 146018 (Del.Super.) (Court denied remittitur of $282,000 pain and suffering damages award to Plaintiff with 21% permanent partial disability resulting from injury to knee.).
This strict standard of review of a jury's award recognizes that when parties elect to present their claims to a jury of their peers, those parties assume the uncertainty and risk of the broad range of possible verdicts inherent in a jury trial. The court's conscience is not shocked by the jury's award of $300,000 to Plaintiff for permanent injuries to his wrist, resulting in impairment of physical activity and pain and suffering.
THEREFORE, Creekside Condominium Association, Inc's Motion for a Remittitur and/or New Trial Pursuant to Superior Court Civil Rule 59 is hereby DENIED.