Opinion
C.A. No.: 98C-04-070-FSS
Submitted: January 9, 2002
Decided: May 16, 2002
Upon Plaintiff's Motion for a New Trial or In the Alternative, Motion for Additur and Upon Defendant's Motion for Costs.
OPINION
In June 1996, Pamela Jones and Melanie Shisler had an auto accident. Shisler now concedes that it was her fault. A jury found that the accident proximately caused some injuries to Jones. Nevertheless, after asking the court if it could "have a zero amount" of damages, the jury returned a "zero verdict." Now, Jones asks for a new trial or additur because the jury's refusing to award damages is inconsistent with its finding of injury. Jones also alleges errors by the court during trial. As the prevailing party, Shisler asks for her costs.
After addressing the claims of error summarily, the court will discuss the challenging issues presented here. The court will address the proper way to instruct a jury about damages when liability and some injury are undeniable. The court also will consider whether a zero damages award can be sustained after the jury attributes injury to the accident and if it cannot be upheld, whether additur is appropriate when the court's jury instruction contributed to the inadequate verdict.
I.
Trial was held May 21 through May 25, 2001. The first alleged error at trial concerns the court's ruling that Jones could not testify about the collision's magnitude. Jones offered no biomechanical expert. Under Davis v. Maute, the court reasoned if Shisler could not minimize the impact as a "fender bender" unless she had a biomechanical expert's support, then Jones should not be allowed to maximize the impact. Just as a jury cannot be left to speculate that a minor impact could not cause substantial injury, a plaintiff cannot be allowed to offer her view that a car crash was substantial, and in that way invite the jury to speculate that the accident caused major injury.
770 A.2d 36 (Del. 2001).
Furthermore, Shisler correctly points out that Davis notwithstanding, the Court allowed Jones to call the impact a "smash," and allowed a witness to describe it as a "crash." Specifically, Jones told the jury that "the impact jerked me forward, and then I jerked back. It felt really powerful." Jones further testified that she was restrained by her three-point seat belt from hitting the dashboard. It is unclear how much Jones could have added to her testimony without becoming cumulative and argumentative.
Considering Davis v. Maute, plus Jones' decision not to call a biomechanical expert and the court's tolerance of Jones' testimony about the "really powerful impact," the court's approach was generous to Jones. Anyway, the record simply does not show that the court's rulings caused the jury to view this as a "no impact case," like Shisler now contends.
* * * * *
The second alleged error concerns the court's giving a Use of Interrogatories instruction during the trial, but declining to give it again as part of its final charge. Jones' timely objection was:
JONES' COUNSEL: Your Honor, the only objection [to the jury instructions] that I have is I would prefer that that interrogatory instruction be given to the jury because we do have an interrogatory that has been admitted. I do recognize that your Honor did that the other day at the time that it was admitted. . . .
THE COURT: I'm entirely comfortable with not giving the interrogatory instruction. In fact, now that I focus on it, I think to do that would have placed some emphasis on the interrogatory as part of the court's instructions, and so in that sense it actually would have been a mistake for me to have given that instruction, even though I think there was no objection to my doing that.
As Jones acknowledged in her objection, when the interrogatory was admitted, the court instructed the jury about the use of interrogatories. The court's instruction was:
THE COURT: Before a trial takes place there is what's called discovery, meaning that each side gets to ask the other side questions about the other sides' case. In civil litigation there usually are not very many surprises for the lawyers by the time the case gets to trial.
One of the ways that lawyers can ask each other questions is through an interrogatory, which is simply a written question. The rules require those questions to be answered, and the parties are bound by the answers that they give. Well that's what happened in this case. And we've now, just admitted into evidence one of those interrogatories and the answers that were given have been admitted and you may treatment them as evidence in the case.
The court's instruction was adequate. And its timing was best. It would have been improper for the court to have acceded to Jones' attempt to enlist the court, in her words, to "bring to the jury's attention critical evidence contradicting Defendant's testimony regarding the force of the impact." Bringing critical evidence to a jury's attention is within trial counsel's province, not the court's.
The court admitted the interrogatory answer and it instructed the jury about the interrogatory's use. The instruction mostly confirms the obvious. Repeating it during the final charge would have unduly emphasized the interrogatory and it would have diluted the charge's overall impact.
II.
Turning to facts concerning the zero damages verdict, Jones claimed that as a result of the accident, she suffered permanent injuries and great pain and suffering. Jones attributed almost $53,000 in medical, chiropractic, physical therapy and acupuncture expenses to the accident. Specifically, Jones contended that the accident caused right shoulder injuries necessitating surgery, a cervical spine injury and right-side radiculopathy. Both Jones and Shisler presented expert medical testimony.
Collectively, Jones' medical doctors, osteopaths and her chiropractor, all seven of them, opined directly or through reports that despite negative diagnostic test results, they believed that Jones had right-side radiculopathy and injury to her right shoulder and cervical spine. They also opined that Jones' shoulder surgery was precipitated by the accident. For example, in his report, Victor Kalman, D.O., Jones' orthopedic surgery expert, opined that Jones' right shoulder impingement and subsequent surgery were direct results of the 1996 accident. None of Jones' medical experts' opinions was based on an objective test, such as an EMG, MRI, X-ray, etc., although Jones' medical experts offered explanations for how, nevertheless, Jones could be seriously injured. One of her experts, Dr. Hocutt, offered an explanation for why the experts were willing to believe Jones' many subjective complaints: "It's not much fun to go to physical therapy over and over and over again and keep it going. Most patients don't go just for the social aspect [or] the fun. So usually, to me, that means the patient's hurting." That was the sort of expert opinion, however, that the jury could reject.
The jury also heard Jones testify about "a low back problem" that she had "since the early '80s" and for which she once was hospitalized and underwent surgery. It heard about Jones' allergy related migraine headaches, from which she has suffered "since college." It heard about two visits to a chiropractor for a pre-accident neck complaint. It heard about an accident in 1984 that sent Jones to the emergency room for X-rays. It heard about knee surgery in 1996. It heard about Jones being in a bus accident on May 15, 1996. The jury heard about a slip and fall in 1997, to which Jones attributed no injury.
During Jones' case, the jury also heard that Jones complained to her chiropractor in July 1996 about "constant" pain "shooting down" into her left shoulder and arm into her hand. The jury also learned that during some of her many visits to her various heath care providers after the auto accident, Jones did not complain about shoulder and neck pain. The jury heard extensively about the shoulder surgery that Jones attributed to nerve impingement caused by the accident, a claim that was supported by neither objective findings, nor some of Jones' subjective symptoms. For example, medical experts testified that a nerve impingement should have caused constant pain rather than the intermittent pain Jones reported.
Lewis S. Sharps, M.D., Shisler's medical expert, disagreed with Jones' experts that Jones' shoulder injury and surgery were directly related to the accident. To the contrary, Shisler's medical expert opined that it was more likely that any surgery resulted from the slip and fall in March 1997, after the car accident. He also agreed with Jones' experts, that Jones' diagnostic tests showed "no pathology" in Jones' right shoulder. Further, Sharps concluded that Jones' cervical spine injury and right trapezius sprain were "aggravated by . . . or caused to recur by" the slip and fall. The jury obviously relied on Sharps' opinion when it rejected Jones' claim that the accident made the surgery necessary.
Significantly, however, Dr. Sharps also testified that Jones "sustained a contusion or rotor cuff tendonitis to her right shoulder following the 4/26/96 accident. . . ." He opined that those complaints "resolved up until the time of her fall in March of 1997." Dr. Sharps also admitted that Jones "sustained an acute cervical sprain secondary to the motor vehicle accident of 4/24/96 which were superimposed upon preexisting C3 through C6 degenerative disk disease." Thus, Shisler's medical expert tacitly conceded that the accident caused some injury, a bruised shoulder and a sprain that temporarily aggravated Jones' pre-existing neck problem. As discussed below, the jury's view of causation reflects a keen appreciation of Sharp's testimony.
* * * * *
During deliberations, the jury sent out a note. The jury's question and the court's answer made possible the "zero verdict." Specifically, the deliberating jury asked:
If we say yes to one or more questions, are we obligated to provide damages, or can we have a zero amount?
Over Plaintiff's objection, the Court told the jury:
The note is reasonably clear, but just so that there's no question about it, I interpret that to mean that if you answer any one of questions 1 through 4 with a yes, does that mean you're obligated to provide a number in question No. 5, or can you put in a zero for question No. 5. You can fill in question No. 5 with the answer that you see fit. I remind you, however, that you have been given instructions with respect to damages and how you arrive at a damage figure, and your verdict, whatever it is, should be consistent with what the law is with respect to your determining a damage amount.
The "instructions with respect to damages" to which the court redirected the jury are the court's standard instructions. The jury had several copies of the instructions in the jury room.
After further deliberation and presumably with the full damage instructions in mind, the jury expressly found that Jones' right shoulder injury was not proximately caused by the accident, nor was her right shoulder surgery necessitated by the accident. But the jury found that Jones' cervical spine injury and right-side radiculopathy were proximately caused by the accident. As mentioned above and discussed below, the jury nevertheless returned a zero verdict.
By all expert accounts, the accident left Jones with few, if any, objective symptoms. If the record established that the accident caused so me injury to Jones, it also supported the finding that the injury was relatively minor, compared to Jones' complaints. The jury certainly accepted the opinion of Shisler's medical expert and it obviously rejected Jones' claims of substantial pain and suffering and permanency. Although the jury picked up on Sharp's subtle admission that the accident caused some injury, the jury obviously viewed her claim as far-fetched and not worth compensation. In this case, the jury's reasoning was clear and discerning. The jury knew the record cold and by all indications it understood exactly what it was doing.
III.
Generally, on a Motion for New Trial, the court must determine whether the "verdict is against the great weight of the evidence." Only when a jury's verdict is "clearly the result of passion, prejudice or partiality, or it was manifestly in disregard of the evidence or rules of law," is a new trial justified. The Court must uphold a jury verdict that is supported by the evidence. The standard for reviewing damage awards is clear:
Storey v. Camper, 401 A.2d 458, 465 (Del. 1979).
Storey v. Castner, 314 A.2d 187, 193 (Del. 1973).
Medical Ctr. of Delaware v. Lougheed, 661 A.2d 1055, 1061 (Del. 1995).
[t]he degree of pain differs in individuals and may be constant or varying from day to day. Ultimately, the award of damages for pain and suffering is a matter for the judgment of the jury, and only when its judgment is shocking will it be disturbed.
Aleardi v. Tiberi, 269 A.2d 404, 405 (Del. 1970).
Historically, Delaware courts give great deference to jury verdicts. Further,
Young v. Frase, 702 A.2d 123 4, 1236 (Del. 1997).
[a]s long as there is a sufficient evidentiary basis for the amount of the award, the jury's verdict should not be disturbed by a grant of additur or new trial as to damages.
Id. at 1237.
The jury is entitled to choose between expert witness testimony. And, a jury is "free to accept or reject in whole or in part testimony offered before it, and to fix its verdict upon the testimony it accepts." If the jury found one expert's testimony more credible than the other, that is within the jury's discretion and does not warrant granting a new trial. It is also the jury's province to determine credibility.
See Dashiell v. State, 154 A.2d 688, 690 (Del. 1959). See also Vicks v. Curtin, Del. Super., C.A. No. 97C-06-156, Alford, J. (Dec. 1, 1999) (ORDER); Crowder v. Latney, Del. Super., C.A. No. 93C-05-042, Herlihy, J. (Dec. 1, 1995) (M em. Op.).
Debernard v. Reed, 277 A.2d 684, 695 (Del. 1971) (citing Chavin v. Cope, 243 A.2d 694 (Del. 1968) (denying plaintiff's motion for new trial where no dam ages were awarded)).
See Smith v. State, 669 A.2d 1, 6 (Del. 1995) (en banc).
As for "zero verdicts," Delaware Courts have upheld them. It is within a jury's province to conclude that despite "objective indicia of pain and suffering . . . [plaintiff's] . . . injuries were minimal and not worthy of compensation." Former — Judge Quillen has said that as the community's conscience, the jury:
Hall v. Dorsey, Del. Super., C.A. No. 96C-06-045, 1998 WL 960774, Quillen, J. (Nov. 5, 1995) (Mem. Op.).
Szewczyk v. Doubet, 354 A.2d 426, 430 (Del. 1976) (new trial denied). See also Hall at *5 (citing DiGioia v. Schetromph, 251 A.2d 569 (Del. 1969)).
has a distinct role to play in sending a message to the exaggerating litigious claimant that the claim is so relatively worth less that it does not be long in Court.
Hall at *6.
The above notwithstanding, the court must heed the Delaware Supreme Court's holdings in Maier v. Santucci, and most recently Amalfitano v. Baker. In Maier, Santucci's medical expert witness concluded that "Maier did probably sustain a cervical sprain injury as a result of the accident." Maier held:
697 A.2d 74 7 (Del. 1997).
794 A.2d 57 5 (Del. 2001).
Id.
Once the existence of an injury has been established as causally related to the accident, a jury is required to return a verdict of at least minimal damages.
Id. at 749.
In Amalfitano, plaintiff called two medical experts who "testified that it was their opinion, based on both Amalfitano's subjective complaints and the results of objective tests, the . . . accident proximately caused her injuries." Baker did not challenge those expert opinions. In refusing to accept a zero damages verdict, Amalfitano held:
Despite the general deference of our courts to the findings of a jury we held in Maier v. Santucci that a verdict of zero damages is inadequate and unacceptable as a matter of law where uncontradicted medical testimony establishes a causal link between an accident and injuries sustained.
So the law is clear.
Here, in contrast to Maier and Amalfitano, Jones' injuries were not established conclusively by objective symptoms. Even so, as presented above, Shisler's own medical expert and the jury, itself, agreed that the accident caused shoulder and neck injuries. To the limited extent that Shisler's medical expert agreed with Jones' experts, that left Jones' medical experts' opinions uncontradicted.
Even if the jury viewed her symptoms as merely subjective, the jury obviously decided that to the limited extent Jones' subjective complaints were good enough for Dr. Sharps, they were good enough. And so, the jury found that the collision injured Jones' shoulder and neck. The court sees no principled reason to attempt to distinguish Amalfitano simply because the medical experts and the jury relied on Jones' word. The jury properly could have disbelieved Jones and rejected all expert opinions that relied on her subjective complaints. But in light of Maier and Amalfitano, it is inescapable that after liability was established and after the jury found an accident related injury, plaintiff was entitled to some damages. And the jury should have been so instructed.
Consistent with the approach devised by Judge Quillen in Sartin v. Pinkowski and announced in Hall, the court should have instructed the jury that if it found that the accident proximately caused injury to Jones, it had to award some damages. If the court's answer to the jury's note was not entirely wrong, it fell short of being rig ht. After conceding here that its supplemental instruction and the verdict were inadequate, the court must consider whether Jones is entitled to a new trial or additur.
Del. Super., C.A. No. 96C-02-053, Quillen, J. (Nov. 19, 1998).
IV.
Additur, and its older, more well-developed counter part, remittitur, are recognized in Delaware. Former-Judge Quillen remains this court's most respected authority on additur. In Hall v. Dorsey, he explains:
The practice of additur is nothing more than making the denial of a plaintiff's motion for a new trial on the issue of damages contingent upon the defend ant's willingness to accept a higher award. 66 C.J.S. New Trial § 296, at 377. Additur in Delaware is appropriate when the award "is so grossly out of proportion to the injuries suffered as to shock the Court's conscience and sense of justice." Mills v. Telenczak, Del. Supr., 345 A.2d 424, 426 (1975). A zero verdict in the face of undisputed compensable damages is perhaps more disproportionately striking than a small award because it is even more facially inadequate as a matter of law. As a result, an additur to a zero verdict, as a matter of reason, is certainly appropriate in the face of conclusive damages (damages as a matter of law).
In Carney v. Preston, Judge Quillen reviews additur's history and its conceptual underpinnings. The court will not recap Carney because that would be a disincentive to reading Carney, itself. Suffice it to say that while Hall defines additur and explains how it works, Carney establishes additur's constitutionality and its place in this court's jurisprudence. To understand additur in Delaware, read Carney and Hall. The only legal question that Carney and Hall leave open here, concerns the fact that the court's supplemental jury instruction contributed to the need for additur. That wrinkle must be addressed now.
683 A.2d 47 (Del.Super. 1996).
The court assumes without deciding that in most instances the court cannot use additur to repair a verdict that it impaired. The premise for additur and remittiur, explained better in Carney, is that there is a lawful range for every verdict. Additur and remittitur can be employed to move a verdict into that range. Additur brings an unjustifiably low verdict up to the bottom of the appropriate range and remittitur lowers a shockingly high verdict to the top of the range. In that way, to use Judge Quillen's phrase, "tribute is still paid to the very jury whose verdict is being set aside." Typically, if the court has precipitated a low verdict, it cannot force the plaintiff to accept the lowest appropriate verdict. That would unfairly eliminate the possibility that a properly instructed jury might have awarded damages anywhere in the acceptable range, not at its bottom. The court would be improperly and perhaps even unconstitutionally substituting its assessment of damages for the jury's. That possibility is not a concern here, however, thanks to the court's supplemental instruction, the jury's note and its verdict.
Carney, 683A.2d at 56.
As already discussed, in this case the jury's view of damages was clarion. The jury undeniably viewed Jones' damages as unproven or not worth compensation. The conclusion is inescapable that if the court had ordered the jury to award some damages, Jones' jury simply would have picked a nominal amount. Together, the note and the verdict can only be read to mean that the jury intended to award Jones the least that the law would allow and, literally, not a dollar more. Additur clearly is the mechanism by which the court can reconcile the verdict with the law on damages and simultaneously respect the jury's well-considered view of the evidence.
Taking the jury's expressed view of the case into consideration, it almost is certain that the jury would have awarded next to nothing if the court had told it that a damage award was required. Recently, for example, the court followed Judge Quillen's approach and it instructed another jury that because the defense conceded some injury in that case, the jury had to award at least some damages. The jury then awarded an indisputably injured plaintiff $500 in the face of an obviously inflated whiplash claim. That case is not a prefect precedent because the claim there appeared to be tainted, at least, by fraud. But that was one jury's recent view of nominal, as opposed to compensatory, damages. Here, there is little basis to question Jones' sincerity. She probably feels the pain that she attributes to her collision with Shisler. Most likely, the jury ignored Jones' health woes because the jury did not agree that they were caused by the accident.
The court views this case more like Hall. Hall undisputedly had post-accident pain. "Hall missed two months of work and was required to wear a neck brace." Judge Quillen concluded that given Hall's "modest injuries, . . . an award of $2,500 seems appropriate." Here, Jones had a bruised shoulder or tendonitis and neck pain for some months. She had cause to seek medical attention. Using Hall as a guide, the court sees the lowest sustainable damage award as $2,500, without costs.
In closing, the court understands that Jones presented evidence that, if believed, would have supported a much larger award. Unfortunately for Jones, the jury indisputably saw the evidence in a very different light. The court is confident that allowing Jones to testify about the accident in more florid terms, re-instructing the jury about the interrogatory and telling the jury it had to award damages would not have overcome the fact that Jones had so many health complaints apart from the accident, and the fact that the accident caused virtually no objective symptoms. Moreover, there is no reason to believe that another jury, hearing the same evidence presented here, would return a verdict remotely approaching the value that Jones places on her case.
V.
For the foregoing reasons, if Shisler agrees in a written filing, within 15 days, to accept additur in the amount of $2,500 and to bear her own costs, the court will deny Jones' motion for a new trial. Otherwise, the court will enter an order granting a new trial. For now, no further consideration of Defendant's motion for costs is necessary.