Opinion
C.A. No. 98C-12-287 WCC
Submitted: April 2, 2001
Decided: August 31, 2001
On Defendant's Motion for New Trial. Denied. Dear Counsel:
Adam Balick, Esquire
Neil R. Lapinski, Esquire
The Court has before it a Motion for New Trial filed by the defendant in the above-captioned matter. In support of the Motion the defendant argues three grounds: 1) the Court improperly allowed the plaintiff to question the defendant's claim adjuster; 2) the Court should not have allowed Dr. Gondolfo's videotaped testimony as to permanency and should not have limited the testimony of the defendant's doctor; and 3) the Court's response to a note from the jury was misleading.
The parties agree that to grant a motion for a new trial the jury's verdict must clearly be against the weight of the evidence and to allow it to stand would be a miscarriage of justice. The guidance provided by the Supreme Court in this area reflects that the Courts may not disturb the award of a jury unless it is so clearly excessive "so as to indicate that it was the result of passion, prejudice, particularity or corruption; or that it was manifestly the result of disregard of the evidence or applicable rules of the law. A verdict should not be set aside unless it is so grossly excessive as to shock the Court's conscience and sense of justice; and unless the injustice allowing the verdict to stand is clear." Under this standard the defendant asserts that the legal errors of the Court has caused the verdict to exceed what is just under the facts of this case.
McCloskey v. McKelvey, Del.Super., 174 A.2d 691 (1961).
Riegel v. Aastad, Del.Supr., 272 A.2d 715 (1970).
Let me first make clear that I am not shocked by the jury's verdict nor do I find it unjust or against the weight of the evidence. A verdict of $35,000.00 for the injuries, pain and lifestyle changes caused to Ms. LaFace was clearly reasonable. As such, the only issue for the Court is whether its trial rulings were incorrect and in some way inappropriately influenced the decision of the jury. For the reasons set forth below and in open court during the trial, I find the rulings appropriate and will deny the defendant's Motion.
The defendant first argues that the Court improperly allowed the plaintiff to question the claims examiner as to his handling of the plaintiff's matter. First, the Court is unaware of any unique privilege associated with the testimony of an insurance company employee. Obviously their testimony must be relevant and is subject to the evidentiary rules regarding prejudice, confusion and waste of time under Rule 403. But simply their employment as a claims adjuster does not provide them any unique status as a witness under the rules of this Court. In addition, even if an opposing party is willing to stipulate as to the facts a witness may testify to during the trial, there is no requirement that the other side agree. In this case, the plaintiff decided to present his uninsured motor vehicle action based on a contractual theory using the adjuster to establish its underlying claim. Such action was appropriate.
The defendant's assertion that the calling of the adjuster was simply intended to establish that the adjuster had mishandled the claim is not supported by the record. Counsel for the plaintiff did not suggest that the adjuster had acted improperly or failed to appropriately perform his responsibility in handling the claim. The adjuster was used during the trial to explain the coverage under the policy and the procedure utilized by the defendant in reviewing the matter. If problems in this area occurred during the trial, it was the result of the failure of the defendant to have a clear and precise theory as to why they lacked liability in regards to Ms. LaFace's claim. Unfortunately this hodgepodge of theories opened up areas of inquiry that perhaps would not have otherwise been relevant. As such, the Court finds that the areas of inquiry allowed during the trial as to the adjuster was proper.
Next, the Court will note that in regards to Dr. Gondolfo's videotaped deposition, prior to playing it for the jury, defense counsel stated "there are probably objections on the tape but we've dealt with them and I don't maintain them." As such, the Court was not made aware of any concerns or problems with the testimony of Dr. Gondolfo, either at trial or after the taking of his videotaped deposition prior to trial. It is only in their post-trial submission that there are now some problems with Dr. Gondolfo's testimony. In addition, while the Court has no independent recollection, from the defendant's submissions it appears that the general subject matter of neck pain and migraine headaches was explored by defense counsel with Dr. Gondolfo and thus was an area of inquiry during the doctor's deposition. As such, the significance of this area could have been addressed with the defendant's expert before trial and brought to the attention of plaintiff's counsel if it was significant. This was not done, and what simply occurred at trial was that the Court refused to allow the defendant to question the expert on a subject that was not included in his report and subject to the discovery processes of this Court. The Court believed that at that late stage of the proceeding there was no way for the plaintiff to effectively address this area and further that the questions were generally moving the trial into an area of inquiry that was not particularly relevant to the principal issues of the case. This ruling is particularly appropriate when the subject the defendant wants to inquire into was only brought into the trial because of the cross-examination performed by their counsel. When these findings are added to the fact that the defendant's expert was only asked to give an opinion as to the plaintiff's condition as of February 2, 2001, years after the accident, and had no opinion as to her condition between the accident and his examination, it was clear to the Court that general testimony into neck pain and migraines by this doctor was simply inappropriate.
Finally, the defendant argues that the Court's response to the jurors' note regarding Dr. Asman's records was error. Dr. Asman's notes were not introduced into the record, so clearly the Court's instructions were appropriate, and to the best of the Court's recollection the instructions were not objected to by the defendant. Simply, the Court advised the jury that they had all the evidence in their possession which they were allowed to consider in the matter. On the other hand, it would have been error for the Court to instruct as to the relevance of Dr. Asman's notes as suggested in the defendant's Motion. Comments of that nature would have been an inappropriate comment on the evidence and would have emphasized notes of a doctor who did not even testify at the trial and whose notes were only considered by other physicians in their treatment. As such, the Court gave an appropriate instruction to the jury in response to their note.
After fully considering the defendant's arguments set forth in their briefs and having reviewed portions of the trial transcript electronically preserved by the Court during trial, the Court does not believe that any error has occurred during the trial which would justify the defendant's Motion. Therefore, the Motion for New Trial is DENIED and the verdict rendered by the jury will remain as issued.