Opinion
CIVIL ACTION NUMBER 98C-11-038-JOH
Submitted: June 8, 2001
Decided: September 12, 2001
Upon Motion of Plaintiff for a New Trial or in the Alternative, Additur — DENIED.
Edward C. Pankowski, Jr., Esq., of Wilmington, Delaware, attorney for plaintiff.
Beth H. Christman, Esq., of Casarino, Christman Shalk, Wilmington, Delaware, attorney for defendant.
MEMORANDUM OPINION
Plaintiff Ronald L. Mays has moved for a new trial or, in the alternative, for additur. He was injured in an automobile accident. In a damages only trial, the jury awarded him $10,000. After consideration of his motion, the defendant's response and the trial testimony, the motion is DENIED.
FACTUAL BACKGROUND
Mays was a passenger in a car being driven by his girlfriend, Alberta Lockhart. While driving to work on May 4, 1997, defendant Eric E. Henry ran through a stop sign and hit her vehicle. Negligence was admitted, therefore, the trial only concerned damages.
The Court admitted one photograph showing damage to Lockhart's car.
This particular photograph showed damage to the right windshield evidencing a blow from an object inside the car. There was testimony that the damage was caused either by the deploying air bag on the passenger side or from Mays' head striking the windshield. The Court ruled inadmissible other photographs showing other damage to Lockhart's car. Mays testified that his head hit the windshield or something else in the car because he developed a bump on his upper forehead. He testified, however, that he was not knocked unconscious. He was taken to the St. Francis Hospital and after examination, he was prescribed Soma and given some Ibuprofen.
The next day, May 5th, Mays saw Dr. James Thomas and related his symptoms to him. Dr. Thomas' records indicate that he found tenderness in the mid and low back, the neck and around the right shoulder blade. He assessed Mays was having musculoskeletal strain. Mays testified Dr. Thomas said he would be sore for a while. He was off work from the 4th to the 23rd of May.
Plaintiff's Exhibit 5, Tab C.
Mays did not see another doctor until July 22, 1997 when he returned to Dr. Thomas for an examination relating to a driver's license. There is no mention in the doctor's records for that visit of any complaints consistent with those made two months before. Dr. Thomas' records also appear to indicate he referred Mays to physical therapy on September 6, 1997. Whether the referral was made on that date or another, therapy did not begin until November 20, 1997 with Dr. Arnold Glassman.
Mays said Dr. Thomas prescribed home exercises which he did sometimes. Between May and November, Mays testified pain in his left leg was continuous as were his other complaints in the back and neck. There was, however, no medical treatment in that six-month interval. He claimed, on the other hand, that he was getting some kind of treatment through Master Willie Smith at a martial arts center.
Smith, a Delaware State police corporal, testified that Mays was enrolled at his martial arts center for six months in 1995. He had given Mays a book to read which he uses as a basis for testing commitment. Mays came back three times. Smith testified Mays did not train with him in 1997 and he did nothing in the way of physical therapy for Mays in 1997 relating to the automobile accident.
Mays testified that the therapy with Dr. Glassman included stretching and pulling. It did not help, he said. In a December 4, 1997 letter to Dr. Thomas, Dr. Glassman reports Mays, on that date, was still having neck, thoracic and low back pain.
But, he goes on to say, "For various reasons, [Mays] has only attended one session of formal therapy." Dr. Glassman also reported he stressed to Mays the need to be diligent about physical therapy. Neither Dr. Thomas nor Dr. Glassman testified at trial.
Plaintiff's Exhibit 5, Tab D.
On December 16, 1997, Mays saw Dr. William Atkins. He reported that Mays told him he suffered injuries to his neck, mid and low back in the May 1997 accident. The doctor's report also states Mays said his legs struck the dashboard. There is no mention of his head hitting anything. No prior accidents were reported.
Plaintiff's Exhibit 5, Tab L.
His impression then was of cervical, thoracic, lumbosacral sprain and strain and lumbosacral radiculitis. He ordered a MRI.
The MRI was performed on December 31, 1997. The radiologist's impression was that there was a "small," central to left paracentral disc herniation at L5-S1, which was "adjacent" to the S1 nerve root. The MRI revealed no nerve root compression in the cervical area.
Plaintiff's Exhibit 5, Tab F.
Dr. Conrad King, Dr. Atkin's partner, next saw Mays on January 5, 1998.
His report of that date indicates the MRI finding of the small central to left disc herniation. The report also indicates the herniation did not compress the nerve root.
But, he goes on to say, "He also has evidence of post-traumatic herniated nucleus pulposus to the left of midline at L5-S1." Dr. King's record also reports Mays' good response to physical therapy and that it would continue. An EMG was done on February 3, 1998 which indicated the results were consistent with left S1 radiculopathy.
Plaintiff's Exhibit 5, Tab M.
Plaintiff's Exhibit 5, Tab H.
Mays, however, did not keep up with Dr. King's prescribed physical therapy. He kept only 8 of 55 scheduled sessions. As Dr. King testified, "He did not necessarily keep up with physical therapy." Dr. King next saw Mays on March 30, 1998 for an evaluation. The doctor ordered a neurosurgical consult. That was done with Dr. Michael Sugarman on April 16, 1998. He reported back to Dr. King that Mays had a left sided disc herniation consistent with his symptoms. He gave Mays a book of exercises to use for home physical therapy. Dr. Sugarman thought that if the home exercises did not work to relieve Mays' symptoms, he would be an "excellent candidate for surgery." He wanted to see him again in about a month. There was no such visit.
Plaintiff's Exhibit 5, Tab I.
As a matter of fact, Mays next doctor's appointment was eight months later when he saw Dr. King on December 28, 1998. Dr. King's record of that date states Mays was "lost to follow up." Mays reported to Dr. King that he had discontinued treatment since he believe it was not helping. He reported, however, a continuation of his back and leg symptoms. Dr. King believed Mays' cervical and thoracic strain and sprain had resolved but symptoms remained from the lumbosacral sprain and herniated nucleus pulposus. He directed Mays to resume Dr. Sugarman's home physical therapy. Mays was to return as needed. Mays returned on April 12, 1999. He told Dr. King he was doing the home exercises "as much as possible." A repeat EMG was ordered. It was done on April 20th and the impression was radiculitis.
Plaintiff's Exhibit 5, Tab M.
Id.
Mays next visit was on March 30, 2000 and that was in connection with the then-scheduled trial of this case scheduled to start on April 10th. Mays reported the problems he was having with pain at work, doing household chores and playing with the kids. On this visit, Mays reported he was prepared for surgery. The trial was continued and no surgery was performed.
Dr. King next saw Mays on April 16, 2001 in preparation for this trial. He described to the doctor his daily low back pain and leg discomfort. Again, he said, he was willing to undergo surgery. Dr. King told the jury that the surgery would be a diskectomy with fusion. The cost of the surgery and necessary related expenses would be in excess of $20,000.
Dr. King opined that Mays' conditions were permanent. He said the May 1997 accident caused the herniated disc which was causing Mays' low back and leg pain. While Mays had never mentioned a November 1994 basketball injury and injuries from a 1994 automobile accident, Dr. King said those incidents did not cause Mays' current conditions. The medical records show, however, that he had complained and a muscle spasm in the area that had been detected after the 1994 automobile accident.
Mays described his before and after activities. He played football and basketball in high school from which he graduated in 1993. Following graduation, he engaged in kick boxing, wrestling, sprinting, weight lifting, basketball and martial arts.
He trained every day, he said, until the May 19976 accident. Since the accident, he has reduced or stopped many of these physical activities. He has ceased weight lifting altogether, whereas he had bench-pressed up to 300 pounds before. He has cut down on activities with his kids such as horse back and amusement park rides. Because of the standing and lifting at his former job, he said, he had changed jobs to one as an automobile dealer.
Dr. John Townsend, a neurologist, performed an examination of Mays on February 4, 2000. When Mays saw Dr. Townsend, he did not mention hitting his head on the windshield. Mays denied any injuries prior to the 1997 automobile accident, specifically to the lumbosacral area. Mays complained to Dr. Townsend of neck pain and intermittent stiffness, low back pain and pain radiating all the way down his left leg to his foot.
Dr. Townsend told the jury the MRI findings were degenerative. He agreed Mays had a herniated disc, but testified the herniation is not touching a nerve root and cannot explain Mays' symptoms. Further, the doctor said, Mays' current complaints alone do not establish a disc herniation. Mays complained of a "patchy" loss of sensation in his left calf. This does not correlate to any nerve compression.
The absence of medical treatment for the six months following the initial visit to Dr. King on May 5th makes it difficult, he said, to equate later complaints and symptoms to the automobile accident. At most, Dr. Townsend said, Mays had several months of muscle sprain and strain based on his complaints. He did not believe surgery or physical therapy were necessary and, at most, Advil, ice and home stretching would help. Based on his examination and his review of medical records, he did not believe Mays suffered a permanent injury.
APPLICABLE STANDARD
A jury's verdict is presumed to be correct. It will not be disturbed unless it is manifestly against the great weight of the evidence. Further, the Court will not set aside a jury's verdict as insufficient unless it is the result of passion, prejudice, partiality or clearly the jury disregarded the evidence or rules of law.
Lacey v. Beck, Del.Super., 161 A.2d 579, 580 (1960).
Burgos v. Hickok, Del.Supr., 695 A.2d 1141, 1145 (1997).
Riegel v. Aastad, Del.Supr., 272 A.2d 715, 717-18 (1970).
DISCUSSION
Negligence having been admitted, the sole issue was damages. Mays argues the evidence reviewed above demonstrates he is entitled to more than $10,000.He recites his apparent need for or use of pain medication, the evidence of disc herniation and related symptoms and cost of surgery of $26,000 in support of his position.
These arguments presuppose the testimony in this trial was undisputed.
To a small degree, it was. That area of agreement was that Mays had suffered muscle strain and sprain, as a result of the accident. Based on his complaints, Dr. Townsend was willing to accept Mays had suffered this injury.
But, after that one small area of agreement, the testimony was disputed.
Part of that dispute revolved around the medical records insomuch as they showed significant gaps in appointments, missed physical therapy and other problems. Coupled with these objective documents was Mays' own testimony.
The uncontradicted medical records showed Mays saw Dr. Thomas the day after the accident. Sprain and strain was the doctor's impression at that time. Despite Mays' testimony that he continued to suffered neck, mid and low back pain, he neither sought treatment from Dr. Thomas thereafter nor apparently mentioned any complaints when he did see him in July. The medical records show Mays' next visit to a doctor for complaints he attributed to the accident was six months after the collision.
Then, too, the complaints were subjective.
While Dr. Glassman and Dr. King ordered physical therapy for him, Mays kept only 8 of 55 appointments. This occurred even after Dr. Glassman had advised Mays how important it was to keep up with physical therapy and noted Mays had kept only one appointment.
So up to this point, the medical records indicate that Mays' doctors were responding to his subjective complaints. Because he had missed so many physical therapy appointments, had gone six months without seeking any treatment for pain he described as significant, and had not mentioned prior back injuries to any doctor, he placed his credibility on the line. Since his doctors were relying upon his subjective complaints, the jury could reject any of their opinions derived from those complaints.
DeBernard v. Reed, Del.Supr., 277 A.2d 684, 686 (1971).
This same situation continued from 1997-98 through trial as to Mays' subjective complaints. Dr. Townsend opined his injuries were temporary. Dr. King said they were permanent. The jury's verdict indicates it found Dr. Townsend's testimony more credible. The jury has the authority to reject one doctor's testimony and accept that of another.
Delaware Tire Center v. Fox, Del.Super., 401 A.2d 97, 100 (1979).
This principle of law applies also to Mays' argument that he should have been awarded $26,000 for the diskectomy. Dr. King and Dr. Sugarman said Mays had a herniated disc. Dr. King testified the automobile accident caused it. Dr. Townsend agreed Mays had a disc herniation. Its etiology, however, he testified, was unknown.
Further, he opined surgery was unnecessary, since there was no nerve root compression. That opinion is consistent with the 1997 MRI report. In addition, he testified that Mays' recitation of symptoms in his left leg were not consistent with a nerve root compression. Mays only said he wanted surgery during the only two doctor's appointments he had, each of which immediately preceded the trial dates of this case. Here again, the jury exercised its authority to reject one expert witness' opinion over another.
DiSabatino Bros., Inc. v. Wortman, Del.Supr., 453 A.2d 102, 106 (1982).
The Court, under these circumstances, cannot hold the verdict of $10,000 is against the great weight of the evidence or is otherwise insufficient. That conclusion disposes of May's request for a new trial. But, in the alternative, he seeks additur. When considering whether additur is appropriate, the Court must defer to the jury's role, especially where there is a margin of differences of opinion about damages.
Carney v. Preston, Del.Super., 683 A.2d 47, 56 (1996).
Based on the medical records, the differing and mostly conflicting medical testimony and the credibility issues in Mays' own testimony, the Court cannot say the verdict is so disproportionate within that margin that it is, as a matter of law, too low.
Additur is not warranted in this case.
Mays' final argument is a renewal of his attempt to introduce three more photographs showing damage to the car in which he was riding. As noted before, the Court admitted one, since it portrayed interior damage to the windshield. Since there was some question about whether Mays struck his head, that photograph was relevant.
Supra, at 1.
But, Mays wanted the others introduced merely to try to equate damages with injuries.
He had no expert testimony making that link. Without that testimony, these three photographs were, and remain, inadmissible.
Davis v. Maute, Del.Supr., 770 A.2d 36 (2001).
CONCLUSION
For the reasons stated herein, the motion of plaintiff Ronald L. Mays for a new trial, or in the alternative, additur, is DENIED.IT IS SO ORDERED.