Opinion
C.A. No. 99C-07-320-FSS
Submitted: August 16, 2001
Decided: December 10, 2001
Upon Defendants' Motion for Remittitur or New trial — DENIED and Upon Plaintiffs' Motion for costs — GRANTED.
Melanie K. Sharp, Esquire, Young Conaway Stargatt Taylor, Attorney for Plaintiffs.
Richard Galperin Esquire, Morris James Hitchens Williams, Attorney for Defendants.
OPINION and ORDER
This is a medical negligence case involving failure to diagnose breast cancer. Plaintiffs, a 51 year old patient and her husband, proved to a jury that defendants, a gynecologist and his medical group, breached the standard of care and as a result, the patient probably will die prematurely of cancer. The jury awarded $5.1 million to the patient, Carol Morris, and $2 million to her husband, Richard.
Defendants filed a Motion for Remittitur or New Trial. Basically, Defendants ask for a new trial, protesting that Plaintiffs' closing argument was inflammatory. In the alternative, Defendants seek remittitur because the verdict's amount allegedly is shocking. Plaintiffs oppose a new trial or remittitur. And as prevailing parties, Plaintiffs filed a Motion for Costs.
I.
In May 1995, Dr. Andersen discovered a palpable mass in Morris' breast. Dr. Andersen ordered a mammogram and an ultrasound, neither of which explained what Dr. Andersen had felt. It is understood in the medical world that some tumors are invisible to mammography and ultrasound. As much as 15% of breast cancers are not detected by mammography. Despite the fact that he knew by his touch that something was there and the experts agreed that a referral was medically indicated, the jury decided that Dr. Andersen did not refer Morris for a biopsy. Moreover, Dr. Andersen did not perform further breast examinations on Morris.
Morris also felt the lump. Although in 1993, she had a biopsy for what turned out to be a cyst, she did not understand how important it was to have the lump that was discovered in 1995 biopsied. In 1998, after another mammogram, her family physician referred Morris to a surgeon who specializes in breast disease. Upon further examination and testing, cancer was discovered in Morris' breast. By then, the cancer was at Stage 3A. The tumor was described by an expert as "huge," measuring seven centimeters in its biggest dimension and sixty-four cubic centimeters total. Worse, the cancer had started to migrate. Two lymph nodes were involved.
Morris underwent a mastectomy with removal of thirteen lymph nodes, chemotherapy and radiation. She remains under hormone treatment that is expected to become less effective over time. It basically is undisputed that, at best, Morris has a "30 to 40% chance of surviving ten years." Plaintiffs' expert opined that if the palpable mass had been biopsied, an early stage cancer would have been discovered. It would have been excised and her chance of survival would have been 80% to 100%. In other words, due to Defendants' negligence, instead of probably surviving cancer Morris probably will die from it prematurely.
II.
Defendants argue that they are entitled to a new trial because Plaintiffs' closing argument contained an "inflammatory" statement that "prejudicially impacted" the jury. Plaintiff's closing statement analogized this case to Russian Roulette and characterized Dr. Andersen as loading "a Russian Roulette clip," whatever that is. According to Defendants, that argument "injected notions of intentional and malicious conduct" into a negligence case. Defendants argue that the jury was "inflamed, confused and distracted," by Plaintiffs' argument, causing them to render a punitive verdict based on a biased view of Dr. Andersen. Defendants further complain that the court offered to give a curative instruction, but failed to do so. And the court's general instruction "did not address or remedy the prejudice" allegedly caused by the "Russian Roulette" analogy.
Defendants argue, alternatively, that remittitur is appropriate because the "magnitude of the award suggests that the jury was improperly motivated by a desire to punish Dr. Andersen." As mentioned above, Defendants claim that Plaintiffs' "Russian Roulette" analogy suggested "wilful and malicious conduct" rather than negligence. As also mentioned, they also suggest that the verdict resulted from the jury's "bias against Dr. Andersen." Defendants further argue that a "comparison with jury verdicts in other medical malpractice cases" demonstrates the verdict's inappropriateness. Lastly, Defendants claim that verdict's "excessive" nature "indicates that the jury exceeded the proper bounds of its authority and made an award that was designed to be punitive as well as compensatory." For Defendants, the large damage award "suggests that the jury was improperly motivated by a desire to punish Dr. Andersen. . . ."
III.
On a Motion for a 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. When an injury's circumstances warrant, very substantial awards have been upheld. Remittitur is granted only when the award is "so out of proportion to the injuries as to shock the Court's conscience and sense of justice." Historically, Delaware courts give great deference to jury verdicts.
Storey v. Camper, Del. Supr., 401 A.2d 458, 465 (1979).
Storey v. Castner, Del. Supr., 314 A.2d 187, 193 (1973).
Medical Ctr. Of Delaware v. Lougheed, Del. Supr., 661 A.2d 1055, 1061 (1995).
Delaware Electric Co-op., Inc. v. Duphily, Del. Supr., 703 A.2d 1202, 1210-211(1997).
Riegel v. Aastad, Del. Supr., 272 A.2d 715, 717-718 (1970).
Young v. Frase, Del. Supr., 702 A.2d 1234, 1236 (1997).
IV.
The court appreciates Defendants' concern that the verdict was punitive. As discussed below, the question of Defendants' liability was not very close and the terrible damages to Plaintiffs seemingly were easily avoidable. The court, however, is not troubled by Plaintiffs' analogy. Plaintiffs' reference to Russian Roulette was clumsy and ineffective.Twenty-eight pages into the thirty-one page closing argument, Plaintiffs' counsel said:
Your award has to do justice for Carol in what is a special game of Russian Roulette. Only her doctor is the one, for the most part, who put the bullets in the gun.
Now, in 1995 Mrs. Morris got cancer. That was not Dr. Andersen's fault. Cancer occurs in some patients. In a 10-bullet clip she had two bullets in there that could kill her. And, as I said, as we know, she responded really well to therapy. Those are the odds that life dealt her in 1995, and if the cancer had been diagnosed then because she had been referred to a surgeon like she should have been it's overwhelmingly likely she would have been cured.
In the three years between 1995 and 1998 Dr. Andersen loaded the 10-bullet clip with six more bullets. Eight total out of 10. Carol had a four out of five chance of dying in 1998 because of the delayed diagnosis. Now, thanks to her cancer specialist, Dr. Wozniak, he has pulled two bullets out of that clip, but there's still six. And in that Russian Roulette clip for that gun there's six bullets, and that's Dr. Andersen's fault. She still has a three in five chance of death by 2008. A likelihood of death in a woman who will then only be 60.
When it was presented out loud, the argument was even less impressive than it appears in writing. It did not draw an immediate objection. As defense counsel conceded, "I didn't object the first time it was said because it had no impact." What ultimately provoked an objection was "the repetition of it." As far is the court is concerned, having heard the argument, the repetition merely made the analogy even more obscure.
The analogy's point was that the risk to Morris dramatically increased when her cancer went undiagnosed, which is Defendants' fault. Plaintiffs neither argued nor implied that Dr. Andersen acted intentionally. Nor did any evidence remotely support an inference that Defendants intentionally put Morris at risk. The trial on liability primarily concerned when the cancer started and whether Dr. Andersen told Morris to seek more follow up after the initial tests were unrevealing. In the unlikely event that the jury took Plaintiffs' closing to suggest, at the last minute, that Dr. Andersen acted intentionally, that would not have swayed the jury, at least not in Plaintiffs' favor.
And as mentioned, defense counsel waited to object until Plaintiffs' closing argument was over and until just before Defendants' closing began. By then, the best and most appropriate time for a cautionary instruction had passed. It would have been an unfair distraction if the court had interjected right after Plaintiffs' counsel had sat down and just as Defendants' counsel stood up to address the jury.
Defendants accurately point out that when they objected after Plaintiffs' argument was over, the court said it would "give a simple cautionary instruction." Although the record is not clear, it appears that Defendants were not content with the court's approach. Defendants insisted: "[I]f the court's cautionary instruction doesn't reference the comment's made by [Plaintiffs' counsel], I'll withdraw the objection, again, not knowing what your going to say." The court took that to mean that Defendants wanted the court to call Plaintiffs' argument into question specifically, or say nothing. Meanwhile, at no point was the court seriously troubled about the analogy and the court expressed concern to the effect that in the process of addressing a technical concern, its cautionary instruction might mistakenly be taken as a negative comment on Plaintiffs' argument.
Anyway, almost as soon as Defendants' closing argument began, Defendants' counsel repeatedly admonished the jury to "put aside feelings of sympathy." The first admonition was made in the court's name. Defendants' closing admonitions echoed repeated admonitions in the opening statements and in the court's final instructions. In fact, during the entire trial the jury was told no less than a dozen times, in one way or another, not to let sympathy influence the verdict.
Defendants' closing also addressed what Defendants referred to as "shots taken at Dr. Andersen." This, coupled with repeated reassurances to the jury about Dr. Andersen: "[A]bove all else what you can see in this man when you hear him talk is that he is an honest man. . . . [W]hat you can see is that he is an honest man." Thus, Defendants' resorted to self-help in their closing, fighting fire with fire.
Ultimately, the court slightly embellished the pattern instruction on attorneys' beliefs and opinions. The final decision about the analogy was:
Taking all the closing arguments into consideration, I'm satisfied that despite my earlier ruling that I would give some type of cautionary instruction about the loaded gun that no such instruction was actually needed.
The court continues to hold, especially in light of not only the closing arguments, but also the opening statements and the rest of the trial, that the "Russian Roulette" analogy did not justify a special instruction, much less one that "referenced" it.
Defendants rely primarily on two cases to support their challenge to Plaintiffs' closing: DeAngelis v. Harrison, and Davis v. Maute. The latter is not helpful. DeAngelis, however, merits discussion. There, defense counsel went on a tear ridiculing plaintiff's case: "It's about winning a lottery ticket." Not only that, defense counsel in DeAngelis cited a federal district court case to the jury to support his "lottery ticket" argument. The "Russian Roulette" analogy does not approach what was said to the jury in DeAngelis.
Del. Supr., 628 A.2d 77 (1993). See also Barriocanal v. Gibbs, Del. Supr., 697 A.2d 1169, 1173 (1997).
Del. Supr., 770 A.2d 36 (2001).
Of course, the fact that DeAngelis is distinguishable on its facts does not mean it has no bearing here. DeAngelis generally holds:
Any effort to mislead the jury or appeal to its bias or prejudice is inappropriate and, where objection is made, the trial court is obliged to act firmly with curative instructions even where no objection is forthcoming until after summation. [citation omitted].
Furthermore, DeAngelis includes a non-exclusive collection of objectionable conduct necessitating curative instructions, none of which applies here. Again, the awkward "Russian Roulette" analogy does not compare to DeAngelis. It was neither misleading, nor an appeal to bias or prejudice. At worst, had it been more lucid, it might have been mildly inflammatory. But it came across flat.
V.
Defendants' alternative argument concerns the verdict's large amount. Defendants concede, as they must, that Plaintiffs "went through a devastating ordeal and continue to experience concern about the possible recurrence of cancer. . . ." Defendants maintain, however, that the verdict is out of line with "verdicts in other medical malpractice cases." To support their conclusion, Defendants present five examples of supposedly similar cases that ended with lower verdicts.
Defendants' characterization of Plaintiffs' damages is a concession. Even so, it understates what this case involves. First, the delayed diagnosis meant that the surgery, follow up and convalescence that Plaintiffs experienced were more terrible than they would have been in 1995. More importantly, despite all that they have been through, and they have been through surgery, radiation, chemotherapy, and hormone therapy, Plaintiffs' biggest ordeal is not behind them.
Plaintiffs are not merely concerned about the "possible" recurrence of cancer, as Defendants put it. Plaintiffs are facing the very real and undisputed probability that the cancer will reemerge, that Morris will die prematurely and her husband will be left without her. When the current remission ends and the cancer flares up, Plaintiffs' ordeal will be horrendous. And it will end badly. What Plaintiffs have been through, so far, might be comparable to Defendants' examples. The future that awaits these Plaintiffs moves this case far beyond Defendants' examples. On top of it all, Plaintiffs have to deal with the fact that the worst part of this was so readily avoidable. The court is convinced that the substantial verdict reflects the jury's full appreciation not only of what has happened, but also of what lies in store for Plaintiffs. That, primarily, is why the analogy had to have fallen flat. It paled beside the jury's mental picture of Plaintiffs' future.
As presented above, the court will not reduce a verdict simply because of its size, unless it is shockingly out of proportion. Considering what Plaintiffs have been through and what they probably will have to endure, a verdict well into seven figures was to be expected if the jury got past liability. Everyone should have seen going in that this was a multi-million dollar case. While a $7.1 million verdict is relatively high, it is not so disproportional to the damages, nor is it so out of line with other verdicts that it is shocking and unjust. Even if the cases highlighted by Defendants as comparable are essentially similar, which they are not, the mere fact that this verdict is higher than other verdicts does not make it shocking, not in light of the uncontested damages present here. While Defendants theorize that the large verdict was the product of animus, the verdict can be viewed better as reflecting the jury's appreciation for the full extent of Plaintiffs' enormous damages.
VI.
The court also has considered Defendants' alternative arguments as interrelated. As discussed above, viewed separately each argument is unimpressive. The "Russian Roulette" analogy did not convince the jury that Dr. Andersen meant to hurt Plaintiffs, when clearly that was not his purpose. And the verdict is high, but not shocking, considering what is involved.
Defendants' best case is the claim that, on the whole, Plaintiffs' closing argument was too personal. It cast Defendants in a negative light and inspired the jury not only to find Defendants liable and award damages, but also encouraged the jury to use its verdict to punish Defendants. The proof of the argument, for Defendants, is the verdicts' size. Assuming that Defendants' claim of jury animus has possible merit, albeit unlikely, the problem was created by Defendants' decision to draw the line at liability.
Even though Defendants presented reputable expert testimony, the jury probably did not consider the issue of liability as close. To the contrary, Defendants' alternative defenses that Dr. Andersen did not breach the standard of care, because he referred her to a surgeon; or his treatment did not cause injury, because the palpable mass discovered in 1995 was a benign cyst and coincidentally the cancer excised in 1998 was an "interval cancer," seemed farfetched.
Plaintiffs' expert evidence that Defendants breached the standard of care by not following through after the lump was found in 1995 and by failing even to perform routine breast examinations was far more logical and easily more convincing. For example, a nationally renown, Harvard trained, full member of the Memorial Sloan-Kettering Cancer Center rejected the implication that the cancer was new. As defense counsel pursued Defendants' theory on cross-examination, the expert explained and explained how unlikely it was that the cancer was recent. Eventually, the expert lamented: "[A] tumor the size of Cleveland was removed from this woman's breast." That exchange, which was far more striking than the "Russian Roulette" analogy, went before the jury because Defendants underestimated Plaintiffs' expert from Sloan-Kettering, belittling him as "a hired gun" and they would not concede liability.
Defendants' decision to put Plaintiffs to their proof on liability opened the door to evidence about Defendants' office practices, Defendants' failure to follow up with a biopsy or routine examinations, the likelihood that Morris could have been cured, the testimony referred to in Plaintiffs' closing as "insulting," and so on. The evidence about liability increased the risk that in reaching a verdict it considered reasonable, the jury improperly took into account how easily Defendants could have spared Plaintiffs from the terrible suffering occasioned by Defendants' negligence.
So as it stands, Defendants should regret their decision to contest liability, which gave the jury a complete picture of what happened. Plaintiffs should regret parts of the closing argument, which probably had little impact except to open their verdict to attack. The court mildly regrets that it relied on the pattern instructions, when a special instruction could have insulated the trial from challenge under DeAngelis. Nevertheless, the court is satisfied that the jury followed the instructions it received and its verdict reflects a fair assessment of all the facts.
In closing and in passing, the court observes that giving Defendants a new trial not only is uncalled for, it would be unjust. Defendants took a stab at a "zero verdict," in the face of powerful, opposing expert opinion. Having suffered the predictable consequences, of course Defendants would like a second trial where they can limit Plaintiffs' presentation and, perhaps, cut their losses. That would not be fair to Plaintiffs. They should not have to give up a proper jury award and struggle through a second trial because Defendants' initial strategy failed.
VII.
As prevailing parties, Plaintiffs have applied for costs under Superior Court Civil Rule 54(d)-(h). Consistent with 10 Del. C. § 8906, Plaintiffs have included their expert witness fees. Their application is in the form of an itemized bill. Apparently, Defendants do not oppose Plaintiff's application for costs. And, Plaintiffs' application appears reasonable. Generally, prevailing parties are entitled to costs and fees. Accordingly, the court will enter Plaintiffs' proposed order.
West v. Maxwell, Del. Super., C.A. No. 97C-12-227, Silverman, J. (June 29, 2001) Op. And Order at 17; McMillan v. Masten Lumber Supply Co., Del. Super., C.A. No. 97C-01-089, Silverman, J. (Sept. 29, 2000).
For the foregoing reasons, Plaintiffs' Motion for costs is GRANTED. Defendants' Motion for New Trial or Remittitur is DENIED.
IT IS SO ORDERED.