Opinion
C.A. No. 00C-09-022 (ESB)
June 12, 2002
Edward C. Gill, Esquire, Georgetown, DE.
Brian McNelis, Esquire, Bouchelle Palmer, Newark, DE.
Dear Counsel:
This is my decision on the Plaintiffs' Motion for a New Trial. This case arose out of a motor vehicle accident that occurred on December 16, 1998. On that date, Hazel Pusey ran into Ann Murray's vehicle, causing it to roll over several times. Ann Murray alleged that she sustained neck and ankle injuries as a result of the accident. Her husband, Frank Murray, Jr., alleged a loss of consortium as a result of his wife's injuries.
A one-day jury trial was held on March 28, 2002. Hazel Pusey admitted liability at the trial, leaving only the issue of damages for the jury to resolve. The testimony showed that Ann Murray was taken to the Milford Memorial Hospital by helicopter after the accident. She complained of stiffness in her neck and pain in the front of her chest. X-rays taken of her left foot and ankle were negative. Ann Murray was diagnosed with multiple contusions and discharged the same day after spending approximately two hours in the hospital.
Ann Murray then treated with Dr. Nancy Squires for approximately six months starting on December 17, 1998. Dr. Squires treated her primarily for a cervical strain and an ankle strain. She prescribed pain medication, physical therapy and exercise. Ann Murray went to Tidewater Physical Therapy for over six months. An MRI, electroencephalograph, and another x-ray of Ann Murray's left ankle were all negative. However, when Ann Murray continued to complain of pain, Dr. Squires sent her to an orthopedist.
Dr. John H. Hedger, an orthopedic surgeon, testified that Ann Murray sustained both a "chronic ankle sprain" and a "cervical spine sprain" as a result of the accident. An MRI of her ankle showed, according to Dr. Hedger, that there was "some involvement of the Achilles tendon." Dr. Hedger gave her some cortisone injections, which were helpful, but did not fully resolve the problem. Dr. Hedger then performed an arthroscopy of her ankle. This disclosed that she had a torn anterior talofibular ligament. Dr. Hedger "debrided" the area and considered the surgery successful. Dr. Hedger testified that Ann Murray would have some permanent instability in her ankle, making it more susceptible to twists and sprains in the future.
The medical records introduced at trial indicate that Ann Murray made a good recovery from her injuries. Dr. Hedger's treatment notes from February 21, 2000 state, "sensation is much improved. Good range of motion. She has minimal discomfort." His treatment notes from March 21, 2000 state, "She is gradually getting better. She is back to working. No real complaints today." His treatment notes of April 25, 2000 indicate, "she was doing really quite well and back to doing some jogging . . ." Dr. John J. Greco, another physician in Dr. Hedger's office, treated Ann Murray for the cervical strain. His records indicate a marked improvement in her symptoms as well, stating on May 2, 2000, "Mrs. Murray is seen in F/U for her cervical strain. She basically is fully active. She's not having significant neck pain. She's had an ankle arthroscopy performed by Dr. Hedger. She notes she's active in her exercise program and also looks to be doing quite well." Two separate physical therapy discharge reports indicated that Ann Murray had fully recovered from her cervical and ankle complaints. Ann Murray also testified about how frightening the accident had been and how her injuries affected her life. Frank Murray, Jr. testified about how his wife's injuries had affected his life.
The jury returned a verdict of $12,500.00 for Ann Murray and nothing for Frank Murray, Jr. The Plaintiffs then filed a Motion for a New Trial on March 20, 2002, arguing that the verdict is so grossly disproportionate to the injuries suffered that it should shock the Court's conscience and sense of justice. When considering a motion for a new trial under Super. Ct. R. 59, the jury's verdict, as the Plaintiffs acknowledge, is presumed to be correct and sustainable unless it is so grossly disproportionate to the injuries suffered go as to shock the Court's conscience and sense of justice. It should not be disturbed unless it is against the great weight of the evidence.
Storey v. Camper, 401 A.2d 458, 465 (Del. 1979)
James v. Glazer, 570 A.2d 1150, 1156 (Del. 1990)
The jury's verdict did not shock my conscious and sense of justice. Ann Murray suffered a "chronic ankle sprain" and a "cervical spine sprain." The evidence indicates that the cervical spine sprain was treated with medication and physical therapy and is no longer a problem. The evidence further indicates that, while Ann Murray had to have arthroscropic surgery on her ankle, she recovered well enough to resume jogging and that the only permanent problem that she faces is that her ankle is somewhat more susceptible to being twisted or sprained. For this, the jury awarded her $12,500.00. This is not a large award, but it is not so low that it is so grossly disproportionate to her injuries as to shock my concern and sense of justice. The evidence regarding the impact upon Frank Murray's life was that it was minimal. Given this, I am satisfied that the jury's decision to award him no damages for his loss of consortium claim was proper. For the reasons set forth herein, the Plaintiffs' Motion for a New Trial is denied.