Opinion
C.A. No. 99C-08-190 CLS.
Submitted: July 9, 2003.
Decided: October 31, 2003.
On Plaintiff Aneita Patterson's Motion for Judgment Notwithstanding the Verdict, or in the alternative, for a New Trial. DENIED.
On Defendant Jean L. Coffin's Motion for Costs. GRANTED in the amount of $984.62.
On Defendant Sheree A. Mitchell's Motion for Costs. GRANTED in the amount of $1,117.32.
Kenneth M. Roseman, Ciconte, Roseman Wasserman, Attorney for Plaintiff Aneita Patterson.
Donald M. Ransom and Anthony U. Longo, Casarino, Christman Shalk, P.A., Attorneys for Defendant Jean Coffin.
Richard D. Abrams, Heckler Frabizzio, Attorney for Defendant Sheree A. Mitchell.
Robert F. Phillips, Deputy Attorney General, State of Delaware Department of Justice, Attorney for Defendants Daniel A. Tice and Delaware State University.
MEMORANDUM OPINION
INTRODUCTION
Plaintiff Aneita Patterson ("Patterson") has filed a Motion for Judgment Notwithstanding the Verdict or, in the alternative, a Motion for a New Trial pursuant to Rule 59. Upon consideration of the evidence presented at trial and a review of Patterson's motions and defendants' responses, this court concludes Patterson's motions should be DENIED.
Defendant Jean L. Coffin ("Coffin") has filed a Motion for Costs. Upon a review of the motion and plaintiff's response, this court concludes Coffin's motion should be GRANTED in the amount of $984.62.
Defendant Sheree A. Mitchell ("Mitchell") has filed a Motion for Costs. Upon a review of the motion and plaintiff's response, this court concludes Mitchell's motion should be GRANTED in the amount of $1,117.32.
BACKGROUND
This case is a consolidation of three cases arising from three separate automobile accidents. On October 31, 1997, Patterson was involved in an accident with defendant Coffin. On January 27, 2000, Patterson was involved in an accident with defendant Mitchell. On March 23, 2000, Patterson was involved in an accident with defendant Daniel A. Tice ("Tice") who, at that time, was an employee of defendant Delaware State University (DSU") acting within the scope of his employment.
A jury trial was held from June 2 through 6, 2003. The jury returned its verdict consisting of answers to ten questions. In response to Question 1, the jury found that the motor vehicle accident of October 31, 1997 did not cause injury to Patterson. In response to Question 3, the jury found that the January 27, 2000 accident was caused by the negligence of Mitchell. In response to Question 4, the jury found that the January 27, 2000 accident was not caused by the negligence of Patterson. In response to Question 5, the jury attributed 100% of the negligence for the January 27, 2000 accident to Mitchell. In response to Question 6, the jury found that the January 27, 2000 accident caused injury to Patterson.
In response to Question 7, the jury found that the March 23, 2000 accident caused injury to Patterson. In response to Question 8, the jury awarded $76,500 in damages to Patterson for injuries suffered in the January 27 and March 23, 2000 accidents. In response to Question 9, the jury found it could apportion damages between the January 27 and March 23, 2000 accidents. In response to Question 10, the jury apportioned damages as 2% caused by the January 27 accident and 98% caused by the March 23, 2000 accident.
Patterson filed a Motion for Judgment Notwithstanding the Verdict or for a New Trial on June 9, 2003. Mitchell filed a response on June 11, 2003 and Tice and DSU filed a response on June 20, 2003 to Patterson's Motions. Patterson filed a reply to Mitchell's response on June 16, 2003.
Coffin filed a Motion for Costs on June 19, 2003 and Mitchell filed a Motion for Costs on June 20, 2003. Pattersofiled a response to both motions on July 9, 2003.
STANDARD OF REVIEW
The court does not weigh the evidence in deciding a Motion for Judgment, but rather, views the evidence in a light most favorable to the non-moving party. The court, drawing all reasonable inferences, determines if it may find a verdict for the party having the burden. In order to grant judgment as a matter of law, the court must find that "there is no legally sufficient evidentiary basis for a reasonable jury to find for the [non-movant] on that issue." Thus, "the factual findings of a jury will not be disturbed if there is any competent evidence upon which the verdict could reasonably be based."
Mumford v. Paris, 2003 WL 231611 at *2 (Del.Super.).
Id.
Brown v. Liberty Mutual Ins. Co., 774 A.2d 232, 245 (Del. 2001) (internal citation omitted).
Mumford at *2 (internal citation omitted).
In a Motion for a New Trial, the court starts with the fundamental principle that the jury's verdict is presumed to be correct. The court must determine whether the jury's verdict is against the great weight of evidence. The jury's verdict should not be disturbed unless it is clearly shown to be the result of passion, prejudice, partiality or corruption, or that it was manifestly in disregard of the evidence or applicable rules of law. If a case "involves a controverted issue of fact in which the evidence is conflicting and out of the conflict may be gathered sufficient evidence to support a verdict for either party, the issue of fact will be left . . . to the jury. . . ." The court will not upset the verdict of a jury unless "the evidence preponderates so heavily against the jury verdict that a reasonable jury could not have reached the result."
Young v. Frase, 702 A.2d 1234, 1236 (Del. 1997).
Storey v. Camper, 401 A.2d 458, 465 (Del. 1979) (internal citation omitted).
Young, 702 A.2d at 1237 (internal citation omitted).
Storey, 401 A.2d at 463 (internal citation omitted).
Id. at 465 (internal citation omitted).
DISCUSSION
Motion for Judgment Notwithstanding the Verdict.
As a procedural matter, Delaware Superior Court Civil Rule 50 ("Rule 50") requires that a party must have made a motion for a directed verdict prior to submitting the evidence to the jury before the court can consider a post-trial Motion for Judgment Notwithstanding the Verdict. A motion for a directed verdict must "state the specific grounds therefor." A party fails to preserve its right to obtain post-verdict relief if it fails to make a proper Rule 50 motion at trial.
Peters v. Gelb, 314 A.2d 901, 904 (Del. 1973); Burgos v. Hickok, 695 A.2d 1141, 1144 (Del. 1997).
Maher v. Voss, 98 A.2d 499, 505 (Del. 1953).
Id., see also Burgos, 695 A.2d at 1144.
The court finds that in the case at bar, Patterson moved for, and was granted, a directed verdict on the issue of liability at trial. However, Patterson did not move for a directed verdict on medical causation or damages before the matter was submitted to the jury. Therefore, the court finds Patterson's Motion for Judgment Notwithstanding the Verdict procedurally barred.
B. Motion for a New Trial.
Patterson states that the jury found her injuries were caused by the joint negligence of defendants Mitchell and Tice. Patterson argues she presented undisputed medical opinion that her injuries were the source of her damages, including spinal fusion surgery, lost wages, and permanent physical limitations. Patterson then concludes the monetary amount awarded as damages was inadequate as a matter of law. Patterson additionally argues that the jury verdict was impermissibly tainted by a consideration of improper evidence of force of impact issues as well as misconduct of counsel for Tice.
Defendants Mitchell and Tice ("Defendants") counter that they presented medical opinion testimony attacking plaintiff's experts and, therefore, plaintiff's expert medical opinion is not uncontroverted. Defendants argue that Patterson failed to object at trial regarding the misconduct of counsel for Tice and, therefore, this objection was waived. Defendants also argue that Patterson "opened the door" for the force of impact issues and any problems regarding this testimony were resolved by the court's curative instruction to the jury.
The jury found the accident with Coffin was not a cause of Patterson's injuries and a new trial was not demanded against Coffin.
Whether Patterson presented uncontroverted medical opinion evidence.
It is clear that when a plaintiff presents undisputed medical expert opinion regarding causation of plaintiff's injuries, a jury is required to award past lost wages and past medical expenses. Reuling is both factually and legally distinguishable from the case at bar. In Reuling, defendants did not present any expert medical testimony. In the case at bar, defendants presented expert testimony that there was no data that could relate Patterson's surgery to any of the three accidents. Therefore, the record does not support Patterson's assertion that she presented undisputed medical expert opinion.
Christina School District v. Reuling, 577 A.2d 752 (Del. 1990).
The court interprets Patterson's assertion (that Defendants' expert must have testified explicitly that her need for surgery was not caused by injuries suffered in the accidents) to mean Defendants' expert must have testified following a certain form. The court finds this would elevate form over substance. Following the ruling in Barriocanal, this court declines to rule that there is any particular way that an expert must testify in order to support a jury finding when there are multiple experts giving conflicting testimony regarding causation.
See e.g. Barriocanal v. Gibbs, 697 A.2d 1169, 1172-73 (Del. 1997) (ruling that interpretation of 18 Del. C. § 6852 does not require expert to articulate certain "magic words").
In addition, the court notes that Patterson's own two expert medical witnesses offered conflicting opinions regarding the event(s) that necessitated her surgery. Dr. Bakst attributed Patterson's need for surgery to the March 23, 2000 accident. Dr. Rudin, in his report, opined that Patterson's need for surgery was caused by both the January 27 and March 23, 2000 accidents. This further erodes Patterson's argument that she presented uncontroverted medical testimony regarding causation of her surgery.
Once the court has determined that an expert's testimony as a whole is sufficiently reliable to be presented to the jury, it is the jury's role to evaluate the weight of the testimony. In a motion for a new trial, the court will only intervene if the jury's finding is against the great weight of the evidence. The court concludes that the record does not support Patterson's assertion that Defendants' expert testimony is contrary to the great weight of evidence.
Id.
Storey, 401 A.2d at 465 (emphasis added).
As noted above, when there is sufficient conflicting testimony that the jury could return a verdict for either party, the court will not disturb the jury's verdict.
Whether counsel for Tice made improper arguments to the jury.
Patterson argues that counsel for Tice acted improperly by suggesting to the jury (1) that Tice was a nice man, (2) that Patterson had been in eight motor vehicle accidents and therefore should not be compensated, and (3) that the impact of the collision could not have caused a serious injury.
Tice counters that, with respect to the first two allegations, Patterson failed to raise contemporaneous objections at trial and, therefore, her objections are waived. Tice's counsel responds that he merely stated that Tice freely admitted his vehicle struck Patterson's. Tice also argues that mention of the eight prior accidents was relevant to the issue of injuries received prior to the accidents at issue in this trial. With respect to the third allegation, Tice argues that Patterson initially opened the door to the force of impact issues and, therefore, counsel merely completed the journey through the door that Patterson opened.
The court finds that failure to raise contemporaneous objections to counsel's statements at trial amounts to waiver of the objections. Therefore, Patterson's arguments regarding the first two allegations fail. Even if Patterson had raised an objection at trial, thus preserving a right of appeal here, the court finds the record does not support her contentions regarding Tice's counsel's statements. Thus, there is no merit to Patterson's argument on these issues.
Walker v. State, 790 A.2d 1214, 1220 (Del. 2000) (internal citation omitted).
With respect to the third allegation, the court finds that Patterson did indeed object at trial to the testimony preserving the right to raise it here. However, the court issued a proper curative instruction to the jury, no further application for relief was made and Patterson's counsel did not address Tice's counsel's argument during rebuttal. Therefore, the court determines that Patterson's argument regarding the third allegation is without merit.
Whether the jury improperly considered insurance benefits in reaching its verdict.
Patterson argues that a note from the jury to the court indicated the jury improperly considered the amount of no-fault insurance benefits received by her in reaching its verdict.
The court responded to the note, after consultation with counsel, indicating the court could not answer the question and referred the jury to the jury instruction on no-fault insurance. In particular, the court notes that the last sentence of the jury instruction reads "The claims in evidence in this case are for lost wages and/or medical expenses beyond those already paid by no-fault insurance." Therefore, because the jury was explicitly instructed that the damages sought by Patterson in this lawsuit were in addition to the no-fault benefits paid, the court finds that Patterson's argument is without merit.
Defendants' Motions for Costs.
Delaware Superior Court Civil Rule 68 ("Rule 68") provides in part "If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer." This award of costs under Rule 68 is mandatory. Here, unlike in Mulford, there is no contention that the Offers of Judgment were ineffective. Accordingly, on these motions, the court must simply determine the amount of costs recoverable. In this regard, "Rule 68 offers no interpretive guidance as to what are or are not recoverable `costs.'"
Mulford v. Haas, 2001 WL 541023 at *4 (Del.Super.).
Id. at *5.
The court notes that a prevailing defendant may not recover costs under rule 68. However, Delaware Superior Court Civil Rule 54 ("Rule 54") provides that "costs shall be allowed . . . to the prevailing party upon application to the Court within ten (10) days of the entry of final judgment unless the court otherwise directs. The court may, therefore, award costs to Coffin under Rule 54 as she is a prevailing party here. The court will utilize the same analysis to determine recoverable costs under both Rule 68 and Rule 54.
Hercules, Inc. v. AIU Ins. Co., 784 A.2d 481, 509-10 (Del. 2001).
Super. Ct. Civ. R. 54(d).
See e.g. Nygaard v. Lucchesi, 654 A.2d 410, 413-14 (Del.Super. 1994) (finding that offsetting plaintiff's request for transcript cost under Rule 54 against defendant's cost under Rule 68 was proper).
On September 13, 2000, Defendant Coffin served an offer of judgment in the amount of $8,000. The jury found no liability on the part of Coffin. Pursuant to Rules 54 and 68, Coffin has requested reimbursement of costs in the amount of $1,751.28. The amount is broken down as follows: $150 for court costs (defendant's arbitration fees); $167.96 for copy fee for Dr. Bakst's trial deposition; $1,166.66 for one-third of Dr. Katz's trial appearance fee; and $266.66 for one-third of Dr. Katz's travel fee.
On October 20, 2000, Defendant Mitchell served an offer of judgment in the amount of $2,000. The jury found Mitchell to be 2% liable for damages. Total damages awarded were $76,500. Therefore, Mitchell's portion of the damages awarded at trial was $1,530. Pursuant to Rule 68, Mitchell has requested reimbursement of costs in the amount of $2,534.60. The amount is broken down as follows: $25 for obtaining the jury list; $1,166.64 for one-third of Dr. Katz's trial appearance fee; $266.66 for one-third of Dr. Katz's travel fee; $625 for trial exhibit enlargements; $151.26 for copy fee for Dr. Bakst's deposition; and $299.40 for copy fee for Dr. Rudin's trial deposition.
Arbitration costs.
Superior Court Civil Rule 16.1(d)(5) requires all parties to share equally the cost of compensating the arbitrator. Coffin appears to seek reimbursement for her share of the arbitrator's cost, apparently relying on Superior Court Civil Rule 16.1(h)(4) which provides for the assessment of arbitrator's costs in certain circumstances. Rule 16.1(h)(4) provides that this assessment shall occur where "the party who demands a trial de novo fails to obtain a verdict from the jury . . . more favorable to the party than the arbitrator's order." Super. Ct. Civ. R. 16.1(h)(4). In the case at bar, Patterson, the party who requested the trial de novo, received a jury verdict of zero damages against Coffin. That amount is less than the arbitrator's award of $8,500 for Patterson against Coffin. Thus, Coffin is entitled to reimbursement of $150 for her share of the arbitrator's fee.
Trial deposition transcripts of Patterson's medical experts.
Rule 68 governs reimbursement of expenses incurred after an offer of judgment is refused and the plaintiff receives a less favorable verdict than the offer.
Coffin and Mitchell assert the expenses were incurred after the offer of judgment and Patterson does not dispute this. Therefore, the court finds these are recoverable expenses. Coffin may recover $167.96 for transcription of Dr. Bakst's deposition. Mitchell may recover $151.26 for transcription of Dr. Bakst's deposition and $299.40 for transcription of Dr. Rudin's deposition.
Super. Ct. Civ. R. 68.
Jury list and trial exhibit enlargements.
In Nygaard v. Lucchesi, the court held that the expense of obtaining a jury list was not an expense "necessarily incurred" by defendants. Therefore, Mitchell may not recover that expense against Patterson.
Nygaard, 654 A.2d at 415.
It is settled in Delaware that photocopies of exhibits and other documents are not recoverable costs. The court holds that enlargement of exhibits is for the benefit of the party and not the court. Thus, the court finds that enlargement of trial exhibits is not a "necessarily incurred" expense of the plaintiff to assert her rights in court. Therefore, Mitchell may not recover the expense of exhibit enlargements against Patterson.
Ripsom v. Beaver Blacktop, Inc., 1989 WL 147336 at *1 (Del.Super.) (internal citation omitted).
Id.
4. Costs for expert witness testimony.
The award of costs for expert witness testimony is committed to the sound discretion of the trial court. When determining reasonable reimbursement for expert costs, the court must "recognize that a significant disruption to a physician's practice occurs when a physician is called to testify as an expert witness and that such testimony is important to the court since it assists the trier of fact and serves a significant public interest." There is no fixed formula to determine reasonable expert fees. Nevertheless, in 2002, the court held that a fee of $1,800 was appropriate for expert medical testimony that lasted about an hour and a half plus travel time for a total of a half-day of the witness' time.
See Donovan v. Delaware Water Air Resources Com'n., 358 A.2d 717, 723 (Del. 1976); 10 Del C. § 8906 (1999).
Sliwinski v. Duncan, 1992 WL 21132 at *2 (Del.).
Id.
Dunckle v. Prettyman, 2002 WL 833375 at *4 (Del.Super.).
In the case at bar, Coffin and Mitchell request reimbursement for three hours of Dr. Katz's testimony plus two hours of travel time. This court finds that reimbursement of $2,000 total for the five hours of Dr. Katz's time is appropriate here. Because Dr. Katz testified on behalf of all three defendants, reimbursement of his fee is split among the defendants. Thus Coffin and Mitchell may each recover $666.66 for the cost of Dr. Katz's testimony.
CONCLUSION
For the above reasons, the court finds no legal basis for granting either of Patterson's motions. Therefore, Patterson's Motion for Judgment Notwithstanding the Verdict is DENIED. Patterson's Motion for a New Trial is DENIED.
Coffin's Motion for Costs is GRANTED in the amount of $984.62. Mitchell's Motion for Costs is GRANTED in the amount of $1,117.32.