Opinion
C.A. No. 99C-07-209 WCC
Submitted: June 3, 2002
Decided: November 22, 2002
On Plaintiff's Motion for a New Trial, or Additur, Pursuant to Rule 59. Granted.
Dear Counsel:
The Court presently has before it a Motion for a New Trial, or Add itur, pursuant to Rule 59, filed on behalf of the plaintiffs, Mr. and Mrs. Petrova. Mrs. Petrova was involved in an ac ciden t on R oute 13 just south of Wilmington. The defendant admitted liability, and the trial was limited to the testimony of Mr. and Mrs. Petrova and her treating physician, Dr. Cynthia Horner. The parties agreed that the outstanding medical bills from the accident were $2,280.00 and after a one day trial, the jury awarded damages equal to the agreed upon medical bills. There is no dispute that the award reflects the decision by the jury not Page 2 to award any amount of damages beyond the related medical expenses. As such, this case prese nts the un ique is sue as to whether a jury is required to award damages for pain and suffering when it is undisputed by the medical testimony that the plaintiff was injured in the accident.
The Court finds that when the medical testimony reflects objective findings by the physician of injuries that would reasonably result in the plaintiff suffering pain, the jury may not disregard the uncontradicted testimony of that doctor and substitute their own personal opinions regarding the plaintiff`s medical condition. Since the Court finds that the record in this case reflects such objective findings, the case must be retried unless the defendant accepts a reasonable additur.
Shortly after the accident, the plaintiff followed up with Dr. Horner complaining of ankle and neck pain, headaches, blurred vision and bruising. While many of the plaintiffs com plaints were subjective in nature and unable to be confirmed by medical testing, Dr. Horner did objectively confirm several of the injuries. As an example, at the plaintiff's initial visit with the doctor, Dr. Horner stated:
Q. With regard to range of motion of her neck, what were your results?
A. I found that she had somewhat limited range of motion which, at the time, I felt was secondary to tightness and spasm of the muscles of the neck.
Q. Is that an objective finding, Doctor?
A. It is.
In a follow up visit approximately a month later, Dr. Horner again stated:
A. On my examination I felt that she continued to — I noted that she continued to have decreased range of all motion in her neck.
She still had some bruising on the top of her right foot with pain and tenderness over the long bones in the foot. The trial testimony also reflects that the doctor believed the injuries were significant enough to support a disability period of July 23, 1998 until August 23, 1998, and a referral to physical therapy. The doctor's testimony supports a conclusion that the plaintiff at least suffered an ankle injury and whiplash-type injuries of her cervical spine which would be painful to the patient.
The issue of a jury rendering an award that is inconsistent with the undisputed medical testimony provided during a trial was highlighted by the Delaware Supreme C ourt Page 3 in Maier v. Santucci. The Court held "where the evidence conclusively establishes the existence of an injury, h owe ver m inima l, a jury award of zero damages is against the weight of the evidence and it is an abuse of disc retion to den y a n ew tr ial." Similar situations have also been faced by this Court in Chorm an v. Kelly and Johnson v. Carney's Contracting Co., and in both cases the Court granted additur which were accepted by the defendant.
697 A.2d 747 (Del. 1997).
Id. at 748.
1997 WL 528244 (Del.Super.Ct.).
1998 WL 732893 (Del.Super.Ct.).
In the present case, the Court is satisfied that Mrs. Petrova conclusively proved some degree of compensable general damages. However, when determining the amount of additur to grant, every reasonable inference should be given to the defendant, and the award should be in the lowest amount supportable by the evidence. As such, I will follow the precedent used in Chorman and Johnson and grant an additur by a factor of one. Accordingly, a new trial on the issue of damages will be ordered unless the defendant by written filing accepts an additur in the amount of $2,500.00 for a total award of $4,780.00 within 10 days from the date of this decision. If no action is taken by the defendant within the 10 days, the plaintiff's Motion for a New Trial will be granted. If the defendant accepts the additur, judgment will be entered for the plaintiff in the amount of $4,780.00.
Hall v. Dorsey, 1998 WL 960774, at *7 (Del.Super.Ct.). Page 4
The Court appreciates the parties' efforts in the written submissions on this issue and apologizes for the delay in issuing this decision. Sincerely yours, Judge W illiam C. Carpenter, Jr. WCCjr:twp cc: Prothonotary