Opinion
C.A. No. 01C-10-046 (JTV).
Submitted: December 17, 2007.
Decided: March 26, 2008.
Upon Consideration of Plaintiff's Motion for a New Trial DEFENDANT'S MOTION FOR ADDITUR GRANTED.
William D. Fletcher, Jr., Esq., Schmittinger Rodriguez, Dover, Delaware. Attorney for Appellant.
Jeffrey A. Young, Esq., Young McNelis, Dover, Delaware. Attorney for Appellee.
ORDER
Upon consideration of the parties' briefs and the record of the case, it appears that:
1. This is a personal injury, auto accident. The accident occurred on November 5, 1999. It was first tried in September 2005. The jury returned a zero verdict. Relying upon Maier v. Santucci and Amalfitano v. Baker, the Court granted a new trial. In that order, the Court stated, in pertinent part, as follows:
697 A.2d 747 (Del. 1997).
794 A.2d 575 (Del. 2001).
The plaintiff's subject complaints were supported by Dr. DuShuttle's objective findings of injury. Her medical records and the testimony of her doctor verify that, subsequent to the accident, she suffered from "spasms in the trapezius," and that he diagnosed a cervical strain along with muscle and ligament injuries. The doctor testified that it was his opinion that the proximate cause of t he plaintiff's injuries was the auto accident. Although the defense does argue that the plaintiff was evasive or contradictory during her testimony at trial, the uncontroverted objective findings of her physician should not have been rejected by the jury. Based on the uncontroverted evidence of the plaintiff's physical injuries presented at trial and the doctor's opinion that they were caused by the accident, the jury had to award damages in some amount.
A defense request for additur was rejected.
2. The case was retried in November 2007 and the jury again returned a zero verdict. The plaintiff has filed a motion for a new trial. The defendant again urges the Court to deny the motion or consider additur.
3. Having once concluded that a zero verdict required a new trial, the Court is not inclined to revisit that decision. However, the Court is persuaded that the time for additur has arrived. Additur is appropriate when the award "is so grossly out of proportion to the injuries suffered as to shock the Court's conscience and sense of justice." As Judge Quillen noted in Hall, "[a] zero verdict in the face of undisputed compensable damages is perhaps more disproportionately striking than a small award because it is even more facially inadequate as a matter of law."
Hall v. Dorsey, 1998 Del. Super. LEXIS 490, at *10 (quoting Mills v. Telenczak, 345 A.2d 424, 426 (Del. 1975)).
Id.
4. In determining a reasonable additur amount, the defendant must be given every reasonable factual inference and the Court must determine what the record justifies as an absolute minimum. Applying this standard to the evidence, one can conclude that the injuries proximately caused by the accident did not last longer than a few weeks. A December 10, 1999 MRI came back normal. Dr. DuShuttle's January 17, 2000 examination showed no signs of objective neuro, motor, or sensory deficits. Moreover, by her own admission, the plaintiff's physical state significantly improved within ten weeks of the accident. Under such circumstances, an additur of $2,500 seems reasonable and appropriate.
Hedenberg v. Best, 2005 Del. Super. LEXIS 221, at *10.
In a January 17, 2000 office visit, the plaintiff indicated to Dr. DuShuttle that she was about eighty to ninety percent better.
5. Therefore, a new trial will be granted if, but only if, the defendant fails to accept an additur of $2,500 within 20 days of the date of this order. The defendant may accept the additur by a written filing with the Court so indicating within the time just stated.
IT IS SO ORDERED.