Opinion
C.A. No. 00C-12-110-WCC.
Submitted: January 4, 2007.
Decided: May 31, 2007.
Richard A. Zappa, Esquire, Young Conaway Stargatt Taylor, LLP, The Brandywine Building, Wilmington, DE.
Tracy A. Burleigh, Esquire, Marshall, Dennehey, Warner, Coleman Goggin, Wilmington, DE.
Dear Counsel:
The case before this Court is one arising out of an automobile accident which occurred in Newark, Delaware on December 17, 1998 and involved Benjamin Smoot and Errol B. Douthat (the "accident"). There is no dispute that Mr. Smoot's car was hit in the rear by the truck Mr. Douthat was driving. There is also no dispute that Mr. Douthat was driving a truck owned by D'Ambrosio Motors, Inc. at the time of the accident. The parties proceeded with a bench trial before this Court on January 4, 2007 to determine if either party acted negligently and the amount of damages the plaintiffs are entitled. At its conclusion, the Court reserved its ruling, and this is the Court's decision in the matter.
I. Negligence
Prior to awarding any damages, the Court was asked to resolve whether Mr. Douthat was negligent in any manner proximately causing the accident and whether Mr. Smoot was contributorily negligent in any manner proximately causing the accident. Upon review of the evidence presented, the Court finds that Mr. Douthat acted in a negligent manner proximately causing the accident and that Mr. Smoot was not contributorily negligent.
A. Mr. Douthat's negligence
Negligence requires a plaintiff to "prove by a preponderance of the evidence that the defendant's action breached a duty of care in a way that proximately caused plaintiff's injury." A preponderance of the evidence exists upon "the side on which the greater weight of the evidence is found." Mr. Smoot met this burden of proof by establishing beyond a preponderance of the evidence that Mr. Douthat acted negligently by not controlling his vehicle as a reasonable person under the circumstances would have done.
Russel v. K-Mart Corp., 761 A.2d 1 (Del.) (citations omitted).
Reynolds v. Reynolds, 237 A.2d 708, 711 (Del. 1967); Guthridge v. Pen-Mod, Inc., 239 A.2d 709, 713 (Del. 1967).
With respect to the accident, the Court must determine who was more credible — Mr. Smoot or Mr. Douthat. Mr. Smoot testified in his deposition that, while driving down Main Street in Newark, Delaware, two cars were stopped in front of him, and a third car was parallel parking on the left side of the street. The car immediately in front of Mr. Smoot was at a complete stop causing Mr. Smoot to normally apply his brakes and come to a complete stop. Mr. Smoot then heard a sound causing him to look into his rear-view mirror and see Mr. Douthat's truck about two-car lengths behind him. Mr. Smoot's car was then hit in the rear by Mr. Douthat's truck. Mr. Smoot stated that at the time of the accident he was not near a crosswalk and did not see pedestrians crossing the street.
Tr. Smoot Dep. at 76-80.
Id. at 81-84.
Id. at 76-79.
Lending credibility to Mr. Smoot's rendition of the accident was the police report which was consistent with his testimo ny. Further, during the testimony of Mr. Douthat he admitted liability by stating in his deposition "I hit Mr. Smoot. I was at fault." Despite this acceptance of fault, Mr. Douthat provided his own rendition of the accident. While it does not vary greatly from Mr. Smoot's version, there are so me inconsistencies. For instance, Mr. Douthat indicated he was traveling at a safe speed, when three pedestrians darted in front of Mr. Smoot's car, causing Mr. Smoot to slam on his brakes and subsequently causing the accident. However, aside from his testimony, there is nothing to support this version of events. In fact, Mr. Douthat stated that Mr. Smoot was stopped for about five seconds prior to Mr. Douthat hitting him, that Mr. Douthat applied his brakes immediately and that the wet roadway caused his truck to slide into Mr. Smoot. Based on the testimony, the Court concludes Mr. Douthat was at fault for the accident. B. Mr. Smoot's Contributory Negligence
Pl. Ex. 1.
Tr. Douthat Dep. at 36-37. Mr. Smoot testified that his vehicle did not slide and Mr. Douthat testified that he did not see any of vehicles that had to stop for the pedestrians slide.
Id. at 35.
Id. at 13
Id at 15-17.
Second, there is no convincing evidence that Mr. Smoot's actions were negligent. Mr. Douthat insists Mr. Smoot stopped for pedestrians crossing the street. But, as indicated above, there is nothing to support this version of events. Further, Mr. Douthat testified that he did not see Mr. Smoot slide to a stop, indicating Mr. Smoot had control of his vehicle at the time of the accident. The evidence provides nothing further with respect to Mr. Smoot's contributory negligence, and as a result, this Court cannot find him at fault.
Id. at 33-34. (Mr. Douthat indicated there was a "walking zone" and blinking lights for pedestrians to cross, and three females crossed in the walkway causing Mr. Smoot to "get on his brakes to stop.")
Id. at 37.
II. Damages
Based on the Court's determination of fault, the Court must now also determine the proper compensation to award the plaintiffs. The parties agree that Mr. Smoot's complaints stem from the accident, thus there is no dispute as to the causation of Mr. Smoot's initial injuries. At issue is the reasonableness of the medical treatment Mr. Smoot received, the permanency and extent of Mr. Smoot's injuries, whether Mr. Smoot's current complaints are reasonably related to the accident, the appropriate amount of Mr. Smoot's lost wages and the appropriate amount due to Mrs. Smoot for loss of consortium.
A. Reasonable Medical Expense
Throughout the year following the accident, Mr. Smoot was seen by a number of local doctors to both diagnose and treat his injuries from the accident. But, unprompted by these local doctors, in January 2000, Mr. Smoot traveled to California to have Dr. Ditsworth perform microsurgical transforaminal lumbar discectomies at L1-2, L2-3, L3-4 and L4-5. However, Mr. Smoot was not referred by his treating doctors nor was this surgery recommended by any treating physician. In fact, Mr. Smoot stated that he took it upon himself to research via the internet back surgeries and surgeons for about nine months prior to flying to California to see Dr. Ditsworth. Further, it is equally unclear if the surgery was even necessary. Approximately two months prior to his California surgery, Mr. Smoot was released to work part-time, and Dr. Falco was "very pleased" with Mr. Smoot's progress in physical therapy. And, one month prior to the surgery, Mr. Smoot had returned to work as a supervisor for Penn-Del Metal Recycling.
The Court has reviewed all of the documents provided by the parties, but the Court will not detail each doctor nor each diagnosis, but will instead only highlight the testimony it found most useful.
Pl. Ex. 6.
On April 27, 1999, Dr. Falco recommended intradiskal electrothermal therapy at 4 levels, one at a time, but the procedure was not approved by Mr. Smoot's insurance company. Surgery was ruled out per Dr. Anthony Vaccaro on June 22, 1999. Pl. Ex. 4.
Tr. Smoot Dep. at 135-136.
It is unclear why Mr. Smoot flew to California to have a surgery that was not recommended or suggested by his local doctors, especially since he appeared to be working again for Penn-Del and improving. As a result, the Court concludes this expense was unnecessary and unreasonable in light of opinions of all of his treating physicians. Mr. Smoot is seeking $63,156.72 for the reimbursement of the cost to him for the surgery performed in California, and that request is denied. However, the remainder of Mr. Smoot's request for reasonable medical fees is allowed in the amount of $200,615.86.
Mr. Smoot is also seeking an award for future medical expenses. David E. Black, Ph.D., an economist, provided a report regarding Mr. Smoot's anticipated future medical expenses. Within his report, Dr. Black provided two tables based on the rate of increase of medical expenses. The Court has reviewed Dr. Black's report in conjunction with John B. Townsend, III, M.D. and Paul J. Christo, M.D., M.B.A.'s assessments and concludes that Mr. Smoot is entitled to future medical expenses in the amount of $187,880.
Pl. Ex 9.
Dr. Townsend provided an evaluation of Mr. Smoot and indicated that Mr. Smoot will likely require certain future medical care.
Dr. Christo of Johns Hopkins Medicine reviewed Mr. Smoot's medical records in June 2006 and concluded Mr. Smoot would require clinic visits relating to his implantable pump and catheter. Plaintiff Ex 6.
B. Loss of Wages
Mr. Smoot is seeking damages for loss of wages. To determine whether Mr. Smoot is entitled to future earnings, the Court must first assess and analyze Mr. Smoot's disability status.
(I) Mr. Smoot's Testimony
The only testimony provided by Mr. Smoot was his deposition taken six years ago, wherein it appears Mr. Smoot has either exaggerated or has failed to be completely truthful regarding his employment and abilities. According to Mr. Smoot, he returned to his job at Penn-Del Metal Recycling a few weeks after the accident, and worked as a supervisor until May or June of 1999. Mr. Smoot was unable to say what part of his job was difficult, but merely articulated that his pain prevented him from working all day. As a result, on June 17, 2000, Mr. Smoot was declared disabled and eligible to receive social security benefits as a disabled person since April 29, 1999.
Tr. Smoot Dep. at 53-56.
Id. at 56.
Moreover, the Defendant provided the Court a video depicting Mr. Smoot working at Penn-Del in late December 1999, six months after the date he said he was last employed. The video captured Mr. Smoot operating a crane for about half an hour, climbing out of the crane without assistance, walking around without any problems, and climbing a ladder on the outside of a dump truck. The video occurred throughout the m o rning and afternoon of December 21, 1999 and December 22, 1999. In fact, on December 21st, Mr. Smoot was seen working at nine o'clock in the morning and at two-thirty in the afternoon, indicating he was still able to work a full day. This was about a month prior to Mr. Smoot's surgery in California, and Mr. Smoot appeared to be functioning normally, contradicting his deposition testimony.
Mr. Smoot also testified that he did not attempt to obtain employment once he finished with Penn-Del. At the time of his deposition in March 2001, Mr. Smoot asserted that he was trying to learn how to use the computer in an attempt to obtain employment, though at that time he did not believe he could return to work. Contra rily, Mr. Smoot also testified that he surfed the net for nine months researching "back injuries and back surgeries and back surgeons," eventually finding Dr. Ditsworth in California. This would indicate that Mr. Smoot is well-versed in using a computer.
Tr. Smoot Dep. at 56.
Id. at 173-174.
Lastly, Dr. Palermo advised Mr. Smoot that if he stopped smoking he would have a 20% reduction of back pain. Mr. Smoot stated at the time he was smoking three packs a day, but he had cut back to only fifteen cigarettes a day and would completely quit. This conversation occurred in May 1999. The video again depicts Mr. Smoot smoking at least three cigarettes in a fifteen minute time frame on December 21, 1999, clearly indicating that he had not stopped smoking, and had barely slowed down, if he did at all.
Def. Ex. 4.
(ii) Doctors' Assessments
Given that Mr. Smoot's credibility is questionable, and given that his deposition was taken almost six years ago, the Court must rely on the more recent doctors' reports and analysis to determine Mr. Smoot's long-term condit ion. October 4, 1999 Craig D. Sternberg, M.D. concluded that Mr. Smoot "made multiple attempts to return to work, all which have been unsuccessful, and he is permanently disabled from work as a result of this accident. . . ." But the Court notes that he released Mr. Smoot to work four hours a day on November 29, 1999, and the Court also reviewed the contradictory video of Mr. Smoot working for Penn-Del on December 21-22, 1999.
Pl. Ex. 4.
On November 14, 2000, David A. Ditsworth, M.D. concluded that Mr. Smoot continues to be permanently disabled based upon Dr. Sternberg and Dr. Falco's assessments in May and October 1999, despite noting that "by May 2000 [he] was significantly symptomatically improved. . . ." Dr. Ditsworth's conclusions are suspect, however. Dr. Ditsworth did not examine Mr. Smoot, he only reviewed his, Dr. Sternberg and Dr. Falco's medical records, which predate Mr. Smoot working in December 1999. Because Dr. Ditsworth appears to rely almost exclusively on these assessments, his conclusions are not given significant weight by the Court.
Pl. Ex. 5.
The most thorough assessments came from Dr. Bandera and Dr. Townsend. On June 12, 2006, Peter B. Bandera, M.D. examined Mr. Smoot as well as Mr. Smoot's medical history and concluded that Mr. Smoot continues to be totally disabled from work and relates this disability directly to the accident. Dr. Bandera further specifically refutes Dr. Townsend's assessment of Mr. Smoot that he is not totally disabled.
Pl. Ex. 7.
Dr. Townsend submitted a report upon review of Mr. Smoot's medical history and Mr. Smoot himself, on August 31, 2006. Dr. Townsend concludes that Mr. Smoot "appears to over-report his complaints as he informed me that he could not sit for 5-10 minutes without increased pain, and yet sat for 30 minutes during the interview without complaint." He further concluded that Mr. Smoot's "subjective complaints are out of proportion to his objective findings." These findings are consistent with the Court's assessment of Mr. Smoot's credibility.
Def. Ex. 5.
Id.
However, Dr. Townsend does conclude that Mr. Smoot was totally disabled during his hospitalization in 2003 to have a pump implanted, but that since June of 2000 Mr. Smoot could have worked a sedentary job. Lastly, Dr. Townsend concludes that Mr. Smoot's diagnosis was a difficult one due to the over reporting of back pain, and his prognosis is poor due to his history of substance abuse, depression and post-traumatic stress disorder. (iii) Disability and Loss of Wages Conclusions
Id. at 11.
Based upon a review of the various medical records, the Court finds that Mr. Smoot became disabled in 2000 and using Scenario #2 of Dr. Black's evaluation, he is entitled to lost past earnings in the amount of $190,310. The Court also finds convincing Dr. Townsend's opinion that the Plaintiff can now perform at least part-time sedentary work. The Court concludes, based upon the medical condition of the Plaintiff, that it is reasonable he would retire at age 62, and therefore, again using Dr. Black's assessment of Scenario # 2 and with returning to work part-time, Mr. Smoot is entitled to future earnings of $460,466.
III. Conclusion
Based on the foregoing, to fully and fairly compensate Mr. Smoot for his injuries, damages and losses, he is hereby awarded total damages in the amount of $388,495.86 for medical expenses and $650,776 for lost wages.
While it is unclear whether the Plaintiff is seeking additional compensation for pain and suffering since it was not argued for at the bench trial, it was requested in the complaint, and therefore the Court awards $100,000 for pain and suffering. Lastly, to fully and fairly compensate Mrs. Smoot for her loss of consortium, she is hereby awarded damages in the amount of $25,000.
IT IS SO ORDERED this 31st day of May, 2007.