Opinion
No. 340, 2002
Submitted: November 13, 2002
Decided: December 26, 2002
Court Below: Superior Court of the State of Delaware in and for New Castle County, C.A. NO. 98C-08-021
Before VEASEY, Chief Justice, HOLLAND and STEELE, Justices.
ORDER
This 26th day of December 2002, upon consideration of the briefs of the parties, it appears to the Court that:
(1) In August 1996 Bernadette Sullivan, Plaintiff, and Katherine Sanderson, Defendant, were involved in an auto accident. Sullivan alleged that Sanderson was negligent and that her negligence directly resulted in personal injury. Sanderson admitted negligence. Trial was held August 8 through August 10, 2001. The jury returned a verdict of "zero damages," specifically finding that the accident did not proximately cause Plaintiff's injuries. Pursuant to Superior Court Civil Rule 59, Plaintiff filed a post-trial Motion for New Trial. As the prevailing party, Defendant filed a post-trial Motion for Costs. The trial judge denied Plaintiff's Motion for New Trial and granted the Defendant's Motion for Costs. This is Plaintiff's appeal.
(2) Plaintiff asserts that because the defense doctors agreed that she "suffered, at the very least, a neck injury as a result of the collision, based upon objective findings, the jury verdict of no proximate cause is against the weight of the evidence and the Court-below abused its discretion denying a new trial."
Appellant's Opening Brief at 4.
(3) A verdict of zero damages is inadequate and unacceptable as a matter of law where uncontradicted medical testimony establishes a causal link between an accident and injuries sustained. However, it is well-settled law that a jury may reject an expert's medical opinion when that opinion is based solely on the subjective complaints of the patient and may assess the credibility of differing medical opinions about causation depending upon whether a plaintiff's alleged injuries are based upon subjective or objective findings.
Mair v. Santucci, 697 A.2d 747, 749 (Del. 1997).
Amalfitano v. Baker, 794 A.2d 575, 578 (Del. 2001); Breeding v. Contractors-One-Inc., 549 A.2d 1102, 1104 (1988).
(4) We have recognized that a doctor's finding of "spasms" reflects objective testing. Plaintiff asserts that her expert, Dr. Sternberg, testified that he conducted a physical examination of the plaintiff, which revealed "tenderness with some spasm, meaning the muscles were extremely tight and in contraction." The trial judge, however, determined that "neither side's expert presented any objective findings, not even the presence of `spasms' and that their reports and diagnoses were based [solely] on plaintiff's subjective complaints." We believe that the trial judge could not have fairly concluded that: "neither side presented any objective findings, not even the presence of spasms" in light of Dr. Sternberg's testimony. This factual conclusion by the trial judge appears central to his decision to deny the Motion for a New Trial.
Amalfitano, 794 A.2d at 576.
Appendix to Appellant's Opening Brief at A58 (Testimony of Dr. Sternberg).
Sullivan v. Sanderson, C.A. No. 98C-08-021-FSS (Del Super. May 30, 2002) (ORDER denying Plaintiff's Motion for a New Trial and granting Defendant's Motion for Costs).
(5) The fact that at least one medical expert, found objective evidence of an injury caused by the accident, does not necessarily presuppose that a jury verdict of zero damages cannot be sustained. For example, if another expert testified that the plaintiff sustained an injury, but based his or her opinion solely on the plaintiff's subjective complaint and found no objective evidence of an injury related to the accident complained of, the jury could choose to believe the expert testifying contrary to plaintiff's expert and return an award of zero damages. Here, the record clearly indicates that even the defense experts agreed that the accident proximately caused some injury. However, neither the trial judge's post trial ruling, the record submitted to us, nor the briefs of the parties reflect whether:
a. Plaintiff's experts testified that the objective evidence of muscle spasm directly resulted from an injury caused by the accident in issue; and
b. Any defense experts acknowledged finding objective evidence of injury attributable to the accident in question or simply opined that the plaintiff's subjective complaints alone could be attributable to the accident in issue.
We can only conclude from what has been submitted to us that the trial judge erred when he found as a matter of fact that the record did not reflect "any objective findings" and that presumably all experts opined solely on the basis of the plaintiff's "subjective complaints." Because that explicit finding is critical to sustain a zero damage verdict and is flatly contradicted by the record as it was presented to us, the trial judge's decision to deny the Motion for a New Trial must be reversed and remanded. On remand, we request that the trial judge re-examine the record in light of Amalfitano and this Order and determine whether there is testimony in the record contradicting the plaintiff's expert testimony based upon objective findings of muscle spasm; and, if so, was it credible evidence upon which a reasonable juror could rely to reject plaintiff's proferred evidence of injury proximately caused by the accident.
NOW, THEREFORE, IT IS ORDERED, that this matter is REVERSED and REMANDED to the trial judge for action consistent with this Order.
DEL. SUPR.CT.R. 19(C).
BY THE COURT: