Opinion
C.A. No. 99C-07-041
Submitted: January 23, 2001
Decided: April 27, 2001 Corrected: June 15, 2001
Upon Consideration of Plaintiff's Motion for Additur and/or New Trial NEW TRIAL GRANTED.
John S. Grady, Esq., Dover Delaware. Attorney for Plaintiffs.
Jeffrey A. Young, Esq., Dover, Delaware. Attorney for Defendant.
ORDER
Upon consideration of the plaintiff's motion for additur and/or a new trial, the defendant's response thereto, and the record of the case, it appears that:
1. This is a personal injury, auto case in which the jury awarded the plaintiff $1,000. The plaintiff, Virginia L. Taylor, was a passenger in a car driven by her husband. They were rear ended by the defendant, Edward N. Hawkins, Jr. Negligence on the defendant's part was not contested. The plaintiff complained to the ambulance personnel of neck and lower back pain. Ultimately, she was treated by a Dr. Uthaman, M.D. She sought her treatment immediately in that her first appointment with Dr. Uthaman was within two weeks of the accident. He treated her on a fairly regular basis for over a year and diagnosed soft tissue injury to the neck and back which had not resolved itself and would have some degree of permanecy. He related the soft tissue injury to the auto accident.
2. Three witnesses testified at trial, Mr. and Mrs. Taylor and Dr. Uthaman. It was readily apparent that Ms. Taylor has numerous physical ailments. They include high blood pressure, arthritis, angina, headaches, and others. In fact, she testified that she had been receiving SSI payments since 1990 because of her medical condition. She appeared considerably aged beyond her years. As it is not uncommon in soft tissue accident cases, the nature and extent of her injury was ambiguous. However, there was no evidence of any prior neck or back injury in the accident. The jury, by its verdict, agreed that she sustained some injury.
3. While no defense witnesses were called to rebut the plaintiff's evidence, there were weaknesses in the plaintiff's case. The plaintiff, for example, did not give the doctor a very good medical history of herself. The doctor noted tenderness and spasms but the evidence of injury essentially rested on subjective symptoms. Thus, while the evidence clearly supported a conclusion that the plaintiff was injured in the accident, the nature and extent of those injuries was unclear.
4. A jury's verdict is presumed to be correct. The court may set aside a jury verdict and order a new trial only where the verdict is so grossly out of proportion to the injury suffered as to shock the court's conscience and sense of justice. In addition, the court must bear in mind that the jury is free to reject evidence even if it is unrebutted.
Young v. Frase, Del. Supr., 702 A.2d 1234 (1997).
Storey v. Camper, Del. Supr., 401 A.2d 458 (1979); Mills v. Telenczak, Del. Supr., 345 A.2d 424 (1975); Garrett v. Virges, Del. Super., No. 97C-02-249, Herlihy, J. (Mem. Op.); Carney v. Preston, Del. Super., 683 A.2d 47 (1996); Breeding v. Johnston, Del. Super., No. 91C-02-195, Taylor, J. (Order).
Longoria v. Stat, Del. Supr., 168 A.2d 695 (1961).
4. While the credibility of witnesses is always a matter for the jury, and the jury may reject unrebutted testimony, it did not appear to me, as I listened to the evidence and observed Ms. Taylor, the either her testimony or the testimony of the doctor presented any particular, significant credibility issue or reason to doubt their credibility. While an award of $1,000 is not normal, it is very low even for soft tissue injuries of the type involved here. And in my view a verdict of only $1,000 can be "grossly out of proportion to the injury suffered" even where the plaintiff may not necessairly be entitled to a "large" or "substantial" soft tissue injury award. Based upon the evidence that the plaintiff did suffer a neck and back injury which necessitated treatment for over a year, I conclude that the verdict of $1,000 is grossly inadequate.
5. The plaintiff has asked in the alternative for additur or a new trial. I have considered additur, but I am not inclined to present an additur alternative. In this case the interest of justice may be better served by simply ordering a new trial and leaving it to the parties to decide how to proceed from this point.
6. Therefore, the plaintiff's motion for new trial is granted.
IT IS SO ORDERED.