Opinion
No. 98C-03-238-JOH.
Submitted: March 1, 2000.
Decided: March 22, 2000.
Upon Motion of Defendant for Remittitur — DENIED.
Kenneth M. Roseman, Esq., of Ciconte, Roseman Wasserman, attorney for plaintiff
Keith E. Donovan, Esq., of Swartz, Campbell Detweiler, attorney for defendant
MEMORANDUM OPINION
Defendant Dorothy Bolen seeks remittitur from the jury's award of $494,294 to plaintiff Beryl Yancey arising out of a 1996 automobile accident. She contends the size of the verdict is excessive and against the great weight of the evidence. At trial, Bolen conceded negligence and that Yancey had been injured in the accident and that she was entitled to damages. The jury's role, therefore, was to determine only the appropriate amount of compensatory damages.
When she moved for remittitur, Bolen also moved to stay execution on the judgment. The Court granted the stay on March 1, 2000.
FACTUAL BACKGROUND
Yancey is a forty-four year-old divorced mother of two adult children. She was going home from work on September 10, 1996, when her car collided with Bolen's vehicle. She testified she recalled it being a sunny day and next being pulled from her car.
One of the most contested injury/damage issues in the case was whether Yancey had struck her head in the accident. This was important because a major portion of the damages Yancey claimed stemmed from claims of memory deficit resulting from a closed head injury and consequent detrimental affect on her ability to work. Even if she had struck her head, there was also the issue of to what degree she had suffered mental impairment. The emergency room record made no mention of a head injury, but a picture of her car showed a large crack in the windshield over the steering wheel. Various medical records differed over the degree of mental deficit caused by any injury to the head. Bolen, of course brought these differences to the jury's attention.
Yancey saw Dr. Barry L. Bakst for the first time in connection with this accident on September 26, 1996. He believed Yancey's head had hit the steering wheel and that her knees had hit the dash board or the engine which may have been knocked back into the passenger compartment. Dr. Bakst observed memory problems and problems with Yancey's right eye movement. Yancey reported double vision. She also complained of tenderness in her neck, shoulder and around her shoulder blades. Yancey told Dr. Bakst about deep breathing complaints.
There was no doubt in Dr. Bakst's mind that Yancey had suffered a closed head injury in this accident. Because of this injury, he said, she was incapable of returning to work. In addition to the closed head injury, Yancey's knee and shoulder injuries were also accident-related. She also suffered a cervical strain and sprain. Dr. Bakst continued to treat Yancey after September 26th. When he saw her next on October 17th, she was still having memory problems. In the meantime, she had seen a neuropsychologist who confirmed the existence of a closed head injury. Yancey told Dr. Bakst of low back pain. She was also experiencing depression.
Dr. Bakst continued to treat Yancey over the next several months. Her last visit with him was on April 3, 1997. He prescribed for her a mild anti-depressant to combat a depression which he said can come on with pain and frustration. She was having trouble sleeping and was suffering from headaches. Dr. Bakst referred her to an associate of his, Dr. Anne C. Mack, since Dr. Mack specialized in treating closed head injuries. He also referred Yancey to Dr. Ewan Crain for surgery on both knees. As of April 1997, he said, she was still not capable of working.
Yancey had treated with Dr. Bakst prior to this accident. She had been involved in a prior automobile accident on December 23, 1991. Yancey was apparently driving a hatchback and during the collision, she struck her head on the wheel. Freakishly, a tire rim from the back of her car was propelled forward and hit her in the back of the head. She suffered a closed head injury in this accident, too. Dr. Bakst first saw Yancey for this accident in March 1992. He treated her cervical and lumbar sprain and strain, as well as for a closed head injury. She suffered, however, no knee injuries in the 1991 accident. He treated her for these injuries over a period of two and one-half years. Her last appointment was in August 1994. As of that time, he said she would have chronic cervical and lumbar pain on an intermittent basis but he also said her closed head injury had resolved. She was to come back as needed. Yancey did not come back to him until her first visit following the September 1996 accident.
Dr. Bakst told the jury that the 1996 accident aggravated or exacerbated Yancey's 1991 cervical and lumbar injuries. While she had suffered a shoulder injury in the 1991 accident, it had become asymptomatic. The 1996 accident, however, made it symptomatic.
When treating Yancey for her 1991 accident, Dr. Bakst was aware she was working two jobs. She was off work for a while due to that accident but returned to those jobs. That is not the case here, as she has been unable to return to work. As a result of the 1996 accident, she will have permanent work restrictions, such as, no lifting over fifteen pounds, not working above her head and most importantly, a job that could not have repetitive motion. He also said Yancey would need future medical treatment.
As noted earlier, Dr. Bakst referred Yancey to Dr. Mack because she specialized more than he did in treating closed head injuries. Yancey first saw Dr. Mack on April 29, 1997. She noted the neurophysiological report which opined there had been a concussion. The report indicated Yancey was not malingering. The closed head injury caused cognitive memory deficits.
Yancey complained to Dr. Mack of headaches and sleeping difficulties. She had these complaints when she came back to Dr. Mack again in June. The doctor prescribed medicine, which helped to some degree. Dr. Mack believed at this time that Yancey was still not capable of returning to work. She said Yancey cried about her inability to return to work. She referred Yancey to the Division of Vocational Rehabilitation for an evaluation. Dr. Mack said that, based on a telephone conversation with a representative at the Division, testing there showed Yancey was unable to return to work.
Yancey next saw Dr. Mack in August 1997. At that time, Yancey said her low back pain was worse and that the pain was radiating down her buttock and left leg. Dr. Mack saw Yancey next on January 27, 1998 and learned that she had fallen earlier in that month. She testified that the fall may have been caused by vestibular problems brought on by the 1996 closed head injury. Yancey also reported increased lower back pain.
Dr. Mack next saw Yancey on February 24, 1998. There was no real improvement in Yancey's symptoms. Dr. Mack told the jury that with these symptoms lasting that long, it would be unlikely there would be further improvement. Yancey, she said, was depressed over the lack of improvement. When she came in for her next visit on March 24th, Yancey complained of severe headaches and sleeping difficulties. She did report, however, that her neck was better.
In the opinion of Dr. Mack, Yancey suffered a permanent closed head injury in the 1996 accident, although on cross-examination she described it as mild to moderate. She was also asked on cross-examination about the closed head injury suffered in the 1991 accident. But Dr. Mack said when Dr. Bakst last treated her for the earlier accident, Yancey was not complaining of dizziness. Thus, Dr. Mack said, there was a new, closed head injury caused by the 1996 accident.
There was a lot of questioning on cross-examination also about Dr. Mack's belief that the Division had disqualified Yancey from work. One reason for the questions was that Dr. Mack had not made a note or any other entry about the telephone call. Whatever the vocational report was, Dr. Mack said, she believed Yancey was incapable of returning to gainful employment. Yancey could not do work requiring repetitive motion and would need close supervision. These restrictions placed severe limitations on jobs she could do.
The Division, however, had Yancey undergo a neuropsychological examination by Dr. Frederick W. Kurz. He described her demonstrating high levels of ambition but suffering from mild to moderate vocational impairments due to emotional and cognitive limitations. He found post-traumatic stress disorder and arithmetic disorder. "Her stated interests of therapy aid or bus driver would seem to be consistent with her cognitive skills." Nothing ever came of this, however.
Kurz Report, March 20, 1998, Defendant's Exhibit 1.
In addition to the closed head injury suffered in the 1996 accident, Dr. Mack said Yancey also suffered lumbo-sacral sprain and strain and cervical strain and sprain. Yancey had complained during her treatment course of low back pain radiating into the left leg and buttock area. A MRI showed a left disc bulge in the L3-4 and L5 areas causing nerve pinching consistent with Yancey's complaints of radiculopathy. The knee injuries for which Dr. Grain treated her and the shoulder injuries were all permanent, except to the extent helped by Dr. Grain's arthroscopic surgery. All of these conditions contributed to Yancey's depression and anxiety which arose out of the 1996 accident.
Dr. Mack, as had Dr. Bakst, testified that Yancey would need future medical treatment. Yancey had already incurred $12,088.83 in medical expenses not covered by her PIP insurance. The present value of her future medical expenses was projected to be $48,750.
In addition to these expenses, Yancey claimed damages for past lost earnings and future lost earnings. She said she was born in November 1955 and started to work part-time while still in high school. After graduation, she did the books for her uncle's business and moved on from that job to be a credit card manager for the Bank of Delaware. She left there for a job with a cleaning company. She held that job for only a little while before coming to work at BJ's Wholesale and a full-time job at First Chicago Corporation [FCC].
Her job at BJ's was part-time as a front line supervisor. Her job at FCC was entry-level, at first. But, she was taking extra courses in banking in order to get better jobs at FCC, which was happening. Her job and salary had improved enough prior to the 1996 accident that she was able to quit her job at BJ's. As of September 1996, she was averaging thirty to forty hours of overtime at FCC. Her earnings in 1995 were $31,938.
Yancey said that the injuries she suffered in the 1991 accident had caused her to lose time from work. She said it was less than a year and eventually she returned to the two jobs, BJ's and FCC, which she had at that time. Since she had to lift trays at BJ's, she would get some backaches.
As a result of the 1996 accident, Yancey said her "[m]ind is gone." She testified she could no longer count. This is one reason she cannot help her grandchildren with their homework. She has promised her landlord that she will not cook because of her forgetfulness. She wants to go back to work.
In addition to moving up a career ladder at FCC, Yancey had been active outside of work. She was a Sunday school teacher, a youth choir director, had created a gospel group which traveled up and down the East coast, and sang at weddings and birthday parties. She was also part of a church bowling league. As a result of the 1996 accident, she has given up these activities. "I want to be me." she told the jury.
Elaine McDowell, a vocation consulting specialist performed a vocational evaluation of Yancey. She described her as "very serious about advancement," and an above-average employee. McDowell testified that Yancey had, "a whole wealth of skills," but with the restriction against repetitive use of arms and hands, Yancey has a significant restriction. Coupled with her cognitive deficits, there are very few jobs Yancey could do. McDowell also said with Yancey's closed head injury, the greater problem is keeping a job even with lots of support. She did not see Yancey in a full-time, competitive job. At best, McDowell said Yancey could find a job up to $8 an hour, around $13,000 to $16,000. But, the difficulty with these jobs is their repetitive task nature.
Based on Yancey's pre-accident earnings, her work and life expectancies, the present value of her future lost earnings was indicated to be $467,268, if she retired at 59 and $542,928, if she retired at 62. Her past lost wage claim was for $96,000.
Bolen had not only conceded negligence, she conceded Yancey was entitled to some compensatory damages. The issue was how much. In that regard, she offered the testimony of Dr. John B. Townsend, III, who performed a medical examination on November 24, 1999. He had Yancey's medical records from the 1991 and 1996 accidents. Those records included several psychotherapy reports which, in part' suggested insufficient effort at doing the test or other problems. While Yancey had some mild memory deficits, these did not prevent her from working. Dr. Townsend could not say with reasonable medical probability that Yancey had any cognitive deficits. He believed she could do a repetitive job.
Dr. Townsend told the jury that injuries which Yancey received in 1991 were exacerbated by the 1996 accident. These included her neck injury, a shoulder injury and a degenerative knee condition. Dr. Townsend said the "base line" from her 1991 accident was worsened by the 1996 accident. But, he also said, Yancey had not returned to her pre-1996 accident base line.
During Dr. Townsend's appearance on the stand, there were many questions and a lot of testimony about the various psychotherapy reports. Were they thorough? Did they show cognitive deficit or not? And much more. The thrust of the reports was that there were memory deficits, although this was unclear or with a bit of doubt in some of them.
After listening to all of this evidence and sorting through the conflicts, the jury awarded Yancey $494,294.
APPLICABLE STANDARD
A jury's verdict is presumed to be correct. Absent exceptional circumstances, the jury's determination of damages will not be set aside unless it is so grossly disproportionate to the injuries suffered as to shock the Court's conscience or sense of justice. Credibility of witnesses is for the jury, not the Court. In fulfilling that role, a jury has the right to accept one expert's testimony over another's.
Mills v. Telenczak, Del.Supr., 345 A.2d 424, 426 (1975).
Young v. Frase, Del.Supr., 702 A.2d 1234, 1236-37 (1997).
Sheeran v. State, Del. Supr., 526 A.2d 886, 892 (1987).
General Motors v. Veasey, Del.Supr., 371 A.2d 1074, 1076 (1977).
DISCUSSION
To capsulize all of this evidence and to explain the jury's verdict is rather simple. It starts with the single most important element in a personal injury case: the plaintiff's credibility. Credibility is not confined to witness stand demeanor or consistency with earlier statements. It is often much, much more. Are the complaints of injury and pain consistent with the medical records and medical testimony?Yancey had a lot going for her relative to credibility. She was an impressive witness. Some of the injuries she received in the 1996 accident were objectively observable. While injured in the 1991 accident, including a closed head injury, she had returned to work and continued on her upward career path. Both her doctors and Dr. Townsend said the 1996 accident exacerbated or made symptomatic injuries she had received in the 1991 accident. Her complaints and medical findings were consistent, for the most part. The record was undisputed she had been a hard worker and was striving to improve herself. While the defense tried to show the 1996 accident should not or did not have the major affect Yancey claimed, there was more than ample evidence that it had a tremendous detrimental affect upon her ability to work. This, in turn, caused longlasting depression.
Yancey not only was a hard worker striving to improve herself at work, she was very active outside of work. Her extensive community activities showed that. While conceding Yancey's pre-1996 accident, job and community history, Bolen's main argument was to challenge whether the accident threw her off track. Bolen did not dispute most of the less significant injuries. Instead, she sought to raise doubts about just how far off the job track Yancey had been thrown. In short, her argument to the jury was that Yancey was capable of returning to work and that she had not suffered such an extreme head injury as claimed.
But again, these are factual arguments presented by Dr. Townsend's testimony, certain medical and other records, and argument to the jury which Bolen made at trial. The jury obviously rejected that testimony and argument. It relied instead on the pre-and post-accident employment records. It chose to believe Yancey, Dr. Bakst, Dr. Mack, and McDowell about the affect on her mental functioning and on her ability to work. That affect was significant. It was no mere bump on the road. It was a chasm.
Once it accepted that result, the lost earnings figures fall easily into place. A verdict of $494,294 is less than the maximum lost earnings claim of $542,928 and the past lost earnings claim of $96,000. As instructed, the jury awarded a lump sum. It did not, also as instructed, itemize damages.
With these specific claims for damages and significant testimony about the pain, distress and depression the injuries caused by Bolen's negligence, the jury's award is not excessive and it does not shock the Court's conscience. The Court sees no reason to reduce the verdict.
CONCLUSION
For the reasons stated herein, the motion for remittitur of defendant Dorothy Bolen is DENIED. The stay of execution of judgment entered March 1, 2000, is LIFTED.
IT IS SO ORDERED.
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