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Henry v. State Farm Mutual Automobile Insurance Co.

Superior Court of Delaware

September 25, 2017

DANIEL HENRY, Plaintiff,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., a Foreign corporation, Defendant.

          Submitted: June 20, 2017

         Upon Defendant's Motions for a New Trial, or, Alternatively, for Remittitur, Denied.

         Upon Plaintiffs Motion for Imposition of Prejudgment Interest, Fees and Court Costs. Granted in Part.

          William D. Fletcher, Jr., Esquire of Schmittinger & Rodriguez, P.A., Dover, Delaware; attorney for the Plaintiff.

          Brian T. McNelis, Esquire of Young & McNelis, Dover, Delaware; attorney for the Defendant.

          ORDER

          WILLIAM L. WITHAM. JR. RESIDENT JUDGE

         Before the Court are Defendant State Farm Mutual Automobile Insurance Company's ("State Farm's") Motion for a New Trial, its Motion in the Alternative for Remittitur, and Plaintiff Daniel Henry's responses in opposition. Also before the Court are Mr. Henry's Motion for Imposition of Prejudgment Interest Pursuant to 6 Del. C. § 2301 and for Assessment of Expert Witness Fees, Pursuant to 10 Del. C. § 8906 and Court Costs, Pursuant to Superior Court Civil Rule 54, and State Farm's response in opposition.

         State Farm's motions for a new trial or, alternatively, for remittitur, are DENIED. Mr. Henry's motion is GRANTED IN PART as described below.

         FACTS

         In brief, this is an underinsured motorist case where liability was admitted and the sole issue for the jury was damages. As a result of a collision in December 2013, Mr. Henry had a low back injury that began as tightness and resulted in worsening pain. He participated in six months of physical therapy and saw some improvement, even as his pain continued. He testified, generally, that his pain interfered with his work, including when he needed to restrain a child as part of his work as a paraprofessional. He testified that he has pain during his daily activities which interfered by forcing him to minimize bending over or catching the ball while coaching children's baseball. He had difficulty playing basketball and flag football because of his back pain. He testified that the pain interfered with his sleep.

         During Mr. Henry's direct examination at trial, his counsel asked him if his vehicle was a total loss following the collision. Mr. Henry said it was, and counsel for State Farm raised an immediate objection.

         At sidebar, State Farm's counsel argued that the question was impermissible because it was irrelevant to his injuries. The Court asked if counsel was going to move on, and Mr. Henry's counsel responded in the affirmative. The Court directed him to move on and sustained the objection, but did not instruct the jury to disregard the question and answer. State Farm's counsel did not make a further objection regarding the exchange.

         Mr. Henry also presented the video deposition testimony of Dr. Newell. Dr. Newell's testimony was less than an hour in length, and included the following exchange, to which State Farm objected at trial and now challenges:

Q: Doctor, my last question dealt with your report. And I was asking about whether or not Mr. Henry would need medical treatment in the future. And what do you indicate in your report?
A: I believe that he may require additional care in the future which ... may involve either additional therapy, medication, [or] office visits, and ... it may also require more aggressive treatment, which could be perhaps injections.
Q: Okay. And that opinion was based upon reasonable medical probability?
A: Yes.[1]

         At closing argument, Mr. Henry's counsel made the following argument to the jury:

When a person presents a claim such as this, he has only one opportunity with one jury to consider everything that this injury has done to him. In other words, he can't come back in five years, he can't come back in ten years, he can't come back in twenty years to another jury and say, hey, the back is really bad, I'm still getting some therapy, in fact, I've even decided to have the needles and I need to have that considered. Can't do that. You are the only jury that will ever consider what he's been through and what he will go through for the rest of his life because of this low back injury.[2]

         The jury ultimately awarded Mr. Henry $ 175, 000, which the Court reduced to $100, 000 to conform to the limits of his policy upon motion by Mr. Henry. Mr. Henry and State Farm also filed the motions that are currently before the Court.

         THE PARTIES' CONTENTIONS

         I. Motion for a New Trial

         State Farm contends that a new trial is required because (1) Dr. Newell's testimony was not given to a reasonable degree of medical probability, as evidenced by his use of the word "may, " (2) Mr. Henry's counsel improperly referenced future medical treatment during closing argument, and (3) the Court erroneously permitted testimony about the condition of Mr. Henry's vehicle following the collision without issuing a limiting instruction.

         Mr. Henry argues in response that Dr. Newell's testimony was given to a reasonable degree of medical probability despite his use of the word "may" and that the Court did not err by failing to give an unrequested instruction. He also distinguishes the cases cited by State Farm, pointing out that the offending evidence here is a single question and answer.

         II. Alternative Motion for Remittitur

         State Farm contends that it is entitled to remittitur because the jury's $ 175, 000 verdict should shock the conscience of the Court and is unsupported by the evidence on the grounds that (1) the pain and suffering complained of were "mild" and (2) the jury ...


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