Submitted: June 20, 2017
Defendant's Motions for a New Trial, or, Alternatively,
for Remittitur, Denied.
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.
T. McNelis, Esquire of Young & McNelis, Dover, Delaware;
attorney for the Defendant.
WILLIAM L. WITHAM. JR. RESIDENT JUDGE
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.
Farm's motions for a new trial or, alternatively, for
remittitur, are DENIED. Mr. Henry's
motion is GRANTED IN PART as described
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.
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.
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.
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
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
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.
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.
Motion for a New Trial
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.
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
Alternative Motion for Remittitur
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 ...