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Amisial v. Scott

Superior Court of Delaware, Kent

July 12, 2018

Francienne Amisial & Gerard Donat
George Scott

          Submitted: June 19, 2018

          Edward C. Gill, Esq. Law Office of Edward C. Gill & Associates

          Nancy Chrissinger Cobb, Esq., Ronald W. Hartnett, Jr., Esq.


         This letter provides the Court's decision regarding three pending motions: one for a new trial, one for reargument, and one for trial costs. First, Plaintiffs Francienne Amisial and Gerard Donat (hereinafter collectively "Plaintiffs") move for a new trial after a three day jury trial starting May 29, 2018. The jury found Defendant George Scott (hereinafter "Mr. Scott") liable for a March 25, 2015 collision but awarded Plaintiffs no damages for personal injury. Plaintiffs argue that the jury's verdict awarding no damages was against the great weight of the evidence because both testifying doctors opined that Ms. Amisial suffered injuries and objective signs of injury supported their opinions. Plaintiffs also move for reargument seeking reconsideration of the Court's decision to admit photographs that showed minimal damage to the parties' vehicles. Plaintiffs argue that this error justifies a new trial. If a new trial is granted because of the damages issue, Plaintiffs also request that the Court reconsider their admissibility in the new trial. Finally, Mr. Scott seeks $1, 928.25 in trial costs as the prevailing party.

         Based upon the evidence presented at trial, Plaintiffs' motion for a new trial is GRANTED because unrebutted medical expert testimony at trial, supported by at least some objective evidence of injury, established that Ms. Amisial suffered injuries. The new trial shall be a damages only matter because the jury was properly instructed as to liability and there is no basis to conclude that the jury's decision as to one impacted the other.

         Plaintiffs' motion for reargument regarding the admissibility of the photographs is also GRANTED. The Court did not misapprehend the law or the facts when admitting the photographs in the first trial because they were relevant to issues of (1) disputed liability and (2) the weight due Plaintiffs' medical expert opinion. The new trial's narrowed scope, however, requires a new Delaware Rule of Evidence 403 (hereinafter "DRE 403") evaluation which provides a different result. For the reasons discussed below, since liability is no longer at issue, the photographs' relevance for purposes of weighing the medical expert testimony is substantially outweighed by the risk of unfair prejudice to Plaintiffs. Finally, because a new trial is appropriate, Mr. Scott's motion for costs is DENIED as moot.

         Plaintiffs' Motion for New Trial

         Pursuant to Superior Court Civil Rule 59(a), a new trial may be granted as to all or part of the issues in an action. When deciding a motion for a new trial, the jury's verdict is entitled to "enormous deference."[1] A jury's verdict should not be disturbed unless it is "manifestly and palpably against the weight of the evidence or for some reason, or a combination of reasons, justice would miscarry if it were allowed to stand."[2] Relevant to the matter at hand, "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."[3]

         Evidence at trial in this case included expert medical testimony from Plaintiffs' medical expert Dr. Swaminathan, and Mr. Scott's medical expert, Dr. Piccioni. Dr. Swaminathan testified that Ms. Amisial suffered permanent neck and back injuries that were caused by the accident.[4] Likewise, Dr. Piccioni testified that Plaintiff Amisial suffered a temporary neck injury and a permanent back injury as a result of the accident.[5] Dr. Piccioni also testified that the physical therapy treatment provided to Ms. Amisial was reasonable, necessary, and related to the collision.[6]Although Ms. Amisial significantly delayed seeking treatment, had a significant gap in the middle of her treatment, and then a large gap between her last visit with Dr. Swaminathan and trial, Dr. Piccioni maintained his opinion that she suffered a permanent injury.[7]

         Furthermore, Ms. Amisial exhibited an objective sign of injury on multiple occasions: spasm. At least one Delaware case has examined that sign of injury and found it to be sufficiently objective, when described by expert medical testimony, to require a new trial in a zero dollar verdict case.[8] At trial, when confronted with the references to spasms, Dr. Piccioni testified that they constituted objective signs of injury[9], and then acknowledged that spasms were found during her medical treatment that he found to be reasonable, necessary, and related to the accident.

         Given the evidence presented at trial, a zero dollar verdict regarding damages was against the great weight of the evidence, shocks the conscience of the Court, and is unsupportable. The Court notes that the jury was properly instructed regarding liability in this case, and after correct legal instruction, returned a verdict finding Mr. Scott liable. There is no reason to conclude based on the jury instructions and the evidence presented that the jury confused the issues of liability and damages in this case.[10] Accordingly, a new trial as to damages only is appropriate.

         The Court also grants a new trial as to damages regarding Mr. Donat's loss of consortium claim. Although loss of consortium claims are separate claims to a certain extent, they are also derivative of those of the primarily injured party.[11] There was no medical evidence that Mr. Donat suffered injury leaving the jury free to reject the allegation that he suffered a loss of consortium. Nevertheless, Delaware case law repeatedly references an "inexorably intertwined" standard for determining whether part or all of the previously tried issues should be retried.[12] The Court holds that when a damage claim is derivative of a primary claim and a new trial on damages is warranted on the primary claim, the derivative claim must also be retried because it is inexorably intertwined with the primary claim.[13] The Court accordingly grants a new trial on that claim as well because it is derivative of Ms. Amisial's claim for which a zero dollar verdict was unsustainable.

         As a final matter, Plaintiffs did not request additur. The Court recognizes that it may, nevertheless, award additur sua sponte but elects not to in this circumstance.[14] If the Court were to employ additur, it would "increase the award to the absolute minimum amount that the record requires." [15] Given the initial delay in treatment, later significant gaps in treatment, and the fact that Ms. Amisial missed no work as a result of the collision, the Court finds that setting a figure reflective of the lowest appropriate amount would not benefit either parties' interests in this case.

         Plaintiffs' ...

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