Submitted: June 19, 2018
C. Gill, Esq. Law Office of Edward C. Gill & Associates
Chrissinger Cobb, Esq., Ronald W. Hartnett, Jr., Esq.
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
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.
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.
Motion for New Trial
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." 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." 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
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. Likewise, Dr.
Piccioni testified that Plaintiff Amisial suffered a
temporary neck injury and a permanent back injury as a result
of the accident. Dr. Piccioni also testified that the
physical therapy treatment provided to Ms. Amisial was
reasonable, necessary, and related to the
collision.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.
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. At trial, when confronted with the
references to spasms, Dr. Piccioni testified that they
constituted objective signs of injury, and then acknowledged that
spasms were found during her medical treatment that he found
to be reasonable, necessary, and related to the accident.
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. Accordingly, a new trial as to damages
only is appropriate.
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. 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. 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. 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
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. If the Court were to employ additur, it
would "increase the award to the absolute minimum amount
that the record requires."  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.