      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                  IN AND FOR NEW CASTLE COUNTY

JANICE THOMPSON and MARY               )
HARVEY,                                )
                                       )
                  Plaintiffs,          )
                                       )         C.A. No. N12C-07-053 JRJ
           v.                          )
                                       )
LAUREN A. SANDERS                      )
                                       )
                  Defendant.           )


                                  OPINION

                       Date Submitted: February 13, 2015
                         Date Decided: May 14, 2015

Upon Plaintiffs’ Motion for New Trial or, in the Alternative, Additur: DENIED in
                         part, and GRANTED in part.


Heather A. Long, Esquire, Kimmel Carter, Roman, Peltz & O’Neill, P.A., 56 W.
Main St., 4th Floor, Newark, Delaware 19702, Attorney for Plaintiffs.

Patrick G. Rock, Esquire, Heckler & Frabizzio, 800 Delaware Avenue, Suite 200,
Wilmington, Delaware 19899, Attorney for Defendant.



Jurden, P.J.
                                   I. INTRODUCTION

       Plaintiffs Mary Harvey and Janice Thompson sued Defendant Lauren

Sanders for personal injuries allegedly sustained in an automobile accident caused

by Defendant. A two-day jury trial was held in October 2014. Defendant admitted

that she was negligent in causing the accident, and at trial the only issues left for

the jury to decide were what injuries were proximately caused by Defendant’s

negligence and the amount of damages, if any, to which Plaintiffs were entitled.

       The jury heard testimony from the Plaintiffs and four medical experts. Dr.

Madgy Boulos testified for Harvey and Dr. Kevin Hanley testified for the defense

on Harvey’s claims. Dr. Peter Bandera testified for Thompson and Dr. Andrew

Gelman testified for the defense on Thompson’s claims.

        At the close of evidence, the Court granted Harvey’s motion for judgment

as a matter of law because it was undisputed that Harvey suffered a lumbar and

cervical strain as a result of the car accident. 1 The Court denied Thompson’s

motion for judgment as a matter of law. On October 28, 2014, the jury entered a

zero dollar verdict as to both Plaintiffs.

       Plaintiffs filed a timely Motion for New Trial, or in the Alternative, Additur

pursuant to Superior Court Civil Rule 59 on November 10, 2014,2 arguing that no

reasonable jury could have returned a verdict of zero dollars based on the
1
 The Motion was styled as, “Plaintiffs’ Motion for Directed Verdict.” Trans. ID. 56227321.
2
 Plaintiffs’ Motion for New Trial or, in the Alternative, Additur (“Pls.’ Mot. New Trial”) (Trans.
ID. 53619402).
                                                2
uncontradicted medical evidence that they sustained some physical injury in the

accident.3     In response, Defendant argues that because both Harvey’s and

Thompson’s expert medical opinions were contradicted and based substantially on

the Plaintiffs’ subjective complaints, the jury could (and did) properly disregard

the Plaintiffs’ expert medical opinions. 4

                                II. STANDARD OF REVIEW

       Superior Court Civil Rule 59(a) provides that a new trial may be granted for

“any of the reasons for which new trials have heretofore been granted in the

Superior Court.”5 Historically, this Court has exercised its “power to grant a new

trial with caution and extreme deference to the findings of a jury.” 6 Consequently,

the Court “will not set aside a jury’s verdict unless the evidence preponderates so

heavily against the jury verdict that a reasonable juror could not have reached the

result.”3

       “In a personal injury suit, if a plaintiff conclusively proves an injury worthy

of compensation resulting from the defendant’s tortious conduct, the plaintiff is

entitled to at least some amount of damages.” 7 In determining whether an injury

resulted from the defendant’s conduct, “a jury may reject an expert’s medical
3
  Id. ¶¶ 12, 20.
4
   Defendant Lauren A. Sanders’ Response to Plaintiffs’ Motion for a New Trial or in the
Alternative Additur (Def.’s Resp.”) (Trans. ID. 56390877).
5
  Super. Ct. Civ. R. 59(a); Amalfitano v. Baker, 794 A.2d 575, 577 (Del. 2001) (citing Storey v.
Camper, 401 A.2d 458, 461 (Del. 1979)).
6
  Amalfitano, 794 A.2d at 577 (citing Lacey v. Beck, 161 A.2d 579 (Del. Super. 1960)).
7
   Walker v. Campanelli, 2004 WL 2419104, at *2 (Del. 2004) (TABLE) (internal quotations
omitted).
                                               3
opinion when the opinion is substantially based on the subjective complaints of the

patient.” 8 Additionally, “when medical experts differ on objective findings, the

jury is free to believe whichever expert they find more credible.” 9 However, where

uncontested medical testimony links an injury to its proximate cause and is

confirmed by objective medical tests supporting a plaintiff’s subjective complaints

about her injuries, a jury award of zero damages is against the weight of the

evidence.10

                                    III. DISCUSSION

A. Plaintiff Janice Thompson

       Thompson argues that she presented uncontradicted objective medical

findings of injury proximately caused by the car accident, evidenced by a positive

electromyogram (“EMG”) test, muscle spasm in the neck and back, and a positive

straight leg test. 11 Further, Thompson points out that Defendant’s own medical

expert testified that Thompson sustained a “strain or sprain overlapping the lower

neck and back.” 12

       “It is settled law that, when an expert’s opinion is based on a patient’s

subjective complaints, and the jury does not find the patient credible, the jury may

8
  Id. (citing Kossol v. Duffy, 765 A.2d 952 (Del. 2000)).
9
  Id.
10
   Amalfitano, 794 A.2d at 577; Walker, 2004 WL 2419104, at *2.
11
   Pls.’ Mot. New Trial ¶ 9. An EMG is a nerve test used to diagnose radiculopathy. Peter B.
Bandera, M.D., Deposition at 12–13 (“Dr. Bandera Dep.”) (Oct. 14, 2014). Radiculopathy is
medical term for nerve inflammation from the root of the neck or the root of the back. Id. at 13.
12
   Andrew Gelman, D.O., Deposition at 24–25 (“Dr. Gelman Dep.”) (May 9, 2014).
                                               4
reject the expert’s opinion.”13 Defendant’s expert, Dr. Gelman, testified that he

formed his opinion that Thompson suffered a strain or a sprain based on

Thompson’s subjective complaints, not objective findings. 14

       Thompson’s case is analogous to Walker v. Campanelli.                       In Walker v.

Campanelli, the plaintiff’s expert opined that as a result of an automobile accident,

the plaintiff sustained multiple injuries evidenced by an abnormal EMG test that

correlated with an abnormal MRI. 15 The defense expert refuted the plaintiff’s

expert testimony, stating that the positive objective finding on the MRI was not

“clinically relevant” because the positive finding did not necessarily result from the

car accident, but, rather, more likely resulted from normal wear-and-tear.16 The

Delaware Supreme Court held in Walker that, when a jury is presented with an

expert medical opinion that is based substantially on the patient’s subjective

complaints and is confirmed by objective evidence, but “the significance of the
13
   Kossol v. Duffy, 2000 WL 1780799, *1 (Del. 2000) (TABLE); Amalfitano, 794 A.2d at 578.
14
   Dr. Gelman Dep. at 24–25. Thompson’s case is analogous to Kossol v. Duffy. In Kossol, the
plaintiff argued that the jury was not free to disregard the medical testimony because all of the
medical experts agreed that he was injured in the accident. 2000 WL 1780799, *1 (Del. 2000)
(TABLE). The plaintiff in Kossol relied on Maier v. Santucci, where the Delaware Supreme
Court held that, “once the existence of an injury has been established as causally related to the
accident, a jury is required to return a verdict of at least minimal damages.” Id. (quoting Maier v.
Santucci, 697 A.2d 747, 749 (Del. 1997)). The Supreme Court rejected the plaintiff’s argument,
holding that “[i]t is settled law that, when an expert’s opinion is based on a patient’s subjective
complaints, and the jury does not find the patient credible, the jury may reject the expert’s
opinion.” Id. The Supreme Court distinguished Maier, explaining that in Maier, “the medical
experts for both sides agreed that Maier had suffered an injury as a result of the accident. Here,
Dr. Townsend, the defense expert, formed a medical opinion based on Kossol’s subjective
complaints. Dr. Townsend testified that, ‘based on [Kossol’s] complaints at the time of the first
accident, he sustained cervical and lumbosacral strain . . . .’” Id.
15
   Walker, 2004 WL 2419104, at *3.
16
   Id.
                                                 5
objective evidence is hotly contested,” the jury may disregard that expert testimony

because the jury could have reasonably concluded that the expert based that

conclusion on the plaintiff’s subjective complaints. 17 In Thompson’s case, as

explained below, the jury heard conflicting expert medical testimony regarding the

significance of the objective evidence and the proximate cause of Thompson’s

injuries.   Under those circumstances, the jury was free to believe the expert

testimony it found more credible and disregard medical opinions based on

Thompson’s subjective complaints. 18

       Following the car accident on July 10, 2010, Thompson’s initial care was at

Limestone Medical Aid Unit.19             Thompson reported that she had neck pain

radiating down her left arm and low back pain. 20           Limestone Medical Aid

diagnosed Thompson with a cervical/thoracic strain and prescribed Naprosyn an

anti-inflammatory analgesic and Flexeril for muscle relaxation purposes.21

Thompson was instructed to follow up with her primary care physician in one

week. 22

       After her visit to Limestone Medical Aid, Thompson went on vacation.

When Thompson returned from vacation she made an appointment with her dentist


17
   Id. at *4 (internal quotations omitted).
18
   Id. at *2.
19
   Dr. Bandera Dep. at 10; Dr. Gelman Dep. at 14.
20
   Dr. Bandera Dep. at 10.
21
   Dr. Gelman Dep. at 15.
22
   Dr. Bandera Dep. at 10; Dr. Gelman Dep. at 15.
                                               6
on July 27, 2010, because she thought she cracked a tooth during the car accident.

Two days later, on July 29, 2010, Thompson visited her primary care physician,

Dr. Paula Barry. 23 During this visit, Dr. Barry found a muscle spasm in

Thompson’s neck and a positive straight leg test indicating nerve irritation in the

lower back.24

       On August 26, 2010, Thompson underwent an MRI and EMG test on her

neck and back. 25 Dr. Bandera testified that the EMG showed acute inflammation

in the neck and the low back.26 Thompson was then referred to Dr. Sugarman, a

neurosurgeon.27 On September 1, 2010, Dr. Sugarman examined Thompson.28

Dr. Gelman testified that Dr. Sugarman did not identify any objective findings of

injury but noted that Thompson’s subjective complaints were consistent with a

strain or sprain.29

       In December 2010, Thompson went to see Dr. Witherell, a board certified

anesthesiologist. 30 Thompson told Dr. Witherell that she had back pain before the

car accident in the “mild range of three to four over ten,” and following the

accident the back pain was an “eight to nine level out of ten.” 31 Dr. Witherell

23
   Dr. Bandera Dep. at 10–14.
24
   Id. at 11–12.
25
   Id. at 14–19.
26
   Id.
27
   Dr. Bandera Dep. at 19–20; Dr. Gelman Dep. at 16.
28
   Dr. Gelman Dep. at 24–25.
29
   Id. at 23–25.
30
   Dr. Bandera Dep. at 20.
31
   Id. at 21.
                                              7
administered injections in Thompson’s low back to reduce pain and reduce

inflammation around the nerves. 32

       In January 2012, more than a year after the car accident, Dr. Bandera

performed a physical examination on Thompson. 33 At that time, Thompson was

complaining of neck pain with radiation into the left shoulder and low back pain. 34

Dr. Bandera noted a spasm in her neck and back and a positive straight leg test,

indicative of nerve inflammation.35     Dr. Bandera testified that the results of

Thompson’s examination were consistent with the 2010 EMG findings of

inflammation in the neck and back. 36 Dr. Gelman, however, testified that the EMG

findings were inconsistent and not reliable because five days after the EMG test,

when Dr. Sugarman examined Thompson, he did not identify numbness or tingling

in the area where the EMG suggested there should have been sensory or motor

abnormalities.37     Thus, according to Dr. Gelman, Dr. Sugarman’s findings

contradicted the “objective” EMG findings.         Moreover, when Dr. Gelman

examined Thompson in January 2014, he conducted several leg maneuver tests

with negative results.38



32
   Id. at 21–22.
33
   Id. at 26.
34
   Id. at 26.
35
   Id. at 27–28.
36
   Id. at 28.
37
   Dr. Gelman Dep. at 46–48.
38
   Id. at 21–22.
                                         8
       Thompson argues that muscle spasms are objective medical findings

supporting her subjective complaints. Defendant argues that the significance of the

muscle spasms was undermined by the fact that Thompson waited until three

weeks after the car accident to visit her doctor.39 Dr. Gelman testified that because

spasms can be caused by many different factors, Thompson’s spasms could have

been caused by her weight or poor conditioning.40 Further, both Dr. Bandera and

Dr. Gelman testified that a person can get a muscle spasm from simply sitting in a

chair, such as a dentist chair, or staying in one position for too long.41

       Defendant also argues that the significance of the positive straight leg test

was refuted. Dr. Gelman testified that the straight leg test was based on

Thompson’s subjective complaints, and both Dr. Bandera and Dr. Gelman testified

that Thompson had significant pre-existing low back problems. 42 Thompson was

treated for low back pain on and off for two years prior to the accident, and had

several MRIs and X-rays taken during that time. 43 One MRI was taken in May

2010, two months before the accident.44 Dr. Gelman testified that the MRIs and X-

rays dating back to 2008 indicated that Thompson suffered from chronic back




39
   Def.’s Resp. ¶ 4; Dr. Bandera Dep. at 54.
40
   Dr. Gelman Dep. at 43–44.
41
   Dr. Gelman Dep. at 52–53; Dr. Bandera Dep. at 52–53.
42
   Dr. Gelman Dep. at 40–42; Dr. Bandera Dep. at 55–60.
43
   Dr. Gelman Dep. at 11–13; Dr. Bandera Dep. at 55–60.
44
   Dr. Bandera Dep. at 58.
                                             9
problems since at least 2008. 45 According to Thompson, after the car accident the

intensity and location of her back pain changed. However, Dr. Gelman testified

that the MRI taken after the car accident showed degenerative changes likely

related to wear and tear and genetics, and did not show anything actively or

immediately changing as a result of the accident. 46 Dr. Gelman also testified that

Thompson had knee surgery and that it is not uncommon for patients with knee

complaints to also develop back pain.47

       In addition to conflicting testimony regarding the objective medical

evidence, Thompson’s credibility was undermined during cross-examination. For

example, Thompson testified that she had pain in her back prior to the car accident

but not in her low back. But, then Thompson admitted she had several X-rays

taken of her low back prior to the accident because she was suffering from low

back pain. And, although Thompson was treated for low back pain for two years

prior to the accident, and had several MRIs and X-rays taken during that time,

Thompson told Dr. Sugarman that she did not have any issues with her low back

and had never been treated in the past for any back problems.

       Thompson’s objective evidence of injury was heavily contested and

Thompson’s credibility was called into question. Consistent with Delaware law, in

determining whether Thompson’s injuries proximately resulted from Defendant’s
45
   Dr. Gelman Dep. at 25–27.
46
   Id. at 25–28.
47
   Id. at 36.
                                          10
negligence, “the jury [was] free to believe whichever expert they [found] to be

more credible”48 and disregard any medical opinion based on Thompson’s

subjective complaints. 49

B. Plaintiff Mary Harvey

       At trial, the Court granted partial judgment as a matter of law in Harvey’s

case because it was undisputed that Harvey suffered a lumbar and cervical strain as

a result of the car accident. 50 The Court instructed the jury that what remained in

dispute was the degree, severity, and duration of that injury and whether it resulted

in any permanent impairment. The Court also instructed the jury that Harvey was

only entitled to recover damages proximately caused by Defendant’s negligence.

       In addition to the lumbar and cervical strain, Harvey claimed she suffered

injuries to her arms and wrists. Dr. Boulos testified that he examined Harvey

about a week after the accident on July 19, 2010. 51 During that exam, in addition

to neck and back pain, Harvey complained of muscle spasms and tingling sensation

in her arms. 52 Dr. Boulos opined that Harvey suffered a flexion/extension injury



48
   Walker, 2004 WL 2419104, at *2.
49
   Id.
50
   Maier v. Santucci, 697 A.2d 747, 749 (Del. 1997) (holding that the jury was required to return
a verdict of at least minimal damages because the medical experts for both sides agreed that the
plaintiff had suffered an injury as a result of the accident). Both Harvey’s medical expert and the
Defendant’s medical expert agreed that Harvey sustained a soft tissue injury to her back and
neck. Kevin F. Hanley, M.D. Deposition at 24–25 (“Dr. Hanley Dep.”) (May 1, 2014); Magdy I.
Boulos, M.D., Deposition at 24 (“Dr. Boulos Dep.”) (Feb. 25, 2014).
51
   Dr. Boulos Dep. at 20.
52
   Id. at 20, 22.
                                                11
that caused her neck and back pain. 53 Dr. Boulos also opined that the 2010 car

accident aggravated Harvey’s pre-existing carpal tunnel syndrome. 54

       In contrast, Dr. Hanley testified that Harvey’s carpal tunnel syndrome was

more likely caused by her work career and not the car accident. 55 Harvey’s trial

testimony buttressed Defendant’s expert’s medical opinion that the carpal tunnel

syndrome was more likely caused by her work career and not the car accident. 56

       Harvey’s credibility was also called into question. Both Dr. Boulos and Dr.

Hanley testified that if a person uses their hands repetitively or too hard, it can lead

to carpal tunnel syndrome. 57 Defendant pointed out at trial that Harvey denied

working too hard with her hands in her deposition, but at trial testified that she

used her hands hard and repetitively for her entire work career.

       Because the jury heard conflicting testimony from Harvey’s expert,

Defendant’s expert, and Harvey regarding the proximate cause of Harvey’s arm

and wrist injuries, the jury was free to believe whichever expert they found more

credible, and the jury could freely disregard any medical opinion based on

Harvey’s subjective complaints. 58


53
   Id. at 24.
54
   Id. at 48–50, 52–54, 68–67. In 2006, Dr. Boulos diagnosed Harvey with mild to moderate
carpal tunnel syndrome. Id. at 16.
55
   Dr. Hanley Dep. at 25–26, 56–60.
56
   Harvey testified that she both used her hands hard for her entire work career and used her
hands repetitively.
57
   Dr. Boulos Dep. at 63–69; Dr. Hanley Dep. at 26–30.
58
   Walker, 2004 WL 2419104, at *2.
                                             12
       In light of the undisputed fact that Harvey suffered a lumbar and cervical

strain as a result of the car accident, the jury’s award of zero damages is

“inadequate and unacceptable as a matter of law.” 59 Because the Court finds that a

new trial on the issue of damages for this injury would burden the parties with

additional costs and would further delay Harvey’s compensation, the Court will

modify the verdict by ordering an additur. 60

       “In determining a reasonable additur amount, the defendant must be given

every reasonable factual inference and the Court must determine what the record

justifies as an absolute minimum.” 61 In Reid v. Hindt, the Delaware Supreme

Court stated, “[a]lthough it is not mandatory, when the court is ordering additur or

remittitur, we think it would be better practice to afford the parties some limited

opportunity to present their views on the amount to be ordered.” 62 Consequently,

the Court will provide Defendant and Harvey the opportunity to be heard in writing

on the appropriate amount of additur, based on the evidence presented to the jury,

before the Court determines a reasonable additur amount.




59
   Maier v. Santucci, 697 A.2d 747, 749 (Del. 1997).
60
   Littleton v. Ironside, 2010 WL 8250830, at *2 (Del. Super. 2010); Rudnick v. Jacobs, 197 A.
381, 384 (1938) (“We can see no reason why parties should be put to the expense and annoyance
of a new trial when the only purpose of such trial would be to have a jury make a calculation
which a former one should have made and which the court is equally competent to make.”).
61
   Reid v. Hindt, 976 A.2d 125, 131 (Del. 2009).
62
   Id. at 132.
                                             13
                                         IV. CONCLUSION

       For the foregoing reasons, Plaintiffs’ Motion for New Trial or, in the

Alternative, Additur is DENIED in part, and GRANTED in part. Plaintiff

Janice Thompson’s motion for new trial or additur is denied. A new trial on the

issue of damages for Plaintiff Mary Harvey’s lumbar and cervical strain will be

granted only if the defendant fails to accept the additur. 63

       IT IS SO ORDERED.


                                                      Jan R. Jurden, President Judge




63
  Id. at 131 (“The trial court here correctly offered the party adversely affected . . . the choice of
accepting additur or a new trial.”).
                                                 14
