IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

IRAIDA PABON and )
DAVID JWANISIK, )
)
Plaintiffs, ) C.A. No. Nl3C-l()-006 AML

)
V- )

) TRIAL BY JURY DEMANDED
GEICO CORPORATION, )
)
Defendant. )

Submitted: August 22, 2017
Decided: August 23, 2017

Upon Plaintiffs’ Motion for Judgment as a Matter of Law and Motion for a
NeW Trial: DENIED

l. This is a personal injury action in which the plaintiffs, a long-time
couple, were involved in two car accidents. The drivers of the other vehicles were
uninsured or underinsured After a two-day trial, the jury returned a verdict in favor
of the defendant, finding neither accident was the proximate cause of either
plaintiff’ s injuries. The plaintiffs now have moved for judgment as a matter of lawl

and for a new trial. For the reasons that follow, both motions are denied.

 

l Plaintiffs styled their motion as a “Renewed Motion for a Directed Verdict,” but that motion
substantively is one for judgment as a matter of law. See Super. Ct. Civ. R. 50. To avoid confusion,
the motion is referred to as a motion for judgment as a matter of law throughout this order.

2. The plaintiffs, Iraida Pabon and David Jwanisik(the “Plaintiffs”), were
involved in two motor vehicle accidents, one on November 26, 2011 and the second
on August 26, 2012. At the time of the accidents, Ms. Pabon was insured by the
defendant, GEICO Corporation (“GEICO”). GEICO denied Ms. Pabon’s claim for
injuries allegedly sustained in the November 201 1 accident and Mr. Jwanisik’s claim
for injuries allegedly sustained in the August 2012 accident.2 Plaintiffs thereafter
brought suit against GEICO.

3. The issues at trial revolved around both causation and damages To
prove their claims, Plaintiffs relied on their own testimony as well as their doctors’
expert opinions. Ms. Pabon testified that she injured her right knee in the November
2011 accident, and Mr. Jwanisik testified that he injured his neck and back in the
August 2012 accident. The jury also heard video deposition testimony of Dr.
Mahoney, Mr. Jwanisik’s treating chiropractor, and Dr. Raisis, Ms. Pabon’s treating
physician. Dr. Raisis testified that Ms. Pabon’s knee problems causally were related
to the November 26, 2011 accident, and Dr. Mahoney testified that Mr. Jwanisik
will experience ongoing pain and require ongoing care to his neck and back as a
result of` the August 26, 2012 accident. GEICO’s defense consisted of cross-

examining Plaintiffs and their medical experts and submitting medical records into

 

2 Mr. Jwanisik’s claim for injuries sustained in the 2011 accident settled. The remaining issues at
trial were Mr. Jwanisik’s claim for injuries sustained in the 2012 accident and Ms. Pabon’s claim
for injuries sustained in the November 2011 accident.

2

evidence. In other words, GEICO did not present its own expert on the contested
issues 'of` causation or damages.

4. At the close of their case, Plaintiffs moved for a directed verdict on the
proximate cause issue, contending the evidence presented as to causation uniformly
showed that each Plaintiff` suffered some injury in the accident for which damages
were sought. The Court denied Plaintiffs’ motion, finding GEICO solicited
testimony on cross-examination that cast doubt on the experts’ credibility,
specifically that each expert did not have certain information available to him when
he rendered his opinion.3 That testimony was a sufficient evidentiary basis from
which the jury could conclude that the experts’ opinions were not reliable. As the
experts’ testimony was the only available evidence of causation, Plaintiffs failed to
meet their burden. At the close of all the evidence, Plaintiffs did not renew their
motion for a directed verdict, and the jury returned a verdict for GEICO, finding the
automobile accidents were not a proximate cause of either Plaintiff’s injuries.

5. Plaintiffs now seek judgment as a matter of law under Superior Court
Rule 50(b) and a new trial under Rule 59. Rule 50(b) states: “Whenever a motion
for a judgment as a matter of law made at the close of all the evidence is denied or

for any reason is not granted, . . . [s]uch a motion may be renewed by service and

 

3 Pabon v. GEICO, Corp., N13C-10-006 AML, at 16-19 (Del. Super. May 23, 2017)
(TRANSCRIPT) (hereinafter “Tr.”).

filing not later than 10 days after entry of judgment.”4 Plaintiffs did not so move at
the close of all the evidence,5 By failing to renew their motion for a directed verdict
at the close of all the evidence, Plaintiffs failed to comply with Rule 50(b) and are
unable to move for judgment as a matter of law at this time.6 Accordingly, Plaintiffs’
motion for judgment as a matter of law is denied,

6. Plaintiffs also have moved for a new trial under Rule 59. Plaintiffs
argue the jury was not free to disregard the experts’ medical testimony because all
the experts agreed that Ms. Pabon and Mr. Jwanisik were injured in the November
26, 2011 and August 26, 2012 accidents, respectively. Plaintiffs rely on the
Delaware Supreme Court’s holding in Maier v. Samucci 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.”7 Plaintiffs further argue that
Christz`na School District v. Reuling8 is dispositive here. lIn Reulz'ng, the Delaware

Supreme Court upheld the lower court’s direction of` a verdict on proximate cause

 

4 Super. Ct. Civ. R. 50(b) (emphasis added).

5 Plaintiffs moved for a “directed verdict” at the conclusion of their case in chief. As described
above, the Court denied that motion, See supra 11 4 and n. 3. GEICO then moved into evidence
various exhibits, including binders of Plaintiffs’ medical records. Tr. 27-28. Plaintiffs did not
renew their motion after GEICO rested its case.

6 See Wl`lliam H. Porter, lnc. v. Ea'wards, 616 A.2d 838 (Del. 1992); Samson v. Somerville, 2005
WL 1953054, at *1 (Del. Super. July 26, 2005).

7 697 A.2d 747, 749 (Del. 1997). Plaintiffs also rely on Amalfitano v. Baker, 794 A.2d 575, 577
(Del. 2001), arguing: “There, as here, ‘causation was conceded and the only issue confronting the
jury was only the extent of the Plaintiff’ s injuries.”’ Pls.’s Reply Br. 3 (citing Dunn v. Riley, 864
A.2d 905, 907 (Del. 2004)). Unlike in Amalfz`tano, GEICO did not concede causation in this case.
8 577 A.2d 752 (Del. 1990).

where the defendant presented no affirmative medical evidence contradicting the
plaintiffs evidence,

7. Although procedurally proper, the Motion for a New Trial is denied.9
A jury’s verdict is presumed correct, and the Court will not disturb the jury’s
conclusion “unless the evidence preponderates so heavily against the jury verdict
that a reasonable juror could not have reached the result.”lo Determining witnesses’
credibility is the exclusive province of the jury.ll “lt 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.”l2

8. The Court cannot find that the evidence in this case favored Plaintiffs
so heavily that the jury’s verdict was unreasonable The reason for that conclusion
is straightforward: Plaintiffs’ complaints largely were subjective and GEICO
presented ample evidence from which the jury could have doubted Plaintiffs’

credibility and their experts’ opinions. First, the jury heard evidence of other

possible causes of Plaintiffs’ injuries. Both Plaintiffs testified they were involved in

 

9 Peters v. Gelb, 314 A.2d 901, 905 (Del. 1973) (“There is no special reason why a motion for a
new trial must be preceded by a motion for a directed verdict when joined with a motion for a
judgment n.o.v. while there exists no prerequisite to an independent motion for a new trial.”).

10 Amalfitano, 794 A.2d at 577 (citing Storey v. Camper, 401 A.2d 458, 465 (Del. 1979) (internal
quotations and citations omitted)).

ll Yozmg v. Fmse, 702 A.2d 1234, 1237 (Del. 1997) (“The jury is the sole trier of fact responsible
for assessing the credibility of witnesses.”).

12 K()ssol v. DL_/[/j), 765 A.2d 952 (Del. 2000) (TABLE) (citing Breea’ing v. COntract()ris'-One-Inc.,
549 A.2d 1102, 1104 (Del. 1988)).

previous and intervening accidents resulting in injuries similar to those they
attributed to the November 26, 2011 and August 26, 2012 accidents. For example,
Ms. Pabon was involved in motor vehicle accidents in May 2010 and October 2013
and had a knee operation on October 1, 2010. Mr. Jwanisik also was in motor vehicle
accidents in 1995, 2004, and October 2011, all of which resulted in neck and back
injuries. Specifically, he suffered a spinal cord injury in the 2011 accident and
underwent surgery around January 2012. Mr. Jwanisik also testified that he
sustained a concussion and injured his neck and back in January 2017 as a result of
falling backwards when his chair collapsed.

9. Second, Ms. Pabon’s testimony often was inconsistent with her medical
records. Ms. Pabon testified that she broke her right toe in the October 2013
accident. When presented with the emergency room records from that accident
revealing that she complained of right knee pain, Ms. Pabon insisted she only injured
her right toe. Upon the presentation of a doctor’s note dated November 8, 2013,
stating Ms. Pabon reported “right knee pain after motor vehicle accident,” she
responded that she did not remember. The jury likewise heard Ms. Pabon testify
that, although such complaints were noted in her medical records, she remembered
nothing about making right knee-related complaints to her doctors on September 14,
2010, September 21, 2010, November 5, 2010, November 19, 2010, September 7,

2011, July12,2011,0r February 8, 2012.

10. Third, GEICO cast doubt on Plaintiffs’ experts’ testimony by pointing
out that the experts’ opinions were based on incomplete information Dr. Raisis
stated that his opinion that the November 26, 2011 accident caused Ms. Pabon’s
right knee injury was based on Ms. Pabon’s representation that she was not having
any significant complaints before that accident.13 Dr. Raisis testified that Ms. Pabon
reported that before the November 26, 2011 accident she was doing well and was
not having any problems with her right knee. He also testified he was unaware of
any medical history relating to Ms. Pabon’s knee other than a knee operation in
2009.14 When presented with a number of medical records, including one where Ms.
Pabon reported her concern that “everything started” after the October 1, 2010 knee
operation, Dr. Raisis testified he was not aware of the October 2010 knee operation,
only the operation in 2009.15 Dr. Mahoney similarly testified that, other than the
record relating to a cervical spine fusion, he was not familiar with Mr. Jwanisik’s
medical records indicating a history of neck and back complaints.16

11. Based on that evidence, the cases on which Plaintiffs rely are
distinguishable, and the arguments they advance are unconvincing In Maier, for

example, both parties’ medical experts agreed that Maier had suffered an injury as a

 

13 Dr. Raisis Dep. 22-23.
‘41d.ar18,21,22,23.
15 ld. 3129-30.

16 Dr. Mahoney Dep. 43.

result of the accident, while here such causation vigorously was disputed.17 ln
Reuling, counsel did not elicit any testimony from either doctor that would have
changed their opinion as to the cause of the surgery.18 During both doctors’ cross-
examination here, counsel revealed the doctors’ opinions were based on incomplete
and inconsistent information from both Plaintiffs. The jury, having heard the many
inconsistencies, apparently discredited Plaintiffs’ testimony and the opinions of their
experts.19 These inconsistencies formed a reasonable basis for the jury to reject the
doctors’ opinions, and it therefore was reasonable for the jury to conclude Mr.
Jwanisik’s injuries could not be attributed to the August 26, 2012 accident and Ms.
Pabon’s injuries could not be attributed to the November 26, 2011 accident.

Accordingly, the verdict was not against the great weight of evidence.

 

17 697 A.2d at 749; see also Kossol, 765 A.2d 952 (distinguishing Maier and holding the jury may
reject an expert’s opinion Where that opinion is based on a patient’s subjective complaints and the
jury does not find the patient credible).

18 577 A.2d 752; see also Burkett-Wooa' v. Haines, 906 A.2d 756, 764 (Del. 2006) (citing Dunn,
864 A.2d at 907 (distinguishing Rueling, Maier, and Amalfl`tano and finding the defendant, during
cross-examination, developed evidence calling into question the reliability of the expert’s opinion
as to causation)).

19 Doyle v. Jackson, 1999 WL 743567, at *2 (Del. Super. July 26, 1999) (“lt is also an accepted
legal principle and known fact that juries are empowered to, and do rej ect, medical opinions
premised on a patient/plaintiff’ s complaints where it has doubts about the plaintiff’ s credibility.”).

8

For the foregoing reasons, Plaintiffs’ Motion for Judgment as a Matter of Law

is DENIED, and Plaintiffs’ Motion for a New Trial is DENIED,

ri%;/

il M. LeGrow, Judge

IT IS SO ORDERED.

 
 

Original to Prothonotary

cc: Ben T. Castle, Esquire
Dawn L. Becker, Esquire
Nicholas E. Skiles, Esquire

