                             SUPERIOR COURT
                                      OF THE
                         STATE OF DELAWARE
Jeffrey J Clark                                                 Kent County Courthouse
Judge                                                               38 The Green
                                                                  Dover, DE 19901
                                                                     302-735-2111

                                    July 12, 2018


Edward C. Gill, Esq.                                Nancy Chrissinger Cobb, Esq.
Law Office of Edward C. Gill & Associates           Ronald W. Hartnett, Jr., Esq.
16 North Bedford Street                             Three Mill Road
P. O. Box 824                                       Suite 301
Georgetown, DE 19947                                Wilmington, DE 19806


       RE: Francienne Amisial & Gerard Donat v. George Scott
           K15C-12-027 JJC

                             Submitted: June 19, 2018
                              Decided: July 12, 2018


Counsel:
       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




                                             2
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


1
  Young v. Frase, 702 A.2d 1234, 1236 (Del. 1997).
2
  McCloskey v. McKelvey, 174 A.2d 691, 693 (Del. 1961).
3
  Amalfitano v. Baker, 794 A.2d 575, 577 (Del. 2001).
4
  Ct. Ex. 1 at 16-17.
5
  Ct. Ex. 8 at 45.
6
  Id. at 39.
7
  Id.
8
  See Parisi v. State Farm, 2010 WL 4139289, at *2 (Del. Super. Oct. 13, 2010).
                                               3
references to spasms, Dr. Piccioni testified that they constituted objective signs of
injury9, 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



9
  Ct. Ex. 8 at 38.
10
   C.f. Cain v. Sadler, 2014 WL 2119994, at *3 (Del. Super. May 9, 2014) (ordering a new trial as
to damages and liability where the jury obviously confused the two because there were significant
inconsistencies in reading the verdict and completing the verdict form, making the issue of liability
and damages “inexorably intertwined.”) (citations omitted).
11
   Jones v. Elliott, 551 A.2d 62, 64 (Del. 1988).
12
   See Smith v. Lawson, 2006 WL 258310, at *7-8 (Del. Super. Jan. 23, 2006) (holding that only
when liability is “inexorably intertwined” with the damages issues should a new trial as to both be
granted and also recognizing that the modern trend is for a partial retrial in these circumstances).
                                                 4
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’ Motion for Reargument

       Plaintiffs moves for reargument regarding the Court’s decision denying their
motion to exclude photographs of the vehicles’ damage.                       The standard for
reargument pursuant to Superior Court Civil Rule 59(e) requires that such a motion
be denied unless the Court overlooked controlling precedent or legal principles, or
the Court misapprehended the law or facts in such a way that would change the
outcome of the underlying decision.16 Here, Plaintiffs repeat many of the arguments
already considered by the Court. At the first trial, the Court found the photographs
admissible for two limited purposes: liability related purposes and for purposes of
evaluating the weight of Plaintiffs’ medical expert’s testimony. Given the Court’s
decision limiting the issues for retrial, the Court’s previous decision warrants


13
   See Parisi, 2010 WL 4139289, at *2 (Del. Super. Oct. 18, 2010) (holding that because a
Plaintiff’s loss of consortium claim “is inextricably intertwined” with his spouse’s physical
injuries, a new trial is appropriate on such a claim as well).
14
   Rash v. Moczulski, 153 A.3d 719, 721 (Del. 2016) (citation omitted).
15
   Id.
16
   Langshaw v. Appleby Systems, Inc. 2006 WL 3026202, at *1 (Del. Super. Oct. 20, 2016).
                                                5
reconsideration. Specifically, given the change in circumstances, the required DRE
403 balancing test requires a different result for the second trial.
       From the outset, Plaintiffs sought to bar the photographs pursuant to the rule
established by Davis v. Maute.17 In Davis, the Delaware Supreme Court noted that
vehicle photographs offered for the purpose of showing a correlation between the
amount of property damage and the degree of occupant injury is inadmissible. 18 The
Court also recognized that introduction into evidence of such photographs could
“serve some valid purpose other than supporting the minimal damage/minimal injury
inference.”19 In those cases where a permissible independent relevance exists, a DRE
403 balancing is necessary to determine whether the probative value of the
photographs for their legitimate purpose is substantially outweighed by the risk that
the jury will draw an improper inference from the photographs. 20
       At trial, the Court found the pictures that showed the areas of damage to both
vehicles to be independently relevant for liability purposes. As discussed in the
Court’s oral ruling, the pictures show the points of impact on the two vehicles. Given
the varying descriptions of the parking lot accident, this evidence provided, at a
minimum, a basis for a reasonable inference that supported Mr. Scott’s liability
defense.
       The Court also separately found the evidence relevant regarding the weight
due Dr. Swaminathan’s opinion. The doctor’s testimony (though elicited by Mr.
Scott on cross-examination) included that Ms. Amisial “had to be cut out of her car”
at the collision scene. 21    Dr. Swaminathan confirmed that he either received this



17
   770 A.2d 36 (Del. 2001).
18
   Id. at 41.
19
   Id.
20
   Id.
21
   Ct. Ex. 1 at 25.
                                           6
history from the patient or somewhere else in the file.22 Ms. Amisial denied giving
the history to Dr. Swaminathan and the doctor “guessed” that it came from her.
Regardless, she did not have to be cut out of the car. The Court therefore admitted
the photographs of Ms. Amisial’s car for this additional purpose after conducting a
DRE 403 balancing because (1) the evidence was already admissible for liability
purposes and (2) its level of unfair prejudice was lower because it corrected a factual
inaccuracy in the record.
          In the new trial, photographs of Mr. Scott’s vehicle will no longer be probative
as to any material issue. The point of impact on Mr. Scott’s vehicle has no relevance
in a damages only case and photographs of his vehicle are inadmissible in the new
trial. As to the photographs of Ms. Amisial’s vehicle, the new trial context requires
a different DRE 403 analysis. Although Ms. Amisial’s vehicle photographs will
maintain the same degree of relevance toward the weight due Dr. Swaminathan’s
opinion, the danger of unfair prejudice now rises to the level that it substantially
outweighs any relevance for that limited purpose.         Namely, there is a significant
risk that a jury will unfairly correlate the property damage shown in the pictures of
Ms. Amisial’s vehicle to a lack of physical injury. Here, the mistake in patient
history referred to by the doctor has only marginal relevance when viewed in
isolation.
          The DRE 403 balancing in this matter includes some unusual circumstances.
Namely, Dr. Swaminathan testified by video trial deposition inaccurately that the
vehicle damage was greater than it was because Mr. Scott elicited this testimony on
cross-examination from the doctor. Though elicited by Mr. Scott, the Plaintiffs
never objected nor moved to strike that testimony. Given the separate admissible
purpose as to liability, DRE 403 did not require exclusion of the photographs for the


22
     Id. at 25
                                              7
expert credibility-related purpose during the first trial. The threshold for relevance
is not high and the probative value of this mistake in Dr. Swaminathan’s report has
only marginal relevance for that purpose. With the liability related reason for
admission removed from the equation, the Court finds that the relevance of the
photographs is substantially outweighed by the risk of unfair prejudice.
      As a final matter, the Court recognizes that the testimony by Dr. Swaminathan
about Ms. Amisial being cut from her vehicle could cause the opposite unfair
inference, which in turn would unfairly prejudice Mr. Scott. This remains the case
even though Mr. Scott elicited the offending testimony because the Court recognizes
that the questioning was by no means improper.          It fairly probed the history
referenced in an expert’s report that the expert may have considered when
formulating his opinions. In recognition of this and what would be the unfairness of
admitting evidence that both parties concede is untrue, the Court will strike the
offending testimony from the trial deposition before the retrial, if Mr. Scott makes
such a request.



                                    Conclusion

      For the foregoing reasons, Plaintiffs’ motion for a new trial is GRANTED.
It therefore follows, that Defendant Scott’s motion for costs is DENIED as moot.
Plaintiffs’ motion for reargument is also GRANTED. The parties are requested to
contact the Court to receive a mutually agreeable expedited retrial date.


      IT IS SO ORDERED.

                                                           /s/ Jeffrey J Clark
                                                                  Judge


                                          8
