IN THE SUPERIOR COURT FOR THE STATE OF DELAWARE

DANIEL HENRY,
C.A. No. K15C-09-029 WLW
Plaintiff,

V.

STATE FARM MUTUAL .
AUTOMOBILE INSURANCE CO., :
a Foreign corporation, '

Defendant.

Submitted: June 20, 2017
Decided: September 25, 2017

ORDER

Upon Defendant’s Motions for a New Trial, or,
Alternatively, for Remittitur.
Dem'ea'.
Upon Plaintiff’ s Motion for Irnposition of Prejudgment
Interest, Fees and Court Costs.
Grantea' in Part.

William D. Fletcher, Jr., Esquire of Schmittinger & Rodriguez, P.A., Dover,
Delaware; attorney for the Plaintiff.

Brian T. McNelis, Esquire of Young & McNelis, Dover, Delaware; attorney for the
Defendant.

WITHAM, R.J.

Dam'el Henry v. State Farm Mutual Auto. Ins. Co.
C.A. No. K15C-09-029 WLW
September 25, 2017

Before the Court are Defendant State Farm Mutual Automobile lnsurance
Company’s (“State Farm’ s”) Motion for a New Trial, its Motion in the Altemative for
Remittitur, and Plaintiff Daniel Henry’s responses in opposition. Also before the
Court are Mr. Henry’s Motion for Imposition of Prejudgment Interest Pursuant to 6
Del. C. § 2301 and for Assessment of Expert Witness Fees, Pursuant to 10 Del. C.
§ 8906 and Court Costs, Pursuant to Superior Court Civil Rule 54, and State Farm’s
response in opposition.

State Farm’s motions for a new trial or, altematively, for remittitur, are
DENIED. Mr. Henry’s motion is GRANTED IN PART as described below.

FACTS

In brief, this is an underinsured motorist case where liability was admitted and
the sole issue for the jury was damages. As a result of a collision in December 2013,
Mr. Henry had a low back injury that began as tightness and resulted in worsening
pain. He participated in six months of physical therapy and saw some improvement,
even as his pain continued. He testified, generally, that his pain interfered with his
work, including when he needed to restrain a child as part of his work as a
paraprofessional. He testified that he has pain during his daily activities which
interfered by forcing him to minimize bending over or catching the ball while
coaching children’s baseball. He had difficulty playing basketball and flag football
because of his back pain. He testified that the pain interfered with his sleep.

During Mr. Henry’s direct examination at trial, his counsel asked him if his

vehicle was a total loss following the collision. Mr. Henry said it was, and counsel

Dam'el Henry v. State Farm Mutual Auto. Ins. Co.
C.A. No. Kl 5C-09-029 WLW
September 25, 2017

for State Farm raised an immediate objection.

At sidebar, State Farm’s counsel argued that the question was impermissible
because it was irrelevant to his injuries. The Court asked if counsel was going to
move on, and Mr. Henry’s counsel responded in the affirmative The Court directed
him to move on and sustained the objection, but did not instruct the jury to disregard
the question and answer. State Farm’s counsel did not make a further objection
regarding the exchange.

Mr. Henry also presented the video deposition testimony of Dr. Newell. Dr.
Newell’s testimony was less than an hour in length, and included the following
exchange, to which State F arm objected at trial and now challenges:

Q: Doctor, my last question dealt with your report And I was asking

about whether or not Mr. Henry would need medical treatment in the

future. And what do you indicate in your report?

A: l believe that he may require additional care in the future which . . .

may involve either additional therapy, medication, [or] office visits, and
. it may also require more aggressive treatment, which could be

perhaps injections.

Q: Okay. And that opinion was based upon reasonable medical

probability?

A: Yes.l

At closing argument, Mr. Henry’s counsel made the following argument to the
jury:

When a person presents a claim such as this, he has only one opportunity

with one jury to consider everything that this injury has done to him. In

 

1 Def.’s Mot. for a New Trial, Ex. 2, at 13-24.

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Daniel Henry v. State Farm Mutual Auto. lns. Co.
C.A. No. K15C-09-()29 WLW
September 25, 2017

other words, he can't come back in five years, he can’t come back in ten

years, he can't come back in twenty years to another jury and say, hey,

the back is really bad, I’m still getting some therapy, in fact, I've even

decided to have the needles and I need to have that considered. Can’t do

that. You are the only jury that will ever consider what he’s been

through and what he will go through for the rest of his life because of

this low back injury.2

The jury ultimately awarded Mr. Henry $175,0()0, which the Court reduced to
$lO0,000 to conform to the limits of his policy upon motion by Mr. Henry. Mr.
Henry and State Farm also filed the motions that are currently before the Court.

THE PARTIES’ CONTENTIONS

I. Motion for a New Trial

State Farm contends that a new trial is required because (l) Dr. Newell’s
testimony was not given to a reasonable degree of medical probability, as evidenced
by his use of the word “may,” (2) Mr. Henry’s counsel improperly referenced future
medical treatment during closing argument, and (3) the Court erroneously permitted
testimony about the condition of Mr. Henry’s vehicle following the collision without
issuing a limiting instruction.

Mr. Henry argues in response that Dr. Newell’s testimony was given to a
reasonable degree of medical probability despite his use of the word “may” and that

the Court did not err by failing to give an unrequested instruction. He also

distinguishes the cases cited by State Farm, pointing out that the offending evidence

 

2 Def.’s Mot. for a New Trial, Ex. 3, 27:1-12.

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Dam`el Henry v. State Farm Mutual Auto. Ins. C0.
C.A. No. K15C-09-029 WLW
September 25, 2017

here is a single question and answer.

II. Alternative Motion for Remittitur

State Farm contends that it is entitled to remittitur because the jury’s $175,000
verdict should shock the conscience of the Court and is unsupported by the evidence
on the grounds that (l) the pain and suffering complained of were “mild” and (2) the
jury verdict is five times greater than Mr. Henry’s last settlement offer.

Mr. Henry argues that remittitur is improper because the judgment is $100,000,
not $175,000; State Farm is not permitted to submit the pretrial settlement offer for
comparison; and the motion fails to consider the full scope of Mr. Henry’s injuries
and their permanent effect upon him.

III. Motionfor Prejudgment Interest, Expert Witness Fees, and Court Costs

Mr. Henry contends that he is entitled to prejudgment interest, expert witness
fees, and court costs as follows:

(a) Prejudgment interest as of May 24, 2017 (at rate of 5.75%): $19,8333

(b) Court filing fees: $363.00

(c) Prothonotary (trial fee): 3150.00

(d) Shen`ff and lnsurance Commissioner (service fee): $55.00

(e) Dr. William Newell, M.D. (medical expert witness fee): $3,000.00

(f) Discovery Video Services (video recording): $385.00

State F arm does not contest the calculation of these items with the exception

of expert witness fees, which it argues are per se unreasonable

Daniel Henry v. State Farm Mutual Auto. Ins. Co.
C.A. No. K15C-09-029 WLW
September 25, 2017

STANDARD OF REVIEW
I. Motion for a New Trial orfor Remittitur
This Court affords jury verdicts “enormous deference” and “absent
‘exceptional circumstances,’ the amount of damages awarded by a jury is presumed

”3 When considering a motion for a new trial, “[t]he Court will only set

to be correct.
aside a verdict as insufficient if it is clear that the verdict was the result of passion,
prejudice, partiality, corruption, or if it is clear that the jury disregarded the evidence
or law.”4 “As long as there is a sufficient evidentiary basis for the amount of the
award, the jury’s verdict should not be disturbed by a grant of . . . a new trial as to
damages.”5

“The jury’s verdict is presumed to be correct and sustainable unless it is so
grossly disproportionate to the injuries suffered so as to shock the Court’s conscience

”6 A verdict is only said to shock the Court’s conscience where

and sense of justice.
“the evidence preponderates so heavily against the jury verdict that a reasonable juror
could not have reached the result.”7 As a result, if “there is any margin for a

reasonable difference of opinion in the matter, the Court should yield to the verdict

 

3 Cooke v. Murphy, 99 A.3d 226 (Table), 2014 WL 3764177, at *2 (Del. July 30, 2014)
(quoting Young v. Frase, 702 A.2d 1234, 1236 (Del. 1997)).

4 Ia'. (quoting Littleton v. Ironside, No. 08C-07-018, 2010 WL 8250830, at *l (Del. Super.
Ct. Oct. 6, 2010)).

5 Id. (quoting Young, 702 A.2d at 1237).
6 Id. (quoting Maier v. Santucci, 697 A.2d 747, 749 (Del. 1997)).
7 Id. (quoting Amalfitano v. Baker, 794 A.2d 575, 577 (Del. 2001)).

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Daniel Henry v. State Farm Mutual Auto. Ins. Co.
C.A. No. K15C-09-029 WLW
September 25, 2017

of the jury.”8

II. Motionfor Prejudgment Interest, Expert Witness Fees, and Court Costs

“The fees for witnesses testifying as experts . . . in cases in the Superior Court
. . . shall be fixed by the Court in its discretion, and such fees so fixed shall be taxed
as part of the costs in each case and shall be collected and paid as other witness fees
are now collected and paid.”9 “While an award of expert testimony is usually
intended to cover the costs related to in-court trial testimony, it may also be used to
cover the costs of deposition testimony that is utilized at trial.”10

DISCUSSION

I. Motionfor a New Trial

Dr. Newell’s testimony regarding the potential for future care was given to a
reasonable degree of medical certainty. State Farm argues, correctly, that medical
experts must testify as to reasonable probabilities, not possibilities But State Farm
makes too much of Dr. Newell’s use of the word “may” in discussing future care.
True, Dr. Newell did testify that Mr. Henry “may require additional care . . . which . . .
may involve either additional therapy, medication, office visits, and . . . may also

9711

require more aggressive treatment. But Mr. Henry’ s counsel immediately clarified,

 

8 Id. (quoting Young, 702 A.2d at 1237).
9 10 Del. C. § 8906.

10 Enrique v. State Farm Mut. Auto. lns. Co. , No. 08C-07-026, 2010 WL 2636845, at *l (Del.
Super. Ct. June 30, 2010) (citing Summerhill v. lannarella, No. 07C-11-071, 2009 WL 891048, at
*l (Del. Super. Ct. Apr. l, 2009)).

11 Def`.’s Mot. for a New Trial, Ex. 2, at 17-21. But see May, Dictionary.com,
http://www.dictionary.com/browse/may (last visited June 20, 2017) (defining may as an auxiliary

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Daniel Henry v. State Farm Mutual Auto. Ins. Co.
C.A. No. K15C-09-029 WLW
September 25, 2017

asking Dr. Newell whether his opinion was based on reasonable medical probability.12

3 Therefore, it was not error to admit his

Dr. Newell responded affirmatively.1
testimony.

The Court turns next to the comments made by Mr. Henry’s counsel during
closing argument about Mr. Henry’s need for future medical care. If State Farm
wished to object or respond to those comments, it had opportunity to do so. But it did
not. “Counsel must preserve alleged errors committed by the Court, by timely and
sufficient objections and requests, if he wishes to assert such matters as grounds for
a new trial. Defendant cannot gamble on his chances for a favorable verdict and, if
disappointed, then seek to use the alleged error as grounds to obtain another trial.”14
The Court finds no plain error here, especially given the existence of some evidence
of a need for future medical care.

State Farm’s argument that a new trial must be granted under Davis v. Maute15
does not fare much better because State F arm never requested that the offending

answer be stricken and never requested a curative instruction. In addition, the

reference to the vehicle’s damage was nowhere near as egregious as the one that

 

verb “used to express possibility”). It is to be expected that a physician will answer a question such
as this in the same way as the physician would in answering a patient’s question concerning future
treatment.

12 Def.’s Mot. for a New Trial, Ex. 2., at 22-23.
13 Id. at 24.

14 McLeoa' v. Swier, No. Sl2C-07-004, 2016 WL 355123, at *4 (Del. Super. Ct. Jan. 27,
2017) (quoting State v. Halko, 193 A.2d 817, 830 (Del. Super. Ct. 1963)).

15 770 A.2d 36 (Del. 2001).

Daniel Henry v. State Farm Mutual Auto. Ins. Co.
C.A. No. K15C-09-029 WLW
September 25, 2017

occurred in Davz`s.

In Davis, counsel for the defendant referred to the accident as a
“fender/bender” during both his opening and his closing and introduced photographs
of the apparent minimal damage to the plaintiffs car.16 Here, in contrast, a single
question was asked of a witness regarding the extent of the damage of the truck, and
no photographs were shown. That is far less than Was present in Davis.

Moreover, in Davis, plaintiff’s counsel had filed a motion in limine which
defendant’s counsel violated. That violation of the pretrial motion, the Court held,
required the trial court to “strike the offending comments from the record and to
instruct the jury that there is no relationship between the magnitude of the damage to
[the] car and the extent of [the plaintiff s] personal injuries attributable to the
accident.”17 But in so holding, the Court noted that “[t]he trial court’s decision to
deny a requested remedy for an improper argument by counsel will not be disturbed
. . . absent an abuse of discretion.”18

Here, the transcript establishes that counsel for State Farm did not request any

remedy in his objection, and did not request any limiting instruction. In the absence

of a request for an instruction, the Court reviews the instruction’s omission for plain

 

16 Id. at 39-40.
17 Id. at 41 (citing DeAngelis v. Harrison, 628 A.2d 77, 80 (Del. 1993)).

18 Id. (emphasis added) (citing DeAngelis, 628 A.2d at 80; Jardel C0., Inc. v. Hughes, 523
A.2d 518, 533 (Del. 1987)).

Daniel Henry v. State Farm Mutual Auto. Ins. Co.
C.A. No. K15C-09-029 WLW
September 25, 2017

error.19 There is no such error here Counsel for Mr. Henry did not seek to
characterize the accident as minor outside of a single question asking whether the
vehicle was a total loss. Counsel did not rely on that answer at opening or during
closing, and State Farm’s objection was sustained by the Court. It was not plainly
erroneous to permit its inclusion without any instruction to the jury, and any impact
on the jury was de minimis. The motion for a new trial is denied.

II. Alternative Motion for Remittitur

The verdict, now reduced to $100,000, does not shock the conscience or sense
of justice of the Court. The testimony at trial established that Mr. Henry experiences
and will experience low back pain. His stipulated life expectancy in the Court’s
instructions to the jury is forty-two additional years. That amounts to an award for
pain and suffering equivalent to $2,3 80 per year or 8198 per month, a rational figure
given that the testimony established that Mr. Henry’s pain interferes with his work,
daily activities, and sleep.

State Farm’ s attempt to compare the verdict to the most recent settlement offer
is entirely inappropriate In Young v. Frase, upon which State Farm relies, the
Delaware Supreme Court specifically rejected an attempt by plaintiff s counsel to
urge consideration of a recent settlement offer.20 The Court “may consider only the

facts that were placed into evidence.”21 It is elementary that settlement offers may not

 

19 E.g., Kostyshyn v. State, 51 A.3d 416, 419 (Del. 2012) (citing Probst v. State, 547 A.2d
114, 119 (Del. 1988); Dougherty v. State, 21 A.3d 1, 3 (Del. 2011)).

20 702 A.2d 1234, 1237 (Del. 1997).
21 Id.

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Daniel Henry v. State Farm Mutual Auto. Ins. Co.
C.A. No. K15C-09-029 WLW
September 25, 2017

be placed into evidence “to prove . . . invalidity of the claim or its amount.”22 The
Court thus disregards the attempt to compare Mr. Henry’s most recent settlement
offer with the eventual jury verdict. The motion for remittitur is denied.

III. Motion for Prejudgment Interest, Expert Witness Fees, and Court Costs

State Farm, although not conceding the Court should reach the issue, does not
contest the pre-judgment interest and Court costs. The sole dispute regarding fees
centers on the reasonableness of the witness fee for Dr. Newell’s fifty-four-minute
video deposition.

“When determining the appropriate amount of fees to award medical experts,
the Court frequently utilizes the advice of the Medico-Legal Affairs Committee of the
Medical Society of Delaware”23 Under the Committee’s 2006 recommendation, “an
appropriate fee range for a deposition lasting up to two hours is 5131000-$2000.”24
Adjusting for inflation using the Bureau of Labor Statistics’ consumer price index
calculator, that amounts to a range from $1,224 to $2,449.25 Given that Dr. Newell’s

deposition lasted less than an hour, two thousand dollars ($2,000) is a reasonable fee,

 

22 D.R.E. 408.

23 Enrique v. State Farm Mut. Auto. Ins. C0. , No. 08C-07-026, 2010 WL 2636845, at *l (Del.
Super. Ct. June 30, 2010) (citing Bond v. Yi, No. 05C-05-185, 2006 WL 2329364, at *3 (Del. Super.
Ct. Aug. 10, 2006)).

24 Id. (citing Medico-Legal Affairs Committee, Recommended Guidelines for Medical Expert
Fees (March 2006)).

25 Id. (citing Parker v. Parker, No. 04C-10-133, 2009 WL 3338098, at *2 (Del. Super. Ct.
Sept. 2, 2009)); United States Dep’t of Labor, Bureau of Labor Statistics, CPIIn/lation Calculator,
https://www.bls.gov/data/inflation_calculator.htm (last visited June 21 , 2017) (entering $1,000 and
$2,000 and comparing March 2006 to May 2017).

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Daniel Henry v. State Farm Mataal Auto. Ins. Co.
C.A. No. K15C-09-029 WLW
September 25, 2017

and not the three thousand ($3,000) requested by Mr. Henry.

Mr. Henry’s motion is granted as set forth in his proposed order, except that
expert witness fees and court costs are reduced, in the Court’s discretion, to two
thousand, nine hundred fifty-three dollars ($2,953). An appropriate order shall issue

CONCLUSION

State Farm’s motions for a new trial or, altematively, for remittitur, are
DENIED. Mr. Henry’s motion is GRANTED IN PART, except that expert witness
fees and court costs are reduced to $2,953.

IT IS SO ORDERED.

/sf William L. Witham Jr.
Resident Judge

 

WLW/dmh

12

