               IN THE SUPREME COURT OF THE STATE OF DELAWARE


GEORGE SCOTT,                                   §
                                                §      No. 87, 2019
          Defendant Below,                      §
          Appellant,                            §
                                                §      Court Below: Superior Court
          v.                                    §      of the State of Delaware
                                                §
FRANCIENNE AMISIAL and                          §
GERARD DONAT,                                   §
                                                §      C.A. No. K15C-12-027
          Plaintiffs Below,                     §
          Appellees.                            §

                                Submitted: September 18, 2019
                                Decided:   September 26, 2019

Before VALIHURA, VAUGHN, and SEITZ, Justices.

                                              ORDER

          This 26th day of September, 2019, having considered the briefs and the record

below, it appears to the Court that:

          (1)    George Scott backed his car into Francienne Amisial’s car. Amisial

and her husband, Gerard Donat,1 sued Scott for negligence and loss of consortium.

After trial, the jury found that Scott negligently caused the crash but awarded no

damages. The Superior Court then granted a new trial on damages only. In the

second trial the jury awarded $40,000 to Amisial and $10,000 to Donat. Scott has



1
    For convenience, we refer to both plaintiffs as Amisial.
appealed from the second jury verdict, claiming that the Superior Court should not

have limited the second trial to damages only, and also made several evidentiary

errors during trial. We find, however, that the Superior Court did not abuse its

discretion and affirm its judgment.

         (2)    On March 25, 2014, Scott backed his car into Amisial’s car. Amisial’s

door jammed and Scott used a screwdriver to pry it open.2 Neither party went to the

hospital. Several weeks later, Amisial sought medical treatment and physical

therapy. In October, 2014, she saw Dr. Swaminathan for several months. Amisial

sued Scott for negligence, and her husband, Donat, claimed loss of consortium. The

case went to trial in May 2018. The jury found that Scott negligently caused the

crash, but awarded no damages.

         (3)    The Superior Court granted a motion for a new trial limited to damages

only because the jury’s decision to award no damages shocked the court’s

conscience. The pretrial order for the second trial listed Dr. Swaminathan as a

medical expert witness for Amisial and Dr. Piccioni as a medical expert witness for

Scott. The parties agreed that the experts would testify at trial through their video

depositions. In the pretrial order Amisial did not reserve the right to call any of

Scott’s witnesses at trial.




2
    App. to Opening Br. at A-126.

                                            2
       (4)     In his expert report, Dr. Swaminathan stated that Amisial had to be “cut

out of her own car.”3 In his video deposition, Dr. Swaminathan testified that he

probably learned this fact from Amisial, and relied on it when assessing her injuries.4

At trial, Scott sought to introduce post-crash photos of Amisial’s car to rebut Dr.

Swaminathan’s report and video trial testimony that Amisial was cut out of her car.

At trial, Amisial admitted that the statement in Dr. Swaminathan’s report was a

mistake.5 The Superior Court excluded the photos because of the prejudicial risk

that the jury might use the photos to assess Amisial’s injuries from the crash.

       (5)     On the second day of trial, Scott decided not to call his expert witness,

Dr. Piccioni. Instead, he rested his case immediately after Amisial rested her case.

Amisial responded by moving to re-open Amisial’s case to introduce into evidence

Dr. Piccioni’s video deposition. Over Scott’s objection, the Superior Court granted

Amisial’s request, reasoning that the experts were “front and center” in the case, the

parties had referred to Dr. Piccioni’s testimony in opening statements, and Dr.

Piccioni would testify through his deposition and not as a live witness. The Superior

Court instructed the jury as a matter of law that Scott proximately caused injury to

Amisial. The jury returned a verdict of $40,000 to Amisial and $10,000 to Donat.




3
  Id. at A-278.
4
  Id. at A-278-79.
5
  Id. at A-127.

                                            3
       (6)     On appeal, Scott argues that the Superior Court erred when it (1)

granted a new trial on damages only, (2) excluded post-crash photos of Amisial’s

car, (3) allowed Amisial to re-open her case and introduce Dr. Piccioni’s video

deposition, and (4) took the proximate cause finding away from the jury. This Court

reviews evidentiary rulings for an abuse of discretion.6 “An abuse of discretion

occurs when a court has . . . exceeded the bounds of reason in view of the

circumstances, [or] . . . so ignored recognized rules of law or practice . . . to produce

injustice.”7 If we find an abuse of discretion, we “must then determine whether the

mistakes constituted significant prejudice so as to have denied the appellant a fair

trial.”8 This Court reviews the grant or denial of a new trial for abuse of discretion.9

“A decision to set aside a jury verdict warrants appellate deference due to the trial

judge’s ‘presence at trial and his [or her] duty to see that there is no miscarriage of

justice.’”10

       (7)     Scott argues first that the Superior Court should have retried liability

and damages because they were inseparable. Superior Court Civil Rule 59(a)

provides that “[a] new trial may be granted . . . on all or part of the issues in an action



6
  Parker v. State, 85 A.3d 682, 684 (Del. 2014).
7
  Id. (citations omitted).
8
   Green v. Alfred A.I. DuPont Inst. Of Nemours Found., 759 A.2d 1060, 1063 (Del. 2000)
(quotations omitted) (citing Eustice v. Rupert, 460 A.2d 507, 510 (Del. 1983)).
9
  Chilson v. Allstate Ins. Co., 979 A.2d 1078, 1083 (Del. 2009).
10
   Id. (quoting Walker v. Shoprite Supermarket, Inc., 864 A.2d 929 (Del. 2004) (TABLE) (citing
Storey v. Camper, 401 A.2d 458,465 (Del. 1979))).

                                              4
in which there has been a trial for any of the reasons for which new trials have

heretofore been granted in the Superior Court.” New trials limited to fewer than all

the issues raised are permitted if: (1) the issue to be retried is clearly severable from

the other issues, and (2) no injustice will result from limiting the issue on retrial.11

A full retrial is generally required “only where the issues of liability and damages

are interwoven.”12 Damages may be severed from liability in a new trial if it can be

“reasonably said that the liability issue has been determined by the jury.”13

       (8)    Scott argues that the jury’s damages decision depended on the liability

decision. According to Scott, the facts pertaining to liability had such a close

connection to damages that the jury could not decide damages outside the context of

liability.   We find, however, there was no dependency between liability and

damages. The first jury found that Scott “was negligent in a way which proximately

caused the accident.”14 The jury also answered zero to the question “[w]hat amount

of damages do you find plaintiffs suffered and will suffer as a proximate result of

the accident.”15 Simply because the defendant negligently caused the crash does not

mean that he injured the plaintiff. The Superior Court properly relied on the medical




11
   Chilson v. Allstate Ins. Co., 979 A.2d 1078, 1084 (Del. 2009).
12
   Id. (citing Furek v. Univ. of Del., 594 A.2d 506, 524 (Del. 1991)).
13
   Id. (quoting Larrimore v. Homeopathic Hosp. Ass’n of Del., 176 A.2d 362, 371 (Del. Super. Ct.
1961)).
14
   Opening Br. at 30 (jury verdict form).
15
   Id.

                                               5
expert testimony and objective signs of injury for the need to retry damages16—

neither of which related to the liability determination, but rather to the extent of

injury as a result of the crash. Further, Scott does not argue with particularity that

the court excluded evidence relevant to damages because liability was not at issue.

Finally, Scott does not argue that the severance resulted in injustice and our review

of the record leads us to conclude that no injustice occurred. Thus, the Superior

Court did not abuse its discretion when it granted a second trial on damages only.

       (9)    Scott argues next that the Superior Court abused its discretion when, in

the second trial, it excluded photos of Amisial’s car taken after the crash. Scott

claims the photos were needed to rebut one of the factual bases for Dr.

Swaminathan’s expert opinion. In his video deposition, Dr. Swaminathan testified

that he relied on the fact that Amisial “had to be cut out of her car” at the collision

scene.17 He also “confirmed that he either received this history from the patient or

somewhere else in the file.”18 The Superior Court admitted the photos in the first

trial with a limiting instruction.

       (10) During the second trial, the Superior Court reevaluated the

admissibility of the photos under Davis v. Maute19 and Delaware Rule of Evidence




16
   Amisial v. Scott, 2018 WL 3409915, at *3-4 (Del. Super. July 12, 2018).
17
   App. to Opening Br. at A-278-79.
18
   Id. at A-278.
19
   770 A.2d 36 (Del. 2001).

                                               6
403, which allows the court to exclude relevant evidence if its probative value is

substantially outweighed by the danger of prejudice. 20 In Davis, we found that,

without expert testimony, a jury might unfairly correlate the degree of damage in

post-crash car photos with the severity of the personal injuries. Applying Davis, the

Superior Court found that the photos of Amisial’s car were still relevant to the weight

due Dr. Swaminathan’s opinion, but the Superior Court also found that “there is a

significant risk that a jury will unfairly correlate the property damage shown in the

pictures of Ms. Amisial’s car to a lack of physical injury.”21 The court concluded

that the “danger of unfair prejudice now rises to the level that it substantially

outweighs any relevance for that limited purpose.22 While this Court23 and other

courts24 have limited the rule in Davis, and recognized that damage photos might be


20
   Amisial, 2018 WL at *4; D.R.E. 403.
21
   Amisial, 2018 WL at *4.
22
   Id.
23
   State Farm Mu. Auto. Ins. Co. v. Enrique, 3 A.3d 1099, 2010 WL 3448534, at *3 (Del. Sept. 3,
2010) (TABLE) (holding that car crash photos were admissible to prove that there was a crash and
that plaintiff’s knees struck the dashboard even though the parties agreed on those facts); Eskin v.
Carden, 842 A.2d 1222, 1226-27, 1233 (Del. 2004) (affirming the exclusion of photos of the
plaintiff’s car because they were not supported by expert testimony and finding that Davis should
be limited to its facts); Habbart v. Liberty Mut. Fire Ins. Co., 2003 WL 367833, at *7 (Del. Super.
Feb. 20, 2003), aff’d 832 A.2d 1251, 2003 WL 22075381, *1 (Del. Sept. 5, 2003) (TABLE)
(affirming the finding that there was a valid purpose to introduce photos of a car crash to impeach
the defendant’s medical expert testimony).
24
   See Peach v. McGovern, 2019 WL 324608, at *6 (Ill. Jan. 25, 2019) (holding that the trial judge
could allow photos to determine “whether the plaintiff was telling the truth about his injuries when
there was minor damage to the parties’ vehicles,” and holding that whether a jury needed an expert
to relate the car damage to personal injury was an evidentiary issue); Accetta v. Provencal, 962
A.2d 56, 62 (R. I. 2009) (rejecting Davis and affirming that expert testimony is not required when
admitting photos of car damage to prove personal injuries because they “are relevant when
determining the force of the impact during the collision”); Corriette v. Morales, 50 V.I. 202, 208-
09 (V. I. 2008) (adopting the “majority rule that photos depicting damage to a car are relevant to

                                                 7
relevant for other purposes and thus admissible without expert testimony, we cannot

find on this record that the court caused any prejudice by ruling them inadmissible.

Scott was able to bring out on Amisial’s cross-examination that the statement in Dr.

Swaminathan’s report was a mistake.25 And Scott’s attorney was able to argue in

closing that Amisial was not cut out of the car.26 Thus, Scott did not suffer prejudice

from the Superior Court’s evidentiary ruling.

       (11) Scott also argues that the Superior Court abused its discretion when it

allowed Amisial to re-open her case to play for the jury the video deposition of

Scott’s medical expert witness, Dr. Piccioni. Scott claims that introducing Dr.

Piccioni’s testimony was improper because compelling the testimony created an

ethical dilemma for the expert, and Amisial did not reserve the right to call Dr.



the issue of personal injuries and are generally admissible without expert testimony”); Brenman v.
Demello, 921 A.2d 1110, 118-21 (N. J. 2007) (rejecting Davis because “there is a relationship
between the force of impact and the resultant injury, and the extent of that relationship remains in
the province of the factfinder;” expert testimony addressed the weight to give the photos, not their
admissibility; and “[j]uries are entitled to infer that which resides squarely in the center of everyday
knowledge: the certainty of proportion, and the resulting recognition that slight force most often
results in slight injury, and great force most often is accompanied by great injury”); Marron v.
Stromstad, 123 P.3d 992, 1009 (Alaska 2005) (rejecting Davis because evidence showing an
undamaged vehicle can be probative of the crash’s force and the likelihood it caused personal
injury); Mason v. Lynch, 878 A.2d 588, 601 (Md. 2005) (rejecting Davis because it is common
sense that there is “correlation between the nature of the vehicular impact and the severity of the
personal injuries”); see also Berndston v. Annino, 411 A.2d 36, 39 (Conn. 1979) (finding that
“evidence of speed, physical impact, and the like is admissible as relevant to the probable extent
of personal injuries”); Murray v. Mossman, 329 P.2d 1089, 1091 (Wash. 1958) (affirming the
admission of crash scene photos for the purpose of showing the force of the impact that caused
plaintiff’s whiplash injury because the photos tended to show the force and direction of the impact
that caused the injury).
25
   App. to Opening Br. at A-127.
26
   Id. at A-246.

                                                   8
Piccioni in the pretrial order. We find, however, that the court did not abuse its

discretion in allowing the jury to hear Dr. Piccioni’s video deposition. This Court

has allowed an adverse expert witness to be called in the opposing party’s case.27

Although the practice should be used sparingly, and a party must show manifest

injustice to modify a pretrial order, we find that Scott did not suffer prejudice as a

result of the court’s ruling. There was no concern about compulsion because it was

a video deposition, not live testimony, and the parties and the expert understood that

a jury would see the deposition. Further, all parties expected Scott to call Dr.

Piccioni, meaning Scott would not have changed his strategy during Amisial’s case

if he had known the court would allow Dr. Piccioni’s testimony. Thus, the court did

not abuse its discretion by allowing Amisial to call Scott’s expert in her case.

       (12) Finally, Scott argues that the Superior Court abused its discretion when

it granted Amisial’s motion for a directed verdict that Scott proximately caused

Amisial’s injuries. Under Superior Court Civil Rule 50(a):

               [i]f during a trial by jury a party has been fully heard on an issue
               and there is no legally sufficient evidentiary basis for a
               reasonable jury to find for that party on that issue, the Court may

27
   Barrow v. Abramowicz, 931 A.2d 424, 430, 432 (Del. 2007) (holding that the Superior Court
erred when it prevented the plaintiff from using the defendant’s expert testimony because “a
litigant has the right to introduce all relevant evidence, even if generated by an adverse party,
which goes to “the very heart” of a case and could affect the outcome of the trial”); Green, 759
A.2d at 1061, 1065 (holding that the Superior Court abused its discretion by preventing the plaintiff
from presenting videotaped testimony of the defendant’s expert because it was intended for use at
trial and the pretrial order acknowledged its use by either party, and prevention was prejudicial
because the plaintiff relied on an understanding that he would be permitted to use the evidence,
reserved the right in the pretrial stipulation, and lacked time to secure other expert testimony).

                                                 9
               determine the issue against the party and may grant a motion for
               judgment as a matter of law against that party with respect to a
               claim or defense that cannot under the controlling law be
               maintained or defeated without a favorable finding on that issue.

       (13) Although “we have consistently held that the issue of proximate cause

is ordinarily a question of fact for the jury to determine, the jury must still base its

opinion on the evidence before it.”28 “[U]ncontradicted medical evidence of injuries

and their proximate cause, confirmed by independent objective testing, meet the

standard of “conclusive” evidence of injury that would require a reasonable jury to

return a verdict for at least minimal damages.”29

       (14) Here, the Superior Court found that “the evidence presented in this case

includes uncontroverted medical expert testimony.”30 Both parties’ medical expert

witnesses concluded that the crash caused Amisial injury. 31 Accordingly, the

Superior Court found that a jury award of no damages would be inadequate as a

matter of law and left the extent of such injuries to the jury’s determination. Thus,

the Superior Court properly granted the motion for directed verdict with regard to

Scott’s negligence causing Amisial’s injuries from the crash.




28
   Amalfitano v. Baker, 794 A.2d 575, 577-78 (Del. 2001).
29
   Id. at 577; see Maier v. Santucci, 697 A.2d 747, 749 (Del. 1997) (“In light of uncontradicted
medical testimony that [the plaintiff] suffered an injury as a result of the accident, the jury’s award
of [no] damages is inadequate and unacceptable as a matter of law.”).
30
   App. to Opening Br. at A-214.
31
   Amisial, 2018 WL at *2.

                                                 10
     NOW, THEREFORE IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED.

                                     BY THE COURT:

                                     /s/ Collins J. Seitz, Jr.
                                            Justice




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