Garcia-Rivera v. Gottschall

      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


ELSA DENISSE GARCIA-RIVERA,                 )
                                            )
               Plaintiff,                   )
                                            )     C.A. No.: N18C-09-142 SKR
       v.                                   )
                                            )
WILLIAM K. GOTTSCHALL,                      )
                                            )
                   Defendant.               )

                        Date Submitted: November 8, 2022
                         Date Decided: December 7, 2022

                                     Opinion
             Upon Consideration of Plaintiff’s Motion for a New Trial
                                DEFERRED.
                       and Defendant’s Motion for Costs
                                   DENIED.


Benjamin Schwartz, Esquire, Schwartz & Schwartz, 1140 South State Street, Dover,
Delaware 19901.

Kenneth Doss, Esquire, Casarino, Christman, Shalk, Ransom, & Doss, 1007 North
Orange Street, Suite 1100, Wilmington, Delaware 19899.




RENNIE, J.
                                 INTRODUCTION
        The motions before the Court stem from a “zero verdict.” After a September

19, 2016 rear-end collision, Plaintiff, Elsa Denisse Garcia-Rivera, suffered injury to

her lower thoracic spine and re-aggravation of a pre-existing upper spine injury. The

matter was tried before a jury on August 23-25, 2021. At the close of Defendant

William K. Gottschall’s case in chief, Ms. Garcia-Rivera moved for judgment as a

matter of law as to liability, causation, and damages stemming from the accident.

The Court granted the motion. The August 2021 trial ultimately resulted in a hung

jury.

        The parties re-tried the case before a jury on October 31-November 1, 2022.

At retrial, the Court’s prior issuance of judgment as a matter of law controlled as the

law of the case. The only task left for the jury was to determine whether Ms. Garcia-

Rivera’s injury was: (1) a lumbar disc injury, as per the testimony of her treating

spinal surgeon, Dr. James Zaslavsky, or (2) a lower thoracic sprain/strain injury, as

Dr. Lawrence Piccioni, Mr. Gottschall’s expert, testified.

        It follows, then, that the jury was to award some amount of compensation to

Ms. Garcia-Rivera. Nevertheless, the jury returned a verdict of $0. Because of the

“zero verdict,” Ms. Garcia-Rivera seeks a new trial. Meanwhile, as the prevailing

party, Mr. Gottschall seeks costs, or, in the alternative, additur, based on Ms. Garcia-

Rivera’s having rejected an offer of judgment. For the reasons below, Ms. Garcia-

                                           2
Rivera’s Motion for a New Trial is DEFERRED. Mr. Gottschall’s Motion for Costs

is DENIED.

                            FACTUAL BACKGROUND
      What follows is an abbreviated factual summary of the case, drawing only on

those undisputed facts relevant to the motion. As noted supra, the retrial focused on

damages. Ms. Garcia-Rivera had a history of back problems, so the main contention

was whether the rear-end collision exacerbated those conditions. As to that issue,

the parties argued over the extent to which the accident attributed to Ms. Garcia-

Rivera’s post-accident medical bills. The parties stipulated that the bills totaled

$24,345.40.     Mr. Gottschall disagreed, however, that: (1) the medical bills

proximately resulted from his negligence, and (2) the medical bills were reasonably

necessary for Ms. Garcia-Rivera’s medical treatment.

      The retrial jury heard Ms. Garcia-Rivera’s treating spinal surgeon opine that

the collision precipitated her lumbar disc injury. It also heard Dr. Piccioni, Mr.

Gottschall’s medical expert, disagree with this diagnosis. Dr. Piccioni did, however,

concede that Ms. Garcia-Rivera suffered a new injury as a result of the accident:

              Well, certainly, by review of the records, [Ms. Garcia-
              Rivera] suffered a new lumbar – excuse me – a new
              thoracic sprain in areas that were not [previously injured]
              and a re-aggravation of some of the areas which she was
              already being treated for. Obviously, that’s based strictly
              on the records. Dr. Leitzke . . . was pretty fastidious in his

                                            3
                   note of September 21st to put that into it, that the new
                   injury was in T7 and T9, just below the T6 . . . .1


And Dr. Piccioni reaffirmed his position during cross examination:


                   [PLAINTIFF COUNSEL]: . . . So, sir, is it your expert
                   opinion, within a reasonable degree of medical
                   probability, that Ms. Elsa Garcia sustained a lower
                   thoracic injury as a direct result of the . . . September 19,
                   2016, motor vehicle collision, which was caused by [Mr.
                   Gottschall]?
                   [DR. PICCIONI]: Yes.
                   [PLAINTIFF COUNSEL]: Further . . . we can agree a
                   lower thoracic injury – it’s a back injury. Right? It’s a
                   portion of the spine?
                   [DR. PICCIONI]: That is correct. Yes.
                   [PLAINTIFF COUNSEL]: Further, it’s your expert
                   opinion, again with a reasonable degree of medical
                   probability, that Ms. Garcia-Rivera’s treatment from
                   September 21st of 2016, when she first saw Dr. Leitzke,
                   through December of 2016 was reasonable and necessary
                   as a result of the car accident caused by [Mr. Gottschall]?
                   [DR. PICCIONI]: Yes.2


Based on Dr. Piccioni’s concession, the Court instructed the jury to award Ms.

Garcia-Rivera an amount reflective of the reasonable and necessary medical

treatment she received as a proximate result of Mr. Gottschall’s negligence. The




1
    Piccioni Dep. 31-32.
2
    Piccioni Dep. 44-45.

                                                4
jury returned a zero verdict. Ms. Garcia-Rivera filed the motion at bar shortly

thereafter.

                                    STANDARD OF REVIEW
        It goes without citation that a jury’s verdict is given great deference.

Accordingly, a jury verdict should be set aside only where it is clear the award is so

grossly out of proportion to the injuries suffered that it shocks the court’s conscience

and sense of justice.3 When supported by sufficient evidence, a jury’s verdict will

not be disturbed by granting additur or a new trial.4 If the jury’s award is divorced

from the evidence presented, the Court may, in its discretion, correct the error.5

Under this standard of review, the Delaware Supreme Court has found zero verdicts

to be inadequate as a matter of law when uncontradicted medical testimony

establishes a causal link between an accident and injuries sustained.6

                                               ANALYSIS
        A. The Zero Verdict
        With the above in mind, the Court must adhere to the Delaware Supreme

Court’s holdings in Maier v. Santucci7 and Amalfitano v. Baker.8 In Maier, the




3
  See Young v. Frase, 

 (Del. 1997).
4
  See Lyon ex rel. Denmon v. Cline, 

 (Del. Super. March 16, 2005).
5
  See Bradshaw v. Trover, 

 (Del. Super. Oct. 27, 1999).
6
  See Maier v. Santucci, 

 (Del. 1997).
7
  

8
  

 (2001).

                                                      5
defense medical expert concluded that the “[Plaintiff] did probably sustain a

cervical sprain injury as a result of the accident.”9 Maier held:

                     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.10


In Amalfitano, the plaintiff called two medical experts who “testified that it was their

opinion, based on both Amalfitano’s subjective complaints and the results of

objective tests, the . . . accident proximately caused [plaintiff]’s injuries.”11 Those

expert opinions were unchallenged by the defense. Refusing to accept a zero

damages verdict, Amalfitano concluded:

                     Despite the general deference of our courts to the findings
                     of a jury, we held in Maier v. Santucci that 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.12


So the law is clear.

         Here, in contrast with Maier and Amalfitano, Ms. Garcia-Rivera’s injuries

were not established conclusively by objective symptoms. Even so, as presented

above, Mr. Gottschall’s own expert concluded that the accident caused a spinal

9
  See 

.
10
   See id. at 749.
11
   See id. at 576.
12
   Id. at 577.

                                                   6
injury. To the limited extent Mr. Gottschall’s expert agreed with Ms. Garcia-

Rivera’s expert, that left Mr. Gottschall’s expert’s opinion uncontradicted.

           After deliberation and presumably with the full damage instructions in mind,

the jury found for Mr. Gottschall and returned a verdict of $0. But in light of Maier

and Amalfitano, it is inescapable that after the Court granted judgment as a matter of

law on liability, causation, and damages, Ms. Garcia-Rivera was entitled to some

damages. And the jury should have awarded accordingly. The Court will GRANT

a new trial if additur is not accepted.

           B. Additur
           Additur, and its older, more well-developed counterpart, remittitur, are

recognized in Delaware. Former-Judge Quillen remains this Court’s most respected

authority on additur. In Hall v. Dorsey,13 he explained:

                   The practice of additur is nothing more than making the
                   denial of a plaintiff’s motion for a new trial on the issue of
                   damages contingent upon the defendant’s willingness to
                   accept a higher award. Additur in Delaware is appropriate
                   when the award “is so grossly out of proportion to the
                   injuries suffered as to shock the Court’s conscience and
                   sense of justice.” A zero verdict in the face of
                   compensable damages is perhaps more disproportionately
                   striking than a small award because it is even more facially
                   inadequate as a matter of law. As a result, an additur of a
                   zero verdict, as a matter of reason, is certainly appropriate



13
     

 (Del. Super. Nov. 5, 1995).

                                                  7
                 in the face of conclusive damages (damages as a matter of
                 law).14


As Judge Quillen instructed in Carney v. Preston,15 the premise for additur is that

there is a lawful range for every verdict. Additur is a tool employed by the Court to

bring an unjustifiably low verdict up to the bottom of that range. By doing so,

“tribute is still paid to the very jury whose verdict is being set aside.”16

        The jury’s view of damages in this case was clear. Undoubtedly, the jury saw

Ms. Garcia-Rivera’s damages as unproven or not worth compensation. Taking its

view of the case into consideration, it is almost certain the jury would have returned

a verdict of next to nothing if the Court had instructed it to award damages. The

verdict can only be read to mean that the jury intended to award Ms. Garcia-Rivera

the least that the law would allow, and, literally, not a dollar more. Additur is clearly

the mechanism by which the Court can reconcile the verdict with the law on damages

and simultaneously respect the jury’s well-considered view of the evidence.

        Moreover, the Court has little reason to question the sincerity of Ms. Garcia-

Rivera’s injuries. The jury most likely ignored her health woes because it did not

agree that the accident with Mr. Gottschall caused them. That being said, as with

the plaintiff in Hall, Ms. Garcia-Rivera undisputedly suffered from post-accident


14
   See id. at *3.
15
   

 (Del. Super. 1996).
16
   

.

                                             8
pain. Considering that the Hall plaintiff missed two months of work and was

required to wear a neck brace, Judge Quillen concluded that given the “modest

injuries, . . . an award of 2,500 seems appropriate.”17 Here, Ms. Garcia-Rivera

suffered from spinal pain for at least three months as a result of the accident. The

Court sees the lowest sustainable damage award as $5,000, without costs.

           In closing, the Court understands Ms. Garcia-Rivera presented evidence that,

if believed, would have supported a much larger award. Unfortunately for her, the

jury indisputably saw the evidence in a different light. The Court is confident that

allowing Ms. Garcia-Rivera to testify in more florid terms, re-instructing the jury,

and telling the jury it had to award damages would not have overcome the fact that

Ms. Garcia-Rivera had a voluminous amount of health complaints apart from the

accident. More importantly, the Court has no reason to believe that another jury,

hearing the same evidence presented here, would return a verdict remotely

approaching the value that Ms. Garcia-Rivera places on her case.

                                        CONCLUSION
           For the foregoing reasons, if Mr. Gottschall agrees in a written filing, within

30 days, to accept additur in the amount of $5,000 and bear his own costs, the Court

will DENY Ms. Garcia-Rivera’s motion for a new trial. Otherwise, the Court will




17
     See Hall, 

, at *7.

                                              9
enter an order GRANTING a new trial. No further consideration of Mr. Gottschall’s

motion for costs is necessary. That motion is accordingly DENIED.

      IT IS SO ORDERED.



                                                 Sheldon K. Rennie, Judge




                                       10