Gardner v. Kayser, No. 1193

CourtCourt of Special Appeals of Maryland
Writing for the CourtOpinion by Graeff, J.
Decision Date19 January 2021
Docket NumberNo. 1193


No. 1193


September Term, 2019
January 19, 2021

Circuit Court for Anne Arundel County
Case No.


Graeff, Kehoe, Zic, JJ.

Opinion by Graeff, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

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This appeal arises from an automobile accident that occurred on December 14, 2014. Heather Gardner, appellant, filed a complaint for negligence against Robert Kayser, appellee, in the Circuit Court for Anne Arundel County. Prior to trial, Mr. Kayser admitted liability, and trial proceeded on the issue of damages. Following a two-day trial, the jury returned a verdict of $0. Ms. Gardner filed a Motion to Revise the Judgment, or, in the alternative, a Motion for a New Trial, which the circuit court denied.

On appeal, Ms. Gardner presents two questions for this Court's review,1 which we have combined and rephrased, as follows:

Did the circuit court err in failing to revise the judgment through additur or grant a new trial where the jury's verdict of $0 was irreconcilably inconsistent with the evidence?

For the reasons set forth below, we shall affirm the judgment of the circuit court.


On December 14, 2014, at approximately 6:30 p.m., Ms. Gardner was stopped at an intersection. Mr. Kayser was approaching the intersection in his vehicle, and after taking his eyes off the road, he collided into the rear of Ms. Gardner's motor vehicle. Mr. Kayser apologized to Ms. Gardner immediately following the collision.

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Ms. Gardner testified that she "was feeling fine" immediately after the collision, but as she was driving home, "her head started to hurt." The next morning, her headache had gone away, but her body "was kind of starting to stiffen up a little bit."

Ms. Gardner went to see Dr. Franchetti, an orthopedic surgeon, on December 15, 2014. Dr. Franchetti previously had treated Ms. Gardner for a neck condition. Dr. Franchetti testified that Ms. Gardner's injuries were consistent with whiplash, specifically an "extension flexion type injury to the spine." He ordered x-rays of Ms. Gardner's cervical spine, which revealed that she had lost the normal curvature of her neck, which was consistent with cervical muscular spasms. After examining Ms. Gardner and reviewing the x-rays, Dr. Franchetti determined that she "was suffering from acute cervical strain and an acute lumbosacral strain due to the December 14, [2014] motor vehicle accident."

Ms. Gardner saw Dr. Franchetti again on December 30, 2014, and she presented with continued neck pain, as well as pain in her lower back. Dr. Franchetti continued her course of treatment, which consisted of physical therapy, over-the-counter pain relief medication, and prescription pain relief medication. Dr. Franchetti authorized Ms. Gardner to return to work on January 5, 2015, and he instructed her to return for a follow-up evaluation in four weeks.

On January 27, 2015, Ms. Gardner returned to Dr. Franchetti's office, but she was placed under the care of Dr. Duwaney, another orthopedic surgeon, due to Dr. Franchetti's unavailability. Ms. Gardner was feeling better, and Dr. Duwaney recommended that Ms.

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Gardner continue with physical therapy. Dr. Duwaney determined that Ms. Gardner also had an injury to her right sacroiliac joint, and she prescribed therapy for that injury. Dr. Duwaney instructed Ms. Gardner to return for follow-up care in six weeks.

Ms. Gardner saw Dr. Duwaney again on March 10, 2015. Ms. Gardner had improved by 50% with respect to her lower back, and her neck also had improved. Dr. Duwaney diagnosed Ms. Gardner with "persistent lumbar strain with improved sacroiliitis."

Dr. Duwaney referred Ms. Gardner to Dr. Kaufman, a practitioner at the Baltimore Neurosurgery and Spine Center, for "consideration of a sacroiliac joint injection on the right side." Dr. Kaufman performed the injection procedure at the Windsor Mills Surgery Center on April 14, 2015.

On April 21, 2015, Ms. Gardner again saw Dr. Duwaney. Dr. Duwaney's records showed that, with respect to her lower back, she had full range of motion with flexion. No abnormalities were documented.2

On July 10, 2015, Ms. Gardner returned to Dr. Franchetti's office. Although her neck pain had resolved, she reported "flare-ups" to her lower back. Dr. Franchetti noticed some tenderness on the sacroiliac joint, but the examination otherwise was normal. Ms. Gardner was advised to return to physical therapy for two weeks.

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On December 18, 2015, Ms. Gardner returned to Dr. Franchetti's office complaining of neck pain. On January 12, 2016, Dr. Franchetti administered trigger point injections to Ms. Gardner's neck and cervical spine. At the time he administered the injections, Dr. Franchetti did not consider Ms. Gardner's neck pain to be causally related to the December 14, 2014, accident.

On March 1, 2016, Dr. Franchetti saw Ms. Gardner. He "diagnosed her with improved sprains and strains of her neck and low back cervical lumbar" and advised her that further treatment was not likely to improve her condition.

On June 19, 2018, at counsel's request, Ms. Gardner returned to Dr. Franchetti. Ms. Gardner asserted that her neck pain had resolved, but she still was experiencing pain in her lower back. Dr. Franchetti's examination of Ms. Gardner revealed that her neck was normal, but there was tenderness and spasming in her back. Dr. Franchetti determined that Ms. Gardner's lower back injury was permanent, and it was causally related to the December 14, 2014, accident, although he did not quantify the degree to which she was permanently injured.

During his deposition, Dr. Franchetti testified that Ms. Gardner's neck pain was causally related to the accident. In support, he stated: "The only trauma [Ms. Gardner] sustained was the motor vehicle accident[,] and there was no intervening trauma in the interim." He acknowledged, however, that Ms. Gardner had problems with her neck prior to the December 14, 2014, accident. Ms. Gardner did not introduce any of her medical bills. Instead, she relied purely on testimony to establish her damages.

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Lilly and Delbert Gardner, Ms. Gardner's parents, testified regarding the impact that lower back pain bore on Ms. Gardner's daily life. Lilly Gardner described her daughter as...

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