Novkovic v. Paxson, C.A. No. 07C-10-248-WCC (Del. Super. 3/16/2009)
| Decision Date | 16 March 2009 |
| Docket Number | C.A. No. 07C-10-248-WCC |
| Parties | MARK A. NOVKOVIC and BETH R. NOVKOVIC, his wife, Plaintiffs, v. MATTHEW PAXSON and GILES & RANSOME, INC., Defendants. |
| Court | Delaware Superior Court |
Bartholomew J. Dalton, Esquire, DALTON & ASSOCIATES, P.A., Wilmington, Delaware, Attorney for Plaintiffs.
Seth A. Niederman, Esquire, FOX ROTHSCHILD, LLP, Wilmington, Delaware, Attorney for Defendants.
Michael P. Pullano, Esquire, WEBER, GALLAGHER, SIMPSON, STAPLETON, FIRES & NEWBY, LLP, Philadelphia, Pennsylvania, Attorney for Defendants.
Plaintiffs brought this action for damages arising from personal injuries sustained as a result of an automobile accident in which Plaintiffs' vehicle was rear-ended by a vehicle owned by defendant Giles & Ransome, Inc. The vehicle was being driven by defendant Matthew Paxson, who was operating it during the course of his employment with Giles & Ransome, Inc.
By the time of trial, Defendants had conceded liability for the accident and the resulting injuries to the Novkovics, but the parties were unable to agree upon an amount of damages that would fairly compensate Plaintiffs for pain, suffering, permanency, past and future medical expenses, and loss of consortium.
On February 11, 2009, at the conclusion of a two-day trial, the jury returned verdicts of $1.3 million in damages for plaintiff Mark A. Novkovic and $220,000.00 as damages for loss of consortium for plaintiff Beth Novkovic.1
Defendants have filed a Motion for New Trial or Remittitur. They assert that the jury award is "clearly excessive," that there was no evidence regarding any future medical expenses, surgery, treatment, or disability, that the jury deliberations were not long enough, and that the Court erred in not allowing evidence that Mr. Novkovic received compensation during periods of disability. Plaintiffs have moved for costs and interest. Defendants' Motion for New Trial or Remittitur
Under Delaware law, a jury's verdict is presumed to be correct and just,2 and is afforded great deference by the Court.3 An award that is challenged as excessive will not be disturbed "unless it is so clearly so as to indicate that it was a result of passion, prejudice, partiality, or corruption."4 When any "margin for reasonable difference of opinion exists in the matter of a verdict," the Court will yield to the jury's decision.5 With respect to remittitur, the Court will not reduce a jury award unless it is "so grossly excessive as to shock the Court's conscience and sense of justice; and unless the injustice of allowing the verdict to stand is clear."6
The evidence in this case established that Mr. Novkovic suffered extensive injury to his spinal column as a result of the collision, which required him to endure two spinal cord surgeries, anterior and posterior. The orthopedic surgeon who performed the operations testified that Plaintiff will have permanent injury and disability, which should be expected to cause him pain throughout his life. Significantly, Defendants' expert echoed this prognosis by agreeing that Mr. Novkovic would continue to suffer both pain and numbness.
In short, the Court is not only not shocked by the jury's decision in this case, but it considers the verdicts fair and reasonable. Mr. Novkovic was injured and he was injured badly. The MRI of his neck looks like the inside of the nuts and bolts section of a hardware store. The Court, having listened to the evidence, has no doubt that these injuries are painful and permanent, and that they have altered his life for the worse.
In addition to the pain and suffering that he has endured and will endure, Plaintiff's future earning capacity is far from certain. He is employed in the brokerage department of the Wilmington Trust Company, and he has had several lengthy periods of absence while recuperating from surgery, including during the time this trial took place. Mr. Novkovic is concerned, and for good reason: he has not been able to perform his duties or even be present at his workplace at a time when job losses in the financial services industry are rampant.
Other factors highlight the appropriateness of the jury's award in this case. Plaintiff's daughter was just an infant when this accident occurred, and the limitations and restrictions caused by the injury and the surgeries have precluded him from enjoying lifting, holding, and playing with his toddler, pleasures he can never recapture. Nor has he been able to enjoy his greatest outdoor passion, fishing. From the Court's perspective — and the jury's too — Mr. Novkovic did not attempt to overreach or exaggerate his injuries or the extent of his limitations. He came across at trial as a decent, honest, hard-working husband and father who has legitimate and very real concerns for his future health and employability. Prior to the accident, he was healthy, active, and earning a decent and steady income. The jury found this evidence to be credible and persuasive, and the Court finds that the verdict in this case is not only not "clearly excessive," as claimed by Defendants, but that a reasonable jury could easily have found in excess of the verdict rendered without shocking the Court's conscience.
Defendants' practice of attempting to draw comparisons between this case and other cases he has cited is unavailing, of no value to the Court, and has even been described as "dangerous" by another Superior Court Judge:
This Court has previously noted that `it is difficult, if not dangerous, to refer to other cases to argue that a particular verdict is too high or too low.' It is inevitable that there will be dissimilar results in personal injury suits because no two juries will judge the effect of a plaintiff's injuries identically.7
Moreover, the fact that injuries may have been similar does not address the individual characteristics of different plaintiffs (such as age), the nature of their disability (if any), the nature of the expert opinions, or any of the whole host of factual differences that are necessarily unique to every personal injury case. While Defendants attempt to reargue their view of the evidence to the Court and to draw comparisons with other distinctly different verdicts, at this stage in the proceedings, the Court must view the evidence in the light most favorable to the plaintiffs.8
Defendants' next contention, that the jury's deliberations were inadequate because they only lasted an hour and fifteen minutes, does not convince the Court that the award was unfair. This was a short trial and the only issues for decision in the case were the nature and extent of Mr. Novkovic's injuries and Ms. Novkovic's loss of consortium, and the amount to be assigned to those damages. Liability and causation were not contested. It is difficult to imagine a more straightforward task for twelve jurors, especially when they were aided by a calculator, which the Court provided upon their request. Indeed, the brevity of the deliberations could just as easily have signaled a consensus among jurors about the value to be attributed to the plaintiffs' damages as to a failure to deliberate fully and conscientiously.
Defendants' reliance upon Chilson v. Allstate Insurance Co.9 as support for its argument that a new trial should be granted because the jury's deliberation was abbreviated is hardly persuasive. In Chilson, the Court had already concluded that the verdict was excessive and against the great weight of the evidence, and merely commented upon the brevity of the deliberations as adding to its uneasiness about the fairness of the award. Moreover, the Court in Chilson was also quick to point out that "brief jury deliberation is not, in itself, sufficient basis to support a new trial motion."10 In a case where the evidence is plainly sufficient to support the verdict, as it is here, the length of time the jury deliberates is immaterial.
Finally, Defendants cite as error the Court's ruling that disallowed evidence that Mr. Novkovic was compensated to the full extent of his salary through a disability policy provided by his employer. This argument is contrary to long-settled Delaware law, and its assertion by counsel warrants further discussion by the Court.
The Delaware Supreme Court has repeatedly warned that counsel's failure to provide citations to support its argument will result in the Court deeming such legal arguments to have been waived. In a recent decision, the Court explained the policy:
The appealing party is generally afforded the opportunity to select and frame the issues it wants to have considered on appeal. A corollary to that opportunity is a requirement that the appealing party's opening brief fully state the grounds for appeal, as well as the arguments and supporting authorities on each issue or claim of reversible error. Therefore, this Court has held that the failure of a party appellant to present and argue a legal issue in the text of an opening brief constitutes a waiver of that claim on review.11
The rationale for this ruling was further explained in that case as follows:
In order to develop a legal argument effectively, the Opening Brief must marshall the relevant facts and establish reversible error by demonstrating why the action at trial was contrary to either controlling precedent or persuasive decisional authority from other jurisdictions. The failure to cite any authority in support of a legal argument constitutes a waiver of the issue on appeal.12
In a recent decision in this Court, Judge Parkins similarly admonished counsel for failing to cite a single authority from this or any other jurisdiction to support their client's positions and reminded them that "[c]ourts throughout the country hold that they are not obligated to...
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