Smith v. Lawson, C.A. No. 01C-12-105 RRC (DE 1/23/2006)
| Decision Date | 23 January 2006 |
| Docket Number | C.A. No. 01C-12-105 RRC. |
| Parties | Allen R. Smith and Sarah J. Smith v. James A. Lawson, IV and Lynda B. Tyndall v. Allstate Insurance Company |
| Court | Supreme Court of Delaware |
Edward C. Ciconte, Esquire, Ciconte, Roseman & Wasserman Wilmington, Delaware, Attorney for Plaintiffs.
Antonia S. Bevis, Esquire, Ferrara, Haley & Bevis Wilmington, Delaware, Attorney for Defendant/Third-Party Plaintiff Lawson.
Dear Counsel:
Currently before this Court are three motions that arose after the conclusion of the jury trial in November 2004. As to Defendant/Third-Party Plaintiff James A. Lawson, IV's ("Lawson") Amended Motion for New Trial, that motion is denied because (1) the jury's alleged inconsistent answers to verdict form interrogatories can be reconciled with the evidence at trial, and (2) then-trooper Conklin's ("Conklin")1 testimony regarding the cause of the accident was correctly excluded as inadmissible lay opinion. As to Plaintiffs Allen R. Smith and Sarah J. Smith's ("Smiths") Motion for New Trial on the issue of damages only, or alternatively, for additur, that motion for new trial on damages only is granted on the grounds that (1) the jury verdict was inadequate fully to compensate the Smiths, and (2) the issue of liability is sufficiently distinct from the issue of damages to allow a new trial on damages alone. Finally, the Smiths' Motion for Costs is granted in part only as to those costs that are conceded by Defendant Lawson and denied in part without prejudice to its later possible renewal until the resolution of the new trial on damages only.
This case arises from an automobile accident that occurred on January 7, 2001, in which Plaintiff Allen Smith sustained significant injuries that resulted in numerous surgeries on his knees and left wrist. The Smiths alleged in the Complaint that the Defendant/Third-Party Plaintiff Lawson negligently struck Allen Smith near Route 273 and Red Mill Road, in Newark. At the time of the accident, Smith was attempting to direct traffic around two stopped vehicles owned by Allen Smith and Defendant/Third-Party Plaintiff Lynda B. Tyndall ("Tyndall"). Earlier, Allen Smith had observed Tyndall driving erratically and decided to follow her; in fact, Tyndall was driving under the influence.2 Both Tyndall and the Smiths (Sarah Smith was also in the car at the time) were traveling westbound on Route 273 when Tyndall appeared to be turning left onto Ogletown Road, which intersects with Route 273. However, instead of exiting Route 273, Tyndall veered back onto the two lanes of the highway heading eastbound against oncoming traffic. In reaction to Tyndall's driving, Allen Smith attempted to pull her over himself: he sped up and cut across the grass median that divided the two-lane highway and intercepted Tyndall's car by cutting in front of her. This forced Tyndall to stop her vehicle in the left-hand lane of Route 273 eastbound. Tyndall remained in her car thereafter. After the stop, both vehicles were on the wrong side of the highway, facing oncoming traffic, and remained so throughout the incident.
After succeeding in stopping Tyndall's vehicle, Smith got out of his car and positioned himself in front of his vehicle to direct traffic away from the parked vehicles. Then, because of his position on or near the highway,3 Allen Smith was struck and injured by the vehicle driven by Lawson. Approximately one to two minutes elapsed between the time that Allen Smith stopped Tyndall's vehicle and the moment Lawson collided with Allen Smith.
The Smiths sought damages for past medical expenses in the amount of $74,900, and lost wages of $74,750; these damages were undisputed at trial.4 The Smiths sought general damages for pain and suffering as well. Allen Smith's wife, Sarah, also filed a claim for loss of consortium. Third-Party Defendant Allstate Insurance Company ("Allstate") was later added to this action by Lawson because at the time of the accident Allen Smith was operating a vehicle insured by Allstate. The insurance policy contained uninsured motorist coverage, as required by law. At the time of the accident, Tyndall did not carry automobile insurance, thus necessitating the addition of Allstate.
At the close of the evidence, all three defendants — Lawson, Tyndall and Allstate — moved for a judgment as a matter of law. The Court denied Lawson's motion, but reserved decision on both Tyndall's and Allstate's respective motions. After six hours of deliberation, the jury awarded the Smiths $135,000 in damages ($125,000 to Allen and $10,000 to Sarah on her consortium claim (despite the fact that past medical expenses and lost wages claims of Allen Smith totaling $149,650 were not contested)) and apportioned liability 50% to Allan Smith and 50% to Lawson; the jury ascribed no liability to Tyndall.5 After the jury verdict, the Court determined that the pending motions of Tyndall and Allstate for judgment as a matter of law were moot, based on the jury's assessment of zero liability to Tyndall.
Lawson sets forth two bases in support of the grant of a new trial. First, Lawson argues that the jury's responses to verdict form interrogatories indicate that the jury misunderstood the law regarding proximate cause and superseding cause, thus rendering the jury's responses inconsistent. Second, Lawson asserts that the exclusion of then-trooper Conklin's testimony was error because the Smiths had waived the right to object by not doing so in a deposition.
As to the first basis, the Smiths respond that Lawson failed to object to the jury interrogatories at the trial and that any objection was thus waived by Lawson.6 In any event, the Smiths argue, the jury's responses and verdict can be easily reconciled with the evidence submitted at trial. As to the second basis, the Smiths argue, as to the exclusion of then-trooper Conklin's testimony, that they never waived the right to object because the alleged "waiver" was made in a deposition, where the failure to object to testimony on relevancy or materiality grounds does not constitute a waiver. Further, the Smiths rely in part on Lagola v. Thomas,7 a case decided by the Delaware Supreme Court subsequent to the trial, to show that the pertinent portion of then-trooper Conklin's testimony was inadmissible and was properly excluded.
In support of Plaintiffs' Motion for New Trial on the issue of damages only, or alternatively, for additur, the Smiths argue that the jury verdict was inadequate fully to compensate them because the award was less than the amount of the unrebutted special damages that had been set forth by the Smiths at trial. The Smiths heavily rely on Christiana School District v. Reuling,8 which in essence held that a jury award less than the amount of proven, unrebutted special damages is inadequate. Thus, because Lawson did not rebut the Smiths' evidence of special damages, any award that is less than the amount of such unrebutted special damages is inadequate.9 It is unknown whether the jury's verdict included any award for pain and suffering.
Lawson responds that the jury verdict should not be disturbed by this Court because it does not "shock the conscience." Lawson also argues that a new trial on damages alone should be granted only when the issue of liability and the issue of damages are severable. In this case, contends Lawson, "the liability issue is so inexorably intertwined with the plaintiff's claimed injuries that to sever the issues would cause great prejudice to the defendant."10
The Smiths seek costs in the form of court costs of $625 and expert witness fees of $5,645.98, totaling $6,270.98, which the Smiths claim are reasonable costs in pursuing the claims to trial. The Smiths' expert witness fees are broken down here:
Sherkey & Associates $1,837.00
Brian Galinat, M.D. $1,500.00
Deposition Transcript (Galinat) $347.65
Peter Townsend, M.D. $1,500.00
Deposition Transcript (Townsend) $278.58
Kevin Conklin (Deposition) $182.75
Lawson concedes that the $625 in court costs is recoverable upon their itemization by the Smiths, which was subsequently done in the Smiths' Reply. However, Lawson argues that the expert fees for Dr. Galinat and Dr. Townsend lack substantiation and should at the very least be reduced from the $1500 figure, if not denied altogether. Likewise, as to the Sherkey & Associates fees, Lawson concedes that it is liable for only $460 plus a reasonable charge for travel time. Lawson further argues that he should not be taxed for the alleged transcript fees because Lawson maintains that the Court moved them into evidence, and not the Smiths, who are seeking the costs. Finally, Lawson objects to the cost of Conklin's testimony because he contends that the transcript was necessary only because counsel for the Smiths was not present at that portion of the proceeding on his own accord.
IV. DISCUSSION
Superior Court Civil Rule 59(a) provides that a "new trial may be granted as to any or all of the parties and on all or part of the issues in an action in which there has been a trial for any of the reasons for which new trials have heretofore been granted in the Superior Court."11 Thus, this Court must look to prior case law...
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