Opinion
C.A. No. 05C-03-001.
Submitted: August 22, 2006.
November 2, 2006.
Henry Clay Davis, III, Esquire, H. Clay Davis III, P.A., Georgetown, DE.
Louis J. Rizzo, Jr., Esquire, Reger, Rizzo, Kavulich Darnall LLP, Wilmington, DE.
Dear Counsel:
This is my decision on the post-trial motions in this personal injury case. Plaintiff David A. Kesterson ("Kesterson") is a 53-year-old masonry contractor. Defendant Royal Plus Electric, Inc. ("Royal Plus") is an electrical contractor. Kesterson and several Royal Plus employees were working at a residence in Rehoboth Beach on March 21, 2003. Kesterson was spraying water on a new sidewalk to expose stones in the fresh concrete when he came into contact with an exposed electrical wire. Kesterson received an electrical shock, resulting in intense pain and injuries to his left knee, right shoulder and right hand. He incurred medical expenses of $19,955.18. Kesterson alleged that Royal Plus' negligence caused his injuries. The jury agreed and awarded Kesterson damages of $154,000, but determined that he was 5% at fault, resulting in a verdict of $146,300. Royal Plus filed a motion for remittitur or, in the alternative, a new trial. Kesterson filed a motion for costs.
Remittitur or New Trial
The law on the standard of review of jury verdicts is well-settled. I summarized it as follows in McCredie v. Howard, 2004 WL 1790120 (Del.Super.):
"It is well established in Delaware that a jury verdict is presumed to be correct and just." Storey v. Castner, 314 A.2d 187, 193 (Del. 1973), citing Lacey v. Beck, 161 A.2d 579 (Del.Super.Ct. 1960). Delaware courts traditionally afford great deference to jury verdicts, Morris v. Maternity and Gynecology Associates, P.A., 2001 WL 1729133, at *2 (Del.Super.Ct.) Citing Young v. Frase, 702 A.2d 1234, 1236 (Del. 1997). On a Motion for a New Trial, this Court will not disturb a jury verdict as excessive "unless it is so clear as to indicate that it was the result of passion, prejudice, partiality, or corruption; or that it was manifestly the result of disregard of the evidence or applicable rules of law." Storey, 314 A.2d at 193, citing Riegel v. Aastad, 272 A.2d 715, 717-718 (Del. 1970). It follows that "[a] verdict should not be set aside 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." Id., citing Riegel v. Aastad, 272 A.2d at 718; Bennett v. Barber, 79 A.2d 363 (Del. 1951). Furthermore, this Court will not set aside a verdict simply because the Court perceives it to be excessive. It will only set aside a verdict where, "under the attendant facts, a grossly excessive verdict is clearly manifest." Id., citing Lacey, 161 A.2d at 581. Thus, very substantial awards have been upheld where the circumstances of the injuries warrant such an award. Morris, 2001 WL at *2, citing Delaware Electric Co-Op, Inc. V. Duphily, 703 A.2d 1202, 1210-1211 (Del. 1997). The Delaware Supreme Court has further recognized "that it would be remiss in its duties to invade an area within the exclusive province of the jury where any margin for reasonable difference of opinion exists in the matter of a verdict." Storey, 314 A.2d at 193, citing Burns v. Delaware Coca-Cola Bottling Co., 224 A.2d 255, 258 (Del.Super.Ct. 1966). Moreover, remittitur should not be granted unless the award "is so out of proportion with the injures as to shock the Court's conscience and sense of justice." Riegel, 27 A.2d at 717-718.
Royal Plus argues that the verdict is shocking on its face because the amount awarded is, according to Royal Plus, out of proportion to Kesterson's injuries. Royal Plus' argument is based largely on the fact that the damage award was "roughly eight times the amount of special damages admitted into evidence." I disagree with Royal Plus' reasoning and conclusions. Kesterson was electrocuted. He described this as "like being hit in the head with a hammer." Obviously, this evidence, when viewed in the light most favorable to Kesterson, supports a finding that Kesterson sustained a very painful injury. Kesterson also sustained injuries to his left knee, right shoulder and right hand. Kesterson had to undergo arthroscopic surgery to repair a medial meniscus tear in his left knee. The surgery was successful and Kesterson recovered. He also had to undergo surgery in an attempt to alleviate the pain associated with carpal tunnel syndrome in his right hand. Unfortunately, the surgery was not successful and Kesterson still feels a lot of pain in his right hand. Kesterson did not have to undergo surgery on his shoulder, but he did undergo physical therapy for several months. Given that Kesterson sustained a very painful electrical shock that resulted in injuries to three areas of his body, required two surgeries to correct and physical therapy, and incurred substantial medical expenses in the process, I do not find anything at all shocking about the jury's verdict. Therefore, I have denied Royal Plus' motion for remittitur or, in the alternative, a new trial.
Costs
Kesterson, as the prevailing party, wants to be reimbursed for the following expenses:
Filing fees $ 326.61 Processing fee $ 30.00 Dr. McClinton's deposition fee $1,100.00 Dr. McClinton's deposition transcription fee $ 293.65 Ryan Boyer's expert testimony fee $1,500.00 Trial fee $ 150.00
Superior Court Civil Rule 54(d) provides that "costs shall be allowed as of course to the prevailing party upon application to the Court within ten (10) days of the entry of final judgment unless the Court otherwise directs." Pursuant to Superior Court Civil Rule 54(h) and 10 Del.C. § 8906, expert witness fees may be taxed as costs against the unsuccessful party. The jury returned its verdict on August 10, 2006. Kesterson filed his motion for costs on August 11, 2006, which is well within the time frame set forth in Rule 54(d). Royal Plus is opposed to Kesterson's motion for costs.
Stevenson v. Henning, 268 A.2d 872 (Del. 1972).
Michael McClinton, M.D.
Kesterson wants to be reimbursed $1,393.65 for Michael McClinton, M.D.'s fees. This Court has recognized "that a significant disruption to a physician's practice occurs when a physician is called to testify as an expert witness and that such testimony is important to the court since it assists the trier of fact and serves a significant public interest." Dr. McClinton's deposition fee was $800.00. Kesterson's 30 minute conference with Dr. McClinton was $300.00. The transcription fee for Dr. McClinton's deposition was $293.65. Kesterson's deposition was used at trial and introduced into evidence. Therefore, the cost of the deposition and its transcription are allowed. Kesterson also wants to be reimbursed for his 30 minute conference with Dr. McClinton. Expert witness fees awarded under 10 Del.C. § 8906 are limited to the "time necessarily spent in attendance upon the court for the purposes of testifying." Additionally, witness fees awarded under 10 Del.C. § 8906 do "not include the time spent in listening to other witnesses for `orientation,' or in consulting and advising with a party or counsel or other witnesses during the trial." As such, Dr. McClinton's $300.00 fee for the 30 minute conference is not allowed. Kesterson's request in the amount of $1,093.65 is granted.
Sliwinski v. Duncan, 1992 WL 21132 at *2 (Del.Supr.).
State ex rel. Price v. 0.0673 Acres of Land, 224 A.2d 598 (Del. 1966).
Miles v. Cookson America, Inc., 1995 WL 214397 at *1 (Del.Supr.), citing 0.0673 Acres of Land, 224 A.2d at 602.
Ryan Boyer
Kesterson wants to be reimbursed $1,500.00 for Ryan Boyer's ("Boyer") expert witness fee. Boyer testified as an electrical expert in this case. The Court heard testimony from Boyer over two days. The Court finds the fee of $1,500.00 to be reasonable. Kesterson's request in the amount of $1,500.00 is granted.
Fees
Kesterson wants to be reimbursed $506.61 for filing, processing and trial fees associated with this case. These fees are permitted under Rule 54. Kesterson's request in the amount of $506.61 is granted.
Kesterson shall receive $3,100.26 as costs.
Conclusion
Royal Plus' motion for remittitur or, in the alternative, a new trial is denied and Kesterson's motion for costs is granted in part and denied in part.