On October 30, 2008, The Honorable Peggy L. Ableman, a Judge of the Delaware Superior Court, in the case of Christopher Campbell v. Kenneth A. Whorl, denied Plaintiff’s Motion for a New Trial and granted Defendant’s Motion for Costs in upholding the September 8, 2008, jury verdict for Defendant.
This case arose from an August 11, 2004 accident in which Plaintiff made a left turn and was struck on the passenger side by Defendant’s vehicle which was being unlawfully driven on the shoulder of the roadway.
Plaintiff is and was employed as a postal carrier at the time of the collision.
Plaintiff initially sought treatment with his family doctor six days after the collision for neck pain and low back pain. Plaintiff’s family doctor referred him to a specialist in physical medicine and rehabilitation who he initially saw in August 2004. Plaintiff attended six physical therapy sessions between August 30 and September 14, 2008.
Plaintiff’s neck pain resolved in a few months, but his low back pain recurred intermittently and was exacerbated by his work as a postal carrier, specifically when he was re-assigned from a driving route to a walking route in 2006. Following the route change, Plaintiff returned to see the specialist in March of 2006, and was referred for an additional five sessions of physical therapy. Plaintiff next saw the specialist on July 30, 2008.
At trial Plaintiff’s doctor testified concerning Plaintiff’s low back and neck injury, in part, as follows:
“Q: Doctor, in your opinion were the injuries that you just diagnosed for us. . . caused by the motor vehicle collision of August 11, 2004?
A: Based upon the history that I received, yes.”
The doctor went on to opine, “that Plaintiff’s injuries would be permanent and that he expected Plaintiff to continue to experience exacerbations of his symptoms with physical activity.”
The defendant’s doctor expert witness testified that there when he examined Plaintiff and reviewed the records there were no “objective” signs of injury but by the history related by Plaintiff the doctor found Plaintiffs complaints of low-back pain from the time of the collision to the end of 2005 (4 months) to be consistent with lumbar strain resulting from the accident.
After the case was sent to the jury the jury sent a note to the judge asking:
“If we vote “YES” on question #1 [as to whether Defendant’s negligence was the proximate cause of injury to Plaintiff], must we assign an amount of damages or is it OK to say ZERO?
When did [Plaintiff] consult an attorney in this matter [and/or] when was the lawsuit filed?
What was the time line for last treatment (PT) and when did he [Plaintiff] next consult a physician for this issue?”
After the judge responded that the “jury must assign a damages amount if proximate cause was found”, the jury returned a verdict in favor of Defendant.
The judge upheld the Jury’s verdict finding that the issue was one of credibility and that the jury could rationally find that the cause of Plaintiff’s injuries pre-existed the collision. In support of this decision the court cited Gier v. Kananen, 1993 WL 227390 (Del. June 7, 1993) and Phillips v. Loper, 2005 WL 268042 (Del. Super. Jan. 27, 2005).
In granting Defendant’s Motion for Costs, for the $2,000.00 expert witness fee of Defendant’s doctor, the Court noted that the Plaintiff had rejected the $7,500.00 Arbitration award and turned down the pre-trial Offer of Judgment of $9,000.00.
