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The Honorable William C. Carpenter, Jr., in his January 30, 2009 decision, upon Plaintiffs Motion for New Trial and/or Additur, in the Delaware Superior Court case of Delores A. Hinson and Juanita Scott v. Margarete R. Johnson, C.A. No. 06C-11-298 RRC, stemming from a September 16, 2008, jury verdict noted:

“Complicating what would normally be a routine damages case was the fact that both Plaintiffs had multiple prior instances in which they had suffered injuries. Ms. Hinson had been involved in four previous automobile accidents and both Plaintiffs were on social security disability and had not worked for years as a result of previous accident related injuries. It is with this backdrop that the jury was asked to decide whether the injuries alleged were related to the accident in April, 2005 which was the subject of this litigation.”

“Adding to the difficulty of the jury’s task was the fact that the Defendant chose to present no medical testimony to contest the testimony presented by the Plaintiffs’ medical doctors. Therefore, while the credibility of the Plaintiffs’ subjective complaint would clearly be suspect based upon their accident history, the objective findings of the doctors were not disputed by the Defendant. Thus, the issue for the Court to decide is whether the facts of this case fall within the trilogy of [Delaware] Supreme Court cases, Maier, Amalfitano and Burkett-Wood, which require an award of damages.”

Judge Carpenter cites Burkett-Wood v. Haines, 906 A.2d 756, 7656 (Del. 2006), which holds that:

“In Maier, we held that when the evidence establishes that an accident caused injuries, a jury is required to return a verdict of at least minimal damages. In Amalfitano, we held that “where medical experts present uncontradicted evidence of injury, confirmed by objective medical tests supporting a plaintiff’s subjective testimony about her injuries and offer opinions that the injuries relate to the accident about which the plaintiff complains, a jury award of zero damages is against the weight of the evidence.”

Judge Carpenter goes on to note that Burkett-Wood, at 766, holds that:

“[A]n MRI, an X-ray, and spasm revealed on palpation to a physical examination are considered objective medical evidence in this jurisdiction.”

Judge Carpenter than reviews the testimony at trial of Ms. Hinson’s treating doctor, Dr. William Atkins, wherein Dr. Atkins documented spasm in Ms. Hinson’s neck and back. In light of this uncontradicted objective medical testimony Judge Carpenter awarded additur to Ms. Hinson of $8,050.00. [Which is probably enough to cover the cost of presenting Dr. Atkins testimony, other litigation expenses, the attorney’s contingent fee and nothing else.]

Judge Carpenter than analyzed the testimony of Dr. McIlrath, a chiropractor, in the case of Ms. Hinson’s passenger, Juanita Scott, and found:

“[I]t is not clear that the objective findings that were made are undisputably in reference to the present accident. Dr. McIlrath had been treating Ms. Scott for at least three years prior to this accident, and it appears she had not fully recovered from her earlier injuries. As such, even though objective medical findings were made by the doctor, including spasms and an MRI reading, there remained a dispute as to whether these findings were connected to this accident. As such, this was properly a causation issue for the jury to decide, and the award of no damages is supported by the evidence and will not be disturbed.”