# Brown v. Arnold

> Superior Court of Delaware · January 5, 2023

URL: https://www.frixlaw.com/law-library/cases/9352144

## Case

- **Court:** Superior Court of Delaware
- **Decided:** January 5, 2023
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Clark R.J.
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9352144

## How later opinions describe it (automated extraction)

- recognizing that a witness’s or counsel’s suggestion regarding a reasonable award for pain and suffering is inappropriate
- recognizing that to decline to grant a new trial under these circumstances would be an abuse of a trial court’s discretion

## Opinion text

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

JAMES BROWN, :
:
Plaintiff, :
:
v. : C.A. No.: K19C-09-035 JJC
:
DAVID ARNOLD, :
:
Defendant. :
:

Submitted: December 9, 2022
Decided: January 5, 2023

Plaintiff’s Motion for New Trial: GRANTED
Defendant’s Motion for Costs: DENIED, without prejudice

MEMORANDUM OPINION & ORDER

William D. Fletcher, Jr., Esquire, Schmittinger & Rodriguez, P.A., Dover,
Delaware, Attorney for Plaintiff.

Miranda D. Clifton, Esquire, Heckler & Frabizzio, P.A., Wilmington, Delaware,
Attorney for Defendant.

Clark, R.J.
Plaintiff James Brown sued Defendant David Arnold for personal injuries
after an automobile accident on October 2, 2017 (“the accident”). At the pretrial
conference, Mr. Arnold admitted that his negligence proximately caused the
collision between their two vehicles. He disputed only the nature and extent of Mr.
Brown’s injuries and damages.1 He nevertheless acknowledged that Mr. Brown
suffered at least some injury because of the accident. The parties’ trial presentations
conformed to that understanding, and the Court memorialized it in the jury
instructions. Nevertheless, the jury returned a zero-dollar verdict. Now, Mr. Brown
seeks a new trial because he contends that the verdict was against the great weight
of the evidence. In response, Mr. Arnold opposes a new trial and seeks costs as the
prevailing party.
For the reasons explained below, there must be a new trial because the law of
the case, memorialized in the pretrial stipulation and order, recognized that Mr.
Brown suffered an injury caused by the accident. The parties’ trial presentations
reflected that understanding and the jury instructions memorialized it, but the jury
nevertheless disregarded it. Furthermore, a new trial is independently appropriate
because no reasonable jury could have declined to award Mr. Brown some
compensation for his injury on this trial record. Lastly, because there will be a new
trial, Mr. Arnold’s motion for costs must be denied, without prejudice.

I. PROCEDURAL AND FACTUAL BACKGROUND
The parties filed their pretrial stipulation before the pretrial conference. In
the stipulation, Mr. Arnold conceded that the only factual issues for trial were “the
nature and extent of plaintiff’s damages causally related to the motor vehicle
accident of October 2, 2017.”2 Elsewhere in the stipulation, Mr. Arnold conceded

1
Pretrial Stip. at 3, 6.
2
Id. at 3.
2
that he disputed only “the causal relationship of some of Plaintiff’s claimed injuries
as well as the extent of Plaintiff’s injuries.”3 The pretrial stipulation also confirmed
that Mr. Brown sought only general compensatory damages.
At trial, both parties presented expert medical testimony. First, Dr. William
Barrish testified on behalf of Mr. Brown. He explained how he had examined Mr.
Brown on one occasion and performed a medical record review.4 He opined that
Mr. Brown suffered a significant and permanent neck injury related to the accident,
notwithstanding a significant preexisting degenerative neck condition.5 Because he
believed Mr. Brown’s condition to be asymptomatic before the accident but
consistently present since, he testified to a reasonable degree of medical probability
that the accident caused him permanent neck pain and limitations.
Dr. Andrew Gelman then testified on behalf of Mr. Arnold. He had examined
Mr. Brown as a defense expert, also on one occasion, and reviewed his medical
records.6 Dr. Gelman acknowledged that the accident caused Mr. Brown injury,
but he believed it to be neither permanent nor long-lasting.7 Rather, Dr. Gelman
believed that the accident caused him a soft-tissue injury that resulted in two months
of pain, suffering, and limitations.8 Although he opined that Mr. Brown’s accident-
related injury resolved within two months, he conceded that the treatment provided
to Mr. Brown during those two months was reasonable, necessary, and related to the
accident.9 According to Dr. Gelman, however, any treatment after that point bore
no relationship to the accident.10

3
Id. at 6 (emphasis added).
4
Ct. Ex. 1, at 11. The parties presented their expert testimony through video trial depositions. The
Court included the experts’ written deposition transcripts in the record as Court exhibits.
5
Id. at 27-28.
6
Ct. Ex. 3, at 10-12.
7
Id. at 17, 25.
8
Id. at 41-42.
9
Id. at 21-22.
10
Id. at 22.
3
Mr. Brown testified at trial that he had no neck complaints before the accident.
Furthermore, the balance of the trial record includes no evidence that a reasonable
jury could have relied upon to infer that Mr. Brown had prior neck complaints. Nor
does the trial record include any attempts by Mr. Arnold to impeach Mr. Brown’s
testimony regarding an absence of prior symptoms. Given this partially
uncontroverted evidence, the dispute as to damages distilled to whether Mr. Brown
suffered (1) a soft-tissue injury of two-month duration or (2) a significant and
permanent aggravation of a previously asymptomatic condition.
The jury instructions, in a form consented to by Mr. Arnold, confirmed that
he suffered at least some injury. Namely, the instructions confirmed that Mr. Arnold
admitted the following:
(1) [Mr. Arnold] negligently operated his motor vehicle; [and]
(2) [Mr. Arnold’s] negligence was the proximate cause of the
motor vehicle injury which caused injuries to Plaintiff.11
Moreover, Mr. Arnold requested that the Court include, in the special verdict sheet,
the following:
State the amount of compensatory damages you award to James Brown for
damages proximately caused by the negligence of David Arnold (the amount
must be more than $0).12

$ _________________

At the prayer conference, Mr. Arnold contended, through his attorney, that the
Court should include the above-italicized language in the verdict sheet because a
zero-dollar verdict in the case would be unsustainable. After discussing Mr.
Arnold’s proposal, the Court declined to include it over his objection.13 It declined
the request, not as a precursive ruling that a zero-dollar verdict could stand, but

11
Jury Instr. at 6 (emphasis added).
12
Def.’s Proposed Jury Instr. at 27 (emphasis added).
13
Jury Instr. at 26.
4
because including it would have inappropriately framed, in part, an amount that
could impact the jury’s finding as to the appropriate amount. Under Delaware
decisional law, it is axiomatic that an attorney cannot provide his or her opinion
regarding an appropriate amount for general damages.14 It follows that it would be
improper for the Court to comment on an amount, through jury instruction or
otherwise. As the Court explained to the parties, that would have stepped too close
to the line of framing, on the lower end, an amount that the jury should consider
when awarding Mr. Brown’s general damages.
Throughout the three-day trial, both parties presented their evidence and
arguments consistently with their recognition that Mr. Brown suffered at least a two-
month in duration soft tissue injury. In fact, during Mr. Arnolds’ summation, his
counsel argued effectively from a power point that Mr. Brown suffered such an
injury, though not a permanent one. When presenting that argument, she accurately
crystallized the dispute between the parties that the Court describes above – that is,
did he suffer a two-month-in-duration injury or a permanent injury with permanent
partial impairment? Notwithstanding (1) Mr. Arnold’s concession in the pretrial
stipulation and order, (2) Mr. Arnold’s trial presentation that tracked his
understanding that Mr. Brown suffered an injury, and (3) jury instructions that
memorialized that Mr. Brown suffered an injury, the jury returned a zero-dollar
verdict.

14
See McNally v. Eckman, 466 A.2d 363, 374-75 (Del. 1983) (providing that counsel and trial
courts must be on guard against, and cure, remarks that may “carr[y] with them the dangerous
potential of the impermissible suggestion of a verdict for general damages”), overruled on other
grounds, Wright v. State, 953 A.2d 144, 149 (Del. 2008); see also Henne v. Balick, 146 A.2d 394,
398 (Del. 1958) (recognizing that a witness’s or counsel’s suggestion regarding a reasonable award
for pain and suffering is inappropriate).
5
II. THE PARTIES’ ARGUMENTS
Mr. Brown asks the Court to grant his motion for a new trial because
uncontroverted medical opinion testimony at trial recognized that the accident
caused him injury, and because Dr. Barrish observed Mr. Brown to have cervical
muscle spasms when he examined him. The latter observation, according to Mr.
Brown’s motion, qualified as an objective finding that corroborated the experts’
uncontroverted medical testimony. In addition, Mr. Brown emphasizes that Mr.
Arnold conceded, throughout the trial, that Mr. Brown suffered at least some injury.
In response, Mr. Arnold opposes retrying the case. He stresses that the jurors
are the sole judges of the facts and contends they were free to disregard even the
uncontroverted portions of the experts’ opinions. Because Mr. Arnold believes that
the verdict should stand, he seeks cost recovery on two grounds: as the prevailing
party, and because the zero-dollar award was less than his offer of judgment.

III. STANDARD
The Court must provide great deference to a jury’s verdict when it evaluates
a motion for a new trial that challenges the sufficiency of the evidence. 15 It may
grant a new trial only if the “evidence preponderates so heavily against the jury
verdict that a reasonable jury could not have reached the result.” 16 Furthermore, a
challenged damages award should be overturned only if it is so grossly
disproportionate to the injuries that it shocks the Court’s conscience and sense of
justice.17

15
Maier v. Santucci, 697 A.2d 747, 749 (Del. 1997).
16
Reid v Hindt, 2006 WL 1148819, at *1 (Del. Super. Jan. 30, 2006).
17
Powell v. AmGuard Ins. Co., 2020 WL 996734, at *4 (Del. Super. Mar. 2, 2020) (citing Storey
v. Castner, 314 A.2d 187, 193 (Del. 1973).
6
Finally, as will be important in each of the sections below, our civil justice
system requires a jury to award reasonable compensation to a plaintiff harmed by
the negligence of another. Where there is no dispute regarding who was liable for
an automobile accident, and no dispute that the plaintiff suffered at least a minimal
injury, a compensatory damages award of zero-dollars requires a new trial.18

IV. ANALYSIS
A new trial is necessary for each of the several reasons discussed below. They
include the law of the case, the parties’ conduct at trial, the jury’s failure to follow
the Court’s instructions, and the sufficiency of the evidence. Furthermore, because
a new trial is necessary, Mr. Arnold’s motion for costs must be denied.

A. The law of the case and both parties’ trial presentations confirmed that
Mr. Brown suffered an injury that required compensation.

A trial court’s decision that resolves an issue in a case forms the law of the
case as to that issue.19 In that way, when a court either explicitly or implicitly
decides a matter, the matter is settled for the balance of the proceedings.20 Here, the
law of the case, as charged to the jury, makes their zero-dollar verdict unsustainable.
Before trial, the pretrial stipulation and order marshalled the order and scope
of the trial. When the Court approved the stipulated order, that order “control[led]
the subsequent course of the action unless modified by a subsequent order.”21 In
that way, Mr. Arnold’s concession that Mr. Brown suffered some injury, confirmed
by Court order, resolved that issue. In this case, the parties stipulated that (1) Mr.

18
Maier, 697 A.2d at 748.
19
State v. Reyes, 155 A.3d 331, 350 (Del. 2017).
20
Estate of Krieger v. AmGuard, 2021 WL 733442, at *2 (Del. Super. Feb. 25, 2021).
21
Super. Ct. Civ. R. 16(e).
7
Arnold’s negligence was the sole proximate cause of the collision, and (2) the
collision injured Mr. Brown. The jury could not permissibly ignore the jury
instruction that told them that Mr. Arnold bore sole responsibility for the accident.
Likewise, it had no latitude to disregard the Court’s instruction that he suffered an
injury.
Apart from the pretrial stipulation, all evidence and argument presented at trial
aligned with a recognition that the accident caused injury. At the outset, Mr. Arnold
had originally denied that Mr. Brown suffered any injury related to the accident.22
Nevertheless, when a party impliedly agrees to amend the pleadings through his or
her conduct and presentation at trial, the pleadings amend to conform to that
understanding.23 Here, they agreed in their opening statements that Mr. Arnold
suffered injury. Throughout the trial, Mr. Arnold presented no evidence to dispute
that Mr. Brown suffered at least a two-month soft tissue injury. Nor did he attempt
to impeach Mr. Brown’s testimony regarding the first two months of his injury or
that he had no preexisting neck pain. Finally, Mr. Arnold conceded in his closing
that the accident caused Mr. Brown injury. Even independently of the pretrial
stipulation and order, and the jury instructions that reflected the stipulation, Mr.
Arnold impliedly consented, through his conduct at trial, to a jury finding of injury.

22
Def.’s Ans. ¶ 4-6.
23
See Super. Ct. Civ. R. 15(b) (providing that “[w]hen issues not raised by the pleadings are tried
by express or implied consent of the parties, they shall be treated in all respects as if they had been
in the pleadings”); see also Taplin v. Schuitemaker, 2019 WL 126981, at *6-7 (Del. Super. Jan. 7,
2019) (acknowledging that Rule 15(b) recognizes that an amendment should be deemed granted if
the trial “record indicates that the parties [understood] that the evidence was aimed at the
unpleaded issue.”); 6A Charles Alan Wright & Arthur Miller Federal Practice and Procedure §
1493 (3d ed. 2006) (providing helpful discussion regarding how issues may be tried by express or
implied consent of the parties and recognizing that parties may expressly consent to doing so by
stipulation).
8
B. The uncontroverted evidence presented at trial does not support a
zero-dollar verdict.

Apart from the pretrial order and the parties’ presentations that shaped the
dispute, the evidence in this case left the trier of fact no reasonable alternative other
than to award Mr. Brown compensation. Delaware courts spent significant effort
addressing new trial motions in zero-dollar verdict cases in the 1990s and 2000s.
For that reason, the Delaware Supreme Court provided additional guidance for the
Superior Court through two decisions: Maier v. Santucci24 and Amalfitano v.
Baker.25
First, in Maier, the Court considered an appeal regarding a new trial motion
that followed a zero-dollar verdict after the trial court directed a partial verdict as to
liability.26 There, as in Mr. Brown’s case, two opposing experts testified that the
accident caused the plaintiff’s cervical sprain.27 The Supreme Court held that a zero-
dollar award was inadequate as a matter of law in the absence of any evidence of
record to the contrary.28 Accordingly, the Supreme Court remanded the case and
ordered the Superior Court to conduct a new trial.29 When it explained its decision,
it recognized that when all available evidence establishes that a plaintiff suffered
some injury, if there is no dispute regarding fault, the jury must return a verdict of
at least minimal damages.30 Importantly, the Maier Court did not qualify its analysis
by requiring that an objective sign of injury corroborate uncontroverted medical
opinion evidence as a basis for a new trial.31

24
697 A.2d at 749.
25
794 A.2d 575 (Del. 2001).
26
Maier, 697 A.2d at 748.
27
Id. at 749.
28
Id.
29
Id.
30
Id.
31
Id.
9
Next, in the Amalfitano decision, the Supreme Court discussed what evidence
rose to the level of conclusiveness in such cases. There, the Court examined a trial
record where liability for the collision was fixed, there were uncontroverted medical
opinions that the plaintiff suffered injury, and objective findings corroborated those
uncontroverted opinions.32 Under those circumstances, the Court held a zero-dollar
verdict to be inappropriate as a matter of law.33
Mr. Brown understandably focuses a portion of his argument on what he
contends to have been an objective sign of injury, spasm. He does so, no doubt
because of the reading that some court decisions have applied to Amalfitano.
Namely, some decisions have found Amalfitano to impose a litmus test for new trials
in such cases; that is, a requirement that there be some objective sign of injury that
supports uncontroverted opinions that are based upon a plaintiff’s subjective
complaints. The Amalfitano decision, however, does not require or even suggest
such a test. It does not alter the traditional standard that a trial court must apply
when it evaluates a new trial motion based upon allegedly insufficient evidence.
Rather, the Court must consider the totality of the evidence, including whether the
plaintiff’s credibility created an issue at trial. According to Amalfitano, even if a
plaintiff has significant credibility issues, a zero-dollar verdict is improper in cases
where objective findings corroborate uncontroverted expert opinions that a plaintiff
has suffered an injury.34
Stated differently, the Court’s holding in Amalfitano provides that
uncontroverted expert testimony regarding injury, corroborated by objective
findings, conclusively renders a zero-dollar verdict unsustainable.35 When the

32
Amalfitano, 794 A.2d at 575.
33
Id. at 578.
34
Id. at 577-78.
35
Id.
10
Supreme Court so held, it did not contemporaneously stamp a precondition that
requires objective findings upon all such cases. Rather, it explained that such
evidence conclusively ends the inquiry in favor of a new trial. It does not inversely
bar a trial court from granting a new trial absent objective evidence of injury.
For that reason, reading the Maier and Amalfitano decisions together provide
alternative analyses. The first alternative, used in Maier, includes simply applying
the general standard for granting a new trial based on insufficiency of the evidence.
In that event, the trial court must determine if the jury could have reasonably
inferred, based upon the evidence, that there was no injury. If the trial evidence
permitted no reasonable inference of absence of injury and the jury declined to
compensate the plaintiff, a new trial is appropriate. The second alternative,
explained in Amalfitano, conclusively recognizes the need for a new trial when
objective evidence of injury corroborates uncontroverted medical opinion testimony
and there is no dispute as to liability. That alternative recognizes that a trial court
must grant a new trial motion in such circumstances, even if the plaintiff’s credibility
suffered at trial.
Here, Mr. Brown’s case aligns more closely with Maier than Amalfitano.
Because of that, the Court’s analysis does not hinge on whether an objective finding
supported the injury, despite Mr. Brown’s reliance on Dr. Barrish’s testimony
regarding spasm. There are two reasons that the second alternative does not apply.
First, Dr. Barrish testified that Mr. Brown had neck spasms. While this Court
has previously, and appropriately, recognized that spasms may constitute an
objective sign of injury,36 Dr. Barrish testified equivocally on the issue. Namely,

36
See Parisi v. State Farm Mut. Auto Ins. Co., 2010 WL 4139289, at *1 (Del. Super. Oct. 18,
2010) (recognizing, that based upon a doctor’s testimony, muscle spasms qualify as “objective
findings beyond the control of a patient,” which in turn supported a new trial in an uncontested
liability, zero-dollar verdict case).
11
he testified that spasms “could go either way,” meaning they could be either an
objective or subjective finding.37
Second, and apart from that testimony, Dr. Barrish did not examine Mr.
Brown until July 16, 2020, nearly three years after the October 2017 accident.38
When he did, there were spasms noted during only that single examination.39 The
time gap between the uncontroverted two-month period of injury and the neck
spasms provides no nexus between the two. If the jury were to accept Dr. Gelman’s
opinion that Mr. Brown’s accident-related injuries resolved within two months of
the accident, then spasms occurring years later were not relevant objective findings.
In other words, the jury could have permissibly concluded on this record that the
spasms had nothing to do with the accident.
A new trial is nevertheless appropriate under the first alternative that requires
the Court to apply the traditional standard for granting a new trial based on
insufficiency of the evidence. In this case, the evidence included two opposing
experts’ testimonies that Mr. Brown suffered a neck injury that caused him at least
two months of pain, limitations, and medical treatment.40 It also included
emergency room, primary care, and physical therapy records that confirmed
treatment during those two months. Furthermore, there was no evidence that Mr.
Brown had any pain or limitations related to his neck before the day of the accident.

37
Ct. Ex. 1, at 19.
38
Ct. Ex. 1, at 12.
39
See Pl. Ex. 1, Bayhealth Medical R. at 8 (Oct. 3, 2017) (including with the trial evidence an
emergency room prescription for Flexeril in the event spasms developed). Mr. Brown identifies
nothing in the record, however, to support a finding that any medical provider observed Mr. Brown
exhibit neck spasms during the first two months of his treatment.
40
The Court recognizes that a third expert, Dr. Michael Brooks, testified on behalf of Mr. Arnold.
He identified himself as a neuroradiologist who explained why he believed that certain structural
issues in Mr. Brown’s neck preexisted the accident based upon a film-only review. He offered no
opinion, however, regarding whether the condition caused pain, suffering, or limitations at any
point, before or after the accident. To the contrary, he told the jury that was outside the scope of
his expertise.
12
Finally, no trial evidence, neither substantive nor through impeachment, created “the
kind of credibility problems that plague” plaintiffs in other cases.41 Unfortunately,
the jury simply “ignore[d] the facts that [were] uncontroverted and against which no
inference lies.”42
In summary, the Court must remain, as always, extremely deferential to a
jury’s verdict. Notwithstanding that deference, and notwithstanding the absence of
any relevant objective findings, there was no basis in the evidence to support the
jury’s decision in this case. For that reason, and for the reasons discussed above
regarding the law of the case and the parties’ trial presentations, Mr. Brown is
entitled to a new trial. In granting this new trial motion, the Court presents no
opinion regarding the amount necessary to compensate the plaintiff appropriately.
That is, and will remain, a jury question after retrial.

C. Mr. Arnold is not entitled to costs because there will be a new trial.
As a final matter, the Court denies Mr. Arnold’s motion for costs pursuant to
Superior Court Rule 54. Mr. Arnold is not the prevailing party and unless there is
an amendment to the pretrial order and different evidence surfaces during the second
trial, Rule 54 cost recovery will remain unavailable. In other words, an award of
damages, in any amount, will make Mr. Brown the prevailing party for purposes of
Rule 54.
The portion of Mr. Arnold’s motion for costs filed under Superior Court Civil
Rule 68 raises a different question but must also be denied because a new trial is

41
See Amalfitano, 794 A.2d at 578 (explaining that in Gier v. Kananen, 1993 WL 227390 (Del.
June 7, 1993), the Delaware Supreme Court properly denied a new trial motion where a jury
awarded a zero-dollar verdict because the uncontradicted expert medical opinion relied solely on
the subjective complaints of a plaintiff who exhibited exceptional and fraudulent behavior that
affected her credibility)
42
See Maier, 697 A.2d at 749 (recognizing that to decline to grant a new trial under these
circumstances would be an abuse of a trial court’s discretion).
13
necessary. Resolution of that motion, if it later becomes appropriate, will turn on a
comparison of the amount of the final award to Mr. Arnold’s offer of judgment.
Accordingly, Mr. Arnold’s motion for costs based on Rule 68 is denied without
prejudice.

V. CONCLUSION
In summary, the law of the case, the parties’ conduct which conformed the
pleadings to the evidence, and the great weight of the evidence, all made a zero-
dollar verdict unsustainable. As a result, Plaintiff James Brown’s motion for a new
trial must be GRANTED. It follows that Defendant David Arnold’s motion for
costs must be DENIED, without prejudice.
IT IS SO ORDERED.
/s/ Jeffrey J Clark
Resident Judge

JJC:klc
Via File & Serve Express

14

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9352144. Public record. Not legal advice.