Curtis v. Blake

392 S.C. 494

709 S.E.2d 79

William D. CURTIS, Respondent,

v.Sandra Morris BLAKE, as Personal Representative of the Estate of Brandon T. Blake, Appellant.

No. 4792.

Court of Appeals of South Carolina.

Heard Sept. 15, 2010.Decided Feb. 16, 2011.Rehearing Denied April 22, 2011.

Thomas J. Keaveny, II, and Amy Rothschild, both of Charleston, for Appellant.C. Bradley Hutto, of Orangeburg; Mark A. Tinsley, of Allendale; and Robert Norris Hill, of Newberry, for Respondent.THOMAS, J.

In this personal injury action, Sandra Morris Blake, as personal representative of the estate of Brandon T. Blake, appeals the amount of damages awarded to William D. Curtis.¹ We affirm.

FACTS AND PROCEDURAL HISTORY

On March 25, 2003, a pickup truck driven by Brandon Blake struck an empty log trailer that was being pulled by a tractor-trailer operated by Curtis. Blake had disregarded a stop sign and entered the intersection where the collision occurred. After the impact, Curtis maneuvered his vehicle to the side of the road.

Curtis did not request medical attention either at the accident scene or any time later that day, stating he only felt nervous and anxious. Although his neck and back were hurting and he felt stiff the morning after the accident, he still declined to seek treatment. He took Tylenol for his pain and continued to work as a truck driver. It was not until one month after the accident, and only at his wife's insistence, that Curtis went to a hospital emergency room for treatment.

The emergency room physician gave Curtis prescriptions for Ibuprofen and a muscle relaxer and then discharged him. Curtis did not take the prescribed medications because he was advised they could make him sleepy, which would interfere with his employment as a truck driver. Instead, he continued to take Tylenol for his pain.

A few weeks after visiting the emergency room, Curtis consulted Dr. Campbell, a chiropractor. Dr. Campbell diagnosed Curtis with a lumbosacral sprain and cervical sprain with disk involvement. He treated Curtis with physical therapy involving electrical stimulation, heat, and chiropractic manipulation adjustments. On May 14, 2003, after four treatments, Dr. Campbell released Curtis.

On November 19, 2003, about six months after his discharge from Dr. Campbell, Curtis saw Dr. Nivens, a physician specializing in spinal medicine, seeking treatment for neck and low back pain. Dr. Nivens' evaluation showed Curtis had pain in his neck, tenderness in the musculature of his neck and shoulder girdle, and tenderness or pain in his lumbar spine. A subsequent MRI showed Curtis exhibited three levels of disk protrusion in the cervical spine (i.e. the neck). Dr. Nivens prescribed Naprosyn, an anti-inflammatory medicine, and a steroid treatment, which Curtis admitted helped with the pain he was experiencing.

Dr. Nivens released Curtis in January 2004, after Curtis indicated the pain had essentially gone away. Curtis was to consult Dr. Nivens only on an “as needed basis.” In April 2005, after Curtis had filed this action, Dr. Nivens saw him again. During that visit, Curtis indicated he was still having pain, for which Dr. Nivens suggested a nonprescription pain reliever. Dr. Nivens then gave Curtis a “spur-of-the-moment” impairment rating of “somewhere around 10 percent for the neck and low back, the whole body essentially.”

On February 17, 2004, Curtis sued Blake seeking actual and punitive damages for Blake's alleged negligence in causing the collision. Initially, Blake denied the allegations of negligence and asserted several affirmative defenses, including failure to mitigate damages and sudden emergency.

The parties pursued discovery, and the matter came for a jury trial on October 31, 2005. After the jury was seated but before the testimony began, the trial judge announced Blake admitted he was negligent and his negligence caused the accident. The jury therefore had to determine only whether Curtis sustained injuries or losses that were proximately caused by the accident and his monetary damages.

Presentation of the evidence began at 1:50 p.m. Curtis presented (1) the deposition testimony of Dr. Campbell, which was read by counsel; (2) the video deposition of Dr. Nivens; (3) live testimony from Michele Curtis, Curtis's wife; and (4) Curtis's own testimony. Blake did not introduce any evidence.

The jury began deliberating at 5:15 p.m. Around 5:40 p.m., the jury returned to the courtroom with a verdict. After the trial judge allowed publication of the verdict, the clerk announced that the jury awarded Curtis actual damages of $450,000.00. At the request of Blake's attorney, the clerk polled the jurors, all of whom confirmed the verdict. Blake unsuccessfully moved for a new trial absolute, a new trial based on the thirteenth juror doctrine, or in the alternative, a new trial nisi remittitur and then filed this appeal. ²

ISSUES

I. Was Blake entitled to a new trial absolute or a new trial nisi remittitur because (1) the verdict amount was roughly one hundred times Curtis's proven actual damages or (2) the verdict resulted from passion, prejudice, bias, or other consideration not based on the evidence?

II. Did the trial judge improperly permit Curtis's wife to testify when she was disclosed as a witness only one week before trial?

III. Was Blake entitled to a new trial because of the brevity of the jury's deliberation?

IV. Should the trial judge have granted a new trial pursuant to the thirteenth juror doctrine?

STANDARD OF REVIEW

“A motion for a new trial nisi remittitur asks the trial court to reduce the verdict because the verdict is merely excessive.” James v. Horace Mann Ins. Co., 371 S.C. 187, 193, 638 S.E.2d 667, 670 (2006). “The denial of a motion for a new trial nisi is within the trial court's discretion and will not be reversed on appeal absent an abuse of discretion.” Id. “If the amount of the verdict is grossly inadequate or excessive so as to be the result of passion, caprice, prejudice, or some other influence outside the evidence, the trial court must grant a new trial absolute.” Id. See also Sanders v. Prince, 304 S.C. 236, 238, 403 S.E.2d 640, 642 (1991) (“When a verdict is ‘grossly excessive and the amount awarded is so shockingly disproportionate to the injuries as to indicate that the jury acted out of passion, caprice, prejudice, or other consideration not founded on the evidence, it becomes the duty of this Court, as well as the trial court, to set aside the verdict.’ ”) (quoting Small v. Springs Indus., 292 S.C. 481, 487, 357 S.E.2d 452, 455 (1987)).

“ ‘[T]he exclusion of a witness whose name is not given in answer to an interrogatory calling for it is but one of the discretionary powers committed to a trial judge for the proper conduct of litigation.’ ” Laney v. Hefley, 262 S.C. 54, 59, 202 S.E.2d 12, 14 (1974) (quoting Wright v. Royse, 43 Ill.App.2d 267, 193 N.E.2d 340, 350 (1963)).

“A trial judge's order granting or denying a new trial upon the facts will not be disturbed unless his decision is wholly unsupported by the evidence, or the conclusion was controlled by an error of law.” Folkens v. Hunt, 300 S.C. 251, 254–55, 387 S.E.2d 265, 267 (1990). “[T]o reverse the denial of a new trial motion under [the thirteenth juror doctrine,] we must, in essence, conclude that the moving party was entitled to a directed verdict at trial.” Parker v. Evening Post Publ'g Co., 317 S.C. 236, 247, 452 S.E.2d 640, 646 (Ct.App.1994).

LAW/ANALYSIS

I. New trial absolute and new trial nisi remittitur

Blake advances numerous reasons to support his argument that he was entitled to a new trial absolute or a new trial nisi remittitur because the evidence presented at trial did not support the amount of damages the jury awarded Curtis. These reasons include (1) Curtis's total medical expenses were only $4,530.98, of which $2,830.00 involved the MRI and its interpretation; (2) Curtis lost only $2,615.76 in wages as a result of the accident; (3) Curtis did not receive medical treatment at the scene of the accident and delayed treatment until more than one month after the accident; (4) Curtis was still able to work after the accident; (5) Curtis did not take his prescribed medications; and (6) Curtis's treating doctors believed he had recovered from his pain. Blake also points out the award of $450,000.00 is almost one hundred times the cost of Curtis's medical treatment and his lost wages.

In view of all the evidence presented, however, we hold the circumstances cited by Blake do not constitute “compelling reasons” that would warrant the grant of a new trial nisi remittitur. See Proctor v. Dep't of Health & Envtl. Control, 368 S.C. 279, 320, 628 S.E.2d 496, 518 (Ct.App.2006) (stating “compelling reasons must be given to justify invading the jury's province by granting a new trial nisi remittitur ” and noting “[t]he consideration for a motion for a new trial nisi remittitur requires the trial judge to consider the adequacy of the verdict in light of the evidence presented”).

Blake's arguments appear to disregard Curtis's explanation for his behavior after the accident and his evidence of nonmonetary damages in addition to lost wages and medical bills. Dr. Campbell diagnosed Curtis with a lumbosacral sprain and cervical sprain with disc involvement. The MRI showed three separate disc protrusions in Curtis's cervical spine and a fourth disc protrusion in his lower back. According to Dr. Nivens, the disc protrusions were permanent injuries directly related to the accident. Dr. Nivens also stated Curtis showed signs of degenerative disk disease that were most likely associated with the disk protrusions rather than age, given that Curtis was only thirty-one years old at the time of the accident.

Curtis told Dr. Campbell he was no longer in pain, but explained at trial that the chiropractic treatments were not helping him and he was concerned about the expense. Similarly, Curtis ended his treatment with Dr. Nivens even...