Motion Opposing Remittitur in a Broken Hand Case Where Jury Award $377,000

IN THE CIRCUIT COURT FOR BALTIMORE CITY, MARYLAND

SHARON E. WOULLARD
- Plaintiff,

ASPEN PARK HOMEOWNERS
ASSOCIATION, INC.
- Defendant,

CASE NO.: 02-C-03-094557 NG

Plaintiff’s Response to Defendant’s Motion for Remittitur, or, in the Alternative, Motion for New Trial

Plaintiff, Sharon Woullard, by and through her attorneys, Laura G. Zois, and Miller & Zois, LLC and responds to the Defendant’s Motion for Remittitur or in the alternative, Motion for New Trial and states as follows:

  1. STANDARD OF REVIEW
  2. Plaintiff agrees that standard to be applied by the trial judge in considering a motion for remittitur or for a new trial is whether the verdict is grossly excessive, shocks the conscience of the court, is inordinate, or excessive. Bangura v. Taylor, 312 Md. 609, 624 (1988). Courts are especially generally reluctant to disturb jury verdicts, particularly where the damages are incapable of accurate measurement. Monongahela R. Co. v. Black, 235 F.2d 406 (4th Cir. 1956).See also McCleskey v. Kemp, 481 U.S. 279 (1987) (The core of the jury function is to make "the difficult and uniquely human judgments that defy codification and that 'build discretion, equity and flexibility into a legal system.'"); O'Neill v. Krzeminski, 839 F.2d 9, 14 (2d Cir. 1988) (acknowledging importance of deferential treatment of jury's assessment of damages); Dunbrock v. Interstate Motor Freight Sys. 143 F.2d 304, 308 (3d Cir. 1944) ("Courts in general are reluctant to disturb a jury's verdict on the ground of excessiveness where the damages are unliquidated and there is no fixed measure of mathematical certainty. . . . This is particularly significant with respect to damages in tort actions for personal injuries."); Zarek v. Fredricks, 138 F.2d 689,691 (3rd Cir 1943); ("It must be borne in mind that the injuries were non-pecuniary in their nature and to measure them by a yardstick of dollars is a difficult task at best. That is the jury's function."); Dabney v. Montgomery Ward & Co, Inc., 761 F.2d 494, 501 (8th Cir) ("An appellate court should be extremely hesitant to overturn a verdict which includes damages for pain and suffering.").

    Notwithstanding the deference the trial court should give to the jury in determining non-economic damages, Plaintiff also agrees that this Court has wide discretion in adding to or subtracting from a jury’s award. The question presented here is whether this Court should.

  3. ARGUMENT
  4. Interestingly, in the cases cited by the Defendant, the only one involved a case that the trial court found to be excessive. Conklin v. Schilling, 255 Md. 50 (1992). At the outset, it is important to underscore that the Court of Appeals did not agree that remittitur was appropriate, only that the decision was within the trial court’s discretion. But even assuming, arguendo, the correctness of the trial court’s ruling in that case, the facts of that case are clearly distinguishable because the trial court apparently keyed on the fact that the jury’s verdict was founded on passion and that Plaintiff’s injuries were not permanent. In the instant case, neither of these critical factors were present.

    1. The Utter Absence Of Passion
    2. No one who attended this trial would suggest that this jury’s verdict was founded on passion. There was no tears from jurors or dramatic moments the unduly engendered sympathy for the Plaintiff. In fact, she may have downplayed her injuries a bit which probably inured the respect of the jury. Similarly, there was no passion engendered against the Defendant, a homeowner’s association - an unlikely target for passion. In fact, Plaintiff’s counsel in closing referred to Defendant’s only representative at trial as someone she would “like to get a beer with.” The tone and tenor of this case belied the passion that was apparently the critical factor in Conklin.

    3. Uncontroverted Testimony that Plaintiff Suffered a Permanent Injury
    4. The Plaintiff sustained a severe fracture to her left wrist which is a permanent injury. She is particularly affected by this permanent injury 36 hours a week while she is involved in her job as neonatal intensive care unit (NICU) nurse at St. Agnes Hospital. Her job requires dexterity, delicate, and precise movements. She is also a very active women who often suffers from her left wrist injuries with not only her daily activities, but with her chosen recreation activities, such as working out and bike riding. The jury apparently placed value on the fact that Plaintiff has a permanent injury that will cause personal and professional hardship.

    5. The Injection of “Times Specials” Math is of No Value
    6. Defendant asks this Court to ignore all of this and focus on “times specials” math. Defendant does, however, concede the obvious: there is no correlation between the amount of medical bills and an appropriate non-economic damages award. Yet Defendant ignores that logic and repeats the “53 times medicals” mantra in its motion, asking this Court to consider the medical bills as a yard stick on pain and suffering. But there is absolutely no correlation between medical bills and permanency. This jury did not fail to use the proper multiplier of medical bills. Instead, the jury decided based on the evidence that Plaintiff suffer a permanent injury and awarded compensation consistent with that finding.

    7. The Jury Considered the Defendant’s Evidence and Argument
    8. The Defendant’s last effort is to point out the weaknesses in Plaintiff’s case. As any good defense lawyer would, Defendant has pulled out his best cross examination points and regurgitated them into its motion. The jury considered these points, made mostly through argument on cross-examination and in closing and rejected them. Apparently, instead chose Plaintiff’s version of the case: that Plaintiff suffered a painful injury that she and will have a permanent impact on the rest of her life and compensated her in a fashion consistent with that finding.

    9. Summary
    10. Plaintiff does not deny the outcome was favorable to her. In any snow slip-and-fall, the possibility exists that the jury will reject a plaintiff’s liability claim. Further, the award itself was favorable to Plaintiff, particularly in a jurisdiction like Anne Arundel County where juries tend to give extremely conservative and unfavorable awards on a regular basis. But Plaintiff receiving an award that is higher than one might predict for an Anne Arundel County jury - but perhaps one would for a Prince George’s County or Baltimore City jury - is not a sound basis for remittitur. A passionless, educated Anne Arundel County jury made a reasonable award for Plaintiff’s pain and suffering based on the evidence the jury heard. Accordingly, this Court should decline to use its discretion to overturn the jury’s finding.

  5. ASSUMPTION OF THE RISK JURY INSTRUCTION
  6. The jury instruction given by the court on the issue of assumption of the risk was a proper instruction and was an accurate statement of the law in Maryland. Defendant’s Motion (p. 6) stated that the Court quoted from Roundtree v Lerner Dev. Co, 52 Md. App. 281 (1982). The Roundtree case is one that is cited within the Maryland Pattern Jury Instructions which comments on the voluntariness aspect of the assumption of the risk instruction with regards to people going in and out of their own homes. The Court did not quote from the case directly, and gave an extremely watered down version of what the case actual held. The holding in the case was:

    Even where the Plaintiff does not protest, the risk is not assumed where the conduct of the defendant has left him no reasonable alternative. Where the defendant puts him to a choice of evils, there is a species of duress, which destroys all idea of freedom of election....and a tenant does not assume the risk of the landlord’s negligence in maintaining a common passageway when it is the only exit to the street. In general, the plaintiff is not required to surrender a valuable legal right, such as the use of his own property as he sees fit, merely because the defendant’s conduct has threatened him with harm if the right is exercised.....by placing him in the dilemma, the defendant has deprived him of his freedom of choice, and so cannot be heard to say that he has voluntarily assumed the risk.

    Id. at 285-286.

    The Court’s instruction was a diluted statement of the law to great benefit to the Defendant’s version of the case. The Court’s instruction to the jury was, if you find that there was only one way in and one way out, you may consider that as to whether or not the Plaintiff’s actions were voluntary. Defense counsel addressed the issue of whether or not the Plaintiff had any other means of egress into her home and suggested to the jury that there was only 8 inches of snow in the grassy area in front of her house and she should have walked on that instead of the sidewalk. Defendant had the burden of proof on the affirmative defense and argued there was an alternative route. The Court did not rule as a matter of law there was only one route, the court merely gave an accurate statement of the law which was if you find there was only way route you may consider that in your evaluation of the voluntariness of the Plaintiff.

    Counsel had the opportunity to argue that there was a reasonable safe alternative route, this was a question of fact to be determined by the jury. Obviously the jury either found that the Defendant did not meet its burden, or that there was no reasonable alternative route, or that the Plaintiff’s actions were not voluntary.

    The Court’s instruction was consistent with Maryland Law and therefore, a new trial should not be granted.

    WHEREFORE, the Plaintiff, Sharon Woullard, requests that the Court deny the Defendant’s Motions for Remittitur or New Trial, based on the aforementioned reasons.

Respectfully submitted,
MILLER & ZOIS, LLC

LAURA G. ZOIS
1 South St, #2450
Baltimore, MD 21202
(410)779-4600
Attorney for the Plaintiff

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing was mailed via U.S. Mail, first-class, postage prepaid, this 29th day of April, 2005, to:

Matthew P. Woods, Esq.
H. Barritt Peterson, Jr., & Associates (State Farm)
One W. Pennsylvania Avenue, Suite 500
Towson, Maryland 21204-5025

IN THE CIRCUIT COURT FOR BALTIMORE CITY, MARYLAND

SHARON E. WOULLARD
- Plaintiff,

ASPEN PARK HOMEOWNERS
ASSOCIATION, INC.
- Defendant,

CASE NO.: 02-C-03-094557 NG

ORDER

Having fully read and considered the Defendant's Motion for Remittitur or in the Alternative, Motion for New Trial, and the Plaintiffs Response to said motion,

it is on this day of , 2005, by the Circuit Court for Anne Arundel County, Maryland, hereby

ORDERED, that the Defendant’s Motion for Remittitur is DENIED, and
ORDERED, that the Defendant’s Motion for New Trial is DENIED.

JUDGE

Copies to:

Laura G. Zois
Matthew P. Woods

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