Jury Note: Decicco v. Fluck 2
This Maryland Medical Malpractice Lawyer Blog regularly discusses new Maryland cases in other personal injury areas that involve issues that can also arise in medical malpractice cases. The Appellate Court of Maryland issued an unreported opinion in a car accident case in Decicco v. Fluck on January 10, 2024. In part 1 of this Blog series, I discussed the circuit court granting the plaintiff’s motion for new trial after the first trial. In this part 2, I discuss the circuit court’s response to a jury note. That response then led the Appellate Court to reverse the judgment for the plaintiff in the second trial.
Circuit Court Answered a Jury Note
Here, I will summarize the facts again. The defendant’s SUV struck a car in which the plaintiff was a passenger. The collision force caused the plaintiff’s car’s airbags to deploy, and the window glass to shatter. As a result, the vehicle spun around. (Op. at 2).
The plaintiff was diagnosed and received treatment for a concussion and fractured ribs. She then continued to have headaches, dizziness, nausea, fatigue, sensitivity to noise and light, and difficulty concentrating. Medical providers specifically treated the plaintiff for nine months, including speech therapy. (Id).
After a three-day trial on damages only, the jury awarded the plaintiff $32,000 in non-economic damages and zero in future medical expenses (Id. at 1). The circuit court then granted the plaintiff’s motion for a new trial, finding the verdict against the great weight of the evidence.
The plaintiff did not testify at the second trial and withdrew the claim for future medical bills. There was a jury note, and then the jury returned a verdict for the plaintiff of $1,042,000 in non-economic damages. (Id. at 1, 13).
Second Trial Facts
In the second trial, the plaintiff’s neurologist opined that the plaintiff would need assisted living care in 5-7 years. However, unlike the first trial, he did not testify concerning the cost of that care. The plaintiff did not submit a claim for future medical expenses to the jury. (Id. at 23).
The circuit court instructed the jury to itemize the verdict for non-economic damages in the past and for the future (Id. at 23-24). During deliberations, the jury submitted a note: “What does it mean to itemize the verdict? Break down the money amounts? Pain suffering? Assisted Living?” (Id. at 24).
The defense asked the court to specify that the plaintiff was not seeking future medical expenses. The plaintiff argued that the instructions and argument had clearly stated that only pain and suffering were at issue (Id. at 25).
The circuit court wrote to the jury, stating: “Your verdict need only to provide an answer to the first question and, if necessary, a figure for non-economic damages, based on the evidence at trial.” The defense counsel did not object at this time, and both counsels signed the note. Twenty minutes later, the jury awarded the plaintiff $1.04 million in non-economic damages (Id. at 25-26).
Appellate Court
On appeal, the plaintiff argued that the defense had waived this issue by not objecting to the court’s determination not to further instruct the jury on damages. The Appellate Court rejected this argument, finding that the defense had made its position known. Signing off administratively on the response was not a waiver (Id. at 26).
The Appellate Court then ruled that the circuit court abused its discretion by failing to “answer fully” the jury’s question and that the error prejudiced the defendant. (Id. at 27). The jury asked whether they should itemize damages for assisted living. The Appellate Court wrote:
“It is plain from this question that the jury was speculating on the cost of assisted living, and the court had an obligation to instruct them, as requested by defense counsel, that future medical expenses were not before them for consideration. The failure to do so introduced the possibility that the verdict was infected with improper considerations of damages that [the plaintiff] did not seek.” (emphasis added). (Id.).
Commentary on the Response to Jury Note
This issue is a close one that could have gone either way. The circuit court’s response to the jury’s note specifically told them that they need only provide a figure for non-economic damages. A reasonable person reading this note should understand that the only damage category for consideration was non-economic damages. Correspondingly, that would mean that anything else, including assisted living, would not be considered.
However, the Appellate Court found that the circuit court had not answered the note “fully.” That would have required some reference to not considering assisted living damages.
I believe the Appellate Court’s ruling is fair. The court’s goal in answering a jury question should be to clearly and fully resolve their uncertainty. Here, including a directive not to consider assisted living damages would have been easy and clear. Since the jury had specifically asked about that category, such a response would have directly answered what the jury raised and left nothing unaddressed.
Lawyer’s Strategy
Why did the plaintiff’s counsel oppose the defense’s complete response? We don’t know. Sometimes, counsel will automatically oppose what the other side wants based on the theory that it must be negative for me if they want it.
Additionally, the plaintiff may have thought that they may benefit from any uncertainty, and maybe the jury would award damages for assisted living without naming it that. That would be a dangerous strategy, as demonstrated by this undesired outcome for the plaintiff. It is also important to remember that a trial lawyer must decide in this circumstance instantly, without the benefit of any time to research or consider all of the options and ramifications.
The plaintiff lost the excellent verdict she received. The verdict exceeded the Maryland cap on non-economic damages. As a result, the jury’s decision in the second trial had been the best possible outcome for her.
Now, the plaintiff will incur the additional time and cost of re-doing the trial for the third time. If the plaintiff can replicate the second verdict, then the harm from the extra time and cost will not be too bad. However, if the verdict is substantially less, there will undoubtedly be regret over having opposed the complete instruction the defense had proposed to the jury note.
Mark Kopec is a top-rated medical malpractice lawyer. The Kopec Law Firm is located in Baltimore and helps clients throughout Maryland and Washington, D.C. You can contact him at 800-604-0704 for a free consultation. Thank you for reading the Maryland Medical Malpractice Lawyer Blog.