Motion for New Trial: Decicco v. Fluck 1

Kopec Law Firm

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 this part 1, I discuss the motion for new trial issue. Rule 2-533.

Circuit Court Facts

The defendant’s SUV struck a car in which the plaintiff was a passenger. As a result, the collision force caused the airbags in the plaintiff’s car to deploy, the window glass shatter, and the vehicle to spin around (Op. at 2). Afterward, the plaintiff was mumbling and incoherent and was taken by ambulance to the hospital complaining of headache and neck pain. (Id. at 3).

Car accident. Motion for new trial.
Car Accident – Motion for New Trial

The plaintiff was then diagnosed and received treatment for a concussion and fractured ribs. Following that, she continued to have headaches, dizziness, nausea, fatigue, sensitivity to noise and light, and difficulty concentrating. Medical providers treated the plaintiff for nine months, including speech therapy. (Id).

The circuit court entered summary judgment for the plaintiff on liability, and thereafter the jury considered damages. After a three-day trial, the jury awarded the plaintiff $32,000 in noneconomic damages and zero in future medical expenses. (Id. at 1). The plaintiff then filed a motion for new trial, arguing the verdict was against the weight of the evidence. The circuit court granted the motion. The plaintiff did not testify at the second trial and withdrew the claim for future medical bills. The jury returned a verdict for the plaintiff of $1,042,000 in noneconomic damages. (Id. at 1, 13). 

Appellate Court on the Motion for New Trial

The Appellate Court recounted details of the testimony from the first trial. A witness described the plaintiff as having trouble with memory and word retrieval and was less patient since the accident. (Id. at 3). The plaintiff could only return to work half-time and had to sleep when she got home. (Id. at 4). A neurologist also testified that MRIs. of the plaintiff’s brain reflected atrophy that follows a concussion. He testified that it would begin to affect her activities of daily living and ultimately require assisted living. (Id. at 4-6). The plaintiff was 64. (Id. at 6).

The defense’s neurologist found that the plaintiff scored normal on mental and cognitive tests and believed that the brain atrophy was caused by unrelated factors, noting that a CT scan after the accident was normal. (Id. at 7-8).

After the jury awarded the plaintiff $32,000, the plaintiff filed a motion for a new trial, arguing that the verdict was against the great weight of the evidence. The defense opposed it, arguing that the evidence revealed contested issues for the jury. The circuit court granted the motion (Id. at 11).

The defendant then appealed, arguing that the circuit court erred in granting the motion for a new trial. The Appellate Court observed that the circuit court was permitted to assign weight to evidence in exercising its discretion to grant or deny a motion for a new trial. (Id. at 22). The first circuit court specifically had a unique opportunity to hear the evidence and conclude that the verdict did not serve justice. Consequently, the Appellate Court declined to substitute its judgment for the trial court’s. (Id. at 23).

Commentary on the Motion for New Trial

It is hard to evaluate the circuit court’s decision because, like the Appellate Court, I was not there to view the testimony. However, the significantly higher second verdict is more in line with the circuit court’s reasoning and supports the fact that the first verdict could have been against the great weight of the evidence.

The plaintiff’s counsel also changed strategies for the second trial. He did not call the plaintiff to testify or make a claim for future medical expenses. It is rare for a plaintiff not to testify. The jury expects to hear from the one making a claim. However, a lawyer may make that decision if, on balance, it is better for the case if the plaintiff does not testify. Translation: the plaintiff was a bad witness.

The granting of a motion for new trial because the verdict went against the great weight of evidence is a rare event, and it is quite a disappointment to the party that convinced the jury of its case. The opinion in this case is a reminder of this powerful tool that trial judges have and the deference that the appellate courts give them when they use it.

The plaintiff lawyer’s strategy change for the second trial worked beautifully. However, before congratulating the plaintiff on the second verdict, read part 2 of this Blog post.

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.

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