of Appeals' decision is determinative on these points.
Defendant attempts to distinguish this trial from the first trial in asserting that defendant has now taken the stand to fully explain his care and treatment of plaintiff and that defendant is supported by a number of expert witnesses that he used proper care.
Defendant vigorously asserts that his testimony fully explains away the contention of plaintiff and is so overwhelmingly on his side as to have required a directed verdict. True, defendant sharply contradicted plaintiff's version on many substantial items of testimony. But to assert that because defendant, in the second trial, contradicted plaintiff's testimony, a directed verdict was again required, is to say that the Court should encroach upon the jury's prerogative in deciding controverted issues of fact. It is true also, that at the second trial several doctors were produced by defendant as expert witnesses who testified that defendant used the required standard of care of an orthopedic surgeon in this community. It must be remembered, however, that in the hypothetical questions propounded to these experts the facts were assumed as defendant claimed them to be. The Court charged the jury that they should give consideration to these opinions but that the probative force to be given to them was for the jury to determine. The jury was also instructed that if the evidence did not sustain the assumed facts in the hypothetical questions, then they were to give no credence to them.
The presentation of defendant's case created a sharp disagreement in the testimony on factual questions. Implicit in the jury's verdict is a determination for plaintiff on these disputed questions of fact. Implicit in the jury's verdict, also, is a finding that the facts assumed in the hypothetical questions asked the experts in behalf of defendant did not correctly state the facts as they actually are.
The jury simply chose to believe plaintiff. This was the jury's province.
Defendant further argues that a new trial should be ordered because the jury was prejudiced by improper remarks made by plaintiff's counsel. Defendant complains of a comment by plaintiff's counsel in his closing argument that plaintiff's doctors improperly discussed the case before the trial with defendant's counsel without permission of plaintiff. Of course plaintiff waived the physician-patient privilege as to her doctors' testifying against her by her own testimony as to conversations with these doctors. But the point that plaintiff's attorney was apparently attempting to make was that the probative effect of these doctors' testimony should be considered in the light of these previous conversations with defendant's counsel. I feel that this was a legitimate argument to be made in connection with the credibility to be attached their testimony. Further, defendant's counsel made no objection when the comment was made nor did he request an instruction advising the jury to disregard the comment. But the Court, without request from defendant's counsel, requested plaintiff's counsel at the bench to refrain from discussing the issue of relationship between physician and patient during his rebuttal, with which request he complied. Even assuming that the remark objected to was beyond the pale of proper argument, the Court cannot see how defendant was prejudiced by the remark. This case was carefully, ably and vigorously tried by competent counsel on both sides. The Court was impressed by the fact that counsel for both parties confined themselves to presentation of the facts in behalf of their clients -- within the proprieties of the rules of evidence.
Lastly, defendant urges that in any event, the verdict is excessive and there should be a remittitur.
Plaintiff suffered severe pain for an extended period of time and will continue to suffer pain in the future. She now has a permanently deformed wrist and arm; she is unable to make a fist. She was in the hospital for the period of August 9, 1947 to September 1, 1947, for a series of manipulations, given under anesthetic. She has been in the hospital several other times for an operation and treatment attempting to improve movement in her forearm and hand. She has wears one when at home. She will have to undergo another operation which should help to some extent but will not completely remedy her condition. The special damages are approximately $ 4,000.
Plaintiff is a woman now fifty-five years of age who before the accident enjoyed an active and useful life. She drove an automobile, played the piano, played golf and did sewing. Her disability will prevent her from participating in any of these activities in the future.
The verdict, of course, is substantial, but in light of all of the evidence considered most favorably to plaintiff, as the Court is required to do, and considering the present value of the dollar, the Court feels it would be invading the jury's province to reduce the verdict.
For the reasons herein expressed, defendant's motion in its entirety will be denied.
© 1992-2004 VersusLaw Inc.