The opinion of the court was delivered by: YOUNGDAHL
YOUNGDAHL, Senior District Judge.
These consolidated personal injury actions were tried before a jury which awarded infant plaintiff Jerome Harrington $500 and plaintiff Margaret Nelson $1500. Now both plaintiffs move for a new trial as to damages only or, in the alternative, as to all issues in the case.
An accompanying request for an oral hearing is hereby denied.
Infant plaintiff Harrington suffered a fracture of the left knee; plaintiff Nelson suffered a comminuted fracture of the left humerus just below the shoulder, contusions and sprain of the right hip and leg, contusions of the left hip and thigh, contusions of the left side of the face, and scratches above the nose.
Plaintiffs based their new trial demands on two grounds: (1) the Court erred in instructing the jury that there was insufficient evidence to support a finding of permanent injury to the infant plaintiff; and (2) the damages awarded each plaintiff were grossly inadequate.
Among other things, the jury was instructed that there was insufficient evidence of permanent injury to the infant plaintiff and that it should not consider that issue in its deliberations.
The claim of permanent injury was based on an alleged epiphyceal fracture of infant plaintiff's left knee, i.e., a fracture involving the growth centers of the leg. The only testimony on this issue came from three expert medical witnesses - two called by plaintiff and one by defendant. It should be noted that the infant plaintiff never took the stand and that there was no testimony presented - either by his mother, his grandmother, or expert medical witnesses - that he had undergone any pain and suffering, that he was presently undergoing pain and suffering, or that he would in the future undergo such pain and suffering.
Plaintiff's two doctors testified that the fracture involved the epiphysis; defendants' doctor disputed this. Assuming arguendo that there was an epiphyceal fracture, this Court was required to determine whether the jury should be allowed to judge whether such an injury will lead to a permanent disability.
One of plaintiff's doctors testified that a small percentage of patients with epiphyceal fractures "develop some growth abnormalities. However, when last seen, which was two years following his initial injury, he had no significant growth abnormality, so it's difficult to state at this time whether he will get one."
On redirect examination, the same witness stated, "He has approximately six more years to grow and I just can't predict what will happen in those six years. There is a possibility that he could have some overgrowth but since he hadn't had it up until now it seems a good possibility he wouldn't have."
Plaintiff's other witness, speaking in general terms, noted that an epiphyceal fracture " could " affect growth patterns. This witness treated infant plaintiff only on his original visit to Casualty Hospital's emergency room immediately following the accident.
As indicated supra, defendants' medical witness testified that in his opinion the epiphysis was not involved and, in any event, was of the opinion that there would be no future growth problems and that infant plaintiff ...