IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
JOHN PAUL JONES and
:
SUE ELLEN JONES, as Guardians
:
Ad Litem for JEFFREY ALLEN JONES, :
a disabled person,
:
:
Plaintiffs,
:
:
v.
:
:
DELAWARE COMMUNITY
:
CORPORATION FOR INDIVIDUAL
:
DIGNITY and
:
LEONARD E. CONYERS,
:
:
Defendants.
:
C.A. No. 00C-06-075 CLS
Submitted: January 9, 2004
Decided:
April 29, 2004
On Defendants’ Motion for Judgment Notwithstanding the Verdict,
or in the alternative, for a New Trial.
DENIED.
MEMORANDUM OPINION
Michael D. Bednash, Esquire, and Morton Richard Kimmel, Esquire, Kimmel
Carter Roman & Peltz, P.A., Wilmington, Delaware, Attorneys for Plaintiff.
Kevin J. Connors, Esquire, Marshall Dennehey Warner Coleman & Goggin,
Wilmington, Delaware, Attorney for Defendant Delaware Community Corporation
for Individual Dignity.
SCOTT, J.
I.
INTRODUCTION
Defendant Delaware Community Corporation for Individual Dignity
(“DELCCID”) has filed a Motion for Judgment Notwithstanding the Verdict
pursuant to Superior Court Civil Rule 50 or, in the alternative, a Motion for a New
Trial pursuant to Rule 59. Upon consideration of the evidence presented at trial
and a review of DELCCID’s motions and Plaintiffs’ response, this court concludes
DELCCID’s motions should be DENIED.
II.
BACKGROUND
This case arises from Plaintiffs’ claims against Defendant DELCCID for
negligent and reckless supervision and negligent and reckless failure to stop
Defendant Leonard E. Conyers’ (“Conyers”) unlawful sexual assaults against
Jeffrey Allen Jones (“Jones”) which occurred in 1998 and 1999. Plaintiffs
obtained a default judgment against Conyers, making the only issue against
Conyers at trial the amount of damages to be awarded. A jury trial was held from
November 10 through 20, 2003. The jury returned its verdict in favor of Plaintiffs,
awarding $150,000 in compensatory damages and $1.44 million in punitive
damages. The jury determined that Conyers was 60% negligent and DELCCID
was 40% negligent in causing to Jones. The jury determined that Conyers was
10% reckless and DELCCID was 90% reckless in awarding punitive damages.
2
DELCCID filed a Motion for Judgment Notwithstanding the Verdict under
Superior Court Civil Rule 50 or, in the alternative, a Motion for a New Trial under
Rule 59 on December 8, 2003. Plaintiffs filed a response on December 19, 2003.
III.
STANDARD OF REVIEW
The court does not weigh the evidence in deciding a Motion for Judgment,
but rather, views the evidence in a light most favorable to the non-moving party.1
The court, drawing all reasonable inferences, determines if it may find a verdict for
the party having the burden.2 In order to grant judgment as a matter of law, the
court must find “there is no legally sufficient evidentiary basis for a reasonable
jury to find for the [non-movant] on that issue.”3 Thus, “the factual findings of a
jury will not be disturbed if there is any competent evidence upon which the
verdict could reasonably be based.”4
In a Motion for a New Trial, the court starts with the fundamental principle
that the jury’s verdict is presumed to be correct.5 The court must determine
whether the jury’s verdict is against the great weight of evidence.6 The jury’s
1
Mumford v. Paris, 2003 WL 231611 at *2 (Del. Super.).
2
Id.
3
Brown v. Liberty Mutual Ins. Co., 774 A.2d 232, 245 (Del. 2001) (internal citation omitted).
4
Mumford at *2 (internal citation omitted).
5
Young v. Frase, 702 A.2d 1234, 1236 (Del. 1997).
6
Storey v. Camper, 401 A.2d 458, 465 (Del. 1979) (internal citation omitted).
3
verdict should not be disturbed unless it is clearly shown to be the result of
passion, prejudice, partiality or corruption, or that it was manifestly in disregard of
the evidence or applicable rules of law.7 If a case “involves a controverted issue of
fact in which the evidence is conflicting and out of the conflict may be gathered
sufficient evidence to support a verdict for either party, the issue of fact will be left
… to the jury….”8 The court will not upset the verdict of a jury unless “the
evidence preponderates so heavily against the jury verdict that a reasonable jury
could not have reached the result.”9
IV.
DISCUSSION
DELCCID makes nine arguments in support of its Motions:
1.
DELCCID is entitled to judgment notwithstanding the verdict because
the evidence presented warrants judgment in its favor as a matter of
law.
2.
DELCCID is entitled to a new trial because the jury’s finding that
DELCCID was negligent and reckless was against the weight of the
evidence.
7
Young, 702 A.2d at 1237 (internal citation omitted).
8
Storey, 401 A.2d at 463 (internal citation omitted).
9
Id. at 465 (internal citation omitted).
4
3.
DELCCID is entitled to a new trial because the jury verdict, finding
that DELCCID was less negligent, but more reckless, than Conyers
was inconsistent and must be stricken.
4.
DELCCID is entitled to a new trial because the jury’s punitive
damages award was unconstitutionally grossly excessive.
5.
DELCCID is entitled to a new trial because the court erred in
permitting Plaintiffs to introduce into evidence the discovery
deposition of Michael Partie because he was not unavailable and
because his testimony was inadmissible hearsay.
6.
DELCCID is entitled to a new trial because the court erred in
precluding evidence of Jeffrey Allen Jones’ prior complaint of sexual
abuse by his father.
7.
DELCCID is entitled to a new trial because the court erred in
precluding DELCCID from introducing Plaintiffs’ Form 30
designation of Dr. Raskin as Plaintiffs’ expert where Plaintiffs,
despite a written letter request and a formal Request for Production,
failed to produce Dr. Raskin’s three expert reports until November 11,
2003 – after commencement of trial.
8.
DELCCID is entitled to a new trial because the court erred in
permitting the jury to decide Plaintiffs’ claim of negligent and
5
reckless supervision where expert testimony is necessary to support
such a claim, but where Plaintiffs failed to introduce expert testimony
in support of such claim.
9.
DELCCID is entitled to a new trial because the court erred in
admitting into evidence the Delaware Department of Health and
Social Services Policy Memorandum Number 46.
The court will address each of the arguments in turn.
A.
DELCCID is entitled to judgment notwithstanding the verdict because the
evidence presented warrants judgment in its favor as a matter of law.
DELCCID moved for a directed verdict on Plaintiffs’ claims against it at
trial preserving its right to move for judgment notwithstanding the verdict.
DELCCID argues the evidence presented by Plaintiffs was insufficient as a matter
of law to support Plaintiffs’ claims. DELCCID argues the evidence presented at
trial shows DELCCID had in place, and followed, policies and procedures to
reasonably supervise Conyers. DELCCID argues the fact that Conyers
successfully concealed assaults on Jones does not necessarily mean DELCCID was
negligent or reckless in its supervision of Conyers. DELCCID also argues
Plaintiffs never established, through expert testimony, how DELCCID should have
supervised Conyers and how its conduct deviated from that standard of care.
DELCCID goes on at some length in its brief detailing actions it claims show its
6
employees, and therefore DELCCID, acted reasonably in dealing with Conyers.
DELCCID argues that because it acted immediately once allegations about
Conyers were reported, its actions, therefore, must be found reasonable.
Plaintiffs counter there was sufficient evidence presented that DELCCID
employees knew something was amiss in the relationship between Conyers and
Jones yet did nothing. This lack of action on DELCCID’s part was sufficient to
support the jury’s finding that DELCCID was both negligent and reckless in failing
to stop Conyers’ sexual assaults on Jones.
As noted above, only if reasonable persons could reach but one conclusion is
the moving party entitled to judgment.10 The court finds the actions detailed by
DELCCID support the jury’s finding of negligent and reckless supervision of
Conyers by DELCCID. The court finds DELCCID’s argument that these facts
support only a conclusion of no negligence or recklessness on the part of
DELCCID to be without merit. DELCCID’s argument that it was not negligent or
reckless because it acted immediately once allegations concerning Conyers came
to light misses the point. The court finds the jury could reasonably have concluded
that the failure of employees to come forward and make allegations against
Conyers was enough to support a finding of negligent and reckless conduct on the
part of DELCCID. DELCCID’s actions after the allegations came to light may
10
Gannett Co., Inc. v, Re, 496 A.2d 553, 557 (Del. 1985) (internal citation omitted).
7
well have been reasonable, but the reprehensible conduct had already occurred by
that time. The court thus concludes there is no basis for granting judgment
notwithstanding the verdict.
B.
DELCCID is entitled to a new trial because the jury’s finding that
DELCCID was negligent and reckless was against the weight of the
evidence.
DELCCID argues the jury’s verdict was manifestly against the weight of the
evidence thus entitling them to a new trial. DELCCID argues a reasonable jury
would not have reached the verdict that DELCCID was negligent and reckless in
its supervision of Conyers and awarded the damages that were awarded.
DELCCID incorporates the same arguments to support its request for judgment in
its alternative request for a new trial. Plaintiffs counter that the evidence
DELCCID propounds actually supports the jury’s verdict instead of weighing
heavily against it.
As noted above, the evidence must preponderate heavily against the jury
verdict such that a reasonable jury could not have reached such a verdict before a
trial judge should set that verdict aside.11 The court finds in the case at bar that the
evidence presented at trial does support the jury’s verdict. The court finds
11
Storey, 401 A.2d at 465.
8
DELCCID’s argument to be without merit. The court, therefore, finds no basis for
granting a new trial on this issue.
C.
DELCCID is entitled to a new trial because the jury verdict, finding that
DELCCID was less negligent, but more reckless, than Conyers was
inconsistent and must be stricken.
DELCCID argues the jury’s finding that DELCCID was only 40% negligent
but 90% reckless is illogical and inconsistent and must be stricken. Plaintiffs
counter that the allocation of negligence and recklessness are separate issues
having no bearing on each other as different standards apply to each.
Delaware law is clear that when the jury’s answers to special interrogatories
are inconsistent, the verdict must be stricken unless there is an explanation that
avoids the inconsistency.12 “The jury’s verdict will stand as long as the court finds
one possible method of construing the jury’s answers as consistent with one
another and with the general verdict.”13
The court finds different standards apply to the concepts of negligence and
recklessness. For a party to be found negligent, the jury must find that a party
acted without the care that a reasonably prudent and careful person would exercise
12
CitiSteel USA, Inc. v. Connell Ltd. Partnership, 1998 WL 309801 at **4 (Del.).
13
Id. (internal citation omitted).
9
in similar circumstances.14 For a party to be found reckless, the jury must find that
a person acted with a knowing disregard of a substantial and unjustifiable risk.15
The allocation of fault regarding negligence, therefore, has no bearing on the
allocation of fault regarding recklessness. CitiSteel is thus distinguishable, as in
that case, the jury found both that the defendant had paid the amount due but had
breached the contract. In the case at bar, the court finds the differing percentages
of fault between DELCCID’s negligence and its recklessness is reasonable. Since
Conyers, as an individual, actively committed the sexual assaults against Jones, it
is logical for the jury to have concluded Conyers was more negligent in causing the
harm. On the other hand, DELCCID stood in a special relationship to Jones. It is
logical for the jury to have concluded that it was more egregious for DELCCID to
have breached this duty to Jones, supporting a finding that DELCCID was more
reckless. The court thus finds no inconsistency in the jury’s findings. The court,
therefore, concludes that DELCCID’s argument is without merit and there is no
basis for granting a new trial on this issue.
14
Duphily v. Delaware Elec. Coop., Inc., 662 A.2d 821, 828 (Del. 1995).
15
Jardell Co., Inc. v. Hughes, 523 A.2d 518, 530 (Del. 1987).
10
D.
DELCCID is entitled to a new trial because the jury’s punitive damages
award was unconstitutionally grossly excessive.
DELCCID argues the punitive damages award is excessive and must be
stricken. DELCCID points to recent U.S. Supreme Court decisions suggesting
only single digit multipliers between compensatory damages and punitive damages
will satisfy due process.16 DELCCID notes that the ratio of DELCCID’s punitive
damages to its compensatory damages is almost 22x.17 DELCCID further argues
the evidence does not support the finding that its behavior was reprehensible or
outrageous, thus there is no support for the jury’s award of punitive damages at all.
DELCCID additionally argues Plaintiffs improperly appealed to the juror’s
passions in awarding damages by having a Catholic priest sit in the courtroom and
that media accounts of alleged sexual abuse by Michael Jackson, which began just
before the jurors began to deliberate, were also prejudicial.
Plaintiffs counter that the most important indicium of the reasonableness of a
punitive damages award is the degree of reprehensibility of the defendant’s
16
State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, ___, 123 S.Ct. 1513, 1524 (2003).
17
DELCCID’s 40% share of the $150,000 awarded as compensatory damages amounts to
$60,000 while its 90% share of the $1.44 million awarded as punitive damages amounts to
$1.296 million. $1.296 million is 21.6 times greater than $60,000.
11
conduct. Plaintiffs argue that DELCCID’s allowing Jones to be repeatedly
sexually assaulted over a 13-month period is extremely reprehensible. Such
reprehensible conduct supports the imposition of a high punitive damages award,
both to punish the conduct of DELCCID as well as to send a clear message of
deterrence to others similarly situated.
Delaware law is clear that mere negligence will not justify the imposition of
punitive damages.18 A defendant’s conduct must exhibit at least a reckless
indifference to the rights of others before punitive damages may be awarded.19
“[E]normous deference is given to jury verdicts. In the face of any reasonable
difference of opinion, courts yield to the jury’s decision. It follows that, in the
absence of exceptional circumstances, the validity of damages determined by the
jury should likewise be presumed.”20 A jury award will be “set aside only in the
unusual case where it is clear that the award is so grossly out of proportion to the
injuries suffered as to shock the [c]ourt’s conscience.”21
As noted above, the court finds DELCCID stood in a special relationship to
Jones. The court finds a breach of this duty, by allowing the repeated sexual
18
Jardell Co., Inc., 523 A.2d at 529.
19
Id.
20
Young, 702 A.2d at 1236.
21
Id. at 1236-37 (internal citation omitted).
12
assaults by Conyers, is sufficient to support the jury’s finding of recklessness on
the part of DELCCID. The court also finds that the important ratio to consider in
deciding whether a punitive damages award is excessive is the ratio of total
compensatory damages to total punitive damages. In the case at bar, this ratio is
9.63x. The court finds an award of punitive damages of slightly less than ten times
the compensatory damages does not rise to a level that “shocks the conscience” of
the court. Nor does the court find that the total amount awarded as damages is
grossly disproportionate to the injuries Jones suffered.
The court finds the presence of a priest and media accounts of Michael
Jackson’s alleged abuse are issues that were not objected to on the record at time of
trial. The court holds that DELCCID, therefore, has no standing to raise these
issues at this time. Even if DELCCID had standing to raise these issues now, the
court finds DELCCID’s arguments irrelevant and without merit.
The court, therefore, finds no reason to adjust or overturn the amount of the
jury’s award for punitive damages. The court thus finds there is no basis for
granting a new trial on this issue.
E.
DELCCID is entitled to a new trial because the court erred in permitting
Plaintiffs to introduce into evidence the discovery deposition of Michael
Partie because he was not unavailable and because his testimony was
inadmissible hearsay.
13
DELCCID argues Michael Partie’s (“Partie”) absence from trial was
partially the fault of Plaintiffs who did not serve Partie with a subpoena until the
week prior to the commencement of trial. DELCCID argues, therefore, Partie was
not “unavailable” for trial according to the definition in D.R.E. 804, which would
allow his deposition testimony to be entered into evidence. DELCCID also argues
portions of Partie’s testimony were hearsay within hearsay and should not have
been allowed into evidence.
Plaintiffs counter that Partie was served with a subpoena to testify at trial
and they were not responsible in any way for Partie’s nonavailability at the time of
trial. Thus, Partie’s deposition was properly admitted as DELCCID had
opportunity to cross-examine him at the deposition. Additionally, Plaintiffs point
out that Partie’s testimony, concerning what he overheard, was not presented for
the truth of the matter, but merely to show why Partie believed he should start an
investigation. Thus, the utterance was allowable under the state of mind exception
to the hearsay exclusion.
The court finds DELCCID’s arguments unavailing. The fact that the
subpoena was not served until the week prior to trial is insufficient to show
Plaintiffs were attempting to avoid having Partie appear in person at trial. Because
the civil trial calendar is not set until the week before trial is to commence, in fact,
it is logical for Plaintiffs to wait to be sure trial was going to proceed before
14
serving the subpoena. As DELCCID had an opportunity to cross-examine Partie at
the deposition, the fact that DELCCID could not cross-examine him at trial is
irrelevant.
The court also finds DELCCID’s argument regarding hearsay unavailing.
As Plaintiffs point out, the statements of others to Partie were not introduced for
their truth, but to show evidence of Partie's state of mind. The court thus finds
there is no basis for granting a new trial on this issue.
F.
DELCCID is entitled to a new trial because the court erred in precluding
evidence of Jeffrey Allen Jones’ prior complaint of sexual abuse by his
father.
DELCCID argues the court erred in granting Plaintiffs’ Motion in Limine
excluding evidence Jones had previously lied about his father’s sexually abusing
him. DELCCID argues the evidence is relevant for attacking the character for
truthfulness of Jones. Plaintiffs counter the exclusion was proper for two reasons.
First, the information was irrelevant. Conyers confessed to the sexual assaults and
there was no allegation Jones was falsely accusing Conyers. Second, even if the
information were relevant, the evidence would have been unfairly prejudicial in
violation of D.R.E. 403.
The court finds DELCCID’S arguments unavailing. DELCCID’S argument
that the evidence goes to Jones’ truthfulness as related to damages issues, not
15
liability issues, is particularly meritless. The court affirms its initial decision to
exclude the evidence. First, the evidence is not relevant. Whether Jones was
sexually assaulted by Conyers is not at issue – Conyers pled guilty to multiple
sexual assault charges. Second, even if the information were relevant, the court
finds the evidence would be unfairly prejudicial because of the nature of the
charges, which were later retracted. The court thus finds there is no basis for
granting a new trial on this issue.
G.
DELCCID is entitled to a new trial because the court erred in precluding
DELCCID from introducing Plaintiffs’ Form 30 designation of Dr. Raskin
as Plaintiffs’ expert where Plaintiffs, despite a written letter request and a
formal Request for Production, failed to produce Dr. Raskin’s three expert
reports until November 11, 2003 – after commencement of trial.
DELCCID argues the court’s refusal to admit Plaintiffs’ Form 30
Interrogatory Answers to Questions 2 and 5 into evidence amounted to unfair
prejudice. DELCCID argues Plaintiffs listed Dr. Raskin as an expert, but never
produced his records when requested. DELCCID claims it first saw three reports,
manifestly unfavorable to Plaintiffs, when Plaintiffs’ expert, Dr. O’Brien, was
deposed the day after trial commenced. Had the records been timely produced,
DELCCID could have arranged for Dr. Raskin to appear at trial. DELCCID argues
at the least, it should have been permitted to tell the jury the Plaintiffs had retained
16
Dr. Raskin as expert, his records were requested but never provided, and allow the
jury to make the inference the records were adverse to Plaintiffs’ position on
injuries and damages.
Plaintiffs counter DELCCID never subpoenaed Dr. Raskin’s records.
Plaintiffs state they provided DELCCID with all medical records, including those
of Dr. Raskin. Plaintiffs additionally argue there was no prejudice to DELCCID
because it had the reports prior to cross-examination of Plaintiffs’ expert witnesses.
The court finds DELCCID’s arguments without merit. DELCCID was
aware for some time that Dr. Raskin was listed in Plaintiffs’ responses to the Form
30 Interrogatories. The court finds DELCCID’s failure to act upon that
information is its own shortcoming. The argument that DELCCID would have
called Dr. Raskin as an expert is specious, as Delaware law is clear that a party
may not convert an opposing party’s expert into an expert for themselves.22 The
court thus finds there is no basis for granting a new trial on this issue.
H.
DELCCID is entitled to a new trial because the court erred in permitting the
jury to decide Plaintiffs’ claim of negligent and reckless supervision where
22
Schmidt v. Hobbs, 1988 WL 31989 at *1 (Del. Super.) (declining to compel expert witnesses
retained by defendants to testify for plaintiff, holding that that would place the experts in the
untenable position of breaching their duty of loyalty to their employer).
17
expert testimony is necessary to support such a claim, but where Plaintiffs
failed to introduce expert testimony in support of such claim.
DELCCID argues expert testimony was necessary to establish the standard
for negligent supervision of Conyers. As Plaintiffs introduced no such expert
testimony, there was no basis for allowing the claim for negligent supervision to
remain, as lay persons are not knowledgeable about what proper policies should be
for supervision of employees providing assistance to the mentally disabled.
Plaintiffs counter that the matter was not beyond the comprehension of an
ordinary person and thus expert testimony was not necessary. Plaintiffs point out
that jurors may use their own common sense and logic in deciding issues
presented.
In Delaware, if the matter is not beyond the comprehension of non-experts
and is within the grasp of the jury, expert testimony is not necessary.23 The jury’s
use of logic and common sense are permissible.24
In the case at bar, the court finds the issue of whether DELCCID was
negligent in supervising Conyers was not complicated and thus within the
23
Lewis v. State, 416 A.2d 208, 209 (Del. 1980); Gannett Co., Inc. v. Kanaga, 750 A.2d 1174,
1181 (Del. 2000).
24
Chudnofsky v. Edwards, 208 A.2d 516, 518 (Del. 1965); Mazda Motor Corp. v. Lindahl, 706
A.2d 526, 533 n.28 (Del. 1998).
18
understanding of the jury. The court finds common sense and logic were sufficient
to make a determination on the issue of negligent supervision. The jury could
reasonably find the conduct of DELCCID was reprehensible enough that it
breached whatever the applicable standard might have been, without a need to
articulate that particular standard. The court thus finds expert testimony was not
necessary to determine what proper procedures might be for DELCCID’s
supervision of Conyers. The court thus finds there is no basis for granting a new
trial on this issue.
I.
DELCCID is entitled to a new trial because the court erred in admitting into
evidence the Delaware Department of Health and Social Services Policy
Memorandum Number 46.
DELCCID argues Delaware Department of Health and Social Services
Policy Memorandum Number 46 (“P.M. 46”) was introduced into evidence over its
objection. P.M. 46 was then used to establish a standard of care that was breached
by DELCCID by not acting on a suspicion of a sexual relationship between
Conyers and Jones. DELCCID argues P.M. 46 does not set forth an applicable
standard of care and was therefore, inadmissible.
Plaintiffs counter P.M. 46 was listed as one of DELCCID’s exhibits in the
pre-trial stipulation. In addition, DELCCID questioned one of its witnesses at
length concerning the document.
19
The court finds DELCCID’s arguments to be without merit. By listing P.M.
46 in its list of exhibits in the pre-trial stipulation as well as utilizing the document
extensively during examination of one of its witnesses, DELCCID waived its right
to object to introduction of the document into evidence.25 The court properly ruled
P.M. 46 could not be used to support a jury charge that violation of the policy in
P.M. 46 was negligence per se, because there was no evidence P.M. 46 had been
validly adopted by legislative directive as the law of the State. However, the jury
could properly use the document to infer an applicable standard of care, even if
violation of P.M. 46 did not amount to negligence per se. The court thus finds
there is no basis for granting a new trial on this issue.
25
While not directly applicable, as P.M. 46 was not used to refresh the memory of the testifying
witness in the case at bar, the court finds the principles stated in D.R.E. 612 applicable. D.R.E.
612(a) entitles an adverse party to have a document used to refresh the memory of a witness
produced. D.R.E. 612(c) further allows the adverse party to introduce into evidence the portions
of the document that relate to the testimony of the witness.
20
V.
CONCLUSION
For the above reasons, the court finds no legal basis for granting either of
DELCCID’s motions. Therefore, DELCCID’s Motion for Judgment
Notwithstanding the Verdict is DENIED. DELCCID’s Motion for a New Trial is
DENIED.
IT IS SO ORDERED.
________________________
Calvin L. Scott, Jr.
Superior Court Judge
21
