Victor N. Ambruoso, MD v. Frank Lee, Jr.

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR. THE STATE OF SOUTH CAROLINA In The Court of Appeals Victor N. Ambruoso, MD, and Rachael Ambruoso, Appellants, v. Frank L. Lee, Jr., Respondent. __________ Appeal From Spartanburg County Doyet A. Early, III, Circuit Court Judge __________ Unpublished Opinion No. 2010-UP-158 Heard December 9, 2009 – Filed February 23, 2010 __________ AFFIRMED __________ Donald C. Coggins, Jr., and Amanda H. Craven, of Spartanburg, for Appellants. Michael James Sarratt, of Landrum, and T. David Rheney, of Greenville, for Respondent. PER CURIAM: Dr. Victor N. Ambruoso and Rachel Ambruoso appeal the trial court's denial of their motions for a new trial. They argue the court should have granted new trial absolute due to the inadequacy of the jury's verdict or new trial pursuant to the thirteenth juror doctrine. They also assert they were entitled to a new trial due to an error on the verdict form. We affirm. FACTS/PROCEDURAL HISTORY On April 12, 2004, the Ambruosos were involved in an automobile accident with Frank L. Lee, Jr. Dr. Ambruoso was driving a 1997 Chevrolet Blazer in which Mrs. Ambruoso was a passenger. They were stopped to make a left turn when the truck driven by Lee collided into the rear of their vehicle. Their Blazer was totaled as a result of the accident. Immediately after the accident, Lee left his vehicle and went to the Blazer to apologize for the accident. The Ambruosos exited their vehicle and began talking to Lee. They admittedly were upset with him. Kenneth Bishop, who had stopped to offer assistance, asked the Ambruosos to return to their vehicle, which they did. Soon thereafter, an ambulance arrived and took them to the hospital where they were treated and released. The Ambruosos were referred to Dr. Gerald Rollins with Orthopedic Associates. Dr. Ambruoso was treated by Dr. Rollins and underwent physical therapy through June 16, 2004. Dr. Ambruoso testified that his problems were largely resolved at that point. Mrs. Ambruoso was treated by Dr. Rollins and underwent physical therapy through August 9, 2004. Although some of her pain resolved a few weeks after the accident, she continued to experience pain in her right hip, which had caused her problems prior to the accident. She eventually had hip replacement surgery at Duke University Medical Center in February of 2005. After a long recovery period, Mrs. Ambruoso's hip pain largely subsided. However, due to her fear of reinjuring herself, she did not return to her previous activities of skiing and horseback riding. The Ambruosos brought this action against Lee. During the trial, Lee admitted fault. Thus, the trial court submitted the issue of damages alone to the jury. The jury returned a verdict of $6,210.00 in actual damages for Dr. Ambruoso and $4,472.00 in actual damages for Mrs. Ambruoso. The Ambruosos requested ten days to file their post-trial motion. In their written motion, they sought a new trial nisi additur and new trial absolute based on the inadequacy of the verdict and new trial pursuant to the thirteenth juror doctrine. They also argued they were entitled to a new trial due to the inclusion of State Farm Insurance Company as a defendant in the caption of the verdict form. The trial court denied the motion. This appeal followed. LAW/ANALYSIS 1. New trial absolute The Ambruosos argue the trial court erred in denying their motion for a new trial absolute due to the inadequacy of the verdict. We disagree. "The trial court has sound discretion when addressing questions of excessiveness or inadequacy of verdicts, and its decision will not be disturbed absent an abuse of discretion." Dillon v. Frazer, 383 S.C. 59, 63, 678 S.E.2d 251, 253 (2009). The court must look at the testimony and inferences raised in the light most favorable to the nonmoving party. Welch v. Epstein, 342 S.C. 279, 302-03, 536 S.E.2d 408, 420 (Ct. App. 2000). In considering a motion for a new trial based on the inadequacy or excessiveness of the jury's verdict, the trial court must distinguish between awards that are merely unduly liberal or conservative and awards that are actuated by passion, caprice, prejudice, or some other improper motive. Elam v. S.C. Dep't of Transp., 361 S.C. 9, 27, 602 S.E.2d 772, 781 (2004). The trial court must set aside a verdict only when it is shockingly disproportionate to the injuries suffered. Welch, at 302, 536 S.E.2d at 420. A jury’s determination of damages is entitled to substantial deference. Knoke v. S.C. Dep’t. of Parks, Recreation & Tourism, 324 S.C. 136, 141, 478 S.E.2d 256, 258 (1996). The Ambruosos contend the injuries for which they claimed damages were consistent with the impact of the collision. They assert no evidence was submitted that questioned the existence of these injuries or the initial treatment they received, which included the ambulance service, emergency room treatment, follow-up treatment with Dr. Rollins, and the physical therapy ordered through his office. They claim the total costs for these treatments were $3,400.00 for Dr. Ambruoso and $6,067.00 for Mrs. Ambruoso. The jury, however, returned a verdict of $6,210.00 in actual damages for Dr. Ambruoso and $4,472.00 in actual damages for Mrs. Ambruoso. "Even where the evidence is uncontradicted, the jury may believe all, some, or none of the testimony, and where the credibility of the witness has been questioned, the matter is properly left to the jury to decide." Ross v. Paddy, 340 S.C. 428, 434, 532 S.E.2d 612, 615 (Ct. App. 2000). "The fact that evidence is not contradicted by direct evidence does not render it undisputed, as there still remains the question of its inherent probability and the credibility of the witnesses or his interest in the result." Id. In the present case, Lee contested Mrs. Ambruoso's claim for damages relating to her hip problems and eventual hip replacement surgery. Lee solicited testimony Mrs. Ambruoso had complained of and sought treatment for hip pain prior to the accident. An x-ray taken on April 29, 2003 showed advanced arthritis of the right hip. She then sought treatment from Dr. Lang with Duke University Medical Center. During an examination by Dr. Lang on April 1, 2004, Mrs. Ambruoso showed a decreased range of motion. She reported to her orthopedic surgeon in December of 2004 that while she had led an active lifestyle, starting two years earlier she had become increasingly inactive and gained weight. In addition, Mrs. Ambruoso took medication for arthritis, pain relief, and depression in the months preceding the accident. Although the Ambruosos are not disputing on appeal the jury's failure to award damages for Mrs. Ambruoso's treatment at Duke University Medical Center, they do argue they are entitled to recover damages for the treatment from Dr. Rollins, as well as an MRI taken on July 20, 2004, which cost $2,195.00. Dr. Rollins testified that on June 14, 2004, he believed Mrs. Ambruoso's complaints would be resolved in around thirty days of conservative treatment. He did not plan on seeing her back after that point. However, Mrs. Ambruoso had returned to Dr. Rollins on August 9, 2004 with primary complaints of hip and back pain after having an MRI taken on July 20, 2004. The MRI of her right hip showed advanced chondromalacia, arthritis, and in Dr. Rollins' opinion, avascular necrosis, which is death of the bone. The jury may have determined not all of the treatments claimed were in fact related to injuries caused by the accident, but were in fact due to the pre-existing condition of her hip. The Ambruosos also contend the verdict for Dr. Ambruoso was inadequate when considering his testimony concerning his loss of income due to the accident. Dr. Ambruoso claimed $2,455.20 in lost income from the appointments he cancelled at his part-time medical practice to attend his own appointments, court, and a meeting with his attorney. This amount, added to the cost of his medical treatment of $3,400.00, totals $5,855.20, which is less than the jury's award of $6,210.00. Thus, the verdict amount is not "shockingly disproportionate to the injuries suffered." In addition, Lee contested the amount Dr. Ambruoso claimed in lost income. He asserted Dr. Ambruoso could have mitigated the loss of cancelled appointments by scheduling his own appointments on the days in which his part-time medical practice was not open. Lee also contended Dr. Ambruoso overestimated the number of appointments that might have been scheduled on the days he closed the practice in advance to attend his own appointments. Accordingly, the jury may have rejected some of Dr. Ambruoso's claims for damages for lost income. We find the jury's award of damages was within the evidence presented at trial. Accordingly, we hold the trial court did not abuse its discretion in denying the Ambruosos' motion for a new trial absolute. 2. Thirteenth Juror Doctrine The Ambruosos argue the trial court should have granted a new trial under the thirteenth juror doctrine. We disagree. In South Carolina, a trial judge may grant a new trial following a jury verdict under the thirteenth juror doctrine. The doctrine "entitles the trial judge to sit, in essence, as the thirteenth juror when he finds 'the evidence does not justify the verdict,' and then to grant a new trial based solely 'upon the facts.'" Norton v. Norfolk S. Ry. Co., 350 S.C. 473, 478, 567 S.E.2d 851, 854 (2002) (quoting Folkens v. Hunt, 300 S.C. 251, 254, 387 S.E.2d 265, 267 (1990)). "As the 'thirteenth juror', the trial judge can hang the jury by refusing to agree to the jury's otherwise unanimous verdict." Id. The appellate court will uphold the trial judge's decision granting or denying a new trial unless that decision is wholly unsupported by the evidence, or the conclusion reached was controlled by an error of law. Norton, 350 S.C. at 478, 567 S.E.2d at 854. Our review is limited to consideration of whether evidence exists to support the trial court's decision. Id. at 478-79, 567 S.E.2d at 854. "The 'thirteenth juror' doctrine is not used when the trial judge has found the verdict was inadequate or unduly liberal and, therefore, is not a vehicle to grant a new trial nisi additur." Bailey v. Peacock, 318 S.C. 13, 15, 455 S.E.2d 690, 692 (1995). Lee asserted the Ambruosos were not entitled to any damages as a result of the accident. He was not required to submit evidence directly contradicting their testimony in order for their claims to be considered contested. As stated above, the trial court's decision to allow the jury's verdict to stand was supported by the evidence in the record. Accordingly, we find no error in the trial court's denial of the Ambruosos' motion for a new trial pursuant to the thirteenth juror doctrine. 3. Verdict Form The Ambruosos argue they are entitled to a new trial because the verdict form impermissibly included evidence of liability insurance. The verdict form listed State Farm Mutual Automotive Insurance as a defendant. Although this form was provided to the attorneys prior to its submission to the jury, the Ambruosos did not object to it at that time. After the jury returned its verdict, the court noticed the inclusion of State Farm as a defendant. The Ambruosos did not complain about the inclusion of State Farm in the caption of the verdict form until their post-trial motion. The trial court held the Ambruosos had waived any objection by failing to object earlier. As the trial court noted, all of the parties had an opportunity to review and approve the verdict form before it was submitted to the jury. We find the trial court did not err in holding the Ambruosos waived their objection to the verdict form. See Jackson v. Speed, 326 S.C. 289, 304, 486 S.E.2d 750, 757 (1997) (finding appellant waived claim of lack of notice of cause of action by failing to object to having his name included on the verdict form); Johnson v. Hoechst Celanese Corp., 317 S.C. 415, 421, 453 S.E.2d 908, 912 (Ct. App. 1995) (holding by failing to object to a verdict form until after a liability verdict had been reached, appellant failed to preserve any issue relating to the verdict form). In addition, we find the trial court cured any error with an instruction given the jury. During deliberations, the jury sent a note to the court asking: "Does insurance affect the settlement? If it does, what percentage of the bills will be paid by insurance[?]" The court responded: "It does not affect your verdict. It is not to be considered or discussed." Although the court was not aware of the inclusion of State Farm in the caption of the verdict form at the time, its response to the jury's question adequately addressed the issue. "Generally, a curative instruction is deemed to have cured any alleged error." State v. Walker, 366 S.C. 643, 658, 623 S.E.2d 122, 129 (Ct. App. 2005). "A curative instruction to disregard incompetent evidence and not to consider it during deliberation is deemed to have cured any alleged error in its admission." Id. at 658, 623 S.E.2d at 130. Accordingly, we find the trial court did not abuse its discretion in denying the Ambruosos' motion for new trial on this issue. CONCLUSION For the above stated reasons, the decision of the trial court is AFFIRMED. HUFF, WILLIAMS, and GEATHERS, JJ. concur.