Butkiewicz v. State

HOLLANDER, Judge. On November 17, 1995, William M. Butkiewicz, appellant, was injured in a three-car lane change accident involving automobiles driven by Robert J. Matty and Dr. Asresu Masikir, an epidemiologist with the Maryland Department of Health and Mental Hygiene. At the time of the accident, Masikir was driving a ear owned by the State of Maryland, appellee. On February 3, 1997, Butkiewicz instituted suit in the Circuit Court for Prince George’s County against the State of Maryland, Matty, and his own insurer, Nationwide Insurance Company (“Nationwide”), appellee, for underinsured motorist benefits.

On March 4,1997, Nationwide filed a cross-claim against Matty. After a three-day trial, the jury found the State liable for the accident, but awarded Butkiewicz damages only for his medical expenses ($22,565.00) and lost wages ($3,302.00). The jury did not award appellant any damages for future medical expenses or for pain and suffering. Appellant presents two issues for our review, which we have rephrased and condensed: 1 ⁴¹⁵ Because the jury failed to award damages for pain and suffering, did the court abuse its discretion in denying appellant’s motion for new trial on the issue of damages?

We answer that question in the negative and affirm. Factual Background In view of the issue presented, which concerns damages, our discussion of the factual background focuses primarily on aspects of the evidence relating to appellant’s injuries. At the time of the accident, appellant was 29 years old. He testified that, at 7:30 on the morning of November 17,1995, he was driving 60 miles per hour in his 1990 Ford Mustang, proceeding northbound in the left lane of Interstate 95, m route to his job in Baltimore.

Dr. Masikir’s car was in the middle lane, approximately “four to eight car lengths” in front of appellant’s car. According to Butkiewicz, Dr. Masikir made an “abrupt, sharp left-hand turn” into appellant’s lane. In an effort to avoid the vehicle, appellant swerved on the shoulder, but to no avail. Dr. Masikir’s car struck appellant’s vehicle on the passenger side.

Appellant was then “bumped” from behind by Matty’s car, causing appellant’s vehicle to careen off the expressway. Butkiewicz testified that his car knocked down a road sign and spun repeatedly before coming to rest in the median, facing oncoming northbound traffic. Appellant then crawled out of the vehicle on the passenger side. In the following colloquy, appellant described the aftermath of the accident: [Appellant’s Counsel]: After your car came to a stop, can you please tell us how you were feeling? [Appellant]: I guess I was feeling very grateful to be alive after something like that.

After I had settled down from feeling thankful that I was alive, I did have the feeling of ⁴¹⁶ pain I noticed especially in my left thigh and also in my neck and back area. [Appellant’s Counsel]: What did you do then? [Appellant]: Crawled out the passenger side of my car. I couldn’t get out of the driver’s side. Another vehicle was directly next to mine, and I couldn’t even stand. I tried to stand, but I couldn’t.

The pain was quite severe in my left thigh. [Appellant’s Counsel]: What did you do if you couldn’t walk? [Appellant]: I crawled. [Appellant’s Counsel]: Where did you stop crawling? [Appellant]: There’s an embankment there in the median, and I tried to get up the hill to the trees. Maryland State Trooper Brian Willets arrived on the scene shortly after the accident. He testified that he saw Dr. Masikir’s 1993 Dodge Shadow parked on the shoulder and left lane of the highway. Matty’s vehicle, a 1992 Lexus 400, was in the median adjacent to appellant’s car.

Appellant was “laying beside his vehicle, right outside his vehicle ... in the median.... ” According to Trooper Willets, appellant told him at the scene that he thought his leg had been broken. Willets could not remember if appellant had any cuts or abrasions, but he remembers that “he [Butkiewicz] was in extreme pain with his leg.” An ambulance transported appellant to the Greater Laurel Beltsville Hospital. There, Butkiewicz complained of pain in his neck, back, and left thigh. The hospital staff took x-rays of his left thigh and provided him with pain medication.

After approximately two hours, appellant returned home. The following testimony is also relevant: [Appellant’s Counsel]: Once you got home, can you please tell us how you were feeling? [Appellant]: The pain in my thigh, if you can ever experience a migraine, times it by ten. The pain in my neck, it didn’t matter. The pain in my back I didn’t feel.

The pain ⁴¹⁷ in my thigh was the most pain I’ve ever experienced in my whole life. I’ve experienced pain not just from accidents and motorcycles and sports pain, but this pain was so severe, like I said, if you’ve every had a migraine, it’s time ten. It’s almost like being dropped — . [Appellant’s Counsel]: How did the leg feel over the next 24 hours, when you got home that evening until the next day? [Appellant]: The pain became so severe, and the swelling. From my knee area up the outside of my thigh swelled up really like a beach ball or double the size of it, like a Halloween pumpkin.

It was huge with the pain, and it became very warm. The pain again was something. It was very, very severe. The following day, appellant’s primary physician instructed him to visit the emergency room at Suburban Hospital.

The attending emergency room physician referred appellant to an orthopedic surgeon, Dr. Edward Bieber. According to appellant, Dr. Bieber diagnosed the injury as a “compartment syndrome”, which caused a reduced blood flow to the bottom of appellant’s knee. Dr. Bieber testified by way of a videotaped deposition. At Dr. Bieber’s recommendation, appellant underwent a fasciotomy that afternoon — a procedure that resulted in an incision 240 millimeters (9.6 inches) long and approximately 100 millimeters (4 inches) wide.

Two days later, appellant had another surgery, in which skin from his right leg was grafted onto the wound on appellant’s left thigh. After the accident, appellant underwent physical therapy until April 1996, when Dr. Bieber discharged Butkiewicz from his care. Nevertheless, appellant testified that he still experienced pain from the injury. The following colloquy is relevant: [Appellant’s Counsel]: Mr. Butkiewicz, at the time of your discharge, would you please tell us what if any pain or other problems you had with that left side? [Appellant]: Continued I would say pain, and it’s not just from exercising or walking.

It comes from sitting for long periods of time. Any time — even sleeping I can tell you ⁴¹⁸ that I’m awake at least once a night because of some sort of pain in my leg after four or five hours of sleep. [Appellant’s Counsel]: At the time that you were discharged, what if any numbness or lack of sensation did you have in your leg? [Appellant]: That area is completely numb where the skin graft was done. From my knees to my groin, that area is numb. My thigh where the graft area is, there’s uncontrollable switching [sic] occasionally in my leg area.

The numbness is the scary part because literally I can’t feel anything. It’s like it’s not there, but it is there. I could probably get punched or stung by a bee and I would never know. And I could probably get an infection and I would really never know, because I never feel it.

Butkiewiez claimed that he was “considering” reconstructive plastic surgery for his left thigh, and had consulted Dr. Jorge Reisin, a plastic surgeon, in April 1996. Although the idea of plastic surgery was “in the back of his mind,” Butkeiwicz could not testify as to the cost of such surgery. 2 Appellant further testified that, after the accident, he was forced to leave his part-time job as an inventory clerk for a chain of grocery stores, because the work involved “a lot of going up and down shelves.” Appellant estimated that he missed 316 hours of work between November 17, 1995 and March 23, 1996. At the time, his salary was $10.45 per hour. A recurrent theme of appellant’s case at trial was his lifelong aspiration to play professional golf.

Because of the injury to his leg, appellant testified that his “dreams” of reaching the PGA tour were “lost.” Although appellant had participated in a prestigious amateur golf tour, he acknowledged on cross-examination that he had never earned any money playing golf. ⁴¹⁹ Appellant’s wife, Mia Kim Butkiewicz, testified that she, too, was driving to work on Interstate 95 on the morning of the accident when she passed by the scene and recognized her husband’s car in the median of the highway. She testified that when she approached him, he was “very pale” and “in a lot of pain.” Through Ms. Butkiewitcz, appellant admitted as evidence a series of color photographs of appellant’s wound taken by her immediately after the skin graft surgery. Dr. Michael April also testified for appellant as an expert in “physical medicine and rehabilitation.” At the suggestion of appellant’s attorney, Butkiewicz consulted Dr. April on October 11,1996. After an interview and a physical examination of appellant, Dr. April concurred with Dr. Bieber’s original diagnosis of a “compartment syndrome”.

The doctor noted that appellant’s knee was “restricted” and that he “didn’t have full motion of his left knee compared to the right knee, and [appellant] continued to have pain, which [Dr. April] felt was muscular.” Moreover, Dr. April observed that appellant suffered from “numbness” and an inability to sweat in the wound area. Dr. April recounted that, on March 23, 1998, he examined appellant again. Dr. April described appellant’s condition in March of 1998 as “about the same” as when he saw him before. According to Dr. April, appellant [s]till had the ache in his leg, still could not walk long distances, still had trouble playing golf ...

The numbness didn’t change. The whole outside of his leg was numb. There also was trouble because of the skin graft. He wasn’t really able to sweat on the outside of the leg ...

His knee did not have the normal motion that he had on the right side. In Dr. April’s opinion, appellant’s injury was permanent. Moreover, Dr. April proffered that the injury had affected appellant’s ability to play golf. On cross-examination, Dr. April conceded that his October 11, 1996 diagnosis was based primarily on the medical history as it was conveyed to him by Butkiewitcz; Dr. April had not ⁴²⁰ reviewed Dr. Bieber’s notes at the time of the initial diagnosis.

Dr. April testified, however, that, according to Dr. Bieber’s records, appellant had “minimal pain” and “excellent range of motion” prior to his discharge from Dr. Bieber’s care. Dr. April also acknowledged, on cross-examination that Butkiewitcz told him that he was a professional golfer. At the conclusion of the evidence, the court prepared a verdict sheet which included a damage itemization for past medical expenses, past lost wages, non-economic damages, and future medical expenses. The court instructed the jury, in pertinent part: In the event that you find for the Plaintiff on the issue of liability, then you must go on and consider the question of damages.

It will be your duty to determine what if any award will fairly compensate the Plaintiff for his losses. I instruct you that the burden is on the Plaintiff to prove by a preponderance of the evidence each item of damage claimed to be caused by the Defendant. In considering the items of damage, you must keep in mind that your award must adequately and fairly compensate the Plaintiff, but an award should not be based on guesswork. In considering damages in a personal injury case, you shall consider the following: the personal injuries sustained and their extent and duration; the effect such injuries have on the overall physical and mental health and well-being of the Plaintiff; the physical pain and mental anguish suffered in the past and with reasonable probability may be expected to be experienced in the future; the disfigurement associated with the accident; the medical and other expenses reasonably and necessarily incurred in the past and which, with reasonable probability, may be expected in the future.

In awarding damages in this case, you must itemize your verdict or award to show the amount intended for medical expenses incurred in the past, medical expenses reasonably probable to be incurred in the future, the non-economic damages sustained in the past and reasonably probable to be sustained in the future. ⁴²¹ Non-economic damages are all damages which you may find for pain, suffering, inconvenience, physical impairment, disfigurement, or other non-pecuniary injury. As we mentioned earlier, the jury found the State liable, based on Masikir’s negligence, and awarded appellant a total of $25,867.00 in damages for past medical expenses and lost wages, which sum is equal to the exact amount requested by appellant for those categories of damages. The jury did not award any non-economic damages, however. Judgment was entered against Nationwide and the State on May 11, 1998.

On May 15, 1998, pursuant to Md. Rule 2-533, appellant filed a motion for new trial. After the court denied the motion, appellant timely noted his appeal. We will include additional facts in our discussion. Discussion Appellant contends that he is entitled to a new trial on the issue of damages because, having determined that the State is liable, the jury failed to award money damages for pain and suffering.

In appellant’s view, the jury’s failure to award non-economic damages contravened the court’s instruction that, “[i]n considering damages ..., [the jury] shall consider ... the physical pain and mental anguish suffered in the past and with reasonable probability may be expected to be experienced in the future; the disfigurement associated with the accident. ...” We review a trial court’s denial of a motion for new trial based on an abuse of discretion standard. Aron v. Brock, 118 Md.App. 475, 511 , 703 A.2d 208 , cert. denied, 346 Md. 629 , 697 A.2d 913 (1997); Buck v. Cam’s Broadloom Rugs, Inc., 328 Md. 51, 57 , 612 A.2d 1294 (1992); Mack v. State, 300 Md. 583, 600 , 479 A.2d 1344 (1984). The Court of Appeals observed in Buck that, in considering the latitude afforded to trial judges, the emphasis has consistently been upon granting the broadest range of discretion ... whenever the decision has necessarily depended upon the judge’s evaluation of the ⁴²² character of the testimony and of the trial when the judge is considering the core question of whether justice has been done.... [F]or example, ... “[w]e know of no case where this Court has ever disturbed the exercise of the lower court’s discretion in denying a motion for a new trial because of the inadequacy or excessiveness of damages. ” Id. at 57-58 , 612 A.2d 1294 (quoting Kirkpatrick v. Zimmerman, 257 Md. 215, 218 , 262 A.2d 531 (1970))(Emphasis added). In Buck , the Court also said that “the breadth of a trial judge’s discretion to grant or deny a new trial is not fixed and immutable; rather, it will expand or contract depending on the nature of the factors being considered.... ” 328 Md. at 58-59 , 612 A.2d 1294 .

Thus, “a trial judge has virtually no ‘discretion’ to refuse to consider newly discovered evidence that bears directly on the question of whether a new trial should be granted,” but the trial court’s latitude is at its broadest when the “exercise of [its] discretion depends upon the opportunity the trial judge had to feel the pulse of the trial and to rely on his own impressions in determining questions of fairness and justice.” Id. at 58-59 , 612 A.2d 1294 . Appellant contends that the discretion described in Buck was truncated in this case by the jury’s failure to follow the explicit instructions of the trial court. “It is axiomatic,” appellant states, “that a jury must follow the court’s instructions.” Thus, “if it is found that the jury failed to follow the court’s instructions, the court must set aside the jury verdict.” Appellant takes great pains to insist that the trial court did not have the discretion that is usually afforded to a court deciding a motion for a new trial. He states: So there will be no mistake, Mr. Butkiewicz points out that his argument is not that the jury’s verdict was against the weight of the evidence. A decision on granting a new trial may, in such a case, be left to the discretion of the trial judge.

In the instant case, rather, the jury’s verdict was against the indisputable and undisputed evidence of pain and disfigurement. ⁴²³ We are unpersuaded. Appellant’s