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New Trial on Damages Warranted Where Non-Economic Damage Award Was Result of Jury’s “Arithmetic Guesswork”

Yiallourous v. Tolson
No. 773 (Court of Special Appeals of Maryland, March 2, 2012)

by Colleen K. O’Brien, Associate
Semmes, Bowen & Semmes (

The Plaintiff sued the Defendant for negligence related to a motor vehicle accident and claimed damages for pain and suffering, medical expenses, loss of present and future earnings, and loss of consortium. He underwent surgery and physical therapy, but ultimately, was unable to maintain his former job. In addition, after meeting with an employment counselor, he was still unable to secure other gainful employment. During trial, the Plaintiff offered the opinion of a vocational rehabilitation counselor who opined that the Plaintiff was unemployable due to the poor job market, as well as his injuries, age, and lack of qualifications.

After the first trial, the jury found in favor of the Plaintiff and awarded $32,000.88 for past medical expenses, $35,191.80 for past lost wages, $409,787.00 for loss of future wages, $224,010.16 for pain and suffering, and $224,010.16 for loss of consortium. The Defendant filed a Motion for Remittitur and for a New Trial on the issue of damages. The Defendant disputed the testimony of the vocational rehabilitation expert and argued that her testimony was unreliable and lacked an adequate factual basis. Defendant also argued that the amount of non-economic damages awarded were excessive and disproportionate to the injuries sustained. The trial court agreed, ruling that the vocational rehabilitation expert witness testimony was admitted in error since it lacked an adequate factual basis and that the non-economic damages were grossly excessive and shocked the conscience of the Court. Therefore, it ordered a new trial on both liability and damages.

At the second trial, the Defendant requested a Frye-Reed hearing to determine the vocational rehabilitation expert’s qualifications, and at that hearing, it was determined that there was an adequate factual basis for her testimony, and so she was allowed to testify. At the second trial, the jury determined that the Plaintiff was contributorily negligent and awarded no damages. The Plaintiff appealed.

The Plaintiff argued that the Court erred when it granted the Defendant’s Motion for a New Trial. The Court of Special Appeals agreed, finding that when the trial court granted the Defendant’s new trial motion, that it interjected itself and confused the weight of the evidence of the vocational rehabilitation expert with its admissibility. In addition, the Court agreed with the Plaintiff that the Defendant’s challenge of the vocational rehabilitation expert could have been raised prior to the verdict in a Frye-Reed hearing, but that the Defendant did not pursue that option. The Court determined that the trial court’s decision on the issue of non-economic damages was an independent factual matter, and that there was no reason to reverse as to that determination. It commented that it could not escape the conclusion that the jury’s award for non-economic damages was an exercise in arithmetic “guesswork,” which failed to consider what amounts would actually compensate a reasonable person for the pain and suffering of his physical injuries, as a matter separate and distinct from any alleged loss of consortium.

The Court concluded that a new trial should have been granted to retry only the issue of non-economic damages. It vacated the judgment for Defendant entered after the second trial, and remanded the case for a new trial limited to non-economic damages.