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Haselden v. Davis6/19/2000
it. Based on this testimony, the jury could conclude Hill had suffered even before she became aware of the serious nature of her illness.
F. Mortality Tables
Davis additionally argues the court erred in permitting the jury to use the South Carolina mortality tables in the absence of any evidence that Hill could have lived to her full life expectancy. We disagree.
The trial court charged the jury as follows:
In determining how long the decedent would have lived, had the decedent lived a normal life, you may consider her life expectancy at the time of her death. The mortality table received in evidence may be considered in your determining how long the plaintiff may be expected to live. Such tables are not binding on you but may be considered together with other evidence in the case bearing on the plaintiff's health, age and physical condition before the injury and death in determining the probable length of the plaintiff's life.
If you find that this defendant was not negligent towards this plaintiff or rather the plaintiff decedent or that the actions were not the proximate cause in the case of the plaintiff's injuries, then you should disregard this table and the plaintiff's life expectancy. (emphases added).
A jury charge that is substantially correct when read as a whole and adequately covers the law does not require reversal. Regarding the use of mortality tables in litigation, the legislature has provided:
When it is necessary, in any civil action or other mode of litigation, to establish the life expectancy of any person from any period in his life, whether he be living at the time or not, the table below shall be received in all courts and by all persons having power to determine litigation as evidence (along with other evidence as to his health, constitution and habits) of the life expectancy of such person.
In addition, the supreme court has held, "It is proper to charge the mortality tables in a personal injury action when there is evidence of permanent injury."
Here, the jurors were advised they were not bound by the mortality table in determining Hill's life expectancy. In addition, there was evidence as to Hill's chance of survival if her cancer had been treated in 1991. Accordingly, we find no abuse of discretion in the trial court's instruction regarding the jury's use of the mortality table.
G. Thirteenth Juror
Davis contends the trial court erred in declining his motion for a new trial under the thirteenth juror doctrine. We find no error.
"Under the 'thirteenth juror doctrine,' a trial judge may grant a new trial absolute when he finds the evidence does not justify the verdict. This ruling has also been termed a granting of a new trial upon the facts."
In reviewing the denial of a motion for a new trial under the thirteenth juror doctrine, we consider only whether there is any evidence to support the trial court's decision. To reverse such a denial, we must find the moving party was entitled to a directed verdict at trial. As discussed above, there was expert testimony to support a finding that the proximate cause of Hill's premature death was Davis's failure to timely read and act on her 1991 mammogram. We therefore uphold the trial court's refusal to grant a new trial under the thirteenth juror doctrine.
AFFIRMED.
CURETON, J., and MOREHEAD, A.J., concur.
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