No. 89-342
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
SHERRI LENORE TAPPAN,
Plaintiff and Respondent,
-VS-
JEFFERY C. HIGGINS,
Defendant and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Michael Keedy, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Stephen C. Berg; Warden, ~hristiansen,Johnson & Berg,
Kalispell, Montana
For Respondent :
David W. Lauridsen; Bothe & ~auridsen,Columbia Falls,
Montana
Submitted on ~riefs: Aug. 31, 1989
Decided: December 1, 1989
Justice John C. Sheehy delivered the Opinion of the Court..
Defendant, Jeffery C. Higgins, appeals an order of the
Flathead County District Court granting a new trial to the
plaintiff, Sherri Lenore Tappan. In a personal injury
action, the jury found in favor of the plaintiff in the
amount of $3,450.00. plaintiff moved for a new trial on the
ground of inadequacy of damages and the trial court granted
the motion. Defendant now appeals the ~istrictCourt order.
We affirm.
The sole issue on appeal is: Whether the District Court
abused its discretion in granting Tappan's motion for a new
trial.
On July 29, 1986, Tappan and Higgins were involved in an
automobile accident on Highway 93 near whitefish, Montana.
Tappan's vehicle was struck from behind by HigginsVehicle
while Tappan attempted to make a left hand turn. Tappan's
vehicle sustained approximately $5,000.00 in damages and was
totaled. In addition, Tappan sustained neck injuries.
Tappan sued Higgins in ~istrict Court for damages
consisting of medical expenses, lost past and future income,
and general damages. In the pretrial order, defendant
Higgins admitted negligence. The case went to trial on the
issues of proximate cause and plaintiff's damages.
In closing argument, Tappan's counsel asked the jury to
award $15,118.53 in past wage loss, $400.00 in miscellaneous
expenses, $51,870.00 in future wage loss, $4,385.59 in past
medical expenses, and $15,000.00 each for pain and suffering
and loss of enjoyment of life, for an approximate total of
$100,000.00. ~iggin's counsel advised the jury to award
$6,300.00 of past wage loss, nothing for future wage loss,
$400.00 for miscellaneous expenses, and an unspecified amount
for pain and suffering and loss of enjoyment of life.
The jury returned the verdict for Tappan in the amount.
of $3,450.00, allocating $2,400.00 to past wage loss, $200.00
for miscellaneous expenses, and $850.00 for past medical
expenses.
Tappan moved the court for a new trial pursuant to S
25-11-102(6), MCA, for insufficiency of the evidence to
justify the verdict. The ~istrict Court granted Tappan's
motion.
~ i g g i n sargues on appeal that the ~istrictCourt abused
its discretion in ordering a new trial because there was
substantial credible evidence in the record supporting the
jury's verdict. Tappan contends that the jury overlooked the
overwhelming evidence of her damages, and the judge properly
granted her a new trial.
In granting Tappan's motion for a new trial, the
~istrict Court found the verdict was not supported by the
evidence pursuant to Rule 59fa), M.R.civ.P., and S
25-11-102 (6), MCA.
The decision to grant or deny a new trial is within the
sound discretion of the trial court, Fredericksen v.
Fredericksen (1980), 185 Mont. 548, 605 P.2d 1135, 1137, and
will not be overturned absent a showing of manifest abuse of
that discretion. ~ i l e sv. Flint Val. Forest Products (1979),
179 Mont. 382, 387, 588 P.2d 535, 538; Walter v. Evans
Products Company (1983), 207 Mont. 26, 31, 672 P.2d 613, 616.
This Court recognizes that only in rare cases should a jury
verdict be set aside and a new trial granted. Nevertheless,
though the amount is solely within the province of the jury,
the jury is not given carte blanche. Sanders v. Mount ~ a g g i n
~ivestock Co. (1972), 160 Mont. 73, 89, 500 P.2d 397, 406.
Some substantial evidence must exist to support the jury
verdict. Maykuth v. Eaton (1984), 212 Mont. 370, 373, 687
In Maykuth, the ~istrict Court held insufficient as a
matter of law a $700.00 award for pain and suffering. We
reversed the holding:
To permit the undoing of this verdict by affirming
the trial court decision granting a new trial,
would in the language of Nelson v. Hartman (Mont.
1982), 648 P.2d 1176, 1179 ". . . create a bench
supremacy and sap the vitality of jury verdicts."
While the trial court, or this Court sitting as a
jury, or another jury, may have awarded plaintiff
more for pain and suffering in the year following
the accident, we cannot say as a matter of law that
substantial evidence did not support the jury's
award.
Maykuth, 687 P.2d at 727; Walls v. Rue (Mont. 1988), 759 P.2d
169, 171.
In contrast, this Court has held that a jury's failure
to award damages for pain and suffering constituted an
inadequate award where "the evidence clearly indicates that
plaintiff suffered serious and painful injury. I Gehnert v.
'
Cullinan (Mont. 1984), 211 Mont. 435, 439, 685 ~ . 2 d
352, 354.
Tappan contends that in this case, as in Gehnert, the
jury failed to award the proper amount of damages when the
evidence has clearly showed injury due to defendant's
conduct. ~igginsresponds that the jury's failure to award
greater damages resulted from his attacks on the credibility
of Tappan and the certainty of her evidence. Higgins argues
that there is substantial credible evidence to support the
jury verdict. To resolve this issue, a review of the medical
evidence and Tappan's employment history is necessary.
Immediately after the collision, Tappan felt pain in her
neck and several minutes later felt numbness in both upper
extremities. An ambulance transported Tappan to North Valley
~ospitalwhere she was treated by Dr. ~icker. He x-rayed her
cervical spine and found nothing broken. Dr. Ricker told
Tappan she would be sore and advised her to obtain a cervical
collar and take medication if necessary.
Tappan missed work the next day in that she could not
raise her head off her pillow due to intense neck pain. She
returned to work the next day in the belief that her symptoms
would subside; however, the symptoms persisted and she was
then seen by a Dr. Heaps, a Kalispell chiropractor.
Tappan initially saw Dr. Heaps on August 18, 1986. The
doctor took Tappan off work from August 21, 1986 until
September 22, 1986. Dr. Heaps testified that he took x-rays
on August 18, 1986, and on January 8, 1988. The x-rays
showed a mild scoliosis and he diagnosed nerve root
irritation and a sprain of the cervical and lumbosacral area.
Dr. Heaps treated her with spinal manipulation. The doctor's
charges for treatment to Tappan were $1,309.50.
Dr. Stevens first saw Tappan on March 10, 1987, and
obtained a history identifying her problems dating back to
the automobile accident on July 29, 1986. Dr. Stevens
testified by deposition and opinion that the plaintiffs'
suffered from post-traumatic muscle contraction headaches and
myofacial pain syndrome. Myofacial pain syndrome is a
reoccurrence of muscle pain triggered by spasms. Dr. Heaps
agreed with Dr. Stevens' diagnosis of myofacial pain
syndrome.
Tappan's injuries resulted in her inability to perform
her job as bakery manager at Excel Foods. When the plaintiff
attempted to perform her regular duties in the bakery, her
pain increased and she went through a series of
authorizations of absence from work at the direction of Dr.
Heaps. After attempting to perform her full bakery manager
duties properly for over one year, she terminated her
employment with Excel Foods. After a series of unsuccessful
jobs, plaintiff now works at Keenan's Jewelry in Kalispell,
Montana, earning $4.00 per hour.
The evidence presented at trial overwhelmingly shows
that the plaintiff could no longer work at the bakery. Dr.
Stevens was presented with two job descriptions detailing the
plaintiff's duties as a bakery manager and cake decorator,
both of which he disapproved due to the lifting, bending and
twisting requirements of those occupations.
Bob Markus, manager of Excel Foods, concurred with Dr.
Stevens that Tappan could no longer perform her job at the
bakery. Mr. Markus stated that the plaintiff's work was
satisfactory and she was able to perform her duties prior to
the accident. ~ollowing the accident, however, Mr. Markus
noted that the plaintiff did not look well and that she was
occasionally tearful. Markus testified that Tappan was not
able to physically perform her job following the automobile
accident. Markus speculated that had Tappan been able to
continue her job as bakery manager, she would be earning
$10.50 per hour plus benefits as of the time of trial.
Both parties hired experts to determine Tappan's wage
loss. ~ e n n i s O'Donnell, an economics professor at the
university of Montana, calculated Tappan's past wage loss,
including benefits, at $17,922.32, based upon a loss of
$8,645.00 per year. Over a ten year period, Professor
O'Donnell, estimates Tappan economic loss is $100,598.00.
The defense expert, Barbara Muellen, vocational
rehabilitation consultant, opined that Tappan lost $1,654.75
in 1986 and $9,562.00 in 1987, for a total wage loss of
$11,217.51. Thus the defendant's own expert's opinion of
Tappan's wage loss is approximately $8,800.00 more than the
jury awarded Tappan in their verdict. Clearly the evidence
at trial does not support a wage loss damage of only
$2,400.00.
The jury awarded Tappan nothing for loss of future
earnings or earning capacity. This portion of the verdict is
also not supported by the evidence. Dr. Stevens testified
that Tappan's injury permanently excluded her from working as
a cake decorator and bakery manager. Brian Moltslag, a
vocational specialist, concluded at trial that Tappan could
not continue in the bakery field due to the physical
limitations imposed by Dr. Stevens. Her employer, Bob Markus
testified that Tappan could now be earning $10.50 per hour or
in excess of $1,700.00 per month. Tappan's current
employment at Keenan's Jewelry pays Tappan $4.00 per hour.
Though the evidence clearly supported future wage loss
damages, the jury chose to grant the plaintiff nothing for
the loss of earning capacity.
The jury awarded Tappan $850.00 in medical expenses.
This reduced amount is unsubstantiated by the evidence. That
evidence reveals that Tappan incurred $4,385.59 in medical
expenses as a direct result of treatment related to injuries
sustained in the accident. The evidence presented at trial
justified a verdict for past medical expenses in excess of
the $850.00 award.
The jury did not award damages for pain and suffering,
nor for Tappan's loss of the capacity to pursue an
established course of life. In examining the pain and
suffering of Tappan, it is once again clear that the jury
disregarded the weight of the evidence presented at trial.
Both Drs. Stevens and Heaps determined Tappan suffered from
myofacial pain sydrome. Mr. Markus stated that he had
observed Tappan in tears due to pain on several occasions
following the accident. Dr. Heaps testified that he noted
consistent spasms in Tappan's neck, and the pain from these
spasms played a role in removing Tappan from work and later
limiting her to part-time work. This pain, severely limited
Tappan's lifestyle, and changed her course of life.
While the evidence for pain and suffering is not as
abundant as the evidence for loss of wages, there is
substantial evidence to support a jury award greater than
zero. The evidence presented at trial does support some
award for pain and suffering.
The defense presented no medical testimony of its own,
but instead attacked the plaintiff's case by attempting to
discredit Tappan herself. Higgins maintains that there is
substantial credible evidence to support the jury verdict.
Higgins contends, now, as he did in the ~istrictCourt, that
the question of Tappan's pain and suffering rests on her
credibility. Defendant argues that Tappan's pain was
subjective, and that her credibility regarding the amount of
bending and lifting required by the bakery job was put into
question by testimony of her former employer. while there is
conflicting evidence in regard to job requirements at the
bakery, the overwhelming evidence in the record supports the
plaintiff's position that she can no longer work at the
bakery.
Defendant also contends that Tappan saw no health care
provider following the accident. ~ccordingto Higgins, this
allowed the jury to conclude that she was either not injured
or her injury was slight. Furthermore, Higgins claims that
Tappan aggravated her symptoms by returning to work against
her doctor's orders. ina ally, the defendant argues that
Tappan exaggerated her past and future wage loss. The jury,
according to Higgins, chose to believe defendant's expert
witness on wage loss, and this is reflected in the verdict.
The defendant is correct in his assertion that the jury
verdict is determined in large part by the credibility of the
party and the witnesses. However, in this case, there are
some glaring discrepancies in the amount of damages presented
at trial and the verdict handed down by the jury aside from
the credibility of any witness.
The ~istrict Court was correct in holding that the
verdict was not supported by the evidence; in effect the
evidence was insufficient to justify the verdict. section
25-11-102(6), MCA. The District Court did not abuse its
discretion in granting a new trial. We affirm the ~istrict
Court.
We Concur: A
A
Chief ~ustice
Justices
Honorable L. C. Gulbrandson, concurring:
I concur in the result.
h7r,&k Justice
Honorable R. C. McDonough, concurring : /
I concur in the result.
Justice
Justice Fred J. Weber did not participate.