Kelly v. Builders Square, Inc

Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan Michael F. Cavanagh

Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman

____________________________________________________________________________________________________________________________

FILED JULY 24, 2001

NORMA KELLY,

Plaintiff-Appellee,

v No. 113314

BUILDERS SQUARE, INC.,

Defendant-Appellant.

____________________________________

BEFORE THE ENTIRE BENCH

CORRIGAN, C.J.

We granted leave in this premises liability case to

determine whether the trial court erroneously granted a new

trial on damages following the original jury verdict. The

original jury found defendant negligent, but awarded only

plaintiff’s medical expenses without rendering any award for

pain and suffering. The trial court, in response to a

specific inquiry from the first jury during deliberations, and

with the agreement of both parties, had earlier instructed

that the jury had no duty to award any damages, even if it

found defendant negligent. In response to plaintiff’s motion

for new trial, the trial court thereafter ordered a partial

retrial on damages only to determine an appropriate award for

pain and suffering. On retrial, the jury awarded plaintiff

$150,000 in noneconomic damages. The Court of Appeals

affirmed in an unpublished, two-to-one decision.1 We reverse

and remand to the trial court for entry of judgment on the

original verdict because the trial judge had no legal basis to

set it aside.

I. UNDERLYING FACTS AND PROCEDURAL HISTORY

On May 17, 1991, plaintiff Norma Kelly and her husband

patronized defendant’s store in Ypsilanti. As plaintiff

walked down an aisle containing a stack of large boxes of

electric fans, some boxes fell. At least one box struck

plaintiff’s head and right shoulder. Neither plaintiff nor

her husband knew how or why the boxes had fallen.

Plaintiff reported pain in her right shoulder. She was

transported by ambulance to a local hospital. Examination

there reflected that plaintiff had full range of motion in her

right shoulder. An x-ray of plaintiff’s shoulder also

revealed no abnormality. Plaintiff was released from the

Unpublished opinion per curiam, issued July 31, 1998

(Docket No. 199501).

hospital the same day. She later followed up with her family

physician who prescribed physical therapy.

It was not until thirty months following the accident

that plaintiff first began treating with Dr. Ralph Blasier, an

orthopedic surgeon. After examining plaintiff and reviewing

an MRI, Dr. Blasier diagnosed a tear in the rotator cuff

muscle of plaintiff’s right shoulder and muscle impingement.

Dr. Blasier surgically removed part of the bone to relieve the

impingement. However, he saw no evidence of a rotator cuff

tear during surgery. He testified that “common sense”

suggested that the incident at defendant’s store had caused

plaintiff’s injury.

Plaintiff testified that the operation alleviated her

pain only “a little bit.” She claimed that her injury still

prevented her from various activities such as driving,

swimming, shopping, and crocheting.

Dr. Paul Kelly, another orthopedic surgeon, examined

plaintiff for the defense. He saw no reason to restrict any

of plaintiff’s activities. He opined that it would be quite

unusual for a blow to the top of the shoulder to cause a

rotator cuff injury or impingement. He stated: “I’ve never

seen a mechanism injury to the rotator cuff as a direct result

of a blow to the top of the shoulder.”

After retiring to deliberate, the jury forwarded

questions: “Can we agree on negligence and offer no money?

What is the minimum monetary amount . . . if there is

negligence?” Plaintiff and defense counsel thereafter

specifically agreed to an instruction that the jury could find

negligence but not award damages and that the jury need not

award any amount of damages. The court then furnished a

written instruction to the jury consistent with the parties’

agreement.2

The jury thereafter returned a verdict finding defendant

negligent. The jury awarded plaintiff medical expenses

totaling $10,227, but awarded nothing for noneconomic damages.

Plaintiff then moved for a new trial on damages only. Relying

on Fordon v Bender, 363 Mich 124; 108 NW2d 896 (1961), and

Mosley v Dati, 363 Mich 690; 110 NW2d 637 (1961), she asserted

that wherever a jury finds negligence and awards medical

expenses, it must also award damages for pain and suffering.

In its reply, the defense countered that a jury is not

required to award damages for pain and suffering.

The trial court granted a new trial on damages only. The

court did not mention the parties’ stipulated instruction in

its ruling:

2
The judge who presided over the trial and granted the

new trial motion was not present during deliberations when the

jury sent this note. A substitute judge gave the jury the

written instruction to which the parties had agreed.

I did follow this case. I did have the

opportunity to personally observe the credibility

and the demeanor of the complaining witnesses in

this case. And there was extensive testimony about

the damages that occurred as the result of the

alleged negligence of the defendants.

* * *

Once having established that there was

negligence and establishing proximate cause and

accepting the validity–and we had a special verdict

form as to what that $10,227 constituted, i.e., the

medical expenses including surgery for the

treatment of this woman, it is absolutely

incongruous, it is absolutely inconsistent to then,

based on that evidence, conclude there was no pain

and suffering, there was no disability, there was

no other “non-economic damages” that they were

instructed on in the past, the present or the

future.

Following retrial, a second jury awarded plaintiff

$150,000 for “physical pain and suffering, mental anguish,

denial of social pleasure and enjoyments and embarrassment” in

the past, present, and future.

In a two-to-one decision, the Court of Appeals affirmed

the trial court’s decision to grant a new trial. The

dissenting judge opined:

There is no legal requirement that a jury

award damages simply because liability was found.

Joerger v Gordon Food Service, Inc, 224 Mich App

167, 173; 568 NW2d 365 (1997). Indeed, the

plaintiff bears the burden of proving damages, and

a jury is free to accept or reject such proofs.

Id. at 172-173. The original jury in this case had

the best opportunity to understand all the issues

and evidence involved, and its refusal to award

noneconomic damages should have been respected. I

would affirm the original jury verdict. The

granting of a new trial on the issue of damages was

wholly gratuitous. If in fact a new trial was

warranted, the entire case should have been

submitted to the jury. [Slip op, p 1.]

This Court granted leave to appeal “limited to whether

the trial court erred in ordering a second trial on the issue

of damages.” 462 Mich 861 (2000).

II. STANDARD OF REVIEW

On appeal, we review a trial court’s decision whether to

grant a new trial for an abuse of discretion. Bean v

Directions Unlimited, Inc, 462 Mich 24, 34; 609 NW2d 567

(2000); Brown v Arnold, 303 Mich 616, 627; 6 NW2d 914 (1942).

We review de novo any questions of law that arise. Cardinal

Mooney High School v Michigan High Sch Athletic Ass’n, 437

Mich 75, 80; 467 NW2d 21 (1991).

III. ANALYSIS

A. The jury’s prerogative to assess pain and suffering

This Court has long recognized that the authority to

measure damages for pain and suffering inheres in the jury’s

role as trier of fact. See, e.g., Griggs v Saginaw & F R Co,

196 Mich 258; 162 NW 960 (1917); Michaels v Smith, 240 Mich

671; 216 NW 413 (1927).

In Brown, supra, a jury awarded only the amount of the

medical expenses to a severely injured plaintiff.3 The

The verdict form had not differentiated medical

expenses from pain and suffering.

6
plaintiff sought a new trial on the ground that the verdict

was grossly inadequate and against the great weight of the

evidence. This Court affirmed the denial of a new trial:

“The adequacy of amount of a verdict is also

generally a matter for the jury. We do not

substitute our judgment on this question unless a

verdict has been secured by improper methods,

prejudice, or sympathy. Michaels v Smith, 240 Mich

671 [216 NW 413 (1927)]. No such showing has been

made, nor is the verdict so inadequate as to shock

the judicial conscience. Watrous v Conor, 266 Mich

397 [254 NW 143 (1934)].” Campbell v Brown, 276

Mich 449, 454 [267 NW 877 (1936)].

In Sebring v Mawby, 251 Mich 628[232 NW 194

(1930)] this court said: “The law furnishes no

exact rule by which damages for pain and suffering

can be measured. Their determination must

necessarily be left to the good sense and sound

judgment of the jury in their view of the evidence.

It has frequently been said by courts and text
writers that the award of the jury will not be

disturbed unless it is so great as to shock the

judicial conscience or unless it was induced by

something outside of the evidence, such as passion

or prejudice. There is no claim of any such

influence in this case. In view of the evidence,

we cannot say that the verdict was excessive.”

In Cleven v Griffin, 298 Mich 139 [141; 298 NW

482 (1941)] we also said: “No complaint is made by

appellants that the jury was not properly

instructed as to the element of damages. No claim

is made that the verdict was obtained by improper

methods, prejudice or sympathy. There is no

absolute standard by which we can measure the

amount of damages in personal injury cases. The

amount allowed for pain and suffering must rest in

the sound judgment of the triers of the facts.

Watrous v Conor, 266 Mich 397 [254 NW 143 (1934)];

Weil v Longyear, 263 Mich 22 [248 NW 536 (1933)].

Courts are reluctant to disturb verdicts of juries

for personal injuries on the ground that the amount

is excessive. Cawood v Earl Paige & Co, 239 Mich

485 [214 NW 402 (1927)]. We do not usually

substitute our judgment for that of the jury unless

the verdict shocks the conscience or has been

secured by improper means, prejudice or sympathy.

Watrous v Conor, supra, Michaels v Smith, 240 Mich

671 [216 NW 413 (1934)]. The verdict was within

the range of the testimony and not excessive.

See, also, Nezworski v Mazanec, 301 Mich 43 [2

NW2d 912 (1942)].

We cannot substitute our opinion for that of

the jury as to the proper amount of damages to

allow plaintiff for pain and suffering. [Brown at

627-629.]

In a trio of cases decided between 1958 and 1961, Weller

v Mancha, 353 Mich 189; 91 NW2d 352 (1958), Fordon, supra, and

Mosley, supra, this Court ordered new trials where a jury had

failed to award damages for pain and suffering. This Court

did not acknowledge the Brown case in any of those opinions.

In Weller, the plaintiff sued for automobile negligence

and obtained a jury verdict “in the exact amount of the out

of-pocket expenses for medical, hospital and funeral bills and

damage to the automobile, [but] nothing was allowed for pain

and suffering and nothing for loss of support.” Id. at 195

(citations omitted). This Court ordered a new trial:

The jury verdict was for the exact amount of

the stipulated special damages of the deceased. It

is apparent that no consideration was given by the

jury to the additional elements of the pain and

suffering of the deceased and the future damages of

the widow and minor child, and, therefore, the

damages awarded to plaintiff were overwhelmingly

against the evidence, and, under the evidence,

grossly inadequate. [Id. at 195-196.]

In Fordon, the defendants admitted liability for damages

resulting from an automobile accident. The issue of damages

was tried before a jury, leading to an award for the medical

expenses and damage to the vehicle, but not for pain and

suffering. This Court reversed and remanded for a new trial,

relying in part on Weller:

In allowing plaintiff to recover for his

special damages, the jury must necessarily have

found that he suffered injuries proximately caused

by defendant’s negligence. The court properly

instructed the jury with respect to its duty to

award such special damages in the event it found

that defendants proximately caused plaintiff’s

injuries. The court also properly charged that in

that event plaintiff should be awarded, in

addition, an “amount that will compensate him as

far as money can compensate him for the pain and

suffering that he has endured.” There was much

disputed testimony relating to plaintiff’s medical

history and physical condition both prior and

subsequent to the collision here involved.

Defendants sought to prove that plaintiff’s

injuries had been caused by other events,

principally athletic and body conditioning

activities in which he engaged rather extensively,

and, of course, plaintiff sought to prove his claim

that the injuries were caused by defendants. The

jury resolved the dispute in plaintiff’s favor by

its verdict, which included damages for plaintiff’s

medical expenses. The jury’s verdict, however,

manifests a disregard of the court’s quoted

instruction by its failure to award damages for

pain and suffering. Once the jury resolved the

causation dispute, the great weight of the evidence

compelled it to award plaintiff damages for the

pain and suffering which naturally followed such

injuries found by the jury to have been proximately

caused by defendants. [Fordon at 125-126.]

In Mosley, this Court again ordered a new trial after the

jury awarded the precise amount of medical expenses resulting

from automobile negligence. This Court reviewed the evidence

of pain and suffering and, relying on Fordon, concluded that

“the great weight of the evidence preponderates in favor of a

finding that plaintiff did, in fact, endure pain and suffering

as a result of the injuries caused by defendants’ negligence.”

Mosley at 692.

Weller, Fordon, and Mosley did not create a legal rule

mandating pain and suffering damages whenever a jury finds

negligence and awards medical expenses. Rather, those

decisions analyzed the great weight of the evidence on the

facts presented. Subsequent cases have emphasized the

deference traditionally accorded to a jury’s assessment of

damages in accordance with the principles discussed in Brown,

supra. See, e.g., A’eno v Lowry, 367 Mich 657; 116 NW2d 730

(1962); Moore v Spangler, 401 Mich 360; 258 NW2d 34 (1977).

B. CODIFICATION OF BASES FOR GRANTING A NEW TRIAL

The grounds for granting a new trial, including a verdict

contrary to the great weight of the evidence, are now codified

at MCR 2.611(A)(1). The court rule provides the only bases

upon which a jury verdict may be set aside. Thus, Weller,

Fordon, and Mosley are no longer relevant. A jury’s award of

medical expenses that does not include damages for pain and

suffering does not entitle a plaintiff to a new trial unless

the movant proves one of the grounds articulated in the court

rule.

Plaintiff has not shown why she was entitled to a new

trial under the court rule. She instead relies on Fordon and

Mosley.

Similarly, the trial court did not cite any basis in the

court rule for setting aside the original jury verdict. It

merely stated that the failure to award pain and suffering

damages was “inconsistent” and “incongruous.” MCR 2.611(A)(1)

does not identify inconsistency or incongruity as a ground for

granting a new trial. The court abused its discretion by

granting a new trial without finding a basis in the court

rule.

We reject, in any event, the principle that a jury

behaves inconsistently when it awards medical expenses, but

nothing for pain and suffering. Plaintiff had the burden to

prove each element of her case, including every item of

claimed damages. Medical expenses and pain and suffering are

distinct categories of damages. Each category may have a

distinct evidentiary basis. For example, a claimant’s own

testimony about her subjective experiences is generally

offered to prove pain and suffering. When a jury believes

that a plaintiff has suffered an injury and incurred medical

expenses, it may still assess separately any distinct proofs

regarding pain and suffering.

In short, the jury is free to credit or discredit any

testimony. It may evaluate the evidence on pain and suffering

differently from the proof of other damages. No legal

principle requires the jury to award one item of damages

merely because it has awarded another item.

Instead of finding a basis in the court rule for granting

a new trial, the trial court and Court of Appeals majority

expressed views regarding the credibility of witnesses.

Assessing credibility and weighing testimony is the

prerogative of the trier of fact. The trial court therefore

abused its discretion in granting a new trial.

IV. RESPONSE TO THE DISSENT

The dissent opines that the great weight of the

evidence--a basis for setting aside a jury verdict under our

current rule--justified the grant of a new trial in this case.

But the trial court did not review the evidence under that

standard;4 thus, there is no exercise of discretion by the

4
Contrary to the dissent’s assertion, the record does

not reflect that the trial court applied the great weight of

the evidence standard. Because Weller, Fordon, and Mosley

referred to the great weight of the evidence, the dissent

speculates that the trial court here applied that standard.

This rationalization of the trial court’s decision has no

basis in the court’s actual ruling. Moreover, Weller, Fordon,

and Mosley were decided on other bases in addition to the

great weight of the evidence, thus further undermining the

dissent’s chain of reasoning.

trial court under that standard for us to review.5

The dissent also states that our application of MCR

2.611(A)(1) “puts us out of step with the position embraced by

virtually every other state.” Slip op at 1. We are not “out

of step” with other states when we reinstate a jury verdict

that the trial court lacked a legal basis to set aside. We

have satisfied our duty to apply our court rule codifying the

bases for granting a new trial.

Next, the dissent observes that a jury verdict may be set

aside where it is “contrary to law.” MCR 2.611(A)(1)(e). The

dissent views an inconsistent or incongruent verdict as

“contrary to law.” Slip op at 2, n 2. We need not construe

that phrase because the trial court did not employ the

dissent’s interpretation as a basis for granting a new trial.

The court did not find that the verdict was “contrary to law.”

But even if a jury verdict may be set aside on the basis

of inconsistency under our current rule, the trial court did

not apply the standard in existing case law for reviewing

inconsistent verdicts. If a verdict appears inconsistent, a

The dissent states that our description of the

underlying facts and procedural history, “impliedly casts”

doubt on plaintiff’s credibility. We reject this

characterization. The original jury in this case resolved

credibility issues when it declined to award damages for pain

and suffering. We base our decision solely on the trial

court’s failure to find a basis in the governing court rule to

upset the jury’s verdict.

court must “make every effort to reconcile the seemingly

inconsistent verdicts.” Bean, supra at 31, quoting Lagalo v

Allied Corp, 457 Mich 278, 282; 577 NW2d 462 (1998). A new

trial may not be granted if an interpretation of the evidence

logically explains the jury’s findings. Id. The trial court

did not apply this standard.

V. CONCLUSION

A court may grant a new trial following a jury verdict

only for one of the reasons stated in MCR 2.611(A)(1). On the

facts presented here, the trial judge lacked a legal basis to

grant a new trial. Accordingly, we reverse the Court of

Appeals and remand to the trial court for entry of a judgment

consistent with the original jury verdict.

TAYLOR , YOUNG , and MARKMAN , JJ., concurred with CORRIGAN , C.J.

WEAVER , J., concurred in the result only.

S T A T E O F M I C H I G A N

SUPREME COURT

NORMA KELLY,

Plaintiff-Appellee,

v No. 113314

BUILDERS SQUARE, INC.,

Defendant-Appellant.
___________________________________

KELLY, J. (dissenting).

Today the majority ignores the command of settled

Michigan precedent and puts us out of step with the position

embraced by virtually every other state.1 Because the initial

jury rendered a flawed verdict, it was altogether appropriate

for the trial court to grant a partial new trial. No error is

alleged with respect to the second jury's verdict.

Accordingly, I would sustain it and affirm the opinion of the

Court of Appeals.

1
See Anno: Validity of Verdict Awarding Medical Expenses

to Personal Injury Plaintiff, But Failing to Award Damages for

Pain and Suffering, 55 ALR4th, pp 186-232.

Where a verdict in a civil case is inconsistent, self

contradictory or incongruent, it must be set aside and a new

trial granted. Harrington v Velat, 395 Mich 359, 360; 235

NW2d 357 (1975), quoting 66 CJS, New Trial, § 66, pp 197-198.

See also Bias v Asbury, 369 Mich 378; 120 NW2d 233 (1963); 58

Am Jur 2d, New Trial, § 129, pp 335-336; Bartholomew v Walsh,

191 Mich 252, 261-262; 157 NW 575 (1916). The first jury in

this case rendered such a verdict.2

Also, it is without question that Michigan law requires

a new trial where the verdict is against the great weight of

the evidence. See MCR 2.611(A)(1)(e). Longstanding precedent

establishes that a personal injury jury verdict that awards

damages for medical expenses, yet awards nothing for pain and

suffering is against the great weight of the evidence. Weller

v Mancha, 353 Mich 189; 91 NW2d 352 (1958); Fordon v Bender,

363 Mich 124; 108 NW2d 896 (1961); Mosley v Dati, 363 Mich

690; 110 NW2d 637 (1961). In this case, as in Fordon:

2
The majority submits that inconsistent and incongruent

verdicts are invalid grounds for granting a new trial because

those very words do not appear in MCR 2.611. I find this

approach unduly rigid. Under Michigan law, an inconsistent

verdict means a legally irreconcilable one. Hence, a legally

irreconcilable verdict is contrary to law. MCR 2.611(A)(1)(e)

provides that a verdict contrary to law is grounds for a new

trial.

The jury resolved the dispute in plaintiff's

favor by its verdict, which included damages for

plaintiff's medical expenses. The jury's verdict,

however, manifests a disregard of the court's

quoted instruction by its failure to award damages

for pain and suffering. Once the jury resolved the

causation dispute, the great weight of the evidence

compelled it to award plaintiff damages for the

pain and suffering which naturally followed such

injuries found by the jury to have been proximately

caused by defendants. [Id. at 125-126 (emphasis

added).]

In this case, the court instructed the first jury on the

elements of damages that it was required to consider, pursuant

to SJI2d 50.01, 50.02. That instruction provided, in part:

You should include each of the following

elements of damage which you decide has been

sustained by plaintiff to the present time:

a. physical pain and suffering

b. mental anguish . . . .

The jury disregarded these instructions. It found

defendant liable and awarded damages that matched the exact

amount of plaintiff's medical expenses. Its award of actual

damages, coupled with the nature of plaintiff's injuries

necessitating surgery, compels the conclusion that the jury

found injuries that included pain and suffering. Its verdict

was both inconsistent with the judge's instructions and

contrary to the great weight of the evidence under the clear

holdings of Weller, Fordon, and Mosley.

The cases relied on by the majority do not support its

conclusion. They leave undisturbed the rule that a verdict

against the great weight of the evidence requires a new trial.

Instead, they stand for the general proposition that the court

should not substitute its judgment for that of the jury on

factual questions. In fact, the reasoning they employ appears

to support, not conflict with, the trial judge's decision in

this case.

Brown,3 the case relied on most heavily by the majority,

is distinguishable from this case. The distinction lies in

the fact that the verdict in Brown was not for actual damages,

alone, but exceeded actual damages by $9.50. There was

evidence that the excess was the amount of the plaintiff's

ambulance fare, but there was no evidence that the plaintiff

was charged for ambulance services.

Moreover, there was evidence in Brown that the defendant

paid for various of the plaintiff's expenses during the two

months after her release from the hospital. The Court

considered this evidence and decided that the jury may have

believed this adequate compensation for present pain and

suffering and thus awarded only a minuscule additional amount.

Additionally, the Court pointed to other factors suggesting

that the jury actually had followed its instructions that it

consider awarding compensatory damages.

3
Brown v Arnold, 303 Mich 616; 6 NW2d 914 (1942).

It concluded that the jury may have determined a higher

award to be unjustified by the proofs. The judge observed

that the lower award could have been derived from the paucity

of evidence showing that the plaintiff's pain and suffering

was permanent. Thus, the Brown Court denied a new trial,

refusing to speculate on the purpose behind the jury's

decision to award a small amount of excess compensation.

By contrast, in this case, plaintiff received nothing

whatsoever beyond her medical expenses. Hence, there was

nothing about which the trial court could speculate. Clearly,

no damages for pain and suffering were awarded.

Defendant insists that the issue before us centers on the

trial judge's response to the question submitted by the first

jury shortly before it rendered its decision.4 The jury's

question was whether damages must be awarded upon a finding of

negligence. The response was: a jury may find negligence and

award no damages. It was legally correct.5 If, for example,

4
The majority notes that all parties agreed to the

substance of the judge's written response to the jury's query.

I find this fact unremarkable, given the propriety of, and the

lack of grounds for objection to, the judge's answer.

5
The majority fails to acknowledge that the jury found

more than mere "negligence," given its decision to award

actual damages. It is blackletter law that plaintiff would not

be entitled to any award at all if defendant's "negligence"

did not proximately cause her injuries. Therefore, we must

(continued...)

the jury found that the defendant's acts were negligent, but

not the proximate cause of the plaintiff's injuries, it would

find no damages. It could make the same finding in the

presence of negligence and proximate cause where no damages

had been proven. Here, because the jury failed to award

compensatory damages despite clear instructions and

unrebutted, credible evidence6 of pain and suffering, the

5
(...continued)

conclude that the first jury found proximate cause as well as

negligence. This resulted in liability.

Indeed, there is a distinction between the concept of

negligence in the broadest sense, encompassing all four

traditional elements, and negligence in the sense that it is

commonly used. In common usage, "negligence" describes a mere

breach of duty, a notion entirely severable from the elements

of proximate cause and damages. As Prosser & Keeton, Torts

(5th ed), §30, pp 164-165, observes:

A failure on the person's part to conform to

the standard required: a breach of the duty. These

two elements go to make up what the courts usually

have called negligence, but the term quite

frequently is applied to the second alone. Thus it

may be said that the defendant was negligent, but

is not liable because he was under no duty to the

plaintiff not to be. [Emphasis added.]

See also Davis v Thornton, 384 Mich 138, 146; 180 NW 2d

11 (1970) (finding that once negligence is found, "[t]he jury

must then bridge the gap between the plaintiff's injuries and

the defendant's negligence. This is the determination of cause

and the remoteness of effect.").

6
Had the jury not found plaintiff credible, it would not

have awarded her actual damages. Having found an injury caused

by defendant's negligence and an injury and surgery that

naturally occasion pain, it was improper for the jury to avoid

some award of noneconomic damages. That is the law of our

(continued...)

verdict was against the great weight of the evidence.

III

The majority contends that later revision of the bases

for granting new trials resulted in the de facto overruling of

Weller, Fordon, and Mosley. It postulates that the decisions

"are no longer relevant" because MCR 2.611(A) alone provides

the basis for awarding a jury verdict. I disagree.

The court rule allows for a new trial where a verdict is

contrary to the great weight of the evidence. Weller, Fordon,

and Mosley identify factual instances where a court found a

verdict was contrary to the great weight of the evidence. As

the majority indicates, Weller provides:

It is apparent that no consideration was given

by the jury to the additional elements of the pain

and suffering of the deceased . . . and, therefore,

the damages awarded to plaintiff were

overwhelmingly against the evidence. . . . [Weller,

supra at 195-196.]

MCR 2.611(A) represents a codification of the principles in

Weller, Fordon, and Mosley. It is consistent with those

opinions and does not in the least nullify them.

The jury verdict in this case was virtually identical in

form to those generated in Weller, Fordon, and Mosley.

Plaintiff justifiably relied on the principles found in those

6
(...continued)

state as set forth in Weller, Fordon, and Mosley, and the law

that should govern our analysis of this case.

cases for valid reasoning to demonstrate that the first jury

returned a verdict contrary to the great weight of the

evidence. Since the judge's decision to award a partial new

trial on damages was consistent with those cases and with the

court rule, it was not an abuse of discretion.7

The majority concludes that the trial court abused its

discretion by failing to review the evidence for a violation

of the court rule. The opinion suggests that the judge

improperly substituted his opinion for that of the jury when

he "expressed views regarding the credibility of witnesses."

Slip op at 13. However, the majority does its own indirect

assessment of witness credibility when referencing selective

portions of the testimony that reflect plaintiff's case as too

weak to warrant a new trial. Slip op at 2-3. Thus, the

majority states that its decision is based on the court rule.

However, it intimates that defendant produced sufficient

evidence to avoid a finding that the verdict went against the

7
The majority contends that the trial court abused its

discretion by not granting a new trial on one of the bases

codified in MCR 2.611. The trial court based its ruling on

the principles found in the Weller trio of cases. Those cases

involved decisions granting new trials because the verdict was

against the great weight of the evidence. Such verdicts are

grounds for a new trial under MCR 2.611(A)(1)(e). The

majority's statement to the contrary, this is the standard

under which the trial court reviewed the evidence in this

case.

great weight of the evidence. It stresses that the question

centered on credibility, something exclusively in the domain

of the trier of fact. By so casting the evidence and

analysis, the majority avoids showing appropriate deference to

the trial judge's fitting efforts to rule on the legality of

the verdict.

As our Court of Appeals has observed:

[T]he standard used in this case is different

than that involved in reviewing a summary

disposition, directed verdict, or judgment

notwithstanding the verdict, and we are not of the

view that the existence of any competent evidence

to support the verdict compels reversal of the

grant of a new trial. [Arrington v Detroit

Osteopathic Hosp (On Remand), 196 Mich App 544,

560-561; 493 NW2d 492 (1992) (emphasis added).][8]

Reflecting on the struggle to give appropriate deference

to the trial court's judgment and respect for the collective

wisdom of the jury, one legal scholar has written:

If, having given full respect to the jury's

findings, the judge on the entire evidence is left

with the definite and firm conviction that a

mistake has been committed, it is to be expected

that he will grant a new trial. [Wright, Law of

Federal Courts (4th ed), § 95, p 635.]

8
See also Davis v Belmont Creamery Co, 281 Mich 165,

169; 274 NW 749 (1937) (finding a jury verdict to be against

the great weight of the evidence despite the existence of a

question of fact sufficient to avoid a judgment

notwithstanding the verdict); Dean & Longhofer, Michigan Court

Rules Practice, New Trials § 2611.7 (West, 1998) ("Between

these extremes lies an area in which the proof begins to weigh

heavily against the verdict, where the trial judge's

discretion must be accepted as the best guide to whether

fairness requires a new trial.").

I believe the proper standard to apply to this case allows

considerable deference to the trial judge's decision while, at

the same time, respecting the collective wisdom of the jury.

That deference was given by Michigan courts in Davis and

Arrington and was described by Professor Wright.

Without question, the mere fact that defendant produced

an expert witness does not foreclose the possibility that the

first verdict was contrary to the great weight of the

evidence. Consider the substance of the testimony from

defendant's only witness, Dr. Kelly. The defense's physician

acknowledged on cross-examination that he had not performed a

shoulder surgery of the type at issue in "five or six years."

He admitted that only forty percent of his professional time

is spent dealing with patients directly.

In evaluating plaintiff, Dr. Kelly spent only twenty to

twenty-five minutes. He declined to review her medical

records or operative notes from plaintiff's surgery; he failed

to review her physical therapy records; he declined to order

orthopedic tests, such as an MRI or an arthrogram; he had no

knowledge of the prior tests that had been performed on the

patient.

Hence, when the majority references select portions of

Dr. Kelly's testimony it misleads the reader with the

implication that they constitute a basis for reversal of the

lower court's grant of new trial. Such a conclusion is

unsubstantiated, given the majority's disregard for the need,

when reviewing the grant of a new trial, to balance the

deference due the jury with that due the judge. In my

opinion, the testimony of Dr. Kelly, standing alone, is

insufficient to support a conclusion that the trial judge

abused his discretion in granting a new trial.

The majority's "underlying facts" section cites Dr.

Blasier's inability to locate the tear in plaintiff's rotator

cuff during surgery. It implies that the nondiscovery lends

support to its finding that the trial judge erred. The same

section also notes that X-rays failed to show evidence of the

torn rotator cuff. This is a lopsided version of the evidence.

As Dr. Blasier explained in his testimony, and Dr. Kelly

acknowledged, the tear suffered by plaintiff would not have

been visible from the vantage point of the surgeon during

surgery. This is because it occurred on the underside of the

rotator cuff muscle and would have been obscured from the

surgeon's view by the top of the muscle. Moreover, Dr. Kelly

acknowledged on cross-examination that X-rays do not show

partial muscle tears or impingements of the kind complained of

by plaintiff. Therefore, the doubt that the majority

impliedly casts on plaintiff's credibility by suggesting that

her injuries, if real, would have appeared on an X-ray is

unavailing.9

Indeed, the evidence of pain and suffering is undisputed

and unimpeached. Dr. Kelly, the only defense witness,

addressed the subject of pain three times, each time only to

acknowledge its existence. Plaintiff's witnesses, on the other

hand, testified in great detail about the pain Ms. Kelly

endured. Dr. Blasier stated that each time plaintiff merely

raised her arm, she experienced pain. There was testimony

from Donald Kuck, plaintiff's physical therapist, Ernest

Kelly, plaintiff's husband, and plaintiff, herself. Each

presented the jury with a detailed description of the nature

and severity of the pain.

Therefore, I disagree that the trial judge erroneously

granted a new trial, and I reject the proposition that the

trial court reviewed the evidence under an inapplicable

standard. Inasmuch as the first jury failed to consider an

award of noneconomic damages, its verdict was properly found

to be contrary to the great weight of the evidence. The

testimony of a lone defense witness does not render the trial

court's finding unreasonable. Rather, the great weight of the

9
The record reflects that MRI tests, viewed by medical

professionals as the most accurate means of diagnosing and

identifying partial muscle tears, showed plaintiff's torn

muscle before and after surgery. Additionally, Dr. Blasier

testified that, once he injected dye into plaintiff's shoulder

muscle, he was able to view the tear in an X-ray.

evidence easily could have been found to militate against the

first jury verdict, notwithstanding the brief testimony

offered by Dr. Kelly. There was no abuse of discretion.

I agree with the majority that "the jury is free to

credit or discredit any testimony" offered at trial. Slip op

at 12. However, the jury may not disregard or misapply clear

instructions from the court. In this case, the jury was

instructed to include in its verdict "elements of damages" for

"physical pain and suffering" as well as "mental anguish." It

neglected to do so.

The settled law of our state requires an award of

noneconomic damages where a jury finds actual damages that

necessarily involve pain and suffering. A verdict that fails

to consider these aspects is contrary to the great weight of

the evidence. Such a verdict was rendered in this case. That

fact alone provides a sufficient basis to affirm the trial

judge's decision to award plaintiff a new trial.

The majority's finding that the trial court abused its

discretion by not citing one of the bases in MCR 2.611 as

support for its decision is in error. The court rule codifies

the great weight of the evidence standard applied in the

Weller trio of cases. The trial court did review the evidence

under a great weight of the evidence standard. That is, after

all, the standard for which the Weller cases are known.

The evidence of plaintiff's pain and suffering in this

case was unrebutted and unimpeached. The only witness

testifying against plaintiff was a physician who acknowledged

that plaintiff had experienced rotator cuff pain. Even if

defendant's expert had denied the pain, denial of the motion

for new trial would have been unjustified, given the quality

and quantity of the evidence of plaintiff's pain.

Thus, if a factual dispute existed, as suggested by the

majority's "underlying facts and procedural history" section,

it is of no consequence. It could not render the trial

judge's decision an abuse of discretion. Accordingly, the

trial court's decision to grant a partial new trial was

correct. The Court of Appeals decision upholding the second

jury's verdict should be affirmed.

CAVANAGH , J., concurred with KELLY , J.

Kelly v. Builders Square, Inc

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