Walls v. Rue

No. 88-85

I N THE SUPREME COURT OF T H E S T A T E O F MONTANA

1988

J A N I E ANDERSON WALLS,

P l a i n t i f f and A p p e l l a n t ,
-vs-
MARY RUE,
D e f e n d a n t and. R e s p o n d e n t .

A P P E A L FROM: D i s t r i c t C o u r t of t h e N i n t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of T o o l e ,
T h e H o n o r a b l e R . D . M c P h i l l i p s , Judge p r e s i d i n g .

COUNSEL O F RECORD:

For A p p e l l a n t :

S t e p h e n D. Roberts, Bozeman, Montana

For R e s p o n d e n t :

W a r d e n , C h r i s t i a n s e n , Johnson & B e r g ; Stephen C . B e r g ,
K a l i s p e l l , Montana

S u b m i t t e d on B r i e f s : June 2 , 1 9 8 8
Decided: A u g u s t 11, 1 9 8 8

Filed: ~ V 11
S mff

Clerk
Mr. Justice R. C. McDonough delivered the Opinion of the
Court.

This appeal from the Ninth Judicial District presents a
single issue for review: Should a new trial be ordered on
damages under Gehnert v. Cullinan where the jury in its
special verdict found both that plaintiff's injuries were
caused by defendant's negligence and that plaintiff would
incur future medical expenses for treatment of those inju-
ries, yet failed to award plaintiff anything for future pain
and suffering and other elements of damage?
We decline to order a new trial and affirm.
Appellant Walls sued respondent Rue for injuries stem-
ming from an automobile accident which occurred on November
14, 1 9 8 5 . The action went to trial before a jury on July 1,
1987. At the end of the defendant's case, the lower court
directed a verdict for plaintiff Walls on the issue of lia-
bility. The jury was then instructed to determine damages by
answering questions posed through a special verdict. The
verdict form and the jury's answers appeared as follows:
We, the jury, answer the questions submitted
to us in this Special Verdict as follows:
I. Was the Plaintiff injured?
X Yes No
If your answer is "yes," go to the next ques-
tion. If your answer is "no," then skip the re-
maining questions and simply sign the verdict.
11. Was the Defendant's negligence a cause of
injury to the Plaintiff?
X Yes No.
If your answer is "yes," go to the next ques-
tion. If your answer is "no," then skip the re-
maining questions and simply sign the verdict.
 111. What is the amount of money that will compen-
sate the Plaintiff for her injury?
Medical Expenses to Date: $ 2000.00
Future Medical Expenses: $ 2800.00
Pain and Suffering to Date: $ 100.00
Future Pain and Suffering: $ --
Lost Earnings to Date: $ --
Lost Earning Capacity: $ --
Loss of Enjoyment of Life to Date: $ 100.00
Future Loss of Enjoyment of Life: $ --
DATED this 3rd day of July, 1987.

s/ jury foreman

After the verdict, the District Court denied Walls's
motion for new trial for an inadequate award, and also denied
Walls's motion for reconsideration.
Walls argues on appeal that the jury's failure to award
more damages runs counter to the evidence. Walls speculates
that the jury ignored the evidence showing her damages be-
cause some of the jurors, as revealed during voir dire,
considered other jury awards excessive. Rue responds that
the jury based its failure to award other damages on substan-
tial credible evidence. We agree with Rue.
In Maykuth v. Eaton (Mont. 19841, 687 P.2d 7261 41
St.Rep. 1800, the District Court held insufficient as a
matter of law a $700 award for pain and suffering. We re-
versed holding that:

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 (1982),
Mont., 648 P.2d 1176, 1179, 39 St.Rep. 1409, 1412,
"...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.
We have also emphasized that:

Our function in reviewing the sufficiency of
proof of actual damages is to determine whether
there is substantial credible evidence in the
record to support the jury's verdict. We must view
the evidence in a light most favorable to Lauman,
the prevailing party below, and where the record
presents conflicting evidence, resolved by the
jury, this Court is precluded from disturbing the
verdict. This rule is particularly applicable when
the District Court has passed on the sufficiency of
the evidence on motion for new trial and has upheld
its sufficiency.
Lauman v. Lee (Mont. 1981), 626 P.2d 830, 833, 41 St.Rep.
499, 502.
On the other hand, 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 the plaintiffs
suffered serious and painful injury. The injury to
Harold Gehnert's back is such that it may have been
rebroken and there was evidence that he was perma-
nently injured and disabled. Lina Brenner suffered
a relapse into a severe depression and while her
physical injuries may have been modest, they were
accompanied by pain. Her testimony indicated hair
had been pulled from her head. The jury found in
this case that the Cullinans committed wrongful
acts toward the plaintiffs, and their attack on the
plaintiffs was the cause of the injuries sustained.
Liability having been established, it was the
jury's duty to award damages for pain and suffering
for the serious injuries suffered.
Gehnert v. Cullinan (Mont. 1964), 685 P.2d 352, 354, 41
St.Rep. 372, 375.
Walls contends that in this case, as in Gehnert, the
jury failed to award damages when evidence clearly showed
injury due to the defendant's conduct. Rue responds that the
jury's failure to award greater damages resulted from the
defendant's attacks on the credibility and certainty of
evidence presented by Walls. To resolve this issue, a review
of the medical evidence is necessary.
The injury occurred to Walls's shoulder. X-rays taken
shortly after the accident revealed no skeletal injuries, and
the contusion to Walls's shoulder was described by the treat-
ing physician as not serious.
However, medical testimony from depositions read into
the record indicated that Walls's shoulder did not heal
properly. One physician's impression was that Walls suffered
from "rotator cuff tendinitis and possibly mild adhesive
capsulitis of the left shoulder along with chronic cervical
strain." Another's impression was "strain of the left shoul-
der with soft tissue tenderness and probably perifibrosis".
Both agreed that use of the shoulder in physical therapy
could improve the condition. One physician explained:

Perifibrosis basically is tightness of the
tissues around the shoulder, and I think my impres-
sion was that her complaints and her findings were
pretty much related to her shoulder girdle, includ-
ing the area between her shoulder blades as [sic]
the shoulder itself and that the perifibrosis is a
stiffness or lack of resiliency of the muscles and
ligaments because it's been injured and protected
and allowed to heal without motion or even if
trying to move it, enough soreness was there to
keep it from moving well, and that it was the lack
of resiliency of the tissues, or the fibrosis of
the tissues, that was causing a lot of the problems
at the present time.
 A third physician provided no diagnosis for Walls stat-
ing that, "I don't have a diagnosis for her. I don't know
why she has her symptoms." A fourth suspected "vasomotor
reflex sympathetic dystrophy syndrome", and a fifth coined
the condition as "chronic pain syndrome", answering queries
from counsel as follows:

Q. Are you comfortable with your opinion that this
is a permanent condition?
A. I don't think you can say any condition is
permanent other than death, right. Hopefully her
condition will improve and go away. But at this
point in time, I think she has chronic pain syn-
drome. Hopefully it will be alleviated, but as to
a time and a date and how long, I don't think
anybody in the world can tell you that.
The physician testifying in the above quote also stated
that his office notes indicated that Walls had a separate
injury to her back after the accident. Another physician
testified that the severity of the injury might have resulted
from its interaction with a preexisting condition.
Walls and other witnesses testified that the injury
caused loss of enjoyment and loss of past employment due to
pain. Walls also presented evidence indicating that pain,
loss of enjoyment, and loss of earning's capability would
continue into the future.
The defense presented no medical testimony of its own,
but attacked the plaintiff's case by attempting to discredit
Walls herself, and by pointing to the uncertainty character-
izing the source, nature, and degree of the injury. For
example, the defense contended that evidence showed: Walls
had not properly documented her employment history after the
accident, Walls had not properly followed physical therapy
recommendations, and Walls engaged in activities which
inferred that the injury was not restrictive. Rue also
contended that the failure of one physician to diagnose a
condition inferred the condition did not exist.
Rue' s contentions find support from evidence in the
record, and viewing the evidence in a light most favorable to
Rue, we hold that the record supports the adequacy of the
award. Thus, Walls contention that the jury ignored damages
from a clear injury fails.
Walls also argues that the jury's failure to award
anything for future pain and suffering, future loss of enjoy-
ment of way of life, and future lost earning capacity, while
at the same time awarding damages for future medical expens-
es, is illogical. This inconsistency, according to Walls,
shows that the jury ignored the instructions on damages. We
disagree.
Walls testified that:

Q. So am I correct then that from the time you
stopped therapy in Shelby which would be about
February of '86 until January of '87 when you had
Dr. Powell's therapy through Mr. Havens, you didn't
[sic] not have therapy?
A. No, I didn't.

The lower court instructed the jury that:

It is the duty of a person who has been in-
jured to use reasonable diligence in caring for her
injuries and reasonable means to prevent their
aggravation and to accomplish healing. When one
does not use reasonable diligence in caring for her
injuries and they are aggravated as a result of
such failure, the liability, if any, of another
whose act or willing omission was a proximate cause
of the original injuries, must be limited to the
amount of damage that would have been suffered if
the injured person herself had exercised the dili-
gence required of her.
As set out in the medical testimony summarized above, at
least one physician held the opinion that Walls suffered from
perifibrosis, and that perifibrosis is a stiffness or lack of
resiliency of the muscles and ligaments because of an injury
which has been protected and allowed to heal without motion.
The obvious inference is that Walls should have better
pursued therapy following the termination of her treatment in
Shelby, and the jury's award for future medical expenses
covers the treatment which should have been pursued earlier.
Under these circumstances, the lack of an award for other
future damages could have followed from the instruction set
out above. We hold that Walls has failed to show that the
jury ignored the instructions.
We affirm.