In the case of Gatewood v. Duvall, unpublished, the Court of Appeals was called upon to consider, again, whether a plaintiff is entitled to a new trial when a jury awards medical expenses but nothing for pain and suffering. After a three day jury trial, the jury awarded $2,895.00 for past medical expenses but nothing for pain and suffering. Gatewood argued that the jury verdict was nonsensical. He attempted to distinguish Miller v. Swift by claiming that probative evidence of pain and suffering was introduced. This probative evidence was Gatewood's own claims of pain and those of his physicians, based on his own subjective statements. The Court held that a jury is not required to believe a plaintiff's claims of pain and suffering. It also noted that evidence was introduced from which the jury could have concluded that any pain Gatewood suffered was from conditions or injuries unrelated to the accident. The award of medical bills was not inconsistent and could have reflected a belief that Gatewood deserved to have his medical condition fully evaluated. It affirmed the trial court order.
Commentary: This case bears interest to me partly because Mike Krauser and I defended Mr. Duvall. It also raises an interesting issue regarding post Miller v. Swift cases when no pain and suffering is awarded. In this case, and typically, plaintiff will move for a new trial under CR 59.01 for inadequate damages based on "passion or prejudice." The decision to grant a new trial is "discretionary". The standard is whether or not the decision is "clearly erroneous." If there is substantial evidence to support the verdict the decision is not "clearly erroneous."
Under this analysis the question really isn't whether the jury verdict is "inconsistent". The real question is whether there was evidence supporting the judge's decision. The emphasis is on evidence the jury could have considered in awarding nothing. Not, as often argued, on the jury's reasons for awarding medical expenses and not pain and suffering. (Although that too was mentioned in this case). Evidence of prior or subsequent injuries or accidents is always going to support a judge's denial of a new trial in this case.
What about those cases where the only evidence of pain and suffering is the testimony of the plaintiff that is not rebutted by this evidence. Can a jury disregard that evidence (as noted) and still award nothing? If so, what is the substantial evidence upon which the judge's decision is based? While this result is often found in cases involving soft tissue injuries, can a similar result be reached when an objective observable injury is found. If so, is there a point when an injury requires an award of pain and suffering as a matter of law? Does a jury typically award pain and suffering in those cases or does a judge typically grant a new trial, leaving this a moot point? Does the award of medical expenses fit into this analysis at all? Whatever the case it appears well settled that an award of medical expenses without an award of pain and suffering does not, by itself, require a new trial.