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Nielsen v. Port of Bellingham7/30/2001
lsen suffered limited mobility in her arm. Dr. Bergman considered the condition a disability at that point because '{b}y one year most injuries, a fairly good percent are where things are likely to be.' Id. at 239. He further opined that her arm's functionality was 'out of the realm of normal.' Id. at 239. Nielsen testified that she could not perform simple tasks such as getting boxes out of her car, opening doors, or holding onto paperwork.
While the Port claims that Nielsen was totally disabled from 1996 forward due to other injuries unrelated to her wrist injury , this was a contested issue at trial and not an indisputable fact. Nielsen testified that while she had largely recovered from prior injuries she suffered to her back and knee, and from spells of vertigo, she continued to suffer disability due to the limited use of her right arm. The jury was entitled to believe this evidence.
Neither does the Port show that the jury verdict was the result of passion or prejudice. The record in this case provides no indication that the jury was prejudiced or that it was incited by passion to regard the defense case unfairly. Moreover, Nielsen's medical evidence provides a basis for a rational finder of fact to determine that more likely than not Nielsen's disabilities resulting from the injury are permanent, and that she has suffered considerable pain and lost much enjoyment of life as a result of the injury. Accordingly, the jury's award of non-economic damages is neither flagrantly outrageous nor extravagant.
Finally, the Port contends that Nielsen's own assessment of her damages was $150,000, as indicated by her settlement offer. This argument is entirely devoid of merit. As all experienced trial attorneys know, there are many sound reasons for making settlement offers for less than one may hope to obtain through trial, not the least being to avoid the uncertainties, expense and emotional strain of trial. The Port cannot use Nielsen's settlement offer to impeach the jury's verdict.
SUBSTANTIAL JUSTICE
The Port's last basis for seeking a new trial is the catchall argument that 'substantial justice' has not been done. To this end, the Port argues that the verdict was excessive and that collateral issues sidetracked the jury. We have already determined that the verdict was not excessive; neither do we conclude from the record that the jury was distracted by irrelevancies. Moreover, because '{t}here are eight other broad grounds stated in CR 59(a) for the granting of a new trial{,} {r}arely should a new trial be granted on the sole basis that substantial justice has not been done.' Larson v. Georgia Pac. Corp., 11 Wn. App. 557, 562, 524 P.2d 251 (1974) (citing Knecht v. Marzano, 65 Wn.2d 290, 396 P.2d 782 (1964)). None of the Port's contentions on appeal survive close scrutiny, including this one.
Affirmed.
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