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Abbott v. Taz Express11/9/1998
(Super. Ct. No. 716788)
Appeal from a judgment of the Superior Court of Orange County, Ronald L. Bauer, Judge. Affirmed.
This appeal is brought by a personal injury plaintiff who contends a jury award for economic damages ($17,300) is inadequate as a matter of law because her vocational rehabilitation expert testified it would cost more than $115,000 to retrain her for less strenuous employment. In a take off on "baseball arbitration," plaintiff claims the jury was obliged to either accept or reject this expert testimony on a take-it-or-leave-it basis because there was no competing expert to offer different numbers.
Plaintiff suggests the following rule of law: " hen an expert witness testifies to specific dollar amounts, and not to a range of dollar amounts, for particular types of economic damages, and the jury's award is not consistent with any of those specific amounts, either alone or added together, the jury has arbitrarily and improperly disregarded that expert's testimony [ ] . . . [The jury] could either accept or reject the expert's figures; they could not substitute new figures, because there was no evidence from which new amounts could be drawn."
There is no such rule. Plaintiff forgets that between black and white are various shades of gray, and all of the colors of the rainbow as well. What constitutes fair and reasonable compensation in a particular case is a question of fact, and no precise mathematical formula exists. We refuse to transform the jury's inherently subjective task of calculating damages into a mechanical exercise of voting to accept or reject the testimony of any witness in toto. Substantial evidence sustains its discretionary determination of plaintiff's damages.
I.
Plaintiff Madelyn Abbott was employed at the Ritz-Carlton Hotel in Dana Point as a purchasing director. She was injured in September 1994, when a barrel being delivered by defendant Taz Express, a trucking company, toppled onto her right foot. She tried to catch it, but could not support the weight. She went to a clinic the next day, but there were no signs of trauma and she did not miss any work. She did not seek lost wages or medical expenses.
Plaintiff's medical-legal experts determined she suffered from a debilitating neurological condition (reflex sympathetic dystrophy, also known as RSD) and that she would become disabled within three to five years. The defense challenged the severity of her injuries and the "highly questionable nature of medical condition," noting the dispute among the medical experts concerning the RSD diagnosis.
Plaintiff called Amy Bonneau, a vocational consultant, to testify regarding rehabilitation damages. Assuming plaintiff's disability required more sedentary employment, Bonneau recommended plaintiff undergo a year of full-time schooling to become a human resources director. She estimated plaintiff's damages at $115,200, including tuition, one year of lost income during retraining, and six years of reduced income until she progressed to her current income levels.
Bonneau also testified that plaintiff was unable to perform routine household chores because of chronic pain, which she valued at $11 per hour. So measured, she calculated Abbott's past domestic losses as exceeding $15,000, plus $4,600 per year for future loss of domestic services. Finally, Bonneau assessed plaintiff's relocation expenses at $70,000 to move to a single-story residence to avoid having to climb stairs.
The jury returned with a total verdict of $62,300, with $17,300 in economic damages and $45,000 in non-economic damages. After factoring in comparative fault, judgment was entered
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