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Thompson v. City of Bozeman9/15/1997
rt an award of damages for pain and suffering. Summarized briefly, that evidence included Thompson's testimony that, on the day after the accident, she began to feel pain in her back during the latter part of her housekeeping shift at the Super 8 Motel (Motel) and, by the end of her evening shift as a cashier at WalMart, she could hardly move. A few days later, she began treatment with Dr. Ronald Hecht, a chiropractor. Dr. Hecht treated Thompson for back and neck pain approximately 53 times in the four months following the accident. Thompson testified that her symptoms included numbness and tingling in her right arm, headaches at the base of her skull, and pain in her lower back and neck. The chiropractic treatments relieved her pain for several hours, but she needed a treatment each morning in order to be able to work a full shift at the Motel and she also needed to wear a lower back brace for a month following the accident. Thompson's job duties at the Motel were modified because the repeated bending and lifting required in cleaning rooms intensified the pain in her neck and lower back.
Dr. Hecht diagnosed Thompson as having loss of lordotic curve of the cervical spine, radiculitis (numbness and tingling in her arm) due to intervertebral disc syndrome in the neck, thoracic lumbar sprain/strain, and subluxation of vertebrae. His objective examination and diagnosis paralleled Thompson's subjective descriptions of her symptoms and, in his opinion, Thompson suffered a real injury in the accident which was painful and uncomfortable for her.
Lisa Jeffers (Jeffers), Thompson's supervisor at the Motel, testified that she noticed visible signs of pain in Thompson following the vehicle accident when Thompson attempted to do any work involving bending or heavy lifting. As a result, she modified Thompson's job duties to remove tasks which involved bending, twisting and lifting. She testified that Thompson gradually resumed normal job duties over the course of several months.
The referenced testimony from Thompson, Dr. Hecht and Jeffers clearly would support an award for pain and suffering damages. Indeed, although it is within the jury's province to weigh the evidence and determine credibility, a jury is not free to disregard uncontradicted, credible, nonopinion evidence. Brockie v. Omo Construction (1994), 268 Mont. 519, 522, 887 P.2d 167, 169 (citing Putnam v. Pollei (1969), 153 Mont. 406, 413, 457 P.2d 776, 780). The City contends, however, that testimony from three witnesses controverts Thompson's evidence regarding her pain and suffering, creates conflicting evidence on the issue and supports the jury's award of zero damages for pain and suffering. We disagree.
First, the City asserts that the testimony of its expert witness, Dr. Mark Irion, directly controverts Dr. Hecht's testimony regarding Thompson's injury . It is true that Dr. Irion's interpretation of Thompson's spine x-rays differed from Dr. Hecht's and that, in Dr. Irion's opinion, Thompson did not suffer an injury as a result of the accident. However, Dr. Irion's testimony related to whether the accident was the cause of injury to Thompson. In short, Dr. Irion was a causation witness who opined that the City's admitted negligence did not cause Thompson injury; he was not a damages witness. Thus, Dr. Irion's testimony does not controvert, or conflict with, that of Thompson, Dr. Hecht and Jeffers on the issue of Thompson's pain and suffering.
The City also argues that the jury's zero damage award for pain and suffering is supported by the testimony of Dr. Denman Lee, an accident reconstructionist, which indicated that the forces exerted on Thompson as a result of the very low speed impact
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