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Thompson v. City of Bozeman9/15/1997
of the vehicles were minimal. Like Dr. Irion's testimony, Dr. Lee's testimony relates to whether the vehicle accident caused Thompson injury. Because Dr. Lee's testimony did not relate to whether Thompson experienced pain and suffering after the accident, it does not controvert, or conflict with, the evidence presented by Thompson on that issue.
Next, the City asserts that Jeffers' testimony provides a basis for the jury's zero damage award for pain and suffering because she stated that Thompson did not exhibit pain when doing modified job duties and did not exhibit pain during the entirety of the four months following the accident during which she continued to work at the Motel. Contrary to the City's assertion, however, Jeffers' testimony does not controvert Thompson's testimony that she experienced pain and suffering. As discussed above, Jeffers testified that she witnessed Thompson exhibit signs of pain when performing certain job tasks during at least the first month or two after the accident; indeed, she modified Thompson's job duties as a result of the pain Thompson was experiencing. Thus, while the Jeffers testimony on which the City relies is relevant to the extent of Thompson's pain and suffering, it does not controvert, or conflict with, Thompson's evidence regarding the existence of pain and suffering resulting from the vehicle accident.
The City also points out that, on cross-examination, Thompson testified that notwithstanding her claims of significant pain, she did not ask for prescription pain medication or seek medical attention other than from a chiropractor; to the extent she took medication, it was two aspirin on an irregular basis. This testimony, however, does not controvert the existence of Thompson's pain and suffering; it relates only to the extent of that pain and suffering.
Finally, the City argues that the jury's zero damage award for pain and suffering could have reflected a finding that any pain Thompson was still experiencing at the time of trial was attributable to a work-related injury she suffered four months after the accident and that evidence of the later injury supports the zero damage award for pain and suffering. The City's argument in this regard, however, does not account for or relate to the evidence presented of Thompson's pain and suffering during the four months between the vehicle accident and the work-related injury. The evidence of Thompson's work-related injury merely goes to the extent and allocation of her pain and suffering rather than to the existence of pain and suffering resulting from the vehicle accident.
We previously have addressed partial zero damage awards in light of uncontroverted evidence supporting the particular damage award at issue. In Brockie, the personal representative of an estate brought wrongful death and survivorship actions against a construction company. The jury made a substantial damage award in the wrongful death action, but awarded none of the damages for funeral and medical expenses and loss of future earning capacity requested in the survivorship action. Brockie, 887 P.2d at 168. The district court denied the plaintiff's motion for a partial new trial on survivorship damages and the plaintiff appealed. Brockie, 887 P.2d at 168-69. The record established that all of the plaintiff's evidence regarding survivorship damages was either stipulated to, or uncontradicted by, the defendant. Brockie, 887 P.2d at 170. Under such circumstances, we held that the jury did not have the choice of whether to believe one party over the other and, as a result, the jury's verdict on survivorship damages was "impossible" because no substantial evidence supported the jury's failure to award su
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