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Tappan v. Higgins12/1/1989
court decision granting a new trial, would in the language of Nelson v. Hartman (Mont. 1982), 648 P.2d 1176, 1179 `. . create a bench supremacy and sap the vitality of jury verdicts.' While the trial court, or this Court sitting as a jury, or another jury, may have awarded plaintiff more for pain and suffering in the year following the accident, we cannot say as a matter of law that substantial evidence did not support the jury's award."
Maykuth, 687 P.2d at 727; Walls v. Rue (Mont. 1988), [233 Mont. 236,] 759 P.2d 169, 171
In contrast, this Court has held that a jury's failure to award damages for pain and suffering constituted an inadequate award where "the evidence clearly indicates that plaintiff suffered serious and painful injury ." Gehnert v. Cullinan (1984), 211 Mont. 435, 439, 685 P.2d 352, 354
Tappan contends that in this case, as in Gehnert, the jury failed to award the proper amount of damages when the evidence has clearly showed injury due to defendant's conduct. Higgins responds that the jury's failure to award greater damages resulted from his attacks on the credibility of Tappan and the certainty of her evidence. Higgins argues that there is substantial credible evidence to support the jury verdict. To resolve this issue, a review of the medical evidence and Tappan's employment history is necessary
Immediately after the collision, Tappan felt pain in her neck and several minutes later felt numbness in both upper extremities. An ambulance transported Tappan to North Valley Hospital where she was treated by Dr. Ricker. He X-rayed her cervical spine and found nothing broken. Dr. Ricker told Tappan she would be sore and advised her to obtain a cervical collar and take medication if necessary
Tappan missed work the next day in that she could not raise her head off her pillow due to intense neck pain. She returned to work the next day in the belief that her symptoms would subside; however, the symptoms persisted and she was then seen by a Dr Heaps, a Kalispell chiropractor
Tappan initially saw Dr. Heaps on August 18, 1986. The doctor took Tappan off work from August 21, 1986 until September 22, 1986. Dr. Heaps testified that he took X-rays on August 18, 1986, and on January 8, 1988. The X-rays showed a mild scoliosis and he diagnosed nerve root irritation and a sprain of the cervical and lumbosacral area. Dr. Heaps treated her with spinal manipulation The doctor's charges for treatment to Tappan were $1,309.50
Dr. Stevens first saw Tappan on March 10, 1987, and obtained a history identifying her problems dating back to the automobile accident on July 29, 1986. Dr. Stevens testified by deposition and opinion that the plaintiff suffered from post-traumatic muscle contraction headaches and myofacial pain syndrome Myofacial pain syndrome is a reoccurrence of muscle pain triggered by spasms. Dr. Heaps agreed with Dr. Stevens' diagnosis of myofacial pain syndrome
Tappan's injuries resulted in her inability to perform her job as bakery manager at Excel Foods. When the plaintiff attempted to perform her regular duties in the bakery, her pain increased and she went through a series of authorizations of absence from work at the direction of Dr. Heaps. After attempting to perform her full bakery manager duties properly for over one year, she terminated her employment with Excel Foods. After a series of unsuccessful jobs, plaintiff now works at Keenan's Jewelry in Kalispell, Montana, earning $4.00 per hour
The evidence presented at trial overwhelmingly shows that the plaintiff could no longer work at the bakery. Dr. Stevens was presented with two job descriptions det
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