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Tappan v. Higgins12/1/1989
ailing the plaintiff's duties as a bakery manager and cake decorator, both of which he disapproved due to the lifting, bending and twisting requirements of those occupations
Bob Markus, manager of Excel Foods, concurred with Dr. Stevens that Tappan could no longer perform her job at the bakery. Mr Markus stated that the plaintiff's work was satisfactory and she was able to perform her duties prior to the accident. Following the accident, however, Mr. Markus noted that the plaintiff did not look well and that she was occasionally tearful. Markus testified that Tappan was not able to physically perform her job following the automobile accident. Markus speculated that had Tappan been able to continue her job as bakery manager, she would be earning $10.50 per hour plus benefits as of the time of trial
Both parties hired experts to determine Tappan's wage loss Dennis O'Donnell, an economics professor at the University of Montana, calculated Tappan's past wage loss, including benefits, at $17,922.32, based upon a loss of $8,645.00 per year. Over a ten year period, Professor O'Donnell estimates Tappan economic loss is $100,598.00. The defense expert, Barbara Muellen, vocational rehabilitation consultant, opined that Tappan lost $1,654.75 in 1986 and $9,562.00 in 1987, for a total wage loss of $11,217,51. Thus the defendant's own expert's opinion of Tappan's wage loss is approximately $8,800.00 more than the jury awarded Tappan in their verdict. Clearly the evidence at trial does not support a wage loss damage of only $2,400.00
The jury awarded Tappan nothing for loss of future earnings or earning capacity. This portion of the verdict is also not supported by the evidence. Dr. Stevens testified that Tappan's injury permanently excluded her from working as a cake decorator and bakery manager. Brian Holtslag, a vocational specialist, concluded at trial that Tappan could not continue in the bakery field due to the physical limitations imposed by Dr. Stevens. Her employer, Bob Markus testified that Tappan could now be earning $10.50 per hour or in excess of $1,700.00 per month. Tappan's current employment at Keenan's Jewelry pays Tappan $4.00 per hour. Though the evidence clearly supported future wage loss damages, the jury chose to grant the plaintiff nothing for the loss of earning capacity
The jury awarded Tappan $850.00 in medical expenses. This reduced amount is unsubstantiated by the evidence. That evidence revealed that Tappan incurred $4,385.59 in medical expenses as a direct result of treatment related to injuries sustained in the accident. The evidence presented at trial justified a verdict for past medical expenses in excess of the $850.00 award
The jury did not award damages for pain and suffering, nor for Tappan's loss of the capacity to pursue an established course of life. In examining the pain and suffering of Tappan, it is once again clear that the jury disregarded the weight of the evidence presented at trial. Both Drs. Stevens and Heaps determined Tappan suffered from myofacial pain syndrome. Mr. Markus stated that he had observed Tappan in tears due to pain on several occasions following the accident. Dr. Heaps testified that he noted consistent spasms in Tappan's neck, and the pain from these spasms played a role in removing Tappan from work and later limiting her to part-time work. This pain severely limited Tappan's lifestyle, and changed her course of life
While the evidence for pain and suffering is not as abundant as the evidence for loss of wages, there is substantial evidence to support a jury award greater than zero. The evidence presented at trial does support some award for pain and suffering
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