Damges and Zero Pain: MCCULLOCH V. SULLIVAN (COA 8/17/2007)

MCCULLOCH V. SULLIVAN
TORTS:  DAMAGES – MILLER V. SWIFT and ZERO PAIN AND SUFFERING VERDICT
2006-CA-000482
PUBLISHED: AFFIRMING
PANEL: NICKELL PRESIDING; COMBS AND MOORE CONCUR
COUNTY: FAYETTE
DATE RENDERED: 8/17/2007

This appeal involved a trial court’s denial of plaintiff’s new trial motion and judgment NOV for a zero pain and suffering (and inconvenience) verdict in a trial in which medical testimony supported pain and suffering and the plaintiff was awarded nearly $18,000 in medicals and nearly $14,000 in wage loss. Two other errors raised involved the zero verdict for an impairment award and the zero pain and suffering verdict were both contrary to the evidence, and that she should have been awarded a directed verdict on liability..

In addressing this "Miller v. Swift" issue, Judge Nickell noted "[a]s a reviewing court, however, we focus not on what the jury did, but rather on what the trial court did . . . . [and] will presume the trial court’s denial of a JNOV or a new trial to be correct and will reverse only upon a finding of clear error."

The plaintiff noted she had two doctors give unrefuted testimony about her pain (herniated disc and disectomy), but the defendant argued "there was sufficient evidence from which jurors could, and did, conclude [plaintiff] had a high threshold for pain . . . ."  The COA agreed with the defendant.

While there was testimony from which jurors could conclude McCulloch [injured plaintiff] experienced pain as a result of the collision with Sullivan [defendant], there was also sufficient evidence from which they could just as easily conclude she did not. Keeping in mind that jurors are “not bound to believe a plaintiff or her doctors,” Spalding v. Shinkle, 774 S.W.2d 465, 467 (Ky.App. 1989), we cannot say the jury’s verdict was unrelated to the evidence. We therefore cannot say the trial court abused its discretion and clearly erred in overruling the motions for a JNOV or, alternatively, for a new trial.

Digested by Michael Stevens

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