From CUMMINGS (CALVIN) VS. STEELE (BURNICE W.), ET AL., NPO, COA 3/11/2011

The decision of whether to grant a motion for a new trial based upon
inadequate or inconsistent damages “‘. . . . is a discretionary function assigned to the trial judge who has heard the witnesses first-hand and viewed their demeanor and who has observed the jury throughout the trial’.” Cooper v. Fultz, 812 S.W.2d 497, 501 (Ky. 1991) (quoting Davis v. Graviss, 672 S.W.2d 928, 932 (Ky.1984)), abrogation on other grounds recognized by Sand Hill Energy, Inc. v. Ford Motor Co., 83 S.W.3d 483 (Ky.2002). The trial court’s ruling will be upheld unless it is clearly erroneous. Id. A factual finding is not clearly erroneous if it is supported by substantial evidence. Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky.1998). Therefore, we must determine whether substantial evidence existed to support the trial court’s decision to deny Cummings’ motion for a new trial.

 jury’s decision to award damages for medical expenses and lost
wages but not to award damages for pain and suffering is not a legal inconsistency. Miller v. Swift, 42 S.W.3d 599, 601 (Ky. 2001). Kentucky law does not require a jury to award pain and suffering damages in every case in which it awards medical expenses. Id. Instead, the question of whether a jury’s award of damages is inadequate requires an examination of the underlying evidence. Id. at 602.

Evidence that contradicts the jury’s decision is not enough to show inadequacy. The jury is given the responsibility of evaluating the evidence and determining the credibility of witnesses. A jury is not bound to believe any particular witness. Spaulding v. Sprinkle, 774 S.W.2d 465, 467 (Ky. Ct. App. 1989).

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While juries are not required to award pain and suffering damages each time a plaintiff is compensated for medical expenses, “. . . . where a substantial personal injury is sustained, suffering is presumed.” Schriewer v. Schworer, 296 Ky. 749, 178 S.W.2d 598, 599 (1944). Based upon the uncontroverted evidence of Cummings significant injuries and the inadequacy of the award, we conclude that the trial court’s Order was clearly erroneous.