Miller v. Swift was applied by the COA in the following decision.  In affirming the trial court decision, the COA stated in support of its conclusion, that

Sufficient probative evidence was presented which directly challenged Turner’s claims that she had undergone additional pain and suffering as a result of the automobile collision with Stone. Evidence suggested that Turner failed to indicate a knee injury at the time of the accident, that her knee injury may have been aggravated by other circumstances, and that she may have exaggerated the severity of the automobile accident. Accordingly, we cannot hold that the trial court exhibited clear error by denying Turner a new trial.

The COA then summarized the testimony,

In the case presently before us, a significant portion of Turner’s trial was devoted to determining the cause of her injuries. Dr. Michael Gilhuly testified that Turner sought treatment on December 27, 2007. However, this was approximately one month after the automobile accident and for a knee injury related to a slip and fall. Dr. William Moss testified that he had performed successful knee surgery on Turner and that she had required no additional treatment. Multiple witnesses, including the police officer who investigated the accident and the claims adjuster for Shelter Mutual, testified that there was only minor damage to Turner’s vehicle. Furthermore, Turner’s credibility was called into question when her testimony regarding airbag deployment and her physical ability to perform her job were contradicted by other witnesses.

The lay testimony about the minor impact and it’s negation of a physical injury or aggravation of a prior injury is of some concern (even though it could be said the remaining evidence was sufficient to support no pain and suffering) is of some concern to me.  No mention was made by the COA that scientific evidence was offered to address body mechanics, injury, etc.

And another concern, I always have is that the no-fault statute mentions not only pain and suffering but “inconvenience”.  Although inconvenience may not be high on the pain scale, one might think that medical treatment, follow up visits, diagnostic testing, and possibly physical therapy would qualify as suffering and at least inconvenience.   This is simply why once upon a time, verdicts such as these, were considered inconsistent – medical expenses ruled as caused by the accident but pain, suffering and inconvenience associated with that treatment is not.

Basically, this analysis is disingenuous, and what I seem to hear is that not all pain and suffering is considered compensable.  Not a question of an inconsistent verdict, but some damages are to be borne by the claimant in an imperfect world.  Here the testimony summarized by the COA negated an injury, an aggravation, and thus causation.  But, the jury awarded the medicals and basically said that was enough.  However, if there is health insurance, then who accrued the bulk of the benefit (and if so, by way of the collateral source rule, then some of that award potentially inured to the benefit of the plaintiff, but for the costs of prosecution may have offset that entirely).

Here, is the decision:

531.  DAMAGES.  ZERO PAIN AND SUFFERING IN AUTO ACCIDENT (MILLER V. SWIFT ISSUE)
TURNER (VICTORIA)
VS.
STONE (AMBER), ET AL.
OPINION AFFIRMING
CAPERTON (PRESIDING JUDGE)
ACREE (CONCURS) AND VANMETER (CONCURS)
2011-CA-000177-MR
NOT TO BE PUBLISHED
FAYETTE

CAPERTON, JUDGE: Victoria Turner appeals from the January 13, 2011, judgment of the Fayette Circuit Court which denied Turner’s motion for a new trial in her personal injury action against Amber Stone and Shelter Mutual Insurance Company (“Shelter Mutual”). Because we find no error with the trial court’s judgment, we affirm.

It is well established that “[t]he law in Kentucky … does not require a jury to award damages for pain and suffering in every case in which it awards medical expenses.” Miller v. Swift, 42 S.W.3d 599, 600 (Ky. 2001). It has further been held that a jury’s failure to award pain and suffering, when preexisting conditions may have been aggravated by the accident at issue, did not warrant a new trial. Id. Our focus, in a case of this nature, is on the relevance of the underlying evidence as it relates to the jury’s failure to award for pain and suffering, and not on the actual award itself. See Dennis v. Fulkerson, 343 S.W.3d 633, 635 (Ky.App. 2011).

Sufficient probative evidence was presented which directly challenged Turner’s claims that she had undergone additional pain and suffering as a result of the automobile collision with Stone. Evidence suggested that Turner failed to indicate a knee injury at the time of the accident, that her knee injury may have been aggravated by other circumstances, and that she may have exaggerated the severity of the automobile accident. Accordingly, we cannot hold that the trial court exhibited clear error by denying Turner a new trial.