DA 11
- 0749 IN THE SUPREME COURT OF THE STATE OF MONTANA

2012 MT 298
TYSON MURRAY, Plaintiff and Appellant,
v. KYLE DEAN WHITCRAFT, Defendant and Appellee.

APPEAL FROM: District Court of the Tenth Judicial District,

In and For the County of Fergus, Cause No. DV
- 10
- 95 Honorable E. Wayne Phillips, Presiding Judge COUNSEL OF RECORD:

For Appellant: Nathan J. Hoines , Eric Biehl, Hoines Law Office, PC, Great Falls, M ontana For Appellee: P aul R
. Haffeman , Davis, Hatley, Haffeman & Tighe, P.C., Great Falls, Montana

Submitted on Briefs: October 17 , 2012 Decided: December 19, 2012 Filed:

__________________________________________ Clerk December 19 20122

Justice Beth Baker delivered the Opinion of the Court. ¶1 On October 17, 2006, Tyson Murray was a passenger in a car driven by Kyle Dean Whitcraft. W

hitcraft lost control of the vehicle , c ausing a single vehicle collision in which Murray was injured. Murray filed a complaint against Whitcra ft seeking damages for injuries allegedly caused by Whitcraft’s negligence. Following a three
- day jury trial in August 2011, the jury returned a verdict in favor of Murray and awarded him $27,000. The sole i ssue on appeal is whether the District Court abused its discretion in denying Murray’s motion for a new trial. We affirm**.**

**FACTUAL AND PROCEDURAL BACKGROUND** ¶2 On October 17, 2006, Whitcraft was driving back to Ja me stown College in North Dakotaaccompanied by

two college acquaintances, Kyle Rector and Ty son Murray. All three young men lived in either Lewistown or Great Falls, Montana , and they had traveled home together for a long weekend
. S hortly after leaving Lewistown, W hitcraft lost control of the vehicle on the icy road and struck the guardrail sev eral times. The impact of the vehicle on the guardrail injured both passengers and totaled Whitcraft’s vehicle. Whitcraft’s father picked up the young men and returned them to Lewistown where Rector and Murray visited the emergency room . Murray was diag nosed with probable neck and right shoulder strain or contusion. Whitcraft subsequently admitted to being legally responsible for the accident. ¶3 Murray , an excellent student , was attending Jamestown Collegew ith a ssistance from anannual financial aid pack ag e of nearly $7,000 , w

hich included a$ 500 baseball scholarship
. Upon returning to Jamestown, he informed his coach and trainer of the3

accident and immediately began sports rehabilitation . Despite attempts to rehabilitate his shoulder, Murray was unable to play baseball for the rest of the semester. After
e xperiencing no substantial improvement by January 2007, Murray withdrew from Jamestown College and returned to live with his parents in Great Falls , w here he continued to take classes at a local colle ge while undergoing treatment for his shoulder
. Despite an open offer from the college, Murray did not return to Jamestown as his injury did not resolve and he was not able to play baseball anymore. He underwentchiropractic treatment until June 2007, a nd was discharged from all active medical care by January 15, 2008. ¶4 In October 2008, the pain in Murray’sshoulder r eturned after a day of bow hunting. He returned to the doctor and was prescribed more diagnostic tests and physical therapy. ¶5 On October 1 5, 2009, Murray filed a complaint against Whitcraft seeking damages for medical costs, past, present and future pain and suffering, loss of enjoyment of life and activity, emotional distress, and other compensatory damages arising from the inj ury sustainedin the accident. A jury trial was held August 24
- 26, 2011
. M urray sought damages in the su gge sted amount of $250,000, including past medical expenses of approximately

$ 35,000
. At the conclusion of trial,t he jury determined that the accident
cause d inj ury to Murray and awarded Murray a total of $27,000 in damages. ¶6 Murray, having presented evidence of past medical expenses totaling $35,030.19, f iled a motion for a new trial on the issue of damages
. He asserted that the jury’s total damages award of $27, 000 was supported by insufficient evidence and that, during4

closing argument, defense counsel “argued matters that were outside of the record
. ” The District Court d id not act on Murray’ s motion and it was deemed denied by operation of law after sixty days
. M. R. Civ. P. 59( f )
. **STANDARD OF REVIEW** ¶7 We review

d e nov o a district court’sd enial o f a motion for a new trial on the ground of in su fficient ev idence
. Styren Farms, Inc. v. Roos , 2011 MT 299, ¶ 1 1, 363 Mont. 41, 265 P.3d 1230 (citations omitted). “ Our function in reviewing the sufficiency of proof of actual damages is to determine whether there is substantial credible evidence in the record to support the jury ’ s verdict. We must vie w the evidence in a light most fa vorable to
. . . the prev ailing p arty below, and where the record presents conflicting
ev idence, resolved by the jury, this Court is precluded from disturbing the verdict.” Lauman v. Lee , 192 Mont. 84, 88
- 89, 626 P.2d 830, 833 ( 1981). See also Styren Farms , ¶ 11; Ele v. Ehnes , 2003 MT 1 31, ¶ 25, 316 Mont. 69, 68 P.3d 835. Substantial evidence is thatw hichar easonable mind ma y finda dequate to support a conclusion; “ it may be less than a preponderance of the ev i dence, but must be more than a ‘mere scintilla.’ ” Styren Farms , ¶ 11. ¶8 W hen the basis of a motion for new trial is an irregularity in the proceedings, we
rev iew the denial of the motion for a manifest abuse of discretion. Styren Farms , ¶ 12. **DISCUSSION** ¶9 Is Murray entitled to a new trial? ¶10 Jury Instruction No. 1 5 requiredt he jury to determinew hether Whitcraft ’s admitted negligence caused Murray’s injuries and thento calculate the amount of money5

that would reasonably compensate Murray “for all of the loss caused by Defendant
. . . . ” (Emphasis added.) The instruction state d: Provided that the evidence shows that they exist and that the cause of which was the accident in question, the damages should include: 1. Past and Future Health Care Expenses : r easonable value of necessary care, treatment and services received and thos e reasonably probable to be required in the future. 2. Past and Future Pain and Suffering : reasonable compensation for any pain and suffering experienced and reasonably probable to be experienced in the future by Tyson Murray. . . . 3. Past and Future Emotio nal Distress : reasonable compensation for any mental and emotional suffering and distress experience[d] by Tyson Murray and reasonably probable to be experienced in the future. . . . 4. Alteration of Established Course of Life : If you find that Tyson Murr ay has been permanently injured or will continue to suffer in the future from his injuries, you should award reasonable compensation for the diminution and loss of enjoyment of life and for the diminution and loss of established course of life. Murray ar gues that, upon determining that Whitcraft’s neg lig ence caused Murray’s injury, the jury was required to award the full amount of uncontested damages he alleged, which spanned all four categories listed int he instruction. H e contends that, “[t]he jury fa iled to award full damages encompassing the past medicals, and simply did not follow the law given in Jury Instruction No. 15.” Whitcraft argues the jury was not obligated to award all four types of damages and points out that the verdict does not specify “ the precise nature of the injury the jury found to be accident
- related, nor how much it awarded for the various damage categories alleged.”6

¶11 The instruction directedthe jury to calculate the amount of accident
- caused injuries , “[p]rovided the evidence shows that they exist,”f alling into any of the four categories. I

t did not provide that damages must be awarded in each of the four categories but instead made clear that the jury sh ould award damages only for those injuries shown to be caused by Whitcra ft’s admitted negligence. The jury also was instructed that Murray had the burden to prove by a preponderance of the evidence “the amount of money that will compensate him for his injuries and damages caused by Defendant Kyle Whitcraft.” ¶12 Having reviewed the instructions , the jurors completeda verdict form that directed them to answer

two questions

—

whether the accident was “the cause of injury to Tyson Murray” and, if so, “[w]hat is the total amount of money which will compensate the Plaintiff for his dama ges?” Thus, a fter checking the box “Yes” as to whether the accident causedinjury to Murray, the jurors were asked only to provide a total damages fig ure, which they calculated at$ 27,000. The v e rdict form did not ask the jury to itemize damages across the four categories listed in Jury I nstruction N o. 15, nor didit inquire as to t he extent to which Murray’s injuries were caused by “the accident in question”

— leaving this instead asa“ yes ” o r “ no” question
. Thisg eneral verdict form

—to which Murray did notspecifically o bject

—does not permit us to ascertain the individual categories of

d amages from which the jury derived its total award
. 1 See Horn v. Bull

1 Murray did object to the inclusion of the first question intheverdict form because he believed that the admitted negligence answered the question of causation and that thej ury need only determine the damages figure. T he District Court decided to include the first question because7

River Country Store Props. , 2012 MT 245,¶ 2 5,3 6 6 Mont. 491, ___ P.3d

___( “[W]e certainly will not speculate when the verdict form does not explain the jury’s thought process.”) (quoting Seltzer v. Morton , 2007 MT 62, ¶ 97, 336 Mont. 225, 154 P.3d 561) (internal quotation marks omitted). ¶13 Murray’s contention that the jury was obligated to award damag es for all of his alleged a ccident
- related injuries assumes that, by answering “Yes” to the first question, the jury found that Whitcraft’s negligence wa s the only cause o f those injuries

—an assumption Whitcraftdisputedattrial
. Whitcraftpresent edev id ence and cross
- examin ed Murray’s key witnessest o suggestthat the collision had caused little, if any, impact to Murray’s shoulder, and that Murray had re
- injured theshoulder on a later occasionwhile bow hunting. ¶14 Whitcraft presentedp hotographs to sho w that the damage occurred primarily to the front driver’s side of the vehicle, where Whitcrafthad been sitting, yet the force of the collision did not cause Whitcraft any injury or cause the air bagsto deploy
. Additionally, Whitcra ft ’s c ross - examinatio n of Murray and Gregory Tierney, MD, the orthopedic surgeon who examinedand operated on Murray’sshoulder , elicited testimony that Murray g av e inconsistent reportsabout how and whether he remembered being injured during the accident. B ased on hisr eview o f Murray’s medical records , Dr. Tierney acknowledged that when Murray visited the e mergency room on O ctober 17 , 2006,t

he day of his accident, h e was uncertain whether he hit h is neck and shoulders during the “It is admitted liability as to the accident. It is not admitted liability as to the injury.” Murray does not challenge this ruling on appeal.8

collision whereas , in a subsequent doctor ’sv isit, Murray

stated thatt

he injury resulted from his shoulder slamming into the car door
. Murray’s chiropractor, Mark S toebe, testified that during Murray’s appointment in June 2007, Murray recounted that the accident caused him to hit his head and rights ide harde noughthat he saw stars. Cross
- examinationof Murray further develop ed that he provided differentaccountsof his experience of injury

during the accident : MR. HAFFEMAN: After you went to the emergency room you agree that you told the emergen cy room physician that you didn’t remember if you hit your right side of your neck or your right shoulder, correct? MR. MURRAY : Correct. MR. HAFFEMAN: And, you testified today that your neck felt like it was on fire that day, correct? MR. MURRAY: Correct. MR. HAFFEMAN: Y ou know that is not documented in the emergency room note, don’t you ? MR. MURRAY: I told them my neck and shoulder hurt and they checked me out. MR. HAFFEMAN: Y ou are aware that the emergency room report documents that you desc ribed yourself as being mildly tender and that is the extent of your symptoms. MR. MURRAY: I mean, if it is in the report then that must be what I said. ¶15 According to Dr. Tierney, Murray’s medical records indicated that the emergency
room x - ray s showed n o acute injury and Murray was diagnosed with a “probable cervical strain or sprain and probable strain or contusion of the right shoulder.” A radiologist interpreted a shoulder MRI t aken soon after the accidenta s indicating labral9

degeneration , which Dr. T ierney agreedg enerally indicates an “aging” or “wearing away” process . W

hitcraft eliciteda dditional t estimony to su gge stthatw hileMurray complained of pain when engaging in“moderate to heavy weight lifting, ” he was able to perform his daily activit ies without increas ing his pain
. Dr. Stoebe, who p rovided chiropractic treatment to Murray beginning in April 2007, testified that, during his first visit, Murray ranked his shoulder pain as a four on a scale of one to ten. By his fourth visit, Murray de scribed his shoulder pain as mild and tolerable
. During late May through June , 2 007 , the shoulder problem had resolv

ed to t he pointw

here Murray rated his pain at approximately

o ne o n a scale of one to tenand required as medication only a
non -prescriptio n pain reliever, as needed. A n arthrogram and shoulder MRI taken in June 2007 were “normal. ” ¶16 Murray

thereafter

e lectedto hav

e arthroscopic surgery performed by Dr. Tierney in a further attempt to d iscover any abnormalitiesand resolve them
. Dr. Tierne y ’s operative note stated that Murray’s shoulder was normal, with the exception of some “mild injection”

—defined as dil ated and inflamed blood vessels

—and “mild fraying” under the surface of

the rotator cuff. Dr. Tierney agreed that this “impingement”i s a
common condition that can bec aused by aging and overuse , whichwould be consistent with a baseball career . N onetheless, he testified that“ [a]ll of [Murray’s] p roblems seemed to be post - injury. S o, in my mind, on a more probable than not basis, it was related to the injury[.]” Dr. Tierney testified that Murray recovered from his surgery, completed physical therapy , andwas released from active treatment in January 2008
. Murray did not seek additional treatment until nine months later , after he experi enced10

pain while bow hunting. On redirect examination, Murray sought to establish that the renewed pain had been caused by the vehicular accident, rather thanthe bow hunting incident, but Dr. Tierney testified that re - injury was a possibility : MR. HOINE S:And, is it your belief that the injury he suffered by carrying the bow was related to the injuries he received in the car accident? D R. TIERNEY: Again, as we mentioned earlier, shoulder problems once initiated can flare intermittently depending upon the activity lev el that one is involved with. So, it is very possible that it was. Can you have another injury? Sure.
. . . ¶17 Whitcraftalso elicited testimony from Murray and his father that Murray had been able to carry on with his normal recreational activities

— including flag football, big game hunting, f

ish ing, and league bowling
. Murray stated that he currently performed all of thed aily life and recreati onal activities that he did prior to the accident, with the except ion of baseball. ¶18 Based on th e conflicting e vidence, Whitcraft su ggested in his closing arg ument that the jury award a lower figure than the sum of medical expenses Murray had provided : In this case you have $35,000.00 in medical expenses. A nd we know that $35,000.00 includes not on ly everything up toand following that first surgery, or that only surgery, but we know that there was a nine month gap in treatment. . . . If you believe that everything up to this point in time , that is, everything up to the first surgery was related to the accident and there is plenty of evidence that would suggest that there is some reason to question that. . . . [Y]ou are going to have the photographs of the vehicle in the jury room and you are going to see that the side of the vehicle on which Tyson Murray was sitting was undamaged and that the damage was to the driver’s side of the vehicle and to the front of the v ehicle.
. . . [I]f you accept the premise that there was injury suffered in the accident and that all the injuries up to the point in th e first surgery and following, it is not $35,000.00, it is roughly $26,000.00 and that the difference between these11

two is the re
- injury in the bow hunting incident.
. . . So, you h ave to say, of that $35,000.00, what actually is r e lated to the accident and what was not? And , I would respectfully suggest that perhaps there is a lower figure than the re
- injury figure. ¶19 Murray arg

ues on appeal that Whitcraft’se stimatedd amages figure of $ 26,000
wasi mproper because it wasnot supported by ev iden ce at trial
. Murray did not object during this portion of defense counsel’s closing arg ument, but argued in rebuttal that counsel “hasn’t been truthful” in his synopsis of Murray’s medical condition and that Murray’s injuries would continue to affect him and requiremedical treatment as he aged. 2 ¶20 The jury was not obligate dt o award all of Murray’s proposed damages af ter it found that the accident caused injury to Murray
. While Murray argues thatWhitcraft did not introducee vidence to support h issuggested lower dama ges award , it was Murray who had the burden of proving by a preponderance of the evidence that he was entitled to all of his proposed damages. Whitcraft points outthat“Murray did not call any medical expert to testify as to the amount of his medical e xpenses, and the extent to which those expenses could be considered accident
- related. Instead, he simply admitted into evidence
a summary of all

o f his expenses, which totaled $35,040.19.” Plaintiff’s Exhibit 15, entitled “Plaintiff Tyso n Murray’s Medica l Expenses,” simply list ed elev enmedical care providers , including the following: “Benefis Healthcare,” “Radiology Montana,”

2 Murray’s counsel made two objections during the defense closing argument , both of which were overruled. The first objection was to defense counsel’s suggestion that Murray had argued for an unreasonable damage figure to get the jury to award higher damages. The second was to defense counsel’s characterization of Dr. Tierney’s testimony. The trial court properly noted that the jury was to decide what the evidence showed. To the extent Murray now claims error in defense counsel’s estimate of Murray ’s accident
- related medical expenses, his lack of contemporaneous objection failed to preserve his right to claim error on appeal. Horn , ¶ 41. The District Court did not manifestly abuse its discretion in denying Murray’s motion for new trial on the basi s of the claims he preserved through the two objections he did raise.12

“Orthopedics[sic] A ssociates of Fargo,” “Community MRI,”“Central Montana Medical Clinic , ” “Empi,”and others, as well as a gene ral category of “Prescriptions.” Each entry
wasa ccompanied by a total figure for services received

—the highest summing $ 23,251.48

—

with no listedd ates, individualized doctor visits, o r treatment descriptions
. The parties agreed that Exhibit 15 reflec te d the total amount of medical bills Murray claimed, b ut leftthe jurors to d etermin e w hich expenses were caused by the vehicle accidentand which, if any, were attributable to the allegedre - injury. ¶21 The record does not reflect that the underlying medical records were admitted into
ev idence
. The jury was instructed to consider the credibility and qualifications of the expert witnesses, a s well as the reasons they gave for their opinions
. Jury Instruction No. 9 stated, “ You are not bound by such opinion. Give it the weight, if any , to which you deem it entitled.”Though Dr. Tierney believed it more probable than not that the accident caused Murray’s injuries, he based his opinion on the absence of symptomsprior to the accident, rather than on a particular medical finding, and he acknowledged both that the impingement syndrome Murray experience dc an be caused by ov eruse and that Murray’s symptoms had resolved prior to the hunting incident. In evaluat ing causation andc alculating damages , the jurorswere f ree to gau ge witness credibility and to weigh the evidencethat was presented to determineMurray’s claimedmedical expense s allegedly caused by the accident
. We conclude that Whitcraft raised substantial conflicts in the e vidence reg

arding the cause of Murray’s injuries “that a reasonable mind might accept asadequate to support aconclusion” that he wasnot entitled to all of the claimed damages. Styren Farms , ¶ 11.13

¶22 B ecause we cannot determine the degree to which the jury found Whitcraft’s negligence caused Murray’s injuries and the precise nature of the damages the jury awarded to Murray, the three cases upon which Murray relies

— Hoffman v. Austin , 2006 MT 289, 334 Mont. 357, 147 P.3d 177 , Thompson v. City of Bozeman , 284 Mont. 440, 945 P.2d 48 (1997), a

nd Renville v. Taylor , 2000 MT 217, 301 Mont. 99, 7 P.3d 400

—are not controlling
. In all three cases, the jury found that the defendant’s negligence cause d the plaintiff’s injury and a new trial was granteddue to the jury’s failure to award uncontested d amages in specific categories. I n eacho f those c ase s , unlike the present case, the jury’s verdict reflected thed amages the jury had failed to award

— pain and suffering, mental and emotional distress and loss of establishedc ourse of life, among others, H offman , ¶ 11 (ov

erruled on other grounds) and Thompson , 284 Mont. at 446
- 47, 945 P.2d at 52 ; and pain and suffering, future medical exp enses, loss of earning capacity and loss of established course of life, Renville , ¶ 13
. ¶23 In Hoffmanand Thompson , the juries completed special verdict forms that made clear they awarded no damag es for pain and suffering. Hoffman , ¶ 11 ; Thompson , 284 Mont. at 442, 945 P.2d at 49
. While Murray points out thatthe jury in Renville appears to have been presented with agenera l verdict form similar to the oneusedin this case, the damages in that case had not been disputed by evidence supporting apossible subsequent injury andthe defense did not controverte vidence that establishedt he plaintiff’s significantp ainf

ollowing the neg

ligently caused accident
. The defendant in Renville elicited testimony , rather, that the plaintiff’s symptoms of p ain and su ffering had been exaggerated due to her pre
- existing psychological issues, but the psychiatrist ’s testimony14

“did not controv

ert the evidence that she had pain and suffering as a result of the accident.” Renville , ¶ 25. ¶24 We concluded in Renville that the jury’s award, limited only to past medical expenses , was contrary to the uncontradicted credible evidence. In this case, incontrast, the jury considered conflicting e videncea s to whether

Murray su ffered any significant injury from the car crash

—Murray’s x
- ray at the emergency room showed no acute injury and he reported none at the time , he was unable to recollect suffering injury or significant pain immediately following the accident, and he carriedon with all physical recreational activities, except baseball. Based on Whitcraft’s cross - examination of Murray’s doctor , the jury could have foundthat Murray experienced little pain, except when playing baseball , until the bow hunting incident
. By contrast, the plaintiff in Renville experience d
ev eryday pain so sev

ere that she visited the emergency room on more than one occasion, and was treated with nerve block injectionsdue to her locked neck
. Renville , ¶¶ 18
- 22. ¶25 Finally and critically, unlike Renville , we are unable to ascertain th at the jury awarded zero damages for pain and suffering. Whitcraft su ggested in his closing arg ument : All I would suggest is that you come up with a figure which illustrates to Tyson the fact that you take seriously the fact that it was probably painful having that shoulder surgery and having a sore shoulder and it was, for lack of a better word, it was a bummer that he wasn’t able to go on and continue to play baseball like he wanted to do . . . . This is, you know, pain and suffering, loss of established course of life, so mething in the twenty thousand dollar ($20,000.00) to thirty thousand dollar ($30,000.00) range is telling Tyson that we ack nowledge the fact that this was a bad and unfortunate thing that happened to you, but your life is not over.15

¶26 If it ag

reed with Whitcraft’s theory, the jury could have been persuaded that its $27,000 verdict would compensate Murray for the damages caused by the accident. The jury’s verdict leaves room for interpretation about what it reasonably believed constituted the medical expenses from the collision, the amount of pain and suffering, the potential loss of Murray’s $500 scholarship, and other losses. When sufficiency of the evidence is challenged, it is our

job as an appellate court to probe the record for evidence to support the fact
- finder’s determination
. “ The function of this Court is not to agree or disagree with the jury’s verdict ,” Renville , ¶ 14, and “ consequently, i f conflicting evidence exists, we do not retry the case because the jury chose to believe one party over the other .” Ele , ¶ 25 ( citations omitted)
. We conclude that substantial evidence supported the jury’s conclusion that Murray

was not entitled to the full amount of damages he requested and thus, the District Court did not abuse its discretion by denying Murray ’s motion for

a new trial. ¶27 The judgment of the District Court is affirmed.

/S/ BETH BAKER
We concur: /S/ MIKE McGRATH /S/ BRIAN MORRIS /S/ JIM RICE16

Justice Patricia O. Cotter dissents. ¶28 I dissent. Iwould rev erse and remand for a new trial because the ev idence does not support the verdict rendered by the jury. ¶29 The District Court determined prior to trial that Whitcraft was legally responsible for the accident. The jury found that the accident was the cause of injury to Murray. As the Court noted at ¶ 10, the court instructed the jury that

— provided that the evidence shows that they exist and that the cause of such damages was the accident in question

— the damages should includepast and future health care expenses, past and future pain and suffering, past and future emotional distress, and alteration of established course of life. (Emphasis added.) ¶30 The Co urt’s su mmary of the ev idence focuses on alleged discrepancies in the record

— what symptoms Murray might hav e initially reported, how various health care providers measured his degree of pain, etc. These “discrepancies” with respect to matters of little consequence are the most the Court can muster in support of the verdict because the ov erall record completely belies the notion that Murray was not injured, that he did not have pain, and that he did not experience devastation and distress at losing his baseball career to his injury. Although defense counsel argued mightily in closing for the return of a low verdict, the argument was premised on innuendo and little else

—it was not premised on the evidence. ¶31 As an initial matter, there was no evidence that Murray had any pre - existing injuries to his neck and shoulder, much less degenerative chang es occasioned by agin g17

and ov eruse. He was a 19
- year - old young man. Murray and his parents testified that he had no prior injury, as did his baseball coach who watched him perform on the baseball field day in and day out before the accident. His doctors likewise denied any pre
- existing injury. Whitcraft did not impeach this evidence. ¶32 Second, the Court suggests that the collision could have caused “little, if any, i mpact to Murray’s shoulder.” Opinion, ¶ 13. There is no evidence to support this conclusion. In fact, Kyle Rector, the passenger who sat directly in front of Murray at the time of the accident on the same side of the vehicle, testified without contradic tion that he suffered a partially torn labrum and rotator cuff as a result of the collision. ¶33 Third, there was copious and uncontroverted evidence that Murray experienced pain from the date of the accident forward and still does with activity today. H e was referred from physician to chiropractor to physical therapist and back to physician in search of pain relief. The four health care providers who testified referenced varying levels of pain, including acute pain after surgery, pain during therapy and reha bilitation, and flaring pain upon attempting to throw a baseball. W hile the levels of pain surely fluctuated, which is to be expected, all health care providers testified that Murray experienced pain over a protracted period of time. Murray attended over 1 50 medical appointments and therapy sessions of various sorts, all in an effort to stop the pain and put him back on the baseball diamond. All health care providers attributed his pain and limitations to his accident injury; all testified to his compliance as a patient; and none testified to doubts about his veracity. W hitcraft did not impeach these reports of pain through cross
- examination.18

¶34 On a more personal level, Murray and his parents testified to his pain and suffering, his limitations, his emotio nal distress and the alteration of his established course of life. His mother cried with her son over his loss of his college baseball career. She said the accident was “devastating” to Tyson, and that he was depressed and anxious. His father said that while his son was not a complainer, he couldn’t move his shoulder for about a week after the surgery and he was laid up from his work at a local store for about a month. He said his son was depressed. Whitcraft did not impeach any of this personal testimony through cross
- examination. ¶35 Fourth, the Court provides excerpts of Dr. Tierney’s testimony in an effort to support the verdict. The fact is Dr. Tierney did not waiver in his assessment that the accident was responsible for all of Murray’s injuries. W h ile Dr. Tierney admitted in response to defense counsel’s question that an impingement syndrome condition such as Murray experienced can be caused by aging and ov eruse, he did not attribute Murray’s injury to such problems: MR. HAFFEMAN: And, other than the medical history that was provided to you by Mr. Murray and is reflected in the medical records, is there any way for you to tell whether the impingement syndrome that he had was caused by overuse versus a specific incident trauma? DR. TIERNEY: A ll I c an know is the temporal relationship of having no prior history, no prior treatment, had an injury, had treatment. S o, based on the temporal relationship on a more probably than not basis, it is related to the accident. In addition, Dr. Tierney testifiedelsewhere in response to a question of whether it is his opinion that Tyson’s injuries resulted from the motor vehicle accident: “All of his problems seemed to19

be post
- injury. So, in my mind, on a more probable than not basis, it was related to the injury, yes.” ¶36 Nor was Dr. Tierney’s testimony about the bow incident as equivocal as the Court tries to suggest in its recap of testimony at ¶ 16 of the Opinion. When asked on re
- direct whether he believed that the bow
- hunting injury was related to the car accident, Dr. Tierney’s complete answer was as follows: DR. TIERNEY: Again, as we mentioned earlier, shoulder problems once initiated can flare intermittently depending upon the activity level that one is involved with. So, it is very possible that it wa s. Can you have another injury? Sure. But, it is not infrequent that people represent with problems with that joint. [Emphasis added for testimony omitted from the Court’s Opinion.] ¶37 Fifth, Dr. Tierney testified that the course of treatment Murray pursued was appropriate and necessary. The list of medical expenses that came into evidence without objection summarized the cost of those appropriate treatments and expenses. The total of the bills was approximately $35,000. The defendant did not cross

- examine Murray, Dr. Tierney, or anyof the other health care prov iders on the reasonableness or necessity of these expenses, nor did he present any evidence calling the charges into question. Rather,
as the Court notes at ¶ 18 of the Opinion, counsel simply “suggested in his closing arg ument that the jury award a lower figure” than the sum requested. ¶38 The jury was instructed that in addition to medical expenses, it should award damages for pain and suffering, emotional distress and alteration of the established course of life. The testimony regarding Murray’s pain, suffering, emotional distress and loss of established course of life was uncontradicted. The evidence of the reasonableness and necessity of

at least $26,000 of the past medical expenses was unco ntradicted
.20

Whitcraft’s counsel suggested to the jury that some of the medical expenses were related to a separate bow
- hunting injury. H owever, the medical testimony establishing that it
was more probable than not that the bow
- hunting problems were relat ed to the accident
was uncontradicted. In short, the evidence establishing that Murray suffered the damages for which the District Court ordered compensation was overwhelming and virtually unimpeached. ¶39 The Court makes much of the fact that because the v erdict form did not ask the jury to itemize the categories of damage, it is not possible to determine the precise nature of the damages awarded to Murray. This is a valid point. But, under the record before us, precision of calculation is not a necessary predicate to a new trial. It is clear the jury did not award both the uncontested medical expenses and damages for Murray’s pain, suffering, emotional distress and loss of established course of life. B ecause competent
ev idence of these elements of damag e was presented and not refuted, the jury was obligated to make an award in this regard. ¶40 The Court tries but fails under the facts here to distinguish Renvillef rom this matter. As here, the jury in Renville was presented with a general verdict form. A s here, the jury in Renville awarded an amount equal to medical expenses but ignored the
ev idence of pain and suffering and loss of ability to pursue her established course of life. As the Court notes, Renville experienced everyday pain, had to visit the emergency room
on more than one occasion, and had nerve block injections. Opinion, ¶ 24. B y comparison, Murray too received injections, and also engaged in painful therapy and
ev en underwent surgery in an attempt to relieve his pain. I f anything, Murray ’s21

post - accident course was more rigorous and protracted than Renville’s. We concluded in Renville that the jury’s damage award was not supported by substantial evidence and
rev ersed the district court for failing to grant a new trial. The same result isc ompelled here. ¶41 I dissent from our willingness to countenance a verdict that is truly unsupported in the record. I would reverse and remand for a new trial.

/S/ PATRICIA COTTER

Justices James C. Nelson and Michael E Wheat join the dissent of Just ice Patricia O. Cotter.
/S/ JAMES C. NELSON /S/ MICHAEL E WHEAT