No. 88-85
INTHE SUPREME COURT OF THE STATE OF MONTANA
1988

JANIEANDERSON WALLS,
Plaintiff and Appellant,-vsMARY RUE, Defendant and.Respondent.

APPEAL FROM: DistrictCourtof theNinthJudicialDistrict, Inand for theCountyof Toole, TheHonorableR.D. McPhillips, Judge presiding.
COUNSEL OF RECORD:
For Appellant: Stephen D. Roberts, Bozeman, Montana
For Respondent: Warden, Christiansen, Johnson & Berg; Stephen C. Berg, Kalispell, Montana

Submittedon Briefs: June 2, 1988 Decided: August 11, 1988

Filed: 

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ClerkMr. Justice R. C. McDonough delivered the Opinion of the Court.

This appeal from the Ninth Judicial Districtpresents a single issue for review: Should a new trial be ordered on damages under Gehnertv. Cullinan where the jury in its special verdict found both that plaintiff's injuries were caused by defendant's negligence and that plaintiff would incur future medical expenses for treatment of those injuries, yet failed to award plaintiff anything for future pain and suffering and other elements ofdamage? We decline to order a new trial and affirm. Appellant Walls sued respondent Rue for injuries stemming from an automobile accident which occurred on November 14, 1985. The actionwent to trial before 

### a jury on July 1, 1987. At the end of the defendant's case, the lower court directed a verdict for plaintiff Walls on the issue of liability. The jurywas then instructed todetermine damagesby answering questions posed through a special verdict. The verdict form and the jury's answers appeared as follows:
We, the jury, answer the questions submitted tous in this SpecialVerdict as follows:

I. Was the Plaintiff injured?

X Yes No
Ifyour answer is "yes," go to the next question. If your answer is "no," then skip the remaining questions and simply sign the verdict.
11. Was the Defendant's negligence a cause of injury to the Plaintiff?

X Yes No.
Ifyour answer is "yes,"go to the next question. If your answer is "no," then skip the remaining questions and simply sign the verdict.111. What is the amount of money that will compensate the Plaintiff forher injury? Medical Expenses to Date: $ 2000.00 Future Medical Expenses: $ 2800.00 Painand Suffering to Date: $ 100.00 Future Pain and Suffering: $ 

## -- Lost Earnings to Date: $ 

## -- Lost Earning Capacity: $ 

## -- Loss ofEnjoyment ofLife to Date: $ 100.00 FutureLoss of Enjoyment of Life: $ 

## --
DATED this 3rd day of July, 1987.

s



### / jury foreman

After the verdict, the District Court denied Walls's motion for new trial for an inadequate award, and alsodenied Walls's motion for reconsideration. Walls argues on appeal that the jury's failure to award more damages runs counter to the evidence. Walls speculates that the jury ignored the evidence showing her damages because some of the jurors, as revealed during voir dire, considered other jury awards excessive. Rue responds that the jury based its failure to award other damages on substantial credible evidence. We agreewith Rue. In Maykuth v. Eaton (Mont. 19841, 687 P.2d 7261 41 St.Rep. 1800, the District Court held insufficient as a matter of law a $700 award for pain and suffering. We reversed holding that:

To permit the undoing of this verdict

### by affirming the trial court decision granting a new trial, would, in the language ofNelsonv. Hartman (1982), Mont., 648 P.2d 1176, 1179, 39 St.Rep. 1409, 1412, "...create a bench supremacy and sap the vitality of jury verdicts." While the trial court, or this Court sitting as a jury,or another jury,may have awarded plaintiff more for pain and suffering in

### theyear following the accident,we cannot say as a matter of law that substantial evidence did not support the jury's award. Maykuth, 687P.2d at 727. We have also emphasized that:

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. Wemust view the evidence in a light most favorable to Lauman, the prevailing party below, and where the record presents conflicting evidence, resolved by the jury, this Court is precluded from disturbing the verdict. This rule isparticularly applicablewhen the DistrictCourthaspassed on the sufficiencyof the evidence onmotion for new trial and has upheld its sufficiency.
Lauman v. Lee (Mont. 1981), 626 P.2d 830, 833, 41 St.Rep. 499, 502. On the other hand, this Court has held that a jury's failure to award damages for pain and suffering constituted
an inadequateaward where:

The evidence clearly indicates that the plaintiffs suffered seriousandpainful injury. The injury to Harold Gehnert'sback is such that itmay have been rebroken and therewas evidence that he was permanently injured and disabled. Lina Brenner suffered a relapse into a severe depression and while her physical injuries may have been modest, they were accompanied by pain. Her testimony indicated hair had been pulled from her head. The jury found in this case that the Cullinans committed wrongful acts toward theplaintiffs, and their attack on the plaintiffswas the cause of the injuries sustained. Liability having been established, it was the jury'sduty to award damages forpain and suffering for the serious injuries suffered.Gehnert v. Cullinan (Mont. 1964), 685 P.2d 352, 354, 41 St.Rep. 372, 375. Walls contends that in this case, as in Gehnert, the jury failed to award damages when evidence clearly showed injury due to thedefendant's conduct. Rue responds that the jury's failure to award greater damages resulted from the defendant's attacks on the credibility and certainty of evidencepresented by Walls. To resolve this issue,a review of the medical evidence isnecessary. The injury occurred to Walls's shoulder. X-rays taken shortly after the accidentrevealedno skeletal injuries,and the contusiontoWalls's shoulderwas describedby the treating physicianasnot serious. However, medical testimony from depositions read into the record indicated that Walls's shoulder did not heal properly. Onephysician's impressionwas that Walls suffered from "rotator cuff tendinitis and possibly mild adhesive capsulitis of the left shoulder along with chronic cervical strain." Another's impression was "strainof the left shoulder with soft tissue tenderness and probably perifibrosis". Both agreed that use of the shoulder in physical therapy could improve the condition. One physician explained:
Perifibrosis basically is tightness of the tissues around the shoulder,and 

### Ithinkmy impressionwas that her complaints and her findingswere pretty much related toher shouldergirdle, including the area between her shoulder blades as [sic] the shoulder itself and that the perifibrosis is a stiffness or lack of resiliency of the muscles and ligaments because it's been injured and protected and allowed to heal without motion or even if trying to move it, enough soreness was there to keep it frommoving well, and that it was the lack of resiliency of the tissues, or the fibrosis of the tissues, that was causing a lot of the problems at the present time.A 

### third physician provided no diagnosis forWalls stating that, "I 

### don't have a diagnosis for her. I don't know why she has her symptoms." A fourth suspected "vasomotor reflex sympathetic dystrophy syndrome", and a fifth coined the condition as "chronic pain syndrome", answering queries from counselas follows:



### Q. Are you comfortable with your opinion that this is a

### permanent condition?
A. I 

### don't think you can say any condition is permanent other than death, right. Hopefully her condition will improve and go away. But at this point in time, I think she has chronic pain syndrome. Hopefully itwill be alleviated,but as to a time and a date and how long, I 

### don't think anybody in theworld can tellyou that.
The physician testifying in the above quote also stated that his office notes indicated that Walls had a separate injury to her back after the accident. Another physician testified that the severityof the injurymight have resulted from its interaction with apreexisting condition. Walls and other witnesses testified that the injury caused loss of enjoyment and loss of past employment due to pain. Walls also presented evidence indicating that pain, loss of enjoyment, and loss of earning's capability would continue into the future. The defense presented no medical testimony of its own, but attacked the plaintiff's caseby attempting to discredit Walls herself, and by pointing to the uncertainty characterizing the source, nature, and degree of the injury. For example, the defense contended that evidence showed: Walls had not properly documented her employment history after the accident, Walls had not properly followed physical therapy recommendations, and Walls engaged in activities whichinferred that the injury was not restrictive. Rue also contended that the failure of one physician to diagnose a condition inferred the conditiondid not exist. Rue's contentions find support from evidence in the record,and viewing the evidence in a light most favorable to Rue, we hold that the record supports the adequacy of the award. Thus, Walls contention that the jury ignored damages froma clear injury fails. Walls also argues that the jury's failure to award anything for future pain and suffering, future lossof enjoyment of way of life, and future lost earning capacity,while at the same time awarding damages for future medical expenses, is illogical. This inconsistency, according to Walls, shows that the jury ignored the instructions on damages. We disagree. Walls testified that:


### Q. So am I correct then that from the time you stopped therapy in Shelby which would be about February of '86 until January of '87when you had Dr. Powell's therapy throughMr. Havens,you didn't

[sic]not have therapy?
A. No, Ididn't.

The lower court instructed the jury that:

It is the duty of a person who has been injured to use reasonable diligence in caring forher injuries and reasonable means to prevent their aggravation and to accomplish healing. When one does notuse reasonable diligence in caring forher injuries and they are aggravated as a result of such failure, the liability, 

### if any, of another whose act orwilling omissionwas aproximate cause of the original injuries, must be limited to the amount of damage that would have been suffered if the injured person herself had exercised the diligence required ofher.As set out in the medical testimony summarized above, at least one physicianheld the opinion thatWalls suffered from perifibrosis,and thatperifibrosis is a stiffnessor lack of resiliency of the muscles and ligamentsbecause of an injury which has been protected and allowed to heal withoutmotion. The obvious inference is that Walls should have better pursued therapy following the termination ofher treatment in Shelby, and the jury's award for future medical expenses
covers the treatment which should have been pursued earlier. Under these circumstances, the lack of an award for other future damages could have followed from the instruction set out above. We hold that Walls has failed to show that the jury ignored the instructions. We affirm.