No. 89-342 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

SHERRI LENORE TAPPAN, 

Plaintiff and Respondent, 

-VSJEFFERY C. HIGGINS, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Michael Keedy, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Stephen C. Berg; Warden, ~hristiansen, Johnson & Berg, 

Kalispell, Montana 

For Respondent : 

David W. Lauridsen; Bothe & ~auridsen, Columbia Falls, 

Montana 

Submitted on ~riefs: Aug. 31, 1989 

Decided: December 1, 1989 
Justice John C. Sheehy delivered the Opinion of the Court.. 

Defendant, Jeffery C. Higgins, appeals an order of the 

Flathead County District Court granting a new trial to the 

plaintiff, Sherri Lenore Tappan. In a personal injury 

action, the jury found in favor of the plaintiff in the 

amount of $3,450.00. plaintiff moved for a new trial on the 

ground of inadequacy of damages and the trial court granted 

the motion. Defendant now appeals the ~istrict Court order. 

We affirm. 

The sole issue on appeal is: Whether the District Court 

abused its discretion in granting Tappan's motion for a new 

trial. 

On July 29, 1986, Tappan and Higgins were involved in an 

automobile accident on Highway 93 near whitefish, Montana. 

Tappan's vehicle was struck from behind by HigginsVehicle 

while Tappan attempted to make a left hand turn. Tappan's 

vehicle sustained approximately $5,000.00 in damages and was 

totaled. In addition, Tappan sustained neck injuries. 

Tappan sued Higgins in ~istrict Court for damages 

consisting of medical expenses, lost past and future income, 

and general damages. In the pretrial order, defendant 

Higgins admitted negligence. The case went to trial on the 

issues of proximate cause and plaintiff's damages. 

In closing argument, Tappan's counsel asked the jury to 

award $15,118.53 in past wage loss, $400.00 in miscellaneous 

expenses, $51,870.00 in future wage loss, $4,385.59 in past 

medical expenses, and $15,000.00 each for pain and suffering 

and loss of enjoyment of life, for an approximate total of 

$100,000.00. ~iggin's counsel advised the jury to award 

$6,300.00 of past wage loss, nothing for future wage loss, 
$400.00 for miscellaneous expenses, and an unspecified amount 

for pain and suffering and loss of enjoyment of life. 

The jury returned the verdict for Tappan in the amount. 

of $3,450.00, allocating $2,400.00 to past wage loss, $200.00 

for miscellaneous expenses, and $850.00 for past medical 

expenses. 

Tappan moved the court for a new trial pursuant to S 

25-11-102(6), MCA, for insufficiency of the evidence to 

justify the verdict. The ~istrict Court granted Tappan's 

motion. 

~iggins argues on appeal that the ~istrict Court abused 

its discretion in ordering a new trial because there was 

substantial credible evidence in the record supporting the 

jury's verdict. Tappan contends that the jury overlooked the 

overwhelming evidence of her damages, and the judge properly 

granted her a new trial. 

In granting Tappan's motion for a new trial, the 

~istrict Court found the verdict was not supported by the 

evidence pursuant to Rule 59fa), M.R.civ.P., and S 

25-11-102 (6) , MCA. 

The decision to grant or deny a new trial is within the 

sound discretion of the trial court, Fredericksen v. 

Fredericksen (1980), 185 Mont. 548, 605 P.2d 1135, 1137, and 

will not be overturned absent a showing of manifest abuse of 

that discretion. ~iles v. Flint Val. Forest Products (1979), 

179 Mont. 382, 387, 588 P.2d 535, 538; Walter v. Evans 

Products Company (1983), 207 Mont. 26, 31, 672 P.2d 613, 616. 

This Court recognizes that only in rare cases should a jury 

verdict be set aside and a new trial granted. Nevertheless, 

though the amount is solely within the province of the jury, 

the jury is not given carte blanche. Sanders v. Mount ~aggin 

~ivestock Co. (1972), 160 Mont. 73, 89, 500 P.2d 397, 406. 

Some substantial evidence must exist to support the jury 
verdict. Maykuth v. Eaton (1984), 212 Mont. 370, 373, 687 

In Maykuth, the ~istrict Court held insufficient as a 

matter of law a $700.00 award for pain and suffering. We 

reversed the holding: 

To permit the undoing of this verdict by affirming 

the trial court decision granting a new trial, 

would in the language of Nelson v. Hartman (Mont. 

1982), 648 P.2d 1176, 1179 ". . . 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 the year following 

the accident, we cannot say as a matter of law that 

substantial evidence did not support the jury's 

award. 

Maykuth, 687 P.2d at 727; Walls v. Rue (Mont. 1988), 759 P.2d 

169, 171. 

In contrast, this Court has held that a jury's failure 

to award damages for pain and suffering constituted an 

inadequate award where "the evidence clearly indicates that 

plaintiff suffered serious and painful injury. I' Gehnert v. 

Cullinan (Mont. 1984), 211 Mont. 435, 439, 685 ~.2d 352, 354. 

Tappan contends that in this case, as in Gehnert, the 

jury failed to award the proper amount of damages when the 

evidence has clearly showed injury due to defendant's 

conduct. ~iggins responds that the jury's failure to award 

greater damages resulted from his attacks on the credibility 

of Tappan and the certainty of her evidence. Higgins argues 

that there is substantial credible evidence to support the 

jury verdict. To resolve this issue, a review of the medical 

evidence and Tappan's employment history is necessary. 

Immediately after the collision, Tappan felt pain in her 

neck and several minutes later felt numbness in both upper 

extremities. An ambulance transported Tappan to North Valley 

~ospital where she was treated by Dr. ~icker. He x-rayed her 
cervical spine and found nothing broken. Dr. Ricker told 

Tappan she would be sore and advised her to obtain a cervical 

collar and take medication if necessary. 

Tappan missed work the next day in that she could not 

raise her head off her pillow due to intense neck pain. She 

returned to work the next day in the belief that her symptoms 

would subside; however, the symptoms persisted and she was 

then seen by a Dr. Heaps, a Kalispell chiropractor. 

Tappan initially saw Dr. Heaps on August 18, 1986. The 

doctor took Tappan off work from August 21, 1986 until 

September 22, 1986. Dr. Heaps testified that he took x-rays 

on August 18, 1986, and on January 8, 1988. The x-rays 

showed a mild scoliosis and he diagnosed nerve root 

irritation and a sprain of the cervical and lumbosacral area. 

Dr. Heaps treated her with spinal manipulation. The doctor's 

charges for treatment to Tappan were $1,309.50. 

Dr. Stevens first saw Tappan on March 10, 1987, and 

obtained a history identifying her problems dating back to 

the automobile accident on July 29, 1986. Dr. Stevens 

testified by deposition and opinion that the plaintiffs' 

suffered from post-traumatic muscle contraction headaches and 

myofacial pain syndrome. Myofacial pain syndrome is a 

reoccurrence of muscle pain triggered by spasms. Dr. Heaps 

agreed with Dr. Stevens' diagnosis of myofacial pain 

syndrome. 

Tappan's injuries resulted in her inability to perform 

her job as bakery manager at Excel Foods. When the plaintiff 

attempted to perform her regular duties in the bakery, her 

pain increased and she went through a series of 

authorizations of absence from work at the direction of Dr. 

Heaps. After attempting to perform her full bakery manager 

duties properly for over one year, she terminated her 

employment with Excel Foods. After a series of unsuccessful 
jobs, plaintiff now works at Keenan's Jewelry in Kalispell, 

Montana, earning $4.00 per hour. 

The evidence presented at trial overwhelmingly shows 

that the plaintiff could no longer work at the bakery. Dr. 

Stevens was presented with two job descriptions detailing the 

plaintiff's duties as a bakery manager and cake decorator, 

both of which he disapproved due to the lifting, bending and 

twisting requirements of those occupations. 

Bob Markus, manager of Excel Foods, concurred with Dr. 

Stevens that Tappan could no longer perform her job at the 

bakery. Mr. Markus stated that the plaintiff's work was 

satisfactory and she was able to perform her duties prior to 

the accident. ~ollowing the accident, however, Mr. Markus 

noted that the plaintiff did not look well and that she was 

occasionally tearful. Markus testified that Tappan was not 

able to physically perform her job following the automobile 

accident. Markus speculated that had Tappan been able to 

continue her job as bakery manager, she would be earning 

$10.50 per hour plus benefits as of the time of trial. 

Both parties hired experts to determine Tappan's wage 

loss. ~ennis O'Donnell, an economics professor at the 

university of Montana, calculated Tappan's past wage loss, 

including benefits, at $17,922.32, based upon a loss of 

$8,645.00 per year. Over a ten year period, Professor 

O'Donnell, estimates Tappan economic loss is $100,598.00. 

The defense expert, Barbara Muellen, vocational 

rehabilitation consultant, opined that Tappan lost $1,654.75 

in 1986 and $9,562.00 in 1987, for a total wage loss of 

$11,217.51. Thus the defendant's own expert's opinion of 

Tappan's wage loss is approximately $8,800.00 more than the 

jury awarded Tappan in their verdict. Clearly the evidence 

at trial does not support a wage loss damage of only 

$2,400.00. 
The jury awarded Tappan nothing for loss of future 

earnings or earning capacity. This portion of the verdict is 

also not supported by the evidence. Dr. Stevens testified 

that Tappan's injury permanently excluded her from working as 

a cake decorator and bakery manager. Brian Moltslag, a 

vocational specialist, concluded at trial that Tappan could 

not continue in the bakery field due to the physical 

limitations imposed by Dr. Stevens. Her employer, Bob Markus 

testified that Tappan could now be earning $10.50 per hour or 

in excess of $1,700.00 per month. Tappan's current 

employment at Keenan's Jewelry pays Tappan $4.00 per hour. 

Though the evidence clearly supported future wage loss 

damages, the jury chose to grant the plaintiff nothing for 

the loss of earning capacity. 

The jury awarded Tappan $850.00 in medical expenses. 

This reduced amount is unsubstantiated by the evidence. That 

evidence reveals that Tappan incurred $4,385.59 in medical 

expenses as a direct result of treatment related to injuries 

sustained in the accident. The evidence presented at trial 

justified a verdict for past medical expenses in excess of 

the $850.00 award. 

The jury did not award damages for pain and suffering, 

nor for Tappan's loss of the capacity to pursue an 

established course of life. In examining the pain and 

suffering of Tappan, it is once again clear that the jury 

disregarded the weight of the evidence presented at trial. 

Both Drs. Stevens and Heaps determined Tappan suffered from 

myofacial pain sydrome. Mr. Markus stated that he had 

observed Tappan in tears due to pain on several occasions 

following the accident. Dr. Heaps testified that he noted 

consistent spasms in Tappan's neck, and the pain from these 

spasms played a role in removing Tappan from work and later 
limiting her to part-time work. This pain, severely limited 

Tappan's lifestyle, and changed her course of life. 

While the evidence for pain and suffering is not as 

abundant as the evidence for loss of wages, there is 

substantial evidence to support a jury award greater than 

zero. The evidence presented at trial does support some 

award for pain and suffering. 

The defense presented no medical testimony of its own, 

but instead attacked the plaintiff's case by attempting to 

discredit Tappan herself. Higgins maintains that there is 

substantial credible evidence to support the jury verdict. 

Higgins contends, now, as he did in the ~istrict Court, that 

the question of Tappan's pain and suffering rests on her 

credibility. Defendant argues that Tappan's pain was 

subjective, and that her credibility regarding the amount of 

bending and lifting required by the bakery job was put into 

question by testimony of her former employer. while there is 

conflicting evidence in regard to job requirements at the 

bakery, the overwhelming evidence in the record supports the 

plaintiff's position that she can no longer work at the 

bakery. 

Defendant also contends that Tappan saw no health care 

provider following the accident. ~ccording to Higgins, this 

allowed the jury to conclude that she was either not injured 

or her injury was slight. Furthermore, Higgins claims that 

Tappan aggravated her symptoms by returning to work against 

her doctor's orders. ina ally, the defendant argues that 

Tappan exaggerated her past and future wage loss. The jury, 

according to Higgins, chose to believe defendant's expert 

witness on wage loss, and this is reflected in the verdict. 

The defendant is correct in his assertion that the jury 

verdict is determined in large part by the credibility of the 

party and the witnesses. However, in this case, there are 
some glaring discrepancies in the amount of damages presented 

at trial and the verdict handed down by the jury aside from 

the credibility of any witness. 

The ~istrict Court was correct in holding that the 

verdict was not supported by the evidence; in effect the 

evidence was insufficient to justify the verdict. section 

25-11-102(6), MCA. The District Court did not abuse its 

discretion in granting a new trial. We affirm the ~istrict 

Court. 

We Concur: A A 

Chief ~ustice 

Justices 

Honorable L. C. Gulbrandson, concurring: 

I concur in the result. 

Honorable R. C. McDonough, 

h7r,&k Justice 

concurring : / 

I concur in the result. 

Justice 

Justice Fred J. Weber did not participate.