In August of 2007, the Court of Appeals in Ohio heard a case that involved a car accident where an issue after trial was whether or not the jury’s award was inadequate because the Plaintiff’s car accident lawyer claimed that the awarded damages did not include pain and suffering even though it awarded medical expenses. (See Burris v. Burnworth, 2007 WL 2567720 (Ohio App. 7 Dist.)).
In Burris, the Plaintiff in this car accident case appealed his case because she felt she was entitled to more money. But, this Court reviewing the trial’s court transcript and reading the appellate briefs did not agree. “A jury can refuse to award pain and suffering, even it if does award medical damages, if there is a reason to believe that the plaintiff did not incur those damages.” Id.
The facts of this car accident case are as follows. On July 5, 2003, the Defendant caused a car accident with the Plaintiff. The Plaintiff was taken by ambulance to the ER where she was diagnosed with a sprained right shoulder and a chest contusion. Id. A few days later she went to her private doctor but in the doctor’s notes there was no mention of Plaintiff being in a car accident just a few days prior. Id.
There is proof that before the accident Plaintiff had been suffering from fibromyalgia, and had neck and back issues. Id. After the accident Plaintiff complained of neck and back pains. Id. Her private doctor sent her to two other doctors. One diagnosed her with TMJ and the other with bulging disks in her back. Id.
Plaintiff filed her car accident lawsuit on March 30, 2005. Id. The defense put on an expert questioning whether her back injuries were caused by this car accident. Id. After the trial, the jury awarded Plaintiff $1,055. Id. This was the amount of the ambulance and emergency room bills. Id. The jury did not award any monies for pain and suffering. Id. This made Plaintiff’s car accident lawyer not very happy.
The Court agreed with the law that “a jury is free to believe all, part or none of the testimony of witnesses who appear before them. (cites omitted). Expert testimony is permitted to supplement the decision-making process of the ‘fact finder’ not to supplant it.” (cites omitted). Id. The jury was free to believe whichever expert witnesses it wished. It appears in this case that the defense expert was believed more than plaintiff’s expert. And since “the credibility of witnesses, including experts, is for the jury to decide.” this court will not supplant its judgment for that of the jury’s. Id.
And finally as to the pain and suffering in this car accident case, many courts do recognize that “a jury can properly deny a claim for pain and suffering, even if it awarded medical expenses.” Id. The courts leave this as a ‘fact-specific question’ and thus one to be decided on a case by case basis. The jury is free to decide that no pain and suffering occurred or that if there was pain and suffering that it was so minimal that no monetary award was warranted. Id.
If you have been the subject of a car accident involving pain and suffering, please call and speak to a car accident pain and suffering lawyer at the Law Offices of Andrew S. Alitowski at 888-ASK-ANDREW (275-2637) or contact us online. We are available 24 hours a day, 7 days a week.
If you are injured…Ask Andrew!!!