WALTER PARIZON V CHILDREN`S HOSP
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STATE OF MICHIGAN
COURT OF APPEALS
WALTER PARIZON as Next Friend of MELISSA
PARIZON, a Minor,
UNPUBLISHED
July 12, 2002
Plaintiff-Appellee,
V
No. 213251; 213754
Wayne Circuit Court
LC No. 95-512734-NO
CHILDREN’S HOSPITAL OF MICHIGAN,
Defendant-Appellant.
ON REMAND
Before: Wilder, P.J., and Holbrook, Jr., and Doctoroff, JJ.*
PER CURIAM.
In this medical malpractice case, we previously reversed the trial court’s order granting
plaintiff’s motion for additur, and remanded for a new trial on both liability and damages.
Parizon v Children’s Hospital of Michigan (Parizon I), unpublished opinion per curiam of the
Court of Appeals, issued 12/15/2000 (Docket Nos. 213251, 213754), slip op, pp 1, 3, 5.
The case is now before us on remand from the Supreme Court to consider, in light of
Kelly v Builders Square, Inc, 465 Mich 29; 632 NW2d 912 (2001), “whether additur was
required merely because the jury elected not to award any amount for future damages.” The
Supreme Court further instructed that in the event we conclude “that there was no basis to justify
any award of additur, [we] should direct that the jury’s award of $15,000 in damages be
reinstated.” Id. We now reverse and remand to the trial court for entry of judgment on the
original verdict of $15,000.
I. Facts
As noted in our previous opinion:
Plaintiff’s complaint alleged that, during a hospital stay in August 1980,
Melissa Parizon, then an infant, was injured when an IV inserted into her ankle
infiltrated into the subcutaneous tissues around the vein. Plaintiff alleged that
defendant was negligent in failing to recognize that the IV had infiltrated, in
monitoring the infant’s condition, and in failing to immediately and properly treat
the injury. As a result of defendant’s alleged negligence, Melissa Parizon
suffered permanent scarring and disability. Following a trial, a jury found that
defendant was negligent, that Melissa had suffered damages as proximate result of
* On remand, Judge Doctoroff has been substituted for Judge McDonald.
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defendant’s negligence, and that the amount of damages from the date of the
injury to the filing of the complaint was $15,000. The jury did not award any
interest on the award for past damages, or award any future damages.
Plaintiff moved for additur or in the alternative a new trial. The court
found that the jury’s verdict was “totally inadequate” and, therefore, granted the
motion for additur in plaintiff’s suggested amount of $505,992, plus interest,
taxable costs and fees, and entered a judgment for plaintiff in that amount.
Defendant rejected the amount of additur and filed various motions for
clarification and/or rehearing of the trial court’s order, arguing that the court
should have granted plaintiff’s motion for a new trial unless defendant consented
to the entry of judgment in an amount determined by the court to be the lowest
amount supported by the evidence. The trial court denied defendant’s motions.
[Parizon I, slip op, p 1.]
Melissa also testified that she played high school varsity basketball and softball. Id. at 2.
In addition, a video of Melissa playing high school basketball was introduced into evidence and
shown to the jury, id., and Melissa testified that she quit playing volleyball because her ankle
hurt her when she spiked the ball, that in other sports her ankle only hurt when she ran, that her
ankle did not prevent her from performing at an “A” level in gym class, and that when her ankle
hurt (two or three times a day) it felt “like a toothache in her ankle.” While Melissa testified that
she was embarrassed by the ankle scar, id., and therefore did not like to show her ankle, she
could only remember one occasion when someone asked her about her scar. Her embarrassment
also did not keep her from wearing high heels for certain functions. Melissa testified that she
had no recollection of having her ankle evaluated by a physician, but she did recall going to a
lawyer about the injury. Melissa showed the scar to the jury, and established for the record that
the scar measured between two and three inches on her right ankle.
Melissa’s mother testified that she consulted several physicians regarding Melissa’s
ankle, but she could not remember their names, or the number of times or over what period of
time Melissa visited these physicians. Melissa’s mother also testified that despite a plastic
surgeon’s recommendation that Melissa have yearly check ups on her ankle, Melissa did not see
a plastic surgeon for eleven years, at which point it was determined that there was nothing more
that could be done about the scar. Melissa’s mother also testified that no physician had ever
prescribed pain medication as a result of the ankle, that Melissa’s physical activities had never
been restricted, and that in addition to basketball and softball, Melissa had also participated in
varsity volleyball.
Defendant introduced into evidence a September 16, 1992 report from a plastic surgeon
at the Straith Clinic, which indicated that in the plastic surgeon’s opinion, Melissa’s scar would
continue to improve in appearance as she aged.
II. Standard of Review
This Court reviews a trial court’s decision granting a motion for additur for an abuse of
discretion. Palenkas v Beaumont Hosp, 432 Mich 527, 533; 443 NW2d 354 (1999); Joerger v
Gordon Food, Inc, 224 Mich App 167, 172; 568 NW2d 365 (1997). Likewise, a trial court has
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discretion to grant or deny a motion for a new trial, and we will not disturb its decision unless
there has been a palpable abuse of discretion. Id; see also Kelly, supra at 34.
III. Analysis
In Kelly, supra at 35-36, quoting Brown v Arnold, 303 Mich 616, 627-629; 6 NW2d 914
(1942), our Supreme Court observed:
The adequacy of amount of a verdict is also generally a matter for the jury.
We do not substitute our judgment on this question unless a verdict has been
secured by improper methods, prejudice, or sympathy. No such showing has been
made, nor is the verdict so inadequate as to shock the judicial conscience.
. . . . The law furnishes no exact rule by which damages for pain and
suffering can be measured. Their determination must necessarily be left to the
good sense and sound judgment of the jury in their view of the evidence. It has
frequently been said by courts and text-writers that the award of the jury will not
be disturbed unless it is so great as to shock the judicial conscience or unless it
was induced by something outside of the evidence, such as passion or prejudice.
. . . . There is no absolute standard by which we can measure the amount
of damages in personal injury cases. The amount allowed for pain suffering must
rest in the sound judgment of the triers of facts.
***
We cannot substitute our opinion for that of the jury as to the proper
amount of damages to allow plaintiff for pain and suffering. [Internal citations
omitted.]
In light of Kelly, we conclude as we did in Parizon I that
the jury’s $15,000 award for past damages is explainable by evidence suggesting
that, while Melissa was injured, she had not suffered serious damages. At the
time of trial, Melissa was a high school varsity athlete, playing on her school’s
basketball and softball teams. The jury had the opportunity to view the scar on
her ankle, to listen to her testimony describing how the ankle hurt [everyday] and
how she was embarrassed by the scar, and to view a video of Melissa playing
basketball. The jury was free to accept or reject the evidence regarding damages.
We believe the evidence allowed for a jury determination that plaintiff’s past
damages were minimal. [Parizon I, slip op, p 2.]
We further conclude, pursuant to Kelly, supra at 35-36, and MCL 600.6301(a), that the jury
could reasonably find that Melissa was not entitled to future damages.
MCL 600.6301(a) provides:
“Future damages” means damages arising from personal injury which the
trier of fact finds will accrue after the damage findings are made and includes
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damages for medical treatment, care and custody, loss of earnings, loss of earning
capacity, loss of bodily function, and pain and suffering.
In the instant case, the evidence established that Melissa could not recall receiving medical
treatment for her ankle and that she never took prescription pain medication for the pain she
suffered. Evidence also established that while “there was nothing else” that could be done
medically to treat the scar, the scar would continue to improve as Melissa got older. In addition,
no evidence was presented that Melissa lost earnings or earning capacity as a result of the ankle
scar, or that Melissa would need medical care as a result of the injury. Based on this evidence
and because a plastic surgeon also testified that Melissa’s scar would continue to improve with
age, we cannot conclude that the jury award of zero dollars in future damages was clearly or
grossly inadequate, against the great weight of the evidence, contrary to law, or brought on by an
error of law or influenced by passion or prejudice. See also MCR 2.611(A)(1).1 Thus, because
Kelly clearly establishes that “a court may grant a new trial following a jury verdict only for one
of the reasons stated in MCR 2.611(A)(1),” on the facts presented in this case, we cannot
conclude that the jury unreasonably decided not to award Melissa future damages.
Finally, we find that the jury’s failure to award interest from the time of the injury until
the time of the filing of the complaint is not a ground for a new trial or additur. Interest from the
1
MCR 2.611(A)(1) provides:
(1) A new trial may be granted to all or some of the parties, on all or some
of the issues, whenever their substantial rights are materially affected, for any of
the following reasons:
(a) Irregularity in the proceedings of the court, jury, or prevailing party, or
an order of the court or abuse of discretion which denied the moving party a fair
trial.
(b) Misconduct of the jury or of the prevailing party.
(c) Excessive or inadequate damages appearing to have been influenced by
passion or prejudice.
(d) A verdict clearly or grossly inadequate or excessive.
(e) A verdict or decision against the great weight of the evidence or
contrary to law.
(f) Material evidence, newly discovered, which could not with reasonable
diligence have been discovered and produced at trial.
(g) Error of law occurring in the proceedings, or mistake of fact by the
court.
(h) A ground listed in MCR 2.612 warranting a new trial.
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date of injury to the date of filing the complaint is an award that is within the purview of the jury.
Capital Mortgage Corp v Coopers & Lybrand, 142 Mich App 531, 537; 369 NW2d 922 (1985),
citing Vannoy v City of Warren, 26 Mich App 283, 288; 182 NW2d 65 (1970). Here, given the
nature of Melissa’s injury, the jury could reasonably conclude that interest should not be
awarded on the $15,000 dollar verdict for past damages. Indeed, on the facts before us in this
case, it is difficult to conclude when Melissa actually suffered those damages. As a result, we
cannot find the jury’s verdict to be unreasonable. Instead, plaintiff is only entitled to statutory
interest from the time the complaint was filed until the judgment is satisfied. See MCL
600.6013.
IV. Conclusion
Because “no legal principle requires the jury to award one item of damages merely
because it has awarded another item,” Kelly, supra at 39, on the basis of the evidence in this
case, we conclude that the jury verdict of $15,000 was reasonable, and that neither additur nor a
new trial is warranted in this case. Accordingly, we reverse the trial court’s order awarding
additur, and remand for entry of judgment on the original jury verdict.
We do not retain jurisdiction.
/s/ Kurtis T. Wilder
/s/ Donald E. Holbrook, Jr.
/s/ Martin M. Doctoroff
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