Elizabeth Grant v. Gary N. Meek, M.D.

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JUDGE KAREN R. BAKER

DIVISION IV

ELIZABETH GRANT

APPELLANT

V.

GARY N. MEEK, M.D.

APPELLEE

CA01-929

MARCH 20, 2002

APPEAL FROM THE SALINE COUNTY CIRCUIT COURT

[NO. CV96-376]

HONORABLE GRISHAM A. PHILLIPS JR. CIRCUIT JUDGE

AFFIRMED

This is an appeal from the trial court's denial of a motion for new trial. Appellant's argument is that she presented evidence of over thirty thousand dollars ($30,000) in medical bills, evidence of permanent scarring and disfigurement, and evidence of pain and suffering; therefore, the jury's award of two thousand dollars ($2000) in damages cannot be supported. Before an appellate court can reverse a trial court's denial of a motion for new trial, it must be shown that there was a clear abuse of discretion by the trial court. Garrett v. Brown, 319 Ark. 662, 893 S.W.2d 784 (1995). We find no abuse of discretion in this case and affirm.

Appellant, Elizabeth Grant, filed suit against appellee, Dr. Gary Meek, alleging she experienced complications from a bilateral subcutaneous mastectomy performed by Dr. Meek and that these complications were due to his negligence. Liability was vigorously contested at trial and expert testimony was presented by the parties from which a jury could reasonably conclude that

either Dr. Meek was negligent or that he was not negligent. The jury found that Dr. Meek was negligent and no appeal was taken on that issue.

Appellant also alleged that her damages included the loss of remaining portions of her breasts, the loss of her nipples, the medical expenses of numerous surgeries to correct the result of Dr. Meek's negligence and the pain and suffering and permanent scarring resulting from the negligence. Medical bills alone totaled over thirty thousand dollars. However, the jury returned a general verdict in the amount of two thousand dollars.

Pursuant to Rule 59(a)(5) of the Arkansas Rules of Civil Procedure, appellant filed a motion for new trial. She argued to the trial court and on appeal that a fair-minded jury could not have reasonably denied appellant her total medical bills and some type of award for pain and suffering and permanent disfigurement and scarring. A motion for a new trial based on Rule 59(a)(5) challenges the sufficiency of the evidence to support a jury's factual determination of damages. See Coca-Cola Bottling Co. of Memphis, Tennessee v. Pridy, 328 Ark. 666, 945 S.W.2d 355 (1997). In this case, appellee introduced expert medical testimony from Dr. Charles Mabry that the treatment provided to appellant, as well as anticipated future treatment was unnecessary. Therefore, the record contains sufficient evidence from which the jury could conclude that the medical expenses were either unreasonable or unnecessary.

Appellant cites several cases in which appellate courts have upheld a trial court's grant of a motion for new trial due to inadequate damage awards. She argues that the appellate courts upheld the granting of new trials for inadequate damages and that the jury in her case similarly failed to take into account the full extent of her damages. However those cases were affirmed finding no abuse of discretion where a new trial was granted. See, e.g., Saber Mfg. Co. v. Thompson, 286 Ark. 150, 689 S.W.2d 567 (1985) (Arkansas Supreme Court holding that the trial judge could fairly find that the jury failed to take into account all the elements of total damage in awarding only the amount of the medical expense) and Hogan v. Holliday, 72 Ark. App. 67, 31 S.W.3d 876 (2000) (finding noabuse of discretion by trial court's granting of new trial where jury found defending party 100% at fault in automobile accident but failed to award any damages).

The issue on appellate review is whether there has been an abuse of discretion by the trial judge and the trial court has great discretion in ruling on a motion for a new trial. See Adams v. Parker, 289 Ark. 1, 708 S.W.2d 617 (1986). However, that discretion is not totally without limitation in that a trial court may not substitute its view of the evidence for the jury's except when the verdict is clearly against the preponderance of the evidence. See Young v. Honeycutt, 324 Ark. 120, 919 S.W.2d 216 (1996); Ray v. Green, 310 Ark. 571, 839 S.W.2d 515 (1992); Clayton v. Wagnon, 276 Ark. 124, 633 S.W.2d 19 (1982).

Appellant argues that the jury's award is too small because it represents only about six percent of her total medical bills. Nevertheless, the reasonableness and necessity of medical expenses are questions of fact to be decided by the jury. See Kepner v. Schulte, 318 Ark. 433, 885 S.W.2d 892 (1994). It would be an abuse of discretion to grant a new trial where the jury's verdict was not clearly against the preponderance of the evidence. See Schrader v. Bell, 301 Ark. 38, 781 S.W.2d 466 (1989). Because the record contains sufficient evidence from which the jury could conclude that the medical expenses were either unreasonable or unnecessary, sufficient evidence supports the jury's refusal to award medical expenses. As for the basis of the jury's award of the two thousand dollars on a general verdict form, an appellate court should not speculate about the basis for jury awards. See Garrett v. Brown, 319 Ark. 662, 893 S.W.2d 784 (1995) (explaining it would be pure "crystal ball gazing" to attempt to determine how the jury arrived at the amounts awarded).

Accordingly, we find no abuse of discretion and affirm.

Hart and Robbins, JJ., agree.