FRANK PRINCE AND DIANE PRINCE v. JIMMY HOUNSHELL
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RENDERED:
DECEMBER 15, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-000492-MR
FRANK PRINCE AND DIANE
PRINCE
APPELLANTS
APPEAL FROM ROWAN CIRCUIT COURT
HONORABLE BETH LEWIS MAZE, JUDGE
ACTION NO. 01-CI-90317
v.
JIMMY HOUNSHELL
APPELLEE
OPINION
AFFIRMING IN PART, REVERSING IN PART
AND REMANDING
** ** ** ** **
BEFORE:
ABRAMSON, GUIDUGLI, AND VANMETER, JUDGES.
GUIDUGLI, JUDGE:
This is an appeal from a judgment for the
plaintiff in a personal injury case involving a motor vehicle
collision.
Upon review of the record, we affirm in part,
reverse in part and remand for entry of a judgment for Frank
Prince of uncontested medical expenses incurred in the accident.
On December 15, 2000, the Appellee, Jimmy Hounshell,
was driving behind the Appellant, Frank Prince, in a line of
traffic in Morehead, Kentucky.
Prince stopped his vehicle, but
Hounshell was unable to stop his vehicle in time.
Hounshell’s
pick up truck struck Prince’s car in the rear-end, causing
moderate damage to Prince’s vehicle.
injury to Prince.
The collision also caused
Following the accident, Prince was taken via
ambulance to the hospital and treated for injuries.
Prince had an extensive history of pre-existing
accidents, surgeries, injuries, and chronic pain complaints,
which predate this December 15, 2000, collision.
Testimony
elicited at trial indicated that Prince had experienced these
health problems since 1988, when he initially fell from a
scaffold.
He also showed arthritis in various joints, not only
limited to the neck, but also involving the collarbone, shoulder
joints, and elbows.
These prior injuries had caused him to have
multiple surgical procedures, including a fusion in three levels
of his neck.
Additionally, despite having all of these surgical
procedures, he continued to have problems with chronic pain.
Prince was also involved in a prior automobile
accident, which occurred on September 2, 2000.
His prior
conditions worsened as a result of acute injuries he suffered
from the accident on September 2, 2000.
Dr. Allison Weaver, MD,
a defense expert, testified that as a result of this accident,
Prince suffered injuries including a mild closed head injury,
cervical spine tenderness, head pain, back pain, and left
shoulder and elbow pain.
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However, Dr. Blaine Lisner, an Illinois neurosurgeon, testified
that by December 2000, Prince had recovered sufficiently from
the injuries suffered on September 2, 2000.
Dr. Lisner as well
as Dr. Allison Weaver testified that as a result of the second
automobile collision on December 15, 2000, Prince had suffered
an exacerbation of his prior injuries, as well as new injuries,
including a brain injury.
Prince sought medical treatment from
various doctors for the exacerbation of these injuries.
Prior to trial, Hounshell stipulated to liability, and
at trial, Prince sought recovery for medical expenses incurred
for hospital and medical treatment resulting from the December
15, 2000, accident in the amount of $40,620.17.
Included in
this amount was $253.50 for the ambulance bill following the
collision and $1,041.70 for the emergency room visit.
Furthermore, at trial Prince presented expert medical testimony,
which tended to show that as a result of the December accident,
he had fractured a bone in his shoulder resulting in at least
one surgery.
However, Dr. Allison Weaver disputed Prince’s
claims of permanent and significant injuries, which would negate
the necessity for any surgery as a result of this accident.
Hounshell did not dispute Prince’s medical bills in their
entirety.
Of significance, neither Dr. Weaver nor Hounshell
disputed that Prince received emergency medical attention in the
form of ambulance transport and hospital emergency room services
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immediately after the collision.
Dr. Allison Weaver also
testified that the hospital diagnosed him with cervical strain
following the accident.
Additionally, Dr. Anthony Weaver,
Prince’s expert witness, stated when asked which of the medical
bills from the time period following December 15, 2000, were
related to the December 15 collision, “I would say, just looking
at them, many of them are . . . yes.”
In a bench conference prior to trial, defense counsel
moved for the exclusion of segments of a demonstrative video
depicting the motion of the head and neck when rear-ended by
another vehicle.
An expert witness for Prince, Dr. Lisner,
testified that he would use the video to demonstrate, on live
human subjects, what the head strikes in an accident and the
amount of flexion or extension of the neck.
After reviewing the
video, the trial court excluded these portions of the video.
The trial judge stated that she would not allow the entrance of
the clips of actual automobile accidents depicting the flexion
of the head and neck because the vehicles used in the video were
not the same type of vehicles driven in the accident in question
and the speed in this case was unknown.
For these reasons, the
trial judge ruled that this video was not an accurate depiction
of this accident.
However, the judge did allow into the case
clips from the same video involving animated demonstrations of
the brain movement during an automobile accident.
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After a four-day trial, the jury returned a verdict in
favor of Prince.
The jury awarded Prince pain and suffering
damages in the amount of $6,000, but awarded $0 for economic
damages.
Prince moved for a new trial on damages, but the trial
court denied this motion.
Prince now appeals, arguing that the
trial court erred in failing to grant a new trial on damages
when the jury awarded non-economic damages, but failed to make
an award for economic damages related to the December 15, 2000,
automobile accident.
Prince also argues that the jury’s award
for pain and suffering was inadequate and given under the
influence of passion and prejudice.
Lastly, Prince argues that
the trial court erred in refusing to allow into evidence the
video clips of live automobile crashes and the movement of the
head and neck of live humans during these accidents.
Prince alleges that the trial court erred when it
denied his motion for a new trial.
Our review of a trial
court’s denial of a motion for new trial is limited to whether
the trial court’s action was clearly erroneous.1
Accordingly, if
the jury’s verdict is supported by the evidence in this case,
the trial court was not clearly erroneous in denying Prince’s
motion for a new trial.2
1
Miller v. Swift, 42 S.W.3d 599, 601 (Ky. 2001).
2
Id.
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Prince first argues that the jury award in this
damages-only trial was inconsistent and insufficient because it
awarded non-economic damages, but failed to award economic
damages for the medical bills. In making this argument, Prince
relies on CR 59.01(d), which states:
A new trial may be granted on the issue of
inadequate damages where the verdict is the
result of passion or prejudice and a
disregard of the evidence or instructions of
the trial court.
It is the responsibility of the jury to consider all the
evidence under all of the facts and circumstances,3 and when it
fails to do so, a new trial should be granted under CR 59.01.
Alternatively, Hounshell argues that the award of pain and
suffering damages without an award of medical expenses is not
per se an inconsistent verdict.
Hounshell asserts that medical
expenses and pain and suffering damages do not necessarily go
hand in hand.
Prince argues that the jury clearly disregarded the
evidence and that it should have compensated him for at least
some of his economic damages.
Both parties presented evidence
that Prince suffered injuries caused by the subject collision.
Expert witnesses for both sides also stated that as a result of
the collision, Prince had suffered an exacerbation of his prior
injuries.
3
Due to this exacerbation, Prince sought medical
Smith v. McMillan, 841 S.W.2d 172, 176 (Ky. 1992).
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attention via various doctors, and he eventually underwent two
surgeries for his injuries and pain.
Additionally, Prince’s
expert witness, Dr. Anthony Weaver, testified that he believed
that many of the medical bills claimed by Prince from dates
following December 15, 2000, were related to that automobile
collision.
At a minimum, Prince presented the medical bills for
the ambulance ride and emergency room visit on the date of the
accident, and Hounshell presented no evidence to refute the
validity of these documents.
In arguing that the trial court’s decision was not
clearly erroneous and the award of pain and suffering damages
without an award for medical expenses was not an inconsistent
verdict, Hounshell relies heavily on Miller v. Swift.4
Hounshell’s reliance on this case is misguided.
However,
In Miller, the
plaintiff sued the defendant following a two-automobile accident
seeking to recover for injuries she had allegedly suffered as a
result of the accident.
Both parties asserted that the other
was responsible for the accident, and the jury found both at
fault and returned a verdict apportioning 60% of the fault to
the defendant and 40% to the plaintiff.
In addition to seeking
recovery for her medical expenses and lost wages, the plaintiff
sought damages for pain and suffering.
The plaintiff had
suffered pain prior to the accident from rheumatoid arthritis,
4
42 S.W.2d 599 (Ky. 2001).
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carpal tunnel syndrome, gastritis, and problems with her knee
and shoulder, and she claimed that the accident had resulted in
enhanced pain.
The jury returned a verdict awarding the
plaintiff $3,570.67 for her past medical expenses, $1,698.92 for
her lost wages, and $0.00 for her pain and suffering, and the
plaintiff filed a motion for new trial claiming that the jury’s
award for pain and suffering was inadequate as a matter of law.
The trial court denied the motion and entered judgment upon the
jury’s verdict.
On appeal, the plaintiff claimed that the trial court
erred when it denied her motion for a new trial, arguing that
the jury’s failure to award her any money for pain and suffering
was contrary to the evidence and inconsistent with its award for
economic damages.
Citing CR 59.01, the Supreme Court stated
“whether the award represents ‘excessive or inadequate damages
appearing to have been given under the influence of passion or
prejudice or in disregard of the evidence or the instruction of
the court,’ is a question dependent on the nature of the
underlying evidence.”5
Affirming the ruling, the Supreme Court
held that because the defendant solicited testimony which would
support the jury’s conclusion that no award for pain and
suffering was necessary under these circumstances, the trial
5
Id. at 602; citing Cooper v. Fultz, 812 S.W.2d 497 (Ky. 1991).
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court did not abuse its discretion in denying the plaintiff’s
motion for new trial.6
However, this case is distinguishable from Miller.
In
Miller, the jury made an award for past medical expenses and for
lost wages, but failed to make any award for pain and suffering.
In this case, the jury has done the opposite by awarding damages
for pain and suffering but failing to make an award for medical
bills.
The evidence in Miller did not clearly establish that
the plaintiff had suffered any additional pain and suffering as
a result of the accident, and the jury was free to award $0 for
this element of the damages if it so desired.
However, the jury
in this case believed that the evidence showed that Prince had
suffered pain and suffering resulting from the December 15,
2000, collision, but it failed to give credit to the evidence
relating to the medical bills incurred following the accident.
Because Prince presented evidence as to at least two undisputed
medical bills, the jury was not free to disregard this evidence
when it made an award for pain and suffering for the same
accident.
As such, Miller is not controlling in this case.
Despite the holding in Miller, other Kentucky cases
hold that an award of non-economic damages in absence of an
award for economic damages is reversible error.
6
Id.
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In Hazelwood v.
Beauchamp,7 the plaintiff sustained an injury to his hand when it
was caught in the internal workings of a John Deere hay baler.
The plaintiff was immediately taken to Jewish Hospital in
Louisville where surgery was performed, and he subsequently
underwent two additional surgeries to the hand.
He suffered
permanent impairment as a result of the accident and later sued
his employer and co-employee for damages.
The jury awarded the
plaintiff all of his medical expenses, which amounted to
$9,440.99, but put a “0” in the blanks provided for pain and
suffering and for past and future lost earnings.
The trial
court required the jury to deliberate further, instructing it
that it had to make an award for pain and suffering.
The jury
ultimately awarded to the plaintiff $250 for pain and suffering,
but the plaintiff moved for a new trial because of the jury’s
failure to award for past and future lost earnings.
The trial
court overruled this motion and the plaintiff appealed to this
Court.
On appeal, the plaintiff argued that the trial court
erred when it overruled his motion for a new trial due to the
inadequacy of the damages.
This Court stated that the amount of
damages is a dispute left to the sound discretion of the jury,
and its determination should not be set aside merely because the
7
776 S.W.2d 439 (Ky.App. 1989).
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court would have reached a different conclusion.8
If the verdict
bears any reasonable relationship to the evidence of loss
suffered, it is the duty of the trial court and the appellate
court not to disturb the jury’s assessment of damages.9
However,
the Court held that the trial court abused its discretion in
failing to grant the motion for a new trial on damages because
the jury’s decision to award nothing for lost wages bore no
relationship at all to the losses suffered by the plaintiff and
were not supported by the evidence in the record.10
The Court
then held the jury was free to disregard the plaintiff’s
testimony regarding pain he claimed to have endured, but it was
not free to disregard the uncontroverted evidence of the nature
of the accident itself and of the medical procedures performed.11
The jury’s failure to award any sum for lost earnings was
contrary to the evidence because the uncontroverted evidence
before the jury was that the plaintiff was earning an average of
$250 per week prior to the accident and that he was not released
to work for nearly five months after the accident.12
8
Id. at 440.
9
Id.
10
Id. at 441.
11
Id.
12
Id.
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Therefore,
the court reversed the ruling and remanded for a new trial on
the issue of damages.13
This case is analogous to Hazelwood.
The jury was
free to disregard Prince’s evidence regarding the pain
associated with the accident, but it was not free to disregard
the undisputed medical bills.
Because the evidence clearly
shows that Prince did in fact incur at least some medical
expense as a result of the accident, the jury was not free to
disregard this evidence and it was not free to award $0 for this
element of the damages.
As such, the trial court erred in not
directing a verdict in favor of Prince as to uncontested medical
expenses incurred as a result of the accident.
Prince next argues that the jury’s award of $6,000 for
pain and suffering was inadequate and given under the influence
of passion and prejudice, and therefore, the trial court erred
in failing to grant his motion for a new trial on the issue of
non-economic damages as well.
Prince claims that if the jury
disregarded the uncontested evidence and awarded zero damages
for the medical bills, then it must have also disregarded the
same uncontested evidence in arriving at its verdict for pain
and suffering damages.
13
Id.
-12-
In Spalding v. Shinkle,14 this Court held that an award
of damages is not inadequate if it is supported by substantial
evidence.
Additionally, a jury is not required to believe the
testimony of the plaintiff or his doctors.15
Therefore, as long
as there was evidence presented at trial to support the jury’s
award of $6,000 for pain and suffering, this judgment must be
upheld.
There was evidence presented by both sides that Prince
had suffered from prior injuries.
surgeries after the accident.
He also underwent two
Either the prior injuries or the
surgeries could have led to the pain Prince suffered, and the
jury was free to determine that his pain was not caused by the
accident.
In Spalding, the plaintiff was injured in an
automobile collision, and the jury awarded her money for past
medical expenses, future medical expenses, past lost wages,
future lost wages, and past pain and suffering, but it awarded
her $0 for future pain and suffering.
The plaintiff moved for a
new trial arguing that the jury’s award of $0 for future pain
and suffering damages was inconsistent with the evidence, but
the trial court denied the motion.
The plaintiff appealed,
arguing that the jury verdict was clearly erroneous.
14
774 S.W.2d 465, 467 (Ky.App. 1989).
15
Id.
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The
plaintiff claimed that the testimony of her expert witness
showed that she would suffer future pain and suffering.
The Court of Appeals stated that the question is
whether the trial court ruled upon the plaintiff’s motion for a
new trial based on inadequacy of damages, and the test shifts to
whether the verdict is supported by substantial evidence.16
Because there was countervailing evidence of a substantial
nature, the jury was not bound to believe the plaintiff’s
version.17
The Court further stated that a claimant is entitled
to compensation for damages caused directly by the injuries
received, and no damages for a pre-existing condition, except to
the extent such condition was aggravated.18
The case boiled down
to which of the experts the jury believed, and the Court held
there was no error in overruling the plaintiff’s motion for a
new trial on future pain and suffering because there was
substantial evidence to support the trial court’s ruling.19
Just as in Spalding, this case turns on which expert
witness the jury believed.
Because there was sufficient
evidence to show that Prince had suffered pain in the past and
that he would suffer pain in the future, the jury was not
16
Id. at 467.
17
Id.
18
Id.
19
Id.
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required to find that all of his pain was attributable to the
accident in question.
As the Court of Appeals stated, a
claimant is entitled to compensation for damages caused directly
by the injuries received, and no damages for a pre-existing
condition except to the extent such condition was aggravated.20
Both expert witnesses stated that Prince did suffer an
exacerbation of his injuries, but Dr. Allison Weaver testified
that in her opinion Prince did not suffer any significant or
permanent injuries in the December accident.
As such, the
jury’s award was supported by sufficient evidence, and the trial
court’s ruling denying Prince’s motion for a new trial on pain
and suffering damages was not clearly erroneous.
Finally, Prince argues that the trial court erred in
excluding video clips using live human subjects which
demonstrate the movement of the head and neck during automobile
accidents.
In Kentucky, the admissibility of evidence is within
the sound discretion of the trial court, and its ruling will not
be interfered with on appeal except upon a clear showing of an
abuse of discretion.21
In Stevens v. Commonwealth,22 the former Court of
Appeals held that the results of out-of-court experiments may be
20
Id.
21
Gorman v. Hunt, 19 S.W.3d 662, 668 (Ky. 2000).
22
462 S.W.2d 182, 185 (Ky. 1970).
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admissible if such evidence tends to enlighten the jury and
enable it to more intelligently consider the issues or if the
experiments provide evidence more satisfactory than oral
testimony.
However, such evidence is not admissible unless the
conditions under which the experiment was performed were
substantially similar to the case under consideration.23
In this
case, the trial judge determined that the types of vehicles used
in the demonstrative clips were different than those driven in
the case at hand, and she also determined that the speed at the
time of the accident was unknown.
Because the speed in this
case was unknown and the vehicles used in the video were
different than those driven in this case, the demonstrative
video and experiments that Dr. Lisner sought to show the jury
were not performed under substantially similar circumstances as
the case under consideration.
Therefore, it was proper to
exclude this evidence under the rule articulated in Stevens.
As
such, the trial court did not abuse its discretion by excluding
these video clips.
Additionally, even if we were to hold that the trial
court did in fact abuse its discretion by excluding this
evidence, this would create harmless error.
Dr. Lisner was
permitted to testify at trial regarding the motion the head and
neck undergo in an automobile accident, and he also introduced
23
Id.
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animated video clips portraying the motion the brain undergoes
in such a case.
This evidence alone would be sufficient for the
jury to make a determination in this case.
For the foregoing reasons, the judgment of the trial
court in this case is affirmed in part and reversed in part.
The case is remanded to the trial court for entry of a judgment
for Prince in the amount of medical expenses resulting from the
accident that were uncontested.
ALL CONCUR.
BRIEFS FOR APPELLANTS:
BRIEF FOR APPELLEE:
Stephen Isaacs
Nicholasville, Kentucky
W. Mitchell Hall, Jr.
Ashland, Kentucky
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