NORMA KELLY V BUILDERS SQUARE INC
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Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice
Justices
Maura D. Cor rigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
Opinion
____________________________________________________________________________________________________________________________
FILED JULY 24, 2001
NORMA KELLY,
Plaintiff-Appellee,
v
No.
113314
BUILDERS SQUARE, INC.,
Defendant-Appellant.
____________________________________
BEFORE THE ENTIRE BENCH
CORRIGAN, C.J.
We granted leave in this premises liability case to
determine whether the trial court erroneously granted a new
trial on damages following the original jury verdict.
The
original jury found defendant negligent, but awarded only
plaintiff’s medical expenses without rendering any award for
pain and suffering.
The trial court, in response to a
specific inquiry from the first jury during deliberations, and
with the agreement of both parties, had earlier instructed
that the jury had no duty to award any damages, even if it
found defendant negligent.
In response to plaintiff’s motion
for new trial, the trial court thereafter ordered a partial
retrial on damages only to determine an appropriate award for
pain and suffering.
$150,000
in
On retrial, the jury awarded plaintiff
noneconomic
damages.
The
Court
of
affirmed in an unpublished, two-to-one decision.1
Appeals
We reverse
and remand to the trial court for entry of judgment on the
original verdict because the trial judge had no legal basis to
set it aside.
I. UNDERLYING
FACTS AND PROCEDURAL HISTORY
On May 17, 1991, plaintiff Norma Kelly and her husband
patronized defendant’s store in Ypsilanti.
As plaintiff
walked down an aisle containing a stack of large boxes of
electric fans, some boxes fell.
At least one box struck
plaintiff’s head and right shoulder.
Neither plaintiff nor
her husband knew how or why the boxes had fallen.
Plaintiff reported pain in her right shoulder.
transported by ambulance to a local hospital.
She was
Examination
there reflected that plaintiff had full range of motion in her
right
shoulder.
An
x-ray
revealed no abnormality.
of
plaintiff’s
shoulder
also
Plaintiff was released from the
1
Unpublished opinion per curiam, issued July 31, 1998
(Docket No. 199501).
2
hospital the same day.
She later followed up with her family
physician who prescribed physical therapy.
It was not until thirty months following the accident
that plaintiff first began treating with Dr. Ralph Blasier, an
orthopedic surgeon.
After examining plaintiff and reviewing
an MRI, Dr. Blasier diagnosed a tear in the rotator cuff
muscle of plaintiff’s right shoulder and muscle impingement.
Dr. Blasier surgically removed part of the bone to relieve the
impingement.
tear
during
However, he saw no evidence of a rotator cuff
surgery.
He
testified
that
“common
sense”
suggested that the incident at defendant’s store had caused
plaintiff’s injury.
Plaintiff testified that the operation alleviated her
pain only “a little bit.”
prevented
her
from
She claimed that her injury still
various
activities
such
as
driving,
swimming, shopping, and crocheting.
Dr. Paul Kelly, another orthopedic surgeon, examined
plaintiff for the defense.
He saw no reason to restrict any
of plaintiff’s activities.
He opined that it would be quite
unusual for a blow to the top of the shoulder to cause a
rotator cuff injury or impingement.
He stated: “I’ve never
seen a mechanism injury to the rotator cuff as a direct result
of a blow to the top of the shoulder.”
After
retiring
to
deliberate,
3
the
jury
forwarded
questions: “Can we agree on negligence and offer no money?
What is the
negligence?”
minimum monetary amount . . . if there is
Plaintiff
and
defense
counsel
thereafter
specifically agreed to an instruction that the jury could find
negligence but not award damages and that the jury need not
award any amount of damages.
The court then furnished a
written instruction to the jury consistent with the parties’
agreement.2
The jury thereafter returned a verdict finding defendant
negligent.
The
jury
awarded
plaintiff
medical
expenses
totaling $10,227, but awarded nothing for noneconomic damages.
Plaintiff then moved for a new trial on damages only. Relying
on Fordon v Bender, 363 Mich 124; 108 NW2d 896 (1961), and
Mosley v Dati, 363 Mich 690; 110 NW2d 637 (1961), she asserted
that wherever a jury finds negligence and awards medical
expenses, it must also award damages for pain and suffering.
In its reply, the defense countered that a jury is not
required to award damages for pain and suffering.
The trial court granted a new trial on damages only. The
court did not mention the parties’ stipulated instruction in
its ruling:
2
The judge who presided over the trial and granted the
new trial motion was not present during deliberations when the
jury sent this note. A substitute judge gave the jury the
written instruction to which the parties had agreed.
4
I did follow this case.
I did have the
opportunity to personally observe the credibility
and the demeanor of the complaining witnesses in
this case. And there was extensive testimony about
the damages that occurred as the result of the
alleged negligence of the defendants.
* * *
Once having established that there was
negligence and establishing proximate cause and
accepting the validity–and we had a special verdict
form as to what that $10,227 constituted, i.e., the
medical
expenses
including
surgery
for
the
treatment
of
this
woman,
it
is
absolutely
incongruous, it is absolutely inconsistent to then,
based on that evidence, conclude there was no pain
and suffering, there was no disability, there was
no other “non-economic damages” that they were
instructed on in the past, the present or the
future.
Following
retrial,
a
second
jury
awarded
plaintiff
$150,000 for “physical pain and suffering, mental anguish,
denial of social pleasure and enjoyments and embarrassment” in
the past, present, and future.
In a two-to-one decision, the Court of Appeals affirmed
the
trial
court’s
decision
to
grant
a
new
trial.
dissenting judge opined:
There is no legal requirement that a jury
award damages simply because liability was found.
Joerger v Gordon Food Service, Inc, 224 Mich App
167, 173; 568 NW2d 365 (1997).
Indeed, the
plaintiff bears the burden of proving damages, and
a jury is free to accept or reject such proofs.
Id. at 172-173. The original jury in this case had
the best opportunity to understand all the issues
and evidence involved, and its refusal to award
noneconomic damages should have been respected. I
would affirm the original jury verdict.
The
granting of a new trial on the issue of damages was
5
The
wholly gratuitous.
If in fact a new trial was
warranted, the entire case should have been
submitted to the jury. [Slip op, p 1.]
This Court granted leave to appeal “limited to whether
the trial court erred in ordering a second trial on the issue
of damages.”
462 Mich 861 (2000).
II. STANDARD
OF
REVIEW
On appeal, we review a trial court’s decision whether to
grant a new trial for an abuse of discretion.
Bean v
Directions Unlimited, Inc, 462 Mich 24, 34; 609 NW2d 567
(2000); Brown v Arnold, 303 Mich 616, 627; 6 NW2d 914 (1942).
We review de novo any questions of law that arise.
Cardinal
Mooney High School v Michigan High Sch Athletic Ass’n, 437
Mich 75, 80; 467 NW2d 21 (1991).
III. ANALYSIS
A. The jury’s prerogative to assess pain and suffering
This Court has long recognized that the authority to
measure damages for pain and suffering inheres in the jury’s
role as trier of fact.
See, e.g., Griggs v Saginaw & F R Co,
196 Mich 258; 162 NW 960 (1917); Michaels v Smith, 240 Mich
671; 216 NW 413 (1927).
In Brown, supra, a jury awarded only the amount of the
medical
expenses
to
a
severely
3
The verdict form had not
expenses from pain and suffering.
6
injured
plaintiff.3
differentiated
The
medical
plaintiff sought a new trial on the ground that the verdict
was grossly inadequate and against the great weight of the
evidence.
This Court affirmed the denial of a new trial:
“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. Michaels v Smith, 240 Mich
671 [216 NW 413 (1927)]. No such showing has been
made, nor is the verdict so inadequate as to shock
the judicial conscience. Watrous v Conor, 266 Mich
397 [254 NW 143 (1934)].” Campbell v Brown, 276
Mich 449, 454 [267 NW 877 (1936)].
In Sebring v Mawby, 251 Mich 628[232 NW 194
(1930)] this court said: “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 claim of any such
influence in this case. In view of the evidence,
we cannot say that the verdict was excessive.”
In Cleven v Griffin, 298 Mich 139 [141; 298 NW
482 (1941)] we also said: “No complaint is made by
appellants
that
the
jury
was
not
properly
instructed as to the element of damages. No claim
is made that the verdict was obtained by improper
methods, prejudice or sympathy.
There is no
absolute standard by which we can measure the
amount of damages in personal injury cases.
The
amount allowed for pain and suffering must rest in
the sound judgment of the triers of the facts.
Watrous v Conor, 266 Mich 397 [254 NW 143 (1934)];
Weil v Longyear, 263 Mich 22 [248 NW 536 (1933)].
Courts are reluctant to disturb verdicts of juries
for personal injuries on the ground that the amount
is excessive. Cawood v Earl Paige & Co, 239 Mich
485 [214 NW 402 (1927)].
We do not usually
7
substitute our judgment for that of the jury unless
the verdict shocks the conscience or has been
secured by improper means, prejudice or sympathy.
Watrous v Conor, supra, Michaels v Smith, 240 Mich
671 [216 NW 413 (1934)]. The verdict was within
the range of the testimony and not excessive.
See, also, Nezworski v Mazanec, 301 Mich 43 [2
NW2d 912 (1942)].
We cannot substitute our opinion for that of
the jury as to the proper amount of damages to
allow plaintiff for pain and suffering. [Brown at
627-629.]
In a trio of cases decided between 1958 and 1961, Weller
v Mancha, 353 Mich 189; 91 NW2d 352 (1958), Fordon, supra, and
Mosley, supra, this Court ordered new trials where a jury had
failed to award damages for pain and suffering.
This Court
did not acknowledge the Brown case in any of those opinions.
In Weller, the plaintiff sued for automobile negligence
and obtained a jury verdict “in the exact amount of the out
of-pocket expenses for medical, hospital and funeral bills and
damage to the automobile, [but] nothing was allowed for pain
and suffering and nothing for loss of support.”
(citations omitted).
Id. at 195
This Court ordered a new trial:
The jury verdict was for the exact amount of
the stipulated special damages of the deceased. It
is apparent that no consideration was given by the
jury to the additional elements of the pain and
suffering of the deceased and the future damages of
the widow and minor child, and, therefore, the
damages awarded to plaintiff were overwhelmingly
against the evidence, and, under the evidence,
grossly inadequate. [Id. at 195-196.]
8
In Fordon, the defendants admitted liability for damages
resulting from an automobile accident.
The issue of damages
was tried before a jury, leading to an award for the medical
expenses and damage to the vehicle, but not for pain and
suffering.
This Court reversed and remanded for a new trial,
relying in part on Weller:
In allowing plaintiff to recover for his
special damages, the jury must necessarily have
found that he suffered injuries proximately caused
by defendant’s negligence.
The court properly
instructed the jury with respect to its duty to
award such special damages in the event it found
that defendants proximately caused plaintiff’s
injuries. The court also properly charged that in
that event plaintiff should be awarded, in
addition, an “amount that will compensate him as
far as money can compensate him for the pain and
suffering that he has endured.”
There was much
disputed testimony relating to plaintiff’s medical
history and physical condition both prior and
subsequent
to
the
collision
here
involved.
Defendants sought to prove that plaintiff’s
injuries
had
been
caused
by
other
events,
principally
athletic
and
body
conditioning
activities in which he engaged rather extensively,
and, of course, plaintiff sought to prove his claim
that the injuries were caused by defendants. The
jury resolved the dispute in plaintiff’s favor by
its verdict, which included damages for plaintiff’s
medical expenses.
The jury’s verdict, however,
manifests a disregard of the court’s quoted
instruction by its failure to award damages for
pain and suffering.
Once the jury resolved the
causation dispute, the great weight of the evidence
compelled it to award plaintiff damages for the
pain and suffering which naturally followed such
injuries found by the jury to have been proximately
caused by defendants. [Fordon at 125-126.]
In Mosley, this Court again ordered a new trial after the
jury awarded the precise amount of medical expenses resulting
9
from automobile negligence.
This Court reviewed the evidence
of pain and suffering and, relying on Fordon, concluded that
“the great weight of the evidence preponderates in favor of a
finding that plaintiff did, in fact, endure pain and suffering
as a result of the injuries caused by defendants’ negligence.”
Mosley at 692.
Weller, Fordon, and Mosley did not create a legal rule
mandating pain and suffering damages whenever a jury finds
negligence
and
awards
medical
expenses.
Rather,
those
decisions analyzed the great weight of the evidence on the
facts
presented.
Subsequent
cases
have
emphasized
the
deference traditionally accorded to a jury’s assessment of
damages in accordance with the principles discussed in Brown,
supra.
See, e.g., A’eno v Lowry, 367 Mich 657; 116 NW2d 730
(1962); Moore v Spangler, 401 Mich 360; 258 NW2d 34 (1977).
B. CODIFICATION
OF BASES FOR GRANTING A NEW TRIAL
The grounds for granting a new trial, including a verdict
contrary to the great weight of the evidence, are now codified
at MCR 2.611(A)(1).
The court rule provides the only bases
upon which a jury verdict may be set aside.
Fordon, and Mosley are no longer relevant.
Thus, Weller,
A jury’s award of
medical expenses that does not include damages for pain and
suffering does not entitle a plaintiff to a new trial unless
the movant proves one of the grounds articulated in the court
10
rule.
Plaintiff has not shown why she was entitled to a new
trial under the court rule.
She instead relies on Fordon and
Mosley.
Similarly, the trial court did not cite any basis in the
court rule for setting aside the original jury verdict.
It
merely stated that the failure to award pain and suffering
damages was “inconsistent” and “incongruous.” MCR 2.611(A)(1)
does not identify inconsistency or incongruity as a ground for
granting a new trial.
The court abused its discretion by
granting a new trial without finding a basis in the court
rule.
We reject, in any event, the principle that a jury
behaves inconsistently when it awards medical expenses, but
nothing for pain and suffering.
Plaintiff had the burden to
prove each element of her case, including every item of
claimed damages.
Medical expenses and pain and suffering are
distinct categories of damages.
distinct evidentiary basis.
testimony
about
her
Each category may have a
For example, a claimant’s own
subjective
experiences
offered to prove pain and suffering.
is
generally
When a jury believes
that a plaintiff has suffered an injury and incurred medical
expenses, it may still assess separately any distinct proofs
regarding pain and suffering.
11
In short, the jury is free to credit or discredit any
testimony. It may evaluate the evidence on pain and suffering
differently
from
the
proof
of
other
damages.
No
legal
principle requires the jury to award one item of damages
merely because it has awarded another item.
Instead of finding a basis in the court rule for granting
a new trial, the trial court and Court of Appeals majority
expressed
Assessing
views
regarding
credibility
the
and
credibility
weighing
prerogative of the trier of fact.
of
witnesses.
testimony
is
the
The trial court therefore
abused its discretion in granting a new trial.
IV. RESPONSE
The
dissent
opines
TO THE DISSENT
that
the
great
weight
of
the
evidence--a basis for setting aside a jury verdict under our
current rule--justified the grant of a new trial in this case.
But the trial court did not review the evidence under that
standard;4 thus, there is no exercise of discretion by the
4
Contrary to the dissent’s assertion, the record does
not reflect that the trial court applied the great weight of
the evidence standard.
Because Weller, Fordon, and Mosley
referred to the great weight of the evidence, the dissent
speculates that the trial court here applied that standard.
This rationalization of the trial court’s decision has no
basis in the court’s actual ruling. Moreover, Weller, Fordon,
and Mosley were decided on other bases in addition to the
great weight of the evidence, thus further undermining the
dissent’s chain of reasoning.
12
trial court under that standard for us to review.5
The dissent also states that our application of MCR
2.611(A)(1) “puts us out of step with the position embraced by
virtually every other state.”
Slip op at 1.
We are not “out
of step” with other states when we reinstate a jury verdict
that the trial court lacked a legal basis to set aside.
We
have satisfied our duty to apply our court rule codifying the
bases for granting a new trial.
Next, the dissent observes that a jury verdict may be set
aside where it is “contrary to law.” MCR 2.611(A)(1)(e). The
dissent
views
an
“contrary to law.”
that
phrase
inconsistent
or
incongruent
Slip op at 2, n 2.
because
the
trial
court
verdict
as
We need not construe
did
not
employ
the
dissent’s interpretation as a basis for granting a new trial.
The court did not find that the verdict was “contrary to law.”
But even if a jury verdict may be set aside on the basis
of inconsistency under our current rule, the trial court did
not apply the standard in existing case law for reviewing
inconsistent verdicts.
If a verdict appears inconsistent, a
5
The dissent states that our description of the
underlying facts and procedural history, “impliedly casts”
doubt
on
plaintiff’s
credibility.
We
reject
this
characterization.
The original jury in this case resolved
credibility issues when it declined to award damages for pain
and suffering.
We base our decision solely on the trial
court’s failure to find a basis in the governing court rule to
upset the jury’s verdict.
13
court must “make every effort to reconcile the seemingly
inconsistent verdicts.”
Bean, supra at 31, quoting Lagalo v
Allied Corp, 457 Mich 278, 282; 577 NW2d 462 (1998).
A new
trial may not be granted if an interpretation of the evidence
logically explains the jury’s findings.
Id.
The trial court
did not apply this standard.
V. CONCLUSION
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 here, the trial judge lacked a legal basis to
grant a new trial.
Accordingly, we reverse the Court of
Appeals and remand to the trial court for entry of a judgment
consistent with the original jury verdict.
TAYLOR , YOUNG , and MARKMAN , JJ., concurred with CORRIGAN , C.J.
WEAVER , J., concurred in the result only.
14
S T A T E
O F
M I C H I G A N
SUPREME COURT
NORMA KELLY,
Plaintiff-Appellee,
v
No. 113314
BUILDERS SQUARE, INC.,
Defendant-Appellant.
___________________________________
KELLY, J. (dissenting).
Today
the
majority
ignores
the
command
of
settled
Michigan precedent and puts us out of step with the position
embraced by virtually every other state.1
Because the initial
jury rendered a flawed verdict, it was altogether appropriate
for the trial court to grant a partial new trial.
alleged
with
respect
to
the
second
No error is
jury's
verdict.
Accordingly, I would sustain it and affirm the opinion of the
Court of Appeals.
1
See Anno: Validity of Verdict Awarding Medical Expenses
to Personal Injury Plaintiff, But Failing to Award Damages for
Pain and Suffering, 55 ALR4th, pp 186-232.
I
Where a verdict in a civil case is inconsistent, self
contradictory or incongruent, it must be set aside and a new
trial granted.
NW2d
Harrington v Velat, 395 Mich 359, 360; 235
357 (1975), quoting 66 CJS, New Trial, § 66, pp 197-198.
See also Bias v Asbury, 369 Mich 378; 120 NW2d 233 (1963); 58
Am Jur 2d, New Trial, § 129, pp 335-336; Bartholomew v Walsh,
191 Mich 252, 261-262; 157 NW 575 (1916).
The first jury in
this case rendered such a verdict.2
Also, it is without question that Michigan law requires
a new trial where the verdict is against the great weight of
the evidence. See MCR 2.611(A)(1)(e). Longstanding precedent
establishes that a personal injury jury verdict that awards
damages for medical expenses, yet awards nothing for pain and
suffering is against the great weight of the evidence. Weller
v Mancha, 353 Mich 189; 91 NW2d 352 (1958); Fordon v Bender,
363 Mich 124; 108 NW2d 896 (1961); Mosley v Dati, 363 Mich
690; 110 NW2d 637 (1961).
In this case, as in Fordon:
2
The majority submits that inconsistent and incongruent
verdicts are invalid grounds for granting a new trial because
those very words do not appear in MCR 2.611. I find this
approach unduly rigid. Under Michigan law, an inconsistent
verdict means a legally irreconcilable one. Hence, a legally
irreconcilable verdict is contrary to law. MCR 2.611(A)(1)(e)
provides that a verdict contrary to law is grounds for a new
trial.
2
The jury resolved the dispute in plaintiff's
favor by its verdict, which included damages for
plaintiff's medical expenses. The jury's verdict,
however, manifests a disregard of the court's
quoted instruction by its failure to award damages
for pain and suffering. Once the jury resolved the
causation dispute, the great weight of the evidence
compelled it to award plaintiff damages for the
pain and suffering which naturally followed such
injuries found by the jury to have been proximately
caused by defendants. [Id. at 125-126 (emphasis
added).]
In this case, the court instructed the first jury on the
elements of damages that it was required to consider, pursuant
to SJI2d 50.01, 50.02. That instruction provided, in part:
You should include each of the following
elements of damage which you decide has been
sustained by plaintiff to the present time:
a.
b.
The
physical pain and suffering
mental anguish . . . .
jury
disregarded
these
instructions.
It
found
defendant liable and awarded damages that matched the exact
amount of plaintiff's medical expenses.
Its award of actual
damages, coupled with the nature of plaintiff's injuries
necessitating surgery, compels the conclusion that the jury
found injuries that included pain and suffering.
was
both
inconsistent
with
the
judge's
Its verdict
instructions
and
contrary to the great weight of the evidence under the clear
holdings of Weller, Fordon, and Mosley.
The cases relied on by the majority
conclusion.
do not support its
They leave undisturbed the rule that a verdict
3
against the great weight of the evidence requires a new trial.
Instead, they stand for the general proposition that the court
should not substitute its judgment for that of the jury on
factual questions. In fact, the reasoning they employ appears
to support, not conflict with, the trial judge's decision in
this case.
Brown,3 the case relied on most heavily by the majority,
is distinguishable from this case.
The distinction lies in
the fact that the verdict in Brown was not for actual damages,
alone, but exceeded actual damages by $9.50.
There was
evidence that the excess was the amount of the plaintiff's
ambulance fare, but there was no evidence that the plaintiff
was charged for ambulance services.
Moreover, there was evidence in Brown that the defendant
paid for various of the plaintiff's expenses during the two
months
after
her
release
from
the
hospital.
The
Court
considered this evidence and decided that the jury may have
believed this adequate compensation for present pain and
suffering and thus awarded only a minuscule additional amount.
Additionally, the Court pointed to other factors suggesting
that the jury actually had followed its instructions that it
consider awarding compensatory damages.
3
Brown v Arnold, 303 Mich 616; 6 NW2d 914 (1942).
4
It concluded that the jury may have determined a higher
award to be unjustified by the proofs.
The judge observed
that the lower award could have been derived from the paucity
of evidence showing that the plaintiff's pain and suffering
was permanent.
refusing
to
Thus, the Brown Court denied a new trial,
speculate
on
the
purpose
behind
the
jury's
decision to award a small amount of excess compensation.
By contrast, in this case, plaintiff received nothing
whatsoever beyond her medical expenses.
Hence, there was
nothing about which the trial court could speculate. Clearly,
no damages for pain and suffering were awarded.
II
Defendant insists that the issue before us centers on the
trial judge's response to the question submitted by the first
jury shortly before it rendered its decision.4
The jury's
question was whether damages must be awarded upon a finding of
negligence. The response was: a jury may find negligence and
award no damages.
It was legally correct.5
If, for example,
4
The majority notes that all parties agreed to the
substance of the judge's written response to the jury's query.
I find this fact unremarkable, given the propriety of, and the
lack of grounds for objection to, the judge's answer.
5
The majority fails to acknowledge that the jury found
more than mere "negligence," given its decision to award
actual damages. It is blackletter law that plaintiff would not
be entitled to any award at all if defendant's "negligence"
did not proximately cause her injuries. Therefore, we must
(continued...)
5
the jury found that the defendant's acts were negligent, but
not the proximate cause of the plaintiff's injuries, it would
find no damages.
It could make the same finding in the
presence of negligence and proximate cause where no damages
had been proven.
compensatory
Here, because the jury failed to award
damages
despite
clear
instructions
and
unrebutted, credible evidence6 of pain and suffering, the
5
(...continued)
conclude that the first jury found proximate cause as well as
negligence. This resulted in liability.
Indeed, there is a distinction between the concept of
negligence in the broadest sense, encompassing all four
traditional elements, and negligence in the sense that it is
commonly used. In common usage, "negligence" describes a mere
breach of duty, a notion entirely severable from the elements
of proximate cause and damages. As Prosser & Keeton, Torts
(5th ed), §30, pp 164-165, observes:
A failure on the person's part to conform to
the standard required: a breach of the duty. These
two elements go to make up what the courts usually
have called negligence, but the term quite
frequently is applied to the second alone. Thus it
may be said that the defendant was negligent, but
is not liable because he was under no duty to the
plaintiff not to be. [Emphasis added.]
See also Davis v Thornton, 384 Mich 138, 146; 180 NW 2d
11 (1970) (finding that once negligence is found, "[t]he jury
must then bridge the gap between the plaintiff's injuries and
the defendant's negligence. This is the determination of cause
and the remoteness of effect.").
6
Had the jury not found plaintiff credible, it would not
have awarded her actual damages. Having found an injury caused
by defendant's negligence and an injury and surgery that
naturally occasion pain, it was improper for the jury to avoid
some award of noneconomic damages. That is the law of our
(continued...)
6
verdict was against the great weight of the evidence.
III
The majority contends that later revision of the bases
for granting new trials resulted in the de facto overruling of
Weller, Fordon, and Mosley.
It postulates that the decisions
"are no longer relevant" because MCR 2.611(A) alone provides
the basis for awarding a jury verdict. I disagree.
The court rule allows for a new trial where a verdict is
contrary to the great weight of the evidence. Weller, Fordon,
and Mosley identify factual instances where a court found a
verdict was contrary to the great weight of the evidence.
As
the majority indicates, Weller provides:
It is apparent that no consideration was given
by the jury to the additional elements of the pain
and suffering of the deceased . . . and, therefore,
the
damages
awarded
to
plaintiff
were
overwhelmingly against the evidence. . . . [Weller,
supra at 195-196.]
MCR 2.611(A) represents a codification of the principles in
Weller, Fordon, and Mosley.
It is consistent with those
opinions and does not in the least nullify them.
The jury verdict in this case was virtually identical in
form
to
those
generated
in
Weller,
Fordon,
and
Mosley.
Plaintiff justifiably relied on the principles found in those
6
(...continued)
state as set forth in Weller, Fordon, and Mosley, and the law
that should govern our analysis of this case.
7
cases for valid reasoning to demonstrate that the first jury
returned
evidence.
a
verdict
contrary
to
the
great
weight
of
the
Since the judge's decision to award a partial new
trial on damages was consistent with those cases and with the
court rule, it was not an abuse of discretion.7
IV
The majority concludes that the trial court abused its
discretion by failing to review the evidence for a violation
of the court rule.
The opinion suggests that the judge
improperly substituted his opinion for that of the jury when
he "expressed views regarding the credibility of witnesses."
Slip op at 13.
However, the majority does its own indirect
assessment of witness credibility when referencing selective
portions of the testimony that reflect plaintiff's case as too
weak to warrant a new trial.
Slip op at 2-3.
Thus, the
majority states that its decision is based on the court rule.
However,
it
intimates
that
defendant
produced
sufficient
evidence to avoid a finding that the verdict went against the
7
The majority contends that the trial court abused its
discretion by not granting a new trial on one of the bases
codified in MCR 2.611. The trial court based its ruling on
the principles found in the Weller trio of cases. Those cases
involved decisions granting new trials because the verdict was
against the great weight of the evidence. Such verdicts are
grounds for a new trial under MCR 2.611(A)(1)(e). The
majority's statement to the contrary, this is the standard
under which the trial court reviewed the evidence in this
case.
8
great weight of the evidence.
It stresses that the question
centered on credibility, something exclusively in the domain
of the trier of fact.
By so casting the evidence and
analysis, the majority avoids showing appropriate deference to
the trial judge's fitting efforts to rule on the legality of
the verdict.
As our Court of Appeals has observed:
[T]he standard used in this case is different
than
that
involved
in
reviewing
a
summary
disposition,
directed
verdict,
or
judgment
notwithstanding the verdict, and we are not of the
view that the existence of any competent evidence
to support the verdict compels reversal of the
grant of a new trial. [Arrington v Detroit
Osteopathic Hosp (On Remand), 196 Mich App 544,
560-561; 493 NW2d 492 (1992) (emphasis added).][8]
Reflecting on the struggle to give appropriate deference
to the trial court's judgment and respect for the collective
wisdom of the jury, one legal scholar has written:
If, having given full respect to the jury's
findings, the judge on the entire evidence is left
with the definite and firm conviction that a
mistake has been committed, it is to be expected
that he will grant a new trial. [Wright, Law of
Federal Courts (4th ed), § 95, p 635.]
8
See also Davis v Belmont Creamery Co, 281 Mich 165,
169; 274 NW 749 (1937) (finding a jury verdict to be against
the great weight of the evidence despite the existence of a
question
of
fact
sufficient
to
avoid
a
judgment
notwithstanding the verdict); Dean & Longhofer, Michigan Court
Rules Practice, New Trials § 2611.7 (West, 1998) ("Between
these extremes lies an area in which the proof begins to weigh
heavily against the verdict, where the trial judge's
discretion must be accepted as the best guide to whether
fairness requires a new trial.").
9
I believe the proper standard to apply to this case allows
considerable deference to the trial judge's decision while, at
the same time, respecting the collective wisdom of the jury.
That deference was given by Michigan courts in Davis and
Arrington and was described by Professor Wright.
Without question, the mere fact that defendant produced
an expert witness does not foreclose the possibility that the
first
verdict
evidence.
was
contrary
to
the
great
weight
of
the
Consider the substance of the testimony from
defendant's only witness, Dr. Kelly.
The defense's physician
acknowledged on cross-examination that he had not performed a
shoulder surgery of the type at issue in "five or six years."
He admitted that only forty percent of his professional time
is spent dealing with patients directly.
In evaluating plaintiff, Dr. Kelly spent only twenty to
twenty-five minutes.
He declined to review her medical
records or operative notes from plaintiff's surgery; he failed
to review her physical therapy records; he declined to order
orthopedic tests, such as an MRI or an arthrogram; he had no
knowledge of the prior tests that had been performed on the
patient.
Hence, when the majority references select portions of
Dr.
Kelly's
testimony
it
misleads
the
reader
with
the
implication that they constitute a basis for reversal of the
10
lower court's grant of new trial.
Such a conclusion is
unsubstantiated, given the majority's disregard for the need,
when reviewing the grant of a new trial, to balance the
deference due the jury with that due the judge.
In my
opinion, the testimony of Dr. Kelly, standing alone, is
insufficient to support a conclusion that the trial judge
abused his discretion in granting a new trial.
The
majority's
"underlying
facts"
section
cites
Dr.
Blasier's inability to locate the tear in plaintiff's rotator
cuff during surgery.
It implies that the nondiscovery lends
support to its finding that the trial judge erred.
The same
section also notes that X-rays failed to show evidence of the
torn rotator cuff. This is a lopsided version of the evidence.
As Dr. Blasier explained in his testimony, and Dr. Kelly
acknowledged, the tear suffered by plaintiff would not have
been visible from the vantage point of the surgeon during
surgery.
This is because it occurred on the underside of the
rotator cuff muscle and would have been obscured from the
surgeon's view by the top of the muscle.
Moreover, Dr. Kelly
acknowledged on cross-examination that X-rays do not show
partial muscle tears or impingements of the kind complained of
by
plaintiff.
Therefore,
the
doubt
that
the
majority
impliedly casts on plaintiff's credibility by suggesting that
her injuries, if real, would have appeared on an X-ray is
11
unavailing.9
Indeed, the evidence of pain and suffering is undisputed
and
unimpeached.
Dr.
Kelly,
the
only
defense
witness,
addressed the subject of pain three times, each time only to
acknowledge its existence. Plaintiff's witnesses, on the other
hand, testified in great detail about the pain Ms. Kelly
endured.
Dr. Blasier stated that each time plaintiff merely
raised her arm, she experienced pain.
from
Donald
Kuck,
plaintiff's
There was testimony
physical
therapist,
Kelly, plaintiff's husband, and plaintiff, herself.
Ernest
Each
presented the jury with a detailed description of the nature
and severity of the pain.
Therefore, I disagree that the trial judge erroneously
granted
trial
a new trial, and I reject the proposition that the
court
standard.
reviewed
the
evidence
under
an
inapplicable
Inasmuch as the first jury failed to consider an
award of noneconomic damages, its verdict was properly found
to be contrary to the great weight of the evidence. The
testimony of a lone defense witness does not render the trial
court's finding unreasonable. Rather, the great weight of the
9
The record reflects that MRI tests, viewed by medical
professionals as the most accurate means of diagnosing and
identifying partial muscle tears, showed plaintiff's torn
muscle before and after surgery. Additionally, Dr. Blasier
testified that, once he injected dye into plaintiff's shoulder
muscle, he was able to view the tear in an X-ray.
12
evidence easily could have been found to militate against the
first
jury
verdict,
offered by Dr. Kelly.
notwithstanding
the
brief
testimony
There was no abuse of discretion.
V
I agree with the majority that "the jury is free to
credit or discredit any testimony" offered at trial.
at 12.
Slip op
However, the jury may not disregard or misapply clear
instructions from the court.
In this case, the jury was
instructed to include in its verdict "elements of damages" for
"physical pain and suffering" as well as "mental anguish." It
neglected to do so.
The
settled
law
of
our
state
requires
an
award
of
noneconomic damages where a jury finds actual damages that
necessarily involve pain and suffering.
A verdict that fails
to consider these aspects is contrary to the great weight of
the evidence.
Such a verdict was rendered in this case. That
fact alone provides a sufficient basis to affirm the trial
judge's decision to award plaintiff a new trial.
The majority's finding that the trial court abused its
discretion by not citing one of the bases in MCR 2.611 as
support for its decision is in error. The court rule codifies
the great weight of the evidence standard applied in the
Weller trio of cases. The trial court did review the evidence
under a great weight of the evidence standard. That is, after
13
all, the standard for which the Weller cases are known.
The evidence of plaintiff's pain and suffering in this
case
was
unrebutted
and
unimpeached.
The
only
witness
testifying against plaintiff was a physician who acknowledged
that plaintiff had experienced rotator cuff pain.
Even if
defendant's expert had denied the pain, denial of the motion
for new trial would have been unjustified, given the quality
and quantity of the evidence of plaintiff's pain.
Thus, if a factual dispute existed, as suggested by the
majority's "underlying facts and procedural history" section,
it is of no consequence.
It could not render the trial
judge's decision an abuse of discretion.
Accordingly, the
trial court's decision to grant a partial new trial was
correct.
The Court of Appeals decision upholding the second
jury's verdict should be affirmed.
CAVANAGH , J., concurred with KELLY , J.
14
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