Herriman v. May

142 Wash. App. 226
CourtCourt of Appeals of Washington
DecidedDecember 20, 2007
DocketNo. 25176-4-III
StatusPublished
Cited by12 cases

This text of 142 Wash. App. 226 (Herriman v. May) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Herriman v. May, 142 Wash. App. 226 (Wash. Ct. App. 2007).

Opinion

¶1 — Donna Herriman sought damages from Gilbert May after he rear-ended her truck while she was stopped at an intersection. The jury awarded a substantially lower amount of damages than she requested. Ms. Herriman moved for a new trial, contending the verdict was inadequate. The trial court agreed and ordered additur or, in the alternative, a new trial. Mr. May appeals the trial court’s order, contending sufficient credible evidence supported the jury’s award of damages. We agree and reverse.

Schultheis, J.

FACTS

¶2 On the morning of February 5, 2003, Gilbert May’s truck hit Donna Herriman’s truck from behind at a low rate of speed while she waited at an intersection. Ms. Herriman [229]*229was taken to an emergency room and treated for multiple bruises. Her longtime doctor, Dr. Donald Brecht, examined Ms. Herriman on February 11, finding knee, rib, and chest bruising secondary to a car accident, but no fractures or internal injuries. Ms. Herriman sued Mr. May, seeking compensation for her injuries. Mr. May admitted liability, and the matter was tried to a jury on damages alone.

¶3 At trial, Ms. Herriman testified that after the accident she was in bed for several months and never returned to her job as a dental assistant. She was too fearful to resume driving. She participated in physical therapy for five weeks but stopped because it was too painful. She claimed her life changed dramatically after the accident: she experienced chronic pain, suffered vision and balance loss, was no longer able to engage in family activities, had to limit her chores, and was unable to return to work.

¶4 Friends and family testified that Ms. Herriman deteriorated after the accident. By all accounts, before the accident, Ms. Herriman was a hard worker with a positive and outgoing personality. Her employer testified that she was a conscientious employee who never missed a day of work. One of Ms. Herriman’s co-workers noted that Ms. Herriman appeared to be in a lot of pain after the accident. And Ms. Herriman’s stepmother observed that Ms. Herriman’s mobility was impaired.

¶5 Dr. Brecht opined that the accident was the sole source of Ms. Herriman’s physical and emotional problems. Although he thought Ms. Herriman eventually improved, Ms. Herriman disagreed and refused his suggestion to try a pain clinic in Seattle. Instead, she asked him about obtaining total disability.

¶6 Dr. Brecht also testified that Ms. Herriman exhibited symptoms compatible with fibromyalgia, a disease characterized by profound fatigue and muscle pain. He explained that fibromyalgia can be caused by trauma to the musculoskeletal system. He also testified that Ms. Herriman was one of the few patients he did not expect to recover from soft tissue injuries.

[230]*230¶7 The defense presented the testimony of Dr. David Whitney, a highly experienced orthopedic surgeon, who independently evaluated Ms. Herriman in May 2004. He noted that Ms. Herriman had a back injury that predated the 2003 accident and degenerative spinal change unrelated to the accident. He also noted that Ms. Herriman had no fractures or neurological compromise. He believed that her symptoms had an “extensive emotional overlay.” Dep. of David Whitney, MD, at 90.

¶8 Dr. Whitney testified that Ms. Herriman’s complaints of pain “do not appear to fit with [in] the clinical picture and appear to be greatly exaggerated.” Id. at 29. The results of a test given to evaluate exaggeration of pain symptoms revealed that Ms. Herriman reported pain where none could exist, she failed to give full effort to a grip test, and her range of motion was greater when he secretly observed her in the waiting room compared to testing in his presence. He found no loss of strength, numbness, reflex changes, or muscular atrophy that would indicate genuine weakness, noting that her complaints of numbness “just [don’t] occur with real conditions.” Id. at 32. He rejected Dr. Brecht’s fibromyalgia diagnosis, observing that Ms. Herriman did not have pain at the required pressure points. He stated the muscular impact of the collision could have lasted three weeks at most.

¶9 Dr. Whitney concluded there was “no objective basis upon which to base any physical restrictions with respect to the injury of February 5, 2003.” Id. at 37. He stated that as of May 2004, Ms. Herriman did not need any future medical care. Id. at 39.

¶10 Averaging her yearly earnings between 1998 and 2003, Ms. Herriman asked for lost wages from the date of the accident until September 2005 totaling $34,188.00. She also asked for lost future wages of approximately $230,000.00 based on what she would have earned until the age of 62. She requested medical expenses totaling $12,108.17 as well as $10,000.00 in future medical costs for chiropractic adjust-[231]*231merits. She requested another $50,000.00 for pain and suffering. Her husband requested $50,000.00 for loss of consortium.

¶11 The jury awarded $16,000 for past economic damages, nothing for future economic damages, $10,000 for past and future noneconomic damages, and $3,000 for past and future loss of consortium. Ms. Herriman moved for a new trial pursuant to CR 59(a), arguing the damages were so inadequate that the verdict must have been the result of passion or prejudice.

¶12 The court granted an additur to the verdict or, in the alternative, a new trial, finding no reasonable evidence supported the claim that Ms. Herriman’s pain and disability were nonexistent or exaggerated. Noting that Ms. Herriman’s total medical expenses were $9,919.79 and that prior to trial she had lost wages in the amount of $34,103.86, the trial judge found her past economic damages were $44,023.65. He concluded that the jury’s award of $16,000.00 for past economic damages was “outside the reasonable bounds of the evidence, not supported by the evidence and shocking.” Clerk’s Papers at 9. The court also concluded that Ms. Herriman lost a minimum of $48,078.00 in future economic damages (75 percent of five years of averaged yearly earnings).

¶13 The court ordered an increased verdict of $138,152 based on Ms. Herriman’s appearance at trial, her history of hard work, the evidence of severe pain and loss of function, and loss of enjoyment of living. The court also ordered a new trial under CR 59(a)(5) unless the defendants agreed to increase the verdict.

ANALYSIS

New Trial

¶14 Mr. May contends that the trial court erred in granting a new trial. He asserts that it is within the jury’s province to award damages and that the award was within the evidence presented. CR 59(a) allows the trial court to grant a new trial for the following reasons:

[232]*232(5) Damages so excessive or inadequate as unmistakably to indicate that the verdict must have been the result of passion or prejudice;
(7) That there is no evidence or reasonable inference from the evidence to justify the verdict or the decision, or that it is contrary to law;
(9) That substantial justice has not been done.

¶15 Juries have considerable latitude in assessing damages, and a jury verdict will not be lightly overturned. Palmer v. Jensen, 132 Wn.2d 193, 197, 937 P.2d 597 (1997); Cox v. Charles Wright Acad., Inc.,

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Cite This Page — Counsel Stack

Bluebook (online)
142 Wash. App. 226, Counsel Stack Legal Research, https://law.counselstack.com/opinion/herriman-v-may-washctapp-2007.