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Lemer v. Campbell12/1/1999
rding Lemer past medical expenses and denying any recovery for pain and suffering. In Slaubaugh v. Slaubaugh, we reversed and remanded for a new trial where the jury verdict contained a substantial award for past medical expenses, but did not award damages for past pain, discomfort, and mental anguish. 466 N.W.2d 573, 577 (N.D. 1991). I Dissented in Nesseth v. Omlid, concluding the special verdict answers awarding $5,243.80 for past medical expenses and zero for past pain, discomfort, and mental anguish were inconsistent and irreconcilable. 1998 ND 51, 24, 574 N.W.2d 848. For the same reasons I Dissented in Nesseth, I believe the jury award in this case was perverse, insufficient in light of the evidence, and irreconcilable.
[ ] The jury found Campbell's negligent operation of his vehicle was the proximate cause of Lemer's injuries and awarded her $3,000 for past medical expenses. The medical records on which this award is based are replete with documentation of Lemer's ongoing chronic pain, headaches, and sleep difficulties. Even the medical expert retained by the defense agreed Lemer actually suffers from this pain. On this evidence, it is simply inconsistent for the jury to award medical expenses for treatment associated with pain, thus confirming the treatment's legitimacy, and then deny any recovery of damages for that very same pain and suffering.
[ ] The damage award of zero for pain and suffering under these facts is so inadequate as to be without support of the evidence. This is not a case of meeting the statutory no-fault threshold by diagnostic testing or doctor shopping. The medical bills were for chiropractic treatments which were pain related. Had the jury awarded one dollar for pain and suffering, its verdict could not be questioned. But when it awards nothing it indicates a verdict based on prejudice and passion and not on the evidence.
[ ] I would reverse and remand this case for a new trial on the issue of damages.
[ ] Mary Muehlen Maring
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