Pain & Suffering?

Dallas insurance attorneys need to read this Corpus Christi Court of Appeals opinion regarding pain and suffering in an injury case. The opinion was issued in September of 2013, in the case styled Schaffer v. Nationwide. This was a claim for underinsured motorist benefits.
Here is some relevant background information.
Schaffer’s underinsured benefits claims against Nationwide were tried to a jury. The issue at trial was whether Lovins’s negligence was the cause of the accident and whether and what damages Schaffer suffered as a result of the accident. After the close of evidence, the jury was questioned as to whose negligence caused the accident. The jury answered that both Lovins’s and Schaffer’s negligence were proximate causes of the accident. The jury then apportioned responsibility for the accident, finding that Lovins was seventy-five percent responsible and Schaffer was twenty-five percent responsible. Finally, the jury was questioned as to damages. The jury awarded zero damages for past and future physical pain, past and future earning capacity, past and future physical impairment, and future medical expenses. The jury awarded Schaffer $257,131.41 for past medical expenses. Schaffer filed a motion for new trial, arguing that the evidence did not support the jury’s zero-damages awards for physical pain, earning capacity, and physical impairment. The trial court denied the motion for new trial.
By one issue, Schaffer argued that the jury’s failure to award her damages for past physical pain was against the great weight and preponderance of the evidence, i.e., was supported by factually insufficient evidence. This Court agreed.
In reviewing a factual-sufficiency challenge to an adverse finding on which the appellant had the burden of proof, the Court determines whether the adverse finding is against the great weight and preponderance of the evidence.
In our review, the Court considers and weighs all the evidence, but defers to the jury as the sole judge of the witnesses’ credibility. The jury may choose to believe one witness over another, and a reviewing court may not impose its own opinion to the contrary.
Should a Court find the evidence to be factually insufficient, it must “detail the evidence relevant to the issue in consideration and clearly state why the jury’s finding is . . . so against the great weight and preponderance as to be manifestly unjust.” The Court must also state in what regard the contrary evidence greatly outweighs the evidence in support of the verdict.
Before a court can properly conduct a factual sufficiency review, it must first have a clear understanding of the evidence that is pertinent to its inquiry. The starting point generally is the charge and instructions to the jury. In this case, the jury was instructed, in relevant part, as follows:
What sum of money, if paid now in cash, would fairly and reasonably compensate Lilly Schaffer for her injuries, if any, that resulted from the occurrence in question?
Consider the elements of damages listed below and none other. Consider each element separately. Do not award any sum of money on any element if you have otherwise, under some other element, awarded a sum of money for the same loss. That is, do not compensate twice for the same loss, if any. Do not include interest on any amount of damages you find.
Do not include any amount for any condition that did not result from the occurrence in question.
Do not include any amount for any condition resulting from the failure, if any, of Lilly Schaffer to have acted as a person of ordinary prudence would have done under the same or similar circumstances in caring for and treating her injuries, if any, that resulted from the occurrence in question.
Answer separately, in dollars and cents, for damages, if any. Do not reduce the amounts, if any, in your answers because of the negligence, if any, of Lilly Schaffer.
The charge then listed the following elements of damages: past and future physical pain; past and future loss of earning capacity; past and future physical impairment; and past and future medical expenses. The jury awarded zero damages for all of the elements except for past medical expenses, for which it awarded Schaffer $257,131.41.
On appeal, Shaffer challenged only the jury’s zero-damages award for past physical pain. When only one category of damages is challenged on the basis that the award in that category was zero or was too low, a court should consider only whether the evidence unique to that category renders the verdict so against the great weight and preponderance of the evidence as to be manifestly unjust, shock the conscience, or clearly demonstrate bias. As a general rule, it is ordinarily the prerogative of the jury to set damages, but they have no authority to completely ignore the undisputed facts and arbitrarily fix an amount neither authorized nor supported by the evidence. In particular, the jury cannot ignore uncontroverted evidence of injury in denying any recovery for past physical pain.
This Court this spent spent several pages of its’ opinion stating the evidence that was presented at trial that showed pain and suffering endured by Schaffer.
The Court ordered that the case be remanded to the trial court and a new trial be conducted.
The lesson to be learned from this case is that when a case involving injuries is tried, that there be plenty of evidence regarding pain and suffering so that if a jury decides to not compensate for pain and suffering, a new trial can be had with a different jury.