Pain and Suffering Redux

April 27, 2006

The Court of Appeals just issued Gibson v. Morely, unpublished, which dealt with the award of medicals and lost wages but no award for pain and suffering, ala Miller v. Swift. This case involved a “Grade I open lateral tibial plateau fracture, which is a crack through the shin bone that enters the knee joint.” Gibson “required surgery immediately after the accident and spent three days in the hospital receiving physical therapy and treatment for pain and discomfort.” The jury did not award any pain and suffering. Gibson’s motion for new trial was denied.

The Court of Appeals affirmed, ruling that the judge’s decision was not “clearly erroneous”, because it was supported by substantial evidence. This included, among others, statements by Gibson herself, which included admitting she did not receive any pain medication until her leg was operated on by the doctor, and that she did not have any pain unless she moved her leg. She also returned to work a week after the accident.

Comment: This case appears to resolve the questions I posed in my earlier post on this exact issue; titled Pain and Suffering. There I asked whether cases without preexisting injuries involving objective injuries would compel a different result. This case answers all those questions in the negative. Again, the proper analysis is not on the injury suffered or the jury’s actions, but on evidence supporting the “judges decision” that a new trial is not warranted. However, I question whether this evidence supports a conclusion that Gibson did not suffer “any” pain. At best, it would seem to support a claim that “some” pain was experienced, even if it was less than what she claimed. Obviously, even a case with an objective injury does not render a Miller v. Swift result moot.