Award of Medicals but no Pain and Suffering in Fracture Case Okay

September 5, 2006

The Supreme Court has denied discretionary review in the case of Gibson v. Morely, involving a Grade I open lateral tibial plateau fracture. There the Court of Appeals affirmed the trial court’s denial of plaintiff’s motion for new trial, ala Miller v. Swift. You may recall my feelings that if there was going to be any substantial ruling affecting this issue, that it was going to come from this case. Well, it is clear that there is not going to be “any substantial ruling.” This would appear to be the final analysis of the Miller v. Swift medicals but no pain and suffering cases.

It appears that the Supreme Court has, by its silence, adopted the position that an award of medicals but no pain and suffering is not inconsistent under practically any circumstances. (If it is not inconsistent in this case, it never will be.) At least, the Court has decided not to second guess trial judges on this issue. The judges have sat through the trial and are apparently in the best position to determine whether or not the award is “inconsistent.” Given a trial judge’s docket these days would he ever offer a plaintiff a second bite of the apple when they have had their “day in court?”

While I don’t necessarily disagree with this result, I do disagree that it came without so much as a whimper from the State’s highest court. Courts often allow jury verdicts to stand, despite the result. Often it is in the best interest of finality and economy, that they do so. However, I think that this case was a good case to set limits or explain the lack of limits on this issue. This issue is apparently clearer to the Supreme Court than those of us practicing. They see no need to explain further. They could have just said so.

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