IN THE SUPREME COURT FOR THE STATE OF MISSISSIPPI CAUSE NO.: 2016-CA FRANK STOCKETT APPELLANT

Transcription

1 E-Filed Document Mar :12: CA Pages: 25 IN THE SUPREME COURT FOR THE STATE OF MISSISSIPPI CAUSE NO.: 2016-CA FRANK STOCKETT APPELLANT VS. CLASSIC MANOR BUILDERS, INC. AND ROGER H. MORRIS, JR. APPELLEES ON APPEAL FROM THE CIRCUIT COURT OF RANKIN COUNTY CAUSE NO JE BRIEF OF APPELLEES J. BRIAN HYNEMAN MISSISSIPPI BAR NO HICKMAN, GOZA & SPRAGINS PLLC Attorneys at Law 1305 Madison Avenue Post Office Drawer 668 Oxford, Mississippi (662) (telephone) (662) (facsimile) DAVID L. SANDERS MISSISSIPPI BAR NO Mitchell, McNutt & Sams P.O. Box 1366 Columbus, MS (662) (telephone) (662) (facsimile) Counsel for Appellees

2 IN THE SUPREME COURT FOR THE STATE OF MISSISSIPPI CAUSE NO.: 2016-CA FRANK STOCKETT APPELLANT VS. CLASSIC MANOR BUILDERS, INC. AND ROGER H. MORRIS, JR. APPELLEES CERTIFICATE OF INTERESTED PERSONS The undersigned counsel certifies that the following listed persons have an interest in the outcome of this case. Said representations are made in order that the justices of the Supreme Court and/or judges of the Court of Appeals may evaluate possible disqualification or recusal. 1. Frank Stockett, Appellant 2. Keith D. Obert, Counsel for Appellant 3. William F. Brown, Counsel for Appellant 4. R. Gregg Rogers, Counsel for Appellant 5. Classic Manor Builders, Inc., Appellee 6. David L. Sanders, Counsel for Classic Manor Builders, Inc. 7. Roger H. Morris, Jr., Appellee 8. J. Brian Hyneman, Counsel for Roger H. Morris, Jr. 9. Pamela S. Ratliff, Counsel for Mississippi Department of Corrections 10. Honorable John H. Emfinger, Circuit Court Judge i

3 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS... i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iii STATEMENT OF THE ISSUES...1 STATEMENT OF CASE...2 SUMMARY OF ARGUMENT...3 STATEMENT OF FACTS...5 ARGUMENT AND AUTHORITIES...10 I. The trial court properly denied Plaintiff/Appellant s Motion for New Trial based upon the presentation of conflicting evidence by Defendants/Appellees...10 II. The trial court properly denied Plaintiff/Appellant s Motion for Additur based upon the presentation of conclicting evidence by Defendants/Appellees...14 CONCLUSION...20 CERTIFICATE OF SERVICE...21 ii

4 TABLE OF AUTHORITIES Case Page Anchor Coatings, Inc. V. Marine Industrial Residential Insulation, Inc., 490 So.2d 1210(Miss. 1986)...11 Blossman Gas, Inc. v. Shelter Mut. Gen. Ins. Co., 920 So.2d 422 (Miss. 2006) , 19 Brandon HMA, Inc. v. Bradshaw, 809 So.2d 611 (Miss. 2001)...11 Downs v. Ackerman, 115 So.3d 785 (Miss. 2013)...10 Dupree v. Plantation Pointe, L.P., 892 So.2d 228 (Miss. 2004) , 11 Entergy Mississippi, Inc. v. Bolden, 854 So.2d 1051 (Miss. 2003) Gibbs v. Banks, 527 So.2d 658 (Miss. 1988)...15 Green v. Grant, 641 So.2d 1203 (Miss. 1994)...11, 12, 13 Griffin v. Fletcher, 362 So.2d 594 (Miss. 1978)...11 Harvey v. Wall, 649 So.2d 184 (Miss. 1995)...16, 17, 18 Herring v. Poirrier, 797 So.2d 797 (Miss.2000)...15 Jackson v. Brumfield, 458 So.2d 736 (Miss. 1984)...12, 13 Loyacono v. Travelers Ins. Co., 163 So. 3d 932 (Miss.2014)...15 Maddox v. Muirhead, 738 So.2d 742 (Miss. 1999)...14, 15 Moody v. RPM Pizza, Inc., 659 So.2d 877 (Miss. 1995)...16, 17, 18 Odom v. Roberts, 606 So.2d 114 (Miss. 1992)...12 Pham v. Welter, 542 So.2d 884 (Miss. 1989)...16, 17, 18 Rodgers v. Pascagoula Pub. Sch. Dist., 611 So.2d 942 (Miss. 1992)...14, 15, 16, 18 Thompson v. Nguyen, 86 So.3d 232 (Miss. 2012)

5 STATEMENT OF THE ISSUES 1. Whether the trial court properly denied Plaintiff/Appellant's motion for a new trial based upon the presentation of conflicting evidence by Defendants/Appellees. 2. Whether the trial court properly denied Plaintiff/Appellant s motion for additur based upon the presentation of conflicting evidence by Defendants/Appellees. 1

6 STATEMENT OF THE CASE The present issues arise out of Appellant/Plaintiff Frank Stockett s ( Stockett ) cause of action against Appellee/Defendant Roger H. Morris, Jr. ( Morris ) and his employer, Appellee/Defendant Classic Manor Builders, Inc., ( Classic Manor ) for injuries alleged to have resulted from a motor vehicle accident which occurred on October 12, Morris and Classic Manor (collectively Defendants ) denied fault for the accident and denied the alleged injuries were related to the motor vehicle accident. A jury trial was held in the Circuit Court of Rankin County, Mississippi on March 8th and 9th, The primary point of dispute between the parties was Stockett s alleged left shoulder injury, which accounted for the majority of medical expenses he claimed as damages. Stockett s evidence that the accident caused his shoulder injury was heavily contested by testimony of Defendants expert witness and cross-examination of Plaintiff s expert witness. After approximately one hour of deliberation, the twelve-member jury rendered a verdict finding Morris and Classic Manor 100% at fault for the accident and awarded Stockett $50, The trial court entered the Final Judgment of the jury verdict on March 30, Stockett sought judicial intervention requesting the trial court grant a new trial or award him an additur. Stockett argued the jury s verdict was against the overwhelming weight of the evidence and was influenced by bias, prejudice, or passion. Morris and Classic Manor responded. The trial court heard arguments of counsel on the issues, and subsequently denied Stockett s post trial motion through an order entered on June 17, Stockett timely appealed the denial on July 19,

7 SUMMARY OF ARGUMENT Plaintiff Frank Stockett cannot show that a new trial or additur is warranted in the present case. Defendants Morris and Classic Manor presented contradictory evidence calling into question the extent of injuries related to the subject accident. In post trial proceedings, Stockett failed to satisfy his burden of proof, and the trial court appropriately denied his motion for a new trial or additur. Absent a showing of abuse of discretion, this Court should deny Stockett s request for a new trial or additur. The jury s verdicts are given great deference and are not be set aside unless maintaining it would result in a miscarriage of justice. For a new trial, Stockett must show that the jury s verdict was against the overwhelming weight of the evidence, which occurs when no reasonable hypothetical juror could reach the same result. For an additur, Stockett must show that the jury was influenced by bias, prejudice, or passion or that the verdict was contradictory to the overwhelming weight of the evidence. At trial, the primary injury alleged was a torn rotator cuff in the left shoulder and surgery to correct the injury resulting in ten percent permanent partial impairment. The cost of treatment for Stockett s left shoulder injury represented the bulk of medical expenses alleged. Further, Stockett alleged pain and suffering and lost wages as a result of the accident. Defendants refuted these claims by presenting Stockett s medical records showing no complaints of left shoulder pain until fifteen days after the accident. Defendants designated Dr. William McCraney as an expert in the field of orthopaedic surgery to provide testimony at trial. Dr. McCraney testified that in his expert opinion, Stockett s shoulder injury likely would not have resulted from an automobile accident, and if it did, complaints of pain would have been immediate. On cross-examination, Stockett s treating physician 3

8 Dr. Jones testified that he released Stockett with zero permanent partial impairment at the conclusion of his treatment, and he was surprised when Stockett returned sixteen months later complaining of pain in his left shoulder, because he was doing great when he released him. Dr. Jones opined that he felt Stockett had an opportunity to embellish his pain and suffering because Workers Compensation recommended he return after he refused to lift boxes at work. Stockett supports his position on appeal citing authority wherein the proof at trial was uncontradicted. The present matter is clearly distinguishable since Defendants submitted ample evidence to dispute the causal relationship between the alleged left shoulder injury and the motor vehicle accident. The verdict presented by the jury does not apportion amounts for economic damages and noneconomic damages. Neither the parties nor this Court can place themselves in the jury room to understand what considerations, claimed injuries, and/or medical expenses were attributed to the subject accident. Instead, we must rely on the evidence presented to the jury. As stated, there was ample evidence before the jury to support the outright rejection of the Stockett s contention that the injury to his left shoulder and treatment provided were related to the motor vehicle accident. Because Defendants refuted the cause of Stockett s shoulder injury, the damages award does not shock the conscience, nor provide the indication that it was the product of bias, passion or prejudice. Entergy Mississippi, Inc. v. Bolden, 854 So.2d 1051, 1058 (Miss. 2003) (citation omitted) (award of damages will not be disturbed unless its size shocks the conscience). Stockett s appeal for a new trial or additur is without merit, and the jury verdict should be affirmed. 4

9 STATEMENT OF FACTS The present action arises out of a motor vehicle accident that occurred on Lakeland Drive in Flowood, Mississippi on October 12, (R. 9). Plaintiff Frank Stockett alleged that Defendant Roger H. Morris, Jr. negligently struck the rear of his vehicle, resulting in permanent injury and other damages. (R. 9). At the time of the accident, Morris was in the course and scope of his employment with Defendant Classic Manor Builders, Inc. (R at 4). Morris and Classic Manor denied fault for the accident, (R ), and denied that Stockett s alleged injuries were related to the motor vehicle accident. (R ). The case proceeded to trial in the Circuit Court of Rankin County, Mississippi on March 8th and 9th, (R. 160). At trial, Stockett presented his primary claim that the accident caused a torn labrum in his left shoulder requiring surgery to correct. In detailing the accident, Stockett testified that he felt an impact from behind, which caused his seatbelt to restrain his left shoulder. (Trial Tr. vol. 3, 120, March 8, 2016). He described feeling a burning sensation in his left shoulder while he was still at the accident scene. (Trial Tr. 121). Stockett stated he went to the emergency room at University of Mississippi Medical Center ( UMMC ) and informed the medical staff that his shoulder was burning. (Trial Tr. 122). He testified to visiting his family physician Dr. Kim Truesdale at Brooksville Medical Clinic ( BMC ) and complaining of pain in his left shoulder days after the accident. (Trial Tr. 123). Stockett was eventually referred to Dr. Scott Jones at Columbus Orthopaedic Clinic ( COC ). (Trial Tr. 124). Stockett claimed that Dr. Jones performed several more treatments to his left shoulder, but ultimately performed surgery to alleviate his pain. (Trial Tr ). Following surgery, Stockett claimed that the pain persisted and returned to Dr. Jones when he could no longer perform work duties of lifting boxes. (Trial Tr ). He stated that 5

10 ever since the accident with Morris his left shoulder is not functioning as normal, and he continues to experience persisting pain. (Trial Tr ). On cross-examination, Defendants introduced medical records showing Stockett was treated at UMMC, (Trial Tr. 150), and BMC, (Trial Tr ), received rehabilitation for his neck and back, and never once registered any complaints of pain or burning in his left shoulder. (Trial Tr ). The UMMC records note Stockett s Chief Complaint on the day of the accident as pain involving the lower portion of back and arms, notably making no mention of left shoulder pain. (R.E. 1, UMMC Med. R. at 3). The BMC records established that it was not until undergoing three sessions of physical therapy for back and neck pain when Stockett first mentioned pain in his left shoulder to Dr. Truesdale, fifteen days post-accident. (R.E.1, BMC Med. R. at 5). Additionally, Defendants presented evidence that Stockett waited approximately sixteen months after Dr. Jones released him to return with left shoulder pain, despite Stockett s claim he continually experienced pain ever since the accident. (Trial Tr ). Contrary to his account of the accident and injuries sustained, Stockett s own expert Dr. Jones testified in conflict with the claims that the motor vehicle accident caused the claimed shoulder injury. Dr. Jones testified that he would have expected a patient who has a labrum tear in his left shoulder to complain of such pain at the time of the accident: Q: When somebody suffers a labrum tear or the injury that you diagnosed in the shoulder, do you expect them to know that when it happens? *** A: They typically have pain and if it s a mechanical issue, there s usually a reproducible mechanical pain. So those kind of injuries are something that people do know. It s it s not like an overuse issue where over time, soreness builds up. If you have a wreck and all of a sudden what yesterday was not torn is today torn, there should be some evidence of that. 6

11 *** Q: Would you change your opinion at all if the ER records say: Admitted to the ER complaining of neck pain, hip pain, pain in lower portion of back and arms... and no mention of shoulder? A: I would be suspect. We do sometimes see when someone has a lot of pain and problems, you know they ll leave some things out, but I would expect the shoulder, if it s the primary problem, to have some appearance at that time, but it s not unheard of. Q: Okay. In fact, when he did present himself to the emergency room, the emergency room records reflect no complaint of pain to the left shoulder...in fact, the first indication of any complaint to the to any pain in the left shoulder is registered on October 27th when he presented himself at the Brooksville Medical Clinic where he says left shoulder pain some 15 days later...in view to a degree of medical probability, the labrum tear that you observed in Mr. Stockett would be expected to manifest itself with some pain the day of the actual occurrence; is that fair to say? A: I would expect it to. In the presence of some other injuries, it might be overlooked, but certainly within the first few days or a week. 15 days is a seemingly long time to not mention it. (R.E. 2, Jones Dep. 40:22-43:2, April ). Furthermore, Stockett claimed damages for treatment that occurred one year after his initial release from Dr. Jones, but Dr. Jones conflicted this position. Stockett was released on July 10, 2012 having no partial permanent impairment (PPI) as a result of his injury because, as Dr. Jones explained, [h]e was doing great. (R.E. 2 at 46:1). It was not until eighteen months later, January 6, 2014, when Dr. Jones revised his assessment of Stockett and assigned a PPI of ten percent at the insistence of Workers Compensation. (R.E. 2 at 24:7-26:20). Dr. Jones took issue with Stockett s return some sixteen months after his release because of a Workers Compensation recommendation: Q:... You said he reached maximum medical recovery before. A: Correct. And I have a problem with [Workers Compensation] On some of these cases because we close a case and then [Workers Compensation] keeps sending them back and basically, [Workers Compensation] keeps the case open and sends 7

12 him to me and says, hey, this case is still open, re reassess it. I ve already tried to close the case. I don t know what happened. We don t have a new injury, but I have no [Workers Compensation] is basically saying, we believe Mr. Stockett and we still are standing behind this as a work injury. This case was closed by me; yet, [Workers Compensation] sent him back to me, so I had no way to to really question anything and it becomes a problem. I ve seen this a lot of times where someone s doing well and we close the case; yet, [Workers Compensation] keeps sending them back. Well I have to keep treating them. I can t say, well, Frank, sorry. So I felt like [Workers Compensation] left the door open for Frank to possibly embellish this. I don t know what happened to him. I certainly didn t expect him to come back 16 months later. There is no reason for it. There s no structural or anatomical reason for it and in my opinion, [Workers Compensation] shouldn t have certified that visit, but when they do, I have no choice but to treat him and to take what he says as fact, and so, that s how we get here. Q: So when you released him A: Wasn t it July 10th of [20]12? Q: Yes. And you certified him as PPI, partial permanent impairment of 100 percent A: He was doing great. Q: you figured it was over. A: He was doing great. I told him, don t come back unless you need me, you know. And then 16 months later, [Workers Compensation] says, hey, this is still going on. Honestly, if it s still going on, somebody should have called me between now and then between July and the next October. Q: Uh-huh (indicating yes). A: And, again, I don t know what the glitch is in the system, but there s a glitch there Q: Yeah. A: when a case is closed; yet, they send the guy back in because all I can do at that point is take Frank s word for it and that s what what happened here. When I investigated this with an MRI, we found no further damage, no anatomical basis for this and he may have just decided he didn t want to lift those boxes or maybe he got gradually worse for 16 months, but I don t know why he would have waited 16 8

13 months to mention it or call the doctor or seek treatment. So there s an issue there in my opinion. (R.E. 2 at 44:20-46:22) (emphasis added). Defendants expert, Dr. William McCraney testified based upon his review of Stockett s medical records from UMMC, BMC, and COC. (R.E. 3, McCraney Dep. 8:7, September 10, 2015). Dr. McCraney testified that Stockett s torn labrum was not related to the motor vehicle accident. (R.E. 3 at 17:13-19:2). He based his opinion upon the lack of complaint of left shoulder pain for fifteen days after the accident and the fact that a torn labrum, or SLAP lesion, results from over extending one s joint. (R.E. 3 at 11:3-12). He maintained that Stockett s arm would not have been in a position to suffer such an injury based upon understanding the accident was a rear end collision: Q: And is that as your opinion as far as after your review of the testimony of Mr. Stockett and the testimony of Mr. Morris, did you find that to be consistent with occurring in this type of accident, which we understand to be a low-impact type of accident? A. Yeah, I I would from the records that I reviewed it was a fairly low-speed motor vehicle collision, hit from behind, and I I think it would be I don t know how your arm would get into a position from that car wreck to sustain a SLAP lesion. It s typically the kind of thing where if a patient somebody falls off of a ladder and catches hold of a top rung to keep from falling and their arm gets ripped up, that s kind of the typical mechanism. (R.E. 3 at 17:19-18:9). After approximately an hour of deliberation, the jury reached a verdict that found the Defendants 100% at fault for the accident and awarded Stockett $50,000 in damages. (Trial Tr. 284). The trial court entered its Final Judgment on March 30, (R ). Thereafter, Stockett moved for a new trial or additur to the damages awarded by the jury. (R ). A hearing on the 9

14 motion was held on June 13, 2016, and the trial court denied the motion on June 17, (R.E. 4, Order to Deny Pl. s Motion for New Trial or Additur at 3). In its order, the trial court wrote: (R.E. 4 at 2). The Defendants produced expert testimony the injury was not caused by the accident. In other words, the Plaintiff s evidence concerning his shoulder injury was certainly contradicted. The jury may well have found that the shoulder injury was not related to the accident and awarded damages for lost wages, medical bills unrelated to the shoulder and for pain and suffering. Following the denial of its motion, Stockett appealed to this Court on July 19, (R. 276). ARGUMENT AND AUTHORITIES I. THE TRIAL COURT PROPERLY DENIED PLAINTIFF/APPELLANT S MOTION FOR A NEW TRIAL BASED UPON THE PRESENTATION OF CONFLICTING EVIDENCE BY DEFENDANTS/APPELLEES. In the context of automobile cases like the one at hand, the Mississippi Supreme Court has repeatedly sustained the holding that, [a] plaintiff has the burden of proof, and must offer evidence that persuades the jury. The jury is not required to believe or trust the evidence submitted by the plaintiff, and is free to accept all, part, or none of the plaintiff s evidence. Downs v. Ackerman, 115 So.3d 785, 791 (Miss. 2013) (quoting Thompson v. Nguyen, 86 So.3d 232, (Miss. 2012)). This was echoed by the trial court who instructed the jury that it was their prerogative to determine what weight and what credibility would be assigned to the evidence. (R ). The jury s verdict should be given great deference because conflicts of evidence presented at trial are to be resolved by the jury. Blossman Gas, Inc. v. Shelter Mut. Gen. Ins. Co., 920 So.2d 422, 426 (Miss. 2006). In order to be granted a new trial, Stockett needed to prove to the trial court, the verdict [was] against the overwhelming weight of the evidence. Dupree v. Plantation Pointe, L.P.,

15 So.2d 228, 235 (Miss. 2004) (citing Griffin v. Fletcher, 362 So.2d 594, 596 (Miss. 1978)). The verdict is only deemed against the overwhelming weight of the evidence when no reasonable hypothetical juror could have reached the conclusion of the jury. Brandon HMA, Inc. v. Bradshaw, 809 So.2d 611, 616 (Miss. 2001). Although, when deciding Stockett s motion for a new trial, the trial court was required to view all credible evidence in the light most favorable to the non-moving part[ies], Morris and Classic Manor. Green v. Grant, 641 So.2d 1203, (Miss. 1994) (quoting Anchor Coatings, Inc. V. Marine Industrial Residential Insulation, Inc., 490 So.2d 1210, 1215 (Miss. 1986)). This Court should apply an abuse of discretion standard in reviewing the trial court s decision to deny Stockett a new trial and shall only reverse that decision when the verdict, if allowed to stand, would work a miscarriage of justice. Id. In Green, plaintiff filed her cause of action for negligence after an automobile accident in Jackson, Mississippi. Id. at Green testified she suffered injuries to her head, right knee, shoulders, neck, and upper and lower back due to the collision with Grant. Id. at She alleged that she had incurred $2, in medical expenses and missed 76 hours of work, resulting in $1, in lost profits. Id. Green also presented her treating physician Dr. Rankin who testified that all of the claimed injuries were the result of the accident with Grant and all treatment undertaken was necessary and reasonable. Id. at Grant testified the plaintiff was walking around the scene after the accident and never heard her complain of injury. Id. Defendant presented Dr. Burk who treated Green in the emergency room after the accident and testified he did not think Green s injuries required treatment. Id. He could not make sense of Dr. Rankin s findings and had never seen someone with Green s level of injuries suddenly need treatment after leaving the emergency room. Id. He opined that Green could have immediately gone back to work after leaving the 11

16 emergency room. Id. Based on the evidence presented, the jury awarded Green damages in the amount of $2,000. Id. at Green moved for a new trial or additur, which the trial court denied. Id. On appeal, the Mississippi Supreme Court affirmed the trial court s decision because of the conflicting evidence presented to the jury and concluded that the verdict was not against the overwhelming weight of the evidence. Id. at The Court stated: In the instant case, the extent of Green's injuries, and the amount, reasonableness and necessity of her damages are disputed by the parties. When testimony is contradicted, this Court will defer to the jury, which determines the weight and worth of testimony and the credibility of the witness at trial. Green v. Grant, 641 So. 2d 1203, 1209 (Miss. 1994) (quoting Odom v. Roberts, 606 So.2d 114, 118 (Miss. 1992)). The court noted that Green s presentation of medical bills is prima facie evidence that the expenses were necessary and reasonable, but Grant could, rebut the necessity and reasonableness of the bills by proper evidence. The ultimate question is then for the jury to determine. Id. at 1209 (quoting Jackson v. Brumfield, 458 So.2d 736, 737 (Miss. 1984)). While Green presented evidence of medical bills and pain and suffering exceeding the $2,000 awarded, the court determined that Grant s testimony and Dr. Burk s statements seriously contested the extent of Green s injuries as proximately caused by the automobile accident. Id. Grant s presentation of evidence appear[ed] to have created an issue on the amount of damages for the jury to decide. Id. Since the determination of damages made by a jury are not to be set aside lightly, the court upheld the trial court s decision to deny Grant s motion for a new trial. Id. Stockett claimed before the trial court that a new trial should be granted because the jury s award of $50,000 was so grossly inadequate and against the overwhelming weight of the 12

17 evidence. (R. 245). In support, he cited his alleged medical bills valued at $41, and his alleged lost wages valued at $3, Id. He argued Dr. Jones testimony supported the conclusion that the shoulder injury and ten percent PPI was proximately caused by the accident. Id. On appeal, Stockett reaffirms his argument of an inadequate verdict simply based upon the amount of damages alleged ($45, ) in comparison to the verdict rendered ($50,000). (Pl. s Br. 14). In doing so, Stockett fails to acknowledge evidence to the contrary. Consider the present case in comparison to Green. In Green, the jury heard testimony from the plaintiff and her physician that the injuries sustained and hours of work missed were necessary and reasonable after the automobile accident. In the present case, the jury heard Stockett testify to left shoulder pain from the time of the accident and his physician Dr. Jones discuss the treatment needed to correct the left shoulder injury. In Green, the jury heard from the defendant and another treating physician that the plaintiff s injuries were not reasonable based off the type of motor vehicle accident that happened and that the plaintiff did not need to miss work as claimed. Here, the jury was presented with medical records illustrating that Stockett did not complain about pain in his left shoulder until fifteen days after the accident. The jury heard from Stockett s own physician who confirmed this type of shoulder injury would result in immediate pain, who released Stockett with zero PPI because he was doing great, and who believed Stockett s return for treatment some sixteen months after release because Workers Compensation left the door open for [Stockett] to possibly embellish this. Finally, the jury heard from Dr. McCraney who opined that Stockett s left shoulder injury was not the type caused by a motor vehicle accident, but typically from a pull or strain of the arm, to which pain would be immediate. Just as in Green, the jury was presented with conflicting evidence regarding the cause of an 13

18 alleged injury, which created an issue on the amount of damages for the jury to decide. Green, 641 So.2d at The primary dispute was the left shoulder injury, which made up the majority of Stockett s alleged necessary medical treatment. Considering the plethora of contradictory evidence presented by the defense disputing the cause of the left shoulder injury, the award of $50, cannot be said to go against the overwhelming weight of the evidence. The jury instructions did not ask the jury to justify, detail, or allocate the amount of damages awarded to respective injuries alleged by Stockett. (R.E. 5, Jury Instruction No. 11). When reviewing the jury s award, the trial court appropriately recognized the conflicting evidence presented and deferred to the jury s decision, which is clearly within its discretion. (R.E. 4). As illustrated above, the Defendants produced evidence to support the conclusion that Stockett s injury to his left shoulder and treatment provided were not related to the motor vehicle accident. Neither the parties nor this Court can place themselves in the jury room to understand what claims the jury considered related when issuing their verdict. Therefore, the trial court did not abuse its discretion in denying a new trial, and the jury verdict should be affirmed. II. THE TRIAL COURT PROPERLY DENIED PLAINTIFF/APPELLANT S MOTION FOR ADDITUR BASED UPON THE PRESENTATION OF CONFLICTING EVIDENCE BY DEFENDANTS/APPELLEES. Stockett, as the party requesting an additur, has the burden of proving his injuries and damages. Maddox v. Muirhead, 738 So.2d 742, 743 (Miss. 1999). In considering Stockett s request for an additur, the Court must view the evidence in the light most favorable to the defendant[s] [Morris and Classic Manor], giving [them] all favorable inference that may be drawn therefrom. Id. (citing Rodgers v. Pascagoula Pub. Sch. Dist., 611 So.2d 942, 945 (Miss. 1992)). The amount of damages is a question for the jury. Maddox, 738 So.2d at 743. Since a jury award is not merely 14

19 advisory, it generally will not be set aside unless [it is] so unreasonable as to strike mankind at first blush as being beyond all measure, unreasonable in amount and outrageous. Id. Furthermore, the Mississippi Supreme Court has upheld verdicts of zero dollars in cases of admitted liability where evidence disputing causation existed. See Herring v. Poirrier, 797 So.2d 797 (Miss.2000); Loyacono v. Travelers Ins. Co., 163 So. 3d 932 (Miss.2014). The Court should keep in mind that an [a]dditur represents a judicial incursion into the traditional habitat of the jury, and therefore should never be employed without great caution. Id. at 743 (quoting Gibbs v. Banks, 527 So.2d 658, 658 (Miss. 1988)). When reviewing the trial court denial of an additur, this Court applies an abuse of discretion standard. Id. The rule allowing an additur is found in Miss. Code Ann which reads in pertinent part: The supreme court or any other court of record in a case in which money damages were awarded may overrule a motion for new trial or affirm on direct or cross appeal, upon condition of an additur or remittitur, if the court finds that the damages are excessive or inadequate for the reason that the jury or trier of the facts was influenced by bias, prejudice, or passion, or that the damages awarded were contrary to the overwhelming weight of credible evidence. The Mississippi Supreme Court has defined two situations where an additur may be awarded: (1) the jury was influenced by bias, prejudice, or passion or (2) the damages were contrary to the overwhelming weight of credible evidence. Rodgers v. Pascagoula Pub. Sch. Dist., 611 So.2d 942, 944 (Miss. 1992). Stockett argued to the trial court that an additur was warranted because his lost wage claim was not disputed, he had no prior injury to his left shoulder before the accident, and the jury failed to account for his medical expenses, ten percent PPI, and pain and suffering. (R ). On appeal, he presents the same argument and cites to four cases where additurs were warranted for uncompensated pain and suffering. (Pl. s Bri ); Rodgers v. Pascagoula Public School Dist., 15

20 611 So.2d 942 (Miss. 1992); Harvey v. Wall, 649 So.2d 184 (Miss. 1995); Moody v. RPM Pizza, Inc., 659 So.2d 877 (Miss. 1995); Pham v. Welter, 542 So.2d 884 (Miss. 1989). However, the facts presented in each of these cases are clearly distinguishable than those presented here. In Rodgers, plaintiff was in an automobile accident with a Pascagoula public school bus driver. 611 So.2d 942 (Miss. 1992). Rogers presented proof of economic damages in the amount of $11, as well as pain and suffering and permanent impairment totaling forty percent of his whole body. Id. at 945. The jury awarded Rogers the exact amount of his medical expense, $11, Id. Rogers moved for an additur arguing that the jury award was so inadequate because it was against the weight of the evidence, but the trial court refused to supplement the award. Id. at 944. On appeal, the Mississippi Supreme Court agreed that the award was against the overwhelming weight of the evidence because Rogers placed undisputed evidence before the jury that his damages included pain and suffering. Id. at 945. He presented proof that his head was injured in the accident, and he had been treated by seven doctors, all who prescribed pain medication for headaches. Id. Since the jury award was for medical expenses alone despite his uncontested proof of pain and suffering in the form of ongoing headaches, the court granted an additur. Id. at 946. In Harvey, plaintiff Harvey collided with defendant Wall at an intersection in Pearl, Mississippi. 649 So.2d 184 (Miss. 1995). Immediately after the accident, Harvey was taken to the hospital due to being knocked unconscious and complaining of knee pain. Id. at 186. His leg was x-rayed at the hospital, and he continued receiving knee treatment for months after the accident. Id. Harvey was a runner before the accident but now had trouble even standing for long periods of time at his job as an anesthesia technician. Id. Despite presenting evidence of ten percent impairment in his knee, the jury awarded Harvey $5,300, an amount which exceeded the total of his lost wages 16

21 and claimed medical expenses by only $ Id. The trial court denied Harvey s motion for an additur or alternatively, a new trial on the issue of damages. Id. On appeal, the court awarded Harvey an additur ruling that the proof [was] uncontradicted that he did sustain some pain and suffering. Id. at 188 (emphasis added). Harvey presented medical bills totaling $ for rehabilitation of his left knee, yet Wall attempted to rebut the reasonableness and necessity of $75.00 of that amount. Id. at 189. Even if the jury agreed with Wall that the $75.00 was unnecessary, the court concluded that $20.80 was inadequate compensation considering the uncontradicted evidence of Harvey s pain and suffering and ten percent PPI. Id. at 190. In Moody, plaintiff presented evidence of physical pain, mental anguish, and lost wages after an accident with Domino s Pizza delivery driver. 659 So.2d 877 (Miss. 1995). Despite uncontradicted and uncontested evidence reflecting that Moody suffered pain and discomfort from the accident injuries, the jury awarded damages in the exact amount of his medical bills. Id. at 882. Moody filed a motion for a new trial as to damages only, or alternatively, for an additur, which the trial court denied. Id. at 878. While the defense argued that Moody exacerbated his injuries because he did not obey doctor s orders, the Mississippi Supreme Court concluded [t]here was no evidence that Moody s ultimate recovery would have been any better in the absence of his actions after being released from the hospital. Id. at 883. Because Moody s evidence of pain and suffering was not challenged, the jury s award accounting only for his medical expenses was against the overwhelming weight of the evidence, and an additur was necessary. Id. In Pham, Welter sued Pham for negligence from an automobile accident; Pham counter-sued. 542 So.2d 884 (Miss. 1989). Pham was seriously injured in the accident, resulting in immediate exploratory surgery to repair an internal bleed and twelve days spent in the ICU. Id. at 888. Pham s 17

22 doctor testified to months of ongoing treatment for his injuries, including a permanent limp, ongoing pain, and deformity to Pham s leg. Id. at He presented evidence of actual damages totaling $28,682.70, which represented past medical expenses, future medical expenses, and lost wages. Id. at 889. Despite this uncontested evidence, the jury only awarded him $30,000. Id. Pham moved for an additur of his damages, which the trial court overruled. On appeal, the court said the jury award was a figure that obviously ignores the categories of past and future pain and suffering and permanent partial disability. Id. Due to the extent of Pham s injuries and the fact the jury s award only represented his medical expense, the court awarded Pham an additur. Id. Comparing the present case to those referenced above, the most notable difference is the Defendants presentation of evidence directly contradicting the Plaintiff s damage allegations. In our case, the jury did not award the exact amount of Stockett s medical expenses like in Rodgers and Harvey. In fact, the jury awarded $4, over Stockett s total medical expenses. Unlike Moody, the cause of Stockett s left shoulder injury was refuted by Dr. McCraney who explained to the jury that this type of shoulder injury typically would not occur in an automobile accident and pain would be felt immediately, not fifteen days later as shown by the defense. Furthermore, the claim of permanent partial impairment to Stockett s left shoulder was disputed not only by the defense expert Dr. McCraney but also by Stockett s treating physician. Dr. Jones testified he released Stockett with zero PPI because he was doing great. (R.E. 2 at 45:24-46:8). When discussing Stockett s return, Dr. Jones testified there was no anatomical basis for his complaints and no reason why it took sixteen months to return. These factors led Plaintiff s medical expert to consider the possibility that Stockett was embellish[ing] his pain. (R.E. 2 at 45:13). While this Court has awarded an additur when the evidence was uncontradicted, the present 18

23 matter hardly falls within this category. In sum, Stockett s claim of injury was heavily contested when the medical records showed no complaints of shoulder pain until fifteen days after the accident, he was released with zero PPI to his left shoulder, he waited sixteen months to return for treatment, and his primary expert testified that the later diagnosis of ten percent PPI had no basis other than a possible embellishment of symptoms. The cases cited by Plaintiff deal with awards that included little or no compensation for some damages alleged despite the overwhelming evidence. Here, the jury awarded him $4, over his cited medical expenses and lost wages even though Stockett s claims of injury were clearly disputed by evidence presented to the jury. The Court cannot jump to the conclusion that pain and suffering or PPI were not accounted for when the jury instructions did not request allocation of the award. (R.E. 5). Additionally, Stockett has not presented any evidence that the jury was influenced by bias, prejudiced, or passion other than leaping to this conclusion based simply upon the amount of the verdict. Based upon the contradictory evidence, the trial court appropriately opined, [t]he jury may well have found that the shoulder injury was not related to the accident and awarded damages for lost wages, medical bills unrelated to the shoulder and for pain and suffering. (R. 274). Simply put, there was a conflict of evidence, and conflicts of evidence presented at trial are to be resolved by the jury. Blossman Gas, Inc. V. Shelter Mut. Gen. Ins. Co., 920 So.2d 422, 426 (Miss. 2006). The trial court denial of Plaintiff s motion for additur was not an abuse of discretion based upon the conflicting evidence presented. 19

24 CONCLUSION Based upon the argument and authorities contained herein, the appeal for a new trial or additur filed on behalf of Plaintiff Frank Stockett should be denied. Defendants Roger Morris and Classic Manor presented conflicting evidence in regards to the relationship between the claimed injury of a torn labrum in Stockett s left shoulder and the automobile accident. With conflicting evidence it is impossible to determine what damages were attributed to the accident by the jury based solely upon the amount of the verdict. As such, the denial of Plaintiff s motion for new trial or additur was not an abuse of discretion, and the jury verdict should be affirmed. Respectfully submitted, CLASSIC MANOR BUILDERS, INC. and ROGER H. MORRIS, JR. HICKMAN, GOZA & SPRAGINS PLLC Attorneys at Law 1305 Madison Avenue Post Office Drawer 668 Oxford, Mississippi (662) (telephone) (662) (facsimile) /s/ J. Brian Hyneman J. BRIAN HYNEMAN, Esq. Mississippi Bar No Attorney for Appellee, Roger H. Morris, Jr. /s/ David L. Sanders David L. Sanders, Esq. Mississippi Bar No.: 6442 Attorney for Appellee, Classic Manor Builders, Inc. 20

25 CERTIFICATE OF SERVICE I, J. BRIAN HYNEMAN, attorney for Appellees, do hereby certify that I have on this date electronically filed the foregoing document with the Clerk of Court using the MEC system which sent notification of such filing to all counsel of record, including: Keith D. Obert William F. Brown obertlaw@bellsouth.net, olgnotices@gmail.com, clement.steph22@gmail.com, rbrown.law@gmail.com R. Gregg Rogers rgrogers99@yahoo.com, brandyeglass@yahoo.com Pamela S. Ratliff pratliff@cctb.com, sming@cctb.com Further, I hereby certify that I have electronically mailed by United States Postal Service the foregoing document to the following non-mec participant: Honorable John H. Emfinger jhhemfinger@rankincounty.org DATED: March 10, 2017 /s/ J. Brian Hyneman J. BRIAN HYNEMAN Hickman, Goza & Spragins, PLLC Post Office Drawer 668 Oxford, MS bhyneman@hickmanlaw.com (662)