Smedberg v. Detlef's Custodial

• Decision Date: 21 September 2007
• Docket Number: No. 05-396.,05-396.
• Citation: 940 A.2d 674,2007 VT 99
• Parties: Jean SMEDBERG v. DETLEF'S CUSTODIAL SERVICE, INC.
• Court: Vermont Supreme Court

940 A.2d 674

2007 VT 99

Jean SMEDBERG v. DETLEF'S CUSTODIAL SERVICE, INC.

No. 05-396.

Supreme Court of Vermont.

September 21, 2007.

Christopher McVeigh, Burlington, for Plaintiff-Appellant/Cross-Appellee.

Kaveh S. Shahi of Cleary Shahi & Aicher, P.C., Rutland, for Defendant-Appellee/Cross-Appellant.

Present: REIBER, C.J., DOOLEY, SKOGLUND and BURGESS, JJ., and ALLEN, C.J. (Ret.), Specially Assigned.

REIBER, C.J.

¶ 1. Plaintiff Jean Smedberg appeals from a jury verdict awarding her $0 for pain and suffering after she suffered cervical spine injuries in a slip and fall at her workplace. She argues that the jury's verdict was unsupported by the evidence and that the superior court therefore erred in denying her motion for a new trial or, in the alternative, for additur, pursuant to Vermont Rule of Civil Procedure 59. Defendant Detlef's Custodial Service (DCS or Detlef's) cross-appeals, asserting that the superior court erred by: (1) denying defendant's Rule 50 motion, (2) denying defendant's motion to substitute plaintiff's workers' compensation insurance carrier as plaintiff, and (3) awarding prejudgment interest on plaintiff's lost-wages and medical-expenses awards. We reverse the trial court's ruling on the Rule 59 motion and affirm in all other respects.¹

¶ 2. The facts, which are largely uncontested, may be briefly summarized. Plaintiff, an employee of Central Vermont Public Service (CVPS) in Rutland, slipped and fell in the hallway at her workplace and suffered a cervical spine injury that ultimately required her to undergo spinal fusion surgery. Plaintiff sued DCS, which performed cleaning services for CVPS, alleging negligence for lack of warning about slippery conditions in the hallway. Plaintiff also pursued a workers' compensation claim against CVPS; that claim eventually settled.

¶ 3. In the negligence action, DCS disclaimed negligence, contending that plaintiff did not fall due to slippery conditions. DCS also moved, in advance of the trial, for judgment as a matter of law at the conclusion of plaintiff's case in chief. That motion was denied. At the conclusion of the trial, the jury found DCS liable to plaintiff, but also found that plaintiff was 50% at fault. The jury awarded plaintiff $27,015.25 in medical damages and $45,500.00 in lost wages, but awarded no damages for past or future pain and suffering or loss of enjoyment of life. The award for medical damages was the exact amount of plaintiff's claimed damages for this element of her claim, while the lost-wage award was approximately 60% of plaintiff's claimed lost wages. The medical and lost-wages awards were reduced by 50% for plaintiff's negligence, and judgment was entered for $36,257.63 plus interest and costs.

¶ 4. Plaintiff then filed a number of post-trial motions, two of which are implicated in the instant appeal. First, plaintiff moved for a new trial solely on damages or, in the alternative, for additur of $150,000, based on the assertion that the jury had "disregarded the reasonable and substantial evidence or found against the evidence through passion, prejudice, or some misconstruction of the matter." DCS opposed plaintiff's motion, contending that the verdict should stand or, "if the court is inclined to find that the verdict was compromised," a new trial should be had on all issues. Plaintiff's motion was denied. Second, plaintiff moved for costs and prejudgment interest. This motion was granted in part, and the trial court awarded plaintiff $11,550.62 in prejudgment interest "upon finding that her damages were for a sum certain." These appeals followed.

I. The Motion for New Trial or Additur

¶ 5. Rulings on motions for new trial are within the discretion of the trial court. Irving v. Agency of Transp., 172 Vt. 527, 528, 768 A.2d 1286, 1289 (2001) (mem.). When reviewing a trial court's decision on a motion for new trial, we afford the decision "all possible presumptive support, similar to the support the trial court owes to a jury verdict." Brueckner v. Norwich Univ., 169 Vt. 118, 133, 730 A.2d 1086, 1097 (1999) (quotation omitted). We view the evidence in the light most favorable to the nonmoving party. Id. at 120-21, 730 A.2d at 1089. However, a jury's verdict should not be upheld "if there is evidence that the jury compromised its verdict." Ball v. Melsur Corp., 161 Vt. 35, 44, 633 A.2d 705, 712 (1993) (citation and quotation omitted).

¶ 6. The superior court denied plaintiff's motion for a partial new trial or additur on the basis that the court could not "conclude with certainty on the record that the jury was without a basis to find plaintiff's evidence on pain and suffering unpersuasive." Plaintiff contends that the jury had no basis to find that she did not endure any pain or suffering as a result of the slip and fall and ensuing spinal surgery, and that the superior court therefore erred in denying her motion for a partial new trial or additur.

¶ 7. As noted, plaintiff's motion clearly sought a new trial solely on the issue of damages; plaintiff could have, but did not, request a new trial on all issues. See V.R.C.P. 59(a) ("The court before which an action has been tried may on motion grant a new trial to all or any of the parties and on all or part of the issues for any of the reasons for which new trials or rehearings have heretofore been granted in actions at law or in suits in equity in the courts of this state."). As a general matter, a new trial may properly be limited to a single issue only where the issue sought to be retried is clearly separable from the other issues. See Gasoline Prods. Co. v. Champlin Refining. Co., 283 U.S. 494, 500, 51 S.Ct. 513, 75 L.Ed. 1188 (1931) ("Where the practice permits a partial new trial, it may not properly be resorted to unless it clearly appears that the issue to be retried is so distinct and separable from the others that a trial of it alone may be had without injustice."). Our review of plaintiff's Rule 59 motion thus has two parts: first, whether the trial court erred in denying the motion; and second, whether a new trial should be on all issues or on damages alone.²

a. Whether a new trial is necessary

¶ 8. The evidence is undisputed that plaintiff slipped, hit her head on a concrete wall, and fell to the floor. At trial, defendant did not claim that plaintiff's later cervical fusion surgery was not reasonable and necessary treatment for her accident-related injuries. Indeed, the jury explicitly found as much when it determined that plaintiff incurred the full amount of her claimed medical expenses as a result of the accident, reduced by 50% for her own negligence. The jury also awarded plaintiff approximately 60% of her claimed lost wages. The question, then, is whether the $0 pain-and-suffering award was consistent with the rest of the verdict and was supported by the evidence, or reflected an improper compromise or decision based on prejudice or confusion. If "the jury has disregarded the reasonable and substantial evidence, or found against it, through passion, prejudice, or some misconstruction of the matter, that judgment requires that the court's discretion be exercised to set aside the verdict." Weeks v. Burnor, 132 Vt. 603, 609, 326 A.2d 138, 141 (1974).

¶ 9. We faced a similar question in Nourse v. Austin, in which a jury found liability and appeared to award nearly all of the plaintiffs' claimed medical expenses but awarded no more than $110 for their pain and suffering. 140 Vt. 184, 185, 436 A.2d 738, 739 (1981). We reversed the trial court's denial of a new trial because "[t]he award, while adequate to cover the medical expenses, [was] clearly inadequate to cover pain and suffering." Id. Our opinion in Nourse was brief, but its logic was sound. Here, there is no plausible explanation for a jury verdict finding defendant liable for back and neck injuries, finding defendant liable for her medical expenses, including the cost of invasive surgery, but awarding nothing for past or future pain and suffering. There was reasonable and substantial evidence at trial that, as a result of her back and neck injuries, plaintiff had surgery and suffered pain in the past, and that she would suffer pain in the future.

¶ 10. In addition to plaintiff's own testimony about her pain, the record reflects the testimony of two medical witnesses. One, a pain-management specialist, testified that he "heavily suggested" that plaintiff undergo cervical decompression and fusion surgery when her ongoing physical-therapy regimen failed to abate her pain. He noted that, prior to surgery, "[s]he could barely tolerate simple sitting and standing." He testified that the surgery is intended both immediately to take the pressure off the nerves in the spine to relieve pain and permanently to immobilize a portion of the spine so that the nerves will not be impinged upon and cause pain again. The first objective is accomplished by "cutting away some of the disk material that's putting direct pressure on the nerve." The second requires attaching a piece of metal or bone to the spine to "restrict the motion so that the vertebrae don't bend up and down and don't create a pinching [e]ffect on the nerve." Plaintiff underwent the surgery, and the doctor testified that afterwards "[t]here was still spasm and guarding in the muscles surrounding the neck, which were quite painful to her." Finally, the pain-management specialist testified that plaintiff showed no signs of malingering or exaggerating her pain, and that he expected her pain would last for the rest of her life.

¶ 11. The second doctor to testify, a neurosurgeon, described the decompression and fusion surgery he performed on plaintiff. The surgery, which the doctor agreed was "very invasive," was intended to address "neck and right arm pain" caused by a disk protrusion. When asked "what were the factual underpinnings of the surgery?" the doctor mentioned only pain relief. The surgery, as it was performed on plaintiff,...