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Combining Pattern Instructions

Posted Monday, June 26, 2017 by Ed Harper

When submitting economic and noneconomic damage instructions in a personal injury case, the jury instruction can include multiple jury instructions compiled together making it easier for the court to articulate these instructions.

Washington Pattern Instruction 30.04 is one such instruction regarding noneconomic damages. This instruction states the following:

“In addition you [the jury] should consider the following noneconomic damages elements:1. The nature and extent of the injuries; and2. The disability experienced and with reasonable probability to be experienced in the future; and3. The loss of enjoyment of life experienced, and with reasonable probability to be experienced in the future; and4. The pain-and-suffering experienced, and with reasonable probability to be experienced, in the future.

The burden of proving damages rests upon the plaintiff. It is for you to determine, based upon the evidence, whether any particular element has been proved by a preponderance of the evidence. Your award must be based upon evidence and not upon speculation, guess, or conjecture.”

The law has not furnished us with any fixed standards by which to measure noneconomic damages. With reference to these matters you must be governed by your own judgment, by the evidence in the case, and by these instructions.

Recently, with Co-Counsel, we obtained a jury verdict well over $1.3 million. The case is Lawrence v. Trugreen, a case that went up on appeal and an unpublished opinion by Justice Leach on January 7, 2013 upheld this verdict. One of the issues in this case was the damage instruction for noneconomic damages.

Briefly, however, the facts were somewhat typical for a rear end motor vehicle collision injuring plaintiff, Rebecca Lawrence. The Plaintiff sustained serious neck and back injuries from the rear end automobile collision. The Defendant, Trugreen Inc., admitted liability for these injuries proximately caused by the collision and the case proceeded to trial on causation and damage issues only. On June 27, 2007, a Trugreen truck driven by its employee, rear-ended Rebecca Lawrence’s car. Multiple procedures were received by Ms. Lawrence including the implant of a spinal cord stimulator in her back.

Plaintiff Lawrence sued Trugreen and the driver. Before trial Trugreen admitted fault and went to trial on the issues of causation and damages. While Trugreen acknowledged that the collision could have caused Lawrence’s continuing neck pain, Trugreen maintained that it did not cause Lawrence’s lower back pain, which led to the spinal surgeries. One issues for the appellate court was the trial court’s instruction on the measure of damages. Trugreen claimed the court erred by “instructing the jury to consider the single quote nature and extent’ of the injuries as a separate line of damages on the verdict form…Trugreen claims the single ‘nature and extent’ clause instructed the jury to award Lawrence a recovery for the injury itself in addition to recovering for all of the elements of damages. We disagree.”

The appellate court determined that the trial court did not instruct the jury to find the “nature and extent” of Lawrence’s injuries as an itemized line of damages on the verdict form. “The jury instruction - regarding noneconomic damages - that the jury should consider the nature and extent of injuries as only one of the multiple elements of any noneconomic damages award, and the special verdict form provides only ‘line items’ for past economic damages and future noneconomic damages. This comports with Washington law, and we find no abuse of discretion in the trial court’s decision to give it.”

As shown in this case, listing out noneconomic elements in a jury instruction is often done.

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Pain and Suffering as Seperate

Posted Tuesday, June 20, 2017 by Ed Harper

Washington Pattern Jury Instruction 30.06 allows for pain and suffering as separate elements of damages. WPI 30.06 states: “The pain and suffering, both mental and physical any inconvenience, mental anguish, disability, or disability experienced and with reasonable probability to be experienced in the future.” In the case of Green v. Floe, 28 Wn.2d 620, the Washington Supreme Court in 1947 determined these are separate elements - mental suffering and physical pain.

The court stated as follows “physical pain and mental suffering are bracketed together as elements of damage in personal injury cases. The former is the immediate felt effect upon the nerves and brain of some lesion or injury to a part of the body. The latter is distressed when it is not felt as being directly connected with any bodily condition. Mental suffering is regarded by the courts as the usual accompaniment of physical pain, and the difficulty of distinguishing the two has been deemed the reason for allowing damages for mental suffering. A claim for bodily pain lets in mental suffering.” (Green, at 636 – 637).

The court went on further stating, “Mental pain and suffering in connection with the wrong which apart from such pain and suffering constitutes a cause of action is a proper element of damages where it is a natural and proximate consequence of the wrong.” (Green, at 637).

Here, the Plaintiff Green had a permanent disability to his knee. “The knee was broken in eight places. The leg bothers him continually, and especially in damp weather. It squeaks. As a result of a demonstration in the courtroom… the squeak in respondent’s knee was audible to the jury’s.… Additionally, there was testimony of Green’s physician to the effect that the kneecap was completely fractured; there were several fractures; that as a result Plaintiff Green has an unstable knee.

“It was alleged in the complaint that as a result of the injuries received, Green suffered a severe nervous and mental shock, and much pain and anguish, and that for a long time to come he will continue to suffer physically and mentally.

“In view of the above allegations and testimony in this case did the court error in instructing the jury that they might consider whether Green suffered mental and physical pain on account of the injury to his leg.

“The general rule is that in an action for physical injury the recoverable damages may include compensation for mental anguish or suffering which results so directly from that injury as to be the natural, legitimate, and proximate consequence thereof.” (Cites omitted).

A reason given for the rule is that the mind is a part of the body, and injury to the body includes the whole, and its effects are not separable. In such cases the mental suffering is merely an aggravation of damages when it naturally ensues from the act complained of. Mental suffering when connected with any bodily injury, is always to be considered in damages. (Green, at 636).

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Measure of Damages – Elements of Noneconomic Damages

Posted Tuesday, June 13, 2017 by Ed Harper

WPI 30.06 states, “The pain and suffering, both mental and physical [see RCW 4.56.250(1)(b)] experienced and with reasonable probability to be experienced in the future.”

RCW 4.56.250(1)(b) – this statute holds noneconomic damages are “subjective, nonmonetary losses, including but not limited to pain, suffering, inconvenience, mental anguish, disability or disfigurement incurred by the injured party, emotional distress, loss of society and companionship, loss of consortium, injury to reputation and humiliation, and destruction of parent – child relationship.”

The case of Bitzan v. Parisi, 88 Wn.2d 116, 550 P2d 775 (1977) is instructive on this issue. The Supreme Court in Washington determined this damage instruction must include all elements supported by the evidence. Failure to include an element of damage in a jury instruction is a reversible error when there is enough evidence to support it.

Here, Defendant Ernest Parisi rear-ended Plaintiff Thomas Bitzan’s car. The plaintiff recovered on a verdict for future and present damages. A motion at the trial court level overturned this verdict, which the appellate court upheld. At the Supreme Court, the court granted review and reversed the appellate court’s decision. This decision was based on the failure of the trial court to allow a damages instruction on future damages based solely on lay witness supportive testimony.

“The question of what evidence here is necessary to support an instruction on future disability, pain, suffering and loss of earnings requires an examination of the sufficiency of lay testimony for that purpose including testimony of subjective symptoms is contrasted with objective symptoms.… In this case there is, however, lay testimony generally to the effect of it bits and sustained pain, suffering, disability and loss of earnings from the time of the December 14, 1971 accident to the date of trial on July 23, 1973, a period of over 19 months. For reasons next stated, we hold the lay testimony, reviewed sufficient, alone, to support the instruction on future damages. There is no reason layman may not testify to their sensory perceptions, the weight of the testimony to be determined by the trier of fact. Physical movement by the injured person can be seen and described by a layman with no prior medical training or skill.” Bitzan at pgs. 119 – 121.

Regarding future damages, “Proof of pain and suffering as late as the time of trial even though subjective and character will warrant an instruction on future damages. The same is true of proof of disability and lost earnings. The continued existence of these elements of damage at the time of trial permits a reasonable inference that future damage will be sustained. Expert medical testimony to this effect may also be given, but it is not essential. Such evidence if unfavorable is admissible however to limit recovery.” Bitzan at 122, (cites omitted).

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Measure of Economic Damages - Elements of Past Damages

Posted Tuesday, June 06, 2017 by Ed Harper

When a plaintiff is injured, most likely they will receive medical treatment. Medical expenses to be recovered must be proven to be reasonable and necessary and proximately caused by an event which resulted from the defendant’s negligent conduct.

WPI 30.07.01 states, “The reasonable value of necessary medical care, treatment, and services received to the present time.”

Provided the plaintiff can present evidence establishing the reasonable value and necessity of their past medical care, treatment, and services, and the defendant provides no controverted evidence, then the undisputed reasonable value of that medical care (doctors care, hospital care, nursing care, etc.) treatment and services should be listed as a undisputed item on the damages instruction to be given.

RCW 4.56.250 (1)(a) – The statute defines economic damages in part as “objectively verifiable monetary losses, including medical expenses.”

See the case Palmer v. Jensen, 132 Wn.2d 193, 930 P.2d 597 (1997).

“When the plaintiff has provided the evidence to establish reasonable care and need for treatment and the defendant provides no evidence to the contrary then there is no legitimate dispute.” (Palmer v. Jensen¸ at 199 – 200)

Here, Palmer asked the appellate court determined Plaintiff had proven these elements reversing the trial court’s denial of her motion for new trial. Palmer argued that the jury’s verdict for the exact amount equal to special damages is inadequate because the award failed to include damages for pain and suffering. Palmer was injured due to a motor vehicle accident on January 30, 1990. Palmer sued for personal injuries, alleging general and special damages. The jury held that Jensen was negligent. Palmer was also found to be 25% contributorily negligent. The jury awarded Palmer damages in amounts equal to her special damages. The awards were then reduced to account for Palmer’s contributory negligence.

The Supreme Court reviewed there was uncontroverted evidence established that showed all of Palmer’s medical treatment was related to the accident, was necessary, and was reasonable. (Palmer, 81 Wn.App. at 150.) The defendant provided no contrary evidence and counsel for the defense could only urge the jury during closing to conclude Palmer had failed to prove her treatment was necessary. The Supreme Court determined that “given that there was no legitimate controversy regarding special damages and that the jury’s verdict is exactly equal to plaintiff’s special damages, we hold the jury verdicts jury’s verdict included no compensation for pain and suffering.” This was a mistake.

The appellate court stated “the medical evidence substantiates Pamela Palmer’s claim that she experienced pain and suffering for over 2 years after the accident. We hold the jury’s verdict providing no damages for Palmer’s pain-and-suffering was contrary to the evidence. The trial court therefore abused its discretion when it denied Palmer’s motion for new trial.” The Supreme Court remanded the case for new trial regarding Pamela Palmer’s damages.

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Loss of Earning Capacity

Posted Tuesday, May 30, 2017 by Ed Harper

What can you recover if you cannot work up to your capabilities?

Washington Pattern instruction 30.08 stands for the proposition that one’s loss of earning capacity is the inability to earn money.This is separate from “lost earnings”. Loss of earning capacity focuses on the injured person’s diminished ability to earn money because of his or her injuries. Bartlett v. Hantover, 9 Wn.App. 614, 619 – 620, 513 P 2nd 844 (1973), was affirmed on lost earning capacity, and reversed in part on other grounds by the Supreme Court on review, 84 Wn.2d 426, 520 P.2d 1217 (1974).

In Bartlett the plaintiff was working as a manager of a motel, when he was injured severely when shot by intruders. The injured plaintiff was shot in the head and shoulder and somehow survived. The court stated, “In order to instruct on lost earning capacity, the evidence must show with reasonable certainty that the injured party has suffered an impairment in his ability to make a living. (See McCormick, Damages, Sec. 86, 1935) In Bartlett, the court continues by stating the showing that must be made is that the injury suffered by the plaintiff is an injury that, in fact has diminished the ability of the plaintiff to earn money. (Murray v. Mossman, 52 Wn.2d 885, 889, 320 P. 2nd 1089, 1958)

“The requirement of the law leaves the fixing of the amount of loss to the discernment of the jury. Thus, a child of 3 and an unemployed man of 71 can suffer a loss of earning capacity.” (Sherman v. Seattle, 57 Wn.2d 233, 350 P.2d 316, 1960; Riddell v. Red Lion, 124 Wn. 146, 213 P. 487, 1923) “Evidence of physical impairment must be presented and from that evidence of injury to the body and/or mind of the plaintiff, the jury must assess the amount that will compensate for his lessened money-making faculties and reduced income potentialities.” (Kelley v. Great Northern Railway, 59 Wn.2d 894 370 P.2d 528, 1962; Johnson v. Howard, 45 Wn.2d 433 230 P.2d 736,1954; Handley v. Anacortes Ice Company, 5 Wn.2d 384 100, P.2d 505, 1940; Sheppard P Smith, 198 wash. 395, 80 8P. 2nd 601, 1939; Hirst v. Standard Oil Company of California, 145 wash. 597, 260 1P. 405, 1927; annotation, 18 A. L. R. 3rd 88, 1968). “Evidence of the bodily impairment suffered from the two gunshot wounds amply supported lost earning capacity as an element of damage.” Bartlett at 9 Wn.App. 619 – 620.

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