What happens when a personal injury attorney is faced with a jury that stubbornly refuses to award damages for pain and suffering? Well, one state supreme court has decided that the only remedy may be a new trial.
The Hawaii Supreme Court reached that conclusion in the case of a boy who was struck by a car while riding his racing scooter. At approximately 7:20 a.m. on Dec. 16, 2003, young Gregory Kanahele rode his scooter into the crosswalk at the intersection of Likini and Ala Nalana Streets in Honolulu.
Kanahele was struck by a car driven James Han. According to the evidence, Han was travelling at about 15 to 20 mph when his side view mirror caught Kanahele. In the collision, the handlebar of the scooter was driven through Kanahele’s cheek. The gaping wound required extensive surgery to repair.
A jury heard Kanahele’s negligence case, allocating 45 percent of the fault for the accident to Han. The jury also found Kanahele 45 percent negligent, allocating the remaining 10 percent of the fault to Kanahele’s father, apparently for failing to properly supervise the boy.
In the first go round, the jury awarded Kanahele the full amount of his medical expenses – $12,280. But the jury refused to award any amount for pain and suffering.
Kanahele’s lawyer argued that the $0 general damages award was inconsistent with the jury’s verdict on special damages. The trial judge agreed and instructed the jury to reconsider its verdict.
But the jury was obstinate, coming back after a mere 30 minutes of deliberation with a $1 award for pain and suffering. Perhaps, when all was said and done, the jury simply thought that Han was the unfortunate victim of a child who suddenly appeared in the path of his car.
The trial court entered judgment on the jury’s new verdict, rejecting Kanahele’s request for a new trial.
Earlier this month, the Hawaii Supreme Court decided that the only solution under these circumstances was a new trial.
“Here, ‘it was inconsistent for the jury,’ to award a nominal amount of $1.00 as general damages inasmuch as ‘both special damages for medical expenses and general damages for pain and suffering are largely dependent on the same proof,’” the court said.
It explained that the “special damages ‘proof’ indicated that Gregory endured pain and suffering. The ‘uncontroverted’ evidence from [Gregory’s surgeon] demonstrated that the handlebar of a racer scooter penetrated Gregory’s cheek, and by the time he arrived at the hospital, he was in ‘mild to moderate distress and pain’ and surgery was performed. Medical invoices admitted into evidence also show that Gregory was treated for an ‘open wound,’ he had a head injury, he was given pain killers, he had numerous stitches, and he was treated over a period of almost a year.”
The state supreme court concluded that the “award of $1.00 was a nominal award that did not mitigate the zero award previously given, despite the [trial] court’s resubmittal of the damages issue to the jury. In this case the $1.00 general damages award was the symbolic equivalent of a no award verdict that the jury had previously rendered.” (Kanahele v. Han)
– Pat Murphy