Award Omitting Pain and Suffering Damages Was Inadequate as a Matter of Law

Serious Surgery Always Causes Pain and Suffering; If a Jury Finds that Defendant's Negligence Created the Need for Surgery, Then an Award That Does Not Include Them is Inadequate

Dodson v. J. Pacific, Inc. (Aug. 28, 2007, B186416, Second District, Division Eight)
9 page opinion

The plaintiff had surgery in which a herniated disc was removed and a metallic plate inserted. At trial plaintiff argued (and presented expert testimony) that his back had been damaged when he fell while on defendant's premises and that the purpose of the surgery was to repair this damage, to the extent possible. It was uncontested that plaintiff had fallen while he was on defendant's premises and that plaintiff had damage to his back for which the surgery was an appropriate treatment. However, defendant's experts testified that the damage to plaintiff's back had been caused by a long-term process of deterioration. It had not been caused by a single trauma and, more specifically, it had not been caused by the fall on defendant's premises because of the delay between the fall and the onset of plaintiff's symptoms.

The plaintiff presented evidence of approximately $24,500 in economic damages. In a special verdict the jury found that the defendant had been negligent and that defendant's negligence had been a cause of plaintiff's injury. The jury found that plaintiff had suffered economic damages of $16,679 and non-economic damages of $0. The jury allocated the negligence 50/50 between plaintiff and defendant. Judgment was entered for $8,339.50. The trial court denied plaintiff's motion for a new trial on non-economic damages.

The Court of Appeal held that a damage award that did not include pain and suffering was inadequate as a matter of law because the special verdict showed that the jury had found that defendant's negligence was a cause of the plaintiff's need for surgery. The jury had explicitly found that the defendant's negligence had been a cause of the plaintiff's injuries and that the plaintiff had suffered economic damages caused by the fall. It was uncontested that the plaintiff had undergone the surgery described to the jury and it was clear that the damages awarded had been economic damages only.

While the extent of a plaintiff's pain and suffering are for a jury to decide, when the plaintiff has undergone a serious surgical procedure, the amount of the plaintiff's pain and suffering cannot be zero. Once the jury determined that there was a causal relationship between the defendant's negligence and the plaintiff's surgery, the plaintiff was entitled to some award of pain and suffering damages as a matter of law. The trial court had abused its discretion when it denied the plaintiff's motion for a new trial on non-economic damages.
Justice Boland wrote the opinion. Presiding Justice Cooper and Justice Rubin concurred.