Tuesday, April 2, 2019
Court of Appeal:
Opinion Declares That Finding of Liability in Connection With Rear-Ender Establishes That Injured Party Was Entitled to Some Compensation for Noneconomic Damages
By a MetNews Staff Writer
The Court of Appeal for this district has rejected impeachment evidence proffered by the defense in a personal injury action stemming from an automobile accident, holding that a Los Angeles Superior Court judge erred in denying the plaintiff’s motion for a new trial or for additur after a jury awarded no damages for pain and suffering.
Friday’s opinion, which was not certified for publication, was authored by Los Angeles Superior Court Judge Gregory J. Weingart, sitting on assignment to Div. One. The opinion reverses a judgment by Los Angeles Superior Court Michael B. Harwin who chose not to override the jury’s determination.
Defendant Henry Wang had admitted liability in connection with rear-ending the automobile driven by plaintiff Eddie Pierce Jr., who was awarded by the jury $61,382.00 in damages for medical expenses and lost wages.
With respect to pain and suffering, Pierce and family members testified that the plaintiff’s shoulder pain, incurred in the accident, persisted and that Pierce could not hold his infant daughter in his left arm for any appreciable length of time and that he was unable to pursue his hobbies of scuba diving and fixing cars. Impeached evidence included photos and videos of Pierce holding his daughter in his left arm, scuba diving, and fixing cars during the period of time when, according to his testimony, these activities were precluded.
There was testimony from a defense medical expert that Pierce was not experiencing the pain he was claiming and other impeachment evidence was adduced.
“While the factfinder was entitled to consider defendants’ impeachment evidence to decide the amount of pain and suffering damages, that evidence was insufficient as a matter of law to support a complete denial of such damages,” Weingart wrote.
He said that jury, in determining that Wang was liable “for the injury here and the injury’s expenses,” necessarily found that he was responsible for some pain and suffering, yet made no award for it.
Abuse of Discretion
“The undisputed evidence showed that Pierce was in a significant automobile accident, had a torn rotator cuff, was placed on a three-month disability leave from work, and incurred over $22,500 in medical expenses to treat his injuries (with an additional $32,000 for a future operation). Because the award of damages was inadequate as a matter of law, the denial of plaintiff’s motion for new trial or in the alternative additur was an abuse of the trial court’s discretion.”
The case is Pierce v. Wang, B288181.
Mid-Wilshire attorney Lee Arter and Steven M. Karp of his office represented Pierce. Ontario attorney Cortney Renee Carr of the Law Offices of Kim L. Bensen joined with West Los Angeles attorney Daniel P. Barer of Pollak Vida & Barer in arguing for Wang, as well as defendant Juan Du, whose car Wang was driving.
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