2019 WL 4752371

United States District Court, E.D. New York.
Solimar MARRERO, Plaintiff,
v.
Christopher Lee CLEMMONS and Western Express, Inc., Defendants.
16-CV-6304 (NGG) (RER)
|
Signed 09/27/2019
|
Filed 09/30/2019
Attorneys and Law Firms
Andrea Valley Borden, Seth A. Harris, Burns & Harris, Esq., New York, NY, for Plaintiff.
Keith A. Raven, George Spencer Kolbe, Raven & Kolbe LLP, New York, NY, for Defendants.

MEMORANDUM & ORDER
NICHOLAS G. GARAUFIS, United States District Judge.
*1 This action arises out of a motor vehicle accident that occurred while Plaintiff Solimar Marrero was parked at an intersection in Red Hook, Brooklyn. Plaintiff alleges that a tractor-trailer driven by Defendant Christopher Clemmons and owned by Defendant Western Express, Inc. (“Western Express”) collided with her car as it attempted to make a right turn. (See Compl. (Dkt. 1 at ECF p.7).) Currently before the court is Defendants’ motion for summary judgment. (Defs. Mot. for Summ. J. (“Mot.”) (Dkt. 27).)

For the following reasons, Defendants’ motion is DENIED.

I. BACKGROUND

A. Facts
The court constructs the following statement of facts from the parties’ Local Rule 56.1 statements and the admissible evidence they submitted. Except as otherwise noted, the following facts are undisputed. Where facts are in dispute, the court notes the dispute, and credits Plaintiff’s version of the particular fact if it is supported by record evidence. All evidence is construed in the light most favorable to Plaintiff with all “reasonable inferences” drawn in her favor. ING Bank N.V. v. M/V Temara, IMP No. 9333929, 892 F.3d 511, 518 (2d Cir. 2018).

1. Plaintiff’s Pre-Existing Medical Conditions
Plaintiff was involved in a motor vehicle accident in 2009 in which she injured her neck, back, and right shoulder. (Defs. Rule 56.1 Statement (“Defs. 56.1”) (Dkt. 27-13) ¶ 11.) As a result of these injuries, Plaintiff received a series of three epidural injections in her back and three epidural injections in her neck. (Id. ¶ 12.) She filed a lawsuit to recover damages relating to those injuries, claiming that she had suffered disc herniations in her cervical spine and disc bulges in her lumbar spine as a result of the accident. (Id. ¶ 14.) In part because of the injuries sustained in the 2009 accident, Plaintiff applied for and received Social Security benefits. (Id. ¶ 13.)

In her deposition, Plaintiff stated that she continued to suffer back pain from these injuries leading up to the subject collision in 2015. (Id. ¶ 16.) She testified that the pain was under control, and that it was limited to the right side of her back. (Pl. Rule 56.1 Statement (“Pl. 56.1”) (Dkt. 28-6) ¶ 2.)

2. The Collision
The details of the collision itself are not in dispute. The parties agree that on January 13, 2015, Plaintiff was sitting in her parked four-door Ford Explorer when it was struck by Defendants’ vehicle. (See Defs. 56.1 ¶¶ 1-2.) The airbags in Plaintiff’s car did not deploy, and the brunt of the damage was to the rear driver’s side of her car. (Id. ¶¶ 5-6.) Plaintiff’s car sustained a total of $5,604.33 in damage, inclusive of parts and labor. (Id. ¶ 7.)

Plaintiff testified that as a result of the collision, her left shoulder struck the door next to her. (Pl. 56.1 ¶ 4.) Immediately thereafter, she felt sore on the left side of her neck and in her left shoulder. (Id.)

3. Plaintiff’s Post-Collision Medical Records, Treatment, and Examinations
Plaintiff first sought medical treatment after the accident on January 21, 2015. (Id. ¶ 8.) As this time, she saw chiropractor Dr. Scott Leist at the Kings Highway Chiropractic Office and reported that she was suffering from left shoulder, neck, and lower back pain. (Id.) She also stated that she had been experiencing headaches and dizziness. (Id. ¶ 9.) Dr. Leist noted the following range of motion limitations in her neck: 45/70 on flexion, 20/50 on extension, 20/50 on right lateral flexion, 20/50 on left lateral flexion, 25/75 on right rotation, and 20/75 on left rotation. (Id.) He also observed the following limitations in her lower back: 60/90 on flexion, 25/40 on extension, 25/40 on right lateral flexion, 25/40 on left lateral flexion, 20/40 on right rotation, and 20/40 on left rotation. (Id. ¶ 10.)

*2 On January 30, 2015, Plaintiff began receiving physical therapy at Washington Medical P.C., which is associated with Dr. Leist’s office. (Id. ¶ 11.) She reported continued pain in left shoulder and neck, as well as numbness and tingling in her arms. (Id.) She also stated that she was having difficulty with daily activities, including lifting and pushing and household chores. (Id.) After this visit, she was referred for MRIs of her cervical and lumbar spines. (Id. ¶ 12.) She continued to receive physical therapy until approximately May 2015. (Id.)

On March 12, 2015, Plaintiff received MRIs at Impulse Imaging that revealed the following injuries: bulging discs and C3-4 and C4-5, a posterior herniated disc at C5-6, and posterior herniated discs at L4-5 and L5-S1. (Id. ¶¶ 13-14; see also Affirmation of Dr. Charles DeMarco (Dkt. 28-3 at ECF p.1) ¶ 1.)

Then, on March 18, 2015, Plaintiff presented for a pain management evaluation at Washington Medical, P.C., reporting moderate to severe pain, stiffness, and muscle spasms in her neck and lower back and left shoulder pain. (Pl. 56.1 ¶ 15.) Dr. Sawey Harshash examined her, and once again noted limited range of motion in her neck and back. (Id. ¶ 15, 17.) Dr. Harshash recommended that Plaintiff receive trigger point injections and noted that he believed “within a reasonable degree of medical certainty” that the January 2015 accident had caused her injuries. (Id. ¶ 17.)

On March 30, 2015, Plaintiff underwent a nerve block injection to her L4-L5 nerve roots. (Id. ¶ 19.) That same day, she reported moderate to severe neck pain with muscle spasms radiating to her shoulder with numbness and tingling, moderate to severe bilateral lower back pain radiating to her buttocks and legs, and bilateral shoulder pain. (Id. ¶ 19.) She followed up with her pain management specialist on April 29, 2015, reporting the same symptoms, and was advised to continue her conservative treatment plan. (Id. ¶ 20.) At a physical therapy appointment on May 6, 2015, Plaintiff reported that her left shoulder pain was an eight on a scale of one to ten and described that pain as “constant.” (Id. ¶ 21.) She stated that she had “difficulty with prolonged standing, lifting/pushing, sitting, and household chores.” (Id.) On July 21, 2015, Plaintiff received an MRI of her left shoulder at Impulse Imaging. (Id. ¶ 22.) The MRI revealed a bone spur and tendon degeneration. (Id.)

Plaintiff next sought treatment on February 8, 2016. (Id. ¶ 23.) At that time, she presented for another pain management evaluation at Pain Physicians NY, reporting neck pain radiating bilaterally to her shoulders and back pain radiating to her right leg with numbness and tingling. (Id.) She further reported constant pain in her lower back exacerbated by “mechanical-type activities.” (Id.) Plaintiff was diagnosed with cervical and lumbar disc displacement and radiculopathy and referred to receive injections to treat her pain. (Id. ¶ 24.) She returned for follow-up appointments on February 15, 2016 and February 29, 2016. (Id. ¶¶ 25-26.) On April 11, 2016, she received injections to her lumbar spine. (Id. ¶ 26.) About a year later, in May 2017, Plaintiff began receiving chiropractic care, which she attended one to two times per week for about four months. (Defs. 56.1 ¶ 28.)

On September 29, 2017, Plaintiff was examined by a Dr. Gabriel Dassa. (Id. ¶ 27.) At that time, Plaintiff continued to complain of pain in her neck, back, and left shoulder, as well as radiating pain into her arms and legs and finger spasms. (Id.) She also exhibited a limited range of motion in the cervical and lumbar spines and in the left shoulder. (Id. ¶¶ 28-30.) Dr. Dassa, a board-certified orthopedic surgeon, reviewed Plaintiffs MRIs and determined that she suffered from at least one disc herniation that was not present in MRIs from 2009. (Id. ¶ 31; see also Expert Report of Dr. Gabriel L. Dassa (“Dassa Report”) (Dkt. 28-5) at 1.)

*3 On October 12, 2017, Plaintiff was examined by Dr. Yong Kim, also a board-certified orthopedic surgeon (see Curriculum Vitae of Dr. Yong Kim (Dkt. 27-10 at ECF p.4) at 2), who determined that Plaintiff had suffered from a cervical and lumbar strain, but that both were fully resolved. (Pl. 56.1 ¶¶ 36-37.) Although Dr. Kim’s report mentions Plaintiff’s left shoulder pain, it does not discuss it further. (Expert Report of Dr. Yong Kim (“Kim Report”) (Dkt. 27-10 at ECF p.10) at 6-8.) Dr. Kim concluded that the 2015 MRIs showed injuries that were either degenerative or stemmed from the 2009 accident, and concluded that Plaintiff did not require additional orthopedic treatment for her cervical or lumbar spine. (Id. at 7-8.)

On October 24, 2017, Plaintiff received a third medical examination from Dr. Eial Faierman, another board-certified orthopedic surgeon (see Curriculum Vitae of Dr. Eial Faierman (Dkt. 27-11 at ECF p.4) at 1). (Pl. 56.1 ¶ 38.) Dr. Faierman concluded that Plaintiff had suffered recurring cervical and lumbar strains and shoulder pain, which had been resolved. (Id. ¶ 40.) He did not review any MRI films. (Id.)

Finally, Dr. Melissa Sapan, a board-certified radiologist (see curriculum vitae of Dr. Melissa Sapan (Dkt. 27-12 at ECF p.4) at 3), reviewed several of Plaintiff’s MRIs in the fall of 2017. (See Reports of Dr. Melissa Sapan (“Sapan Reports”) (Dkt. 27-12 at ECF p.8).) She determined that Plaintiff’s MRIs indicate degenerative damages in the left shoulder (id. at ECF p.11), degenerative disc disease at the L5-S1 level (id. at ECF p.13), and a disc bulge at the C3-C4 level and a disc herniation at the C5-C6 level that she did not believe were related to trauma (id. at ECF p.15).

4. Effect on Plaintiff’s Life
Plaintiff has testified that her pain following this accident is worse than that following her previous accident, and that she has stopped treatment for the time being but would like to continue once her insurance situation is clarified. (Pl. 56.1 ¶¶ 5-6.) She stated that she continues to suffer from neck, back, and shoulder pain radiating into her buttocks and legs. (Id. ¶ 7.) She reports continued interference with day-to-day activities, in that she is unable to walk as much as she used to, has trouble singing and picking her child up, and has difficulty engaging in sexual activity. (Defs. 56.1 ¶ 31.) As Defendant notes, she did deliver a healthy baby in August 2017, and has taken two vacations to Florida with her family since the accident. (Id. ¶¶ 32-33.)

Immediately after the collision, Plaintiff went to work and completed a full day of work. (Defs. 56.1 ¶¶ 18-19.) She has not missed any other days of work as a result of this accident. (Id. ¶ 21.)

B. Procedural History
On October 27, 2016, Plaintiff filed her complaint in the Supreme Court of New York, County of Kings. (Notice of Removal (Dkt. 1) at 1.) On November 11, 2016, Defendants removed the case to this court on the basis of diversity jurisdiction (id. at 2-3) and, on November 17, 2016, answered Plaintiff’s complaint (see Answer (Dkt. 5)). Discovery proceeded before Magistrate Judge Ramon E. Reyes (see Nov. 29, 2016 Min. Entry) and was completed on January 5, 2018 (see Jan. 3, 2018 Order).

Defendants filed their fully briefed motion for summary judgment on July 13, 2018. (Defs. Mot. for Summ. J. (“Mot.”) (Dkt. 27); Pl. Resp. in Opp’n to Mot. (Dkt. 28); Defs. Reply in Supp. of Mot. (Dkt. 29).) Defendants move for summary judgment based on the New York No-Fault Law, which prohibits recovery in automobile-accident cases for non-economic loss “except in the case of a serious injury,” N.Y. Ins. L. § 5104. Defendants argue that Plaintiff has not provided sufficient evidence of a serious injury within the meaning of the law. (See Defs. Mem. in Supp. of Mot. (“Mem.”) (Dkt. 27-14) at 2.)

II. LEGAL STANDARD1
*4 A court must grant summary judgment when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A ‘material’ fact is one capable of influencing the case’s outcome under governing substantive law, and a ‘genuine’ dispute is one as to which the evidence would permit a reasonable juror to find for the party opposing the motion.” Figueroa v. Mazza, 825 F.3d 89, 98 (2d Cir. 2016) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “The movant may discharge this burden by showing that the nonmoving party has ‘fail[ed] to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.’ ” Lantheus Med. Imaging, Inc. v. Zurich Am. Ins. Co., 255 F. Supp. 3d 443, 451 (S.D.N.Y. 2015) (alteration in original) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). “ ‘The mere existence of a scintilla of evidence’ in support of the non-movant will be insufficient to defeat a summary judgment motion.” Transflo Terminal Servs., Inc. v. Brooklyn Res. Recovery, Inc., 248 F. Supp. 3d 397, 399 (E.D.N.Y. 2017) (quoting Anderson, 477 U.S. at 252).

“In determining whether an issue is genuine, ‘[t]he inferences to be drawn from the underlying affidavits, exhibits, interrogatory answers, and depositions must be viewed in the light most favorable to the party opposing the motion.’ ” SCW W. LLC v. Westport Ins. Corp., 856 F. Supp. 2d 514, 521 (E.D.N.Y. 2012) (quoting Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir. 1995) (alteration in original)). “[T]he judge’s function is not … to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Redd v. N.Y. Div. of Parole, 678 F.3d 166, 173-74 (2d Cir. 2012) (quoting Anderson, 477 U.S. at 249). However, “[a] party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment,” and “[m]ere conclusory allegations or denials … cannot by themselves create a genuine issue of material fact where none would otherwise exist.” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (quotation marks and citation omitted).

III. APPLICATION
Defendants move for summary judgment based on the New York No-Fault Law. That law prohibits recovery in automobile-accident cases for non-economic loss, “except in the case of a serious injury,” N.Y. Ins. L. § 5104, which it defines as follows:
a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.
N.Y. Ins. L. § 5102(d).

First, Defendants argue that Plaintiff has not provided sufficient evidence to create a genuine dispute as to whether she has suffered a serious injury. (See Mem. at 2.) Plaintiff claims, however, that she has suffered a serious injury in that she “sustained a permanent consequential limitation of use of a body part or significant limitation and/or that she was medically prevented from performing her usual and customary activities for 90/180 days following the accident.” (Pl. Mem. in Opp’n to Mot. (“Resp.”) (Dkt. 28-7) at 9.)

Second, Defendants argue that even if Plaintiff has provided sufficient evidence of the seriousness of her injury, she has not adequately shown that her injury was caused by the 2015 accident.

*5 The court will address each of Defendants’ arguments in turn.

A. Serious Injury
To show that she has sustained serious injuries entitling her to recover under the no-fault statute, Plaintiff must demonstrate that her injuries fall within one of the nine statutory categories. See N.Y. Ins. L. § 5102(d). For the following reasons, the court finds that Plaintiff has provided sufficient evidence to create a dispute issue of fact as to whether she sustained a “significant limitation of use of a body function or system,” id., and so does not address the other eight categories.

In order to show a significant limitation, a plaintiff must provide objective evidence of that limitation. Zhang v. Alvarado, No. 15-CV-4373 (NGG), 2017 WL 6375732, at *7 (E.D.N.Y. Dec. 12, 2017) (“Subjective complaints alone are not sufficient for a finding of serious injury, and objective evidence is needed.” (quoting Guiltieri v. Farina, 283 F. Supp. 2d 917, 921 (S.D.N.Y. 2003) (alteration adopted))). The parties do not dispute that MRIs of Plaintiff’s neck and back show herniated and bulging discs. (See Defs. 56.1 ¶¶ 51-53; Pl. 56.1 ¶¶ 13-14.) However, “the mere existence of a bulging or herniated disc does not establish a serious injury in the absence of objective evidence of a related disability or restriction.” Rudas v. Petschauer, 781 N.Y.S.2d 120, 121 (N.Y. App. Div. 2004). Objective testing that demonstrates range of motion below normal measurements may constitute such evidence. See Zhang, 2017 WL 6375732, at *8 (citing Toure v. Avis Rent A Car Sys., Inc., 774 N.E.2d 1197, 1201-02 (N.Y. 2002); Cowley v. Crocker, 589 N.Y.S.2d 119, 120-21 (N.Y. App. Div. 1992)).

As Plaintiff notes, every doctor to have examined Plaintiff—including Defendants’ own expert witnesses—observed significant limitations to the range of motion in her neck and back. (Opp’n at 15.) Dr. Leist, who examined Plaintiff just eight days after the 2015 accident, noted a 46%-74% decrease in the range of motion in Plaintiff’s neck and back. (Pl. 56.1 ¶¶ 9-10.) At Plaintiff’s initial pain management appointment on March 18, 2015, Dr. Harshash noted similar restrictions in her range of motion. (See Washington Medical, P.C. Mar. 18, 2015 Records (Dkt. 28-2 at ECF p.2) at ECF pp.9-10.) Over two years later, on September 29, 2017, Dr. Dassa observed significant restrictions in Plaintiff’s range of motion in her neck and back, ranging from a 17% loss of range up to an 88% loss on lateral rotation in her neck. (Pl. 56.1 ¶ 28.) He also observed limited range of motion in Plaintiff’s left shoulder, up to a 34% loss on extension. (Id. ¶ 30.) The two of Defendants’ experts who examined Plaintiff—Drs. Kim and Faierman—noted comparable limitations in her range of motion. (Id. ¶¶ 34, 38.)

In similar situations, courts applying New York law have regularly found that there is, at the least, a genuine dispute as to whether a plaintiff has suffered a serious injury. (See, e.g., Burzynski v. United States, No. 13-CV-766, 2016 WL 6298513, at *6 (W.D.N.Y. Oct. 27, 2016)) (“It has been consistently held that a measure of a range of motion limitation, taken together with an MRI or other formal objective test, is sufficient to create a genuine issue of material fact.” (alterations adopted) (citations omitted)); Pommells v. Perez, 830 N.E.2d 278, 285 (N.Y. 2005) (holding that a plaintiff’s claim survived summary judgment when her doctor stated that she had suffered severe and permanent injuries and that opinion was supported by measurements of loss of range of motion and an MRI revealing herniated discs); Clervoix v. Edwards, 781 N.Y.S.2d 690, 690 (N.Y. App. Div. 2004) (treating chiropractor’s affidavit indicating decreased range of motion and MRI showing bulging and herniated discs as sufficient to defeat summary judgment). In accordance with these cases, the court holds that the MRIs of Plaintiff’s neck and back showing herniated and bulging discs, together with the objective measures of Plaintiff’s limited range of motion, are sufficient to establish that Plaintiff has suffered a serious injury within the meaning of New York’s no-fault statute, N.Y. Ins. L. § 5104.

B. Causation
*6 Defendants also contend that Plaintiff has not provided sufficient evidence that her injuries were caused by the 2015 collision, rather than the 2009 collision or general degenerative conditions. (See Mem. at 13-17; Reply at 3-8.) In particular, Defendants claim that Plaintiff’s medical records indicate that she did not inform the medical providers giving her treatment that she had been in a car accident in 2009. (Reply at 3-5.) As a result, argue Defendants, those doctors’ opinions as to causation are irrelevant, as they did not have sufficient information to determine whether the 2009 collision might have caused Plaintiff’s injuries. (Id.) As to Dr. Dassa, who was aware of Plaintiff’s 2009 collision and still found that the 2015 collision at least exacerbated her injury, Defendants contend that his opinion is unreliable because he only examined Plaintiff once and because he found that some of her spinal injuries were less severe than those stemming from her 2009 collision. (Id. at 5-6.)

The court disagrees with Defendants about the reliability of Dr. Dassa’s report. While it is true that Dr. Dassa examined Plaintiff only once, the same is true of Defendants’ experts, on whom Defendants rely. (See id. at 6.) Moreover, as Defendants acknowledge, Dr. Dassa did diagnose Plaintiff with a disc herniation that was not present in her 2009 MRIs (id.), which undermines Defendants’ claims that his report inconsistently indicates that her injuries following the 2015 accident were actually less severe than her previous injuries.2 And, most importantly for Plaintiff, Dr. Dassa did address the previous accident and determine, after reviewing Plaintiff’s medical records and examining her, that the injury was at least exacerbated by the 2015 accident. (See Dassa Report at 4.)

Moreover, while Plaintiff’s treating physicians throughout 2015 and 2016 did not rule out the 2009 accident as a potential cause of Plaintiff’s injuries, their records do consistently indicate that Plaintiff’s injuries appear trauma-related. (See, e.g., Dr. Leist Feb. 17, 2014 Records (Dkt. 28-1 at ECF p.2) at 2; Washington Medical, P.C. Mar. 18, 2015 Records at ECF p.11.) Thus, at the very least, these records provide contradictory evidence to Defendants’ experts’ claims that Plaintiff’s injuries may be degenerative in nature. (See Kim Report at 7-8; Sapan Reports at ECF pp.11, 13, 15.)

In sum, both Plaintiff and Defendants have provided testimony from medical experts who examined Plaintiff in the fall of 2017. Plaintiff’s expert says the 2015 accident caused her injuries; Defendants’ experts say it did not. Records from Plaintiff’s treating doctors provide further evidence that her injuries are traumatic, rather than degenerative. Which doctors are to be believed is a question of credibility that must be left to a jury. See Alvarez v. E. Penn Mfg. Co., No. 10-CV-9541 (RKE), 2012 WL 4094828, at *10 (S.D.N.Y. Sept. 17, 2012) (holding that, as to causation, “conflicting [expert] reports … create a genuine dispute for trial”); Spencer v. Golden Eagle, Inc., 920 N.Y.S.2d 24, 26 (N.Y. App. Div. 2011) (finding that the plaintiff had raised a triable issue of fact when contemporaneous medical records indicated, in contrast to the defendants’ expert reports, that the plaintiff’s injuries were not degenerative); Linton v. Nawaz, 879 N.Y.S.2d 82, 87 (N.Y. App. Div. 2009) (holding that where a doctor determined, contrary to the defendants’ expert reports, that the plaintiff’s injuries were caused by the accident “based on a full physical examination of plaintiff made within days of the onset of plaintiff’s complaints …, which plaintiff told him ensued after he was involved in a traumatic accident,” plaintiff had “raise[d] a triable issue as to whose medical opinion was worthy of greater weight”). Plaintiff has therefore provided sufficient evidence to create a triable issue of fact as to causation.

IV. CONCLUSION
*7 For the foregoing reasons, Defendants’ (Dkt. 27) motion for summary judgment is DENIED. The parties are directed to contact the chambers of Magistrate Judge Ramon E. Reyes regarding next steps in the case.

SO ORDERED.

All Citations
Slip Copy, 2019 WL 4752371

Footnotes

1
The federal burden of proof on a motion for summary judgment differs from the corresponding standard under New York law for a third-party liability automobile accident case. Under New York law, when a motion for summary judgment is predicated on a dispute over whether a plaintiff has suffered a serious injury, a defendant bears the initial burden to demonstrate that the plaintiff has not suffered such an injury. See Baez v. Rahamatali, 850 N.E.2d 19, 19 (N.Y. 2006). If the defendant meets this burden, “the plaintiff must then put forth competent medical evidence” to defeat the motion. Flaccomio v. United States, No. 04-CV-3213 (TCP), 2006 WL 8441409, at *3 (E.D.N.Y. June 23, 2006) (citing Gaddy v. Eyler, 591 N.E.2d 1176, 1177 (N.Y. 1992)). The court must then determine whether a plaintiff has successfully shown the existence of a prima facie serious injury. Id. (citing Licari v. Elliott, 441 N.E.2d 1088, 1091 (N.Y. 1982)). As the allocation of the burden of proof at the summary judgment stage is a matter of procedural law, however, this burden does not apply in an action brought in federal court. See, e.g., Vasquez v. United States, No. 14-CV-1510 (DF), 2016 WL 315879, at *4 (S.D.N.Y. Jan. 15, 2016); Zeak v. United States, No. 11-CV-4253 (KPF), 2014 WL 5324319, at *8 (S.D.N.Y. Oct. 20, 2014). The court will thus apply the federal standard for summary judgment.

2
The court also notes the logical inconsistency inherent in this argument. Even if Plaintiff did suffer worse injuries in 2009 than in 2015, it is entirely possible—and, indeed, plausible, given her testimony and treatment record—that Plaintiff had largely recovered from those injuries in the intervening years. As she did not get an MRI immediately prior to the 2015 accident, the differences between the two MRIs can provide essentially no evidence as to the extent that the 2015 accident worsened Plaintiff’s condition.

2019 WL 4632020

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
Court of Appeals of Mississippi.
Daniel ANDERSON, Appellant
v.
Jerome SALAAM and Tri-State Expediting Services, Inc., Appellees
NO. 2018-CA-00934-COA
|
09/24/2019
Synopsis
Background: Motorist filed action against truck driver and truck driver’s employer, alleging that truck driver, while acting as agent or employee, negligently caused automobile accident. After a jury trial in the Circuit Court, Chickasaw County, J. Kelly Luther, Inactive, jury allocated 25% fault to truck driver and employer and 75% fault to motorist. The Circuit Court ordered truck driver and employer to pay motorist based on jury’s verdict allocating 25% fault to them. Motorist moved for judgment notwithstanding verdict, for additur, or, alternatively, for new trial. The Circuit denied the motions. Motorist appealed.

Holdings: The Court of Appeals, Cory T. Wilson, J., held that:

[1] jury’s allocation of fault was not against overwhelming weight of evidence, and

[2] damage award was not so low that it could only have been returned by jury influenced impermissibly by bias, prejudice, or passion.

Affirmed.

McDonald, J., concurred in part and in result without separate written opinion.

West Headnotes (10)

[1]
New Trial

The motion for an additur and its mirror motion, one for a remittitur, are variants of the motion for a new trial, going solely to the issue of damages.
Cases that cite this headnote

[2]
Automobiles

Jury’s allocation of 25% fault to truck driver and employer and 75% fault to plaintiff-motorist was not against overwhelming weight of evidence, and therefore new trial was not warranted based on jury’s apportionment of fault; although jury heard evidence that truck driver was not maintaining proper distance when following motorist, jury also heard testimony that motorist was talking on cell phone when accident occurred and that motorist was using right turn signal before suddenly turning left.
Cases that cite this headnote

[3]
Automobiles

Damages of $9,000.00 awarded to motorist in action against truck driver and truck driver’s employer was not so low that it could only have been returned by jury influenced impermissibly by bias, prejudice, or passion, and therefore additur was not required; amount, reasonableness and necessity of motorist’s damages were contested by the parties, and jury determined weight and worth of testimony, credibility of witnesses at trial, and reasonableness and necessity of motorist’s damages and concluded that motorist suffered $9,000.00 in total damages. Miss. Code Ann. § 11-1-55.
Cases that cite this headnote

[4]
Appeal and Error

In reviewing a trial court’s grant or denial of an additur, the Court of Appeals’ standard of review is limited to an abuse of discretion.
Cases that cite this headnote

[5]
Appeal and Error

When the Court of Appeals reviews the action of the jury after the trial court has refused to grant a new trial on the question of damages, the question then becomes whether the verdict was either so excessive or inadequate as to shock the conscience and to indicate bias, passion and prejudice on the part of the jury, or, whether the jury failed to respond to reason.
Cases that cite this headnote

[6]
Damages

Evidence of corruption, passion, prejudice, or bias on the part of the jury is an inference, if any, to be drawn from contrasting the amount of the verdict with the amount of the damages.
Cases that cite this headnote

[7]
New Trial

Each case involving the issue of an additur must necessarily be decided on its own facts.
Cases that cite this headnote

[8]
New Trial

Additurs represent a judicial incursion in to the traditional habitat of the jury, and therefore should never be employed without great caution.
Cases that cite this headnote

[9]
Damages

Awards fixed by jury determination are not merely advisory and will not under the general rule be set aside unless so unreasonable in amount as to strike mankind at first blush as being beyond all measure, unreasonable in amount and outrageous; this is because the amount of damages awarded is primarily a question for the jury.
Cases that cite this headnote

[10]
Appeal and Error

The Court of Appeals will not substitute its factual findings for that of the jury in a contest of credibility.
Cases that cite this headnote

CHICKASAW COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT, HON. JOHN KELLY LUTHER
Attorneys and Law Firms
ATTORNEY FOR APPELLANT: MARK T. FOWLER, JACKSON
ATTORNEYS FOR APPELLEES: LEWIS W. BELL, ROBERT H. PEDERSEN, JACKSON
BEFORE CARLTON, P.J., WESTBROOKS AND C. WILSON, JJ.
Opinion

C. WILSON, J., FOR THE COURT:

*1 ¶1. Daniel Anderson filed this civil action against Jerome Salaam and Salaam’s employer, Tri-State Expediting Services Inc. Anderson alleged that Salaam, while acting as an agent or employee for Tri-State, negligently caused an automobile accident on August 31, 2012, just outside of Okolona, Mississippi. As a result of the accident, Anderson alleged damages of $16,578.36 for medical bills, $27,000 for lost wages, and unspecified damages for pain and suffering.

¶2. On August 5, 2018, a Chickasaw County jury allocated 25% fault to Salaam and Tri-State and 75% fault to Anderson and determined that Anderson suffered $9,000 in total damages. On April 13, 2018, the Circuit Court for the Second Judicial District of Chickasaw County entered a final judgment and ordered Salaam and Tri-State to pay Anderson $2,250 ($9,000 x 25%) based on the jury’s verdict allocating 25% fault to Salaam and Tri-State. On April 18, 2018, Anderson moved for a judgment notwithstanding the verdict, for an additur, or, alternatively, for a new trial. The circuit court denied Anderson’s post-trial motion on June 4, 2018, and on June 26, 2018, Anderson filed a notice of appeal from the final judgment and from the circuit court’s denial of his post-trial motion. Aggrieved with the amount of the jury’s damages award, Anderson raises two issues on appeal, which we will encompass in one: whether the trial court abused its discretion in denying his motion for an additur or alternatively, for a new trial.1

¶3. After a thorough review of the record, we affirm the circuit court’s denial of Anderson’s post-trial motion.

FACTS
¶4. The facts of this case originate from an automobile accident on August 31, 2012, involving Anderson and Salaam on Highway 32 just outside of Okolona, Mississippi. At the time of the accident, Anderson worked for Orkin. Anderson and his passenger, Orkin employee Steven Tracey, were driving Anderson’s Orkin-owned pickup truck eastbound on Highway 32. Anderson had missed his next customer’s location and was looking for a place to turn around. Salaam, carrying a trailer full of furniture behind an 18-wheeler under lease from Tri-State, had been following Anderson eastbound on Highway 32 since he left his last checkpoint in Houston, Mississippi. As Anderson attempted a left turn, the front-right (passenger) side of Salaam’s truck collided with the left side of Anderson’s truck just behind the driver’s door. Anderson’s truck came to rest in the private drive on the north side of Highway 32. Salaam’s cab came to rest in the westbound lane of Highway 32. Salaam’s trailer sprawled both the westbound and eastbound lanes of the highway.

¶5. Anderson alleged that Salaam, while acting as an agent or employee for Tri-State, negligently caused the automobile accident, resulting in bodily injuries and damages to Anderson. Salaam and Tri-State conversely alleged that Anderson’s negligence proximately caused and/or contributed to the automobile accident.

Liability Evidence
*2 ¶6. At trial, Anderson relied on testimony from Salaam and Mississippi Highway Patrol investigating officer Wesley Kelley to contend that Salaam caused the accident when he attempted to pass Anderson in a no-passing zone. Officer Kelley’s accident report indicated that Salaam violated the rules of the road by improperly attempting to pass and overtake Anderson’s vehicle, based on Officer Kelley’s finding that Salaam’s tractor-trailer came to rest across the solid yellow center line of Highway 32. In contrast, Salaam repeatedly denied that he attempted to pass Anderson’s vehicle and stated that he only moved into the no-passing zone in an attempt to avoid a collision with Anderson’s vehicle. Salaam also stated that he believed Anderson was driving erratically.

¶7. Anderson also relied on testimony from accident reconstruction expert Jason Walton. Anderson retained Walton to develop the liability theory that Salaam had attempted to improperly pass Anderson in a no-passing zone. Walton, however, actually contradicted Anderson’s “improper passing” theory. Based on his extensive experience as an accident reconstruction expert, Walton opined (1) that Salaam was not trying to pass or overtake Anderson; (2) that Officer Kelley incorrectly indicated on his accident report that Salaam was trying to pass Anderson; and (3) that instead, the accident occurred because Salaam was following too closely to avoid hitting Anderson’s vehicle. While Walton concluded that Anderson did not cause the accident, he qualified his opinion on the assumption that Anderson was not distracted while using a cellphone at the time of the accident.2

¶8. Salaam and Tri-State relied on Salaam’s testimony and the testimony of witness Steven Tracey to contend that Anderson negligently caused the accident when he signaled to make a right turn before abruptly turning left. Salaam testified that just before the accident, Anderson nearly slowed to a complete stop, signaled right to turn into a driveway on the eastbound side of the road, then suddenly turned left. According to Salaam, he moved into the westbound lane of Highway 32 to avoid Anderson upon Anderson’s slowing and signaling a right turn. Salaam further testified that he could see Anderson holding and using a cellphone just prior to and during the accident. Tracey, who was riding with Anderson when the accident occurred, disputed Anderson’s testimony that Tracey was asleep prior to and leading up to the time of the accident. Tracey testified that prior to the accident, he and Anderson were looking for directions and had concluded that they had missed their turn. Tracey also stated that Anderson was in fact on his cellphone, and that while on the cellphone, Anderson abruptly made a left turn to turn around.

¶9. After hearing the trial testimony and evidence, the jury unanimously found that both Anderson’s and Salaam’s negligence proximately caused the accident. The jury allocated 25% fault to Salaam and Tri-State and 75% fault to Anderson.

Damages Evidence
¶10. Anderson testified that at the time of the accident, he hit his head against the glass, but that the impact was not hard enough to break the glass, to cause bleeding, or to knock him out. He described his mental and physical state as being “on an adrenaline rush,” and he neither reported nor complained of any injuries to Officer Kelley, who testified that Anderson seemed uninjured. At the scene of the accident, Officer Kelley neither called an ambulance nor reported an injury in the accident report. Around midnight the day of the accident, however, Anderson presented to the emergency room because he “started just tightening up and tensing up to the point [he] could not move at all.”

*3 ¶11. Anderson received the following treatment as a result of the August 31, 2012 accident:
09/01/2012 Dr. Gallaher at the North Mississippi Medical Center diagnosed cervical strain and restricted Anderson to lifting no more than 25 pounds for four days. X-rays showed no fractures, dislocations, or destructive bone processes.
09/03/2012 Either Dr. Bolten or Dr. Shafer at the North Mississippi Medical Center ordered a CT scan of Anderson’s cervical and thoracic spine, which showed no acute traumatic changes in the thoracic spine. The treating physician diagnosed back muscle spasm and cervical strain, prescribed pain medications, and ordered two days’ work restrictions.
09/04/2012 Dr. Bell at Family & Urgent Care Clinic diagnosed thoracic and cervical strain and prescribed medications.
09/10/2012 Dr. Bell diagnosed cervical and thoracic strain and continued medications.
09/17/2012 Dr. Bell diagnosed thoracic strain and spasm and continued medications.
09/25/2012 Dr. Bell diagnosed thoracic strain, continued medications, and ordered a referral.
10/05/2012 Dr. Mitias saw Anderson upon referral from Dr. Bell. Dr. Mitias noted that Anderson did not take his pain medications, that x-rays showed no fractures, and that the diagnosis was cervical strain. He prescribed therapy for two weeks, administered anti-inflammatory injections, and released Anderson to work full-time with light duty.
10/16/2012 Dr. Mitias reviewed Anderson’s cervical spine MRI report which showed no pathology that correlated with Anderson’s symptoms. Dr. Mitias diagnosed muscle sprain or strain, prescribed medications for muscle spasm and inflammation, and ordered continued therapy for two weeks.
10/30/2012 Dr. Mitias noted that Anderson’s condition had improved by 85% and ordered two weeks of physical therapy.
11/13/2012 Dr. Mitias injected occipital blocks and steroids for muscular neck pain.
11/20/2012 Dr. Mitias concluded that Anderson could return to work full-time without restrictions because diagnostic studies were normal, and because Dr. Mitias could find nothing objectively to support Anderson’s pain complaints. Since Dr. Mitias could do nothing more to combat Anderson’s injuries, he referred Anderson to a neurosurgeon—Dr. Brophy—for a second opinion.
12/04/2012 Dr. Brophy concluded that Anderson did not require surgery and that Anderson’s condition had improved by 90%. Dr. Brophy released Anderson with no work restrictions effective December 5, 2012.
09/06 – 11/12/2012 In total, Anderson attended physical therapy 24 times over nine weeks and four days at Crossroads Rehab Services, Inc.

¶12. After December 4, 2012, Anderson did not seek further medical treatment for any injury relating to the accident. Although he was temporarily disabled from August 31, 2012, to December 4, 2012, Anderson suffered no permanent physical impairment from the accident.

¶13. At trial, Anderson alleged $16,578.36 in medical bills resulting from injuries sustained in the accident and lost wages totaling $27,000. As proof of pain and suffering, Anderson offered his testimony, his wife’s testimony, his treating physician Dr. Mitias’s testimony, and his medical records, which reflected treatment for physical pain in his neck and back. At trial, Anderson acknowledged that he sustained no disc injuries, nerve injuries, or broken bones, and he confirmed that all of the treatment he received related to muscle injury. Anderson’s wife corroborated Anderson’s testimony with regard to his pain and suffering. Dr. Mitias, via deposition testimony, recounted Anderson’s treatment history, and testified to a reasonable degree of medical probability that (1) Anderson suffered a temporary period of disability during his treatment period; (2) Anderson would not suffer any permanent physical impairment as a result of the accident; (3) the accident caused the pain; and (4) that his services in the amount of $1,853.36 were both necessary and reasonable under the circumstances. Dr. Mitias further testified that based on his medical experience, he would expect Anderson’s pain eventually to fully improve. Dr. Mitias opined that the kind of pain Anderson complained of would not affect Anderson’s ability to return to his pre-accident job full-time. According to Dr. Mitias, Anderson no longer needed pain medicine, muscle relaxers, or physical therapy after his last visit.

*4 ¶14. Regarding lost wages, Anderson provided his tax returns for 2011, 2012, and 2013. Anderson reported $22,276 in wages in 2011 for the tax period before the accident, $17,486 in 2012, and $1,248 in 2013. Anderson contended he was entitled to recover the difference in wages between 2011 and 2012 and between 2011 and 2013, which he alleged totaled $27,000. On cross-examination, Anderson admitted that he was making $3,000 per month during the three-month period between the August 31, 2012 accident and December 4, 2012, the day Dr. Brophy released Anderson with no work restrictions.

¶15. Salaam and Tri-State contested Anderson’s damages evidence via cross-examination of Anderson’s witnesses. Salaam and Tri-State argue on appeal that Anderson “failed to prove by a preponderance of the evidence that all of his claimed medical expenses, all of his claimed lost wages and all of his claimed pain and suffering were proximately caused by the accident.”

¶16. The jury determined that Anderson suffered $9,000 in total damages. The trial court ordered Salaam and Tri-State to pay Anderson $2,250 (25% of $9,000) based on the jury’s verdict allocating 25% fault to Salaam and Tri-State. Aggrieved with the amount of the jury’s damages award, Anderson moved for a judgment notwithstanding the verdict, for an additur, or, alternatively, for a new trial. The trial court denied Anderson’s post-trial motion. Thereafter, Anderson filed an appeal. He asks this Court to determine whether the trial court abused its discretion in denying his motion for an additur or, alternatively, for a new trial.

ANALYSIS
[1]¶17. “The motion for an additur and its mirror motion, one for a remittitur, are variants of the motion for a new trial, going solely to the issue of damages.” Cade v. Walker, 771 So. 2d 403, 407 (¶9) (Miss. Ct. App. 2000). With regard to a motion for a new trial, our supreme court has said:
The grant or denial of a motion for a new trial is and always has been a matter largely within the sound discretion of the trial judge. The credible evidence must be viewed in the light most favorable to the non-moving party. The credible evidence supporting the claims or defenses of the non-moving party should generally be taken as true. When the evidence is so viewed, the motion should be granted only when upon a review of the entire record the trial judge is left with a firm and definite conviction that the verdict, if allowed to stand, would work a miscarriage of justice. Our authority to reverse is limited to those cases wherein the trial judge has abused his discretion.
Green v. Grant, 641 So. 2d 1203, 1207-08 (Miss. 1994); see Craig v. State, No. 2018-KA-00452-COA, ––– So.3d ––––, –––– (¶13), 2019 WL 2513868, at *3 (¶13) (Miss. Ct. App. June 18, 2019) (stating that when reviewing the denial of a motion for new trial, appellate courts will disturb the verdict only when it is against the overwhelming weight of the evidence).

[2]¶18. To the extent Anderson contends the jury’s allocation of fault was against the overwhelming weight the evidence, warranting a new trial, we disagree. Although the jury heard evidence that Salaam was not maintaining proper distance when following Anderson, the jury also weighed testimony that Anderson was talking on his cell phone when the accident occurred and that Anderson was using his right turn signal before suddenly turning left. The evidence presented at trial thus supports the jury’s apportionment of fault such that the verdict was not against the overwhelming weight of the evidence. Therefore, the trial court did not abuse its discretion in denying Anderson’s motion for a new trial on this issue.

*5 [3] [4] [5]¶19. In reviewing a trial court’s grant or denial of an additur, this Court’s standard of review is likewise limited to an abuse of discretion. Maddox v. Muirhead, 738 So. 2d 742, 743 (¶5) (Miss. 1999); Rodgers v. Pascagoula Pub. Sch. Dist., 611 So. 2d 942, 945 (Miss. 1992). Further, when this Court reviews the action of the jury after the trial court has refused to grant a new trial on the question of damages, “the question then becomes whether the verdict was either so excessive or inadequate as to shock the conscience and to indicate bias, passion and prejudice on the part of the jury, or, whether the jury failed to respond to reason.” Cade, 771 So. 2d at 407.

¶20. A trial court’s authority to impose an additur is found in Mississippi Code Annotated section 11-1-55 (Rev. 2004), which reads as follows:
The supreme court or any other court of record in a case in which money damages were awarded may overrule a motion for a new trial or affirm on direct or cross appeal, upon condition of an additur or remittitur, if the court finds that the damages are excessive or inadequate for the reason that the jury or trier of the facts was influenced by bias, prejudice, or passion, or that the damages awarded were contrary to the overwhelming weight of credible evidence. If such additur or remittitur be not accepted then the court may direct a new trial on damages only. If the additur or remittitur is accepted and the other party perfects a direct appeal, then the party accepting the additur or remittitur shall have the right to cross appeal for the purpose of reversing the action of the court in regard to the additur or remittitur.
Thus, pursuant to this statute, an additur may be awarded: (1) if the jury was influenced by bias, prejudice, or passion; or (2) if the damages awarded were contrary to the overwhelming weight of credible evidence. Rodgers, 611 So. 2d at 944.

[6]¶21. The Mississippi Supreme Court discussed these two standards in Green:
Though stated in different terms, these two standards have long been regarded as saying essentially the same thing. The overwhelming weight of credible evidence standard is an objective one. Trial courts apply this standard by reference to the law on recoverable damages when applied to the evidence before them. We review such matters on appeal for abuse of discretion. The bias, prejudice or passion standard is purely circumstantial one. Obviously we will have no way of knowing what was in the jury’s mind. What we do though is have our trial courts look at the amount of the verdict and, by comparison of the evidence, in certain cases hold that the amount is so low that it could only have been returned by a jury influenced impermissibly by bias, prejudice or passion.
Green, 641 So. 2d at 1208 (quoting Odom v. Roberts, 606 So. 2d 114, 119-20 n.5 (Miss. 1992) (overruled on other grounds)). “Evidence of corruption, passion, prejudice, or bias on the part of the jury is an inference, if any, to be drawn from contrasting the amount of the verdict with the amount of the damages.” Cade, 771 So. 2d at 407-08 (¶11). We are therefore tasked with contrasting the jury’s verdict here with Anderson’s proof regarding damages to determine whether the trial court abused its discretion.

¶22. The trial court instructed the jury—as the “sole judges of the credibility of the witnesses and the weight and worth of their testimony”—to consider the following elements in determining the amount of Anderson’s damages:
1. Past, present, and future physical pain and suffering and resulting emotional and mental anguish, if any;
*6 2. All reasonable and necessary medical expenses which have been incurred;
3. Physical impairment and disability and resulting effect on Anderson’s life and lifestyle; and
4. Loss of wages and any loss wage earning capacity.
The record reveals that Anderson alleged $16,578.36 in medical bills from injuries sustained in the accident and lost wages totaling $27,000. As proof of pain and suffering, Anderson presented proof at trial that included his testimony, his wife’s testimony, his treating physician Dr. Mitias’s testimony, and his medical records, which reflected treatment for physical pain in his neck and back. Salaam and Tri-State contested Anderson’s damages evidence via cross-examination of Anderson’s witnesses.

¶23. The jury awarded $9,000 in total damages without regard to fault, as instructed. The jury then allocated 25% fault to Salaam and Tri-State and 75% fault to Anderson, and after a reduction for Anderson’s portion of fault, the trial court entered judgment against Salaam and Tri-State for $2,250 ($9,000 x 25%).

[7]¶24. Anderson relies on a general line of decisions granting additurs where the jury award was either less than the medical bills or equal to or greater than the medical bills, but which left nothing for pain or suffering or for lost wages.3 According to Salaam and Tri-State,
[t]he jury could have reasonably concluded, based on a reading of the evidence in the light that is most favorable to Defendant Salaam, that Plaintiff Anderson did not prove that all of his medical bills were for treatment that was necessary and causally connected to the accident. Likewise, based on a similar reading of the evidence, the jury could have reasonably concluded that Plaintiff Anderson had not proved by a preponderance of the evidence that he had sustained a loss of wages in the amount that he claims.
While we acknowledge that “[e]vidence of corruption, passion, prejudice, or bias on the part of the jury is an inference, if any, to be drawn from contrasting the amount of the verdict with the amount of the damages,” we also acknowledge that “[e]ach case involving the issue of an additur must necessarily be decided on its own facts.” Cade, 771 So. 2d at 407-08 (¶11); Green, 641 So. 2d at 1208.

¶25. In Green v. Grant, Green put on disputed testimony that as a result of a car accident, which Grant admitted was her fault, she incurred $2,199.25 in medical expenses and missed 76 hours of work resulting in lost income of $1,330.58. Green also offered proof concerning past, present, and future pain and suffering stemming from the accident. Significant contradictory evidence was presented that Green was not seriously injured as a result of the accident. The jury awarded Green $2,000 in damages. The trial court denied her motion for an additur or alternatively, for a new trial. On appeal, our supreme court likewise refused to grant an additur, reasoning that
the extent of Green’s injuries, and the amount, reasonableness and necessity of her damages are disputed by the parties. “When testimony is contradicted, this Court will defer to the jury, which determines the weight and worth of testimony and the credibility of the witness at trial.” Odom, 606 So. 2d at 118 (citing Stubblefield v. Walker, 566 So. 2d 709, 712 (Miss. 1990) and Motorola [Communications and Electronics, Inc. v. Wilkerson], 555 So. 2d [713] at 723 [ (Miss.1989) ]).
*7 Green, 641 So. 2d at 1209.

[8] [9]¶26. “Additurs represent a judicial incursion in to the traditional habitat of the jury, and therefore should never be employed without great caution.” Rodgers, 611 So. 2d at 945. Awards fixed by jury determination are not merely advisory and will not under the general rule be set aside “unless so unreasonable in amount as to strike mankind at first blush as being beyond all measure, unreasonable in amount and outrageous.” Id. “This is because the amount of damages awarded is primarily a question for the jury.” Id.

[10]¶27. Here, the “amount, reasonableness and necessity” of Anderson’s damages were contested by the parties. See Green, 641 So. 2d at 1209. The jury determined the weight and worth of the testimony, the credibility of the witnesses at trial, and the reasonableness and necessity of Anderson’s damages and concluded that Anderson suffered $9,000 in total damages. We “will not substitute our factual findings for that of the jury in a contest of credibility,” and as such, we find that the verdict was not so inadequate “as to shock the conscience and to indicate bias, passion and prejudice on the part of the jury.” Roberson v. State, 19 So. 3d 95, 105 (¶25) (Miss. Ct. App. 2009); Cade, 771 So. 2d at 407 (¶11). Accordingly, the trial court did not abuse its discretion, and its decision to deny Anderson’s post-trial motion for additur or, in the alternative, for a new trial should be upheld.

¶28. AFFIRMED.

BARNES, C.J., CARLTON AND J. WILSON, P.JJ., GREENLEE, WESTBROOKS, TINDELL, LAWRENCE AND McCARTY, JJ., CONCUR.
McDONALD, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.
All Citations
— So.3d —-, 2019 WL 4632020

Footnotes

1
Because Anderson does not actually challenge the sufficiency of the evidence in either his post-trial motion or his appellate brief, we restrict our analysis to whether the trial court erred in denying his motion for an additur or alternatively, for a new trial on damages.

2
At trial, both parties introduced evidence that the other was on his cellphone at the time of the accident. Although Salaam testified that “[he] never talk[s] on [his] phone in any vehicle,” he admitted that he was on his commercial headset—which, by law, “commercial contractors … are allowed to use” while driving—prior to the accident. Anderson unequivocally denied that he was on his cellphone at any time, but his passenger, Steven Tracey, contradicted Anderson on this point.

3
See, e.g., Maddox, 738 So. 2d at 745 (¶¶10-11); Harvey v. Wall, 649 So. 2d 184, 189 (Miss. 1995).