In July 2007, a Clark County jury awarded Jenee Fahndrich $25,000 for her economic damages but a giant goose egg for her noneconomic damages. Thanks to a recent ruling by the Washington Court of Appeals (Division Two), however, Fahndrich will now have a second day in court on the issue of damages.

Fahndrich had the misfortune of being involved in two different car accidents occurring seven months apart.

The first incident occurred in April 2000 when Linda Williams pulled out from a parking lot without looking and collided with Fahndrich’s car, resulting in whiplash injuries. The next day, Fahndrich started treating for head, neck and back pain with a chiropractor, who five months later referred her to a neurologist when her neck pain and headaches didn’t resolve. In October 2000, the diagnosis reached by the neurologist – myofascial pain syndrome – was confirmed by Fahndrich’s primary care physician.

The second collision occurred the following month (November 2000) when Shelly Mullins rear-ended a stopped car in which Fahndrich was riding as a passenger. Although the low-speed impact caused no property damage, Fahndrich’s head was reportedly jolted back and forth.

Fahndrich later sued Williams and Mullins for damages in Clark County Superior Court. When the case went to trial, the plaintiff testified how she had suffered debilitating headaches, one to five days a week, ever since the first accident, and how they had affected her work, career choices and social life. This evidence was corroborated by her family and friends, who testified that to their knowledge, Fahndrich had only experienced and complained about headaches since April 2000.

Significantly, the only medical testimony at trial was presented by Fahndrich. Although her treating doctors couldn’t reach a complete consensus regarding diagnosis – some said myofascial pain syndrome while others said TMJ – they all agreed that she suffered pain. Neither defendant offered any evidence to dispute that Fahndrich suffered pain, though Mullins did choose to quarrel over whether her accident had caused the alleged TMJ problems.

The jury ultimately awarded Fahndrich $25,000 in economic damages, consisting of $22,500 for the first accident and $2,500 for the subsequent one. (It’s unclear whether these sums included both medical bills and income loss.) But as for Fahndrich’s pain and suffering, the verdict form contained a zero next to noneconomic damages.

Under CR 59(a)(7), a new trial may be ordered when there is “no evidence or reasonable inference from the evidence to justify the verdict.” Fahndrich later moved for a new trial on this ground, arguing that there was no evidence (or reasonable inference therefrom) that she wasn’t entitled to damages from pain and suffering. (Aren’t double negatives wonderful?) When the trial court disagreed, Fahndrich timely appealed.

At the outset, Division Two acknowledged the reluctance of appellate courts to “interfere” with a jury’s damage award since fixing the amount of damages is usually “within the jury’s province.” It further observed that an abuse of discretion standard is used when reviewing a trial court’s ruling on a motion for new trial. The issue, said the court, is whether sufficient evidence, viewed in the light most favorable to the nonmoving party, supports the verdict.

Tipping its hand somewhat, Division Two proceeded to analyze the Washington Supreme Court’s decision in Palmer v. Jensen, 132 Wn.2d 193 (1997). In that case, the high court ruled that the jury’s failure to award general damages was contrary to the evidence under the following circumstances:

• For over a year after the accident, the plaintiff had been treated with pain medication and physical therapy for neck and low back pain, headaches, and sleeping difficulties.

• The plaintiff’s medical witnesses corroborated her symptoms with specific testimony (e.g., that her neck and back were “very tender” and “very uncomfortable,” and that her low back pain was “constant” and “varie[d] in intensity from dull to sharp”).

• The defendants didn’t introduce any evidence at trial disputing the plaintiff’s damages.

Turning to the record in Fahndrich’s case, the Court of Appeals noted that she had presented “extensive evidence” of her pain and suffering, with no contradictory evidence from the defendants. More specifically:

• The plaintiff, along with her family and friends, had testified about the life-altering changes resulting from both accidents.

• The treatment that Fahndrich sought for her pain from multiple providers was “virtually continuous” for the six-year period between the first accident and trial.

• While Fahndrich’s treating providers may have disagreed on the label for her subjective complaints (i.e., neck pain and headaches), the defendants didn’t “seriously challenge” that they were caused by the two accidents.

• The $25,000 award for special damages belied any notion that the jury had found Fahndrich’s injuries to be “minimal,” and thus not warranting a general damages award.

In short, based on the foregoing, Division Two ultimately said the jury’s conclusion that Fahndrich had suffered no pain or suffering was unsupported by the evidence; that the trial court had abused its discretion by denying her new trial motion; and that Fahndrich, like the plaintiff in Palmer v. Jensen, supra, deserved a new trial on damages.

But Fahndrich v. Williams, 147 Wn. App. 302 (2008), does not stand for the proposition that a new trial in a personal injury case is appropriate whenever the jury awards only economic damages to the plaintiff. To land back on earth with a thud, one need only review two recent cases which the Court of Appeals briefly discussed in its opinion. See Gestson v. Scott, 116 Wn. App. 616 (2003) (general damages properly denied where plaintiff presented no evidence that emergency room visit accompanied by “pain, suffering or inconvenience”); and Lopez v. Salgado Guadarama, 130 Wn. App. 87 (2005) (jury could deny noneconomic damages where pain complaints not medically supported and defendants presented medical testimony that plaintiff should have enjoyed swift recovery).

In my view, Fahndrich v. Williams also serves as an indirect reminder that we plaintiff’s lawyers are not miracle workers. For whatever reason, both defendants chose to not present any contradictory medical evidence or otherwise dispute that Fahndrich had suffered pain. But more often than not, the defense aggressively defends even modest injury claims by, among other ways, retaining hired guns under CR 35 to refute the nature and extent of the claimant’s injuries. In that situation, if you don’t have compelling lay and medical testimony to support your client’s claim for general damages, then maybe settlement, and not trial, is your best option.