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Sharp v. Whitworth

Court of Appeals of Oklahoma, Division III

August 4, 2017

NICKOLAS LEE SHARP, Plaintiff/Appellee,
KELLY LYNN WHITWORTH, Defendant/Appellant.

          Mandate Issued: 09/05/2017


          James E. Dunn, Scott B. Hawkins, JAMES DUNN & ASSOCIATES, P.L.L.C., Oklahoma City, Oklahoma, for Plaintiff/Appellee,

          A. Mark Smiling, Shena E. Burgess, SMILING, SMILING & BURGESS, Tulsa, Oklahoma, for Defendant/Appellant.

          Barbara G. Swinton, Judge

         ¶1 Defendant/Appellant Kelly Lynn Whitworth (Defendant) appeals the trial court's order granting, in part, Plaintiff/Appellee Nickolas Lee Sharp's (Plaintiff) motion for new trial. Below, the jury found in favor of Plaintiff on liability, but did not award any damages. The trial court ordered a new trial on damages only, but directed the parties to meet and confer regarding their willingness to reach an agreement regarding liability and punitive or exemplary damages, specifically ordering the parties to discuss the possibility of Defendant admitting liability and Plaintiff withdrawing the claim for punitive damages upon retrying the case. Because we find that the trial court did not abuse its discretion in granting a new trial, we affirm.


         ¶2 Plaintiff and Defendant were involved in a motor vehicle collision on September 7, 2012. Plaintiff filed an action in Oklahoma County against Defendant seeking damages for negligence as well as punitive damages. A jury trial was held on March 22, 2016. The evidence and testimony at trial showed that on the date of the collision, Defendant was driving in the slow lane on southbound Interstate 35 in Edmond, Oklahoma. Defendant's speed was a disputed issue at trial. Plaintiff, through his expert witness, John Smith, an accident reconstructionist, opined that Defendant was traveling between 85 and 95 miles per hour. Defendant testified that she was likely traveling around 70 or 75 miles per hour, though she did not know for sure. Defendant did not dispute that she changed lanes, ultimately rear-ending the Plaintiff's vehicle. Plaintiff testified that his vehicle was sent across several lanes of traffic, and eventually hit the concrete barrier, flipping the vehicle on its side.

         ¶3 Plaintiff testified that he immediately felt pain in his back following the collision. At trial, he described the amount of pain that he felt while he was being treated at the scene. Plaintiff's wife testified that when she received a call from the accident scene, she could hear her husband screaming in pain. As a result of the collision, Plaintiff sustained a fracture of his L1 vertebra. In months following the accident, Plaintiff was treated by a neurosurgeon, and underwent physical therapy for his back. According to records of his neurosurgeon, Plaintiff reached maximum medical improvement, and Plaintiff concluded treatment with the neurosurgeon. Plaintiff testified that although the pain levels in his back had improved since the accident, the pain is still lingering. He also testified that even though he is physically able to do certain activities, he is in pain by the end of the day and could not do all of the things that he wanted to do with his family. Additionally, Plaintiff testified that he was able to work with no accommodations, and could not think of anything that he could not do the day of trial that he could do prior to the collision. Plaintiff stated that he was able to mow and edge the yard, play basketball with his children, and ride four wheelers. However, Plaintiff also testified that his back "feels like it's on fire all the time, " and that his back hurts every day.

         ¶4 Plaintiff and Defendant each presented testimony of medical expert witnesses. Defendant's expert, Dr. Sami Framjee, testified that the Plaintiff "may have some soreness", but nothing else needed to be done at this time and that Plaintiff was healed. He also testified that patients like Plaintiff "will have some aches and pains, " and that the effects of his compression fracture are "permanent in nature." Plaintiff's expert, Dr. Jerry Pritchett, testified that Plaintiff may need future medical treatment, but could not testify to this conclusion within a reasonable degree of medical certainty.

         ¶5 The jury returned a verdict in favor of Plaintiff on his negligence claim, but awarded no damages. The jury also found that there was no reckless endangerment on the part of the Defendant, and therefore, found no punitive damages. After the jury verdict, Plaintiff filed a motion for new trial citing an inadequate damage award, pursuant to 12 O.S. § 651 (4), and that the verdict was not sustained by sufficient evidence or is contrary to law regarding injury permanency and past pain, pursuant to 12 O.S. § 651 (6). The trial court granted Plaintiff's motion in part, ordering a new trial on damages only. The order also directed the parties to meet and confer regarding the possibility of Defendant admitting liability if Plaintiff withdrew his claim for punitive damages. The record indicates that the parties did not meet pursuant to the court's order, and Defendant filed the instant appeal.


         ¶6 In Capshaw v. Gulf Insurance Company, 2005 OK 5, ¶ 7, 107 P.3d 595, 600, the Court describes the appellate review for the grant of a motion for new trial:

A motion for new trial is addressed to the sound discretion of the trial court. When a trial court grants a new trial and its decision is appealed, we will indulge every presumption in favor of that decision's correctness. In reviewing a trial court's grant of new trial, the standard of review an appellate court must apply is whether the trial court abused its discretion. Because a trial court's discretion is broad, its ruling will not be disturbed by the reviewing tribunal in the absence of a ...

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