Lexington, Ky. (February 23, 2021) – On February 5, 2021, the Kentucky Court of Appeals issued an opinion in Allen v. Wheeler, 2021 Ky. App. Unpub. LEXIS 95, 2021 WL 406308, that raised several interesting issues affecting personal injury actions. The heart of the appeal was whether to affirm a jury verdict awarding the plaintiff zero damages, after determining the defendant was at fault for his injuries.

In Allen, the plaintiff suffered an infection after a hemorrhoid surgery and blamed the defendant surgeon for mismanaging the infection. The first trial ended in a mistrial. At the conclusion of the second trial, the jury assessed fault equally to the plaintiff and defendant, but awarded no damages. The plaintiff appealed. The defendant filed a cross-appeal challenging the trial court’s earlier ruling of a mistrial.

The Kentucky Court of Appeals affirmed the verdict awarding zero damages. The court acknowledged that, under Kentucky law, an award of zero damages for pain and suffering is not necessarily inadequate, even where fault was not at issue and medical expenses were awarded. For example, Kentucky appellate courts have affirmed zero-dollar verdicts when: the plaintiff initially claimed to be uninjured and did not immediately seek medical treatment, Bledsaw v. Dennis, 197 S.W.3d 115, 117-18 (Ky. App. 2006); the plaintiff’s initial complaints of pain were contradicted by medical records, Bayless v. Boyer, 180 S.W.3d 439, 445-46 (Ky. 2005); and there was evidence from which a jury could have concluded that the plaintiff had aggravated a pre-existing condition, Miller vs. Swift, 42 S.W.3d 599 (Ky. 2001); Spalding v. Shinkle, 774 S.W.2d 465, 466-67 (Ky. App. 1989). In contrast, the court had previously reversed a verdict with a “meager” pain and suffering award because it was “not supported by the evidence of record.” Hazelwood v. Beauchamp, 766 S.W.2d 439 (Ky. App. 1989).

Allen was unique in that the plaintiff had failed to timely itemize his medical expenses, meaning that the jury was not presented with medical bills and was only authorized to award pain and suffering damages. The Allen court noted this was a case of first impression in Kentucky, because the jury was only asked to award damages for pain and suffering and chose to make no award, despite finding the defendant at fault. Based on these facts, the Court of Appeals determined that earlier Kentucky cases, which held that a zero-dollar pain and suffering verdict is permissible if a jury awards medical expenses, were distinguishable. Accordingly, the Allen court determined that, although the jury could certainly have reached a contrary conclusion, there was evidence to support the verdict.

A second issue on appeal was whether the trial court erred in granting a mistrial. Shortly before trial, the plaintiff’s wife voluntarily dismissed her loss of consortium claims, leaving her husband as the only plaintiff. At trial, defense counsel posed the following question to the plaintiff’s wife, “[a]nd in fairness, Mrs. Allen, you were a plaintiff in this case until last week, weren’t you? And you dismissed your claim?” Upon motion of the plaintiff, the trial court granted a mistrial.

On appeal, the Court of Appeals agreed that the question was highly prejudicial to the plaintiff. In fact, it determined this single question raised a “big red flag” to the jury that the plaintiff had already received some money in the case. Although the Court of Appeals was unaware of any precedent involving a similar question, it determined a mistrial was appropriate based on a single improper question or statement posed by counsel.