McGowan v. Massey

Cite as 2017 Ark. App. 318

ARKANSAS COURT OF APPEALS
DIVISION III

No. CV-16-942

Opinion Delivered May 17, 2017

HELEN LOUISE MCGOWAN APPEAL FROM THE POPE
COUNTY CIRCUIT COURT
APPELLANT [NO. 58CV-15-450]
V. HONORABLE DENNIS CHARLES
SUTTERFIELD, JUDGE
MISTY MASSEY, INDIVIDUALLY
AND AS PARENT AND NEXT AFFIRMED
FRIEND OF B.A.C., A MINOR

APPELLEE

DAVID M. GLOVER, Judge
Appellant Helen McGowan appeals the Pope County Circuit Court judgment in the

amount of $279,158.16 to appellee Misty Massey. She presents two arguments: (1) the

circuit court’s findings regarding causation were not established by a reasonable probability

and (2) the judgment was excessive. We affirm.

In October 2015, Massey filed a complaint against McGowan alleging that on July

24, 2014, McGowan failed to stop her vehicle at a stop sign, causing a collision with Massey’s

vehicle and injuring Massey and her minor daughter, B.A.C. Massey asserted the collision

and resulting injuries to her and her daughter were due to McGowan’s negligence; she

requested damages for her past medical expenses and lost wages, her future medical expenses,
Cite as 2017 Ark. App. 318

her pain and suffering, and B.A.C.’s soft-tissue injuries and neck pain. McGowan failed to

timely answer Massey’s complaint; Massey requested a default judgment, which was granted

December 4, 2015. After a bench trial on damages held April 26, 2016, the circuit court

awarded judgment in the amount of $279,158.16 to Massey, and $500.00 to B.A.C. 1 A final

order and judgment was filed July 13, 2016.

I. Causation of Injuries

McGowan first challenges the sufficiency of the evidence of causation of Massey’s

injuries, arguing it was speculative that Massey’s injuries—specifically her headaches, fatigue,

low-back, neck, and shoulder pain—were caused by the July 2014 vehicle collision. Citing

Davis v. Kemp, 252 Ark. 925, 481 S.W.2d 712 (1972), she contends the law requires more

than a mere possibility that certain injuries resulted from negligence; a reasonable probability

must be established.

McGowan is precluded from mounting a challenge to the proximate causation of

Massey’s injuries, as liability was established by the default judgment. In Jones v. McGraw,

374 Ark. 483, 288 S.W.3d 623 (2008), our supreme court held that while a defendant is

entitled to a hearing on damages after a default judgment has been entered, she is not entitled

to challenge her liability at that hearing by attempting to dispel proximate causation. A

defaulting defendant is permitted to challenge proof regarding the amount of damages

1
McGowan does not appeal the $500.00 judgment in B.A.C.’s favor.

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claimed; however, the damages hearing does not provide a second chance for a defaulting

defendant to defend on liability, which would include proximate causation. Id. McGowan’s

right to challenge proximate causation was forfeited when she failed to answer Massey’s

complaint. Therefore, we affirm on this point.

II. Excessive Verdict

McGowan next contends Massey’s award of $279,158.16 is excessive. When an

award of damages is alleged to be excessive, this court reviews the proof and all reasonable

inferences most favorably to the appellee and determines whether the verdict is so great as

to shock the conscience of the court or demonstrate passion or prejudice on the part of the

jury. Vaccaro Lumber v. Fesperman, 100 Ark. App. 267, 267 S.W.3d 619 (2007). In

determining whether the amount of damages is so great as to shock the conscience of the

court, we consider such elements as past and future medical expenses, permanent injury,

loss of earning capacity, scars resulting in disfigurement, and pain, suffering, and mental

anguish. Id.

Here, there are three components of damages—(1) past special damages (past medical

expenses and lost wages); (2) future medical special damages; and (3) pain and suffering.

Massey asked for and received $16,214.72 in past medical damages and lost wages.

McGowan does not contest the $225.00 in lost wages on appeal, and Massey submitted

copies of her medical bills to support the amount of her past medical expenses.

Future medical expenses do not require the same degree of certainty as past medical

expenses. Matthews v. Rodgers, 279 Ark. 328, 651 S.W.2d 453 (1983). It is sufficient for

the court to consider future medical expenses if a physician testifies the appellee might need

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further medical procedures and appellee still has pain. Id. Here, Dr. Davis set forth (1) the

need for Massey to be treated for the remainder of her life for her headaches, as there was

no cure; and (2) the necessity of epidural injections two to three times per year for her

herniated disc for the duration of her life or, if that conservative treatment does not provide

relief, a discectomy. Based on a life expectancy of 44.73 more years, a conservative estimate

of Massey’s treatment for her headaches is $26,838.00. Regarding her back injury, Massey

opted to request the less expensive $50,000 surgical intervention (rather than the injections

over the course of her lifetime, which, at the most conservative, would total almost

$90,000). Massey’s conservative damages for her past and future medical expenses and lost

wages totaled $93,052.72, which is what the circuit court awarded. There was no evidence

offered to rebut these calculations.

As for damages for pain and suffering, the circuit court awarded Massey

$186,105.44—twice her special-damages award. Unrebutted testimony was presented

regarding the daily pain Massey endures as a result of her headaches, for which there is no

cure, only treatment for the symptoms. Both Massey and her husband testified as to how

Massey has changed since the accident—she is not able to enjoy outdoor activities as she

used to do, she is at times confined to her bed because of her headaches, and she is no longer

the person she was prior to the accident. Additionally, Massey is in pain due to her herniated

disc, and while surgery might relieve her pain, if she chose to undergo only steroid

injections, they are not a cure to her pain, but only a treatment. Massey presented

unrebutted proof she suffered permanent injuries that will cause her pain and discomfort,

and she is no longer able to be as active as she was prior to the accident. We cannot say the

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total judgment of $279,158.16 is so great as to shock the conscience of this court. See Smith

v. Galaz, 330 Ark. 222, 953 S.W.2d 576 (1997) ($300,000 award not excessive).

Affirmed.

ABRAMSON and GLADWIN, JJ., agree.

Frye Law Firm, P.A., by: William C. Frye, for appellant.

Taylor & Taylor Law Firm, P.A., by: Andrew M. Taylor and Tasha C. Taylor, for

appellee.

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