Pinney v. Carrera

2019 UT App 12
THE UTAH COURT OF APPEALS
K ATHLEEN PINNEY ,
Appellee,
v.
R ICARDO C ARRERA,
Appellant.
Opinion
No. 20170045-CA
Filed January 10, 2019
Third District Court, Salt Lake Department
The Honorable Paige Petersen
No. 150900750
Barbara K. Berrett and Kyle C. Thompson, Attorneys
for Appellant
Blake Johnson and Ron J. Kramer, Attorneys
for Appellee
JUDGE D AVID N. M ORTENSEN authored this Opinion, in which
JUDGES K ATE A PPLEBY and JILL M. POHLMAN concurred.
MORTENSEN, Judge:
¶1 	This case stems from a car accident in which Defendant
Ricardo Carrera ran a stop sign and struck Plaintiff Kathleen
Pinney’s 	vehicle. 	Subsequently, 	Plaintiff 	filed 	suit, 	claiming
personal injuries. At trial, Defendant made three separate oral
motions for judgment as a matter of law—each on a discrete
point of law. One of those motions was granted, and two were
denied. 	At 	the 	close 	of 	his 	case-in-chief, 	Defendant 	again
renewed the third motion for judgment as a matter of law
related to Utah’s no-fault tort threshold, but the court again
denied the motion. Prior to submission of the case to the jury,
Defendant also objected to the trial court’s refusal to give a

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20170045-CA 	2 	2019 UT App 12
requested jury instruction. The jury returned a verdict in favor of
Plaintiff, awarding $300,000 in general damages. Defendant then
filed a motion for judgment notwithstanding the verdict, or
alternatively, for a new trial, 	which the 	trial court denied.
Defendant appeals and we affirm.
BACKGROUND1
¶2 	Plaintiff’s vehicle was struck by Defendant’s vehicle after
Defendant failed to stop at a stop sign. Plaintiff brought a civil
action 	against 	Defendant 	for 	damages 	resulting 	from 	the
accident. 	The 	parties 	engaged 	in 	discovery, 	and 	Plaintiff
produced approximately $11,000 in chiropractic bills.
¶3 	At trial, Plaintiff elected not to seek an award of economic
damages but instead chose to focus on non-economic damages
associated with her herniated disc. Plaintiff argued to the jury
that, based on her permanent injury, she should be compensated
$50 to $75 per day for pain and suffering until she reached the
age of eighty.
¶4 	In addition to her own testimony, Plaintiff called several
witnesses 	to 	testify 	on 	her 	behalf. 	Her 	chiropractor
(Chiropractor) testified to Plaintiff’s injuries, stating that she had
a herniated disc; that the disc injury was “permanent”; and that
it would “plague” her for the rest of her life. Chiropractor also
testified that with physical therapy, Plaintiff was able to “get
fairly close to normal range of motion. We couldn’t ever get 100
1. “On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.
We present conflicting evidence only as necessary to understand
issues raised on appeal.” USA Power, LLC v. PacifiCorp, 2016 UT
20, ¶ 8 n.3, 372 P.3d 629 (cleaned up).

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20170045-CA 	3 	2019 UT App 12
percent, and we made her very comfortable. We were able to get
rid of a lot of the symptoms. . . . [but the scar tissue is] not going
to go away.” He stated that during “five re-exams through the
course 	of 	her 	treatment,” 	he 	was 	able 	to 	restore 	most 	of
Plaintiff’s bodily function, but not all of it. Additionally, Plaintiff
submitted, and the trial court admitted, MRI2 results, which
Chiropractor discussed and which showed disc bulges and a
disc herniation.
¶5 	Additionally, Plaintiff’s daughter testified to Plaintiff’s
limitations and inability to perform the same tasks that she did
prior to the accident. Her daughter stated that she witnessed
Plaintiff having difficulty picking up small children and that
Plaintiff had been unable to ride an amusement park ride.
Furthermore, Plaintiff’s friend, with whom she had lived for
sixteen months following the accident, testified concerning the
negative effect Plaintiff’s injuries had on Plaintiff’s life.
¶6 	At the close of Plaintiff’s case-in-chief, Defendant made
three separate oral motions for judgment as a matter of law. The
first motion argued that Plaintiff had not carried her burden of
demonstrating 	sufficient 	evidence 	of 	Defendant 	causing 	the
accident. The trial court denied that motion. The second motion
argued 	that 	Plaintiff 	had 	not 	introduced 	any 	evidence 	of
economic damages, including the chiropractic costs, future costs
of surgery, or any other future economic damages, and when
Plaintiff stipulated that she was not seeking such damages, the
motion was granted by the trial court. The third motion argued
that Plaintiff failed to introduce evidence sufficient to satisfy the
2. 	An 	MRI 	is 	“[a] 	type 	of 	medical 	imaging 	that 	uses 	the
characteristic behavior of protons when placed in powerful
magnetic fields to make images of tissues and organs.” Magnetic
Resonance Imaging, Taber’s Cyclopedic Medical Dictionary (21st
ed. 2009).

Pinney v. Carrera
20170045-CA 	4 	2019 UT App 12
threshold 	requirement 	set 	forth 	in 	Utah 	Code 	section
31A-22-309(l)(a). Defendant’s bases for the third motion were
that (1) because the second motion for judgment as a matter of
law—alleging that no economic damages were introduced by
Plaintiff—had been granted, so too should the third motion, and
(2) Plaintiff had not presented expert testimony demonstrating
that a permanent impairment rating had been given to Plaintiff
based 	upon 	“objective 	findings.” 	The 	trial 	court 	denied
Defendant’s third motion.
¶7 	At the close of his case, Defendant renewed his third
motion for judgment as a matter of law. The trial court again
denied the motion, ruling that the issue of whether Plaintiff was
entitled to an award of general damages should go to the jury.
¶8 	The jury was instructed that it could consider certain
factors in awarding non-economic damages. Those factors were
“(1) the nature and extent of injuries; (2) the pain and suffering,
both mental and physical; (3) the extent to which [Plaintiff] has
been prevented from pursuing her ordinary affairs; (4) the extent
to which [Plaintiff] has been limited in her enjoyment of life; and
(5) whether the consequences of these injuries are likely to
continue, and for how long.” The jury was also instructed that its
verdict was not to be rendered upon the basis of any passion or
prejudice toward anyone.
¶9 	Finally, Defendant objected to the trial court instructing
the jury on causation by utilizing the version published in the
second edition of the Model Utah Jury Instructions (MUJI 2).3
Defendant asked the court to employ a different instruction
which included the word “proximate.” The court declined and
3. 	See 	Model 	Utah 	Jury 	Instructions 	2d 	CV209 	(Advisory
Comm. On 	Civil 	Jury 	Instructions 	2018), 	available 	at
http://www.utcourts.gov/resources/muji.

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instructed the jury using the MUJI 2 version. The case was
submitted to the jury, which returned a verdict in favor of
Plaintiff, awarding general damages in the amount of $300,000.
¶10 	Defendant filed a motion for judgment notwithstanding
the verdict, or, in the alternative, a motion for a new trial. The
motion 	for 	judgment 	notwithstanding 	the 	verdict 	renewed
Defendant’s third motion for judgment as a matter of law. The
motion for a new trial was sought on two bases: (1) that the
$300,000 verdict was not supported by the evidence, and (2) that
the verdict was excessive and was a product of passion or
prejudice against Defendant, who had not been present at trial.4
The trial court denied Defendant’s motions. Defendant appeals.
ISSUES AND STANDARDS OF REVIEW
¶11 	Defendant 	brings 	several 	issues 	on 	appeal. 	First, 	he
argues that the trial court erred in denying his third motion for
judgment as a matter of law based upon Plaintiff’s alleged
failure to meet the threshold requirement set forth in Utah Code
section 31A-22-309(1)(a). “Appellate courts review the grant or
denial 	of 	a 	motion 	for 	[judgment 	as 	a 	matter 	of 	law] 	for
correctness.” Proctor v. Costco Wholesale Corp., 2013 UT App 226,
¶ 6, 311 P.3d 564.
¶12 	Second, 	Defendant 	contends 	correspondingly 	that 	the
trial 	court 	erred 	in 	denying 	his 	motion 	for 	judgment
notwithstanding 	the 	verdict 	based 	upon 	Plaintiff’s 	alleged
failure to introduce any evidence that could meet the threshold
requirement set forth in Utah Code section 31A-22-309(1)(a). We
review 	a 	trial 	court’s 	denial 	of 	a 	motion 	for 	judgment
4. The reason for his absence was not disclosed to the jury during
trial or otherwise in the record.

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20170045-CA 	6 	2019 UT App 12
notwithstanding the verdict for correctness. Neff v. Neff, 2011 UT
6, ¶ 49, 247 P.3d 380.
¶13 	Third, Defendant contends that the trial court abused its
discretion in denying his motion for a new trial based on
excessive damages. See Utah R. Civ. P. 59(a)(5)–(6). We review a
trial court’s denial of a motion for a new trial for abuse of
discretion. Crookston v. Fire Ins. Exch., 817 P.2d 789, 799 (Utah
1991).
¶14 	Lastly, Defendant claims that the trial court abused its
discretion in refusing to allow Defendant’s jury instruction—
which used the phrase “proximate cause”—to be given. “We
review a trial court’s refusal to give a jury instruction for abuse
of discretion.” USA Power, LLC v. PacifiCorp, 2016 UT 20, ¶ 75,
372 P.3d 629 (cleaned up).
ANALYSIS
I. Threshold Requirement of Section 31A-22-309(1)(a)
¶15 	The 	parties 	dispute 	whether 	section 	31A-22-309(1)(a)
requires a plaintiff to demonstrate, at trial, that she has met the
threshold requirement set forth in the statute. Utah Code section
31A-22-309(1)(a) requires plaintiffs to whom the statute applies
to 	demonstrate, 	at 	trial, 	that 	they 	have 	met 	the 	threshold
requirement set forth in the statute. The relevant section states,
A person who has or is required to have direct
benefit coverage under a policy which includes
personal 	injury 	protection 	may 	not 	maintain 	a
cause of action for general damages arising out of
personal injuries alleged to have been caused by an
automobile accident, except where the person has
sustained one or more of the following:

Pinney v. Carrera
20170045-CA 	7 	2019 UT App 12
(i) death;
(ii) dismemberment;
(iii) permanent disability or permanent
impairment based upon objective findings;
(iv) permanent disfigurement; or
(v) medical expenses to a person in excess of
$3,000.
Utah Code Ann. § 31A-22-309(1)(a) (LexisNexis 2017). A plain
reading of the statute and reference to appellate precedent
confirms that such a threshold must be met.5
¶16 	“When interpreting a statute, we look first to the plain
and ordinary meaning of its terms.” Anadarko Petroleum Corp. v.
Utah State Tax Comm'n, 2015 UT 25, ¶ 11, 345 P.3d 648; see also
Reynolds v. Bickel, 2013 UT 32, ¶ 10, 307 P.3d 570 (stating that
“[t]he 	best 	evidence 	of 	the 	legislature’s 	intent 	is 	the 	plain
language of the statute itself” (cleaned up)). Therefore, despite
Plaintiff’s assertion that the statute “does not require a plaintiff
to prove any elements at trial,” the plain language of this section
requires a plaintiff to demonstrate, most often at trial because
causation and the amount of damages are frequently rife with
issues of fact,6 that he or she meets at least one of the five
5. The parties have both briefed this case assuming that section
31A-22-309(1)(a) applies. We follow this pattern but note that
circumstances may exist in which a plaintiff is not required to
have 	coverage 	under 	section 	31A-22-309(1)(a), 	such 	as 	an
out-of-state driver whose policy does not provide first party no-
fault benefits.
6. Clearly, the applicability of the threshold and the issue of
whether a plaintiff meets that threshold can be decided on
summary judgment in appropriate situations. See McNair v.
(continued…)

Pinney v. Carrera
20170045-CA 	8 	2019 UT App 12
threshold requirements. The phrase “may not maintain a cause
of action” expressly provides that to ultimately prevail on a
cause of action in which section 31A-22-309(1)(a) is operative, a
party must show that he or she “has sustained” one of the five
threshold injuries.
¶17 	Furthermore, our supreme court concluded long ago that
an injured party is precluded from maintaining an action for
general damages except where the threshold requirement of
section 31A-22-309(1)(a) is met. See Allstate Ins. Co. v. Ivie, 606
P.2d 1197, 1200 (Utah 1980).7 More recently, in an unpublished
opinion, this court affirmed a trial court’s use of a special verdict
form 	that 	required 	the 	jury 	to 	establish, 	“as 	a 	threshold
requirement,” that a plaintiff had incurred more than $3,000 in
medical expenses in order to “maintain[]” a personal injury
cause of action. Vaughn v. Anderson, 2005 UT App 423U, para. 1;
see also Warren v. Melville, 937 P.2d 556, 560 (Utah Ct. App. 1997)
(holding that “Utah’s no-fault statute does not abrogate all
remedies for general damages . . . . Instead, the statute only bars
a cause of action for general damages if the plaintiff fails to meet
the threshold requirements”).
(…continued)
Farris, 944 P.2d 392, 395 (Utah Ct. App. 1997); Warren v. Melville,
937 P.2d 556, 560 (Utah Ct. App. 1997).
7. Allstate Insurance Co. v. Ivie, 606 P.2d 1197 (Utah 1980), was
decided under section 31A-22-309’s predecessor, which is not
substantively different from the statute currently in effect. Id. at
1200. Compare Utah Code Ann. § 31A-22-309 (LexisNexis 2017),
with id. §§ 31-41-09, -11 (LexisNexis Supp. 1973). See also Bear
River Mutual Ins. Co. v. Wall, 1999 UT 33, ¶ 10, 978 P.2d 460
(discussing the existence of a tort threshold).

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20170045-CA 	9 	2019 UT App 12
¶18 	Curiously, the parties fail to cite C.T. ex rel. Taylor v.
Johnson, 1999 UT 35, 977 P.2d 479. In C.T., our supreme court
reviewed facts in a case in which a jury found that the plaintiff’s
medical expenses were only $339. Id. ¶ 3. Nevertheless, the trial
court allowed the jury to assess general damages, surmising that
because the legislature had provided in a different statute that
punitive damages could be assessed when the defendant was
found to have been intoxicated in the accident, the legislature
must have meant to allow general damages as well. Id. ¶¶ 5, 8;
see 	also 	Utah 	Code 	Ann. 	§ 78B-8-201 	(LexisNexis 	2012)
(establishing 	that 	an 	award 	of 	punitive 	damages 	may 	be
awarded against an intoxicated driver even if compensatory or
general damages are not proven). Our supreme court rejected
this assertion under a plain language analysis and held that the
punitive 	damages 	statute 	made 	no 	reference 	to 	section
31A-22-309(1) and therefore did not create an exception “to the
threshold requirements” of that statute. C.T., 1999 UT 35, ¶ 10.
Thus, C.T. recognizes the existence of a threshold requirement
imposed by section 31A-22-309(1) to maintain a personal injury
action where the statute applies.8 Id. Consequently, it appears to
us that the question of whether the threshold must be met before
general damages can be awarded has already been answered.
Therefore, 	Plaintiff 	is 	required 	to 	show 	that 	she 	met 	the
threshold requirements of the statute.
8. We further note that in C.T., the plaintiff attempted to argue
that since his first-party insurance carrier had paid $4,596 in
medical expenses, he met the threshold requirement as a matter
of law. See C.T. ex rel. Taylor v. Johnson, 1999 UT 35, ¶ 3 n.2, 977
P.2d 479. Our supreme court rejected this argument, sustaining
the understanding that the question of what medical expenses
are related to an accident is a factual determination, which,
under most circumstances, must be submitted to a jury. Id. ¶ 7
n.3.

Pinney v. Carrera
20170045-CA 	10 	2019 UT App 12
¶19 	Accordingly, we move to the crux of this case: whether
Plaintiff met that threshold.
II. Judgment as a Matter of Law
¶20 	Defendant first argues that the trial court erred in denying
Defendant’s third motion for judgment as a matter of law based
upon Plaintiff’s failure to meet the threshold requirement set
forth in Utah Code section 31A-22-309(1)(a).9 “We will affirm the
denial of a motion for [judgment as a matter of law] when a
review of the evidence in a light most favorable to the non-
moving 	party 	demonstrates 	that 	reasonable 	minds 	could
disagree with the ground asserted for [the motion].” Proctor v.
Costco Wholesale Corp., 2013 UT App 226, ¶ 6, 311 P.3d 564
(cleaned up).
9. More specifically, Defendant asserts that Plaintiff failed to
meet both relevant threshold requirements contained in the
statute: (1) medical expenses to a person in excess of $3,000; and
(2) permanent disability or permanent impairment based upon
objective 	findings. 	See 	Utah 	Code 	Ann. 	§ 	31A-22-309(1)(a).
Because Plaintiff meets the permanent impairment threshold
requirement, see infra ¶¶ 24–28, we need not analyze the medical
expenses 	threshold 	requirement. 	See 	Utah 	Code 	Ann.
§ 31A-22-309(1)(a) (stating that a person may maintain a cause of
action “for general damages arising out of personal injuries
alleged to have been caused by an automobile accident,” where
the person “has sustained one or more of the following: . . . (iii)
permanent 	disability 	or 	permanent 	impairment 	based 	upon
objective findings; . . . or (v) medical expenses to a person in
excess of $3,000” (emphasis added)). The parties raise, but we
need not decide, if expert testimony is required in determining
whether 	medical 	expenses 	were 	caused 	by 	the 	accident 	or
whether a plaintiff must prove that the amounts of medical
expenses claimed are reasonable.

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20170045-CA 	11 	2019 UT App 12
¶21 	Defendant 	contends 	that 	Plaintiff 	did 	not 	meet 	the
threshold 	requirement 	because 	a 	finding 	of 	permanent
impairment, for purposes of the statute, must be based on
“objective findings.” That is, Defendant asserts, to be “objective,”
the finding must be made by someone other than “a current
treating physician” and must be supported by expert opinion,
which Defendant asserts must be by way of an impairment
rating. A plain language analysis does not support Defendant’s
interpretation of the statutory language.
¶22 	“It is well settled that when faced with a question of
statutory interpretation, our primary goal is to evince the true
intent and purpose of the Legislature.” Marion Energy, Inc. v. KFJ
Ranch P'ship, 2011 UT 50, ¶ 14, 267 P.3d 863 (cleaned up). But if
the statutory language is ambiguous—meaning that “its terms
remain susceptible to two or more reasonable interpretations
after 	we 	have 	conducted 	a 	plain 	language 	analysis”—we
“generally resort to other modes of statutory construction and
seek 	guidance 	from 	legislative 	history 	and 	other 	accepted
sources.” See id. ¶ 15 (cleaned up).
A. 	Definitions
¶23 	In this case, the operative statutory terms are “permanent
disability or permanent impairment,” and “objective findings.”
See Utah Code Ann. § 31A-22-309(1)(a)(iii) (LexisNexis 2017). A
plain language analysis of these terms reveals no ambiguity. We
address each term individually.
¶24 	First, 	we 	must 	define 	permanent. 	“Permanent,” 	as 	it
applies to disability or impairment, has been defined by our
supreme court. The court stated that “a disability is deemed to
be permanent whenever it is founded upon conditions which
render it reasonably certain that it will continue throughout the
life of the person suffering from it.” Ralston v. Metropolitan. Life
Ins. Co., 62 P.2d 1119, 1123 (Utah 1936) (cleaned up). Applying

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20170045-CA 	12 	2019 UT App 12
this 	definition 	to 	the 	statute 	yields 	only 	one 	reasonable
interpretation, and accordingly, the statute is unambiguous.
Therefore, 	we 	need 	not 	seek 	additional 	sources to 	find 	its
meaning. See Marion Energy, 2011 UT 50, ¶ 15.
¶25 	Second, we must determine what constitutes permanent
“disability” or permanent “impairment.”10 Plaintiff submits—
and Defendant’s counsel conceded at oral argument—that we
10. 	Defendant 	argues 	that 	permanent 	impairment 	is
synonymous with permanent impairment rating, stating,
[A]lthough 	Plaintiff’s 	treating 	physician 	. 	. 	.
testified to the existence of a permanent injury to
Plaintiff in the form of a herniated disc, he never
characterized that injury as a permanent disability
or permanent impairment. . . . No other medical
experts testified on behalf of Plaintiff, and the
evidence demonstrated that she never received a
permanent impairment rating from any physician.
As a matter of law, Plaintiff thus failed to meet the
prerequisite 	that 	she 	sustained 	a 	permanent
disability or permanent impairment based upon
objective 	findings 	in 	that 	the 	only 	medical
professional who testified as to any permanent
condition that she claimed to have suffered could
not, 	as 	her 	treating 	physician, 	provide 	such
findings as a matter of law as recognized by Utah
case law and by his own testimony.
But 	the 	statute 	does 	not 	support 	such 	a 	reading. 	Section
31A-22-309(1)(a)(iii) does not refer to an impairment “rating.”
We decline to rewrite the statute to include such a term. While
impairment ratings may be ubiquitous in personal injury actions,
their 	frequent 	use 	is 	irrelevant 	in 	construing 	this 	statute.
Therefore, the fact that Chiropractor did not testify in terms of an
impairment rating is irrelevant.

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20170045-CA 	13 	2019 UT App 12
should apply a definition of impairment consistent with what is
found in the dictionary; that is, “[t]o diminish in function,
ability, or quality.”11 However, a more definitive answer is found
in Jones v. Transamerica Insurance Co., 592 P.2d 609 (Utah 1979),
overruled on other grounds by Bear River Mutual Ins. Co. v. Wall,
1999 UT 33, 978 P.2d 460.12 There, the court stated, “The benefits
contemplated by the [No-Fault] Act are phrased in terms of
‘disability’ not in terms of ‘physical impairment.’ The former is
generally understood to mean the inability to work, whereas the
latter refers to the loss of bodily function.” Id. at 611. Therefore,
based on either the dictionary definition submitted by Plaintiff
or the definition supplied in Jones, we conclude that the correct
definition of “disability” is the inability to work and the correct
definition of “impairment” is the loss of function.
¶26 	Third, we must define “objective finding.” “Objective” is
defined as “[o]f, relating to, or based on externally verifiable
phenomena, as opposed to an individual’s perceptions, feelings,
or intentions.” Objective, Black’s Law Dictionary (10th ed. 2014).
Defendant cites McNair v. Farris, 944 P.2d 392 (Utah Ct. App.
1997), to support his argument that a finding must be made by
someone other than the treating physician to be considered
11. 	See 	Impairment, 	Merriam-Webster, 	www.merriam-
webster.com/dictionary/impairment 	[https://perma.cc/7CUK-
95G5] (“to diminish in function, ability, or quality : to weaken
or make worse”).
12. We note that Jones involved an earlier version of section
31A-22-309(1), which did not include the term impairment, and
only referred to disability. See Jones v. Transamerica Ins. Co., 592
P.2d 609, 611 (Utah 1979), overruled on other grounds by Bear River
Mutual Ins. Co. v. Wall, 1999 UT 33, 978 P.2d 460; see also Utah
Code Ann. §§ 31-41-09, -11 (LexisNexis Supp. 1973).

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20170045-CA 	14 	2019 UT App 12
objective.13 We are not persuaded by this reasoning. In that case,
the plaintiff, McNair, allegedly suffered an injury and sued the
defendant under Utah Code section 31A-22-309(1)(a). Id. at 393.
McNair’s original complaint “mentioned no objective findings of
permanent 	disability 	or 	impairment” 	and 	claimed 	“ongoing
soreness in his foot,” but McNair was never examined by a
physician to determine whether he was permanently impaired.
Id. at 395–96. Consequently, the defendant moved for summary
judgment, 	and 	the 	court 	granted 	the 	motion, 	stating, 	“The
express language of [the statute] requires that any permanent
disability or impairment be based on objective findings. McNair
thus has the burden of demonstrating the permanency of his
injury with something more than his say so.” Id. at 395 (emphasis
added).
13. The McNair court points to a worker’s compensation case,
Rushton v. Gelco Express, 732 P.2d 109 (Utah 1986), which held
that when faced with conflicting testimony from a treating
physician and a non-treating physician, the factfinder need not
give preference to either physician, but as the factfinder, may
weigh 	the 	credibility 	of 	the 	witnesses 	and 	reach 	its 	own
conclusion. Id. at 112. Defendant points to Rushton to argue that
“objective findings” must be made by someone other than a
plaintiff’s treating physician. But Rushton did not involve the
threshold requirement set forth in Utah Code section 31A–22–
309(1)(a).
And at any rate, the McNair court also cited Cineas v.
Mammone, 636 A.2d 1071 (N.J. Super. Ct. App. Div. 1994), which
states, “The medical reports from plaintiff’s treating doctors
provided 	objective 	credible 	evidence 	sufficient 	to 	meet 	the
requirements of the verbal threshold statute.” Id. at 1077. Thus,
Defendant’s argument is meritless. If anything, McNair can be
read for the proposition that a plaintiff’s treating physicians’
testimony may constitute “objective” evidence.

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20170045-CA 	15 	2019 UT App 12
¶27 	So 	it 	is 	in 	this 	case. 	An 	“objective 	finding” 	of
permanent disability or permanent impairment need not be
established 	by 	a 	witness 	other 	than 	a 	current 	or 	past
treating 	physician. 	To 	be 	considered 	objective, 	a 	finding
need only be demonstrated through evidence other than the
plaintiff’s own subjective testimony. See id.; see also Mays v.
Alumnitec, 	Inc., 	64 	S.W.3d 	772, 	774 	(Ark. 	Ct. 	App. 	2001)
(acknowledging 	that 	objective 	findings 	are 	“those 	findings
which 	cannot 	come 	under 	the 	voluntary 	control 	of 	the
patient” (cleaned up)). While Utah Code section 31A-22-309(1)(a)
does not specify who needs to make the “objective findings”
regarding permanency—whether that be a medical doctor, an
expert 	witness, 	a 	layperson, 	or 	other—we 	need 	not 	reach
that issue here because the evidence, which was presented by an
expert 	witness, 	was 	clearly 	sufficient 	on 	these 	facts. 	We
also 	acknowledge 	that 	“objective 	findings” 	relate 	to 	a
permanent disability or a permanent impairment. We assume,
without 	deciding, 	that 	such 	a 	finding 	will, 	in 	most
circumstances, come by way of expert testimony.14 Typically—
except 	in 	obvious 	cases—where 	an 	alleged 	injury 	involves
medical factors beyond the ken of an ordinary lay person, expert
testimony is required. Beard v. K-Mart Corp., 2000 UT App 285,
¶ 16, 12 P.3d 1015.
¶28 	Such a reading is consistent with the term “objective
finding” as applied in other cases. See Broadhead v. Federal Express
Corp., No. 2:05-CV-806, 2007 WL 951544, at *1 (D. Utah Mar. 26,
2007) (recognizing that long-term disability plans governed by
14. 	We 	need 	not 	decide 	this 	issue 	because 	in 	this 	case
the 	relevant 	testimony 	came 	by 	way 	of 	opinion 	testimony
of 	Chiropractor, 	and 	Defendant 	has 	not 	challenged 	the
admission of Chiropractor’s testimony.

Pinney v. Carrera
20170045-CA 	16 	2019 UT App 12
ERISA15 define “objective findings” as “signs which are noted on
a test or medical exam and which are considered significant
anatomical, physiological or psychological abnormalities which
can be observed apart from the individual’s symptoms” and
may include, “Medical examination findings; Test results; X-ray
results; observation of anatomical physiological or psychological
abnormalities”); see also SAIF Corp. v. Lewis, 58 P.3d 814, 815 (Or.
2002) (noting that “[o]bjective findings in support of medical
evidence are verifiable indications of injury or disease that may
include, but are not limited to, range of motion, atrophy, muscle
strength and palpable muscle spasm. Objective findings do[] not
include physical findings or subjective responses to physical
examinations 	that 	are 	not 	reproducible, 	measurable 	or
observable” (cleaned up)).
B. 	Statutory Threshold
¶29 	With the plain language definitions set out, we now
analyze Defendant’s argument that Plaintiff did not demonstrate
the 	threshold 	injury 	of 	permanent 	disability 	or 	permanent
impairment through “objective findings,” as required by Utah
Code section 31A-22-309(1)(a)(iii).
¶30 	Based on the plain language definitions and relevant case
law, Plaintiff has met the statutory threshold through testimony
and 	other 	evidence 	at 	trial. 	Chiropractor 	testified 	that
Defendant’s crash into Plaintiff’s vehicle caused her to suffer a
permanent 	herniated 	disc 	in 	her 	back, 	that 	she 	would 	be
“plagued” by the injury for the rest of her life, and that the
herniated disc would not go away on its own and was a
permanent injury. Chiropractor also testified that with physical
therapy, Plaintiff was able to regain most bodily function, but
15. Employment Retirement Income Security Act of 1974, 29
U.S.C. §§ 1001–1461 (2012).

Pinney v. Carrera
20170045-CA 	17 	2019 UT App 12
not all of it. He stated that throughout “five re-exams through
the course of her treatment,” they were able to “get fairly close to
normal range of motion.” He further explained, “We couldn’t
ever get 100 percent, and we made her very comfortable. We
were able to get rid of a lot of the symptoms. . . . [but the scar
tissue is] not going to go away.”
¶31 	Furthermore, along with Chiropractor’s examinations and
treatment of Plaintiff, an MRI film was admitted into evidence
that showed the existence of the herniated disc injury to which
Chiropractor testified. Chiropractor determined—based on the
examinations, treatment, and MRI—that Plaintiff had suffered a
permanent 	impairment, 	and 	he 	testified 	to 	that 	effect.16 To
further corroborate Chiropractor’s determination, both Plaintiff’s
daughter and friend testified to “the changes and differences
that [Plaintiff] suffers from now because of her injuries.” They
described the “impact the crash has had on [Plaintiff’s] life. . . .
the limitations, pain, and other ways that the injuries affect
[Plaintiff] on a daily basis.”
¶32 	This type of testimony (1) shows permanence based on
Chiropractor’s statement that Plaintiff would be “plagued” for
the rest of her life; (2) demonstrates impairment because Plaintiff
suffered the loss of bodily function; and (3) is objective because
the 	impairment 	was 	determined 	after 	a 	number 	of
“reproducible, measurable or observable” exams, see SAIF Corp.
v. Lewis, 58 P.3d 814, 815 (Or. 2002), and was perceptible to those
other 	than 	the 	injured 	person—specifically, 	her 	treating
Chiropractor, her daughter, and her friend. The findings of a
permanent injury and its associated impairment have thus been
shown by “objective findings.” Accordingly, Plaintiff met the
threshold requirement of Utah Code section 31A-22-309(1)(a).
16. Defendant does not argue that an MRI or Chiropractor’s
interpretation of that MRI are not objective.

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20170045-CA 	18 	2019 UT App 12
And because the evidence demonstrated that reasonable minds
could disagree with the ground asserted for judgment as a
matter of law, the trial court did not err in denying Defendant’s
motion for judgment as a matter of law.
III. Judgment Notwithstanding the Verdict
¶33 	Next, Defendant contends that the trial court erred in
denying his motion for judgment notwithstanding the verdict
based upon Plaintiff’s failure to introduce any evidence that
could meet the threshold requirement set forth in Utah Code
section 	31A-22-309(1)(a). 	“On 	. 	. 	. 	a 	motion 	for 	judgment
notwithstanding the verdict, we will reverse the trial court’s
ruling only if, viewing the evidence in the light most favorable to
the 	prevailing 	party, 	we 	conclude 	that 	the 	evidence 	is
insufficient to support the verdict.” Utah Dep't of Transp. v. Target
Corp., 2018 UT App 24, ¶ 12, 414 P.3d 1080 (cleaned up), cert.
granted, 	425 	P.3d 	800 	(Utah 	2018). 	As 	discussed, 	Plaintiff
demonstrated at trial that she met the threshold requirement set
out in Utah Code section 31A-22-309(1)(a). See supra ¶¶ 29–32.
Therefore, the trial court did not err in denying Defendant’s
motion for judgment notwithstanding the verdict.
IV. Motion for a New Trial
¶34 	Third, Defendant claims that the trial court abused its
discretion in denying his motion for a new trial based on
excessive damages. See Utah R. Civ. P. 59(a)(5) (allowing for a
new trial when the verdict includes “excessive or inadequate
damages that appear to have been given under the influence of
passion or prejudice”); id. R. 59(a)(6) (allowing for a new trial
when 	there 	is 	“insufficiency 	of 	the 	evidence 	to 	justify 	the
verdict”). Juries are “generally allowed wide discretion in the
assessment of damages.” USA Power, LLC v. PacifiCorp, 2016 UT
20, ¶ 71, 372 P.3d 629 (cleaned up). “There is no set formula to
determine noneconomic damages such as pain and suffering, so

Pinney v. Carrera
20170045-CA 	19 	2019 UT App 12
the permissible minimum and maximum limits within which a
jury may operate for a given injury are presently far apart and
must continue to be widespread so long as pain and suffering
must be measured by money standards.” Judd v. Drezga, 2004 UT
91, ¶ 62, 103 P.3d 135 (cleaned up).
¶35 	“The trial court’s denial of a motion for a new trial will be
reversed 	only 	if 	the 	evidence 	to 	support 	the 	verdict 	was
completely lacking or was so slight and unconvincing as to make
the verdict plainly unreasonable and unjust.” Schreib v. Whitmer,
2016 	UT 	App 	61, 	¶ 	31, 	370 	P.3d 	955 	(cleaned 	up). 	Here,
Defendant’s argument fails because there was a reasonable basis
for the jury’s award of damages. The trial court specifically
identified the following facts in support of the jury’s award of
$300,000 in general damages: (1) testimony regarding Plaintiff’s
inability to do some of the things she used to be able to do;
(2) testimony 	regarding 	the 	permanent 	nature 	of 	Plaintiff’s
injury; and (3) Plaintiff counsel’s request for damages in an
amount ranging from $419,000 to $630,000.
¶36 	These facts gave the jury a reasonable basis upon which to
rely when it awarded damages to Plaintiff. So long as there is a
reasonable basis for the jury’s award of damages, a large award
does not equate to an improper one, see Judd, 2004 UT 91, ¶ 62,
nor 	one 	that 	is 	“given 	under 	the 	influence 	of 	passion 	or
prejudice,” see Utah R. Civ. P. 59(a)(5). While juries should not be
permitted 	to 	“arbitrarily 	ignore 	competent, 	credible 	and
uncontradicted evidence,” courts have long held that juries are
“not bound to slavishly follow the evidence and the figures
given by any particular witness. Within the limits of reason it is
[the jury’s] prerogative to place [its] own appraisal upon the
evidence 	which 	impresses 	[it] 	as 	credible 	and 	to 	draw
conclusions 	therefrom 	in 	accordance 	with 	[its] 	own 	best
judgment.” Even Odds, Inc. v. Nielson, 448 P.2d 709, 712 (Utah
1968); 	see 	also 	USA 	Power, 	2016 	UT 	20, 	¶ 	71 	(“We 	have
emphasized that juries are generally allowed wide discretion in

Pinney v. Carrera
20170045-CA 	20 	2019 UT App 12
the assessment of damages.” (cleaned up)). Where the jury heard
evidence that Plaintiff would be plagued by this painful injury
every day of her life, the verdict here is within the bounds of
reasonableness. Given that there was a reasonable basis for the
jury’s verdict awarding $300,000 in damages to Plaintiff, the trial
court did not abuse its discretion by denying a new trial.
V. Jury Instruction
¶37 	Lastly, Defendant claims that the trial court abused its
discretion in refusing to allow Defendant’s jury instruction—
which used the phrase “proximate cause”—to be given. “Abuse
of discretion may be present when a trial court relied on an
erroneous conclusion of law or where there was no evidentiary
basis for the trial court’s ruling.” USA Power, LLC v. PacifiCorp,
2016 UT 20, ¶ 75, 372 P.3d 629 (cleaned up).
¶38 	Defendant submitted his own jury instruction, entitled
“POST-EVIDENCE 	INSTRUCTIONS: 	PROXIMATE 	CAUSE.”
That proposed instruction stated,
A proximate cause of an injury is that cause which,
in natural and continuous sequence, produces the
injury and without which the injury would not
have occurred. A proximate cause is one which sets
in operation the factors that accomplish the injury.
The court rejected Defendant’s proposed instruction, and instead
gave an instruction in accordance with the MUJI 2, which stated,
I’ve instructed you before that fault is a wrongful
act or failure to act. You must also determine
whether a person’s fault caused the harm. As used
in the law, the word “cause” has a special meaning,
and you must use this meaning whenever you
apply the word. “Cause” means that:

Pinney v. Carrera
20170045-CA 	21 	2019 UT App 12
(1) the 	person’s 	act 	or 	failure 	to 	act
produced 	the 	harm directly 	or 	set 	in
motion events that produced the harm in
a natural and continuous sequence; and
(2) the person’s act or failure to act could be
foreseen 	by 	a 	reasonable 	person 	to
produce 	a 	harm 	of 	the 	same 	general
nature.
There may be more than one cause of the same
harm.
¶39 	Defendant argues that the MUJI 2 jury instruction was
legally insufficient in 	that it did not “expressly distinguish
between proximate cause and cause in fact, and, moreover,
simply use[d] the term ‘cause’ no matter what type of causation
[wa]s meant.”
¶40 	This 	argument 	fails 	because—other 	than 	the 	word
“proximate”—there 	is 	no 	substantive 	difference 	between
Defendant’s proposed instruction and the instruction given at
trial. See Raab v. Utah Ry. Co., 2009 UT 61, ¶ 23, 221 P.3d 219
(“[W]e use the term ‘proximate cause’ in its traditional sense,
that is, interchangeably with ‘legal cause.’”).17 If anything, the
MUJI 2 instruction is narrower than the instruction offered by
Defendant, 	since 	it 	includes 	the 	idea 	of 	foreseeability.
Accordingly, the trial court did not abuse its discretion by
17. Moreover, this argument is inadequately briefed. Defendant
fails to show, explain, or provide any evidentiary basis as to how
this allegedly insufficient instruction affected the outcome of the
trial. There is no allegation that the jury was misled by the
instruction in rendering its verdict.

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20170045-CA 	22 	2019 UT App 12
rejecting Defendant’s proposed instruction because it did not
erroneously advise the jury on the law.18
CONCLUSION
¶41 	The trial court did not err in denying Defendant’s third
motion for judgment as a matter of law because Plaintiff met the
threshold 	requirement 	set 	forth 	in 	Utah 	Code 	section
31A-22-309(1)(a). Likewise, the trial court did not err in denying
Defendant’s motion for judgment notwithstanding the verdict
based on the same reasoning. Further, it did not abuse its
discretion by denying Defendant’s motion for a new trial based
on excessive damages because there was a reasonable basis upon
which the jury based its verdict. Finally, the court did not abuse
its discretion by denying Defendant’s jury instructions because it
did not erroneously advise the jury on the law.
¶42 	Affirmed.
18. 	Furthermore, 	although 	not 	binding, 	we 	note 	that 	the
advisory committee notes to the MUJI 2 instruction state that
“[t]he term ‘proximate’ cause should be avoided. While 	its
meaning may be understood by lawyers, the lay juror may be
unavoidably 	confused 	by 	the 	similarity 	of 	‘proximate’ 	to
‘approximate.’” 	Model 	Utah 	Jury 	Instructions 	2d 	CV209
(Advisory Comm. On Civil Jury Instructions 2018), available at
http://www.utcourts.gov/resources/muji.