Ashley D. Gunno v. Kevin C. McNair ( 2016 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Ashley D. Gunno, FILED
Petitioner
November 17, 2016
released at 3:00 p.m.
vs) No. 15-0825 (Kanawha County 12-C-1188) RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Kevin C. McNair,
Respondent
MEMORANDUM DECISION
Petitioner Ashley D. Gunno appeals the order of the Circuit Court of Kanawha
County entered July 28, 2015, that denied her motion for a new trial. Petitioner was
injured in a car accident caused by Respondent Kevin C. McNair. On appeal, she
challenges the jury’s verdict awarding no damages for her injuries despite Respondent’s
admission of responsibility for the accident and a jury finding that Petitioner was injured
as a proximate result of the accident. Petitioner, by counsel Damon L. Ellis and Anthony
Majestro, filed a brief with this Court. Respondent, by counsel Geoffrey A. Haddad, filed
a response.
This Court has considered the record on appeal, the parties’ briefs, and their oral
arguments. Upon our review, we believe that this case satisfies the “limited
circumstances” requirement of Rule 21(d) of the Rules of Appellate Procedure and is
appropriate for a memorandum decision reversing the circuit court’s order. For the
reasons expressed below, the July 28, 2015, order is reversed and this matter is remanded
for further proceedings consistent with this decision.
On September 13, 2011, Petitioner and Respondent were involved in an
automobile accident in Kanawha County as Petitioner was driving home from work along
Route 119. As Petitioner approached the intersection of Route 119 and Oakwood Road, a
van driven by Respondent turned in front of her. Petitioner was unable to avoid colliding
with the van. The collision caused Petitioner’s car to spin around and hit a third vehicle.
As a result of this accident, Petitioner’s car was a total loss and Respondent’s vehicle
suffered heavy damage.
Petitioner was treated at the scene by emergency responders and was transported
to Charleston Area Medical Center for further evaluation. Petitioner testified that she told
her treating physicians of pain in her neck and that when the doctor moved her legs, she
1
experienced intense back and neck pain. After her release from the emergency room,
Petitioner went home and continued to experience pain and soreness, which kept her from
sleeping. She testified that the pain was miserable and that she could not move without
experiencing more pain.
Petitioner saw Dr. Matthew Walker, an orthopedic specialist, to address persistent
pain in her neck, which she described as radiating down her arms when she moved her
neck, back pain, and intermittent burning sensations. Dr. Walker examined her and
recommended one month off work for recovery. Dr. Walker also recommended physical
therapy, which she received, and use of a TENS unit for pain. Petitioner asserted that the
TENS unit provided only temporary relief. Dr. Walker ultimately discharged Petitioner
from the orthopedist because there was nothing left that could be done to treat her
symptoms.
Petitioner then sought treatment with Dr. Jay McClanahan, a chiropractor, for the
burning, aching, and throbbing pain she continued to experience in her neck and back.
She claimed that her neck pain was more severe than her back pain. Dr. McClanahan
ordered her to remain off work for three to four more weeks. Petitioner was treated by
Dr. McClanahan from October of 2011 through the spring of 2012, for a total of thirty
treatments. Dr. McClanahan found that Petitioner had decreased range of motion and
muscle spasms. While she was not completely pain free following her treatments, she
returned to work with restrictions and eventually was released to her normal work as a
nurse.
Petitioner claimed that she continued to feel pain while at work and at home. She
maintained a home therapy program, including use of a TENS unit. She later sought
treatment with the Holzer Clinic, where she received trigger point injections that initially
relieved the pain, but she claimed the pain eventually returned. She also returned to Dr.
McClanahan for another 10 to 15 treatments, concentrating on pain relief and increasing
her range of motion, but these treatments ended when Petitioner could not afford the cost
of treatment. Her pain continued, interfering with her care of her son, who was born after
the accident in 2014.
In June of 2012, Petitioner initiated this personal injury action against Respondent
for damages arising from the accident. At trial, Dr. McClanahan testified that Petitioner
suffered a permanent injury from the accident, one from which she will never fully
recover. In addition, Dr. McClanahan suggested that she will continue to suffer flare-ups
and that there is nothing she can do to prevent these. Petitioner’s husband, Rick Comer,
testified at trial about seeing the aftermath of the accident and about his wife’s pain and
suffering. He also confirmed that Petitioner was continuing to have problems with pain.
At the behest of Respondent, Dr. Bruce Guberman testified during the trial.
Respondent hired Dr. Guberman to review Petitioner’s medical records. He testified that
2
there was no evidence of pre-existing cervical or neck pain prior to the automobile
accident. He examined Petitioner on one occasion on May 29, 2013. Dr. Guberman
testified that at the time of this examination, Petitioner indicated that she was still
suffering from persistent cervical and lumbar strain from the accident. He testified that
Petitioner’s injuries were subjective and not supported by the objective diagnostic tests he
administered, which resulted in normal findings. Dr. Guberman did acknowledge that
Petitioner’s past medical records contained objective evidence of her pain and injury.
Dr. Guberman also testified that approximately one month after the automobile
accident, Petitioner fell. This was not initially reported to Dr. Guberman in the course of
his examination of her. At trial, Petitioner testified that she tripped and fell while bracing
herself, which resulted in increased and very intense neck pain. Dr. Guberman opined
that the character of Petitioner’s injuries and complaints changed after this fall.
Because Respondent admitted that he was responsible for the accident, liability for
the accident was not contested. As a result of a strategic trial decision, Petitioner chose
not to offer her medical bills into evidence or to seek recovery of the amount of the
medical bills or lost wages. Because no evidence was offered during Petitioner’s case on
the issues of past medical expenses, past lost wages, past vocational loss, future medical
expenses, future lost wages, and future vocational loss, Respondent moved mid-trial for
judgment in his favor on these issues. The trial court granted Respondent’s motion, and
Petitioner’s case went to the jury on two issues: (1) whether Petitioner was injured as a
proximate result of the automobile accident and, if so, (2) the amount of damages
Petitioner should be awarded for harms and losses, including, but not limited to, past
and/or future physical and mental pain and suffering, and reduced ability to enjoy life.
The jury deliberated and returned a verdict as follows: On the issue of whether the
petitioner was injured as a proximate result of the accident, the jury answered “Yes.” On
the second issue regarding the compensation to which Petitioner was entitled for harms
and losses, including, but not limited to past and/or future physical and mental pain and
suffering and reduced ability to enjoy life, the jury awarded $0 in damages. Immediately
after the jurors were polled and removed from the courtroom, Petitioner’s counsel argued
that the verdict did not follow the evidence. The circuit court directed the parties to file
post-trial motions.
Petitioner filed a written motion for a new trial, arguing that the jury’s verdict
awarding no damages for her past and future pain and suffering was wrong in light of the
jury’s finding that Petitioner was injured as a proximate result of the automobile accident.
Petitioner specifically argued that the jury’s verdict was inconsistent because while the
jury determined that Petitioner was injured, it awarded no damages for her pain.
Petitioner also argued that the verdict was inadequate. Respondent opposed the motion
for a new trial, arguing that the jury’s decision to award no damages for pain and
3
suffering was entitled to great deference and that the jury’s verdict was supported by
Respondent’s evidence.
The circuit court denied Petitioner’s motion for a new trial by order entered July
28, 2015. In its order, the circuit court found that there was not clear uncontroverted
evidence of Petitioner’s actual pecuniary loss, including medical bills and other damages.
Thus, the damages sought by Petitioner for her past and future pain and suffering were
indeterminate and unliquidated. The circuit court reasoned that because Petitioner chose
not to seek damages for her medical bills or other pecuniary loss, the jury’s award of no
damages to Petitioner should be entitled to great weight and deference. It is from the
court’s July 28, 2015, order that Petitioner now appeals.
We review the denial of a motion for a new trial as follows:
Although the ruling of a trial court in granting or denying a motion
for a new trial is entitled to great respect and weight, the trial court’s ruling
will be reversed on appeal when it is clear that the trial court has acted
under some misapprehension of the law or the evidence.
Syl. pt. 4, Sanders v. Georgia-Pacific Corp., 159 W. Va. 621, 225 S.E.2d 218 (1976). In
terms of inadequacy of the verdict, we have said:
In a civil action for recovery of damages for personal injuries in
which the jury returns a verdict for the plaintiff which is manifestly
inadequate in amount and which, in that respect, is not supported by the
evidence, a new trial may be granted to the plaintiff on the issue of damages
on the ground of the inadequacy of the amount of the verdict.
Syl. pt. 3, Biddle v. Haddix, 154 W. Va. 748, 179 S.E.2d 215 (1971).
While both Petitioner and Respondent present arguments on the inadequacy or
adequacy of the jury’s award of damages for Petitioner’s losses, we need not address this
issue. Instead, the core issue presented in this appeal is whether the jury verdict was
inherently inconsistent. While the lower court’s order denying a new trial does not
directly discuss any inconsistencies in the verdict, Petitioner did allege in her motion for
a new trial that the verdict was inconsistent. Instead of addressing these inconsistencies,
the circuit court’s order instead focused on the adequacy of the jury’s award of zero
dollars for Petitioner’s losses. “When jury verdicts answering several questions have no
logical internal consistence and do not comport with instructions, they will be reversed
and the cause remanded for a new trial.” Syl. pt. 1, Reynolds v. Pardee & Curtin Lumber
4
Co., 172 W. Va. 804, 310 S.E.2d 870 (1983).1 Petitioner argues that the jury’s finding
that Petitioner was injured as a result of the accident—an accident that Respondent
admits was his fault—is inconsistent with an award of zero damages for her losses.
In determining whether jury verdicts are inconsistent, “such inconsistency must
appear after excluding every reasonable conclusion that would authorize the
verdict.” Prager v. City of Wheeling, 91 W. Va. 597, 599, 114 S.E. 155, 156
(1922). While this Court has previously addressed alleged inconsistencies in jury
verdicts, this is an instance where the Court has been asked to examine the issue in the
context of an automobile accident, where a jury finds liability on the part of the defendant
but awards no damages. The Alabama Court of Civil Appeals recently examined an
almost factually identical scenario in Daniel v. Passmore, 998 So. 2d 1079 (Ala. Civ.
App. 2008). In Daniel, the plaintiffs, a wife and husband, were involved in an automobile
accident with the defendant. Id. at 1080. The jury returned a verdict in which it
determined that the defendant was liable for the automobile accident. Id. The jury
awarded $600 to the wife and $0 to the husband. Id. On appeal, the Alabama court found
that a jury verdict awarding $0 to the husband was inconsistent with the jury’s decision
regarding the defendant’s liability. Id. at 1081. The court reiterated that “‘where a jury in
a negligence action returns a verdict for the plaintiff but awards no damages such a
verdict is inconsistent as a matter of law. Thompson v. Cooper, 551 So. 2d 1030
(Ala.1989) (emphasis added). . . .’” Id. 989 So.2d at 1080. The jury verdict in the case at
bar is similarly inconsistent.
Recently, this Court examined an inconsistent verdict in Modular Building
Consultants of West Virginia, Inc. v. Poeria, Inc., 235 W. Va. 474, 774 S.E.2d 555
(2015). In Poeria, the jury determined that the defendant was negligent but that the
defendant did not breach its lease agreement. Id. at 479, 774 S.E.2d 560. On appeal, the
plaintiff argued that the jury’s findings were inconsistent because in order to be negligent,
the plaintiff would have had to have breached the lease agreement. Id. This Court
determined that the verdict was not inconsistent because specific disputed facts admitted
during trial could support the verdict. Id. at 479–80, 774 S.E.2d at 560–61.
The present case, as with the Daniel case, is easily distinguishable from Poeria.
Unlike Poeria, here there is no factual dispute that Respondent caused the accident and
that Petitioner suffered injuries as a result of that accident. While there may be dispute as
to whether the pain Petitioner experienced after her fall, which occurred about a month
after the accident, was attributable to the accident, it is uncontroverted that prior to the
fall, Petitioner experienced pain. Furthermore, Respondent’s expert witness
acknowledged that Petitioner’s injuries would cause pain.
1
The petitioner and respondent did not object to the instructions and do not raise
instructional error in this appeal.
5
In the present appeal, the jury resolved any questions of injuries by making a
finding that Petitioner was injured as a proximate result of the automobile accident. The
award of zero dollars in damages is inherently inconsistent with the finding that
Petitioner was injured as a proximate result of the accident. Petitioner’s past pain and
suffering is amply supported by her own testimony, her husband’s testimony and the
testimony of her treating chiropractor. We therefore conclude that Petitioner is entitled to
a new trial to determine her damages as a result of Respondent’s negligence.
For the reasons stated above, this Court reverses the July 28, 2015, order denying
Petitioner’s motion for a new trial, and we remand this case to the circuit court for a new
trial on damages.
Reversed and remanded.
ISSUED: November 17, 2016
CONCURRED IN BY:
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
CONCURRING AND WRITING SEPARATELY:
Chief Justice Menis E. Ketchum
DISSENTING AND WRITING SEPARATELY:
Justice Allen H. Loughry II
Chief Justice Ketchum, concurring:
The jury returned inconsistent interrogatory answers in the verdict form.
The first interrogatory asked if the plaintiff was injured as a proximate result of the car
wreck. The jury answered “yes.” However, the jury’s second interrogatory answer stated
that the plaintiff was entitled to zero damages for her injuries.
After the inconsistent interrogatories were returned, the plaintiff’s lawyers
did not request that the court “return the jury for further consideration of its answers” and
award damages based on its finding that the plaintiff was injured in the car wreck. See
6
W.Va.R.C.P. 49(b). If the plaintiff’s lawyers had requested the jury be required to further
deliberate, the court, in its discretion, could have returned the jury for further deliberation
on damages. Id.
Generally, any objections to the verdict form based on defect or irregularity
must be made prior to the jury’s dismissal. Syllabus Point 2, Combs v. Hahn, 205 W.Va.
102, 516 S.E.2d 506 (1999) (“Absent extenuating circumstances, the failure to timely
object to a defect or irregularity in the verdict form when the jury returns the verdict and
prior to the jury’s discharge, constitutes a waiver of the defect or irregularity in the
verdict form.”). The rationale for requiring an objection prior to the jury’s dismissal is
“in order to give the trial court the opportunity to correct any infirmity in the verdict
while correction is still possible.” State Farm Mut. Auto. Ins. Co. v. Weber, 767 S.W.2d
336, 338 (Mo.Ct.App.1989). If no objection is made prior to the jury’s dismissal, any
defect or irregularity is waived.
However, the failure to object to defects or irregularities is not applicable to
post-trial motions seeking relief based on the inadequacy of the damages awarded.
Syllabus Point 4, State ex rel. Valley Radiology, Inc. v. Gaughn, 220 W.Va. 73, 640
S.E.2d 136 (2006) (“The general rule of waiver established by this Court in Combs v.
Hahn, 205 W.Va. 102, 516 S.E.2d 506 (1999), which requires that any objections to the
verdict form based on defect or irregularity be made prior to the jury’s dismissal, is not
applicable to post-trial motions seeking relief based on the inadequacy of the damages
awarded.”). The Court explained its rationale for this holding as follows:
This is because a request for a new trial based on the
inadequacy of damages is not a procedural objection to the
verdict form, but a substantive objection to the amount of
damages awarded in view of the evidence presented and the
findings of the jury as to fault. Consequently, there is no
basis for invoking the waiver rule established by this Court in
Combs when the post-trial objection is solely to the adequacy
of the damages.
Id. at 78, 640 S.E.2d at 141.
Even if the plaintiff’s lawyers waived any defect in the verdict form, I still
would grant a new trial on damages. The defendant did not assert that the plaintiff failed
to object to the inconsistent interrogatory answers and that the plaintiff waived the right
to a new trial. Waiver was not argued before the trial court or before this Court in the
present appeal.
7
Loughry, J., dissenting:
The majority’s transparent attempt to “hide” its grossly erroneous
conclusion in a memorandum decision makes it even more important that the curtain be
pulled back to reveal their improper analysis and incorrect result. While I have not
previously hesitated to criticize the majority when its analysis bends to reach the result it
seeks, I seldom find the majority so willing to ignore our precedent for the sole purpose
of excusing the misguided strategies of parties and/or their counsel. In the instant matter,
the petitioner so misapprehended the strength of her case that she intentionally forewent
seeking special damages, hoping the jury would find the nature of her injury so
compelling that it would more than compensate her in general damages. When the jury
awarded her no damages, undoubtedly due to the hotly contested nature and extent of her
injury, she decried the verdict as inadequate. The majority, in a stunning invasion of the
jury’s province, rewards her miscalculation and strategical error with a “do-over” and
badly fumbles the law in the process. Accordingly, I respectfully dissent.
The petitioner was injured in an automobile accident for which the other
driver admitted liability. Immediately post-accident, she sought treatment at the
emergency room; she subsequently underwent physical therapy as well as treatment with
a chiropractor and neurologist for neck and back pain. However, the petitioner also
indisputably had pre-existing degenerative disc disease and a congenital condition
unrelated to the accident. More importantly perhaps, the petitioner fell approximately
one month after the accident, a fact that she did not fully disclose to at least one of her
medical providers nor to an independent medical evaluator. Prior to trial, the petitioner
withdrew her demand for all past and future special damages, including medical expenses
and lost wages, seeking only general damages for “past and/or future physical and mental
pain and suffering, and reduced ability to enjoy life.” The verdict form reflected a single
line for such damages, upon which the jury entered “0.”
Before discussing how the substantive law of this State compels upholding
the jury’s verdict, I pause to illustrate the utter mangling of the issues presented in the
majority’s decision. The majority concludes that, despite the petitioner plainly advancing
a challenge to the adequacy of the verdict, what she “meant” to challenge was an
inconsistency in the verdict. The majority proceeds to conclude that the verdict is
inconsistent simply because the jury found that whatever injury the petitioner suffered
was not worthy of a monetary award. The majority is wrong.
Assuming, arguendo, that the petitioner had challenged the verdict based
on an inconsistency, the very case law upon which the majority relies would actually
require it to find such challenge had been waived. In Modular Building Consultants of
West Virginia, Inc. v. Poerio, Inc., 235 W.Va. 474, 480 n.4, 774 S.E.2d 555, 561 n.4
(2015), we observed that a failure to object to the verdict while the jury is still empaneled
constitutes a waiver of a challenge to an inconsistent verdict. We observed that such
8
waiver constituted “additional grounds” for finding against the petitioner’s challenge to
the verdict inasmuch as its counsel did not object to the inconsistent verdict “at the time
the verdict was returned and before the jury was discharged.” Id. In support, we stated:
The Court has held that “[a]bsent extenuating circumstances,
the failure to timely object to a defect or irregularity in the
verdict form when the jury returns the verdict and prior to the
jury’s discharge, constitutes a waiver of the defect or
irregularity in the verdict form.” Syl. Pt. 2, Combs v. Hahn,
205 W.Va. 102, 516 S.E.2d 506 (1999). Moreover, “[t]he
right [to clarification of an irregular verdict] after waiver
cannot be reclaimed and revived by a motion for a new trial.”
Id. at 107, 516 S.E.2d at 511.
Poerio, 235 W.Va. at 480 n.4, 774 S.E.2d at 561 n.4. The petitioner herein
unquestionably made no such objection at the time the verdict was rendered in this
action.
However, this analysis regarding waiver of challenges to inconsistent
verdicts is wholly inapplicable because it is clear that the petitioner did not challenge the
inconsistency of the verdict, but rather the inadequacy of the verdict as reflected in her
assignments of error, briefs, and analysis. Even if the petitioner had not so characterized
her challenge, our prior decisions clearly demonstrate that an objection to a $0 award for
pain and suffering is a challenge to the adequacy of the verdict. Moreover, such
challenge is a substantive, rather than procedural, objection that requires an entirely
different analysis: “[A] request for a new trial based on the inadequacy of damages is not
a procedural objection to the verdict form, but a substantive objection to the amount of
damages awarded in view of the evidence presented and the findings of the jury as to
fault.” State ex rel. Valley Radiology, Inc. v. Gaughan, 220 W.Va. 73, 78, 640 S.E.2d
136, 141 (2006). This is precisely the argument advanced by the petitioner herein. To
the extent the distinction between inadequate and inconsistent verdicts is not obvious, this
Court explained the difference:
In contrast to Combs [v. Hahn, 205 W.Va. 102, 516 S.E.2d
506 (1999)] where the jury simply left two blanks without
any number on them at all, the jury in this case inserted a zero
on the lines designated on the verdict form for making an
award to compensate the Respondents for pain and suffering
and lost income. Whereas in Combs there was uncertainty
that remained following the dismissal of the jury due to the
incompleteness of the verdict form, in the case sub judice
there was no confusion as to what the jury intended to award.
9
Valley Radiology, 220 W.Va. at 77, 640 S.E.2d at 140. We likewise made a similar
distinction in Marsch v. American Electric Power Co., 207 W.Va. 174, 179-80 n.6, 530
S.E.2d 173, 178-79 n.6 (1999), wherein we observed, again contrasting Combs, that
[t]he defect in Combs was the jury’s failure to place any
dollar amount on the verdict form for general damages. In
the present case, a zero was placed on the appropriate lines
for the jury’s determination of damages, [therefore] . . . their
precise challenge on appeal is neither to the verdict form nor
any inconsistency of the jury verdict. Rather, their challenge
is to the inadequacy of the damages awarded by the jury,
which requires no trial objection to preserve the issue for
appellate review. In its allegations of waiver, Ohio Power
blurs the lines between three distinct issues: defective verdict
forms, inconsistency of the verdict, and inadequacy of the
damages.
Id. at 179-80 n.6, 530 S.E.2d at 178-79 n.6 (emphasis added). The majority confuses the
exact same issues, using the wrong analysis to reach a similarly wrong result.
Turning now to the actual substance of the petitioner’s appeal, the
petitioner maintains that she made a “tactical decision” not to introduce medical bills as
the result of a “popular” trend to relent on seeking recovery of medical expenses where
those costs are disproportionately small compared to the “severity” of the injury. The
petitioner cites a “plaintiff’s attorney” guide on damages in support of this trial strategy.
However, this misguided tactic was previously met with similar results. In Adkins v.
Foster, 195 W.Va. 566, 466 S.E.2d 417 (1995),1 the appellant introduced no out-of­
pocket expenses for past medical treatment or lost wages, and the jury returned a verdict
of $0. In discussing the jury’s verdict, we observed that the trial court had astutely noted:
. . . I think one of the problems the plaintiff had in this case
was that the plaintiff made no claim for any out-of-pocket
expenses and no claim for any lost wages which would set the
stage for this jury to see that there’s some—something of a
loss.
It was all dealing with future losses, and I just thought that
that was—had some way to maybe create a mind-set for the
1
The jury had originally awarded approximately $222,000.00 in damages; this verdict
was appealed and we remanded for a new trial for reasons not relevant to the issues
presented herein.
10
jury. There were no claims for—as I said, doctor bills, or
hospital bills, or prescription bills, or any other out-of-pocket
expenses or lost wages, and I think that is a problem in how
the case was presented.
Id. at 570, 466 S.E.2d at 421. This Court further observed that “the appellant, for
whatever reason, did not adduce evidence of the cost of any treatment indisputably
related to the injury of which the appellant complained.” Id. at 571, 466 S.E.2d at 422.
Commenting further, we stated that “it appears that all of the damages evidence adduced
by the appellant was controverted by the appellees to some extent, either as to its relation
to this injury or otherwise.” In rejecting the claim that the verdict was inadequate, this
Court found:
In the present case, as previously indicated, the appellant
introduced no evidence of actual doctor or hospital bills, or
prescription bills, or any other out-of-pocket expenses or lost
wages. If she had introduced such evidence, and if it were
reliable, this Court would be compelled to conclude that she
was entitled to a new trial on damages . . . . However, given
the evidence adduced, viewed in the light most favorable to
the defendant, we cannot say that the jury was compelled to
return a verdict awarding damages to the appellant.
Id. at 572, 466 S.E.2d at 423 (emphasis added). Like the Court in Adkins, I suspect the
jury may have found the absence of any evidence concerning the petitioner’s medical
bills or lost wages was a reflection on the credibility of her injury. This lack of evidence,
along with the respondent’s vigorous challenge to the petitioner’s personal credibility,
pre-existing conditions, and subsequent injury that occurred one month after the vehicle
accident, easily explains the jury’s conspicuous conclusion that the petitioner was not
injured to an extent that warranted a monetary recovery.
The petitioner’s tactical miscalculations aside, the majority’s willingness to
reward these miscalculations by disregarding virtually identical cases where this Court
upheld the refusal to award general damages is astonishing. First, I note the litany of
syllabus points firmly instructing this Court not to interfere with jury awards for pain and
suffering, unless it can discern some patent error:
Compensation for pain and suffering is an indefinite and
unliquidated item of damages, and there is no rule or measure
upon which it can be based. The amount of compensation for
such injuries is left to the sound discretion of the jury, and
there is no authority for a court to substitute its opinion for
that of the jury. A mere difference in opinion between the
11
court and the jury as to the amount of recovery in such cases
will not warrant the granting of a new trial on the ground of
inadequacy unless the verdict is so small that it clearly
indicates that the jury was influenced by improper motives.
Syl. Pt. 2, Richmond v. Campbell, 148 W.Va. 595, 595, 136 S.E.2d 877, 878 (1964). Nor
can a mere difference of opinion on how the evidence could have or should have been
viewed support overturning the jury’s verdict: “We will not find a jury verdict to be
inadequate unless it is a sum so low that under the facts of the case reasonable men
cannot differ about its inadequacy.” Syl. Pt. 2, Fullmer v. Swift Energy Co., Inc., 185
W.Va. 45, 404 S.E.2d 534 (1991) (emphasis added).
Second, this Court has made clear that these admonitions are even more
imperative where, as here, the evidence on this issue is indisputably in conflict: “‘It is the
peculiar and exclusive province of the jury to weigh the evidence and to resolve questions
of fact when the testimony is conflicting.’ Point 3, Syllabus, Long v. City of Weirton, W.
Va., (1975) [158 W.Va. 741,] 214 S.E.2d 832.” Syl. Pt. 2, Bourne v. Mooney, 163 W.Va.
144, 254 S.E.2d 819 (1979); see also Syl. Pt. 4, Wager v. Sine, 157 W.Va. 391, 201
S.E.2d 260 (1973) (“‘It is the peculiar and exclusive province of the jury to weigh the
evidence and to resolve questions of fact when the testimony of witnesses regarding them
is conflicting and the finding of the jury on such facts will not ordinarily be disturbed by
this Court.’ Point 2 Syllabus, Graham v. Crist, 146 W.Va. 156, (118 S.E.2d 640.)”); Syl.
Pt. 2, Walker v. Monongahela Power Co., 147 W.Va. 825, 131 S.E.2d 736 (1963)
(“‘When a case involving conflicting testimony and circumstances has been fairly tried,
under proper instructions, the verdict of the jury will not be set aside unless plainly
contrary to the weight of the evidence or without sufficient evidence to support it.’ Point
4, Syllabus, Laslo v. Griffith, 143 W.Va. 469, 102 S.E.2d 894.”). Further, in addressing
this conflicting evidence, we are bound to view the conflict in the light most favorable to
the defendant: “In an appeal from an allegedly inadequate damage award, the evidence
concerning damages is to be viewed most strongly in favor of the defendant.” Syl. Pt. 1,
Kaiser v. Hensley, 173 W.Va. 548, 318 S.E.2d 598 (1983).
This Court has found these directives so clear that it has twice upheld
verdicts containing no pain and suffering award in decisions that are virtually identical.
In Marsch, 207 W.Va. 174, 530 S.E.2d 173, the jury awarded special damages, but no
general damages for pain and suffering or loss of enjoyment of life. The plaintiff, like the
petitioner herein, argued before this Court that he “presented adequate testimony of some
degree of pain and suffering incurred during the fall and that the jury verdict must be set
aside.” Id. at 182, 530 S.E.2d at 181. Similar to the case at bar, the defendant introduced
evidence “tending to discount the existence of pain and suffering and indicating that the
shoulder pain was due to a preexisting shoulder injury and the subsequent shoulder injury
which occurred at home.” Id. at 182, 530 S.E.2d at 181. In upholding the jury’s verdict,
this Court stated:
12
This Court has a responsibility to refrain from substituting its
own judgment for that of the jury regarding the pain and
suffering damages. We find that the absence of pain and
suffering damages was supported by the evidence. The jury
was presented with conflicting evidence, and some degree of
difficulty was therefore encountered in separating the causes
of any pain and suffering endured by the Appellant. As the
Supreme Court of Illinois succinctly expressed in Snover v.
McGraw, 172 Ill. 2d 438, 217 Ill. Dec. 734, 667 N.E.2d 1310
(1996), a jury may award pain-related medical expenses and
may simultaneously determine that evidence of pain and
suffering was insufficient to support a monetary award.
Marsch, 207 W.Va. at 182-83, 530 S.E.2d at 181-82 (emphasis added). Similarly, in Big
Lots Stores, Inc. v. Arbogast, 228 W.Va. 616, 723 S.E.2d 846 (2012), the plaintiff was
awarded special damages, but nothing for pain and suffering. As we observed, “[o]f
importance to our examination in Marsch was the fact that, just as in this case, the
plaintiff’s preexisting and subsequent injuries may have made it difficult for the jury to
distill the amount of pain and suffering specifically attributable to the subject injury.”
Big Lots, 228 W.Va. at 620, 723 S.E.2d at 850. In upholding the verdict, this Court noted
the jury heard testimony “challenging [plaintiff’s] credibility” concerning her pain and
suffering and testimony suggesting her pre-existing and subsequent injuries were to
blame for her pain. Id.
The petitioner argues that the jury heard uncontroverted evidence that she
sustained “some” injury as a result of the vehicle accident and had endured pain and
suffering, and that the jury specifically found she had sustained an injury. However, as
demonstrated in the cases above, merely sustaining an injury does not necessarily entitle
a plaintiff to an award of damages for pain and suffering. Certainly, in both Marsch and
Big Lots, the jury found an injury and awarded special damages, but no general damages.
Nevertheless, in those cases, this Court found that our unmistakable jurisprudence
precluded it from interfering with the jury verdict where there was conflicting evidence
regarding the nature and extent of an injury compelled it to uphold these verdicts. The
conflict in the evidence in Marsch and Big Lots is identical to the conflict presented in
the case sub judice, i.e., the existence of pre-existing conditions and a subsequent injury,
along with testimony challenging the petitioner’s credibility concerning her injury. As
observed in Marsch, a jury may “‘determine that evidence of pain and suffering [is]
insufficient to support a monetary award.’” 207 W.Va. at 182, 530 S.E.2d at 181
(quoting Snover v. McGraw, 667 N.E.2d 1310, 1315 (Ill. 1996)); see also Hinson v. King,
603 So. 2d 1104 (Ala. Civ. App. 1992) (awarding past medical expenses, but not damages
for pain and suffering, future medical expenses, and wages, was permissible); Randles v.
Lowry, 84 Cal. Rptr. 321, 324 (Cal. Ct. App. 1970) (“[A]n award for the exact amount of,
13
or even less than, the medical expenses is not necessarily inadequate if there is a conflict
as to whether the plaintiff suffered any substantial injury or pain.”); Symon v. Burger, 528
N.E.2d 850, 852 (Ind. Ct. App. 1988) (“When a jury awards a personal injury plaintiff the
exact amount, or approximately the exact amount, of his or her claimed medical expenses
and other special damages but makes no allowance for pain and suffering, the verdict is
not necessarily improper or irregular[.]”); Miller v. Swift, 42 S.W.3d 599, 603 (Ky. 2001)
(upholding jury’s refusal to award pain and suffering damages where “the jury made a
conscious decision to award nothing,” noting “[t]he civil justice system uses juries to
decide exactly these types of factual disputes”); Hunter v. Sorensen, 266 N.W.2d 529,
533 (Neb. 1978) (“The evidence on the cause, nature, and extent of plaintiff’s injury was
conflicting . . . . [and] [t]he jury could reasonably have concluded that plaintiff
experienced no pain and suffering, or if he did, that it was de minimis.”); Wheeler v.
Huston, 605 P.2d 1339, 1345 (Ore. 1980) (“[T]he jury may conclude that the plaintiff
suffered no general damages . . . . Such verdicts are valid and include cases in which (a)
the plaintiff’s evidence of injury is subjective, (b) there is evidence that the plaintiff’s
injuries for which general damages are claimed were not caused by the accident, and (c)
the objective evidence of a substantial injury sustained by plaintiff is controverted by
other competent evidence, or could be disbelieved by the trier of fact.”); Catalano v.
Bujak, 642 A.2d 448, 451 (Pa. 1994) (“It would appear that the jury simply disbelieved
evidence of damages in excess of what it awarded. It is not for any reviewing court to
dictate what evidence a jury must believe.”).
Nonetheless, the petitioner herein clings desperately to Kaiser v. Hensley,
173 W.Va. 548, 318 S.E.2d 598 (1983), wherein this Court held that a verdict is
inadequate where it does not include “elements of damage which are specifically proved
in uncontroverted amounts and a substantial amount as compensation for injuries.” 173
W.Va. at 549, 318 S.E.2d at 599, syl. pt. 3, in part (emphasis added). However, as noted
above, the petitioner’s pain and suffering was in no way “uncontroverted.” In fact, it is
clear that the entire reason the case was submitted to a jury was because the nature and
extent of the petitioner’s injury was controverted; it was, in fact, the exclusive focus of
the trial. The petitioner claimed she was injured, whereas the respondent contended the
petitioner’s complaints were the result of pre-existing conditions, a subsequent injury,
and were–on the whole–not credible. The parties’ attorneys implored the jury in their
opening statements and closing arguments to assess the evidence and determine the
nature and extent of the petitioner’s injury, as there was literally nothing else in dispute.
More importantly, unlike special damages, which are capable of
calculation, pain and suffering can never be an “uncontroverted amount.” Indeed, the
“amounts” awarded for such damages lie solely within the discretion and judgment of the
jury. As this Court has recognized,
“[t]he reason for holding parties so tenaciously to the
damages found by the jury in personal torts is that in cases of
14
this class there is no scale by which the damages are to be
graduated with certainty. They admit of no other test than the
intelligence of a jury governed by a sense of justice.”
Williams v. Penn Line Serv., Inc., 147 W.Va. 195, 204, 126 S.E.2d 384, 389 (1962)
(quoting Eby v. Wilson, 289 S.W. 639, 645 (1926)). Accordingly, Kaiser provides the
petitioner with no relief.
Despite its inapplicability to the instant case, I would be remiss if I did not
take the opportunity to examine further syllabus point three of Kaiser. Even on its face,
this syllabus point is suspect. As noted above, this syllabus point purports to require a
“substantial amount” as compensation for injury, lest the verdict be deemed inadequate.
Why or on what basis this Court would propose to require a “substantial amount” as
compensation for “injuries” is incomprehensible. Some injuries frankly do not warrant a
“substantial amount”; moreover, some “injuries” may be so inconsequential as to not
warrant monetary compensation at all. This curious proposition warrants closer review.
Kaiser cites Hall v. Groves, 151 W.Va. 449, 153 S.E.2d 165 (1967), and
King v. Bittinger, 160 W.Va. 129, 231 S.E.2d 239, 243 (1976), as authority for this
syllabus point. However, neither of these cases hold that any injury requires a
“substantial amount as compensation.” Rather, they require that permanent injuries
require a substantial amount as compensation. As reflected in syllabus point two of Hall,
“[w]hen in an action for the recovery of damages for personal injuries the verdict . . .
does not award a substantial amount as compensation for permanent injuries to the
plaintiff . . . such verdict is wholly inadequate . . . .” 151 W.Va. at 449, 153 S.E.2d 166,
syl. pt. 2, in part (emphasis added); see also Syl. Pt. 4, King, 160 W.Va. 129, 231 S.E.2d
239 (same). Therefore, upon careful inspection, it becomes clear that the requirement for
a “substantial amount” as compensation applies only to permanent injuries and that
Kaiser badly misstates the law upon which it purportedly relies, eliminating the word
“permanent” so as to change these holdings entirely and rendering Kaiser the curiosity it
is today.
This Court has wisely stated that “[i] is [] true that there is no market price
or monetary equivalent for pain and suffering or for injuries of a nonpermanent nature,
and [] a jury award for these will generally not be disturbed because of the small amount
awarded.” Keiffer v. Queen, 155 W.Va. 868, 873-74, 189 S.E.2d 842, 845 (1972).
Nearly forty years later, in Manor Care, Inc. v. Douglas, 234 W.Va. 57, 102, 763 S.E.2d
73, 118 (2014) (Loughry, J., dissenting), I echoed these sentiments and cautioned that
“[i]t is not for this Court to sit as a super-jury and reductively carve damage awards in the
process of attempting to whittle away legal error.” Likewise, it is not for this Court to “sit
as a super-jury” and enhance damage awards or grant new trials due to perceived
“inadequate” verdicts simply because the majority disagrees with the jury’s assessment of
the credibility of the witnesses and quality of evidence presented. “The sole measure of
15
damages for pain and suffering is the enlightened conscience of fair and impartial jurors.”
Atlanta Transit System v. Robinson, 213 S.E.2d 547 (Ga. App. 1975). The majority’s
continued refusal to respect the sanctity and considerable discretion of the jury is very
troubling. However, the majority’s attempt to twist the petitioner’s argument into
something which it (mistakenly) believes provides a more direct route to relief is simply
inexplicable.
Accordingly, I respectfully dissent.
16