Guy R. Bucci
Michael J. Farrell
V. Paul Bucci, II Tamela J. White
Bucci, Bailey & Javins L.C. Christina L. Smith
Charleston, West Virginia Farrell, Farrell & Farrell
Attorneys for the Appellant Huntington, West Virginia
Attorneys for the Appellee
The Opinion of the Court was delivered PER CURIAM.
JUSTICE MCGRAW dissents and reserves the right to file a dissenting opinion.
1. In an appeal from an allegedly inadequate damage award, the
evidence concerning damages is to be viewed most strongly in favor of the defendant.
Syllabus point 1, Kaiser v. Hensley, 173 W. Va. 548, 318 S.E.2d 598 (1983).
2. 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.
Syllabus point 2, Fullmer v. Swift Energy Co., Inc., 185 W. Va. 45, 404 S.E.2d 534
3. An appellate court will not set aside the verdict of a jury, founded
on conflicting testimony and approved by the trial court, unless the verdict is against the
plain preponderance of the evidence. Syllabus point 1, Kessel v. Leavitt, 204 W. Va.
95, 511 S.E.2d 720 (1998).
This appeal was filed by Brenda Sue Moore (hereinafter referred to as Mrs. Moore), appellant/plaintiff,See footnote 1 1 from a final judgment in a wrongful death medical malpractice action against St. Joseph's Hospital of Buckhannon, Inc. (hereinafter referred to as St. Joseph's), appellee/defendant.See footnote 2 2 The case was tried before a jury in the Circuit Court of Harrison County. The jury returned a verdict for Mrs. Moore and awarded her $150,000.00 in damages. In this appeal, Mrs. Moore contends that the damage award was inadequate.See footnote 3 3 After a careful review of the record in this case and after listening to the arguments of the parties, we affirm the judgment of the Circuit Court of Harrison County.
In February, 1995, Mr. Moore visited Dr. Frank Grisworld for treatment of
an ulcer in his lower right leg. Mr. Moore, who weighed approximately 420 pounds, had
been troubled by the ulcer for about six years. During the visit, Dr. Grisworld reported
that the ulcer was responding to treatment.
On March 28, 1995, Mr. Moore was taken to St. Joseph's emergency room.
Mr. Moore complained of muscular and skeletal pain. He was treated conservatively and
released. Two days later, on March 30, 1995, Mr. Moore was again taken to St. Joseph's
emergency room. Mr. Moore complained of sweating and shortness of breath. He was
diagnosed as having pneumonia. Mr. Moore was again treated and released. On April 3,
1995, Mr. Moore was, for the third time, admitted to St. Joseph's emergency room.
During this visit, Mr. Moore again complained of sweating and shortness of breath. Mr.
Moore was diagnosed as suffering from congestive heart failure. He was eventually
transferred for treatment, on April 4, 1995, to United Hospital Center, Inc. On April 6,
1995, Mr. Moore died while at United Hospital Center. The cause of death was attributed
to pulmonary embolism.
In 1996, the instant wrongful death action was filed alleging negligence by
St. Joseph's for failing to diagnose and treat Mr. Moore for pulmonary embolism. The
case was heard by a jury, and on November 4, 1998, the jury returned a verdict finding
St. Joseph's 75% liable for the death of Mr. Moore. See footnote 5
The jury awarded Mrs. Moore
$50,000.00 in non-economic damages and $100,000.00 in economic damages. As a result
of a set-off resulting from Mrs. Moore's settlement with United Hospital Center, there was
no actual monetary recovery from St. Joseph's. Mrs. Moore filed a post-trial motion
seeking a new trial on damages, which was denied. It is from this post-trial motion that
Mrs. Moore now appeals.
With these principles in mind, we turn to the substantive issues presented by
Having set forth the applicable law, we turn now to the errors assigned in this
appeal. The verdict form in this case specifically required the jury to separately establish
damages for economic and non-economic losses. We will therefore review separately the
adequacy of the economic and non-economic damages awarded to Mrs. Moore.See footnote 8
In contrast, St. Joseph's challenged the evidence regarding the nature of work
Mr. Moore could perform, had he lived. There was evidence presented that Mr. Moore
would not have returned to his former work as a coal truck driver due to his obesity and
chronic right leg ulcer. See footnote 10
Evidence also showed that, from about 1993 to the time of his
death, Mr. Moore operated a garage where he restored wrecked automobiles. St. Joseph's
presented further evidence indicating that Mr. Moore did not make a profit during the time
that he operated the garage. Finally, expert testimony by St. Joseph's economist indicated
that Mr. Moore would have earned about $243,818.00 during the remainder of his life.
The jury accepted neither expert's testimony regarding Mr. Moore's future
income. The jury instead appeared to have reached a middle ground by awarding only
$100,000.00. During the hearing on Mrs. Moore's motion for a new trial on damages,
the trial Court addressed the issue of the jury's award for economic loss as follows:
THE COURT: [I]n this case the jury sent out a question, wanted to know essentially if they were bound by these tables on lost income and the attorneys, who are both competent attorneys in this case, agreed for me to answer that question, and the way that I did answer it was that they weren't bound by any table and they alone were to determine the amount. And we instruct the jury that they're not bound by what the experts say and they can give it such credit or weight as they believe it deserves.
So, based upon all that, the fact that they didn't return the low projection nor high projection, something less than that, I believe is not a problem. I mean I think this jury really thought about that and thought about that projected lost income, and based upon all the factors, but didn't just blindly adopt what they said and came up with this economic loss of a hundred thousand dollars. . . .
The trial court's statement regarding the discretion juries have in accepting or rejecting expert testimony was consistent with the law. We addressed this issue in Martin v. Charleston Area Medical Center, 181 W. Va. 308, 382 S.E.2d 502 (1989), where it was said that:
Indeed, . . . the jury has the right to weigh the testimony of all witnesses, experts and otherwise, and . . . the jury is to give only as much weight and credit to expert testimony as the jury deems it entitled to when viewed in connection with all the circumstances.
Martin, 181 W. Va. at 311, 382 S.E.2d at 505. Because the expert testimony in this case was conflicting on the issue of economic damages, we cannot say that the trial court erred by refusing to disturb the jury award for economic damages. We must, therefore, affirm the judgment as to economic damages.
The decision in Martin involved a wrongful death action wherein the jury
awarded $250,000.00 to the decedent's wife and four children. In finding the jury's award
inadequate in Martin, this Court stated:
We believe that had the jury's verdict for $250,000 been for economic loss alone, it would not have been contrary to the weight of the evidence. However, when we take into consideration that the plaintiff, in her representative capacity, was also suing for non-economic loss, specifically for loss of a father and loss of a husband, we find that the verdict is inadequate.
Martin, 181 W. Va. at 311, 382 S.E.2d at 505.
Martin is not dispositive on the issue of non-economic damages in the instant
case for two reasons. First, in Martin there was no specific amount awarded as non-
economic damages. The jury in Martin simply returned a gross award. Second, the
critical factor in this Court's determination of the damage award's inadequacy related to
the plaintiff's race. We stated in Martin:
In the case before us our decision is informed to some extent by the fact that the plaintiff is a black woman suing for the death of a black husband and father on behalf of herself and four black children. In cases of this type involving white plaintiffs, when plaintiffs prevail at all, the awards are substantially higher.
Martin, 181 W. Va. at 312, 382 S.E.2d at 506.
In the instant case, the jury made a specific award of economic damages.
Moreover, the plaintiff in this case, as was argued by St. Joseph's during the post-trial
hearing for a new trial on damages, is white.
The critical factor in determining whether the amount of non-economic
damages was adequate in this case concerns the nature of the evidence presented on this
matter. Mrs. Moore presented evidence suggesting that Mr. Moore played an active role
in the daily life of his family and that the family members were close. See footnote 13
evidence that Mr. Moore regularly went to drag racing events, fishing trips and school
soccer games with his family.
St. Joseph's presented evidence suggesting that Mr. Moore was, in fact,
alienated from his family. This evidence included testimony that Mr. Moore spent most
of his time working in his garage, slept on a couch in his home, and rarely had dinner with
his family. Testimony also suggested the drag racing events, fishing trips and soccer
games were not regular family outings.
The trial court acknowledged that it was concerned with the jury's award on
non-economic damages, but decided that the jury was in the best position to make the
determination. See Keiffer v. Queen, 155 W. Va. 868, 873, 189 S.E.2d 842, 845 (1972)
(The courts usually state that though they might have awarded a greater or lesser amount
than that contained in the jury verdict, they will not substitute their views for that of the
Although this Court may believe that Mrs. Moore should have received a
greater award for non-economic damages, we cannot substitute our opinion for that of the
jury based upon the record in this case. We indicated in Syllabus point 2, in part, of
Richmond v. Campbell, 148 W. Va. 595, 136 S.E.2d 877 (1964), that
[a] mere difference in opinion between the 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.
See Sargent v. Malcomb, 150 W. Va. 393, 396, 146 S.E.2d 561, 564 (1966) ([A] mere difference of opinion between the court and the trial jury concerning the proper amount of recovery will not justify either the trial court or this Court in setting aside the verdict on the ground of inadequacy or excessiveness.). Mrs. Moore has failed to demonstrate to this Court that the jury used some illegal motive to reach its determination in awarding non-economic damages, or that the jury instructions were misleading or incorrect. We, therefore affirm the trial court's ruling on the issue of non-economic damages.
in a case where the question of liability has been resolved in favor of the plaintiff leaving only the issue of damages, the verdict of the jury may be set aside and a new trial granted on the single issue of damages. Syl. pt. 4, Richmond v. Campbell, 148 W.Va. 595, 136 S.E.2d 877 (1964).
(1) The verdict of the jury shall include, but may not be limited to,
damages for the following: (A) Sorrow, mental anguish, and solace which
may include society, companionship, comfort, guidance, kindly offices and
advice of the decedent; (B) compensation for reasonably expected loss of .
. . services, protection, care and assistance provided by the decedent; (C)
expenses for the care, treatment and hospitalization of the decedent incident
to the injury resulting in death; and (D) reasonable funeral expenses.