Michael C. Allen
Barbara H. Allen
Allen & Allen, L.C.
Charleston, West Virginia
Attorneys for the Appellant
Mary H. Sanders
Huddleston, Bolen, Beatty, Porter & Copen
Charleston, West Virginia
Attorney for the Appellees
The Opinion of the Court was delivered PER CURIAM.
"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).
A jury in this action found that the appellant, Deborah Adkins, was entitled to
no damages for personal injuries allegedly sustained in a car wreck on June 21, 1986. In the
present appeal, the appellant's principal assertions are that the trial court should have
awarded her a new trial after the return of the verdict and that the court erred in submitting
a defective verdict form to the jury. After reviewing the record filed and the questions
raised, this Court disagrees and cannot find that the trial court committed reversible error.
The judgment of the trial court is, therefore, affirmed.
On June 21, 1986, Mark Foster, a drunk driver, "rear ended" an automobile in
which the appellant was a passenger. As a result, the appellant suffered neck injuries, and
because of those injuries she instituted the present action for damages in the Circuit Court
of Fayette County. The case was initially tried before a jury, and on May 8, 1991, that jury
returned a verdict for the appellant in the amount of $222,133.00. The Circuit Court of
Fayette County subsequently rendered judgment on that verdict.
The appellees here appealed the circuit court's judgment to this Court after the
prior trial. In Adkins v. Foster, 187 W.Va. 730, 421 S.E.2d 271 (1992), we reversed on the
issue of damages and remanded for a new trial while finding that the liability of the appellees
was adequately proven. We indicated that, in the absence of special interrogatories to the jury, it was not possible to determine whether the jury awarded the appellant damages for
future economic loss or other factors. We also suggested that under the record then available
to this Court we could not ascertain whether the verdict was based on pain and suffering or
speculative testimony on future economic damages. We concluded that the judgment, insofar
as it related to damages, should be reversed, and we remanded for a new trial on the damage
issue. We stated:
Our conclusion that this matter should be remanded on the issue of future economic damages is based upon our belief that the appellee presented significant evidence of permanent injury but failed to present evidence of future economic ramifications of the injury to a reasonable degree of certainty. Upon remand, the permanency of the appellee's injury, as proven in the previous trial, should be presumed, and evidence of future economic loss should be presented to permit a reliable calculation of economic loss.
Id. at 736, 421 S.E.2d at 277.
It appears that between the time of the first trial and retrial on remand, a
substantial deterioration of the appellant's medical condition occurred and that the appellant
underwent additional medical examination and treatment.
In preparing for retrial, the appellees investigated the medical evidence
generated after the first trial and learned certain things not previously known. For instance,
the appellees learned that a knee injury sustained by the appellant at work prior to the 1986
auto accident was substantially disabling and possibly impacted on her future earning capacity. They also learned that the appellant had been diagnosed as suffering from cervical
dystonia, a neurological condition of the neck of apparently non-traumatic origin.
As the second trial approached, the appellees felt that the fact that the appellant
had cervical dystonia, or the non-traumatic neck condition, was of particular significance in
light of the fact that she was seeking damages for the trauma to her neck arising out of the
car accident. Therefore, the appellees moved that they be permitted to introduce evidence
of the cervical dystonia. The trial court denied that motion.
During the actual retrial, the appellant introduced evidence suggesting that she
had previously worked both as a truck driver and as the lead singer in a band and that she had
earned substantial income prior to the auto wreck. Her evidence also indicated that she was
unable to perform these jobs because of the disability arising out of the auto accident.
The appellant called as a witness Daniel M. Selby, a C.P.A., who gave
economic testimony that the average truck driver in Raleigh County made $21,459.00 in
1992, and through elaborate calculations he postulated that the appellant had an income
capacity that amounted to $327,348.00 over the rest of her life.
The appellant also introduced evidence suggesting that her ability to enjoy life
was markedly impaired by the residuals of the accident, including a marked neck deformity, which was characterized as "torticollis". This evidence included the testimony of Gloria
Alderson, a rehabilitation specialist. Ms. Alderson testified that the vocational skills which
the appellant had developed had been negated by her physical impairment, and her ability
to compete in the job market was very poor. She also expressed the opinion that the
appellant was permanently and totally disabled and that her rehabilitation potential was very
poor. Ms. Alderson testified that appropriate care for the appellant in the future would
include a rehabilitation psychological examination (cost: $3,500.00); a physical therapy
evaluation once a year for life (cost: $120.00 per year); occupational therapy (cost: $120.00
per year for life); frequent orthopedic examinations (cost: $160.00 per visit); general medical
care to deal with such things as colds, flu, etc. (cost: $200.00 per year); psychiatric care once
a month (cost: $60.00 per visit); a psychiatric behavior modification program every two years
(cost, broken down on a yearly basis: $2,500.00); and psychiatric family and group
counseling (cost: $1,375.00 per year). Ms. Alderson also stated that the appellant would
need a rehabilitation specialist on various types of equipment such as hand-held shower
massage, an overbed table, an electric toothbrush, and a "whirlpool hydro-therapy", and
various other things including various medications, for all of which she gave cost estimates.
She also indicated that the appellant should have attendant care for life at the cost of
$33,320.00 per year.
Through the economic testimony of Daniel M. Selby, the appellant advanced
a "life care plan" which incorporated the suggestions of Ms. Alderson. That plan indicated that a jury award of $1,528,888.00 would be required to compensate her for the losses
sustained in the car wreck.
Apparently as a matter of trial strategy, the appellant did not introduce
evidence of the out-of-pocket cost of any treatment directly and exclusively related to the
The appellees, through their attorney, closely cross-examined the appellant and
injected into the trial some question as to her veracity and forthrightness. For instance,
through introduction of the appellant's social security records, the appellees elicited
admissions that her actual earnings over the years were not great. They showed, for instance,
in 1975 the appellant had earned $739.00; in 1976, $661.00; in 1977, nothing; in 1978,
$402.00; in 1979, $2,929.00; in 1980, $2,187.00; and in 1981, $5,171.00. They also
adduced evidence suggesting that the impact of the 1986 auto accident was not as great as
the appellant's evidence suggested, and they elicited an admission that in 1987, after the 1986
auto accident, the appellant had actually worked more hours than she had worked in any
previous year and that in 1987 she earned $17,686.00, more than she had earned in her entire
life prior to the accident.
To buttress their case, the appellees called as a witness Joe Hammond, a man
with whom the appellant had lived for four or five months after the accident. He testified that the appellant continued working as a singer after the accident and she stopped only when
the band with which she was singing dissolved. He also testified that the appellant was
considering starting her own band.
In addition to impugning the appellant's testimony relating to loss of earning
capacity and inability to work due to the auto accident, the appellees introduced evidence
suggesting that the bulk of any disability that the appellant did have was attributable to the
work-related knee injury which she suffered before she was involved in the auto wreck.
Additionally, although precluded from introducing medical evidence that the appellant was
suffering from cervical dystonia, the appellees produced substantial medical evidence
suggesting that the neck symptomatology which the appellant was demonstrating was
medically inconsistent with the objective medical findings demonstrated after the wreck. For
instance, Dr. David Bucholz of Johns Hopkins University reviewed the appellant's medical
records and testified:
Q. Dr. Buchholz, . . . based upon your knowledge that there was no complaint at the time of the accident . . . that she didn't seek care . . . and your review . . . of these records . . . are all of these records combined consistent with any serious structural damage?
A. No, they are not.
Q. Now, there have been radiographic studies done on
numerous occasions up to 1990 on Ms. Adkins's cervical
spine, have there not?
A. That is correct.
Q. And have you had an opportunity, Doctor, to review
these radiographic studies?
A. Yes. The reports and the films.
Q. Okay. And how many different radiographic studies
have you been able to review, and the kinds? Are they
x-rays, CT scans?
A. I don't recall how many of these I've seen with my own
eyes, but I believe it's the majority. The list that I have
here of the number of tests that she's had, various x-rays,
CT scans, MRI's, myelograms of various parts of the
spine and the head totals twenty-two.
Q. Okay. Does that include some of the lower back, also?
A. Yes. She's had lumbar spine x-rays, CT scan, MRI and
myelography with CT scan.
Q. Okay. Were any of those abnormal?
Q. The CT scan with myelogram that was done at West
Virginia University Hospital by Dr. Bloomfield, have
you reviewed that?
Q. And was that -- in that report or any of the other
radiographic reports, was there any evidence of any
damage to the -- the muscles and ligaments of the
A. No. That study was entirely normal.
Q. Was there ever any indication whatsoever in any -- any
record up to 1990 that there was any fracture?
Q. Was there any evidence in any of the records you
reviewed up to 1990 that -- well, up to 1989, that there
was ever any neurological problem?
Q. Was there ever any neurological findings?
A. No, there was not.
At the conclusion of the evidence, the appellees' attorney essentially argued
that the appellant was not nearly as disabled as a result of the accident as she claimed and
suggested that the damages sought were extremely exaggerated and far exceeded any actual
loss. To buttress this argument, counsel pointed to the testimony of Joe Hammond, which
suggested that the appellant was not seriously injured after the accident, and said: "I think
Joe was an honest witness." Somewhat similarly, to focus on the quality of the appellees'
medical experts and their opinions, counsel argued, over the objection of the appellant's
. . . [a]nd if it were you who were being sued by somebody, . . . and someone was wanting to pay . . . wanting you to pay for their wages for the rest of their life, wouldn't you want that person evaluated in the best hospital on the east coast by the best specialists? Wouldn't you want that?
When the case was ultimately submitted to the jury, the trial court gave the jury
a special verdict form which read as follows:
We the jury find for the Plaintiff, Deborah Adkins, and award damages as proven by a preponderance of the evidence were proximately caused by the automobile accident of June 21, 1986, and assess those damages as follows:
Special damages include the following:
Future lost wages, if any $_______
Future medical and care
costs, if any $_______
General damages include the following:
Pain and suffering, if any $_______
Loss of ability to enjoy
life, if any $_______
TOTAL DAMAGES $_______
In submitting this form, the Court refused to submit a form provided by the
appellant. The appellant's verdict form said:
We, the jury find our verdict for the plaintiff and award her damages as follows:
Cervical strain and sprain
Chronic pain resulting therefrom
Aggravation of pre-existing
Loss of enjoyment of life __________
Mental pain and suffering __________
Future costs of care __________
Lost earnings to date __________
Future lost earnings __________
After the jury received the court's verdict form, it retired to deliberate, and after
deliberating it found that the appellant was entitled to no damages and placed a "0" in each
of the dollar slots on the verdict form.
Upon return of the verdict, the appellant moved for a new trial on the ground
that the verdict was manifestly inadequate. The trial court conducted a hearing on the
motion. At the conclusion of that hearing, the court stated:
. . . 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
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.
The court also went on to note that the appellant's witnesses were ineffective and damaged
on cross examination. Relating to the testimony of Gloria Alderson, the rehabilitation
specialist, the court said:
The rehabilitation lady left a lot, I think, to be desired in terms of how the jury looked at her. Her life care plan in many instances was almost laughable, some of the things she talked about, and I don't think that was lost on the jury and their common sense that they bring to the jury box.
The court noted that the vehicle in which the appellant was riding suffered very little damage
and that the appellant did not claim an injury at the scene of the accident and did not seek
medical care until some time later. The court also said:
[S]he earned the most money of her life the first year after the accident, and there were many inconsistencies about her medical and accident history, or as she was -- when she was treated and interviewed by the doctors and the defendants' experts, I think she obviously was not open and candid with them when they interviewed her. I don't think that was lost on the jury.
The court concluded:
So I think if you consider the evidence in the light most
favorable to the prevailing party, the defendants, and assume
that all conflicts in the evidence were resolved by the jury in
favor of the defendants, and then assume that, as proved, all
facts which the prevailing parties' evidence tends to prove and
give to the prevailing party the benefit of all favorable
inferences with -- which reasonably may be drawn from the facts proved, regrettably for the plaintiff, I think the -- there is
evidence here from which the jury could reach the verdict they
did, and I'll deny the motion for a new trial.
The trial court denied that motion. In denying the motion, the trial court stated:
After hearing argument of counsel and for good cause shown, the Court is of the opinion that when viewing the evidence most strongly in favor of the defendants, there is ample evidence to support the jury's verdict and accordingly the jury's verdict is sustained and the plaintiff's Motion for New Trial is hereby ORDERED DENIED.
In the present proceeding, the appellant claims that the trial court erred in
denying her motion for a new trial on the issue of damages where the jury's award of
damages was, she claims, inadequate as a matter of law. We disagree. We believe that on
consideration of the motion for a new trial the court below identified the sound bases upon
which the jury could properly reach its conclusion not to award damages on the evidence
In Lennox v. McCauley, 188 W.Va. 203, 423 S.E.2d 606 (1992), this Court
indicated that where a damage issue had been tried by a jury, the allegation of inadequate
damages should be weighed on appeal by viewing the evidence adduced most strongly in
favor of the defendant. The Court also indicated that a jury's award should not ordinarily be
set aside unless the award is clearly inadequate. In reaching this conclusion, the Court quoted with approval syllabus point 1 of Kaiser v. Hensley, 173 W.Va. 548, 318 S.E.2d 598
(1983), which states:
In an appeal from an allegedly inadequate damage award, the evidence concerning damages is to be viewed most strongly in favor of the defendant.
In the case presently under review, the appellees rather strongly attacked the
credibility of the appellant when they showed that the appellant had actually earned very
little prior to the accident. Also, as noted by the trial court, they also placed into substantial
question the whole issue of her vocational disability due to the accident when they showed
that she had not actually quit working after the accident, but had actually earned more than
ever before. Their evidence also suggested that any vocational disability was attributable to
her work-related knee injury rather than her neck injury. Finally, their medical evidence
suggested that the appellant's neck symptomatology was wholly inconsistent with the
physical findings made after the auto accident.
During the prior review of this case this Court believed that the evidence as
developed suggested that the appellant was entitled to substantial damages. The Court did
not, however, conclude that it was so conclusive as to require the entry of a damage award
for the appellant. The case was remanded for a new trial on the damage issue and for
submission of special interrogatories or a special verdict to the jury.
A retrial by necessity and definition requires that a jury rehear and reconsider
the evidence on a factual issue. In the present case that is what occurred, and during the
retrial the appellees, as has previously been indicated, substantially impugned the appellant's
case. Moreover, it appears 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. Rather, 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. After viewing the evidence presented during retrial in the light most favorable
to the appellees, as is required by syllabus point 1 of Kaiser v. Hensley, Id., this Court cannot
conclude that the jury's award was inadequate.
The Court notes that the appellant takes the position that under the holding in
Freshwater v. Booth, 160 W.Va. 156, 233 S.E.2d 312 (1977), the verdict in this case was
patently inadequate. The Court, in the single syllabus of that case, states:
In a tort action for property damage and personal injuries this Court will set aside the jury verdict and award a new trial on all issues where: (1) the jury verdict is clearly inadequate when the evidence on damages is viewed most strongly in favor of defendant; (2) liability is contested and there is evidence to sustain a jury verdict in favor of either plaintiff or defendant; and (3) the jury award, while inadequate, is not so nominal under the evidence as to permit the court to infer that it was a defendant's verdict perversely expressed.
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 under
the Freshwater rule. 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. Therefore, as noted, we cannot say that the jury's verdict
is inadequate. Accordingly, we conclude that Freshwater is not controlling in the action
The appellant's second claim is that the trial court erred in submitting a verdict
form the jury, over objection, which virtually invited the jury to disregard the proven injuries
by providing no line for the jury to award damages for such injuries.
In examining the record in the present case, the Court finds that, in submitting
the case to the jury, the trial judge gave an instruction which stated:
The Court instructs the jury that the injuries which the plaintiff sustained as a result of the automobile accident in question are as follows: Cervical sprain and strain, chronic pain resulting therefrom, aggravation of a preexisting depression, torticollis, which is a contraction of the muscles of the neck, and disfigurement. Further, these injuries are presumed to be permanent in nature.
Rule 49 of the West Virginia Rules of Civil Procedure governs the submission
of special verdict forms to a jury in a civil case. That rule provides, in part:
(a) Special verdicts. -- The court may require a jury to return only a special verdict in the form of a special written finding upon each issue of fact. In that event the court may submit to the jury written questions susceptible of categorical or other brief answer or may submit written forms of the several special findings which might properly be made under the pleadings and evidence; or it may use such other method of submitting the issues and requiring the written findings thereon as it deems most appropriate. The court shall give to the jury such explanation and instruction concerning the matter thus submitted as may be necessary to enable the jury to make its findings upon each issue.
Federal courts recognize that Federal Rule 49, upon which West Virginia's rule is based,
gives a trial judge considerable discretion in submitting special verdict forms. In this Court's
view, the criterion for determining whether the discretion is abused is whether the verdict
form, together with any instruction relating to it, allows the jury to render a verdict on the
issues framed consistent with the law, with the evidence, and with the jury's own convictions.
See 9A C. Wright & A. Miller, Federal Practice and Procedure: Civil 2d § 2508 (1995);
Martin v. Gulf States Utilities Co., 344 F.2d 34 (5th Cir. 1965); and McDonnel v.
Timmerman, 269 F.2d 54 (8th Cir. 1959).
It is clear from an examination of the verdict form submitted in the present case
that the court instructed the jury that it could find damages for the appellant for future lost
wages, future medical and care costs, pain and suffering, and loss of ability to enjoy life. Also, the court clearly instructed the jury that the injuries for which the jury could award
damages were cervical sprain and strain, chronic pain resulting therefrom, aggravation of
pre-existing depression, torticollis, and disfigurement. The matters covered in the instruction
closely corresponded with the matters included in the special verdict form submitted by the
appellant, but not given by the court, and it is rather clear that Rule 49 contemplates that a
special verdict be considered in conjunction with a court's instructions to the jury.
The verdict form submitted to the jury, together with the instructions given,
covered almost the identical matters contained in the appellant's form and allowed the jury
to render a verdict on the issues framed consistent with this Court's remand, consistent with
the evidence, and consistent with the jury's own convictions. Under the circumstances, the
Court cannot conclude that the trial judge abused his discretion in submitting the verdict
form submitted rather than the verdict form offered by the appellant or that the refusal of the
court to submit the appellant's form constituted reversible error.See footnote 1
For the reasons stated, the judgment of the Circuit Court of Fayette County is
Footnote: 1 The Court notes that the appellant additionally assigns as error the fact that the appellees' attorney made improper remarks, generally characterized as "golden rule" remarks, during closing argument. The Court has examined the remarks carefully and has concluded that in the overall context of the argument, as well as the trial as a whole, the remarks were not prejudicial. However, such remarks are contrary to law. Trial courts should discourage their use and may consider curative instructions or other curative action upon timely and proper objection.