James F. Companion
James P. Mazzone
Schrader, Recht, Byrd,
Companion & Gurley
Wheeling, West Virginia
Attorneys for the Appellee
Rhonda L. Wade
Bachmann, Hess, Bachmann & Garden
Wheeling, West Virginia
Attorney for the Appellant
JUSTICE WORKMAN delivered the Opinion of the Court.
JUDGE FOX sitting by temporary assignment.
JUDGE BERGER sitting by temporary assignment.
JUSTICE BROTHERTON did not participate.
RETIRED JUSTICE MILLER did not participate.
JUSTICE RECHT did not participate.
1. "When a jury returns a verdict that lacks a total
definitive amount but specifies an amount for damages and payment
of specific expenses and costs, and after being directed to give a
definitive sum, renders a measurably lower verdict than their first
effort by virtue of the jury's failure to understand the cost of an
expert witness's fee, it is appropriate for the trial court to
enter an additur to assure that the injured party receives the
damages originally awarded, or, at the election of the defendant,
to order a new trial on the issue of damages alone." Syl. Pt. 3,
Bostic v. Mallard Coach Co., 185 W. Va. 294, 406 S.E.2d 725 (1991).
2. An award of additur is appropriate under West Virginia law
only where the facts of the case demonstrate that the jury has made
an error in calculating its award of damages and the failure to
correct the amount awarded to comport with the jury's intention
would result in a reduction of the jury's intended award.
3. "'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)." Syl. Pt. 2, Linville v. Moss, 189 W.
Va. 570, 433 S.E.2d 281.
Appellant Mull's Grocery Mart seeks reversal of the December
8, 1993, order of the Circuit Court of Ohio County granting
Appellee Sandra Bressler's motion for additur. Since West Virginia
permits additur only when it can be definitively established that
the jury made a mistake and because this case lacks such evidence,
the circuit court erred in making an additur award in this case.
Accordingly, we reverse the decision of the lower court and remand
for a determination of whether a new trial should be granted solely
on the issue of future medical expenses.
Appellee's jury award resulted from a slip and fall incident
that occurred on July 29, 1989, on Appellant's premises. Appellee
instituted a complaint predicated on negligence against Appellant
on July 25, 1991, in which she sought recovery for past and future
medical expenses, pain and suffering, public embarrassment, mental
anguish, and stress. At the conclusion of the two-day jury trial
on August 12, 1992, the jury found Appellant to be 75% liable and
Appellee 25% percent liable. The jury awarded damages to Appellee
in the amount of $53,500. Of that amount, $20,000 was designated
for future medical expenses.
On August 14, 1992, the circuit court entered a judgment
order, awarding Appellee $40,125, consistent with the jury's finding of contributory negligence. Appellee filed a motion
seeking additur or alternatively, a new trial on the issue of
future medical damages on August 24, 1992. The amount sought was
$33,827.80, the exact difference between the amount of future
medical expenses testified to by Appellee's expert witness
($53,827.80) and the amount actually awarded by the jury ($20,000).
In support of her additur motion, Appellee asserted that Appellant
failed to contest the evidence she presented on the issue of future
medical expenses at trialSee footnote 1 and thereby conceded the reasonableness
and necessity of those expenses. By order dated October 2, 1992,
the circuit court granted Appellee's additur motion, and awarded
her the sum of $33,827.80 minus her percentage of contributory
negligence.See footnote 2
Appellant challenges the additur award on two grounds. First,
Appellant argues that the award of an additur violates the
constitutional right to a jury trial. Second, Appellant maintains
that the award invaded the province of the jury.
Appellant recognizes that an award of additur was approved by
this Court in Bostic v. Mallard Coach Co., 185 W. Va. 294, 406 S.E.2d 725 (1991), but maintains that an examination of the facts
in that case demonstrates that such approval was expressly limited
to very narrow circumstances. We agree. In Bostic, the jury
initially returned a verdict which indicated that the plaintiff
should receive a specified amount plus an unspecified amount for
attorney's fees and expert witness fees. When the Bostic jury
calculated its second verdict, it reached a sum total, but did so
without information regarding the expert witness fee. Id. at 300,
406 S.E.2d at 731. Under the facts of Bostic, this Court was able
to conclude that "[t]he value of the jury's first award [wa]s about
$18,000 or about $3,000 more tha[n] the second award." Id. Under
these specific facts, we held that:
[W]hen a jury returns a verdict that lacks a total definitive amount but specifies an amount for damages and payment of specific expenses and costs, and after being directed to give a definitive sum, renders a measurably lower verdict than their first effort by virtue of the jury's failure to understand the cost of an expert witness's fee, it is appropriate for the trial court to enter an additur to assure that the injured party receives the damages originally awarded, or, at the election of the defendant, to order a new trial on the issue of damages alone.
185 W. Va. at 302, 406 S.E.2d at 733 and Syl. Pt. 3.
Before reaching that conclusion in Bostic, however, we
examined the conflict between the use of additur and the
constitutional right to a trial by jury. We cited the recent analysis of this issue in Boyd v. Bulala, 672 F. Supp. 915 (W.D.
Va. 1987), and noted that
[i]n Boyd, the federal district court held that '[a]dditur is prohibited under the seventh amendment because it would require a plaintiff "to forego his constitutional right to the verdict of a jury" and accept instead an assessment "partly made . . . by a tribunal which has no power to assess." Dimick v. Schiedt, 293 U.S.  at 487, 55 S.Ct.  at 301 [79 L.Ed. 603] .'See footnote 3 In Dimick, the Supreme Court examined the rules of common law established in 1791, the adoption date for the seventh amendment, and found no authority 'to increase, either absolutely or conditionally, the amount fixed by the verdict of a jury in an action at law, with certain exceptions.' Id. at 477, 55 S. Ct. at 297. The Supreme Court held that the jury's province is 'to determine the facts . . . [and] where the verdict is too small, an increase by the court is a bald addition of something which in no sense can be said to be included in the verdict.' Id. at 486, 55 S.Ct. at 301.
185 W. Va. at 301, 406 S.E.2d at 732 (quoting, in part, Boyd, 672
F.2d at 921) (alterations in original).
The Boyd court discussed at length the historical significance
of the jury's assessment of damages:
[T]he determination of liability and the assessment of damages are both questions which the common law reserved for the jury. At common law, a party had a right to have a jury determine the severity of the injury through an assessment of damages. Under the seventh amendment, this right is preserved.
. . . .
The seventh amendment rests on pragmatic
considerations about the outcome of
litigation. The guarantee provided by the
amendment is, quite simply, the possibility of
procuring a different result by choosing a
jury trial. To be meaningful, the amendment
must protect the ability of the jury to make a
difference in the outcome of the trial.
Clearly, the determination of damages is one
of the principal ways by which the jury
affects the result of a case. The assessment
of damages by the jury falls squarely within
the protection of the seventh amendment.
672 F. Supp. at 920-21.
As we further explained in Bostic, "[a]lthough the seventh amendment's right to trial by jury in federal courts has not been extended to the states through the fourteenth amendment, our State Constitution has an analogous provision." 185 W. Va. at 301, 406 S.E.2d at 732 (citation omitted). Article III, § 13 of the West Virginia Constitution provides:
In suits at common law, where the value in controversy exceeds twenty dollars exclusive of interest and costs, the right of trial by jury, if required by either party, shall be preserved; and in such suit in a court of limited jurisdiction a jury shall consist of six persons. No fact tried by a jury shall be otherwise reexamined in any case other than according to rule of court or law.
W. Va. Const. art. III, § 3 (emphasis added).
It has been observed that the West Virginia and Oregon
Constitutions are unique in that they expressly safeguard the
verdict in addition to guaranteeing the right to a jury trial.
Leo Carlin, Remittiturs and Additurs, 49 W. Va. L.Q. 1, 21-22 (1942); see also Roberts v. Stevens Clinic Hosp., Inc., 176 W. Va. 492, 508, 345 S.E.2d 791, 807-08 (1986) (McHugh, J., dissenting) (noting that West Virginia's constitution "preserv[es] not only the right to a jury trial but also . . . the fruits thereof").
Unlike Bostic, the instant case is completely lacking of any
evidence to suggest that the jury intended to award Appellee an
amount other than the sum reflected by its verdict. An award of
additur is appropriate under West Virginia law only where the facts
of the case demonstrate that the jury has made an error in its
award of damages and the failure to correct the amount awarded
would result in a reduction of the jury's intended award. This
case simply does not fall within the parameters of the limited
scenario in which this Court has approved the use of additur. See
Bostic, 185 W. Va. at 302, 406 S.E.2d at 733 and Syl. Pt. 3.
Appellant further argues that the circuit court's award of
additur invaded the jury's province by second-guessing the jury's
intended award of future medical expenses. In responding to this contention, Appellee posits that the failure of Appellant to
contest the reasonableness of her expert witness' testimony
regarding future medical expenses required the court to award the
full amount of future medicals in conformance with her expert's
testimony. Conversely, Appellant argues that the jury is not bound
to accept as conclusive the testimony of an expert witness,
contested or uncontested.
Our legal system expressly reserves for the jury "the right to
weigh the testimony of all witnesses, experts and otherwise."
Tabor v. Lobo, 186 W. Va. 366, 368, 412 S.E.2d 767, 769 (1991). We
explained these principles in Tabor, stating that,
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. Moreover, a jury is not bound to accept as conclusive the testimony even of an unimpeached witness. Once a witness, including an expert witness, is permitted to testify, it is within the province of the jury to evaluate the testimony, credentials, background and qualifications of the witness to address the particular issue in question. The jury may then assign the testimony such weight and value as the jury may determine.
Id. at 368-69, 412 S.E.2d at 769-70 (citation omitted); accord
Martin v. Charleston Area Medical Ctr., 181 W. Va. 308, 311-12, 382
S.E.2d 502, 505-06 (1989), cert. denied sub nom. Leef v. Martin,
493 U.S. 1071 (1990); Middle-West Concrete Forming and Equip. Co. v. General Ins. Co. of Am., 165 W. Va. 280, 287, 267 S.E.2d 742,
In Novak v. Gramm, 469 F.2d 430 (8th Cir. 1972), the court
expressly rejected the basis for Appellee's contention that the
trial court was obligated to grant additur to award future medical
expenses in conformity with her expert witness' testimony. The
plaintiff in Novak argued that the trial court erred in denying her
motion for additur, asserting that since her expert witness'
testimony on damages was "not shown by the defendants to be
erroneous, the amount of damages suffered had been proven to a
mathematical certainty." Id. at 433. Recognizing that the
plaintiff's expert based his calculation of damages on certain
assumptions, the appellate court held that "[t]he jury was not
bound to accept the assumptions upon which these computations were
based." Id. Additionally, the expert witness' testimony regarding
damages was "merely evidence for the jury to consider, not proof of
a mathematical certainty by which they were bound." Id. "The
jury, of course, not the economist, was the ultimate fact-finder as
to each of these assumptions." Id. at n.5.
Like the Novak plaintiff, Appellee maintains that "[t]he
appellant presented no evidence or testimony to dispute either the
need for, or the costs of, these future medical expenses." An
examination of the record reveals that while Appellant did not put on its own expert witness to present a separate figure for
Appellee's future medical expenses, Appellant did cross-examine
Appellee's expert witness, Dr. Romano, regarding the issue of
whether Appellee would require treatment indefinitely. In making
its award for future medical expenses, the jury may have been
swayed by Appellant's questioning of the indefinite nature of
Appellee's need for future medical treatment.
Regardless of whether Appellant contested the issue of future
medical expenses propounded by Appellee's expert witness, the jury
is required to weigh the evidence presented to it, including that
of expert witnesses, and to assess appropriate damages by attaching
whatever weight and value it deems appropriate to such testimony
in connection with the circumstances of the particular case. In
its role as the ultimate fact-finder, the jury was entitled to
reach its own conclusions based upon the evidence presented
regarding the extent of the future medical treatment and associated
costs required by Appellee. See Tabor, 186 W. Va. at 368-69, 412
S.E.2d at 769-70.
In granting Appellee's motion for additur and increasing the
amount of the jury award for future medical expenses from $20,000
to $53,827.80, the court below was obviously operating under the
mistaken notion that the absence of evidence presented on behalf of
Appellant regarding the issue of future medical expenses necessitated a jury award equivalent to the amount sought by
Appellee. Like a finding of liability, an award of damages, is a
factual determination reserved for the jury. See Dimick, 293 U.S.
at 486. Under the facts of this case, the circuit court's award of
additur clearly invaded the jury's province.
Because the trial court did, however, in its order of December
8, 1993, make a finding of jury error regarding the award of future
medical expenses to Appellee, we deem it necessary to remand for a
determination of whether a new trial is warranted on this sole
issue. Specifically, we remand for a determination of whether the
trial court's finding was predicated on a determination that the
jury award of future medical expenses was inadequate as a matter of
law. See Linville v. Moss, 189 W. Va. 570, 433 S.E.2d 281 (1993)
(discussing Type 4 classification of inadequate damage awards under
Freshwater v. Booth, 160 W. Va. 156, 233 S.E.2d 312 (1977),
analysis). We caution, however, that the jury's award of future
medical expenses is not inadequate as a matter of law solely
because it does not conform exactly with the damage testimony of
the Appellee's expert witness on this issue. Additionally, "'[i]n
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)." Linville, 189 W. Va. at 572, 433 S.E.2d at
283, Syl. Pt. 2.
Based on the foregoing, the decision of the Circuit Court of Ohio County is hereby reversed and remanded to determine whether a new trial should be awarded solely on the issue of future medical expenses.
Reversed and Remanded.
Footnote: 2 Appellee was also awarded 10% post-judgment interest on the amount of the additur before her 25% apportionment of contributory negligence was deducted.
Footnote: 3 The seventh amendment to the U.S. Constitution provides:
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the Unites States, than according to the rules of the common law.