Adkins v. Foster
Annotate this Case
January 1992 Term
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No. 20652
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DEBRA ADKINS,
Plaintiff Below, Appellee,
v.
MARK FOSTER AND KATHY GIAUQUE,
Defendants Below, Appellants
______________________________________________________
Appeal from the Circuit Court of Fayette County
Honorable John W. Hatcher, Circuit Judge
Civil Action No. 88-C-503
REVERSED AND REMANDED
______________________________________________________
Submitted: April 29, 1992
Filed: July 23, 1992
Michael C. Allen
Duane C. Rosenlieb, Jr.
Charleston, West Virginia
Counsel for Appellee
Mary H. Sanders
Huddleston, Bolen, Beatty,
Porter & Copen
Charleston, West Virginia
Counsel for Appellants
JUSTICE WORKMAN delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. "The permanency or future effect of any injury must be
proven with reasonable certainty in order to permit a jury to award
an injured party future damages." Syl. Pt. 9, Jordan v. Bero, 158
W. Va. 28, 210 S.E.2d 618 (1974).
2. "'Future damages are those sums awarded to an injured
party for, among other things: (1) Residuals or future effects of
an injury which have reduced the capability of an individual to
function as a whole man; (2) future pain and suffering; (3) loss or
impairment of earning capacity; and (4) future medical expenses.'
Syllabus Point 10, Jordan v. Bero, [158] W. Va. [28], 210 S.E.2d 618 (1974)." Syl. Pt. 2, Flannery v. United States, 171 W. Va. 27,
297 S.E.2d 433 (1982).
3. "'Courts must not set aside jury verdicts as excessive
unless they are monstrous, enormous, at first blush beyond all
measure, unreasonable, outrageous, and manifestly show jury
passion, partiality, prejudice or corruption.' Syl. Pt., Addair v.
Majestic Petroleum Co., Inc., 160 W. Va. 105, 232 S.E.2d 821
(1977)." Syl. Pt. 5, Roberts v. Stevens Clinic Hosp. Inc., 176 W.
Va. 492, 345 S.E.2d 791 (1986)
4. Although expert economic evidence may not be necessary in every case, an instruction regarding appropriate reduction of an
award to present value should be presented to the jury both in
cases where expert economic evidence is presented as well as in
cases where no such evidence is presented.
Workman, Justice:
This is an appeal by Mark Foster and Kathy Gaiuque from a
final order, pursuant to a jury verdict, in favor of the appellee,
Debra Adkins, in the amount of $222,133. The appellants contend
that the trial court committed various errors which justify
reversal of that final order. We reverse and remand for a new
trial on the issue of damages alone, with special emphasis on the
establishment of future economic damages to a reasonable degree of
certainty.
I.
On June 21, 1986, Debra Adkins was a passenger in an
automobile driven by Joseph Hammonds. That automobile was struck
by a vehicle driven by appellant Mark Foster and owned by
appellant Kathy Gaiuque. As a result of that accident, the
appellee suffered a cervical strain and an exacerbation of her pre-existing depression. At trial, the appellee submitted medical
bills in the amount of $2,768. With regard to evidence of other
economic loss, the appellee had apparently planned to introduce the
testimony of economist Daniel Selby. On the first day of trial,
defense counsel moved to exclude the testimony of Mr. Selby since
the witness had not been disclosed prior to the discovery deadline,
and the circuit court granted the motion.
At the close of the plaintiff-appellee's evidence, defense
counsel moved for a directed verdict on the lost wage claim, and
the lower court granted that motion.See footnote 1 The lower court denied
defense counsel's motion for a directed verdict on the diminished
earning capacity issue, however, and explained that defense counsel
would be permitted to address the issue of the impairment of future
ability to earn during trial.
The appellee's evidence at trial regarding diminished earning
capacity consisted of statements presented by the appellee with
regard to her hourly rate when she had been working and the number
of hours worked per day. The appellee's counsel also addressed the
diminished earning capacity issue in closing argument, explaining
that considering the appellee's age, life expectancy, and normal
rate of pay, she had suffered diminished earning capacity in the
amount of $447,825. Counsel for the appellee also explained that
the figure should be reduced to its present value by dividing it in
half. The jury verdict returned on May 8, 1991, was in favor of
the appellee for $222,133.See footnote 2
The appellants contend that the following errors were
committed: 1) the trial court erred by giving an instruction on
the issue of the appellee's diminished earning capacity when the
appellee had failed to introduce evidence of diminished earning
capacity; 2) the trial court erred by allowing the appellee's
counsel to suggest during closing argument a method of determining
the appellee's damages for diminished earning capacity; 3) the
trial court erred by allowing the appellee's counsel to suggest the
amount of damages that the jury should award to plaintiff;See footnote 3 4) the
trial court erred by failing to grant the appellants' motion for a
new trial based on the alleged excessive verdict; 5) the trial
court erred by failing to grant the appellants' motion for
remittitur based on the alleged excessive verdict.
II.
The primary issues to be determined by this Court are whether the trial court erred by permitting the appellee and her attorney to attempt to calculate an award of diminished earning capacity, based upon insufficient evidence, to attempt to calculate the present value of the loss in the absence of expert, or other formal, economic evidence, and to permit the jury to consider the
issue of diminished earning capacity based upon the amount and
nature of the economic evidence presented. The appellee and her
attorney employed evidence of the appellee's age, life expectancy
as determined by the appellee's physician, and normal rate of pay
to arrive at a figure of diminished earning capacity. The attorney
then suggested to the jury that the figure could be divided in half
to calculate the present value of that amount. While more
extensive expert economic testimony is typically presented, the
question remains of whether it is error to premise an award of
diminished earning capacity upon the economic evidence introduced
through the more simplistic method employed in the present case.
With regard to the instruction presented to the jury on diminished earning capacity,See footnote 4 the appellants contend that the lower court erred in instructing the jury on that element of damages when sufficient evidence was not presented to support such instruction. We have explained that impairment of earning capacity is a proper
element of recovery when two elements have been proven: permanent
injury and reasonable degree of certainty of the damages. Jordan
v. Bero, 158 W. Va. 28, 52, 210 S.E.2d 618, 634 (1974). We held in
syllabus point 9 of Jordan that "[t]he permanency or future effect
of any injury must be proven with reasonable certainty in order to
permit a jury to award an injured party future damages." Id. at
29, 210 S.E.2d at 623; accord Dowey v. Bonnell, 181 W. Va. 101, 380 S.E.2d 453 (1989). We also explained the following in syllabus
point 2 of Flannery v. United States, 171 W. Va. 27, 297 S.E.2d 433
(1982),
'Future damages are those sums awarded to an
injured party for, among other things: (1)
Residuals or future effects of an injury which
have reduced the capability of an individual
to function as a whole man; (2) future pain
and suffering; (3) loss or impairment of
earning capacity; and (4) future medical
expenses.' Syllabus Point 10, Jordan v. Bero,
[158] W. Va. [28], 210 S.E.2d 618 (1974).
In Jordan, we dealt with an injury to a ten-year-old boy who had been hit by an automobile while riding his bicycle and had suffered a massive head wound. We did allow "reasonable inferences arising from the evidence in proof of future effects of permanent injury." Id. at 56, 210 S.E.2d at 636. We cautioned, however, that such approach "cannot be extended to unreasonable lengths in support of instant claims for impairment of earning capacity and future medical expenses. . . ." Id. We emphasized in Jordan that "impairment of earning capacity is an item of permanent damages which again must be proved to a reasonable degree of certainty; it cannot be left to sheer speculation or surmise." Id., 210 S.E.2d
at 637. We recognized that while the father's testimony regarding
his son's performance of chores was competent, it was "of slight
inferential value as to be deficient when it is asserted in support
of a permissive instruction allowing the jury to make an award for
impairment of earning capacity. . . ." Id. We concluded that
"where the permanent injury is proven, reasonable inferences based
upon sufficient evidence are all that is necessary to carry the
question to the jury for its consideration. Here, however, the
evidence was de minimis and was not sufficient to raise a proper
inference for the jury's consideration." Id. at 57, 210 S.E.2d at
637.
The appellee in the present case introduced neither vocational evidence regarding future work capacity nor expert economic evidence either as to diminished earning capacity or as to reduction to present value. Ideally, the claim of diminished earning capacity could have been supported by testimony of a vocational expert regarding what types of jobs the appellee would be capable of performing and an economist to calculate future losses. The "reasonable degree of certainty" requirement of Jordan would have been more closely followed through the introduction of such testimony. 158 W. Va. at 56, 210 S.E.2d at 637. The appellants in the present case emphasize, for instance, that the injuries resulting from the accident, a cervical strain and exacerbation of a pre-existing depression, are obscure injuries which are not readily apparent to the casual onlooker, implying a
greater necessity for expert evaluation of future effects. Dr.
James Michael Herr, an orthopedist, testified that the appellee was
permanently disabled. Dr. Francis Whalen, a psychiatrist, also
testified that the appellee was permanently disabled and that her
depression was a result of the auto accident.See footnote 5
The appellants further contend that neither the appellee nor her attorney was qualified to testify that the appellee was permanently disabled from all employment. Certainly, the appellee's counsel's closing argument that calculating future damages by multiplying figures of rate of pay and life expectancy and dividing that amount in half to represent present value must be examined with caution.See footnote 6 We do recognize that the appellee
presented some evidence of diminished earning capacity; however, we
do not believe that the Jordan requirement of proof to a reasonable
degree of certainty has been satisfied. We do not suggest that
expert economic or vocational evidence is mandatory in every
instance; yet, we do reiterate our requirement of proof of future
economic loss to a reasonable degree of certainty.
Especially where no expert evidence regarding appropriate reduction of an award to present value is introduced, we believe that the trial court is obligated to direct the jury in adjusting the award to present value. An illuminating discussion of this issue was recently presented by the Supreme Court of South Dakota in Howard v. Sanborn, 483 N.W.2d 796 (S.D. 1992). In Howard, injured motorists brought an action against the driver of the other vehicle involved in an automobile accident. In addressing an issue
regarding an instruction on calculation of the present value of an award, the South Dakota Supreme Court compared the instruction to the federal instruction suggested in 3 Edward Devitt, Charles Blackmar & Michael Wolff, Federal Jury Practice and Instructions: Civil § 85.11 at 325-26 (4th ed. 1987).See footnote 7 Howard, 483 N.W.2d at
799-800. The South Dakota Supreme Court concluded that although expert testimony on the issue of the reduction of future earnings to present value is not required in every case, where an expert testifies and reduces the damages to present value, an instruction "which includes present worth tables must be carefully crafted to prevent confusion." Id. at 801. The Court in Howard further held that where there is no expert testimony on present value, "the jury must have some direction to help it intelligently reduce the award to present value." Id. As recognized in Brodie v. Philadelphia
Transportation Co., 415 Pa. 296, 302, 203 A.2d 657, 660 (1964), and
cited with approval in Howard,
'The involved process of reducing future
losses to their present worth has,
undoubtedly, led to confusion and guess-work
verdicts. Reason, logic and fairness would,
therefore, dictate that enlightenment is
necessary. Such can be provided, at least in
part, by permitting the use of accepted tables
or the testimony of a qualified expert, who
can compose the proper computations.'
483 N.W.2d at 801-02 (quoting Watkins v. Ebach, 291 N.W.2d 765, 767
(S.D. 1980) quoting Brodie, 415 Pa. at 302, 203 A.2d at 660).
Although expert economic evidence may not be necessary in
every case, an instruction regarding appropriate reduction of an
award to present value should be presented to the jury both in
cases where expert economic evidence is presented as well as in
cases where no such evidence is presented. Furthermore, where
permanent injury is alleged, as in the present case, the prudent
plaintiff's counsel would seek to introduce vocational evidence in
addition to medical evidence of permanent injury in order to assist
the jury in ascertaining the extent and permanency of the
plaintiff's alleged inability to engage in gainful employment.
Similarly, prudent defense counsel would also present such evidence
in order to assist the jury in determining whether the plaintiff
would be capable of some other future employment which might
mitigate the damages for loss of future earning capacity.
Due to the lack of proof of diminished earning capacity to a
reasonable degree of certainty, the issue of diminished earning
capacity should not have been submitted to the jury. Consequently,
we must reverse this matter and remand it for a new trial on the
issue of damages alone, with special emphasis on the establishment
of future economic damages to a reasonable degree of certainty.
III.
The appellants also allege error in the trial court's failure
to grant a new trial or a remittitur in light of the large verdict.
We have consistently held that "'[c]ourts must not set aside jury
verdicts as excessive unless they are monstrous, enormous, at first
blush beyond all measure, unreasonable, outrageous, and manifestly
show jury passion, partiality, prejudice or corruption.' Syl. Pt.,
Addair v. Majestic Petroleum Co., Inc., 160 W. Va. 105, 232 S.E.2d 821 (1977)." Syl. Pt. 5, Roberts, 176 W. Va. at 492, 345 S.E.2d at
793.
The appellee presented evidence of significant injury and
disfigurement resulting from the accident. As recognized by the
lower court in denying the appellants' motions for a new trial and
to set aside the verdict,
It appears to me that the jury simply did not
buy the argument that this woman was not injured
and was not in great pain in the past and presently
as she appeared before the jury. She was a pitiful
figure there, and I--I don't think that was lost on
the jury.
In light of the evidence presented, we do not believe that the jury
verdict should be set aside as excessive or that a remittitur
should be granted.See footnote 8
Due to the absence of special interrogatories to the jury, we are unable to speculate regarding the jury's specific calculation of its award. Failure to submit a special interrogatory to the jury can lead to various unexpected areas of uncertainty upon appellate review of a jury verdict. In attempting to resolve an issue of prejudgment interest and its application to special or liquidated damages, for instance, we explained in syllabus point 3 of Beard v. Lim, 185 W. Va. 749, 408 S.E.2d 772 (1991), that prudent defense counsel should seek a special interrogatory on the issue of special damages in order to secure appropriate application
of prejudgment interest principles. Accord Syl. Pt. 3, Perdue v.
Doolittle, 186 W. Va. 681, 414 S.E.2d 442 (1992).
Similarly, the present inability to distinguish among the
various categories for which the jury compensated the appellee
could have been avoided by the submission of a special
interrogatory. Had the verdict form delineated the nature of
damages awarded, we could strike the award for loss of future
earning capacity, if any, as being inadequately supported by the
evidence and without proper legal instruction. Because there was
no such delineation, it is possible the verdict was for other items
of damages. Consequently, in the absence of a specific verdict
form submitted at trial, the plaintiff should be given the benefit
of the doubt and have an opportunity for remand. If the award was
based upon pain and suffering as adjudged by the jury, that was
clearly in their province under the evidence presented and could
not be deemed excessive as a matter of law. If, however, it was
based upon the speculative testimony presented on the issue of
future economic damages, it cannot stand.
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.
Reversed and remanded.
Footnote: 1The appellee was unemployed at the time of the accident and
had not been employed since a 1988 work-related knee injury. The
orthopedist treating the knee injury had not released the appellee
to return to work and had not given her an expected date of return.
Footnote: 2The appellants emphasize that this verdict was almost exactly
the amount which would have been derived from employing the
calculation provided by counsel for the appellee in his closing
argument.
Footnote: 3Appellees failed to object at trial to assignments of error
(2) and (3). As we have previously recognized and as the appellee
concedes, failure to object to alleged errors at trial is
considered a technical waiver of the right to object to the alleged
error on appeal. Roberts v. Stevens Clinic Hosp., Inc., 176 W. Va.
492, 496, 345 S.E.2d 791, 795, (1986). We do, however, address
this issue despite counsel's failure to object at trial.
Footnote: 4The diminished earning capacity instruction provided as
follows:
You are further accordingly instructed
that if you believe from a preponderance of
the evidence to a reasonable certainty that
Debra Adkins' capacity to earn wages or labor
in the future has been reduced or diminished
as a proximate result of the defendants'
negligence, then, in addition to the above you
may award her such sums as if paid now will be
fair and reasonable compensation for any such
reduced capacity to earn wages and labor in
the future. This is so regardless of the
plaintiff's intention with regard to future
employment.
Footnote: 5Dr. Herr testified that he had treated the appellee for
approximately four years and that her condition had deteriorated to
permanent disability. Dr. Whalen also testified that the appellee
suffered from chronic pain depression and that her disability would
not resolve itself.
Footnote: 6Counsel's statement indicated to the jury that present value
could be calculated by dividing the original monetary figure in
half. This statement constitutes an oversimplification of an
economic reality. Economists calculate the present value of the
future dollar through a specific formula. The element of interest
rate may be in controversy depending upon the individual
economist's approach, i.e., use of short-term United States
Treasury Bills as the rate or some other rate of interest. As we
noted in footnote two of Morris v. Boppana, 182 W. Va. 248, 387 S.E.2d 302 (1989),
The rationale behind the reduction of
damages to present value may be explained as
follows:
'The current practice in personal
injury litigation is to award
plaintiffs a present sum of money as
compensation for future after-tax
lost earnings. The intention is to
make the plaintiff "whole" in the
sense that the present value award
allows the plaintiff, through
investment in relatively safe
securities, to replicate over time
the lost earnings stream. The
amount of such an award therefore
depends on the rate of growth
expected in after-tax earnings in
the plaintiff's pre-injury
occupation and the after-tax rate of
interest the plaintiff is expected
to earn through investing the
award.'
Anderson and Roberts, Misconceptions in Discounting
Lost Earnings to Present Value: Rejoinder and
Clarification of Fulmer-Geraghty, Lewis and
Ledford-Zocco, 37 Fed.Ins.Coun.Q.21, 22 (1986).
Footnote: 7The federal instruction provides as follows:
If you should find that the plaintiff is
entitled to a verdict, and further find that
the evidence in the case establishes either:
(1) a reasonable likelihood of future medical
expense, or (2) a reasonable likelihood of
loss of future earnings, then it becomes the
duty of the jury to ascertain the present
worth in dollars of such future damage, since
the award of future damages necessarily
requires that payment be made now for a loss
that will not actually be sustained until some
future date.
Under these circumstances, the result is
that the plaintiff will in effect be
reimbursed in advance of the loss, and so will
have the use of money which he would not have
received until some future date, but for the
verdict.
In order to make a reasonable adjustment
for the present use, interest fee, of money
representing a lump-sum payment of anticipated
future loss, the law requires that the jury
discount, or reduce to its present worth, the
amount of the anticipated future loss, by
taking (1) the interest rate or return which
the plaintiff could reasonably be expected to
receive on an investment of the lump-sum
payment, together with (2) the period of time
over which the future loss is reasonably
certain to be sustained; and then reduce, or
in effect deduct from, the total amount of
anticipated future loss whatever that amount
would be reasonably certain to earn or return,
if invested at such rate of interest over such
future period of time; and include in the
verdict an award for only the present-worth--the reduced amount--of anticipated future
loss.
(In determining future losses, you may
consider such additional income as the
evidence shows he would have been likely to
receive in the future, such as wage increases
due to promotions, increased experience, merit
raises, and increased productivity, if there
is evidence concerning them.)
(As already explained to you, this
computation is readily made by using the so-called 'present worth' tables, which the Court
has judicially noticed and received in
evidence in this case.)
(Bear in mind that your duty to discount
to present value applies to loss of future
earnings or future medical expenses only. If
you should find that the plaintiff is entitled
to damages for future pain and suffering or
future mental anguish, then such award is not
subject to any reduction for the present use
of such money.)
See 3 Devitt, Blackmar & Wolff, supra § 85.11 at 325-26.
We cite this instruction with approval except that the
language in the first paragraph as to "reasonable likelihood"
should be modified to "reasonable certainty" in order to comport
with Jordan. See 158 W. Va. at 56, 210 S.E.2d at 637.
Footnote: 8The appellants also allege error surrounding a statement made
by counsel for the appellee in closing argument regarding damages
and the desire that they not be based upon sympathy. Counsel
explained that "'[w]e would rather that you give us a $200,000.00
verdict based upon the evidence than a $2,000,000.00 verdict based
upon sympathy.'" We believe that counsel's statement was only
intended to be an example and in no manner could be considered
error or prejudicial to the appellants.
We do caution counsel, however, of our previous statement in
syllabus point 7 of Bennett v. 3 C Coal Co., 180 W. Va. 665, 379 S.E.2d 388 (1989), in which we held the following:
"The better practice in civil cases is to avoid mentioning to the jury the amount sued for, but such disclosure alone may not be reversible error. However, in a case involving only damages for mental distress, disclosure of such information may result in reversible error where the verdict is obviously influenced by such statement."
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