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HUNDLEY v. OSBORNE


HUNDLEY v. OSBORNE


June 5, 1998

Record No. 971899

RUSSELL WAYNE HUNDLEY

v.

PATSY JEAN OSBORNE

OPINION BY JUSTICE CYNTHIA D. KINSER

FROM THE CIRCUIT COURT OF HENRY COUNTY

Martin F. Clark, Jr., Judge

Present: All the Justices


In this appeal, we decide whether the circuit court erred by
setting aside a jury verdict in the amount of $125,000 in favor
of Patsy Jean Osborne[1] on the basis that the verdict
was inadequate as a matter of law and by ordering Russell Wayne
Hundley to pay Osborne $240,000 or submit to a new trial. Because
we find that the evidence regarding Osborne’s future medical
expenses and future loss of wages is subject to differing
interpretations and thus is controverted, we will reverse the
judgment of the circuit court.

I.

On December 21, 1992, a truck driven by Hundley collided
head-on with a car in which Osborne was a passenger. As a result
of the accident, Osborne sustained several injuries that required
medical treatment. Specifically, Osborne fractured her coccyx,
sternum, and three of her ribs. She also sustained a sprained
left ankle and a soft tissue injury to her right knee.

Osborne filed suit against Hundley, who admitted liability,
and a jury trial was held on the issue of damages only. [2] In regard to that issue, two of
Osborne’s treating orthopedic surgeons, Dr. Karl Thomas
Wagner, Jr., and Dr. Robert Samuel Widmeyer, testified via
deposition concerning their respective treatment of Osborne as
well as their prognosis about the future medical treatment
Osborne would need. Dr. Wagner, who first saw Osborne on December
28, 1992, testified that he treated Osborne’s injuries with
physical therapy, anti-inflammatory medications, and exercise.
Dr. Wagner reported that throughout Osborne’s course of
treatment, she continued to have pain and tenderness in her right
knee and that it was "by far the worst problem."
Nevertheless, Dr. Wagner anticipated that Osborne would make
"a complete recovery" from her injuries and stated that
she did not have "any permanent disability relating to her
ankle, related to her coccyx, related to her ribs or related to
her sternum." As of April 14, 1993, Dr. Wagner released
Osborne to return to work without any restrictions on her
activities.

Osborne was referred to Dr. Widmeyer in March 1995 after she
continued to experience tenderness in her right knee as well as
residual pain around her sternum. Dr. Widmeyer testified that
Osborne suffers from localized soft tissue problems in her right
knee for which he has prescribed physical therapy,
anti-inflammatory medications, and periodic cortisone injections.[3] While Dr. Widmeyer stated that
Osborne’s condition was not "crippling" or
"dangerous," he did opine that it was
"painful" and that "her ability to do what she
used to do is half what it was." Thus, according to Dr.
Widmeyer, Osborne’s right knee injury "doesn’t
look like its going to go away by anything . . . tried
so far." Finally, Dr. Widmeyer concluded that Osborne’s
need for future medical treatment for her knee would likely
continue at the same rate. He stated that Osborne goes to the
doctor only when "she’s flared up, she comes more
frequently until the flare-up settles down
. . . ."

Osborne, as well as her friends and family, testified
regarding the effect of Osborne’s injuries on her job
performance and personal life. Osborne returned to her job on
April 15, 1993. Her position as a "maurata" machine
operator is physically demanding and frequently requires her to
lift and carry bolts of fabric called "cheeses," which
weigh ten pounds each. Several times during a regular shift at
work, Osborne loads 54 of these "cheeses" onto a pin
truck and then pushes the truck to another part of the plant.
Because of the strenuous nature of her job, Osborne often
experiences pain in her right knee, and she has missed work when
the pain became severe enough that she needed an injection of
cortisone.[4] Even though a co-worker
occasionally has had to assist Osborne with her job duties,
Osborne has received two raises along with a four percent bonus
since the accident. In regard to her personal life, Osborne
seldom engages in activities that she used to enjoy, such as
dancing, camping, and walking, because these activities now cause
her to suffer knee pain.

Following its deliberations, the jury returned a verdict in
favor of Osborne in the amount of $125,000. Osborne then moved
the court to set aside the verdict and asked for a new trial or,
in the alternative, additur. After considering the briefs and
arguments by both parties, the circuit court determined that the
jury verdict was inadequate as a matter of law and ordered
Hundley either to pay Osborne $240,000 or to submit to a new
trial. [5]

In nearly doubling the amount of the jury’s verdict, the
circuit court focused on the evidence pertaining to
Osborne’s future medical expenses and future loss of wages.
In its letter opinion, the court first found uncontradicted
evidence that Osborne averaged $2,300 a year in medical expenses
from March 1995 through December 1996 for treatment of her knee
injury and that she would continue to incur expenses at the same
rate in the future.[6]

Thus, the circuit court multiplied the average yearly
incurred medical expenses times Osborne’s life expectancy of
36.9 years and concluded that Osborne would incur $84,870 in
future medical expenses.

The court next found uncontradicted evidence that Osborne
would continue to incur wage losses as a result of her knee
injury. In determining the amount of such future losses, the
circuit court averaged the wages Osborne lost from 1994 to 1997
and then multiplied that average by 22 years, Osborne’s
estimated remaining work expectancy.[7]

The court then found that plaintiff had demonstrated damages
of $25,883 in future loss of wages.

In sum, the court concluded that Osborne had proven
"$12,081.47 in past medical expenses, $84,870.00 in future
medical expense, $9,510.18 in past lost wages and $25,883.00 in
future lost wages, an aggregate amount of $132,344.65, making the
$125,000.00 jury verdict inadequate as a matter of law."[8]

Hundley accepted the additur under protest and, pursuant to
Code  8.01-383.1(B), sought to have the judgment reviewed
on appeal.

II.

The dispositive issue in this appeal is whether the
jury’s verdict is inadequate as a matter of law because the
jury did not award a sufficient amount to Osborne for future
medical expenses and future loss of wages. Resolution of this
issue turns on whether Osborne’s evidence of future medical
expenses and loss of wages was uncontroverted.

We stated in Bradner v. Mitchell, 234 Va. 483, 487, 362
S.E.2d 718, 720 (1987), that when a plaintiff’s evidence of
special damages "is uncontroverted and so complete that no
rational fact-finder could disregard it . . . it must
be considered as a fixed, constituent part of the verdict." See
also Davoudlarian v. Krombein, 244 Va. 88, 91, 418
S.E.2d 868, 870 (1992). However, we also stated that when
"the plaintiff’s evidence of special damages is
controverted, doubtful as to nature and extent . . . then neither
the circuit court nor we, on appeal, can say that the
plaintiff’s special damages constituted any fixed part of
the jury’s verdict." Bradner, 234 Va. at 487, 362
S.E.2d at 720-21.[9]

In the latter situation, "the verdict cannot be disturbed
on a claim of inadequacy." Id. at 488, 362 S.E.2d at
721.

In the present case, we cannot say that Osborne’s
evidence regarding future medical expenses and loss of wages
"is uncontroverted and so complete that no rational
fact-finder could disregard it." Id. at 487, 362
S.E.2d at 720. With regard to future medical expenses, Dr.
Widmeyer testified that Osborne’s need for future medical
treatment for her knee would likely continue at the same rate. He
further stated that Osborne characteristically has not sought
medical treatment until she has experienced an exacerbation of
the pain in her knee. The circuit court interpreted this
testimony to mean that Osborne would continue to incur medical
expenses for treatment of her knee pain at the same actual rate
at which she had incurred medical expenses from March 1995
through December 1996. However, this interpretation is only one
possible construction of Dr. Widmeyer’s testimony. The jury
could have reasonably concluded that Osborne will need some
treatment for her knee pain in the future but not necessarily at
the same rate for the next 36.9 years of her life. Furthermore,
the record before us does not demonstrate that Osborne incurred a
yearly average of $2,300 for medical expenses from March 1995
through December 1996 solely because of her knee injury.

The circuit court conducted a similar analysis of
Osborne’s evidence regarding her future loss of wages.
Because Dr. Widmeyer testified that Osborne’s residual knee
problem will remain constant over time, the circuit court
concluded that Osborne would suffer wage losses in the future at
the same average rate at which she had incurred such losses from
1994 to 1997. However, the record is unclear whether all the time
that Osborne missed from work during those years was directly
attributable to her knee injury. In fact, she did not receive
treatment from Dr. Widmeyer until March 1995 at which time she
initially complained about pain in her right knee and sternum.

Accordingly, we conclude that the circuit court erred in
setting aside the jury’s verdict. "Great respect is
accorded a jury verdict, and it is not sufficient that a trial
judge, had he been on the jury, would have rendered a different
verdict." Hall v. Hall, 240 Va. 360, 363, 397 S.E.2d
829, 831 (1990). When "reasonably fairminded [persons] may
differ as to the conclusions of fact to be drawn from the
evidence, or if the conclusion is dependent upon the weight to be
given the testimony," then such evidence is controverted,
and the jury’s verdict cannot be disturbed either by the
circuit court or this Court. Id. (quoting Forbes &
Co. v. Southern Cotton Oil Co.
, 130 Va. 245, 259, 108 S.E.
15, 19 (1921)).

For these reasons, we will reverse the judgment of the circuit
court, reinstate the verdict of the jury, and enter final
judgment on the verdict.

Reversed and final judgment.

 

FOOTNOTES:

[1] Throughout the record, the
appellee’s name is spelled "Osborne" and
"Osbourne." We are using the spelling which appears in
our order awarding an appeal in this case.

[2] Hundley stipulated that Osborne
had incurred past medical expenses totaling $12,081.47.

[3] Dr. Widmeyer initially stated
that he had given Osborne at least seven to ten cortisone
injections and that Osborne usually had to miss some time at work
when her pain became severe enough to require an injection.
However, on cross-examination, Dr. Widmeyer admitted that he had
injected Osborne with cortisone only five times during a span of
approximately three years.

[4] Osborne claims that from
December 1992 to February 1997, she incurred $9,510.18 in lost
wages. However, the record is unclear whether Osborne’s lost
wages were entirely attributable to her injuries or due, in part,
to reasons unrelated to the accident.

[5] Our recent decision in Supinger
v. Stakes
, 255 Va. 198, 495 S.E.2d 813 (1998), does not
affect the instant case. Counsel for Osborne, in the proceedings
below, requested the circuit court to use additur.

[6] The record on appeal contains
no testimony that Osborne averaged $2,300 for medical expenses
from March 1995 through December 1996 for treatment of her knee
injury.

[7] Implicit in the circuit
court’s calculation is the assumption that the lost wages
incurred by Osborne during these years were entirely attributable
to her knee injury. However, as stated previously, the record
before this Court lacks any specific evidence attributing all of
Osborne’s lost wages to her injuries.

[8] The jury’s verdict of
$125,000 arguably included more than $100,000 for damages such as
physical pain, mental anguish, future medical expenses, and
future loss of wages because Osborne’s past medical expenses
and lost wages totaled only $21,591.65.

[9] The rule enunciated in Bowers
v. Sprouse
, 254 Va. 428, 492 S.E.2d 637 (1997), is not
applicable to the present case because the verdict at issue is
not for the exact amount of Osborne’s special damages.

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