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NORFOLK BEVERAGE CO., INC. v. CHO, et al.



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NORFOLK BEVERAGE CO.,
INC.

v.

CHO, et al.


March 3, 2000

Record No. 990528

NORFOLK BEVERAGE COMPANY, INCORPORATED

v.

KWANG JA CHO, ET AL.

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA
BEACH

Edward W. Hanson, Jr., Judge

Present: Carrico, C.J., Compton,[1] Lacy, Hassell, Keenan, Koontz,
and Kinser, JJ.

OPINION BY JUSTICE LEROY R. HASSELL, SR.


In this appeal of judgments entered in
consolidated tort actions, we consider whether the jury’s
verdicts are excessive and whether the circuit court erred by
permitting an expert witness to render opinions that certain
medical expenses that the plaintiffs incurred were related to
their injuries.

Kwang Ja Cho and Pyong Tu Cho filed separate
amended motions for judgment against Norfolk Beverage Company,
Inc., and its employee, Donald R. Buckner. The Chos alleged that
they were injured when Buckner committed an assault upon them
while acting within the scope of his employment. The circuit
court consolidated the cases. The Chos settled their claims
against Buckner, and a jury returned verdicts against Norfolk
Beverage in favor of Mr. Cho in the amount of $160,000, and in
favor of Mrs. Cho in the amount of $310,000. The circuit court
entered judgments confirming the verdicts, and Norfolk Beverage
appeals.

Applying established principles of appellate
review, we shall summarize the evidence in the light most
favorable to the Chos, who come to this Court armed with jury
verdicts confirmed by the circuit court. Mr. and Mrs. Cho operate
Joe’s Upholstery Shop in a shopping center in Virginia Beach. On
the morning of May 2, 1995, Mr. Cho left the shop and got into
his car. Mr. Cho was unable to drive out of the parking lot
because a Norfolk Beverage truck was parked in a manner that
prevented him from exiting the parking lot.

Mr. Cho approached Buckner, who was seated in
the truck, and asked him to move the truck. Buckner replied that
he was entitled to park the truck in any space for 15 to 20
minutes. Mr. Cho responded that he had a dental appointment and
again asked Buckner to move the truck. Buckner cursed at Mr. Cho,
who then returned to his car and waited for Buckner to move the
truck.

After waiting for a moment, Mr. Cho
"honked the horn twice," but Buckner did not respond.
Mr. Cho got out of his car and walked toward Buckner, who was
still sitting in the truck. As Mr. Cho walked toward the truck,
Buckner opened a door and told Mr. Cho not to touch the truck.
Buckner kicked Mr. Cho in the head, causing him to fall on the
pavement. Mr. Cho directed his employee, Alexander Stith, Jr.,
who had witnessed the altercation, to "[g]o call [the] police."

When Stith entered Joe’s Upholstery Shop to
place a telephone call to the police, he informed Mrs. Cho that
her husband had been assaulted. She left the shop and went to the
parking lot where she encountered Buckner, who had begun to drive
away. Mrs. Cho told Buckner: "Stop,
stop. . . . Police came. Stop, police came."
Buckner stopped the truck, opened the door, and hit Mrs. Cho in
her neck, causing her to fall on the pavement. Mrs. Cho stood up,
and Buckner kicked her on her waist, causing her again to fall to
the pavement. Mrs. Cho stood up, and Buckner hit her in her
chest, causing her to fall on the pavement a third time.
Subsequently, police officers and emergency response personnel
arrived at the shopping center, and the Chos were transported in
an ambulance to a hospital where they received medical treatment.

Mr. Cho experienced pain in his head and ear as
a result of the assault. His face was swollen, and he suffered
auditory problems related to the assault. Mrs. Cho suffered
bruises and a back injury. Mrs. Cho experienced pain in her neck
and headaches.

During the trial, Mrs. Cho introduced medical
bills and an exhibit which included a summary of those bills. The
summary identified the names of various health care providers
that had rendered treatment to Mrs. Cho and the costs of that
treatment. The summary also contained the total amount of Mrs.
Cho’s medical bills, $8,653.81. Similarly, Mr. Cho introduced an
exhibit which contained the names of each health care provider
that rendered treatment to him and the costs of his treatment.
His exhibit contained the total amount of his bills, $1,336.75.

Dr. Steven Gershon, a physiatrist, testified
with a reasonable degree of medical certainty that the medical
bills contained in the plaintiffs’ exhibits represented treatment
for injuries that Mr. and Mrs. Cho sustained when Buckner
assaulted them. Norfolk Beverage objected and asserted that Dr.
Gershon was not qualified to render opinions that treatment by
doctors outside his field of expertise was causally related to
the plaintiffs’ injuries. The circuit court overruled the
objection and permitted Dr. Gershon’s testimony. Norfolk
Beverage, relying upon our decision in McMunn v. Tatum,
237 Va. 558, 379 S.E.2d 908 (1989), argues that the circuit court
erred by permitting Dr. Gershon to render opinions that the
plaintiffs’ bills were incurred for treatment of injuries
sustained in the assaults because the plaintiffs failed to
establish a foundation to qualify Dr. Gershon as an expert
competent to render opinions on whether the bills were medically
necessary or causally related. We disagree with Norfolk Beverage.

In McMunn, we considered "whether
it was error to admit proof of [a] plaintiff’s medical bills
without foundation evidence that they were a necessary
consequence of the defendant’s negligence." Id. at
560, 379 S.E.2d at 909. The plaintiff, Charlotte A. Tatum, filed
an action for medical negligence against her dentist, Michael O.
McMunn. At trial, Tatum offered in evidence an exhibit consisting
of 49 pages of medical, hospital, and pharmaceutical bills
attached to a summary sheet, which contained a total of the
bills. Tatum testified that certain bills were unrelated to her
claim against Dr. McMunn, and she deleted all charges she
considered unrelated to that claim. She also testified that she
received the bills, but she did not qualify as an expert witness.
McMunn objected to this evidence on the basis that it lacked a
foundation to show that the expenses claimed were necessarily
incurred as a result of his alleged negligence. The circuit court
admitted the exhibit. Id. at 566-67, 379 S.E.2d at 912-13.

We stated that

"[t]he question whether a particular
treatment is medically necessary, however, and the often more
difficult question whether it is causally related to a condition
resulting from some act or omission on a defendant’s part, can
usually be determined only by a medical expert qualified in the
appropriate field who has studied the plaintiff’s particular
case. The mere receipt of bills regular on their face by a
plaintiff furnishes no evidence of medical necessity or causal
relationship. The unfairness to the defendant of receiving such
proof without expert foundation in a case of the kind now before
us is obvious.

"We now hold that where the defendant
objects to the introduction of medical bills, indicating that the
defendant’s evidence will raise a substantial contest as to
either the question of medical necessity or the question of
causal relationship, the court may admit the challenged medical
bills only with foundation expert testimony tending to establish
medical necessity or causal relationship, or both, as
appropriate."

Id. at 569, 379 S.E.2d at 914. In McMunn,
we examined the record in light of the aforementioned principles,
and we held that the record contained sufficient evidence of
medical necessity and causal relationship. Id. at 570, 379
S.E.2d at 914-15.

Here, we hold that the circuit court did not
err in admitting the plaintiffs’ medical summaries. Dr. Gershon,
a physiatrist who was board certified in physical medicine and
rehabilitation, testified that he performed separate, independent
medical evaluations of Mr. and Mrs. Cho. He reviewed all the
plaintiffs’ medical records related to their treatment, including
ancillary studies that had been performed. He conducted
comprehensive physical examinations upon them, took their medical
histories, evaluated their conditions, and made recommendations
for medical treatment. He performed a neurological systems
examination, a mechanical systems evaluation, and a
musculoskeletal systems evaluation on Mr. and Mrs. Cho. Even
though the exhibits that were introduced in evidence contained
medical bills from hospitals, radiologists, family practitioners,
neurologists, emergency room physicians, and other health care
providers, we hold that in view of Dr. Gershon’s expertise, the
circuit court did not err in permitting him to render opinions
with a reasonable degree of medical certainty that the treatment
the Chos received was reasonable and causally related to the
assaults.

Next, Norfolk Beverage argues that the jury’s
awards of $160,000 and $310,000 to Mr. and Mrs. Cho,
respectively, are excessive and not products of fair and
impartial decisions because Mr. Cho’s medical bills totaled
$1,336.75, and Mrs. Cho’s medical and physical therapy bills
totaled $8,653.81. Norfolk Beverage says that neither plaintiff
suffered any permanent injury, lost wages, or disability, and
that the jury’s compensatory damage awards suggest that the jury
sought, in part, to punish Norfolk Beverage rather than fairly
and impartially compensate the plaintiffs for their injuries.

We have held that, generally, a circuit court
should not disturb a jury verdict awarding damages which has been
rendered fairly and is based upon competent evidence. However, a
jury verdict is not beyond the control of the courts, and courts
have the duty to correct a verdict that plainly appears to be
unfair or would result in a miscarriage of justice. Poulston
v. Rock, 251 Va. 254, 258, 467 S.E.2d 479, 481 (1996); Edmiston
v. Kupsenel, 205 Va. 198, 202, 135 S.E.2d 777, 780 (1964).
The issue whether a verdict is excessive is initially within the
sound discretion of the circuit court and, on appeal, the
standard of review is whether the circuit court abused its
discretion. Virginia Elec. & Power Co. v. Dungee,
258 Va. 235, 261-62, 520 S.E.2d 164, 180 (1999); accord Modaber
v. Kelley, 232 Va. 60, 69, 348 S.E.2d 233, 238 (1986); American
Oil Co.
v. Nicholas, 156 Va. 1, 12, 157 S.E. 754, 758
(1931).

In Smithey v. Sinclair Refining Co.,
203 Va. 142, 146, 122 S.E.2d 872, 875-76 (1961), we stated the
following principles which are equally pertinent here:

"In a case where the verdict of a jury is
attacked on the ground that it is excessive, the rules
controlling the actions of the court in relation thereto are
clear and well defined. If the verdict merely appears to be large
and more than the trial judge would have awarded had he been a
member of the jury, it ought not to be disturbed, for to do so
the judge must then do what he may not legally do, that is,
substitute his judgment for that of the jury. Aronovitch
v. Ayres, 169 Va. 308, 328, 193 S.E. 524, 531 [1937]; Simmons
v. Boyd, 199 Va. 806, 811, 812, 102 S.E.2d 292, 296
[1958].

"But if it appears that the verdict is so
excessive as to shock the conscience of the court and to create
the impression that the jury has been influenced by passion,
corruption or prejudice, or has misconceived or misunderstood the
facts or the law, or if the award is so out of proportion to the
injuries suffered to suggest that it is not the product of a fair
and impartial decision, then it becomes the plain duty of the
judge, acting within his legal authority, to correct the
injustice."

Accord Poulston, 251 Va. at
258-59, 467 S.E.2d at 481-82.

Applying the aforementioned principles, we hold
that the circuit court did not abuse its discretion in confirming
the jury’s verdicts. The jury was instructed, without objection,
as follows:

"If you find your verdict for either
plaintiff, then in determining the damages to which they are
entitled, you may consider any of the following which you believe
by the greater weight of the evidence was caused by the battery
by Mr. Buckner:

"1. the bills of health care providers
admitted in evidence;

"2. all physical injury the Chos suffered;

"3. any shame, humiliation, embarrassment
or indignity to their feelings that they suffered;

"You may also consider in awarding damages
the insulting character of the injury, Mr. Buckner’s reason for
injuring the Chos, and any other circumstances which make the
injury more serious, if any of these things are shown by the
evidence.

"Your verdict should be for such sum as
will fairly and fully compensate the plaintiff for the damages
sustained as a result of the battery."

The jury was entitled to consider the
aforementioned elements in assessing damages against Norfolk
Beverage. In view of this jury instruction and the evidence of
record, including the attack upon the Chos, the humiliation they
experienced, and the injuries that they incurred, the amounts of
the jury verdicts are not shocking to this Court.

Finding no reversible error in the record, we
will affirm the judgments of the circuit court.

Affirmed.

 

FOOTNOTES:

[1] Justice Compton participated in
the hearing and decision of this case prior to the effective date
of his retirement on February 2, 2000.

 

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