Supreme Court of Virginia, 2015

Cosby v. Clem

Supreme Court of Virginia · Decided June 4, 2015

773 S.E.2d 159; 290 Va. 1; 2015 Va. LEXIS 85 (South Eastern Reporter, Second Series)

Counsel

Susan Clem ("Clem") filed a complaint in the circuit court seeking judgment against Glen Cosby ("Cosby") for damages arising from a vehicle accident that occurred on January 11, 2009, when the vehicle being operated by Cosby collided with the rear of the vehicle in which Clem was riding as a passenger. Cosby admitted liability and the case was tried before a jury on the issue of damages. Clem claimed that the accident caused her previously implanted spinal cord stimulator to malfunction and submitted evidence of medical bills in the amount of $188,513.08. After the jury awarded damages to Clem in the amount of $9,000, the circuit court granted Clem's motion to set aside the verdict and for additur in the amount of $188,513.08, for a total award of $197,513.08. Upon Cosby's election declining to accept the additur award pursuant to Code § 8.01-383.1(B), the circuit court awarded Clem a new trial.1 On appeal, Cosby contends the circuit court erred in setting aside the jury verdict and awarding additur., While Dr. Decker testified that he believed the trauma Clem sustained in the accident caused the stimulator to malfunction, he admitted his opinion was based solely on Clem's statement to him that the stimulator was working before the accident and stopped working at the time of the accident. He further admitted that while he initially believed that a broken or loose wire may have caused the stimulator to stop functioning, he found no such defects upon x-ray examination of Clem's spine or during her surgery. Dr. Decker did not send that part of the stimulator he removed to the manufacturer for testing or otherwise attempt to determine why the part of the system he removed was not working. As Clem's treating physician, his primary concern was to implant a functioning stimulator rather than determine the cause of any malfunction in the previously implanted system. Thus, Dr. Decker did not identify the nature of the malfunction., For these reasons, we will reverse the judgment of the circuit court, reinstate the jury verdict in the amount of $9,000, and enter final judgment on the verdict.6, When the matter was tried before a jury the second time, the jury awarded damages to Clem in the amount of $1,766.25, the exact amount of the bill for the treatment rendered to her in the emergency room on the date of the accident. The circuit court granted Clem's motion to set aside the verdict and for additur in the amount of $188,513.08, which Cosby elected to accept under protest pursuant to Code § 8.01-383.1(B). Progressive Gulf Insurance Company, an underinsured motorist carrier, filed a motion for a new trial in which it asserted an independent right to decline the additur award. Upon consideration of the motion, the circuit court ordered a new trial. When the matter was tried before a jury the third time, the circuit court granted Clem's motion for partial summary judgment as to damages in the amount of $176,814.98. The jury was informed that Clem had proven her medical damages of $176,814.98 and instructed to determine any additional amount that should be awarded. The jury awarded damages to Clem in the amount of $6,000 and the circuit court entered judgment for Clem in the amount of $182,814.98.

Opinion of the Court

² The record in this case indicates that a spinal cord stimulator is composed of an implanted pulse generator that sends electronic pulses to the spine via a connecting cable attached to an electrode placed in the spinal canal. The patient controls the strength of the impulses with a remote programmer.

³ The parties also disputed the force of the impact. Clem's husband, who was driving the vehicle in which she was riding, testified that the force of the impact was hard enough to break the driver's seat. Cosby described the impact as "minimum" and compared it to a bump in a parking lot. Cosby introduced photographs depicting the conditions of the vehicles observed by him after the accident.

⁴ The jury was instructed:

In determining the damages to which the plaintiff, Susan Clem, is entitled, you shall consider any of the following which you believe by the greater weight of the evidence was caused by the negligence of the defendant, Glen Cosby:

(1) any bodily injuries she sustained and their effect on her health according to their degree and probable duration;

(2) any physical pain and mental anguish she suffered in the past;

(3) any disfigurement or deformity and any associated humiliation or embarrassment;

(4) any inconvenience caused in the past;

(5) any medical expenses incurred in the past.

Your verdict shall be for such sum as will fully and fairly compensate the plaintiff, Susan Clem, for the damages sustained as a result of the defendant's negligence.

⁵ During the jury's deliberation, the jury submitted the following question to the circuit court: "How much of these expenses were actually paid out of pocket by the plaintiff?" In response, the circuit court informed the jury it could not answer the question and instructed the jury to make a decision based upon the evidence it heard and the exhibits that were produced. Clem asserts that "the jury's consideration of a matter not before them" was "made clear" by this question. We disagree and will not assume that the jury deliberately ignored the instruction of the circuit court. See Raisovich v. Giddings, 214 Va. 485, 487-88, 201 S.E.2d 606, 608 (1974).

⁶ Our holding that the circuit court erred in setting aside the verdict in the first trial renders it unnecessary for us to address the remaining assignments of error.

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