Present: All the Justices
JONATHAN R. DANDRIDGE
v. Record No. 031457 OPINION BY JUSTICE ELIZABETH B. LACY
April 23, 2004
ALBERT R. MARSHALL
FROM THE CIRCUIT COURT OF HENRICO COUNTY
Gary A. Hicks, Judge
Jonathan R. Dandridge filed a personal injury action
against Albert R. Marshall seeking damages of $300,000. In
this appeal, Dandridge asserts that due to the trial court's
error in three of its evidentiary rulings, the jury awarded
him only $15,000. For the reasons we state below, we will
remand the case for a new trial on damages because the trial
court erred in excluding certain testimony and allowing other
testimony.
Facts
On December 5, 1999, Dandridge and Marshall were involved
in an automobile accident. An ambulance service transported
Dandridge, complaining of nausea, blurred vision, and a severe
headache, to the Medical College of Virginia Hospital for
treatment.
Dandridge filed a motion for judgment alleging that
Marshall's negligence caused the accident. Prior to trial,
Marshall admitted liability but contested the extent of
Dandridge's injuries stemming from the accident. The case was
submitted to the jury on the issue of damages only.
At trial, Dandridge testified that he had suffered a
concussion in a prior automobile accident two months before
his accident with Marshall. According to Dandridge, the
concussion from his prior accident forced him to withdraw from
classes he was taking at Virginia Commonwealth University and
left him with "moderate" headaches, neck pain, and an
inability to study due to medication. By the time of the
second accident, Dandridge testified he "still had some
residuals of neck pain and from [sic] minor headaches, but
nothing that was debilitating," and that his health generally
was improving.
Dr. Ross Bullock, a neurosurgeon and Dandridge's treating
physician after his first accident, testified that in the
first accident Dandridge had suffered whiplash and "mild to
moderate traumatic brain injury" and that Dandridge would
still have been feeling the effects of those injuries at the
time of his second injury.
After his second concussion, Dandridge's symptoms
included significantly more severe headaches, blurred vision,
nausea, and difficulty concentrating. Dr. David X. Cifu
treated Dandridge after his second accident and diagnosed him
with "post-concussive syndrome" due to his two accidents.
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According to Dr. Cifu, 85-90% of those who suffer a single
concussion make a full recovery within eighteen months, and
patients rarely show any improvement beyond that time. While
Dandridge was improving steadily before his accident with
Marshall, in Dr. Cifu's opinion, the second concussion
intensified his symptoms. Because Dandridge continued to
suffer the effects of these concussions as of his last visit
with Dr. Cifu on January 24, 2002, Dr. Cifu suggested that
Dandridge seek treatment from a psychiatrist or a pain-
management specialist. Another physician, Dr. Martin Stein,
treated Dandridge with pain medication, but Dr. Stein's
treatment of Dandridge ended when Dr. Stein's medical license
was suspended on October 21, 2002.
Dr. Joel J. Silverman performed a psychiatric evaluation
of Dandridge pursuant to Supreme Court Rule 4:10, and portions
of his deposition were read at trial. Dr. Silverman testified
that Dandridge suffered from chronic depression, and that his
headaches were not caused by the second accident but by
stress, depression, or a biological predisposition to
headache. Dr. Silverman concluded that the intensification of
Dandridge's headaches was not the result of the second
accident.
In this appeal, Dandridge assigns error to three of the
trial court's evidentiary rulings. Dandridge asserts first
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that the trial court erred in sustaining Marshall's objection
to Dandridge's testimony regarding his treatment by Dr. Martin
Stein. Dandridge also assigns error to the trial court's
rulings that permitted certain testimony by Dr. Silverman,
specifically, that Dandridge had admitted he hoped to meet
financial obligations with proceeds of the lawsuit and that
Dandridge had purchased an "assault weapon" rather than
securing further medical treatment. We consider these issues
in order.
I.
Dr. Stein treated Dandridge in 2002 following termination
of Dr. Cifu's treatment. Dandridge's treatment consisted
primarily of prescriptions for pain medications. Dr. Stein's
medical license was subsequently revoked. On the day of
trial, Marshall filed a motion in limine to preclude Dandridge
from introducing any testimony regarding the treatment
Dandridge received from Dr. Stein. Marshall's objection to
this testimony was that Dr. Stein was not going to testify at
trial and that, under McMunn v. Tatum, 237 Va. 558, 569, 379
S.E.2d 908, 914 (1989), only Dr. Stein could testify whether
the treatment Dandridge received was reasonable and related to
the accident.
Marshall correctly recites the principle that only a
physician can testify as to the reasonableness of treatment
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and its causal connection to an event. However, the testimony
that Dandridge wished to present regarding Dr. Stein's
treatment did not address those issues. As he argued at trial
and reasserts here, Dandridge wanted to testify that when Dr.
Cifu told Dandridge he could not provide any further helpful
treatment and Dandridge should seek treatment with a
psychiatrist or pain management specialist, Dandridge followed
those instructions and secured treatment with Dr. Stein, a
psychiatrist specializing in pain management. Such testimony
bears not on the medical necessity of Dr. Stein's treatment
but on Dandridge's heeding of Dr. Cifu's instructions.
Based on this record, we conclude that the trial court
erred in sustaining Marshall's objection to Dandridge's
testimony that Dandridge followed the advice of Dr. Cifu and
secured pain management treatment by Dr. Stein. This
testimony was relevant in a number of particulars. It showed
that Dandridge followed the recommendation of Dr. Cifu, his
treating physician, that Dandridge spent money on further
treatment – in contradiction to Dr. Silverman's testimony –
and it also supported Dandridge's claim of a permanent injury,
because Dandridge continued to seek medical treatment even
though his treatment with Dr. Cifu ended over a year before
the litigation.
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Our conclusion requires that we reverse the judgment of
the trial court and remand the case for a new trial on
damages. Because the other issues Dandridge raises in this
appeal may arise on retrial, we will address them here.
II.
Dandridge complains that the trial court erroneously
overruled his objection to the following exchange during
Marshall's questioning of Dr. Silverman:
Q. Now, Doctor, did you discuss at any point
the motivation for this lawsuit or the basis for
this lawsuit.
. . .
A. Mr. Dandridge volunteered that he had
heavy financial obligations, and that he hoped that
he could better meet some of those obligations as a
result of the litigation.
Dr. Silverman's statement, according to Dandridge, improperly
injects his financial standing into consideration of his
damages. Washington-Virginia Ry. Co. v. Deahl, 126 Va. 141,
150, 100 S.E.2d 840, 843 (1919). Marshall counters that this
statement is admissible as an admission that is probative on
the issues of injuries and the extent of damages, citing
Breeden v. Roberts, 258 Va. 411, 518 S.E.2d 834 (1999).
In Breeden, a personal injury action, the plaintiff
denied making a statement to a third party "about how much
money [he was] going to get out of th[e] lawsuit." Id. at
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415, 518 S.E.2d at 837. Unlike Dandridge, the plaintiff in
Breeden neither objected to the question nor sought to have
the answer stricken. Id. Nevertheless, in considering
whether the defendant could introduce further evidence to
contradict the plaintiff's testimony, we observed that the
plaintiff's statement regarding the money he would receive
from the lawsuit "related to and tended to cast light upon the
issue of his injuries and the extent of his damages." Id. at
416, 518 S.E.2d at 837. While this statement is dicta, we
agree with Marshall that, like the statement in Breeden,
Dandridge's statement here was relevant because it was not, as
Dandridge argues, limited to his financial status but "cast
light" on a matter contested at trial: Dandridge's
credibility regarding the extent of his injuries. Id.
Accordingly, the trial court did not err in admitting this
statement into evidence.
III.
Finally, Dandridge asserts that the trial court erred in
allowing Dr. Silverman to testify that Dandridge used his
money to purchase an "assault weapon" and ammunition rather
than seeking further medical treatment. This testimony
occurred by deposition and in the context of Dr. Silverman's
explanation that impulsive behavior and irrational decisions
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are relevant factors in the evaluation of a person who is
depressed.
In determining whether evidence should be admitted,
the trial court must apply a balancing test in assessing
the probative value of the evidence and its prejudicial
effect. Brugh v. Jones, 265 Va. 136, 140, 574 S.E.2d
282, 284-85 (2003). This determination rests within the
sound discretion of the trial court and will be reversed
on appeal only upon a showing of an abuse of discretion.
Lombard v. Rohrbaugh, 262 Va. 484, 492, 551 S.E.2d 349,
353 (2001).
Dr. Silverman testified that irrational decisions
including impulsive purchasing are relevant to the mental
examination of a depressed person. However, an expert need
not identify every act that person performed to offer an
opinion on the mental condition of the person under
examination. In this case, the prejudicial effect of
identifying an assault weapon as one of Dandridge's impulse
purchases substantially outweighs the probative value of
identifying the object of an impulsive purchase. The mention
of an assault weapon and ammunition distracts the jury from
the matter at issue and prejudices Dandridge. Accordingly, we
conclude that the trial court committed error because it
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abused its discretion in allowing Dr. Silverman to testify
that Dandridge purchased an assault weapon.
Finally, we reject Marshall's suggestion that any error the
trial court committed in the three evidentiary rulings at
issue was harmless error. Well established principles require
that error be presumed prejudicial unless the record clearly
shows that the error could not have affected the result.
Spence v. Miller, 197 Va. 477, 482, 90 S.E.2d 131, 135 (1955).
"There is no presumption that error is harmless." Breeding v.
Johnson, 208 Va. 652, 659, 159 S.E.2d 836, 842 (1968).
Marshall bases his argument primarily on his theory that the
jury returned a verdict of only $15,000 because it did not
find Dandridge credible. Nothing in the record of this case
clearly shows that Dandridge's credibility alone was the basis
of the jury's verdict or that the errors of the trial court
did not affect Dandridge's credibility.
For the reasons stated, we will reverse the judgment of
the trial court and remand the case for a new trial consistent
with this opinion on the question of damages.
Reversed and remanded.
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