Present: All the Justices
VELOCITY EXPRESS MID-ATLANTIC, INC.
OPINION BY CHIEF JUSTICE LEROY R. HASSELL, SR.
September 12, 2003
v. Record No. 022877
BRIAN F. HUGEN
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Von L. Piersall, Jr., Judge
I.
In this appeal, the primary issue that we consider is
whether the plaintiff's closing argument to the jury deprived
the defendant of its right to a fair and impartial trial.
II.
Plaintiff, Brian F. Hugen, was seriously injured in an
automobile accident on August 28, 2000. The accident occurred
around 7:00 a.m. on State Route 32 in the City of Suffolk.
Route 32 is a two lane highway that extends in northern and
southern directions. The speed limit is 55 miles per hour.
Michael T. Ross was driving a car in the northern lane of
travel. Plaintiff was driving his car in the same direction
behind Ross' vehicle. Ross observed a white van approaching
from the opposite direction. Defendant, Velocity Express Mid-
Atlantic, owned the white van which was operated by its
employee, Alvin J. Winston. The van "drift[ed] over" into
Ross' lane of travel. Trying to avoid a collision, Ross
steered his car "all the way to the shoulder of the road," and
defendant's van "sideswipe[d]" Ross' car. Defendant's van
then collided with plaintiff's car in plaintiff's lane of
travel.
After the accident occurred, Winston told defendant's
safety director: "I don't know what happened. Besides me,
there were two other vehicles. The next thing I remember was
when we got side to side of each other, I heard a mirror go
off the van. Then when I went swerving, when I swerved in the
wrong lane and hit another car and I tried to hit the brakes
and tried to get over, somehow the van wouldn't get over. And
then the van hit on the other car driving straight down the
lane, other car going the other way." Winston told a police
officer at the scene of the accident that Winston "never saw
the first vehicle that he collided with."
As a result of the accident, plaintiff sustained
catastrophic injuries, and he suffered permanent physical and
mental disabilities. Plaintiff was in a coma for 62 days
following the accident. He suffered a compression fracture of
the thoracic vertebrae, a broken femur, a fractured hip,
multiple fractures to his right ankle, collapsed lungs, and
severe brain injuries. He experienced multi-system organ
dysfunction, acute renal failure, multiple incidents of deep
venous thromboses, and pneumonia. He has developed a rare
2
condition known as heterotopic ossification, which causes
abnormal new bone formations and ultimately will cause his
joints to fuse together, thereby preventing him from moving
his body. The severe stiffness in the joints caused by the
heterotopic ossification has almost completely restricted
plaintiff's use of his arms, hips, legs, and knees.
Eventually, plaintiff will have a total ankylosis or "frozen
jaw" that will prohibit him from opening his mouth, and his
jaw will become "permanently locked." Plaintiff will lose all
his teeth, and he will have to be fed through the insertion of
a surgically-implanted tube into his stomach.
Plaintiff's brain injuries have impaired his memory,
attention span, and abilities to concentrate, understand, and
follow instructions. He ranks in the bottom five percent of
the population in terms of his mental functions. As a result
of his brain injuries, plaintiff eats excessive quantities of
food because he is unable to discern when he is full.
Consequently, plaintiff, who weighed approximately 175 pounds
before the accident, now weighs 282 pounds. His weight
impairs his ability to breathe, adversely affects his heart,
and increases the risk of further blood clots.
During a jury trial, plaintiff and defendant relied upon
expert witness testimony to establish life care plans that
plaintiff will require because of his dire medical condition.
3
Plaintiff's expert witnesses testified that plaintiff will
need the services of a licensed practical nurse 24 hours each
day for the remainder of his life. Robert D. Voogt, one of
plaintiff's expert witnesses, testified that plaintiff needs
the assistance of a licensed practical nurse because this type
of nurse can provide the appropriate nursing care that
plaintiff currently requires and will require in the future.
Defendant's expert witness, Robert H. Taylor, testified that a
certified nursing aide, who has less training and is less
expensive than a licensed practical nurse, can provide the 24-
hour daily care that plaintiff needs. Taylor testified that a
certified nursing aide would cost approximately $96,360 per
year, which, when added to the other costs, resulted in a life
care plan that will cost $4,123,193.50. Plaintiff presented
evidence, however, that a licensed practical nurse would cost
$425,955 per year, which, when added to other costs, resulted
in a life care plan that cost $17,091,000.
The jury returned a verdict in favor of plaintiff in the
amount of $60,000,000. The circuit court entered a judgment
confirming the verdict and defendant appeals.
III.
Defendant asserts that the trial court erred in failing
to instruct the jury on the defense of sudden emergency.
Defendant claims that the van operated by its employee,
4
Winston, was forced into plaintiff's lane of travel when Ross'
car collided with defendant's van. We disagree with
defendant.
The sudden emergency doctrine relieves a person of
liability if, without prior negligence on his part, that
person is confronted with a sudden emergency and acts as an
ordinarily prudent person would act under the circumstances.
See, e.g., Jones v. Ford Motor Co., 263 Va. 237, 262, 559
S.E.2d 592, 605 (2002); Bentley v. Felts, 248 Va. 117, 120,
445 S.E.2d 131, 133 (1994); Carolina Coach Co. v. Starchia,
219 Va. 135, 141, 244 S.E.2d 788, 792 (1978); Pickett v.
Cooper, 202 Va. 60, 63, 116 S.E.2d 48, 51 (1960); Southern
Passenger Motor Lines, Inc. v. Burks, 187 Va. 53, 60, 46
S.E.2d 26, 30 (1948).
Additionally, we have stated:
"Ordinarily the question of application of the
sudden emergency doctrine is for the triers of fact.
When evidence is conflicting or different inferences
may be drawn from the evidence, it is for the jury
to say (1) whether [the operator of the automobile]
was confronted with an emergency; (2) whether the
emergency, if one existed, was created by [the
operator's] own negligence; and (3) whether [the
operator of the vehicle] conducted himself as an
ordinarily prudent person might have done under the
same or similar circumstances."
Cowles v. Zahn, 206 Va. 743, 746-47, 146 S.E.2d 200, 203
(1966); accord Ford Motor Co., 263 Va. at 262, 559 S.E.2d at
605; Starchia, 219 Va. at 141, 244 S.E.2d at 792.
5
In the present case, the circuit court correctly
concluded that defendant was not entitled to a jury
instruction on the sudden emergency doctrine. The accident
was caused by the negligence of defendant's own employee. For
example, Ross, the driver of the car that collided with
defendant's van before that van collided with plaintiff's car,
testified as follows:
"Q: Okay. Now, in your own words tell the
members of the jury what happened from the time you
observed the van.
"A: Well, from the time I observed the van I
noticed that [Velocity's van] was kind of drifting
over to my lane. And I went over to the shoulder to
try to avoid a collision, and it never worked. You
know, he got far enough over where he hit me, and I
went off the road, lost control.
. . . .
"Q: How much of the van came into your lane,
from your observation?
"A: From my observation I would say over
half."
And, contrary to defendant's assertions, the evidence of
record clearly demonstrates that the accident occurred in the
lane of travel occupied by Ross and plaintiff. Simply stated,
a sudden emergency did not exist.
IV.
A.
6
Plaintiff's counsel made the following remarks during his
closing argument to the jury:
"The physical pain and mental anguish
[plaintiff] suffered in the past and any that he may
reasonably be expected to suffer in the future. We
men are a proud lot at times probably to our
detriment on occasion and sometimes our pride gets
in our way. It is inconceivable to me that a man
who cared for himself, who cared for his family, who
on his wedding day to help his wife took her to
Williamsburg in lieu of a trip to the islands so
that she could be near her mother who was seriously
and mentally ill at that point in time, a man who
has taken care of himself and his family all of his
life, a man who is basically now reduced to a role
reversal. That is what has happened here, a
complete, unequivocal role reversal.
"He can't perform sexually. Can't imagine what
that is like. He can't basically do anything for
himself. If you sit there by yourself with your
arms still seated in a chair and just don't move -
"[COUNSEL FOR DEFENDANT]: Your Honor, I am
going to object to that argument as being in
violation of the golden rule, Your Honor.
"[COUNSEL FOR PLAINTIFF]: I will rephrase it
to avoid any problem.
"THE COURT: You can't put the jury in that
position.
. . . .
"[COUNSEL FOR PLAINTIFF]: [Velocity Express]
can't find a doctor. But they don't want a doctor.
They want a miracle. Just like the happening of
this accident. No amount of witnesses would satisfy
Velocity Express. You could have four bishops on
the side of the road watching what is going on and
they still could claim somehow it wasn't their
fault.
7
"Ladies and gentlemen, it is all well and good
that Corporate America balances the books and tries
to make a profit. That is the American way, isn't
it? But you cannot balance the books on the backs
of the injured. You can't take a little man like
this, injure him horribly, and then try to save
money by a cheap life care plan.
"This guy Taylor they bring down here even - he
can't fuss with the fact that Brian [Hugen] needs
somebody 24 hours a day. Yet, what he wants to do
is he doesn't want to give him a nurse. He wants to
give him an aide. But he has to concede that the
aide, which costs about [$]100,000 - the numbers are
here somewhere - a year, if they gave him the nurse,
the nurse would cost 394-. So what have you got?
$500,000 a year. That would be the two combined. So
that would save $400,000 a year that Velocity itself
says would have to be spent.
"Well, let me ask you all something. Suppose
money were no object in this case and we didn't have
Brian Hugen here. Let's say we have a man - a
wealthy man, a man of means who could afford
whatever he wants to. Suppose this had happened to
them, Howard Hughes, Bill Gates, somebody like that.
Suppose they were laying up in the condition Brian
[Hugen] was. Do you think they would have one
little aide? You don't think they wouldn't have an
aide, a nurse, and whatever else it took to make
their life as good as it possibly could?
"[COUNSEL FOR DEFENDANT]: Your Honor, I am
going to object to this argument, as well. It is
improper. The plaintiff in the case is Brian Hugen.
It is not Bill Gates. It is not anyone else. It is
improper argument. There has been no evidence about
what those individuals would expect, not even a
reasonable inference.
"THE COURT: Overruled.
"[COUNSEL FOR PLAINTIFF]: So we get the
discount plan. We are going to balance the books.
So who is the economic well spring here? Who is
providing Velocity Express with this big savings? I
don't see her here in the courtroom. Her name is
8
Florence Hugen. So you forgive me if I am a bit
sarcastic, but Mr. Taylor's plan, I don't call that
the Taylor plan[,] I call that the Flo plan because
they are going to have Flo do everything that the
nurse is supposed to do.
"Now, they give an aide in there. And I don't
know a lot about aides but let me ask you something.
Suppose something goes south for Brian? Who would
you want in the house? And I am not talking about
giving pills. Because Mr. Train wants you to
believe that the only thing the nurse would do is
give pills. Let me ask you. Suppose your husband
were choking to death and he couldn't open his
mouth? Do you want an aide trying to get your
husband's throat clear or would you like to have a
nurse -
"[COUNSEL FOR DEFENDANT]: Again, Your Honor.
"[COUNSEL FOR PLAINTIFF]: - while you're at
work?
"THE COURT: I think it is not appropriate to
ask the jurors to put themselves in the place of the
party.
"[COUNSEL FOR PLAINTIFF]: And I apologize. If
you can imagine you're responsible for a person.
Don't imagine your family members. That was an
improper question. And I perhaps in my enthusiasm
or whatever you want to call it I misspoke. I do
apologize to you. And Mr. Train's objection is well
taken. I apologize, Mr. Train, and Velocity. But
if you were responsible for someone, who would you
want there?
"[COUNSEL FOR DEFENDANT]: Same objection, Your
Honor. It is the same - I mean, you can't appeal to
the jury. You can't place the jury -
"[COUNSEL FOR PLAINTIFF]: The idea of
responsibility, Your Honor.
"THE COURT: I hate to interrupt the party when
they are making their closing argument.
9
"[COUNSEL FOR DEFENDANT]: I do, too.
"THE COURT: The jurors shouldn't be asked to
be put in the place of the parties.
"[COUNSEL FOR PLAINTIFF]: You know, [Dr.]
Kreutzer's plan that he did for Brian, that is no
Cadillac plan. I mean, you are not talking about a
registered nurse. You are just talking about a
licensed practical nurse. He doesn't have any money
folded in for contingencies. I mean, there is not a
nickel in there for any of that. I mean, it is not
-- it is not some fluffed-up plan like the defense
would have you believe. It is just basically what
is needed.
"If, for example, if - suppose an individual
were charged with the care of someone's, let's say,
child or something like, this an eight-year-old
child. And you had to pick an attendant for that
child at the home while you were away. If the
attendant was not qualified - and I am - I am
talking about a child who can go to the kitchen to
make a sandwich, go [to] the bathroom, run out of
the house if there is a fire, things Brian can't do.
If something happened to that child and you were
responsible for selecting the attendant, social
services would be coming all out the woodwork on top
of you. And that is a big -
"[COUNSEL FOR DEFENDANT]: Your Honor, I
object. I try not to interrupt, as well. But he
keeps arguing if you are talking to the jury.
"THE COURT: I think in that case it was not
[in]appropriate. I will overrule it."
(Emphasis added).
At the conclusion of the plaintiff's argument to the
jury, counsel for the defendant made a motion for a mistrial
based upon plaintiff's cumulative improper and prejudicial
arguments to the jury. The court denied the motion.
10
B.
Defendant argues that the circuit court erred in denying
the motion for a mistrial. Defendant contends that the
circuit court erroneously overruled defendant's objections to
plaintiff's references in closing argument to Howard Hughes
and Bill Gates. Defendant also contends that plaintiff
improperly and repeatedly requested that the jury place itself
in plaintiff's position, thus wrongly invoking the "Golden
Rule" despite the court's repeated instructions to counsel not
to do so.
Responding, plaintiff asserts that the circuit court
correctly denied defendant's motion for a mistrial. Plaintiff
alleges that his references to Howard Hughes and Bill Gates
were permissible to illustrate that "defendant's life care
plan focused on cutting costs and not the plaintiff's medical
needs." Plaintiff claims that his closing argument regarding
the need for a licensed practical nurse did not improperly
invoke the "Golden Rule." We disagree with plaintiff.
The principles we apply when considering whether a
circuit court erred in denying a mistrial based on statements
made by counsel in closing argument are well established.
Generally, a new trial is not required if the circuit court
sustains an objection to improper argument and instructs the
jury to disregard the improper argument. However, if "counsel
11
persists in such argument after the admonition of the court,
or if it appears that the [prejudicial] influence of the
argument was probably not wholly removed by the court's
action" a new trial may be appropriate. Maxey v. Hubble, 238
Va. 607, 614-15, 385 S.E.2d 593, 596 (1989) (quoting Rinehart
& Dennis Co. v. Brown, 137 Va. 670, 676, 120 S.E. 269, 271
(1923)); Kitze v. Commonwealth, 246 Va. 283, 288, 435 S.E.2d
583, 585 (1993); Norfolk Southern Railway Co. v. Harris, 190
Va. 966, 975, 59 S.E.2d 110, 114 (1950). If the objection to
the alleged improper argument is not sustained by the circuit
court, a new trial is appropriate if that court erred in
overruling the objection and that error resulted in prejudice
to the complaining party. Reid v. Baumgardner, 217 Va. 769,
775, 232 S.E.2d 778, 781 (1977); McLane v. Commonwealth, 202
Va. 197, 205, 116 S.E.2d 274, 280-81 (1960). The closing
argument in this case includes argument to which objections
were sustained and argument to which an objection was
overruled.
We will first consider whether the circuit court erred in
overruling defendant's objection to plaintiff's closing
argument that, in effect, suggested to the jury that it award
plaintiff damages that would permit him to procure the
services of a licensed practical nurse because wealthy persons
such as Howard Hughes or Bill Gates would procure the services
12
of a licensed practical nurse if they had incurred plaintiff's
injuries.
In Atlantic Coast Realty Co. v. Robertson's Ex'r, 135 Va.
247, 263, 116 S.E. 476, 481 (1923), we discussed the wide
latitude accorded lawyers during closing argument:
"[An attorney] must be just to opposing litigants
and witnesses and always respect their rights. His
liberties in argument are large but they are not
unlimited. He has no right to testify in argument
nor to assume that there is evidence which has no
existence, nor to urge a decision which is favorable
to his client by arousing sympathy, exciting
prejudice, or upon any ground which is illegal.
Sometimes the impropriety is so serious in character
that its evil effect cannot be corrected by the
trial judge. If this ethical rule . . . is not
sufficient to control those who fail to observe it,
the courts, however reluctant they may be to limit
the freedom of discussion, or to penalize a litigant
for the transgression of his attorney, will be
forced to curb this growing evil."
We stated, almost 100 years ago, that counsel in closing
argument must not appeal to the economic fears and passions of
a jury and that such argument constitutes reversible error.
Southern Ry. Co. v. Simmons, 105 Va. 651, 666-67, 55 S.E. 459,
464 (1906). In Simmons, counsel for the defendant, in closing
argument,
"expressed the fear that the railroad employees who
had testified against the company would lose their
places, although there was no evidence on this
point; that counsel for the railroad company rode in
private and palace cars when they came to court,
although there was no evidence on this point; that
the mind could not grasp the extent of the resources
and possessions of the Southern Railway Company,
13
while [the plaintiff] was a poor man with nobody but
his wife and child, and with no one to help him but
his wife; that the treasury of the railway company
was so exhaustless that it would hardly feel the
loss of $50,000, the amount claimed in the
declaration; and that in estimating damages [the
jury] should take into consideration the fact that
exceptions had been taken by the defendant, and that
it had been stated that if the verdict was against
it, it would appeal."
Id. at 665-66, 55 S.E. at 464. We concluded that "[s]uch a
line of argument, if proper objection be made to it at the
proper time and the trial court fails to take proper steps to
correct its ill tendencies, will constitute a sufficient
ground for reversing a judgment rendered upon a verdict thus
obtained." Id. at 666-67, 55 S.E. at 464.
In Baumgardner, counsel for the defendant objected to the
plaintiff's improper jury argument that asked a jury to award
a verdict that included as damages $1,000 for each of the
plaintiff's 28.7 years of life expectancy as established by an
annuity table. The circuit court overruled the objection.
Reversing the judgment of the circuit court, we held:
"The decision of the trial court as to the
method by which to remove the prejudicial effect of
improper argument is within its sound discretion,
and an admonition to the jury to disregard such
argument is generally deemed to have been sufficient
and not to have been an abuse of the trial court's
discretion. . . . However, if the trial court
refuses to take any corrective action to eliminate
the adverse effect on the jury of improper argument,
the probability of prejudice is increased by the
apparent approval given by the court to the
argument."
14
217 Va. at 774, 232 S.E.2d at 781.
Applying our well-established precedent, we hold that the
circuit court erred in failing to grant the defendant's motion
for a mistrial. As we have already stated, plaintiff's
counsel made the following argument to the jury:
"Suppose money were no object in this case and we
didn't have Brian Hugen here. Let's say we have a
man - a wealthy man, a man of means who could afford
whatever he wants to. Suppose this had happened to
them, Howard Hughes, Bill Gates, somebody like that.
Suppose they were laying up in the condition Brian
was. Do you think they would have one little aide?
You don't think they wouldn't have an aide, a nurse,
and whatever else it took to make their life as good
as it possibly could?"
Defendant timely objected to this argument, and the
circuit court overruled the objection. This argument was
improper because plaintiff's counsel asked the jury to award
damages based upon irrelevant economic considerations that are
not part of the record in this case. The above-referenced
portion of plaintiff's closing argument asked the jury to
award damages to the plaintiff so that he could afford the
same quality of medical care and treatment that the world's
richest individuals might purchase for themselves. The law of
this Commonwealth, however, only requires that a jury award
plaintiff compensatory damages that will fairly compensate him
for his injuries proximately caused by defendant's negligence.
15
The probable prejudicial impact of this argument is
significant because the improper argument focused on the
central dispute regarding damages in this case. As we have
already stated, the defendant presented evidence that the
plaintiff only required the services of a certified nursing
aide who would cost approximately $96,360 per year, which,
when added to other related costs, resulted in a life care
plan that totaled $4,123,193.50. In direct conflict, however,
plaintiff presented evidence that he required the services of
a licensed practical nurse who would cost $425,955 per year,
which, when added to the rest of his medical plan, represented
a total cost of $17,091,000. Plaintiff's improper jury
argument was designed to influence the jury's decision
regarding this choice. The circuit court refused to take any
corrective action to eliminate the adverse prejudicial effect
on the jury of plaintiff's improper argument. Based upon the
record before this Court, we conclude that the probability of
prejudice upon the jury was great and such prejudice was
increased by the apparent approval given by the circuit court
because of that court's refusal to take corrective action.
We also consider whether the circuit court erred by
refusing to grant defendant's motion for a mistrial because
plaintiff improperly and repeatedly requested that the jury
place itself in plaintiff's position, thus, invoking the
16
"Golden Rule" despite the court's repeated instructions to
plaintiff's counsel that he not do so.
We have repeatedly held that counsel may not, in closing
argument, invoke the so-called "Golden Rule." "The function
of the jury is to decide according to the evidence, not
according to how its members might wish to be treated."
Seymour v. Richardson, 194 Va. 709, 715, 75 S.E.2d 77, 81
(1953); accord P. Lorillard Co. v. Clay, 127 Va. 734, 752, 104
S.E. 384, 390 (1920). See also Norfolk & W. Ry. Co. v.
Keatley, 211 Va. 507, 511, 178 S.E.2d 516, 519 (1971); State
Farm Mut. Auto. Ins. Co. v. Futrell, 209 Va. 266, 272-73, 163
S.E.2d 181, 186 (1968); Phillips v. Fulghum, 203 Va. 543, 547-
49, 125 S.E.2d 835, 838-40 (1962); Cape Charles Flying Serv.,
Inc. v. Nottingham, 187 Va. 444, 455-56, 47 S.E.2d 540, 545-46
(1948); Crosswhite v. Barnes, 139 Va. 471, 486-87, 124 S.E.
242, 247 (1924).
In Rinehart & Dennis Co. v. Brown, 137 Va. 670, 676, 120
S.E. 269, 271 (1923) (citing Washington & Old Dominion Ry. v.
Ward, 119 Va. 334, 339, 89 S.E. 140, 142 (1916)), we stated:
"Generally a new trial will be denied [when]
improper argument has been checked by the court and
the jury has been instructed to disregard the
improper statements. If, however, counsel persists
in such argument after the admonition of the court,
or if it appears that the unfavorable influence of
the argument was probably not wholly removed by the
court's action, a new trial may be allowed."
17
In Virginia Elec. & Power Co. v. Jayne, 151 Va. 694, 144
S.E. 638 (1928), we reversed a judgment in favor of a
plaintiff because his counsel continued to make improper
argument in spite of the circuit court's admonitions. Counsel
in Jayne stated to the jury: "How long will the defendant
company shed its tears after this trial is over? Do you
suppose its tear duct has been hurt any?" The circuit court
directed the jury to disregard these remarks and,
subsequently, counsel stated to the jury: "That is just a
figure of speech. You know corporations haven't any tear
ducts." The circuit court instructed the jury to disregard
this remark as well. Id. at 703, 144 S.E. at 641.
We concluded that these remarks were improper and
prejudicial, and we reversed the judgment that confirmed the
jury's verdict. We stated:
"Litigants can have no just grounds for
complaint if verdicts obtained under such
circumstances are set aside. To require counsel to
confine their discussions before the jury to the law
and the evidence is no hardship, but is in
furtherance of justice, and of the prompt
disposition of controversies based upon the law and
the evidence, subjected of course to any fair
analysis or criticism, which the ingenuity of
counsel may devise."
Id. at 704, 144 S.E. at 641.
Applying the aforementioned principles, we must conclude
that plaintiff's repeated requests to the jury that it apply
18
the "Golden Rule" were prejudicial and constitute reversible
error. As we have previously stated, plaintiff argued to the
jury: "Suppose your husband were choking to death and he
couldn't open his mouth? Do you want an aide trying to get
your husband's throat clear or would you like to have a nurse
. . . while you're at work?" The defendant objected, and the
circuit court stated: "I think it is not appropriate to ask
the jurors to put themselves in the place of the party."
Plaintiff apologized, but immediately he argued to the jury:
"But if you were responsible for someone, who would you want
there?" The defendant objected, and the circuit court again
responded: "The jurors shouldn't be asked to be put in the
place of the parties."
Even though the circuit court properly sustained most of
the objections, plaintiff's counsel continued to invoke the
"Golden Rule" during closing argument. This argument was
highly prejudicial because plaintiff repeatedly asked the
jury, despite the circuit court's admonitions, to assess his
damages in relation to how the jurors would want to be
compensated personally had they been injured and sustained the
same injuries that plaintiff had sustained. And, even though
plaintiff's counsel acknowledged to the circuit court that his
use of the "Golden Rule" was improper, he continued to engage
in this prejudicial argument. Moreover, plaintiff's repeated
19
use of the "Golden Rule" was also highly prejudicial because
this argument was designed to influence the jury's decision
whether to base its verdict upon plaintiff's proposed life
care plan that cost $17,091,000 instead of defendant's life
care plan for plaintiff that cost $4,123,193.50.
C.
Generally, when a litigant makes a prejudicial closing
argument to a jury in a non-bifurcated trial, the appropriate
remedy is to award a new trial on all issues. In this case,
however, the evidence overwhelmingly supports a finding of
liability. Thus, we hold that the prejudice caused by the
improper jury argument, which involved the conflicting
evidence about plaintiff's future medical care, could not have
affected the jury's findings of negligence. Therefore, a new
trial on all issues is not appropriate. Because this case
will be remanded for a new trial on damages, we must consider
certain issues that probably will arise upon remand.
V.
Defendant argues that the circuit court erred by refusing
to permit defendant to introduce evidence of plaintiff's
history of crack cocaine use, depression, and short-term
memory loss one year before the accident. Continuing,
defendant contends that the circuit court erred by refusing to
permit defendant to cross-examine plaintiff's expert witnesses
20
regarding plaintiff's "pre-accident use of crack cocaine and
its effect on his post-accident condition" and plaintiff's
"pre-accident bouts of depression and [their] relationship to
his post-accident claims for depression."
During the trial, plaintiff sought damages for cognitive
and emotional injuries he sustained as a result of the
accident, including memory loss and depression. Dr. William
M. Bethea described plaintiff's emotional instability and
depressive condition. Dr. Bethea also testified that
plaintiff suffered from short-term memory loss. Dr. Jeffrey
S. Kreutzer, a neuropsychologist, described plaintiff's range
of post-accident cognitive defects, including his loss of
memory and ability to concentrate.
Dr. Bethea testified, outside the presence of the jury,
as follows:
"Q: Doctor, can . . . the habitual use of
crack cocaine cause memory loss?
"A: [Counselor,] I would like to make it very
clear that when I answer this question, I think it
has absolutely nothing to do with this situation
based upon the circumstances in which I have cared
for him over the last year - Mr. Hugen over the past
year. The answer would be yes.
. . . .
"Q: Dr. Bethea, if I insinuated that it was my
position that [plaintiff] had been using drugs since
the accident, I apologize. That is certainly not
what I am trying to say or insinuate in any way,
shape, or form.
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"A: I just want to make it very clear that all
of those things that I have testified to in terms of
my assessment of the [plaintiff's] present set of
circumstances would have absolutely nothing to do
with prior . . . drug use.
. . . .
"Q: And [plaintiff] has short-term memory
loss, correct?
"A: Brian Hugen was deficient in a brain-
injury pattern not a drug-injury pattern."
This Court has consistently stated that "cross-
examination on a matter relevant to the litigation and put in
issue by an adversary's witness during a [trial] is not a
privilege but an absolute right." Basham v. Terry, 199 Va.
817, 824, 102 S.E.2d 285, 290 (1958); accord Food Lion, Inc.
v. Cox, 257 Va. 449, 450, 513 S.E.2d 860, 861 (1999); Miller
v. Commonwealth, 153 Va. 890, 895-96, 149 S.E. 459, 460
(1929).
However, evidence sought to be elicited during cross-
examination must be relevant. "Evidence is relevant if it
tends to prove or disprove, or is pertinent to, matters in
issue." Clay v. Commonwealth, 262 Va. 253, 257, 546 S.E.2d
728, 730 (2001); Boggs v. Commonwealth, 199 Va. 478, 486, 100
S.E.2d 766, 772 (1957). We have stated that "[e]very fact,
however remote or insignificant, that tends to establish the
probability or improbability of a fact in issue is relevant."
22
Virginia Elec. & Power Co. v. Dungee, 258 Va. 235, 260, 520
S.E.2d 164, 179 (1999); Ravenwood Towers, Inc. v. Woodyard,
244 Va. 51, 56, 419 S.E.2d 627, 630 (1992).
Based upon the record before this Court, we conclude that
the circuit court properly refused defendant's attempt to
cross-examine plaintiff's expert witness on plaintiff's prior
drug use because that evidence was not relevant. There is no
evidence that plaintiff's brain injury or depression was
caused by or related to drug use. Therefore, evidence of the
plaintiff's prior use of cocaine or his depression could not
"prove or disprove" matters in issue. For example, Dr.
Bethea's testimony, proffered by defendant, established that
plaintiff's injuries were not caused by drug use. Moreover,
Dr. Kreutzer testified, outside the presence of the jury, that
"[t]here's no indication in [plaintiff's medical] record that
this man suffered medically, neurologically, as a consequence
of drug or alcohol use."
Even though Dr. Bethea agreed, outside the presence of
the jury, that crack cocaine could cause short-term memory
loss, Dr. Bethea testified without equivocation that
plaintiff's condition was not related in any way to drug use.
Dr. Bethea also testified, outside the presence of the jury,
that plaintiff's condition was so devastating that any
emotional instability that occurred in past years would have
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had no effect on his current condition. Additionally, we note
that the circuit court permitted defendant to cross-examine
Dr. Bethea and elicit testimony of complaints that plaintiff
made about depression one year before the accident. Simply
stated, defendant does not have an absolute right to cross-
examine a witness about evidence that is not relevant.
VI.
Defendant argues that the circuit court improperly
limited its cross-examination of Dr. Kreutzer regarding
plaintiff's pre-injury depression. Defendant contends that
Dr. Kreutzer's records show that plaintiff had told him of "a
two-year history of untreated depressive episodes." Defendant
states that Dr. Kreutzer testified that plaintiff "had been
treated successfully for depression and that his depression
had resolved several years before this accident." However,
defendant says that medical records indicate that plaintiff
experienced symptoms of depression as recently as one year
before the accident and that Dr. Kreutzer's testimony was
apparently false.
We hold that the circuit court did not err in limiting
the scope of the cross-examination. As plaintiff correctly
points out, plaintiff objected to defendant's cross-
examination of Dr. Kreutzer on the basis that it was beyond
the scope of direct examination. Plaintiff stated, in his
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objection, that "[t]here was not a single question and/or
answer elicited from this witness with regard to any diagnosis
of depression." Dr. Kreutzer did not testify on direct
examination about a diagnosis or subjective complaint of
depression made by the plaintiff either before or after the
accident and, therefore, the circuit court properly sustained
the objection.
VII.
In view of our holdings, we do not consider defendant's
remaining assignments of error. We will remand this case for
a new trial solely on the issue of damages.
Affirmed in part,
reversed in part,
and remanded.
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