Velocity Express Mid-Atlantic, Inc. v. Hugen

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."

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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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