Present: All the Justices
RUSSELL WAYNE HUNDLEY
v. Record No. 971899 OPINION BY JUSTICE CYNTHIA D. KINSER
June 5, 1998
PATSY JEAN OSBORNE
FROM THE CIRCUIT COURT OF HENRY COUNTY
Martin F. Clark, Jr., Judge
In this appeal, we decide whether the circuit court
erred by setting aside a jury verdict in the amount of
$125,000 in favor of Patsy Jean Osborne 1 on the basis that
the verdict was inadequate as a matter of law and by
ordering Russell Wayne Hundley to pay Osborne $240,000 or
submit to a new trial. Because we find that the evidence
regarding Osborne’s future medical expenses and future loss
of wages is subject to differing interpretations and thus
is controverted, we will reverse the judgment of the
circuit court.
I.
On December 21, 1992, a truck driven by Hundley
collided head-on with a car in which Osborne was a
passenger. As a result of the accident, Osborne sustained
several injuries that required medical treatment.
1
Throughout the record, the appellee’s name is
spelled “Osborne” and “Osbourne.” We are using the
spelling which appears in our order awarding an appeal in
this case.
Specifically, Osborne fractured her coccyx, sternum, and
three of her ribs. She also sustained a sprained left
ankle and a soft tissue injury to her right knee.
Osborne filed suit against Hundley, who admitted
liability, and a jury trial was held on the issue of
damages only. 2 In regard to that issue, two of Osborne’s
treating orthopedic surgeons, Dr. Karl Thomas Wagner, Jr.,
and Dr. Robert Samuel Widmeyer, testified via deposition
concerning their respective treatment of Osborne as well as
their prognosis about the future medical treatment Osborne
would need. Dr. Wagner, who first saw Osborne on December
28, 1992, testified that he treated Osborne’s injuries with
physical therapy, anti-inflammatory medications, and
exercise. Dr. Wagner reported that throughout Osborne’s
course of treatment, she continued to have pain and
tenderness in her right knee and that it was “by far the
worst problem.” Nevertheless, Dr. Wagner anticipated that
Osborne would make “a complete recovery” from her injuries
and stated that she did not have “any permanent disability
relating to her ankle, related to her coccyx, related to
her ribs or related to her sternum.” As of April 14, 1993,
2
Hundley stipulated that Osborne had incurred past
medical expenses totaling $12,081.47.
2
Dr. Wagner released Osborne to return to work without any
restrictions on her activities.
Osborne was referred to Dr. Widmeyer in March 1995
after she continued to experience tenderness in her right
knee as well as residual pain around her sternum. Dr.
Widmeyer testified that Osborne suffers from localized soft
tissue problems in her right knee for which he has
prescribed physical therapy, anti-inflammatory medications,
and periodic cortisone injections. 3 While Dr. Widmeyer
stated that Osborne’s condition was not “crippling” or
“dangerous,” he did opine that it was “painful” and that
“her ability to do what she used to do is half what it
was.” Thus, according to Dr. Widmeyer, Osborne’s right
knee injury “doesn’t look like its going to go away by
anything . . . tried so far.” Finally, Dr. Widmeyer
concluded that Osborne’s need for future medical treatment
for her knee would likely continue at the same rate. He
stated that Osborne goes to the doctor only when “she’s
3
Dr. Widmeyer initially stated that he had given
Osborne at least seven to ten cortisone injections and that
Osborne usually had to miss some time at work when her pain
became severe enough to require an injection. However, on
cross-examination, Dr. Widmeyer admitted that he had
injected Osborne with cortisone only five times during a
span of approximately three years.
3
flared up, she comes more frequently until the flare-up
settles down . . . .”
Osborne, as well as her friends and family, testified
regarding the effect of Osborne’s injuries on her job
performance and personal life. Osborne returned to her job
on April 15, 1993. Her position as a “maurata” machine
operator is physically demanding and frequently requires
her to lift and carry bolts of fabric called “cheeses,”
which weigh ten pounds each. Several times during a
regular shift at work, Osborne loads 54 of these “cheeses”
onto a pin truck and then pushes the truck to another part
of the plant. Because of the strenuous nature of her job,
Osborne often experiences pain in her right knee, and she
has missed work when the pain became severe enough that she
needed an injection of cortisone. 4 Even though a co-worker
occasionally has had to assist Osborne with her job duties,
Osborne has received two raises along with a four percent
bonus since the accident. In regard to her personal life,
Osborne seldom engages in activities that she used to
4
Osborne claims that from December 1992 to February
1997, she incurred $9,510.18 in lost wages. However, the
record is unclear whether Osborne’s lost wages were
entirely attributable to her injuries or due, in part, to
reasons unrelated to the accident.
4
enjoy, such as dancing, camping, and walking, because these
activities now cause her to suffer knee pain.
Following its deliberations, the jury returned a
verdict in favor of Osborne in the amount of $125,000.
Osborne then moved the court to set aside the verdict and
asked for a new trial or, in the alternative, additur.
After considering the briefs and arguments by both parties,
the circuit court determined that the jury verdict was
inadequate as a matter of law and ordered Hundley either to
pay Osborne $240,000 or to submit to a new trial. 5
In nearly doubling the amount of the jury’s verdict,
the circuit court focused on the evidence pertaining to
Osborne’s future medical expenses and future loss of wages.
In its letter opinion, the court first found uncontradicted
evidence that Osborne averaged $2,300 a year in medical
expenses from March 1995 through December 1996 for
treatment of her knee injury and that she would continue to
incur expenses at the same rate in the future. 6 Thus, the
5
Our recent decision in Supinger v. Stakes, 255 Va.
198, 495 S.E.2d 813 (1998), does not affect the instant
case. Counsel for Osborne, in the proceedings below,
requested the circuit court to use additur.
6
The record on appeal contains no testimony that
Osborne averaged $2,300 for medical expenses from March
1995 through December 1996 for treatment of her knee
injury.
5
circuit court multiplied the average yearly incurred
medical expenses times Osborne’s life expectancy of 36.9
years and concluded that Osborne would incur $84,870 in
future medical expenses.
The court next found uncontradicted evidence that
Osborne would continue to incur wage losses as a result of
her knee injury. In determining the amount of such future
losses, the circuit court averaged the wages Osborne lost
from 1994 to 1997 and then multiplied that average by 22
years, Osborne’s estimated remaining work expectancy. 7 The
court then found that plaintiff had demonstrated damages of
$25,883 in future loss of wages.
In sum, the court concluded that Osborne had proven
“$12,081.47 in past medical expenses, $84,870.00 in future
medical expense, $9,510.18 in past lost wages and
$25,883.00 in future lost wages, an aggregate amount of
$132,344.65, making the $125,000.00 jury verdict inadequate
as a matter of law.” 8 Hundley accepted the additur under
7
Implicit in the circuit court’s calculation is the
assumption that the lost wages incurred by Osborne during
these years were entirely attributable to her knee injury.
However, as stated previously, the record before this Court
lacks any specific evidence attributing all of Osborne’s
lost wages to her injuries.
8
The jury’s verdict of $125,000 arguably included
more than $100,000 for damages such as physical pain,
mental anguish, future medical expenses, and future loss of
6
protest and, pursuant to Code § 8.01-383.1(B), sought to
have the judgment reviewed on appeal.
II.
The dispositive issue in this appeal is whether the
jury’s verdict is inadequate as a matter of law because the
jury did not award a sufficient amount to Osborne for
future medical expenses and future loss of wages.
Resolution of this issue turns on whether Osborne's
evidence of future medical expenses and loss of wages was
uncontroverted.
We stated in Bradner v. Mitchell, 234 Va. 483, 487,
362 S.E.2d 718, 720 (1987), that when a plaintiff's
evidence of special damages “is uncontroverted and so
complete that no rational fact-finder could disregard it
. . . it must be considered as a fixed, constituent part of
the verdict.” See also Davoudlarian v. Krombein, 244 Va.
88, 91, 418 S.E.2d 868, 870 (1992). However, we also
stated that when “the plaintiff’s evidence of special
damages is controverted, doubtful as to nature and extent .
. . then neither the circuit court nor we, on appeal, can
say that the plaintiff’s special damages constituted any
fixed part of the jury's verdict.” Bradner, 234 Va. at
____________________
wages because Osborne’s past medical expenses and lost
wages totaled only $21,591.65.
7
487, 362 S.E.2d at 720-21. 9 In the latter situation, “the
verdict cannot be disturbed on a claim of inadequacy.” Id.
at 488, 362 S.E.2d at 721.
In the present case, we cannot say that Osborne’s
evidence regarding future medical expenses and loss of
wages “is uncontroverted and so complete that no rational
fact-finder could disregard it.” Id. at 487, 362 S.E.2d at
720. With regard to future medical expenses, Dr. Widmeyer
testified that Osborne’s need for future medical treatment
for her knee would likely continue at the same rate. He
further stated that Osborne characteristically has not
sought medical treatment until she has experienced an
exacerbation of the pain in her knee. The circuit court
interpreted this testimony to mean that Osborne would
continue to incur medical expenses for treatment of her
knee pain at the same actual rate at which she had incurred
medical expenses from March 1995 through December 1996.
However, this interpretation is only one possible
construction of Dr. Widmeyer’s testimony. The jury could
have reasonably concluded that Osborne will need some
treatment for her knee pain in the future but not
9
The rule enunciated in Bowers v. Sprouse, 254 Va.
428, 492 S.E.2d 637 (1997), is not applicable to the
present case because the verdict at issue is not for the
exact amount of Osborne’s special damages.
8
necessarily at the same rate for the next 36.9 years of her
life. Furthermore, the record before us does not
demonstrate that Osborne incurred a yearly average of
$2,300 for medical expenses from March 1995 through
December 1996 solely because of her knee injury.
The circuit court conducted a similar analysis of
Osborne’s evidence regarding her future loss of wages.
Because Dr. Widmeyer testified that Osborne’s residual knee
problem will remain constant over time, the circuit court
concluded that Osborne would suffer wage losses in the
future at the same average rate at which she had incurred
such losses from 1994 to 1997. However, the record is
unclear whether all the time that Osborne missed from work
during those years was directly attributable to her knee
injury. In fact, she did not receive treatment from Dr.
Widmeyer until March 1995 at which time she initially
complained about pain in her right knee and sternum.
Accordingly, we conclude that the circuit court erred
in setting aside the jury’s verdict. “Great respect is
accorded a jury verdict, and it is not sufficient that a
trial judge, had he been on the jury, would have rendered a
different verdict.” Hall v. Hall, 240 Va. 360, 363, 397
S.E.2d 829, 831 (1990). When “reasonably fairminded
[persons] may differ as to the conclusions of fact to be
9
drawn from the evidence, or if the conclusion is dependent
upon the weight to be given the testimony,” then such
evidence is controverted, and the jury’s verdict cannot be
disturbed either by the circuit court or this Court. Id.
(quoting Forbes & Co. v. Southern Cotton Oil Co., 130 Va.
245, 259, 108 S.E. 15, 19 (1921)).
For these reasons, we will reverse the judgment of the
circuit court, reinstate the verdict of the jury, and enter
final judgment on the verdict.
Reversed and final judgment.
10