Norfolk Beverage Co. v. Kwang Ja Cho

Present: Carrico, C.J., Compton, * Lacy, Hassell, Keenan,
Koontz, and Kinser, JJ.

NORFOLK BEVERAGE COMPANY,
INCORPORATED
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 990528 March 3, 2000

KWANG JA CHO, ET AL.

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Edward W. Hanson, Jr., Judge

In this appeal of judgments entered in consolidated tort

actions, we consider whether the jury's verdicts are excessive

and whether the circuit court erred by permitting an expert

witness to render opinions that certain medical expenses that

the plaintiffs incurred were related to their injuries.

Kwang Ja Cho and Pyong Tu Cho filed separate amended

motions for judgment against Norfolk Beverage Company, Inc.,

and its employee, Donald R. Buckner. The Chos alleged that

they were injured when Buckner committed an assault upon them

while acting within the scope of his employment. The circuit

court consolidated the cases. The Chos settled their claims

against Buckner, and a jury returned verdicts against Norfolk

Beverage in favor of Mr. Cho in the amount of $160,000, and in

favor of Mrs. Cho in the amount of $310,000. The circuit

*
Justice Compton participated in the hearing and decision
of this case prior to the effective date of his retirement on
February 2, 2000.
court entered judgments confirming the verdicts, and Norfolk

Beverage appeals.

Applying established principles of appellate review, we

shall summarize the evidence in the light most favorable to

the Chos, who come to this Court armed with jury verdicts

confirmed by the circuit court. Mr. and Mrs. Cho operate

Joe's Upholstery Shop in a shopping center in Virginia Beach.

On the morning of May 2, 1995, Mr. Cho left the shop and got

into his car. Mr. Cho was unable to drive out of the parking

lot because a Norfolk Beverage truck was parked in a manner

that prevented him from exiting the parking lot.

Mr. Cho approached Buckner, who was seated in the truck,

and asked him to move the truck. Buckner replied that he was

entitled to park the truck in any space for 15 to 20 minutes.

Mr. Cho responded that he had a dental appointment and again

asked Buckner to move the truck. Buckner cursed at Mr. Cho,

who then returned to his car and waited for Buckner to move

the truck.

After waiting for a moment, Mr. Cho "honked the horn

twice," but Buckner did not respond. Mr. Cho got out of his

car and walked toward Buckner, who was still sitting in the

truck. As Mr. Cho walked toward the truck, Buckner opened a

door and told Mr. Cho not to touch the truck. Buckner kicked

Mr. Cho in the head, causing him to fall on the pavement. Mr.

2
Cho directed his employee, Alexander Stith, Jr., who had

witnessed the altercation, to "[g]o call [the] police."

When Stith entered Joe's Upholstery Shop to place a

telephone call to the police, he informed Mrs. Cho that her

husband had been assaulted. She left the shop and went to the

parking lot where she encountered Buckner, who had begun to

drive away. Mrs. Cho told Buckner: "Stop, stop. . . .

Police came. Stop, police came." Buckner stopped the truck,

opened the door, and hit Mrs. Cho in her neck, causing her to

fall on the pavement. Mrs. Cho stood up, and Buckner kicked

her on her waist, causing her again to fall to the pavement.

Mrs. Cho stood up, and Buckner hit her in her chest, causing

her to fall on the pavement a third time. Subsequently,

police officers and emergency response personnel arrived at

the shopping center, and the Chos were transported in an

ambulance to a hospital where they received medical treatment.

Mr. Cho experienced pain in his head and ear as a result

of the assault. His face was swollen, and he suffered

auditory problems related to the assault. Mrs. Cho suffered

bruises and a back injury. Mrs. Cho experienced pain in her

neck and headaches.

During the trial, Mrs. Cho introduced medical bills and

an exhibit which included a summary of those bills. The

summary identified the names of various health care providers

3
that had rendered treatment to Mrs. Cho and the costs of that

treatment. The summary also contained the total amount of

Mrs. Cho's medical bills, $8,653.81. Similarly, Mr. Cho

introduced an exhibit which contained the names of each health

care provider that rendered treatment to him and the costs of

his treatment. His exhibit contained the total amount of his

bills, $1,336.75.

Dr. Steven Gershon, a physiatrist, testified with a

reasonable degree of medical certainty that the medical bills

contained in the plaintiffs' exhibits represented treatment

for injuries that Mr. and Mrs. Cho sustained when Buckner

assaulted them. Norfolk Beverage objected and asserted that

Dr. Gershon was not qualified to render opinions that

treatment by doctors outside his field of expertise was

causally related to the plaintiffs' injuries. The circuit

court overruled the objection and permitted Dr. Gershon's

testimony. Norfolk Beverage, relying upon our decision in

McMunn v. Tatum, 237 Va. 558, 379 S.E.2d 908 (1989), argues

that the circuit court erred by permitting Dr. Gershon to

render opinions that the plaintiffs' bills were incurred for

treatment of injuries sustained in the assaults because the

plaintiffs failed to establish a foundation to qualify Dr.

Gershon as an expert competent to render opinions on whether

4
the bills were medically necessary or causally related. We

disagree with Norfolk Beverage.

In McMunn, we considered "whether it was error to admit

proof of [a] plaintiff's medical bills without foundation

evidence that they were a necessary consequence of the

defendant's negligence." Id. at 560, 379 S.E.2d at 909. The

plaintiff, Charlotte A. Tatum, filed an action for medical

negligence against her dentist, Michael O. McMunn. At trial,

Tatum offered in evidence an exhibit consisting of 49 pages of

medical, hospital, and pharmaceutical bills attached to a

summary sheet, which contained a total of the bills. Tatum

testified that certain bills were unrelated to her claim

against Dr. McMunn, and she deleted all charges she considered

unrelated to that claim. She also testified that she received

the bills, but she did not qualify as an expert witness.

McMunn objected to this evidence on the basis that it lacked a

foundation to show that the expenses claimed were necessarily

incurred as a result of his alleged negligence. The circuit

court admitted the exhibit. Id. at 566-67, 379 S.E.2d at 912-

13.

We stated that

"[t]he question whether a particular treatment
is medically necessary, however, and the often more
difficult question whether it is causally related to
a condition resulting from some act or omission on a
defendant's part, can usually be determined only by

5
 a medical expert qualified in the appropriate field
who has studied the plaintiff's particular case.
The mere receipt of bills regular on their face by a
plaintiff furnishes no evidence of medical necessity
or causal relationship. The unfairness to the
defendant of receiving such proof without expert
foundation in a case of the kind now before us is
obvious.
"We now hold that where the defendant objects
to the introduction of medical bills, indicating
that the defendant's evidence will raise a
substantial contest as to either the question of
medical necessity or the question of causal
relationship, the court may admit the challenged
medical bills only with foundation expert testimony
tending to establish medical necessity or causal
relationship, or both, as appropriate."

Id. at 569, 379 S.E.2d at 914. In McMunn, we examined the

record in light of the aforementioned principles, and we held

that the record contained sufficient evidence of medical

necessity and causal relationship. Id. at 570, 379 S.E.2d at

914-15.

Here, we hold that the circuit court did not err in

admitting the plaintiffs' medical summaries. Dr. Gershon, a

physiatrist who was board certified in physical medicine and

rehabilitation, testified that he performed separate,

independent medical evaluations of Mr. and Mrs. Cho. He

reviewed all the plaintiffs' medical records related to their

treatment, including ancillary studies that had been

performed. He conducted comprehensive physical examinations

upon them, took their medical histories, evaluated their

conditions, and made recommendations for medical treatment.

6
He performed a neurological systems examination, a mechanical

systems evaluation, and a musculoskeletal systems evaluation

on Mr. and Mrs. Cho. Even though the exhibits that were

introduced in evidence contained medical bills from hospitals,

radiologists, family practitioners, neurologists, emergency

room physicians, and other health care providers, we hold that

in view of Dr. Gershon's expertise, the circuit court did not

err in permitting him to render opinions with a reasonable

degree of medical certainty that the treatment the Chos

received was reasonable and causally related to the assaults.

Next, Norfolk Beverage argues that the jury's awards of

$160,000 and $310,000 to Mr. and Mrs. Cho, respectively, are

excessive and not products of fair and impartial decisions

because Mr. Cho's medical bills totaled $1,336.75, and Mrs.

Cho's medical and physical therapy bills totaled $8,653.81.

Norfolk Beverage says that neither plaintiff suffered any

permanent injury, lost wages, or disability, and that the

jury's compensatory damage awards suggest that the jury

sought, in part, to punish Norfolk Beverage rather than fairly

and impartially compensate the plaintiffs for their injuries.

We have held that, generally, a circuit court should not

disturb a jury verdict awarding damages which has been

rendered fairly and is based upon competent evidence.

However, a jury verdict is not beyond the control of the

7
courts, and courts have the duty to correct a verdict that

plainly appears to be unfair or would result in a miscarriage

of justice. Poulston v. Rock, 251 Va. 254, 258, 467 S.E.2d

479, 481 (1996); Edmiston v. Kupsenel, 205 Va. 198, 202, 135

S.E.2d 777, 780 (1964). The issue whether a verdict is

excessive is initially within the sound discretion of the

circuit court and, on appeal, the standard of review is

whether the circuit court abused its discretion. Virginia

Elec. & Power Co. v. Dungee, 258 Va. 235, 261-62, 520 S.E.2d

164, 180 (1999); accord Modaber v. Kelley, 232 Va. 60, 69, 348

S.E.2d 233, 238 (1986); American Oil Co. v. Nicholas, 156 Va.

1, 12, 157 S.E. 754, 758 (1931).

In Smithey v. Sinclair Refining Co., 203 Va. 142, 146,

122 S.E.2d 872, 875-76 (1961), we stated the following

principles which are equally pertinent here:

"In a case where the verdict of a jury is
attacked on the ground that it is excessive, the
rules controlling the actions of the court in
relation thereto are clear and well defined. If the
verdict merely appears to be large and more than the
trial judge would have awarded had he been a member
of the jury, it ought not to be disturbed, for to do
so the judge must then do what he may not legally
do, that is, substitute his judgment for that of the
jury. Aronovitch v. Ayres, 169 Va. 308, 328, 193
S.E. 524, 531 [1937]; Simmons v. Boyd, 199 Va. 806,
811, 812, 102 S.E.2d 292, 296 [1958].
"But if it appears that the verdict is so
excessive as to shock the conscience of the court
and to create the impression that the jury has been
influenced by passion, corruption or prejudice, or
has misconceived or misunderstood the facts or the

8
 law, or if the award is so out of proportion to the
injuries suffered to suggest that it is not the
product of a fair and impartial decision, then it
becomes the plain duty of the judge, acting within
his legal authority, to correct the injustice."

Accord Poulston, 251 Va. at 258-59, 467 S.E.2d at 481-82.

Applying the aforementioned principles, we hold that the

circuit court did not abuse its discretion in confirming the

jury's verdicts. The jury was instructed, without objection,

as follows:

"If you find your verdict for either plaintiff,
then in determining the damages to which they are
entitled, you may consider any of the following
which you believe by the greater weight of the
evidence was caused by the battery by Mr. Buckner:
"1. the bills of health care providers
admitted in evidence;
"2. all physical injury the Chos suffered;
"3. any shame, humiliation, embarrassment or
indignity to their feelings that they
suffered;
"You may also consider in awarding damages the
insulting character of the injury, Mr. Buckner's
reason for injuring the Chos, and any other
circumstances which make the injury more serious, if
any of these things are shown by the evidence.
"Your verdict should be for such sum as will
fairly and fully compensate the plaintiff for the
damages sustained as a result of the battery."

The jury was entitled to consider the aforementioned

elements in assessing damages against Norfolk Beverage. In

view of this jury instruction and the evidence of record,

including the attack upon the Chos, the humiliation they

experienced, and the injuries that they incurred, the amounts

of the jury verdicts are not shocking to this Court.

9
 Finding no reversible error in the record, we will affirm

the judgments of the circuit court.

Affirmed.

10