Dandridge v. Marshall

Present: All the Justices

JONATHAN R. DANDRIDGE

v. Record No. 031457 OPINION BY JUSTICE ELIZABETH B. LACY
April 23, 2004
ALBERT R. MARSHALL

FROM THE CIRCUIT COURT OF HENRICO COUNTY
Gary A. Hicks, Judge

Jonathan R. Dandridge filed a personal injury action

against Albert R. Marshall seeking damages of $300,000. In

this appeal, Dandridge asserts that due to the trial court's

error in three of its evidentiary rulings, the jury awarded

him only $15,000. For the reasons we state below, we will

remand the case for a new trial on damages because the trial

court erred in excluding certain testimony and allowing other

testimony.

Facts

On December 5, 1999, Dandridge and Marshall were involved

in an automobile accident. An ambulance service transported

Dandridge, complaining of nausea, blurred vision, and a severe

headache, to the Medical College of Virginia Hospital for

treatment.

Dandridge filed a motion for judgment alleging that

Marshall's negligence caused the accident. Prior to trial,

Marshall admitted liability but contested the extent of
Dandridge's injuries stemming from the accident. The case was

submitted to the jury on the issue of damages only.

At trial, Dandridge testified that he had suffered a

concussion in a prior automobile accident two months before

his accident with Marshall. According to Dandridge, the

concussion from his prior accident forced him to withdraw from

classes he was taking at Virginia Commonwealth University and

left him with "moderate" headaches, neck pain, and an

inability to study due to medication. By the time of the

second accident, Dandridge testified he "still had some

residuals of neck pain and from [sic] minor headaches, but

nothing that was debilitating," and that his health generally

was improving.

Dr. Ross Bullock, a neurosurgeon and Dandridge's treating

physician after his first accident, testified that in the

first accident Dandridge had suffered whiplash and "mild to

moderate traumatic brain injury" and that Dandridge would

still have been feeling the effects of those injuries at the

time of his second injury.

After his second concussion, Dandridge's symptoms

included significantly more severe headaches, blurred vision,

nausea, and difficulty concentrating. Dr. David X. Cifu

treated Dandridge after his second accident and diagnosed him

with "post-concussive syndrome" due to his two accidents.

2
According to Dr. Cifu, 85-90% of those who suffer a single

concussion make a full recovery within eighteen months, and

patients rarely show any improvement beyond that time. While

Dandridge was improving steadily before his accident with

Marshall, in Dr. Cifu's opinion, the second concussion

intensified his symptoms. Because Dandridge continued to

suffer the effects of these concussions as of his last visit

with Dr. Cifu on January 24, 2002, Dr. Cifu suggested that

Dandridge seek treatment from a psychiatrist or a pain-

management specialist. Another physician, Dr. Martin Stein,

treated Dandridge with pain medication, but Dr. Stein's

treatment of Dandridge ended when Dr. Stein's medical license

was suspended on October 21, 2002.

Dr. Joel J. Silverman performed a psychiatric evaluation

of Dandridge pursuant to Supreme Court Rule 4:10, and portions

of his deposition were read at trial. Dr. Silverman testified

that Dandridge suffered from chronic depression, and that his

headaches were not caused by the second accident but by

stress, depression, or a biological predisposition to

headache. Dr. Silverman concluded that the intensification of

Dandridge's headaches was not the result of the second

accident.

In this appeal, Dandridge assigns error to three of the

trial court's evidentiary rulings. Dandridge asserts first

3
that the trial court erred in sustaining Marshall's objection

to Dandridge's testimony regarding his treatment by Dr. Martin

Stein. Dandridge also assigns error to the trial court's

rulings that permitted certain testimony by Dr. Silverman,

specifically, that Dandridge had admitted he hoped to meet

financial obligations with proceeds of the lawsuit and that

Dandridge had purchased an "assault weapon" rather than

securing further medical treatment. We consider these issues

in order.

I.

Dr. Stein treated Dandridge in 2002 following termination

of Dr. Cifu's treatment. Dandridge's treatment consisted

primarily of prescriptions for pain medications. Dr. Stein's

medical license was subsequently revoked. On the day of

trial, Marshall filed a motion in limine to preclude Dandridge

from introducing any testimony regarding the treatment

Dandridge received from Dr. Stein. Marshall's objection to

this testimony was that Dr. Stein was not going to testify at

trial and that, under McMunn v. Tatum, 237 Va. 558, 569, 379

S.E.2d 908, 914 (1989), only Dr. Stein could testify whether

the treatment Dandridge received was reasonable and related to

the accident.

Marshall correctly recites the principle that only a

physician can testify as to the reasonableness of treatment

4
and its causal connection to an event. However, the testimony

that Dandridge wished to present regarding Dr. Stein's

treatment did not address those issues. As he argued at trial

and reasserts here, Dandridge wanted to testify that when Dr.

Cifu told Dandridge he could not provide any further helpful

treatment and Dandridge should seek treatment with a

psychiatrist or pain management specialist, Dandridge followed

those instructions and secured treatment with Dr. Stein, a

psychiatrist specializing in pain management. Such testimony

bears not on the medical necessity of Dr. Stein's treatment

but on Dandridge's heeding of Dr. Cifu's instructions.

Based on this record, we conclude that the trial court

erred in sustaining Marshall's objection to Dandridge's

testimony that Dandridge followed the advice of Dr. Cifu and

secured pain management treatment by Dr. Stein. This

testimony was relevant in a number of particulars. It showed

that Dandridge followed the recommendation of Dr. Cifu, his

treating physician, that Dandridge spent money on further

treatment – in contradiction to Dr. Silverman's testimony –

and it also supported Dandridge's claim of a permanent injury,

because Dandridge continued to seek medical treatment even

though his treatment with Dr. Cifu ended over a year before

the litigation.

5
 Our conclusion requires that we reverse the judgment of

the trial court and remand the case for a new trial on

damages. Because the other issues Dandridge raises in this

appeal may arise on retrial, we will address them here.

II.

Dandridge complains that the trial court erroneously

overruled his objection to the following exchange during

Marshall's questioning of Dr. Silverman:

Q. Now, Doctor, did you discuss at any point
the motivation for this lawsuit or the basis for
this lawsuit.

. . .

A. Mr. Dandridge volunteered that he had
heavy financial obligations, and that he hoped that
he could better meet some of those obligations as a
result of the litigation.

Dr. Silverman's statement, according to Dandridge, improperly

injects his financial standing into consideration of his

damages. Washington-Virginia Ry. Co. v. Deahl, 126 Va. 141,

150, 100 S.E.2d 840, 843 (1919). Marshall counters that this

statement is admissible as an admission that is probative on

the issues of injuries and the extent of damages, citing

Breeden v. Roberts, 258 Va. 411, 518 S.E.2d 834 (1999).

In Breeden, a personal injury action, the plaintiff

denied making a statement to a third party "about how much

money [he was] going to get out of th[e] lawsuit." Id. at

6
415, 518 S.E.2d at 837. Unlike Dandridge, the plaintiff in

Breeden neither objected to the question nor sought to have

the answer stricken. Id. Nevertheless, in considering

whether the defendant could introduce further evidence to

contradict the plaintiff's testimony, we observed that the

plaintiff's statement regarding the money he would receive

from the lawsuit "related to and tended to cast light upon the

issue of his injuries and the extent of his damages." Id. at

416, 518 S.E.2d at 837. While this statement is dicta, we

agree with Marshall that, like the statement in Breeden,

Dandridge's statement here was relevant because it was not, as

Dandridge argues, limited to his financial status but "cast

light" on a matter contested at trial: Dandridge's

credibility regarding the extent of his injuries. Id.

Accordingly, the trial court did not err in admitting this

statement into evidence.

III.

Finally, Dandridge asserts that the trial court erred in

allowing Dr. Silverman to testify that Dandridge used his

money to purchase an "assault weapon" and ammunition rather

than seeking further medical treatment. This testimony

occurred by deposition and in the context of Dr. Silverman's

explanation that impulsive behavior and irrational decisions

7
are relevant factors in the evaluation of a person who is

depressed.

In determining whether evidence should be admitted,

the trial court must apply a balancing test in assessing

the probative value of the evidence and its prejudicial

effect. Brugh v. Jones, 265 Va. 136, 140, 574 S.E.2d

282, 284-85 (2003). This determination rests within the

sound discretion of the trial court and will be reversed

on appeal only upon a showing of an abuse of discretion.

Lombard v. Rohrbaugh, 262 Va. 484, 492, 551 S.E.2d 349,

353 (2001).

Dr. Silverman testified that irrational decisions

including impulsive purchasing are relevant to the mental

examination of a depressed person. However, an expert need

not identify every act that person performed to offer an

opinion on the mental condition of the person under

examination. In this case, the prejudicial effect of

identifying an assault weapon as one of Dandridge's impulse

purchases substantially outweighs the probative value of

identifying the object of an impulsive purchase. The mention

of an assault weapon and ammunition distracts the jury from

the matter at issue and prejudices Dandridge. Accordingly, we

conclude that the trial court committed error because it

8
abused its discretion in allowing Dr. Silverman to testify

that Dandridge purchased an assault weapon.

Finally, we reject Marshall's suggestion that any error the

trial court committed in the three evidentiary rulings at

issue was harmless error. Well established principles require

that error be presumed prejudicial unless the record clearly

shows that the error could not have affected the result.

Spence v. Miller, 197 Va. 477, 482, 90 S.E.2d 131, 135 (1955).

"There is no presumption that error is harmless." Breeding v.

Johnson, 208 Va. 652, 659, 159 S.E.2d 836, 842 (1968).

Marshall bases his argument primarily on his theory that the

jury returned a verdict of only $15,000 because it did not

find Dandridge credible. Nothing in the record of this case

clearly shows that Dandridge's credibility alone was the basis

of the jury's verdict or that the errors of the trial court

did not affect Dandridge's credibility.

For the reasons stated, we will reverse the judgment of

the trial court and remand the case for a new trial consistent

with this opinion on the question of damages.

Reversed and remanded.

9