Adkins v. Foster

• Decision Date: 23 July 1992
• Docket Number: No. 20652,20652
• Citation: 187 W.Va. 730,421 S.E.2d 271
• Court: West Virginia Supreme Court
• Parties: Debra ADKINS, Plaintiff Below, Appellee, v. Mark FOSTER and Kathy Giauque, Defendants Below, Appellants.

Page 271

421 S.E.2d 271

187 W.Va. 730

Debra ADKINS, Plaintiff Below, Appellee, v. Mark FOSTER and Kathy Giauque, Defendants Below, Appellants.

No. 20652.

Supreme Court of Appeals of West Virginia.

Submitted April 29, 1992.

Decided July 23, 1992.

Syllabus by the Court

1. "The permanency or future effect of any injury must be proven with reasonable certainty in order to permit a jury to award an injured party future damages." Syl. Pt. 9, Jordan v. Bero, 158 W.Va. 28, 210 S.E.2d 618 (1974).

2. " 'Future damages are those sums awarded to an injured party for, among other things: (1) Residuals or future effects of an injury which have reduced the capability of an individual to function as a whole man; (2) future pain and suffering; (3) loss or impairment of earning capacity; and (4) future medical expenses.' Syllabus Point 10, Jordan v. Bero, W.Va. , 210 S.E.2d 618 (1974)." Syl. Pt. 2, Flannery v. United States, 171 W. Va. 27, 297 S.E.2d 433 (1982).

3. " 'Courts must not set aside jury verdicts as excessive unless they are monstrous, enormous, at first blush beyond all measure, unreasonable, outrageous, and manifestly show jury passion, partiality, prejudice or corruption.' Syl. Pt., Addair v. Majestic Petroleum Co., Inc., 160 W.Va. 105, 232 S.E.2d 821 (1977)." Syl. Pt. 5, Roberts v. Stevens Clinic Hosp. Inc., 176 W.Va. 492, 345 S.E.2d 791 (1986)

4. Although expert economic evidence may not be necessary in every case, an instruction regarding appropriate reduction of an award to present value should be presented to the jury both in cases where expert economic evidence is presented as well as in cases where no such evidence is presented.

Michael C. Allen, Duane C. Rosenlieb, Jr., Charleston, W. Va., for appellee.

Mary H. Sanders, Huddleston, Bolen, Beatty, Porter & Copen, Charleston, W. Va., for appellants.

WORKMAN, Justice:

This is an appeal by Mark Foster and Kathy Giauque from a final order, pursuant to a jury verdict, in favor of the appellee, Debra Adkins, in the amount of $222,133. The appellants contend that the trial court committed various errors which justify reversal of that final order. We reverse and remand for a new trial on the issue of damages alone, with special emphasis on the establishment of future economic damages to a reasonable degree of certainty.

I.

On June 21, 1986, Debra Adkins was a passenger in an automobile driven by Joseph Hammonds. That automobile was struck by a vehicle driven by appellant Mark Foster and owned by appellant Kathy Giauque. As a result of that accident, the appellee suffered a cervical strain and an exacerbation of her preexisting depression. At trial, the appellee submitted medical bills in the amount of $2,768. With regard to evidence of other economic loss, the appellee had apparently planned to introduce the testimony of economist Daniel Selby. On the first day of trial, defense counsel moved to exclude the testimony of Mr. Selby since the witness had not been disclosed prior to the discovery deadline, and the circuit court granted the motion.

At the close of the plaintiff-appellee's evidence, defense counsel moved for a directed verdict on the lost wage claim, and the lower court granted that motion. ¹ The lower court denied defense counsel's motion for a directed verdict on the diminished earning capacity issue, however, and explained that defense counsel would be permitted to address the issue of the impairment of future ability to earn during trial.

The appellee's evidence at trial regarding diminished earning capacity consisted of statements presented by the appellee with regard to her hourly rate when she had been working and the number of hours worked per day. The appellee's counsel also addressed the diminished earning capacity issue in closing argument, explaining that considering the appellee's age, life expectancy, and normal rate of pay, she had suffered diminished earning capacity in the amount of $447,825. Counsel for the appellee also explained that the figure should be reduced to its present value by dividing it in half. The jury verdict returned on May 8, 1991, was in favor of the appellee for $222,133. ²

The appellants contend that the following errors were committed: 1) the trial court erred by giving an instruction on the issue of the appellee's diminished earning capacity when the appellee had failed to introduce evidence of diminished earning capacity; 2) the trial court erred by allowing the appellee's counsel to suggest during closing argument a method of determining the appellee's damages for diminished earning capacity; 3) the trial court erred by allowing the appellee's counsel to suggest the amount of damages that the jury should award to plaintiff; ³ 4) the trial court erred by failing to grant the appellants' motion for a new trial based on the alleged excessive verdict; 5) the trial court erred by failing to grant the appellants' motion for remittitur based on the alleged excessive verdict.

II.

The primary issues to be determined by this Court are whether the trial court erred by permitting the appellee and her attorney to attempt to calculate an award of diminished earning capacity, based upon insufficient evidence, to attempt to calculate the present value of the loss in the absence of expert, or other formal, economic evidence, and to permit the jury to consider the issue of diminished earning capacity based upon the amount and nature of the economic evidence presented. The appellee and her attorney employed evidence of the appellee's age, life expectancy as determined by the appellee's physician, and normal rate of pay to arrive at a figure of diminished earning capacity. The attorney then suggested to the jury that the figure could be divided in half to calculate the present value of that amount. While more extensive expert economic testimony is typically presented, the question remains of whether it is error to premise an award of diminished earning capacity upon the economic evidence introduced through the more simplistic method employed in the present case.

With regard to the instruction presented to the jury on diminished earning capacity, ⁴ the appellants contend that the lower court erred in instructing the jury on that element of damages when sufficient evidence was not presented to support such instruction. We have explained that impairment of earning capacity is a proper element of recovery when two elements have been proven: permanent injury and reasonable degree of certainty of the damages. Jordan v. Bero, 158 W.Va. 28, 52, 210 S.E.2d 618, 634 (1974). We held in syllabus point 9 of Jordan that "[t]he permanency or future effect of any injury must be proven with reasonable certainty in order to permit a jury to award an injured party future damages." Id., 158 W.Va. at 29, 210 S.E.2d at 623; accord Dowey v. Bonnell, 181 W.Va. 101, 380 S.E.2d 453 (1989). We also explained the following in syllabus point 2 of Flannery v. United States, 171 W.Va. 27, 297 S.E.2d 433 (1982),

'Future damages are those sums awarded to an injured party for, among other things: (1) Residuals or future effects of an injury which have reduced the capability of an individual to function as a whole man; (2) future pain and suffering; (3) loss or impairment of earning capacity; and (4) future medical expenses.' Syllabus Point 10, Jordan v. Bero, W.Va. , 210 S.E.2d 618 (1974).

In Jordan, we dealt with an injury to a ten-year-old boy who had been hit by an automobile while riding his bicycle and had suffered a massive head wound. We did allow "reasonable inferences arising from the evidence in proof of future effects of permanent injury." Id., 158 W.Va. at 56, 210 S.E.2d at 636. We cautioned, however, that such approach "cannot be extended to unreasonable lengths in support of instant claims for impairment of earning capacity and future medical expenses...." Id. We emphasized in Jordan that "impairment of earning capacity is an item of permanent damages which again must be proved to a reasonable degree of certainty; it cannot be left to sheer speculation or surmise." Id., 210 S.E.2d at 637. We recognized that while the father's testimony regarding his son's performance of chores was competent, it was "of slight inferential value as to be deficient when it is asserted in support of a permissive instruction allowing the jury to make an award for impairment of earning capacity...." Id. We concluded that "where the permanent injury is proven, reasonable inferences based upon sufficient evidence are all that is necessary to carry the question to the jury for its consideration. Here, however, the evidence was de minimis and was not sufficient to raise a proper inference for the jury's consideration." Id., 158 W.Va. at 57, 210 S.E.2d at 637.

The appellee in the present case introduced neither vocational evidence regarding future work capacity nor expert economic evidence either as to diminished earning capacity or as to reduction to present value. Ideally, the claim of diminished earning capacity could have been supported by testimony of a vocational expert regarding what types of jobs the appellee would be capable of performing and an economist to calculate future losses. The "reasonable degree of certainty" requirement of Jordan would have been more closely followed through the introduction of such testimony. 158 W.Va. at 56, 210 S.E.2d at 637. The appellants in the present case emphasize, for instance, that the injuries resulting from the accident, a cervical strain and exacerbation of a pre-existing depression, are obscure injuries which are not readily apparent to the casual onlooker, implying a greater necessity for expert evaluation of future effects. Dr. James Michael Herr, an orthopedist, testified that the appellee was permanently disabled. Dr. Francis Whalen, a psychiatrist, also testified that the appellee was permanently disabled and that her depression was a result of the auto accident. ⁵

The appellants further...