Gunno v. McNair
| Decision Date | 17 November 2016 |
| Docket Number | No. 15-0825,15-0825 |
| Parties | Ashley D. Gunno, Petitioner v. Kevin C. McNair, Respondent |
| Court | Supreme Court of West Virginia |
Petitioner Ashley D. Gunno appeals the order of the Circuit Court of Kanawha County entered July 28, 2015, that denied her motion for a new trial. Petitioner was injured in a car accident caused by Respondent Kevin C. McNair. On appeal, she challenges the jury's verdict awarding no damages for her injuries despite Respondent's admission of responsibility for the accident and a jury finding that Petitioner was injured as a proximate result of the accident. Petitioner, by counsel Damon L. Ellis and Anthony Majestro, filed a brief with this Court. Respondent, by counsel Geoffrey A. Haddad, filed a response.
This Court has considered the record on appeal, the parties' briefs, and their oral arguments. Upon our review, we believe that this case satisfies the "limited circumstances" requirement of Rule 21(d) of the Rules of Appellate Procedure and is appropriate for a memorandum decision reversing the circuit court's order. For the reasons expressed below, the July 28, 2015, order is reversed and this matter is remanded for further proceedings consistent with this decision.
On September 13, 2011, Petitioner and Respondent were involved in an automobile accident in Kanawha County as Petitioner was driving home from work along Route 119. As Petitioner approached the intersection of Route 119 and Oakwood Road, a van driven by Respondent turned in front of her. Petitioner was unable to avoid colliding with the van. The collision caused Petitioner's car to spin around and hit a third vehicle. As a result of this accident, Petitioner's car was a total loss and Respondent's vehicle suffered heavy damage.
Petitioner was treated at the scene by emergency responders and was transported to Charleston Area Medical Center for further evaluation. Petitioner testified that she told her treating physicians of pain in her neck and that when the doctor moved her legs, sheexperienced intense back and neck pain. After her release from the emergency room, Petitioner went home and continued to experience pain and soreness, which kept her from sleeping. She testified that the pain was miserable and that she could not move without experiencing more pain.
Petitioner saw Dr. Matthew Walker, an orthopedic specialist, to address persistent pain in her neck, which she described as radiating down her arms when she moved her neck, back pain, and intermittent burning sensations. Dr. Walker examined her and recommended one month off work for recovery. Dr. Walker also recommended physical therapy, which she received, and use of a TENS unit for pain. Petitioner asserted that the TENS unit provided only temporary relief. Dr. Walker ultimately discharged Petitioner from the orthopedist because there was nothing left that could be done to treat her symptoms.
Petitioner then sought treatment with Dr. Jay McClanahan, a chiropractor, for the burning, aching, and throbbing pain she continued to experience in her neck and back. She claimed that her neck pain was more severe than her back pain. Dr. McClanahan ordered her to remain off work for three to four more weeks. Petitioner was treated by Dr. McClanahan from October of 2011 through the spring of 2012, for a total of thirty treatments. Dr. McClanahan found that Petitioner had decreased range of motion and muscle spasms. While she was not completely pain free following her treatments, she returned to work with restrictions and eventually was released to her normal work as a nurse.
Petitioner claimed that she continued to feel pain while at work and at home. She maintained a home therapy program, including use of a TENS unit. She later sought treatment with the Holzer Clinic, where she received trigger point injections that initially relieved the pain, but she claimed the pain eventually returned. She also returned to Dr. McClanahan for another 10 to 15 treatments, concentrating on pain relief and increasing her range of motion, but these treatments ended when Petitioner could not afford the cost of treatment. Her pain continued, interfering with her care of her son, who was born after the accident in 2014.
In June of 2012, Petitioner initiated this personal injury action against Respondent for damages arising from the accident. At trial, Dr. McClanahan testified that Petitioner suffered a permanent injury from the accident, one from which she will never fully recover. In addition, Dr. McClanahan suggested that she will continue to suffer flare-ups and that there is nothing she can do to prevent these. Petitioner's husband, Rick Comer, testified at trial about seeing the aftermath of the accident and about his wife's pain and suffering. He also confirmed that Petitioner was continuing to have problems with pain.
At the behest of Respondent, Dr. Bruce Guberman testified during the trial. Respondent hired Dr. Guberman to review Petitioner's medical records. He testified thatthere was no evidence of pre-existing cervical or neck pain prior to the automobile accident. He examined Petitioner on one occasion on May 29, 2013. Dr. Guberman testified that at the time of this examination, Petitioner indicated that she was still suffering from persistent cervical and lumbar strain from the accident. He testified that Petitioner's injuries were subjective and not supported by the objective diagnostic tests he administered, which resulted in normal findings. Dr. Guberman did acknowledge that Petitioner's past medical records contained objective evidence of her pain and injury.
Dr. Guberman also testified that approximately one month after the automobile accident, Petitioner fell. This was not initially reported to Dr. Guberman in the course of his examination of her. At trial, Petitioner testified that she tripped and fell while bracing herself, which resulted in increased and very intense neck pain. Dr. Guberman opined that the character of Petitioner's injuries and complaints changed after this fall.
Because Respondent admitted that he was responsible for the accident, liability for the accident was not contested. As a result of a strategic trial decision, Petitioner chose not to offer her medical bills into evidence or to seek recovery of the amount of the medical bills or lost wages. Because no evidence was offered during Petitioner's case on the issues of past medical expenses, past lost wages, past vocational loss, future medical expenses, future lost wages, and future vocational loss, Respondent moved mid-trial for judgment in his favor on these issues. The trial court granted Respondent's motion, and Petitioner's case went to the jury on two issues: (1) whether Petitioner was injured as a proximate result of the automobile accident and, if so, (2) the amount of damages Petitioner should be awarded for harms and losses, including, but not limited to, past and/or future physical and mental pain and suffering, and reduced ability to enjoy life.
The jury deliberated and returned a verdict as follows: On the issue of whether the petitioner was injured as a proximate result of the accident, the jury answered "Yes." On the second issue regarding the compensation to which Petitioner was entitled for harms and losses, including, but not limited to past and/or future physical and mental pain and suffering and reduced ability to enjoy life, the jury awarded $0 in damages. Immediately after the jurors were polled and removed from the courtroom, Petitioner's counsel argued that the verdict did not follow the evidence. The circuit court directed the parties to file post-trial motions.
Petitioner filed a written motion for a new trial, arguing that the jury's verdict awarding no damages for her past and future pain and suffering was wrong in light of the jury's finding that Petitioner was injured as a proximate result of the automobile accident. Petitioner specifically argued that the jury's verdict was inconsistent because while the jury determined that Petitioner was injured, it awarded no damages for her pain. Petitioner also argued that the verdict was inadequate. Respondent opposed the motion for a new trial, arguing that the jury's decision to award no damages for pain andsuffering was entitled to great deference and that the jury's verdict was supported by Respondent's evidence.
The circuit court denied Petitioner's motion for a new trial by order entered July 28, 2015. In its order, the circuit court found that there was not clear uncontroverted evidence of Petitioner's actual pecuniary loss, including medical bills and other damages. Thus, the damages sought by Petitioner for her past and future pain and suffering were indeterminate and unliquidated. The circuit court reasoned that because Petitioner chose not to seek damages for her medical bills or other pecuniary loss, the jury's award of no damages to Petitioner should be entitled to great weight and deference. It is from the court's July 28, 2015, order that Petitioner now appeals.
We review the denial of a motion for a new trial as follows:
Although the ruling of a trial court in granting or denying a motion for a new trial is entitled to great respect and weight, the trial court's ruling will be reversed on appeal when it is clear that the trial court has acted under some misapprehension of the law or the evidence.
Syl. pt. 4, Sanders v. Georgia-Pacific Corp., 159 W. Va. 621, 225 S.E.2d 218 (1976). In terms of inadequacy of the verdict, we have said:
In a civil action for recovery of damages for personal injuries in which the jury returns a verdict for the plaintiff which is manifestly inadequate in amount and which, in that respect, is not supported by the evidence, a new trial may be granted to the plaintiff on the issue of damages on the ground of the inadequacy of the amount of the verdict.
Syl. pt. 3, Biddle v. Haddix, 154 W. Va. 748, 179 S.E.2d 215 (1971).
While both Petitio...
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