Liston v. University of West Virginia Bd. of Trustees on Behalf of West Virginia University

• Decision Date: 13 December 1993
• Docket Number: No. 21546,21546
• Citation: 190 W.Va. 410,438 S.E.2d 590
• Court: West Virginia Supreme Court
• Parties: , 88 Ed. Law Rep. 433 Carolyn LISTON and Daley Liston, Husband and Wife, Plaintiffs Below, Appellees, v. The UNIVERSITY OF WEST VIRGINIA BOARD OF TRUSTEES on Behalf of WEST VIRGINIA UNIVERSITY, Defendant Below, Appellant.

Page 590

438 S.E.2d 590

190 W.Va. 410, 88 Ed. Law Rep. 433

Carolyn LISTON and Daley Liston, Husband and Wife Plaintiffs Below, Appellees, v. The UNIVERSITY OF WEST VIRGINIA BOARD OF TRUSTEES on Behalf of WEST VIRGINIA UNIVERSITY, Defendant Below, Appellant.

No. 21546.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 28, 1993.

Decided Dec. 13, 1993.

[190 W.Va. 411] Syllabus by the Court

1. " ' "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. [28,] 210 S.E.2d 618 (1974).' Syl. Pt. 2, Flannery v. United States, 171 W.Va. 27, 297 S.E.2d 433 (1982)." Syllabus Point 2, Adkins v. Foster, 187 W.Va. 730, 421 S.E.2d 271 (1992).

2. Where a plaintiff wishes to quantify the loss of earning capacity by placing a monetary value on it, there must be established through expert testimony the existence of a permanent injury, its vocational effect on the plaintiff's work capacity, and an economic calculation of the monetary loss over the plaintiff's work-life expectancy reduced to a present day value.

3. "The loss of enjoyment of life resulting from a permanent injury is part of the general measurement of damages flowing from the permanent injury and is not subject to an economic calculation." Syllabus Point 4, Wilt v. Buracker, W.Va., 1993 WL 517042 (No. 21708 12/13/93).

4. " ' "Rule 59(a), [West Virginia Rules of Civil Procedure], provides that a new trial may be granted to any of the parties on all or part of the issues, and in a case where the question of liability has been resolved in favor of the plaintiff leaving only the issue of damages, the verdict of the jury may be set aside and a new trial granted on the single issue of damages." Syl.Pt. 4, Richmond v. Campbell, 148 W.Va. 595, 136 S.E.2d 877 (1964).' Syllabus Point 3, Gebhart v. Smith, 187 W.Va. 515, 420 S.E.2d 275 (1992)." Syllabus Point 9, Wilt v. Buracker, W.Va., 1993 WL 517042 (No. 21708 12/13/93).

John R. Angotti and David J. Straface, Angotti & Straface, Morgantown, for appellees.

William E. Galeota and P. Gregory Haddad, Steptoe & Johnson, Morgantown, for appellant.

MILLER, Justice:

This is an appeal from a jury verdict and final order of the Circuit Court of Monongalia County dated July 13, 1992, in favor of the appellees and plaintiffs below, Carolyn Liston and Daley Liston. Carolyn Liston suffered an injury to her right arm and elbow when she slipped and fell on standing water in a building owned and maintained by the appellant and defendant below, The University of West Virginia Board of Trustees. The jury awarded, inter alia, general damages for Mrs. Liston's loss of earning capacity and her loss of enjoyment of life (hedonic damages). The defendant appeals on the basis that (1) the plaintiffs failed to prove any loss of earning capacity, and (2) the plaintiffs' expert testimony concerning hedonic damages was inadmissible. We agree with the defendant's latter contention.

I. LOSS OF EARNING CAPACITY

At trial, the defendant sought to preclude testimony from the plaintiffs' economic expert concerning Mrs. Liston's loss of earning capacity on the basis that no "reasonably certain" evidence of loss of earning capacity had been presented by the plaintiffs. The defendant points to the testimony of Dr. Gregg O'Malley, Mrs. Liston's treating physician, who testified by way of a video deposition that he had no way to predict, to a reasonable degree of medical certainty, whether Mrs. Liston would be able to continue performing the functions of her employment into the future. ¹

On the other hand, Dr. O'Malley testified that Mrs. Liston suffered a permanent 17 percent whole-person impairment as a result of the injury. He also stated that Mrs. Liston's injury required surgery to repair the damage, and that two metal pins had to be placed in her arm. He was not certain whether those pins would have to be replaced in the future, or whether Mrs. Liston's injury would require further surgical procedures.

At trial, the plaintiffs also presented the expert testimony of Cathy Johnson, a vocational and rehabilitation counselor. She testified that she specialized in evaluating injured persons from a vocational perspective in regard to the impact of injuries upon an individual's ability to work. Ms. Johnson testified that after reviewing Dr. O'Malley's medical reports and deposition, she concluded that Mrs. Liston could not find any employment due to the restrictions resultant from her injury.

The plaintiffs then presented the expert testimony of Daniel Selby, an economist, who testified that, based upon Ms. Johnson's evaluation, Mrs. Liston's loss of earning capacity equaled between $79,973 and $156,851.

The defendant neglects to address the evidence provided by Ms. Johnson to the jury. Instead, the defendant argues that because Dr. O'Malley could not state, to a reasonable degree of medical certainty, that Mrs. Liston could not continue working, no reasonably certain evidence was offered to support Mr. Selby's economic calculations. Clearly, however, this assertion overlooks the value of Ms. Johnson's expert testimony.

In Adkins v. Foster, 187 W.Va. 730, 733, 421 S.E.2d 271, 274 (1992), we set forth the necessary elements of proof regarding future damages, including the loss of future earning capacity, when we stated: "[I]mpairment 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." Citing Jordan v. Bero, 158 W.Va. 28, 52, 210 S.E.2d 618, 634 (1974). The foregoing elements of proof are reflected in Syllabus Points 1 and 2 of Adkins:

"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. [28,] 210 S.E.2d 618 (1974).' Syl. Pt. 2, Flannery v. United States, 171 W.Va. 27, 297 S.E.2d 433 (1982)."

We went on to quote the following from Jordan v. Bero, 158 W.Va. at 57, 210 S.E.2d at 637: " '[W]here 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.' " 187 W.Va. at 733, 421 S.E.2d at 274. The question in the case at bar does not concern Mrs. Liston's substantive right to receive a monetary award for loss of earning capacity as a result of a permanent personal injury. ² We have recognized such a right in the foregoing cases. What is at issue herein is the type of proof that can be offered to quantify the amount of loss of earning capacity. ³

Here, Mrs. Liston's doctor testified to her degree of permanent disability. He could not state with certainty whether this would limit her job opportunities or cause a loss of earnings. However, the plaintiff's vocational expert, after performing her own tests in the vocational area, was able to state that the plaintiff's earning capacity had been severely diminished because of her injury. ⁴ There is no question that other jurisdictions have recognized that a vocational expert may be used to prove loss of earning capacity. ⁵

The vocational assessment was reviewed by an economist, Mr. Selby, who then calculated the dollar amount of diminished earning capacity over Mrs. Liston's work-life expectancy. Neither Ms. Johnson's nor Mr. Selby's qualifications nor their underlying methodology was attacked by the defense. We find that the proof from Mrs. Liston's experts in this case was relevant and reliable to support her monetary claim for loss of earning capacity under Rule 702 of the West Virginia Rules of Evidence. ⁶

This case is not like the situation in Adkins v. Foster, supra, where the plaintiff suffered a cervical strain and exacerbation of her previous depression as a result of an automobile accident. The plaintiff had an orthopedist who testified that she had a permanent neck injury. A psychiatrist also testified that she had a permanent psychiatric disability. The plaintiff testified as to her rate of pay. Without any further expert evidence, the plaintiff's attorney calculated her rate of pay over her life expectancy and then divided this sum in half. He advised the jury that his calculation was the present value of her loss of earning capacity.

We concluded in Adkins that the type of calculation made by the attorney was improper and remanded the case for a retrial on the future economic loss arising from the loss of earning capacity. We did state, however: "We do not suggest that expert economic or vocational evidence is mandatory in every instance [to prove diminished earning capacity]." 187 W.Va. at 734, 421 S.E.2d at 275.

What emerges from our cases is that loss of earning capacity can be proved in two ways. The first step in either approach is that the plaintiff must establish that there exists a permanent injury which can be reasonably found to diminish earning capacity. The plaintiff may then rely on lay or the plaintiff's own testimony to acquaint the jury with the injury's impact on his or her job skills. When this is done, the jury may assess a general amount of damages for diminished earning capacity, as explained in United States v. Flannery, supra; Jordan v. Bero, supra; and Carrico v. West Virginia Central & Pacific Railway Co., 39 W.Va. 86...