McKenzie v. Sevier
| Citation | 854 S.E.2d 236 |
| Decision Date | 18 November 2020 |
| Docket Number | No. 19-0010,19-0010 |
| Court | Supreme Court of West Virginia |
| Parties | Christopher MCKENZIE, Petitioner, Plaintiff Below v. Donald L. SEVIER and Cassandra Sevier, Respondents, Defendants Below |
Samuel D. Madia, Esq., Jonathan Wesley Prince, Esq., Shaffer Madia Law, PLLC, Morgantown, West Virginia, Counsel for Petitioner.
Gregory H. Schillace, Esq., Schillace Law Office, Clarksburg, West Virginia, Counsel for Respondents.
During a neighborhood dispute on July 7, 2015, Donald Sevier punched Christopher McKenzie in the face causing him to fall. Mr. McKenzie suffered a traumatic brain injury from the impact, and sued Mr. Sevier for the intentional tort of battery. At trial, the jury found Mr. Sevier liable for battery but rejected other claims including one by Mr. Sevier that Mr. McKenzie had committed a battery by spitting on him. Although Mr. Sevier was found liable, the jury awarded Mr. McKenzie no damages. The circuit court ordered each party to bear their own costs, with the exception that the Seviers pay the costs of the jury trial.
Mr. McKenzie claims that the zero-dollar jury award for battery is inconsistent or inadequate and seeks a new trial on damages. Mr. Sevier argues, primarily, that the jury must have concluded there was a lack of causation between the battery and Mr. McKenzie's resultant brain injury. But the uncontroverted evidence at trial was not only that the battery caused Mr. McKenzie's brain injury but also that he suffered a substantial injury for which he was not compensated. So, we find the verdict to be inadequate, reverse the circuit court's order and remand for a new trial on damages.
The Seviers cross-assign as error the circuit court's assessment of jury trial costs and also the court's imposition of sanctions for discovery misconduct. As to the former, the circuit court was well within its discretion to require the parties to bear their own costs under Rule 54(d) of the West Virginia Rules of Civil Procedure and to order the Seviers to pay the costs of the jury trial under West Virginia Code § 52-1-17(c) (2016). And, given that the Seviers displayed a pattern of discovery misconduct, the circuit court did not abuse its discretion by imposing sanctions in the form of attorney fees.
For these reasons, we affirm, in part, and reverse, in part the December 11, 2018 order denying Mr. McKenzie a new trial on damages and imposing sanctions, and remand for a new trial on damages. And, we affirm the circuit court's September 27, 2018 order assessing costs.
Christopher McKenzie lived across the street from Donald and Cassandra Sevier in Fairmont, West Virginia. On July 7, 2015, Mr. McKenzie was in his yard pruning a tree when Mr. Sevier returned home from work. Mr. Sevier was relaxing in his garage1 when Mr. McKenzie came down the street with a wheelbarrow. Mr. Sevier yelled to Mr. McKenzie not to dump anything on his property, and Mr. McKenzie went back to his own driveway and resumed his yard work. Mr. Sevier then walked up the street to ensure Mr. McKenzie had not dumped anything on his property and exchanged words with Mr. McKenzie to that effect. Mr. Sevier returned to his garage, but could still see and hear Mr. McKenzie. Next, Mr. McKenzie allegedly made sexual and derogatory comments about Mrs. Sevier.2 Mrs. Sevier, who had been outside talking to her friend and coworker Deserae Akers,3 walked up to Mr. McKenzie's driveway to confront him.
Mr. Sevier observed Mr. McKenzie and Mrs. Sevier cursing and slinging insulting words at one another. During that verbal altercation, Mrs. Sevier alleged that Mr. McKenzie made a derogatory comment about her daughter and continued making sexual and derogatory comments to her. At that point, Mr. Sevier left his garage to get his wife because he was tired of listening to them argue and Mr. McKenzie was "drunk all the time." When Mr. Sevier placed an arm in front of his wife to, as he described, drag her back into their garage, Mr. McKenzie reportedly spat on Mr. Sevier.4 In response, Mr. Sevier punched Mr. McKenzie in the face.5 Mr. Sevier has conceded that Mr. McKenzie never attempted to strike him or his wife with his hands or fists.
After the impact, Mr. McKenzie stumbled backward, hit his heel on the lip of the driveway,6 fell, and hit his head. After hitting his head, Mr. McKenzie was unresponsive and bleeding from a head wound. Mr. and Mrs. Sevier began walking back to their garage when Ms. Akers informed them that Mr. McKenzie appeared to be seriously injured. Mr. Sevier called the police on the non-emergency line, and Officer Moran then Officer Staley arrived at the scene shortly after. When Officer Moran arrived, Mr. McKenzie was being supported by Mrs. Sevier, but was unresponsive. Mr. McKenzie had clotted blood on the back of his head and there was blood pooled in the driveway. Officer Moran, in assisting EMS, observed it was apparent upon cleaning the wound that there was damage to the skull because a large portion of the skull had buckled, and he observed gray, gelatinous material that he believed to be brain matter.
When he arrived at the scene, Officer Staley called for a detective to come because Mr. McKenzie's condition looked so severe that it could be terminal; he was unresponsive, in a pool of blood, and what looked like brain matter was present. Though Mr. and Mrs. Sevier gave written statements to the police officers, when the detective, Sergeant Hudson, arrived at the scene Mr. Sevier informed him that neither he nor his wife would be giving any statements as they had retained an attorney who advised them against it.
Mr. McKenzie was transported by EMS to Ruby Memorial Hospital in Morgantown. Sergeant Hudson got consent to access Mr. McKenzie's medical records from his admission to the ICU and his lab results, which showed Mr. McKenzie had a blood alcohol level of 0.196.7 Mr. McKenzie, in addition to bruises and abrasions around his eye, suffered a left brain stem hemorrhagic stroke, an intracranial hemorrhage, a subdural hematoma, and a subarachnoid hemorrhage. After being hospitalized for nine days, Mr. McKenzie was discharged to HealthSouth, an inpatient physical and occupational rehabilitation setting. Mr. McKenzie remained in inpatient treatment at HealthSouth until August 12, 2015.
Mr. and Mrs. McKenzie sued Mr. and Mrs. Sevier, alleging the intentional tort of battery against Mr. Sevier, negligence as to Mrs. Sevier, civil conspiracy between Mr. and Mrs. Sevier to cover up the events of July 7, 2015, and loss of consortium. Mr. and Mrs. Sevier counterclaimed for violation of the insulting words statute as to both Mr. and Mrs. Sevier and battery against Mr. McKenzie for spitting on Mr. Sevier. Eventually, Ms. McKenzie voluntarily dismissed her loss of consortium claim, the negligence claim as to Mrs. Sevier was dismissed, and the case proceeded to trial.
Dr. Kokab Darbondi, the primary care physician who treated Mr. McKenzie both before and after the July 7 incident, was the only medical expert witness offered by either party. Although Mr. McKenzie did not suffer any broken bones in his face from being punched, Dr. Darbondi testified that the traumatic brain injuries he suffered were sustained as a result of the July 7 incident. She also testified that the medical care he received during his admission at Ruby Memorial, the occupational and physical therapy completed after his discharge from the hospital, and all of his follow-up visits with neurosurgery for additional imaging were medically necessary, as was his treatment with an ophthalmologist.
Although Mr. McKenzie had to be treated at HealthSouth for his chronic health issues such as diabetes, as well as for a subsequent fall he sustained, Dr. Darbondi testified that he would not have required that treatment from HealthSouth but for the July 7 injury. And, Dr. Darbondi testified that although Mr. McKenzie had a prostate surgery that was not related to the July 7 incident, he was required to return to inpatient physical and occupational therapy upon discharge because he was too weak and it was not safe for him to return home. Dr. Darbondi attributed the second stint in the rehab facility to the July 7 incident.
As to neurological deficits, Dr. Darbondi testified that Mr. McKenzie has foot drop, imbalance and dizziness, right-sided motor weakness, struggles to elevate his right leg, abnormal eye movement, trouble with depth perception, double vision, worsening memory, and slurred speech. Dr. Darbondi further testified that those injuries are permanent and directly related to the brain injury. But she also testified that those neurological deficits can also be progressive side effects of long-term alcoholism or long-term opioid use.
And, Dr. Darbondi agreed that Mr. McKenzie had a prior diagnosis of alcoholism and that he had been prescribed opioid medications. It is unclear from the record, however, what portion of those opioid medications are attributable to Mr. McKenzie's pain management of his brain injury since Dr. Darbondi also testified that it would be reasonable for Mr. McKenzie to have been in pain and to continue to be in pain.
Finally, Dr. Darbondi testified that as to Mr. McKenzie's medical expenses, she could not testify as to what the charges were from the hospital or HealthSouth because she does not do billing, but she could ascertain that they would be medically necessary for treatment of Mr. McKenzie's brain injury given the descriptions of treatment.
Mr. McKenzie, though he did not recall the events of July 7 testified that he is unable walk without the assistance of a cane, walker, or wheelchair; cannot shower by himself; has difficulty using the restroom without help; cannot have sex with his wife; is unable to play with his grandchild; and cannot do any of the normal daily activities he used...
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