NORFOLK BEVERAGE CO., INC. v. Cho

• Decision Date: 03 March 2000
• Docket Number: Record No. 990528.
• Parties: NORFOLK BEVERAGE COMPANY, INCORPORATED v. Kwang Ja CHO, et al.
• Court: Virginia Supreme Court

525 S.E.2d 287

259 Va. 348

NORFOLK BEVERAGE COMPANY, INCORPORATED v. Kwang Ja CHO, et al.

Record No. 990528.

Supreme Court of Virginia.

March 3, 2000.

F. Bradford Stillman (Brian N. Casey; Taylor & Walker, on briefs), Norfolk, for appellant.

David B. Hargett (Gary R. Hershner; Morrissey & Hershner, on brief), Richmond, for appellees.

Present: CARRICO, C.J., COMPTON,¹ LACY, HASSELL, KEENAN, KOONTZ, and KINSER, JJ.

HASSELL, Justice.

In this appeal of judgments entered in consolidated tort actions, we consider whether the jury's verdicts are excessive and whether the circuit court erred by permitting an expert witness to render opinions that certain medical expenses that the plaintiffs incurred were related to their injuries.

Kwang Ja Cho and Pyong Tu Cho filed separate amended motions for judgment against Norfolk Beverage Company, Inc., and its employee, Donald R. Buckner. The Chos alleged that they were injured when Buckner committed an assault upon them while acting within the scope of his employment. The circuit court consolidated the cases. The Chos settled their claims against Buckner, and a jury returned verdicts against Norfolk Beverage in favor of Mr. Cho in the amount of $160,000, and in favor of Mrs. Cho in the amount of $310,000. The circuit court entered judgments confirming the verdicts, and Norfolk Beverage appeals.

Applying established principles of appellate review, we shall summarize the evidence in the light most favorable to the Chos, who come to this Court armed with jury verdicts confirmed by the circuit court. Mr. and Mrs. Cho operate Joe's Upholstery Shop in a shopping center in Virginia Beach. On the morning of May 2, 1995, Mr. Cho left the shop and got into his car. Mr. Cho was unable to drive out of the parking lot because a Norfolk Beverage truck was parked in a manner that prevented him from exiting the parking lot.

Mr. Cho approached Buckner, who was seated in the truck, and asked him to move the truck. Buckner replied that he was entitled to park the truck in any space for 15 to 20 minutes. Mr. Cho responded that he had a dental appointment and again asked Buckner to move the truck. Buckner cursed at Mr. Cho, who then returned to his car and waited for Buckner to move the truck.

After waiting for a moment, Mr. Cho "honked the horn twice," but Buckner did not respond. Mr. Cho got out of his car and walked toward Buckner, who was still sitting in the truck. As Mr. Cho walked toward the truck, Buckner opened a door and told Mr. Cho not to touch the truck. Buckner kicked Mr. Cho in the head, causing him to fall on the pavement. Mr. Cho directed his employee, Alexander Stith, Jr., who had witnessed the altercation, to "[g]o call [the] police."

When Stith entered Joe's Upholstery Shop to place a telephone call to the police, he informed Mrs. Cho that her husband had been assaulted. She left the shop and went to the parking lot where she encountered Buckner, who had begun to drive away. Mrs. Cho told Buckner: "Stop, stop.... Police came. Stop, police came." Buckner stopped the truck, opened the door, and hit Mrs. Cho in her neck, causing her to fall on the pavement. Mrs. Cho stood up, and Buckner kicked her on her waist, causing her again to fall to the pavement. Mrs. Cho stood up, and Buckner hit her in her chest, causing her to fall on the pavement a third time. Subsequently, police officers and emergency response personnel arrived at the shopping center, and the Chos were transported in an ambulance to a hospital where they received medical treatment.

Mr. Cho experienced pain in his head and ear as a result of the assault. His face was swollen, and he suffered auditory problems related to the assault. Mrs. Cho suffered bruises and a back injury. Mrs. Cho experienced pain in her neck and headaches.

During the trial, Mrs. Cho introduced medical bills and an exhibit which included a summary of those bills. The summary identified the names of various health care providers that had rendered treatment to Mrs. Cho and the costs of that treatment. The summary also contained the total amount of Mrs. Cho's medical bills, $8,653.81. Similarly, Mr. Cho introduced an exhibit which contained the names of each health care provider that rendered treatment to him and the costs of his treatment. His exhibit contained the total amount of his bills, $1,336.75.

Dr. Steven Gershon, a physiatrist, testified with a reasonable degree of medical certainty that the medical bills contained in the plaintiffs' exhibits represented treatment for injuries that Mr. and Mrs. Cho sustained when Buckner assaulted them. Norfolk Beverage objected and asserted that Dr. Gershon was not qualified to render opinions that treatment by doctors outside his field of expertise was causally related to the plaintiffs' injuries. The circuit court overruled the objection and permitted Dr. Gershon's testimony. Norfolk Beverage, relying upon our decision in McMunn v. Tatum, 237 Va. 558, 379 S.E.2d 908 (1989), argues that the circuit court erred by permitting Dr. Gershon to render opinions that the plaintiffs' bills were incurred for treatment of injuries sustained in the assaults because the plaintiffs failed to establish a foundation to qualify Dr. Gershon as an expert competent to render opinions on whether the bills were medically necessary or causally related. We disagree with Norfolk Beverage.

In McMunn, we considered "whether it was error to admit proof of [a] plaintiff's medical bills without foundation evidence that they were a necessary consequence of the defendant's negligence." Id. at 560, 379 S.E.2d at 909. The plaintiff, Charlotte A. Tatum, filed an action for medical negligence against her dentist, Michael O. McMunn. At trial, Tatum offered in evidence an exhibit consisting of 49 pages of medical, hospital, and pharmaceutical bills attached to a summary sheet, which contained a total of the bills. Tatum testified that certain bills were unrelated to her claim against Dr. McMunn, and she deleted all charges she considered unrelated to that claim. She also testified that she received the bills, but she did not qualify as an expert witness. McMunn objected to this evidence on the basis that it lacked a foundation to show that the expenses claimed were necessarily incurred as a result of his alleged negligence. The circuit court admitted the exhibit. Id. at 566-67, 379 S.E.2d at 912-13.

We stated that

"[t]he question whether a particular treatment is medically necessary, however, and the often more difficult question whether it is causally related to a condition resulting from some act or omission on a defendant's part, can usually be determined only by a medical expert qualified in the appropriate field who has studied the plaintiff's particular case. The mere receipt of bills regular on their face by a plaintiff furnishes no evidence of medical necessity or causal relationship. The unfairness to the defendant of receiving such proof without expert foundation in a case of the kind now before us is obvious.

"We now hold that where the defendant objects to the introduction of medical bills, indicating that the defendant's evidence will raise a substantial contest as to either the question of medical necessity or the question of causal

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