Pauley v. Bays
| Decision Date | 07 July 1997 |
| Docket Number | No. 23558,23558 |
| Citation | 490 S.E.2d 61,200 W.Va. 459 |
| Court | West Virginia Supreme Court |
| Parties | Eloise PAULEY, Plaintiff Below, Appellee, v. Lansford BAYS, Defendant Below, Appellant. |
1. Syl. Pt. 3, in part, In re State Public Building Asbestos Litigation, 193 W.Va. 119, 454 S.E.2d 413 (1994), cert. denied, 515 U.S. 1160, 115 S.Ct. 2614, 132 L.Ed.2d 857 (1995).
2. "Where the trial court improperly sets aside a verdict of a jury, such verdict will be reinstated by this Court and judgment rendered thereon." Syl. pt. 4, Bronson v. Riffe, 148 W.Va. 362, 135 S.E.2d 244 (1964).
3. "The action of the trial court in setting aside a verdict for the plaintiff and awarding the defendant a new trial will be reversed by this Court where it appears that the case, as a whole, was fairly tried and no error prejudicial to the defendant was committed therein." Syl. Pt. 7, Earl T. Browder Inc. v. Webster County Court, 145 W.Va. 696, 116 S.E.2d 867 (1960).
4. " ' Syl. Pt. 2, Maynard v. Napier, 180 W.Va. 591, 378 S.E.2d 456 (1989).
5. "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).
6. "In determining whether the verdict of a jury is supported by the evidence, every reasonable and legitimate inference, fairly arising from the evidence in favor of the party for whom the verdict was returned, must be considered, and those facts, which the jury might properly find under the evidence, must be assumed as true." Syl. Pt. 3, Walker v. Monongahela Power Company, 147 W.Va. 825, 131 S.E.2d 736 (1963).
Tony L. O'Dell, Berthold & Tiano, Charleston, for Appellee.
David A. Mohler, Campbell, Woods, Bagley, Emerson, McNeer & Herndon, Charleston, for Appellant.
This is an appeal by Lansford Bays (hereinafter "Appellant") from a December 14, 1995, order of the Circuit Court of Lincoln County granting a new trial on the issue of damages to the Appellee Eloise Pauley (hereinafter "Appellee"). The Appellant, the defendant in an underlying civil action for damages sustained during an automobile accident, contends that the lower court abused its discretion in ordering the new trial on the issue of damages. We agree and remand this matter for resolution consistent with the original jury award.
On July 2, 1990, as the Appellant exited his residential driveway and maneuvered his vehicle onto MacCorkle Road in Lincoln County, the sharp curve at the end of his driveway required him to pull across the road, back his vehicle into the road, and then proceed forward into his own lane of travel. According to the Appellee's testimony, she approached the Appellant in her own vehicle and observed the Appellant's attempts to access the main road. She testified that she had observed the Appellant from approximately 150 feet away and had reduced her speed to approximately ten miles per hour prior to impact. The Appellant's vehicle then collided with her vehicle as the Appellant began to move forward into the roadway. The Appellee exited her vehicle and informed the Appellant that the damage could be "pounded out" without any problem. She then traveled toward a flea market but turned around to go home when she discovered a rattle in her truck. Although the Appellant passed away prior to trial, 1 his deposition indicated that the collision occurred as he began making his forward turn. He testified that although he observed the Appellee in time to hit his brake, he "bumped her slightly." The accident caused approximately $1590 damage to Ms. Pauley's truck.
On October 14, 1992, the Appellee filed a civil action, claiming that the accident caused her teeth to be knocked loose and caused chronic jaw, neck, shoulder, and back pain. In July 1994, the Appellee added a claim of depression allegedly resulting from the accident. The matter was tried in the lower court in August 1994, and the Appellant's primary evidence regarding damages emphasized the Appellee's pre-accident ailments and treatment. In presenting evidence indicating that the Appellee had suffered several physical problems prior to the accident, the Appellant introduced evidence of treatment by Dr. Loren Smith for neck and back problems since 1979. Dr. Smith testified that he had treated her for these problems prior to the accident at issue in this case. She had also complained of back pain on September 5, 1989, when she turned on a pressured water hose in a car wash stall. The Appellant's evidence also indicated that the Appellee had complained of jaw pain in 1989, and Dr. Joseph Fernandes, an orthopedic surgeon, had treated the Appellee for degenerative disc disease on May 18, 1990, less than two months prior to the accident.
Dr. John Schmidt, a neurosurgeon, testified that the Appellee's head, neck, and spine were unremarkable, and he indicated that she would not benefit from additional treatment. Dr. Schmidt also explained that he had been "unable to demonstrate evidence of neurologic disease." The Appellant also emphasized during trial that the Appellee had six teeth extracted and her dentures realigned within six months prior to the accident and that the Appellee had received no treatment from the summer of 1991 until the summer of 1992.
Dr. Daniel Black, an osteopath, testified for the Appellee and indicated that she suffered post traumatic fibromyalgia. He estimated her future expenses for anti-depressants of $2250 per year for her life expectancy of 11.5 years, for a total of $26,000. Dr. Black's report subsequent to The jury determined that the Appellant was 60% negligent and that the Appellee was 40% negligent. It awarded $15,000 for medical expenses 2, $2,000 for future medical expenses, $2,000 for pain and suffering, and $1,000 for loss of enjoyment of life. According to the allocation of negligence, that $20,000 verdict was then reduced by the Appellee's 40% negligence to $12,000. The Appellee thereafter moved for a new trial, claiming that the jury did not adequately compensate her for future medicals.
[200 W.Va. 462] examination indicated that the Appellee required no more treatment at that time. Although Dr. Black initially stated that the Appellee would require follow-up visits, the cost of which contributed to his estimate of $2250 per year in medical futures, he had not seen the Appellee from June 1992 to the trial in August 1994. Dr. Thomas F. Scott, an orthopedist, testified that she had no need for future medication or treatment of any nature. He also stated that he found no abnormalities in her head, neck, shoulders, spine, or extremities. He found normal mobility in the neck, spine, and hips. Dr. Steven Dreyer, a neuropsychologist, testified that the Appellee suffered depression due to the accident and would require $1000 to $4000 for future treatment of that depression.
On December 14, 1995, the lower court granted a new trial on the issue of damages. 3 The lower court observed that the Appellant neither refuted the testimony of Dr. Black or Dr. Dreyer regarding future medicals nor directly disputed the Appellee's assertion that she suffered fibromyalgia. The lower court further stated that the jury improperly granted only $2000 in future medicals and did not grant the Appellee a sufficient amount for pain and suffering. The Appellant appeals, contending that the lower court erred in ruling that the $2000 for future medicals was insufficient and erred in ruling that the Appellee's evidence of futures was uncontroverted. In support of his argument, the Appellant directs attention to his evidence regarding the absence of abnormalities in the medical examinations and the similar ailments she suffered prior to the accident. The Appellant also references the testimony of Dr. Scott and Dr. Schmidt regarding the absence of need for further treatment.
In In re State Public Building Asbestos Litigation, 193 W.Va. 119, 454 S.E.2d 413 (1994), cert. denied, 515 U.S. 1160, 115 S.Ct. 2614, 132 L.Ed.2d 857 (1995), we addressed the standard of review applicable to a motion for a new trial and held as follows in syllabus point three:
A motion for a new trial is governed by a different standard than a motion for a directed verdict. When a trial judge vacates a jury verdict and awards a new trial pursuant to Rule 59 of the West Virginia Rules of Civil Procedure, the trial judge has the authority to weigh the evidence and consider the credibility of the witnesses. If the trial judge finds the verdict is against the clear weight of the evidence,...
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