Toler v. Hager, 25477.

Citation205 W.Va. 468,519 S.E.2d 166
Decision Date14 July 1999
Docket NumberNo. 25477.,25477.
CourtSupreme Court of West Virginia
PartiesLori TOLER, Plaintiff Below, Appellee, v. Jody HAGER, Defendant Below, Appellant.

Donald C. Wandling, Esq., Avis, Witten & Wandling, Logan, West Virginia, Attorney for the Appellee.

Brent K. Kesner, Esq., Daniel W. Greear, Esq., Ellen R. Archibald, Esq., Kesner, Kesner & Bramble, Charleston, West Virginia, Attorneys for the Appellant.

MAYNARD, Justice:

The appellant, Jody Hager, seeks reversal of two orders entered by the Circuit Court of Logan County, West Virginia. Following a trial on liability and damages for personal injuries, the judge refused to accept the verdict of the jury regarding the appellee, Lori Toler. Instead, the judge gave the jury unsolicited instructions on damages and returned the jury to the jury room three times to reconsider before accepting the verdict. The judgment order, entered on December 8, 1997, awarded the appellee, Lori Toler, $2042.00 for medical expenses and $100.00 for pain and suffering. The appellant moved to reinstate the original jury verdict. The appellee moved for a new trial on damages for pain and suffering, which was granted in a post-trial order entered on April 27, 1998. The appellant seeks to have the original jury verdict reinstated; in the alternative, the appellant requests that the order awarding a new trial be reversed and that the judgment order be reinstated. We believe the circuit court invaded the province of the jury, and therefore, we reverse both orders and reinstate the original jury verdict. However, the parties are not foreclosed from seeking a new trial.


On January 23, 1996, Mary Burgess, her five-year-old son, David, and stepdaughter, Lori Toler, were traveling on Route 10 near Lyburn in Logan County, West Virginia. Mary Burgess was driving a 1989 Oldsmobile Cutlass; David was riding in the back seat; the appellee was a front seat passenger. While attempting to make a left turn, Burgess stopped to allow a vehicle to exit the road she wished to enter. After starting forward again, Burgess stopped suddenly and was bumped from behind by a Chevrolet S-10 pickup truck driven by the appellant. There is no dispute that the vehicles suffered minimal damage and the police were not called to the scene.

Later that afternoon, Burgess, her son, and the appellee went to the emergency room at Logan General Hospital.1 Six days later, the appellee was still complaining of pain in her neck and back. She made an office visit to Dr. Ramanaban Padmanaban, an orthopedic surgeon at Logan General Hospital. Toler was diagnosed with a "cervical and upper and lower back strain" with no neurological deficit. The doctor testified at trial that the appellee was not suffering from muscle spasms, but, upon examination, she stated that her muscles were sore. Dr. Padmanaban prescribed Darvocet, an anti-inflammatory medication and muscle relaxants. The appellee next visited Dr. Padmanaban on February 12, 1996. During that visit, she complained of "pain, soreness and stiffness in the neck, soreness and stiffness in the back, also." Dr. Padmanaban prescribed physical therapy, which was provided at Logan General Hospital. Dr. Padmanaban testified that on the fourth and last visit, the appellee "had an excellent range of motion in the neck and back. There was no restrictions.—She was released from therapy. Since she was having no problem and there was no neurological deficit, I released her to come back and see me on a necessary basis." The appellee was released from treatment at that time and did not return to the doctor.

Burgess and Toler filed personal actions against Hager. The actions were consolidated for trial. At trial, the following question was posed to Dr. Padmanaban by the appellee's attorney: "Is it your opinion to a reasonable degree of medical probability that, based upon the history that Lori Toler gave you, your examinations of her and test results, that the diagnosis of neck and low back strain was caused by the traffic accident?" The doctor answered that it was his opinion that if Toler had experienced no other injuries, "then from the history and examination, the problem she had was caused by the accident[.]" Dr. Padmanaban believes Toler suffers from no permanent injury.

Besides hearing Dr. Padmanaban's testimony, the jury viewed the video testimony of the appellant's expert, Dr. Paul Bachwitt, an orthopedic surgeon, and heard the testimony of the appellant's accident reconstructionist, Dr. Craig Depkin. The jury saw photographs of the damage to the vehicles following the collision.

Dr. Bachwitt testified that he examined the appellee on March 10, 1997. Dr. Bachwitt noted that Dr. Padmanaban released the appellee from treatment on March 25, 1996 with excellent range of motion in the back and neck with no neurological deficit. She was released with no restrictions. Dr. Bachwitt reviewed Logan General Hospital's x-rays and reports and then proceeded to take his own x-rays of the appellee's neck and back. Dr. Bachwitt saw no abnormalities in the cervical spine or the lumbar spine. The doctor testified that upon examination of the appellee, the results of the testing differed depending on whether the appellee understood she was being tested or whether the test was performed as a distraction test. He stated, "This is contradictory and not explainable by orthopedic injury or pathology, either one." The doctor "saw no objective evidence why she should complain of stiffness in the neck and low back." Dr. Bachwitt testified that to a reasonable degree of medical certainty he felt the appellee did not suffer a permanent injury in the motor vehicle accident, was not disabled for any significant period of time and would require no future medical treatment or care.

Dr. Bachwitt further testified that the appellee told him she was attending college at the time of the accident and had missed no classes; she was also able to clean her house and dress and care for herself with no assistance. Dr. Bachwitt disagreed with Dr. Padmanaban's diagnosis of neck and back strain; Dr. Bachwitt testified that in his professional opinion he did not believe the appellee stretched the muscles in her neck or back from such a slight impact. However, he agreed it was not unreasonable to treat an individual's subjective complaints.

Dr. Depkin, a mechanical engineer, was called by the defense to testify as an accident reconstructionist. He testified that the damage to the two vehicles involved in the accident was so minimal that accident reconstruction was not possible; rather, an impact analysis was performed. He stated that at the time of impact, the acceleration in the front to rear direction of the head of the occupants of the Oldsmobile was the type of acceleration that people experience when rising from a sitting to a standing position. He also testified that immediately prior to impact, the pickup was traveling two and one-half miles per hour.

At the close of the trial, the only question presented to the jury on the verdict form relating to the appellee was the assessment of damages. The question was presented in the following manner:

5. We, the jury, assess damages to the Plaintiff, Lori Toler, as follows Medical Expenses, travel and other expenses to date: ______ Pain and suffering, mental anguish and loss of enjoyment of life to date: ______

Upon consideration of the evidence presented, the jury returned a verdict of $0 for the appellee. This was a verdict for the defendant which the judge refused to accept. Instead, the judge informed the jury, "The Court cannot accept the verdict forms as submitted, and will have to resubmit the matter to the jury for the completion of part No. 5." The jury deliberated and returned a verdict of $53.00 in medical expenses and $0 for pain and suffering. The judge responded by stating, "I must inform the jury that, once again, I cannot accept the verdict form as submitted. The matters or the amounts set forth in item No. 5 are insufficient as a matter of law, so I'll have to resubmit this for further consideration. You will be instructed to continue your deliberations." The jury again deliberated and awarded Toler $2042.00 for medical expenses and $0 for pain and suffering. Upon receiving the verdict, the judge stated, "Members of the panel, I can now accept the verdict form on the first part of question No. 5, but not on the second part, so I'll have to send you back for additional work on the second part of question No. 5." The jury once again deliberated and awarded Toler $2042.00 for medical expenses and $100.00 for pain and suffering. The judge finally responded by stating, "The Court would find that the verdict form would be acceptable. I'll read the verdict."

Hager filed a motion for reinstatement of the original jury verdict. Following the hearing, the court entered judgment on the jury's fourth verdict, noting the parties' objections, thereby implicitly denying Hager's motion. Toler then filed a motion for a new trial, claiming the pain and suffering award was inadequate. On April 27, 1998, the court entered an order which states that "the Motion for a New Trial is hereby granted on the basis that the jury's award for pain and suffering is inadequate; the Court does further ORDER and ADJUDGE that this matter will be set for trial upon the issue of damages." Hager appeals from these orders.


The circuit court found the verdict was insufficient as a matter of law and instructed the jury to continue deliberating on three separate occasions. "This Court reviews the circuit court's final order and ultimate disposition under an abuse of discretion standard. We review challenges to findings of fact under a clearly erroneous standard; conclusions of law are reviewed de novo." Syllabus Point 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996).


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