Ray v. Rock

Filing 81

OPINION AND ORDER denying 78 Motion for New Trial. Signed by Judge James P. Jones on 11/28/2017. (lml)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
JOHN BRADLEY RAY,

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Plaintiff,
v.
JAMIE STAPLETON ROCK,
Defendant.

Case No. 1:16CV00030
OPINION AND ORDER
By: James P. Jones
United States District Judge

Robert T. Copeland, Copeland Law Firm, P.C., and Michael A. Bragg,
Bragg Law, PLC, Abingdon, Virginia, for Plaintiff; James N. L. Humphreys,
Hunter, Smith & Davis, LLP, Kingsport, Tennessee, for Defendant.
In this personal injury case arising out of a motorcycle accident, a jury found
in favor of the plaintiff and awarded $4,509 in damages. The plaintiff has moved
for a new trial on the ground that the jury award is inadequate as a matter of law.
For the reasons stated below, I will deny the motion.
I.
The evidence presented at trial persuaded the jury that defendant Jamie
Stapleton Rock, while driving a minivan, had negligently turned in front of
plaintiff John Bradley Ray, causing Ray’s motorcycle to collide with the side of
the minivan.
follows.

The evidence pertaining to Ray’s damages can be summarized as

Following the accident on August 25, 2014, Ray was transported by the
ambulance to the emergency department at Bristol Regional Medical Center
(“BRMC”). BRMC records of this visit show that Ray was diagnosed with a
contusion of the chest wall and painful respiration. According to the records, he
reported no loss of consciousness, dizziness, headaches, or altered mental status.
An X ray showed no definite rib fracture.
Several weeks before the accident Ray was seen at Associated Neurologists
of Kingsport (“Neurologists”) in order to follow up on a diagnosis of optic neuritis.
One of his close relatives has multiple sclerosis (“MS”), which puts Ray at greater
risk of developing MS, and optic neuritis can sometimes be an early symptom of
MS. Otakar Krcal, M.D., a neurologist, determined that Ray did not suffer from
MS at that time.
Ray returned to Neurologists on October 2, 2014, a little more than a month
after the accident. He was seen by Nurse Practitioner Tracie Price. A record of
this visit states that Ray reported that he had lost consciousness at the time of the
accident, but he denied having memory problems.

He reported experiencing

headaches approximately four times per week since the accident, including severe
headaches about two times per week. Price found that his cognition was normal
and diagnosed him with post-concussive headaches.

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Ray first complained of memory loss to Neurologists in May of 2015. He
wrote the complaint on an office intake form but did not discuss the problem with a
medical practitioner at that time. On September 9, 2016, approximately two years
after the accident, Ray first reported to Nurse Practitioner Price that he had short
term memory problems and difficulty organizing his thoughts. Price performed a
Montreal Cognitive Assessment that day, which showed mild cognitive decline.
Ray underwent a magnetic resonance imaging scan (“MRI”) with contrast, and the
results were within normal limits.

Lab work revealed slightly elevated liver

enzymes but otherwise normal results. According to Price, on March 1, 2017, Ray
again complained of memory problems as well as trouble sleeping. He reported to
her that he had to write notes to himself to remember what he was doing.
Dr. Krcal testified that Ray was still being monitored for development of MS
and that it was difficult to separate the treatment necessitated by the accident from
the monitoring required for MS. Dr. Krcal stated that Ray was probably followed
more closely than a typical patient with post-concussive syndrome.
Dr. Krcal testified that Ray’s headaches following the accident could have
“possibly” resulted from post-concussive syndrome. Ray reported to the physician
that his headaches had resolved by his second office visit following the accident.
Dr. Krcal could not say with any certainty that Ray’s memory problems were
caused by the accident, largely because there was no baseline memory testing from
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before the accident that would provide a comparison. Dr. Krcal testified that he
was not aware of anything else that would have caused Ray to suffer memory loss.
According to Dr. Krcal, post-concussive memory loss does not usually worsen a
year after an accident. Rather, most memory problems following a concussion
resolve within the first few weeks or months, although they sometimes last longer.
Ken Smith, M.D., a neurosurgeon, performed an independent medical
examination of Ray at the request of the defense. Dr. Smith noted that the MRI
taken approximately two years after the accident was normal. He acknowledged
that Ray claimed memory loss, but he could not say that it was caused by the
accident because there was no pre-accident data for comparison. Dr. Smith noticed
that Ray exhibited a flat affect, meaning that he did not give much feedback in his
interactions and was slow to respond. However, Dr. Smith could not say that the
flat affect was caused by the accident. He testified that he could not reach an
opinion to a reasonable degree of medical certainty based solely on anecdotal
evidence.
Kimberly Campbell, Ray’s former girlfriend, lived with him at the time of
the accident. She testified that he had appeared dazed when she saw him in the
hospital and had complained that his head and side were hurting. He was unable to
drive for about a week following the accident. He experienced painful breathing,
which led to additional medical visits. Campbell testified that Ray had suffered
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from pneumonia and broken ribs, and his head hurt so bad that he underwent an
MRI.
Campbell stated that Ray’s personality had changed after the accident. He
used to be very punctual and outgoing, but after the accident, he was shorttempered, argumentative, and forgetful.

He stopped caring about things and

wanting to do things. He became disorganized and messy. Nevertheless, he still
managed to pay his bills on time and was only late in paying two bills. He did not
hire a housekeeper, but Campbell helped him with housekeeping for a while after
the accident.
The defendant, Ms. Rock, testified that she had not seen Ray lose
consciousness at the scene of the accident. Rock stated that after the impact, Ray
had appeared at the door of her minivan almost immediately, talking to her.
Ray testified that he works for a power company as a unit operator, a job
with great responsibility and safety concerns. He is still able to perform his job
despite his alleged injuries, and he has not been criticized or disciplined at work
since the accident. He missed five 12-hour workdays because of the accident.
Ray claimed a brief loss of consciousness after the accident. He said he
remembered turning off the motorcycle’s ignition and talking to the defendant. He
recalled seeing child seats in the minivan. He was discharged from BRMC the
same day that the accident occurred. He testified that he did not remember being
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asked questions in the emergency room or stating whether or not he lost
consciousness.
When he was discharged from the hospital, Ray had significant pain in his
ribs and experienced a headache that night. He could not breathe normally the next
day, and his ribs and side hurt. Two days following the accident, he visited an
urgent care center because of his rib pain. He had a severe, productive cough
accompanied by wheezing and pain. According to Ray, he was diagnosed with a
rib fracture and pneumonia. With treatment, his breathing normalized within a
week or so, but his ribs continued to hurt for while.
Ray visited a general practitioner and then a chiropractor for his rib pain. He
stated that the rib pain was the worst pain he had ever experienced. He was unable
to obtain records from the chiropractor’s office, which is no longer in business, so
he did not seek to recover amounts paid to the chiropractor.

He saw the

chiropractor for six to eight months. At some point after his treatment ended, he
felt a “pop” in his rib cage and experienced pain again, but he was able to relieve
the pain using stretching and relaxation techniques that the chiropractor had taught
him.
Ray testified that after the accident, he had suffered from two to six
headaches per week and migraines at least twice a week. The headaches continued
for six months to a year, but their frequency decreased and they became more
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manageable. In the year before the trial in this case, he had suffered about two
migraines.
Ray stated that he began to notice memory loss six months to a year after the
accident. He missed bill payments, forgot about functions, and forgot to take his
lunch with him to work. He described an incident in which he forgot to send a
birthday gift to his one-year-old grandson even though the gift was packaged and
addressed, and his grandson shares a birthday with his son. Ray did not realize he
had forgotten to mail the gift until his son asked him about it. Following the
accident, he became less tolerant, which affected his relationship with Campbell
and ultimately lead to their romantic separation. He stated that his memory loss
scared him because it caused him to be alone and made him worry that he might
lose his job or be unable to function independently. He admitted that he had been
divorced twice before the accident.
Ray claimed the following special damages:
$404 billed by the Bristol Life Saving Crew;
$1,605 billed by BRMC;
$3,905 billed by Holston Valley Medical Center for an MRI and $471
billed by Holston Valley Imaging Center for X rays of the cervical
spine;

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$1,818 billed by Wellmont Medical Associates for office visits, X
rays, and injections apparently related to rib pain;
$825 billed by Associated Neurologists of Kingsport; and
$2,058.60 in lost wages.
II.
Rule 59(a) of the Federal Rules of Civil Procedure provides that after a jury
trial, the court may grant a new trial “on all or some of the issues – and to any
party.” Pursuant to Federal Rule of Civil Procedure 59(a), I should grant a new
trial if I am ‘“of the opinion that [1] the verdict is against the clear weight of the
evidence, or [2] is based upon evidence which is false, or [3] will result in a
miscarriage of justice.’” Atlas Food Sys. & Servs., Inc. v. Crane Nat’l Vendors,
Inc., 99 F.3d 587, 594 (4th Cir. 1996) (quoting Aetna Cas. & Sur. Co. v. Yeatts,
122 F.2d 350, 352-53 (4th Cir. 1941)). The grant or denial of a motion for a new
trial is entrusted to the sound discretion of the district court. Cline v. Wal-Mart
Stores, Inc., 144 F.3d 294, 305 (4th Cir. 1998).
“In deciding whether a jury’s award is . . . inadequate, a federal court in a
diversity case must apply substantive state law.” Stebbins v. Clark, 5 F. App’x
196, 201 (4th Cir. 2001) (unpublished); see also Gasperini v. Ctr. for Humanities,
Inc., 518 U.S. 415, 419 (1996) (holding that application of state law regarding
inadequacy of jury verdict does not contravene Seventh Amendment). In ruling on
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the plaintiff’s motion, I may weigh the evidence and assess the credibility of
witnesses. Cline, 144 F.3d at 301.
As a general rule, “the amount of damages is solely within the discretion of
the jury.” Stebbins, 5 F. App’x at 202. The court must afford great respect to the
jury’s verdict and cannot set it aside merely because the court would have arrived
at a different amount. Id. Nevertheless, a Virginia statute states that a court may
grant a new trial “where the damages awarded are too small as where they are
excessive.” Va. Code Ann. § 8.01-383.
In Virginia, “a jury’s award of damages may not be set aside by a trial court
as inadequate or excessive unless the damages are so excessive or so small as to
shock the conscience and to create the impression that the jury has been influenced
by passion or prejudice or has in some way misconceived or misinterpreted the
facts or the law which should guide them to a just conclusion.” Downer v. CSX
Transp., Inc., 507 S.E.2d 612, 614 (Va. 1998). The Supreme Court of Virginia has
attempted to clarify the standard for determining whether a jury verdict in a
personal injury case is inadequate as a matter of law.

When a jury’s award

represents the exact amount of medical expenses and special damages claimed by
the plaintiff, the award is inadequate as a matter of law because it fails to
compensate the plaintiff for noneconomic damages such as pain, suffering, and
inconvenience. Bowers v. Sprouse, 492 S.E.2d 637, 638 (Va. 1997). However,
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this rule “does not extend to an award which deviates from the amount of all the
special damages claimed, even if the amount of the verdict corresponds to an
identifiable portion of the special damages.” Walker v. Mason, 510 S.E.2d 734,
735 (Va. 1999).
Moreover, “[w]hen the evidence permits a jury to conclude that only some
of the damages claimed resulted from the accident, a verdict in an amount less than
or approximating a portion of the special damages does not justify the conclusion
that the jury failed to consider other damage elements such as pain, suffering, and
inconvenience.” Richardson v. Braxton-Bailey, 510 S.E.2d 732, 733 (Va. 1999).
“The quality of the evidence is dispositive, not a comparison between the amount
of the verdict and the special damages claimed.” Id.
More recently, in Herring v. Johnson, an unpublished opinion, the Supreme
Court of Virginia held that where a portion of the plaintiff’s claimed special
damages were uncontroverted and the jury awarded damages in the exact amount
of those uncontested damages, the verdict was inadequate as a matter of law
because it failed to compensate the plaintiff for non-monetary damages. Record
No. 140417, 2014 WL 11398557, at *2 (Va. Dec. 12, 2014) (unpublished) (citing
Bradner v. Mitchell, 362 S.E.2d 718, 720 (Va. 1987)).
Applying these principles, I must determine which of the plaintiff’s claimed
special damages were uncontroverted and whether the jury’s award exactly
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matches the total amount of those uncontroverted special damages. The defendant
did not contest the $404 billed by the Bristol Life Saving Crew or $1,605 billed by
BRMC for services rendered on the day of the accident. The defendant did not
contest the plaintiff’s lost wages in the amount of $2,058 for the five days of work
he missed following the accident. These items of damages total $4,067, which is
$441.40 less than the jury’s verdict.
I cannot speculate about what the additional $441.40 awarded by the jury
represents. The evidence presented at trial called into question whether the other
claimed special damages were caused by the accident. Although Ray contended
that he had suffered a rib fracture and pneumonia, no medical records or expert
testimony corroborated that claim.

Hospital records showed that an X ray

performed on the day of the accident did not reveal a rib fracture. No expert
witness could causally tie Ray’s claimed memory loss or headaches to the accident
within a reasonable degree of medical certainty. Some if not all of the treatment
Ray received from his neurologist, as well as the MRI, would have been required
even had the accident not occurred, because he needed to be monitored for the
potential onset of MS. Aside from Ray’s own vague testimony about medical
visits for treatment of rib pain, no witness explained the Wellmont Medical
Associates bills or linked them to the accident, nor did any witness explain the
Holston Valley Imaging Center bill for what appears to be an X ray of the cervical
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spine. In short, the medical evidence presented in this case was extremely weak,
and the jury had good reason to conclude that Ray had not met his burden of
proving that all of his claimed damages were caused by the accident. Therefore, I
cannot find that the jury’s verdict was inadequate as a matter of law.
III.
For the foregoing reasons, it is ORDERED that the Motion for Additur or In
the Alternative a New Trial, ECF No. 78, is DENIED.
ENTER: November 28, 2017
/s/ James P. Jones
United States District Judge

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