Adkins v. Foster

466 S.E.2d 417, 195 W. Va. 566, 1995 W. Va. LEXIS 221
CourtWest Virginia Supreme Court
DecidedDecember 7, 1995
DocketNo. 22839
StatusPublished
Cited by12 cases

This text of 466 S.E.2d 417 (Adkins v. Foster) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Adkins v. Foster, 466 S.E.2d 417, 195 W. Va. 566, 1995 W. Va. LEXIS 221 (W. Va. 1995).

Opinion

PER CURIAM:

A jury in this action found that the appellant, Deborah Adkins, was entitled to no damages for personal injuries allegedly sustained in a car wreck on June 21, 1986. In the present appeal, the appellant’s principal assertions are that the trial court should have awarded her a new trial after the return of the verdict and that the court erred in submitting a defective verdict form to the jury. After reviewing the record filed and the questions raised, this Court disagrees and cannot find that the trial court committed reversible error. The judgment of the trial court is, therefore, affirmed.

On June 21, 1986, Mark Foster, a drunk driver, “rear ended” an automobile in which the appellant was a passenger. As a result, the appellant suffered neck injuries, and because of those injuries she instituted the present action for damages in the Circuit Court of Fayette County. The case was initially tried before a jury, and on May 8, 1991, that jury returned a verdict for the appellant in the amount of $222,133.00. The Circuit Court of Fayette County subsequently rendered judgment on that verdict.

The appellees here appealed the circuit court’s judgment to this Court after the prior trial. In Adkins v. Foster, 187 W.Va. 730, 421 S.E.2d 271 (1992), we reversed on the issue of damages and remanded for a new trial while finding that the liability of the appellees was adequately proven. We indicated that, in the absence of special interrogatories to the jury, it was not possible to determine whether the jury awarded the appellant damages for future economic loss or other factors. We also suggested that under the record then available to this Court we could not ascertain whether the verdict was based on pain and suffering or speculative testimony on future economic damages. We concluded that the judgment, insofar as it related to damages, should be reversed, and we remanded for a new trial on the damage issue. We stated:

Our conclusion that this matter should be remanded on the issue of future economic damages is based upon our belief that the appellee presented significant evidence of permanent injury but failed to present evidence of future economic ramifications of the injury to a reasonable degree of certainty. Upon remand, the permanency of the appellee’s injury, as proven in the previous trial, should be presumed, and evidence of future economic loss should be presented to permit a reliable calculation of economic loss.

Id. at 736,421 S.E.2d at 277.

It appears that between the time of the first trial and retrial on remand, a substantial deterioration of the appellant’s medical condition occurred and that the appellant underwent additional medical examination and treatment.

[568]*568In preparing for retrial, the appellees investigated the medical evidence generated after the first trial and learned certain things not previously known. For instance, the appellees learned that a knee injury sustained by the appellant at work prior to the 1986 auto accident was substantially disabling and possibly impacted on her future earning capacity. They also learned that the appellant had been diagnosed as suffering from cervical dystonia, a neurological condition of the neck of apparently non-traumatic origin.

As the second trial approached, the appellees felt that the fact that the appellant had cervical dystonia, or the non-traumatic neck condition, was of particular significance in light of the fact that she was seeking damages for the trauma to her neck arising out of the car accident. Therefore, the appellees moved that they be permitted to introduce evidence of the cervical dystonia. The trial court denied that motion.

During the actual retrial, the appellant introduced evidence suggesting that she had previously worked both as a truck driver and as the lead singer in a band and that she had earned substantial income prior to the auto wreck. Her evidence also indicated that she was unable to perform these jobs because of the disability arising out of the auto accident.

The appellant called as a witness Daniel M. Selby, a C.P.A., who gave economic testimony that the average truck driver in Raleigh County made $21,459.00 in 1992, and through elaborate calculations he postulated that the appellant had an income capacity that amounted to $327,348.00 over the rest of her life.

The appellant also introduced evidence suggesting that her ability to enjoy life was markedly impaired by the residuals of the accident, including a marked neck deformity, which was characterized as “torticollis”. This evidence included the testimony of Gloria Alderson, a rehabilitation specialist. Ms. Alderson testified that the vocational skills which the appellant had developed had been negated by her physical impairment, and her ability to compete in the job market was very poor. She also expressed the opinion that the appellant was permanently and totally disabled and that her rehabilitation potential was very poor. Ms. Alderson testified that appropriate care for the appellant in the future would include a rehabilitation psychological examination (cost: $3,500.00); a physical therapy evaluation once a year for life (cost: $120.00 per year); occupational therapy (cost: $120.00 per year for life); frequent orthopedic examinations (cost: $160.00 per visit); general medical care to deal with such things as colds, flu, etc. (cost: $200.00 per year); psychiatric care once a month (cost: $60.00 per visit); a psychiatric behavior modification program every two years (cost, broken down on a yearly basis: $2,500.00); and psychiatric family and group counseling (cost: $1,375.00 per year). Ms. Alderson also stated that the appellant would need a rehabilitation specialist on various types of equipment such as hand-held shower massage, an overbed table, an electric toothbrush, and a “whirlpool hydro-therapy”, and various other things including various medications, for all of which she gave cost estimates. She also indicated that the appellant should have attendant care for life at the cost of $33,320.00 per year.

Through the economic testimony of Daniel M. Selby, the appellant advanced a “life care plan” which incorporated the suggestions of Ms. Alderson. That plan indicated that a jury award of $1,528,888.00 would be required to compensate her for the losses sustained in the ear wreck.

Apparently as a matter of trial strategy, the appellant did not introduce evidence of the out-of-pocket cost of any treatment directly and exclusively related to the accident.

The appellees, through their attorney, closely cross-examined the appellant and injected into the trial some question as to her veracity and forthrightness. For instance, through introduction of the appellant’s social security records, the appellees elicited admissions that her actual earnings over the years were not great. They showed, for instance, in 1975 the appellant had earned $739.00; in 1976, $661.00; in 1977, nothing; in 1978, $402.00; in 1979, $2,929.00; in 1980, $2,187.00; and in 1981, $5,171.00. They also adduced evidence suggesting that the impact of the 1986 auto accident was not as great as [569]*569the appellant’s evidence suggested, and they elicited an admission that in 1987, after the 1986 auto accident, the appellant had actually worked more hours than she had worked in any previous year and that in 1987 she earned $17,686.00, more than she had earned in her entire life prior to the accident.

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Bluebook (online)
466 S.E.2d 417, 195 W. Va. 566, 1995 W. Va. LEXIS 221, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adkins-v-foster-wva-1995.