COURT OF APPEALS OF VIRGINIA UNPUBLISHED
Present: Chief Judge Decker, Judges Malveaux and Callins Argued by videoconference
LINDSAY D. SIGHTLER MEMORANDUM OPINION* BY v. Record No. 0535-24-1 JUDGE MARY BENNETT MALVEAUX MAY 27, 2025 ASHLEY LUBECKI, D.O., ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Everett A. Martin, Jr., Judge
Randy D. Singer (Rosalyn K. Singer; Maryam M. Atty; Singer Hoffman, LLC, on briefs), for appellant.
Rodney S. Dillman (Julie Mayer; Michael E. Olszewski; Edward W. Bailey; Hancock, Daniel & Johnson, P.C., on brief), for appellees.
Lindsay Sightler filed a medical malpractice suit against Ashley Lubecki, D.O., Lubecki’s
employer, Bayview Physicians Services, P.C., and others, alleging that they failed to properly
diagnose and treat her breast cancer. A jury returned a partial verdict in Sightler’s favor and
awarded her $98,000. On appeal, Sightler argues that the circuit court erred by denying her post-
trial motion for an investigative hearing and a new trial based on juror misconduct, denying her
motion for additur, and permitting a defense expert to testify to certain opinions. For the following
reasons, we affirm the judgment of the circuit court.
I. BACKGROUND
On appeal, we “view the facts in the light most favorable to the prevailing party below.”
Friedman v. Smith, 68 Va. App. 529, 543 (2018) (quoting Blackson v. Blackson, 40 Va. App.
507, 517 (2003)).
* This opinion is not designated for publication. See Code § 17.1-413(A). A. Complaint
Sightler filed a medical malpractice suit against Ashley Lubecki and Bayview Physician
Services, P.C., alleging that the defendants were negligent in failing to properly diagnose and
treat her breast cancer.1 Sightler first mentioned a lump in her breast to Lubecki in September
2018. Sightler reported continuing issues over the following year, including two lumps in her
breast that were also noted on an ultrasound in September 2019. But it was not until she saw a
different doctor in January 2020 that she was diagnosed with “invasive ductal carcinoma,” a type
of breast cancer. Her treatment plan involved a “modified radical mastectomy” and “surgical
exploration of her left axilla,” as well as “aggressive chemotherapy and radiation therapy,
followed by ten years of hormonal deprivation.” Sightler alleged that the damages she suffered
as a result of her treatment were caused by the defendants’ “failure to diagnose [the cancer] in a
timely manner and the prescribing of contraceptives containing estrogen and progesterone.”
Sightler prayed for judgment against the defendants jointly and severally, in the amount of
$2,400,000 plus pre-judgment interest and costs.
B. Expert Designation
In preparation for trial, Lubecki designated Maggie DiNome, M.D., a board-certified
surgical oncologist specializing in breast oncology, as an expert witness. DiNome was expected
to testify that Lubecki’s treatment of Sightler “did not cause or contribute to” the cancer’s
presence in Sightler’s lymph nodes, because “she would have still required mastectomy, axillary
node dissection, radiation, chemotherapy, and hormone suppressant medications” even if she had
been diagnosed prior to January 2020. DiNome would explain that
1 Sightler also filed suit against Andrew Zasada, M.D., Stafford Brown, M.D., Bayview Medical Center, Inc., and Hampton Roads Radiology Associates, P.C. The circuit court ultimately dismissed Zasada from the case. On Sightler’s motion, the action was partially nonsuited as against Bayview Medical Center. The jury returned a verdict against Sightler for Brown and Hampton Roads Radiology Associates. -2- [t]he fact that Ms. Sightler had two palpable masses in two separate quadrants of the breast indicate[s] that the “burden” of the cancer was heavy, and more likely than not she had additional areas of cancer in her breast that were not yet detectable on the imaging or via palpation . . . . [O]nce a malignant mass is palpable, the cancer has already invaded one or more of the axillary nodes.
DiNome was further expected to testify that “more likely than not at least two masses were in
Ms. Sightler’s breast in September of 2018, and she had axillary nodal invasion” and that
“because there were multiple locations of the cancer in 2020, it is more likely than not that the
same was true in 2018, whether or not they were detected on imaging.”
In her deposition, DiNome was asked about the relationship of a palpable mass in the
breast to the cancer’s presence in the lymph nodes. She answered that “if it’s a multifocal
palpable mass, then more likely than not there’ll be lymph node disease.” She agreed this was a
“pretty major distinction” from her designated opinion that “if the patient has a palpable mass,
the cancer has already invaded one of the axillary nodes.” She clarified that “it doesn’t even
have to be palpable,” but a patient has “a more likely than not chance of having lymph node
disease” if “multifocal multicentric masses, or cancers” are present in the breast.
Sightler filed a motion in limine to exclude those certain portions of DiNome’s deposition
opinions that differed from those that were designated. Specifically, Sightler highlighted that
whereas DiNome’s designated opinion was that “a single palpable mass ‘almost always’ means
lymph node involvement,” she testified in her deposition “that a multi-focal palpable mass (at
least two masses) more likely than not meant lymph node involvement (perhaps 60% of the
time).” Sightler argued that DiNome should not be permitted to testify to the opinion “that when
you can palpate more than one mass it means that the cancer has probably invaded the lymph
nodes,” because this opinion “r[a]n contrary” to the designation requirements of Rule
-3- 4:1(b)(4)(A)(i), as interpreted in John Crane, Inc. v. Jones, 274 Va. 581 (2007). The circuit
court took the motion under advisement.
C. Trial Proceedings
At trial, Sightler renewed her objection to the portion of DiNome’s testimony concerning
the relationship of the number of palpable masses to the cancer’s presence in the lymph nodes,
because “she changed . . . the number of masses required” to discern whether cancer has invaded
the nodes from “a malignant mass” to “more than one mass,” and she also “went from [a]
certainty standard to a more likely than not standard.” The circuit court overruled the objection,
and Sightler noted a continuing objection to DiNome’s expected testimony on that specific topic.
On direct examination, DiNome opined that “had [Sightler] been diagnosed when she
first presented in 2018, she would have still required the mastectomy, the lymph node dissection,
the chemotherapy, the radiation and the hormone blocking therapy,” because Sightler “had
presented . . . with the palpable finding” and “had extensive evidence of lymph node disease
already.” DiNome testified that Sightler incurred “[n]o additional bills” because of Lubecki’s
care, as the treatment options “would have been the same.” DiNome further testified that “when
women present with palpable lumps, the amount of tumor is larger than if they presented with a
cancer that was found on regular screening mammogram,” and noted that “whether or not
[Sightler] felt one or two lumps, . . . on the final pathology she did have very extensive disease.”
DiNome also explained that “multicentric multifocal disease means there’s more than one focus
of breast cancer . . . multifocal means there’s more than one in the same quadrant. And
multicentric means there’s more than one but in different quadrants of the breast.” She then
noted that Sightler’s “ultrasound in September of 2019 showed two abnormalities . . . [in] two
separate quadrants of the same breast.”
-4- On cross-examination, Sightler asked DiNome if her designated opinion was correct that
“once a malignant mass is palpable, the cancer’s already invaded one or more of the axillary
nodes” and that “if it is a palpable mass, it almost always involves lymph node invasion.”
DiNome replied that those statements “are not correct in and of themselves,” and clarified, “if
[Sightler] presented with two palpable masses that turned out to be cancer, there is, more likely
than not, probability that the patient already has lymph node disease.” To DiNome it was
“irrelevant whether or not she felt one [mass] or two based on the extent of disease.”
Sightler and her family members testified that Sightler experienced increased anxiety due
to her diagnosis. Sightler herself believed her panic attacks and “really bad anxiety” were partly
due to her cancer diagnosis and that anxiety is “more of a regular occurrence now.” Her mother
testified that Sightler is anxious about “everything” now, where “she was never an anxious
person before.” Sightler’s husband also stated that “[h]er anxiety is through the roof now.”
The jury returned a partial verdict for Sightler in the amount of $98,000 against Lubecki
and Bayview Physicians Services.
D. Post Trial Motions
1. Motion for Investigative Hearing and New Trial
After trial, Sightler moved for an evidentiary hearing to determine whether a new trial
should be ordered against Lubecki and Bayview Physicians Services. She alleged that one of the
jurors, Juror Watson, had: (1) failed to reveal relevant information—the fact that she had
previously worked in healthcare—during voir dire; (2) made up her mind before the conclusion
of the evidence; (3) considered herself “an advocate” for Lubecki and her children; and (4) added
extraneous information into the jury deliberations by referencing her healthcare experience “as a
reason for the jury to find in favor of Dr. Lubecki.” As a basis for these allegations, Sightler
cited the affidavits of three jurors and one alternate juror, Jeffrey Matthews, whom Sightler
-5- allegedly called shortly after the jury announced its verdict. The circuit court denied Sightler’s
motion on the first, second, and third grounds, noting that those allegations were based entirely
upon Matthews’s testimony and would “run afoul” of Virginia Rule of Evidence 2:606(b), but
granted a hearing on “extraneous evidence.”
At the hearing, Juror Henri Ellis testified that Watson told other jurors that due to having
worked in her father’s dental practice, she knew “how things worked in the medical field.”
Watson stated that “if [they] found for Mrs. Sightler, that Dr. Lubecki’s profession would be
ruined . . . because that’s what happens. That’s the way it works.” On the subject of medical
records, Watson also commented, “you know, that’s what happens,” but did not mention her
work for her father in that context. Watson’s behavior did not influence Ellis or affect Ellis’s
willingness to continue discussing the evidence.
Juror Brian Hall testified that Watson “referenc[ed] her family’s medical practice and
working for her family and then saying something to the effect of, ‘That’s not how it’s done.’”
Hall recalled Watson “repeatedly” using the term “preferred modality” in reference to
“diagnosing breast cancer,” although Hall was unsure “whether or not [Watson’s] . . .
background in the medical field directly influenced that.” When asked whether Watson’s
comments “impact[ed] the deliberations in any way,” Hall responded, “Yes. I believe it did. She
seemed very firm in her resolve. She did not seem to want to even discuss it any further. She
had made up her mind, and that was it.”
Juror Candy Watson (“Candy”)2 testified that Watson told the jury “her parents worked
in the medical field and she didn’t feel like she should be here in the first place.” Candy could
not recall any ways in which Watson “used her experience outside of the jury room to buttress
her opinion in the jury room.”
2 Sightler’s motion indicates that Candy Watson is not related to Lindsay Watson. -6- Neither Matthews nor Watson testified. The circuit court did not find a probability of
prejudice to Sightler and denied her motion.
2. Motion for New Trial, Additur, or New Trial on Damages
Sightler also filed a motion for a new trial as against Lubecki or, in the alternative,
additur or a new trial on damages under Code § 8.01-383.1(B). Her motion was based on the
circuit court’s ruling that DiNome “was allowed to express opinions about when the cancer
travelled to the lymph nodes . . . even though the opinions were not designated pursuant to John
Crane and, in fact, [were] contradictory to the opinions that had been designated.” Sightler
posited that the jury’s damages award, representing only “a fraction of the medical bills in the
case,” was due to factual findings about causation that had been “improperly influenced” by
DiNome’s testimony.
The circuit court noted that the jury could have determined, based on DiNome’s
testimony, “that even if the cancer had been diagnosed when it should have been diagnosed, the
treatment and prognosis would have been the same and that the only damages [Sightler] suffered
was increased anxiety.” Accordingly, the court denied Sightler’s motion as it “did not feel as a
matter of law that $98,000 for anxiety was an additur in nature.”
This appeal followed.
II. ANALYSIS
A. Defense Expert
Sightler argues that the circuit court erred in permitting DiNome to testify about the
number of palpable malignant masses required to discern whether cancer has invaded the lymph
nodes, because DiNome’s trial testimony on that topic “differed markedly” from her designation.
Lubecki counters that Sightler has waived this objection by eliciting the objected-to opinion
through cross-examination. We agree with Lubecki.
-7- “Generally, when a party unsuccessfully objects to evidence that he considers improper
and then introduces on his own behalf evidence of the same character, he waives his earlier
objection to the admission of that evidence.” Combs v. Norfolk & W. Ry., 256 Va. 490, 499
(1998). “[T]he mere cross-examination of a witness or the introduction of rebuttal evidence,
either or both, will [not] constitute a waiver of an exception to testimony which has been duly
taken”; instead, “[t]o constitute such a waiver the party objecting to the evidence must have gone
further and introduced on his own behalf testimony similar to that to which the objection
applies.” Drinkard-Nuckols v. Andrews, 269 Va. 93, 102 (2005) (quoting Snead v.
Commonwealth, 138 Va. 787, 801-02 (1924)). There is also “the requirement that the subject
matter of the evidence at issue be the same as the subject matter of the evidence to which an
objection was made.” Id.
Here, the extent of DiNome’s testimony about palpable masses on direct examination
was that Sightler presented in 2018 with a “palpable finding.” DiNome did not indicate that any
certain number of palpable masses was among the “extensive evidence of lymph node disease”
already present in 2018, nor did she specify what that evidence was. It was not until
cross-examination that Sightler asked whether DiNome recalled her designated opinion that,
“once a malignant mass is palpable, the cancer’s already invaded one or more of the axillary
nodes” and that “if it is a palpable mass, it almost always involves lymph node invasion.”
DiNome clarified in response that “if [Sightler] presented with two palpable masses that turned
out to be cancer, there is, more likely than not, probability that the patient already has lymph
node disease.” This is the exact portion of DiNome’s testimony to which Sightler had previously
objected.
Sightler did not merely cross-examine DiNome about an opinion that Lubecki had
previously elicited on direct examination. Rather she brought up a new topic—the designated
-8- opinion about the relationship of palpable masses to cancer in the lymph nodes—and inquired
about the correctness of those statements. Sightler proceeded to question DiNome about that
exact opinion, thus inviting her to discuss the very same subject matter that, on appeal, she
asserts should not have been permitted.3 The same-evidence principle is “properly and logically
applicable in any case . . . if the party who has brought out the evidence in question, or who has
permitted it to be brought out, can be fairly held responsible for its presence in the case.” Pettus
v. Gottfried, 269 Va. 69, 79 (2005) (quoting Whitten v. McClelland, 137 Va. 726, 741 (1923)).
By eliciting DiNome’s opinion about the relationship of palpable masses to lymph node activity,
Sightler waived her objection to that testimony, and we do not consider this assignment of error
on appeal.
B. Juror Bias
Sightler argues the circuit court erred in denying in part her motion for an investigative
hearing based on juror misconduct, because Watson made up her mind “in the middle of trial”
and held “a concealed bias” in favor of Lubecki and her children.
“Although juror testimony may be received upon an issue of juror misconduct, hearsay
affidavits are not admissible in support of a motion for a new trial.” Com. Union Ins. Co. v.
Moorefield, 231 Va. 260, 265 (1986). However, “such an affidavit may be sufficient to require
the trial court to investigate the matters recited in the document.” Id. “Whether a trial court
should examine jurors is a matter addressed to the court’s sound discretion, and, absent an abuse
of discretion, its decision will not be disturbed on appeal.” Bradshaw v. Commonwealth, 228
3 Sightler argues that DiNome based this very opinion during direct examination on the conclusion that “Sightler’s disease was multicentric.” But DiNome only addressed the number of lumps on direct examination two times, neither of which related to her ultimate opinion that Sightler “had extensive evidence of lymph node disease already” when she first presented to Lubecki in 2018. The relationship of the number of palpable masses to the presence of cancer in the lymph nodes, the same subject matter to which the objection was made, was an issue raised by Sightler herself on cross-examination. See Drinkard-Nuckols, 269 Va. at 102. -9- Va. 484, 491 (1984). And “unless there is a substantial reason to believe that juror misconduct
has occurred, a court may decline to question the other jurors in that regard.” Id.
Pursuant to Virginia Rule of Evidence 2:606(b)(i),
[d]uring an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.
A juror may testify, and his affidavit may be considered, only regarding whether: (1) extraneous
prejudicial information was brought to the jury’s attention; (2) “an outside influence was
improperly brought to bear” on any juror; (3) a mistake was made on the verdict form; or (4) a
juror’s statements demonstrated that “a racial/national origin stereotype or animus was a
significant motivating factor” in their vote. Va. R. Evid. 2:606(b)(ii)(a)-(d). This rule reflects
the long-settled law in Virginia “that the affidavits or the testimony of jurors to impeach their
own verdicts are to be received with great care and caution and only in exceptional cases, and in
order to prevent a failure of justice.” Harris v. Commonwealth, 13 Va. App. 47, 51 (1991)
(quoting Phillips v. Campbell, 200 Va. 136, 140 (1958)).
Here, the circuit court granted Sightler’s motion for an investigative hearing only on
“extraneous evidence,” and denied the motion on Sightler’s other grounds alleging that Watson
“made up her mind midtrial” and “considered herself an advocate of doctors and children.” The
trial court correctly determined that these latter grounds do not fall within any of the exceptions
to Rule 2:606(b). Even if Watson did make up her mind mid-trial and considered herself an
advocate for Lubecki and her children, these were Watson’s interior thoughts, and “[t]he
principle is well settled that a juror may not impeach a verdict solely upon his mental processes.”
- 10 - Harris, 13 Va. App. at 52 (quoting Evans-Smith v. Commonwealth, 5 Va. App. 188, 209
(1987)).4
C. Extraneous Information
Sightler argues the circuit court erred in denying her motion for a new trial because
Watson “brought extraneous information into jury deliberations.”
“A motion for a new trial on the ground of juror misconduct is addressed to the sound
discretion of the trial court and, unless there has been abuse of that discretion, the judgment
below will not be reversed on appeal.” Com. Union Ins. Co., 231 Va. at 265. The “mere
suspicion of injustice,” even if based upon some irregularity that occurred at trial, is not
sufficient to warrant setting aside a verdict. Id. This is because “[t]he importance of avoiding
another trial, if the first trial was fair, is of paramount importance.” Id. (quoting Yellow Cab
Corp. v. Henderson, 178 Va. 207, 221 (1941)). In addition, “the mere fact of juror misconduct
does not automatically entitle [a] litigant to a mistrial.” Robertson v. Metro. Wash. Airport
Auth., 249 Va. 72, 76 (1995). “Instead, the trial court, in the exercise of sound discretion, must
determine whether such misconduct probably resulted in prejudice. And the burden of
4 Sightler argues that Haddad v. Commonwealth, 229 Va. 325 (1985), supports her position that she is entitled to a new trial because here, like in Haddad, the evidence demonstrates that the juror at issue was not impartial throughout the entirety of the case. In Haddad, our Supreme Court held that evidence that a juror displayed bias against the defendant to a third party during trial was sufficient to establish a probability of prejudice to the defendant. Id. at 330-31. But Haddad is factually distinguishable from this case. In Haddad, the juror’s misconduct was discovered while evidence was still being heard, and the motion for mistrial came before the jury had the chance to deliberate. Id. at 326-27. Here, by contrast, the alleged misconduct was not discovered until after the jury returned its verdict. Additionally, Haddad addressed a different legal issue: “whether juror misconduct in the form of expressions of opinion made by a juror to third persons during the trial proceedings should result in a mistrial.” Id. at 329. We thus find the ruling in Haddad inapposite to the facts of the instant case, which are governed by the application of Rule 2:606(b)(ii) and its provisions related to juror testimony post-trial. - 11 - establishing that probability is upon the party moving for a mistrial.” Id.; see also Haddad v.
Commonwealth, 229 Va. 325, 300 (1985).
“A juror may not properly receive any information about a case he is hearing except in
open court and in the manner provided by law.” Brittle v. Commonwealth, 222 Va. 518, 522
(1981). “The reception of any evidence by the jury . . . in addition to that produced at trial is
ground for setting aside the verdict whenever there is sufficient ground to believe that one of the
parties in a civil suit . . . has been prejudiced by receipt of the information.” Harris, 13 Va. App.
at 51 (quoting Brittle, 222 Va. at 522).
The evidence adduced at the investigative hearing does not support Sightler’s allegation
that Watson introduced “extraneous information” into the jury’s deliberations. Watson told other
jurors she knew “how things worked in the medical field” and that “if [they] found for
Ms. Sightler, that Dr. Lubecki’s profession would be ruined . . . because that’s what happens.
That’s the way it works.” This does not amount to extraneous information about the case,
because Watson did not actually explain “how things worked in the medical field”—she merely
alluded to the fact that she knew about it. Watson’s comment suggesting that an adverse medical
malpractice ruling may have negative consequences for a doctor’s career was mere generalized
speculation, not actual “information.” Similarly, Watson’s saying, “That’s not how it’s done,”
and using the term “preferred modality,” does not amount to introducing extraneous information,
because Watson did not proceed to explain to the jury “how it’s done” or offer any detail or
information about the “preferred modality” for diagnosing breast cancer. And Watson’s
statement that she “didn’t feel like she should be [t]here in the first place” is evidence of
Watson’s mental processes, not “information” related to the issues in the case. See Va. R. Evid.
2:606(b)(i); see also Harris, 13 Va. App. at 52. Further, Watson did not use her experience
- 12 - outside the jury room, in any medical or non-medical capacity, to “buttress her opinion in the
jury room.”5
Though Watson may have obliquely referenced her experience in her father’s dental
practice, she never introduced any information to the jury that was not already properly in
evidence. She did not explain her vague comments about “how it works” by providing any
relevant specifics about practices in the medical field, breast cancer diagnosis or treatment,
anxiety, or any other issue germane to Sightler’s medical malpractice claim.6 Only one of the
three jurors who testified believed that Watson’s conduct impacted deliberations—and even then,
Hall’s belief to that effect was based only on her own assessment that Watson “had made up her
mind,” not on any information Watson brought into the jury room. Sightler has failed to provide
sufficient ground to believe that Watson’s conduct prejudiced her by providing the jury with
extraneous information about her case. Accordingly, the circuit court did not abuse its discretion
in denying Sightler’s motion for a new trial based on juror misconduct.
5 As for the alleged phone call to Matthews, neither Watson nor Matthews testified about that purported interaction, so it cannot serve as support for Sightler’s argument. See Com. Union Ins. Co., 231 Va. at 265. 6 Sightler likens this case to Harris, but we find that case to be inapposite. In Harris, a juror indicated during deliberations “that he was associated in some fashion with the Department of Corrections and proceeded to explain to the jury how the parole system would come into play with regard to various sentences that the jury was considering.” 13 Va. App. at 49. The foreman of the jury estimated that “a significant number of the jurors would not have voted for such a substantial sentence except for the input from this juror.” Id. Here, in contrast, Watson’s comments about “what happens,” “how it’s done,” and “how it works” were general statements that did not provide any specific information regarding the issues being discussed, while the juror in Harris affirmatively offered information based on his inside knowledge of the correctional system. Further, the ramifications of Watson’s conduct were not so extreme as those in Harris: where in Harris a “significant number” of juror votes were swayed in favor of a longer sentence, only Hall stated that he “believe[d]” that Watson’s comments “impact[ed] the deliberations” but did not identify the foundation for his belief by demonstrating specifically how the deliberations were impacted. Neither Ellis nor Candy testified that Watson’s conduct had any effect on the jury. - 13 - D. Additur
Sightler asserts that the circuit court erred in denying her motion for additur, because the
damages attributable to Lubecki exceeded $200,000 but the jury only awarded $98,000.
“The court’s decision to accept or reject a jury’s award of damages is reviewed by an
appellate court for abuse of discretion.” City-To-City Auto Sales, LLC v. Harris, 78 Va. App.
334, 348 (2023). It is well-established that
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., 256 Va. 590, 594 (1998). Similarly, a circuit court will not set aside a
verdict as inadequate “merely because the court may have awarded a larger or smaller sum had it
been the trier of fact.” Id. “Hence, in deciding whether the jury’s award is inadequate, the test is
whether reasonable people could not conclude that the . . . award was reasonable compensation
in this case.” Id. at 595. Ultimately, “if the amount awarded is not so out of proportion to the
injury and loss suffered as to evince prejudice, partiality, or corruption by the jury or show that it
was actuated by a mistaken view of the merits of the case, then the award should not be
disturbed.” Dinwiddie v. Hamilton, 201 Va. 348, 352 (1959) (quoting Williams Paving Co. v.
Kreidl, 200 Va. 196, 204 (1958)).
Still, the jury’s “authority to fix the amount of damages is not arbitrary or unlimited.” Id.
(quoting Williams Paving Co., 200 Va. at 204). A circuit court may revisit a jury’s damages
award under Code § 8.01-383.1(B), which provides that:
[i]n any action at law when the court finds as a matter of law that the damages awarded by the jury are inadequate, the trial court may (i) award a new trial or (ii) require the defendant to pay an amount in excess of the recovery of the plaintiff found in the
- 14 - verdict. If either the plaintiff or the defendant declines to accept such additional award, the trial court shall award a new trial.
Such a remedy is appropriate where the damages awarded “bear[] no reasonable relation to the
damages suggested by the facts in the case, and [are] manifestly out of line and at variance with
the facts.” Bradner v. Mitchell, 234 Va. 483, 486 (1987) (quoting Glass v. David Pender
Grocery Co., 174 Va. 196, 202 (1939)). In such cases, “courts must exercise control in the
interest of fairness and justice.” Id. (quoting Glass, 174 Va. at 202).
Sightler argues that her motion for additur could have been “granted based solely on the
amount awarded by the jury as compared to the damages proven.” But she cites no
authority—and we are aware of none—supporting the proposition that the ratio of damages
awarded to damages proven is a relevant factor. Rather, a jury’s award is inadequate if
reasonable people could not conclude that $98,000 was reasonable compensation. See Downer,
256 Va. at 595. In this case, DiNome testified that, even if Sightler had been diagnosed when
she first presented in 2018, all the same treatments would have been required. The jury was
entitled to credit this testimony. See Harvey v. Flockhart, 65 Va. App. 131, 146 (2015) (“The
credibility of the witnesses and the weight accorded the evidence are matters solely for the fact
finder who has the opportunity to see and hear that evidence as it is presented.” (quoting
Sandoval v. Commonwealth, 20 Va. App. 133, 138 (1995))). In addition, Sightler and her family
members testified that Sightler’s increased anxiety was related to the cancer diagnosis. The jury
was entitled to infer that the increased anxiety was attributable to Sightler’s late diagnosis, but
also could have reasonably concluded that only anxiety-related damages were attributable to
Lubecki and not those related to Sightler’s treatment, based on DiNome’s credible testimony that
the treatment would have remained the same even if Sightler had been diagnosed earlier. In light
of this, the award was not so out of proportion to the injury as to evidence prejudice, partiality,
- 15 - corruption, or mistake on the part of the jury, see Dinwiddie, 201 Va. at 352, and we decline to
disturb it.
III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the circuit court.
Affirmed.
- 16 -