Mirabella v. Heo

39 Va. Cir. 234, 1996 Va. Cir. LEXIS 142

• Court: Fairfax County Circuit Court
• Decided: May 9, 1996
• Docket: Case No. (Law) 141026
• Status: Published

Opinion

By Judge Thomas S. Kenny

This is in response to plaintiff’s additional argument on the issue of additur or new trial. After reviewing Mr. Capsalis’ brief and the attachments to it, I decline to change my earlier ruling denying the relief requested.

At the time of my initial ruling on this motion, plaintiff argued that the jury verdict was less than the total of the uncontroverted medical expenses and the three-month lost wage claim, which she says was also uncontroverted. Defendant, on the other hand, says that there was sufficient evidence to challenge the causal relationship between the accident and the plaintiff’s three-month absence from work. I suspended the final operation of the order to give plaintiff an opportunity to submit the transcript.

After reviewing the testimony, it is apparent that there is no question about whether the plaintiff actually missed three months of work. However, nowhere did anyone for the plaintiff say that the loss of work was attributable to the accident. The only question asked of the plaintiff about time off was “How long were you off work before you went back?”, to which she replied, “Three months.” (Tr. p. 7.) No questions about time off work were put to any of the three physicians who testified for plaintiff, according to the court’s notes of the testimony. In short, while plaintiff’s claim for lost wages may not have been directly controverted, it was also not strongly supported, either. There was indeed testimony about lost wages for three months, but the court does not believe that as a matter of law plaintiff’s evidence in this respect was so compelling as to require the jury to accept it.

To the contrary, both physicians testifying for the defense stated their opinion that plaintiff did not suffer a concussion in the accident, but sustained no more than a facial hematoma. Plaintiff’s own plastic surgeon had described his relatively straightforward treatment of that hematoma, which he felt had a good result, and did not say anything about how long she was required to take off work solely as a result of the hematoma. If the jury accepted the defense testimony that there was no concussion, but only an uneventful hematoma, it would be free, in the court’s opinion, to disregard plaintiff’s otherwise unsubstantiated claim that she lost three months of work because of the accident.

Accordingly, reconsideration of the motion for additur or, in the alternative, for a new trial, is denied.