*1 655 Clark, et al. John
v.
Dorothy Ann
Record No. 881017 November Whiting,
Present: Carrico, C.J., Thomas,* JJ. Russell, Lacy, Compton, Stephenson, * Justice Thomas the Court in this case prepared prior adopted opinion resignation, effective date of his November 1, 1989. *2 Miller, III; Sands, Ander-
Marianne Nelms Macon B. (Frank son, Miller, & Marks briefs), on for appellants. Williams, brief), E. E. (Rodney James Sheffield
appellee. of the Court. the opinion Justice Thomas delivered employer Clark and his sued John Ann Dorothy as referred to collectively (hereinafter Winn-Dixie Inc. Raleigh, Clark, who sustained when allegedly Clark) injuries for personal into store, cart a loaded produce grocery pushed worked at a to a hand, jury case was tried her hand. The crushing $290,000 of Chapman. verdict in favor which returned a that the trial court things, other contending, among appeals, of statements made by a mistrial because should have declared should not have during testimony; lost earnings, lost concerning evidence been allowed to consider verdict was that the earning future and lost earnings, capacity; law; have been and that the should excessive as a matter of negligence. instructed on contributory a.m., 7, 1986, On about 9:00 Monday, April *3 She County. store in Henrico in a Winn-Dixie shopping grocery meat display aisle next to the standing was in an eleven-foot-wide and its side was touch- right case. Her cart was grocery parallel cart front end of her ing grocery the rail of the case. The display doors, swinging twenty-seven was towards two directly pointed cart, room. storage led from the produce feet front of the which left side stood with her left hand over the hanging Chapman counter, faced the meat her cart near the handle. As she grocery doors. her the two swinging left side was towards pointed dis- and at the items standing looking While as described left, case, crash, to her heard a loud looked around play Chapman The cart doors. swinging and saw a cart” the “big coming through being was with and was loaded with covered produce, plastic, feet tall, a half cart six feet two and from behind. The was pushed wide, condition, was known and weighed 200 in its loaded pounds at the store as a “redi-rack.” her To her case. display returned attention
Chapman space aisle back and to the left of her cart was grocery open the However, Clark, who was pushing nine feet. approximately into her redi-rack, redi-rack did not see and the Chapman pushed grocery the hand, side of left which was still over the hanging cart. could not
Chapman move her arm or her hand. Clark kept pushing redi-rack. tried to scream “but nothing would come out.” She finally yelled Her hand numb. “stop.” was She went into the meat department where someone let her her put hand in ice. The manager looked at her hand and noted that it was already swelling felt up. Chapman and in dizzy She pain. could not remove her rings.
She was taken to the Laburnum Medical Center. Dr. William Moore, F. who saw her that morning, testified that she was in “significant” with pain “significant” of her swelling hand. She had a decreased range of motion due to And pain swelling. she exhibited tenderness of the side of her palmar forearm. To prevent rings her left hand from acting as a tourniquet, were they removed with a metal cutter. The doctor diagnosed “a wrist and forearm sprain, contusion of ring the small and long fingers.” He described her injury as a soft-tissue injury involving nerves and muscles of the hand. given medicine, was pain hand was wrapped in an ace bandage, she was advised to use ice packs. That night, Chapman could not because of the sleep pain.
She returned to the medical center time, the next At day. the swelling from her hand extended above her wrist. She com- plained increased she exhibited pain; significant hand tender- ness; and her blood was pressure elevated. Her medication was increased. Later that day she fainted and was back to brought the medical facility. The doctors concluded that she was suffering from anxiety along with the pain; additional medicine was prescribed. accident,
Three days after the fainted again. She fell and hit her head on a coffee table. She was admitted to Richmond Memorial Dr. Hospital by Richard Mercer. joints Her “hand and were quite inflamed.” Chapman given hot water soaks and hot wax treatments for her hand as well as an anti-inflammatory drug. She was also given medicine for When she left the anxiety. *4 her hospital dizziness and had a little fainting ceased. She felt calmer and her However, heart was not racing. she continued to numbness, have and swelling, in her hand. pain 1986, In May Dr. Mercer referred to Dr. Robert Chapman Adelaar, an orthopedic surgeon in to the specializing injuries hand. Dr. 21, Adelaar saw examina- Chapman May 1986. His tion showed increased to the swelling of the left hand compared hand; hand and to the up of the left tenderness right palm forearm; regard strength, zero. With to strength grip and a grip cig- that could pick up pack Dr. Adelaar explained Chapman aup telephone would have trouble picking arettes but probably in her of motion range She had a normal relatively receiver. hands. through September
Dr. saw from May Adelaar Chapman 1986, that time during period. By various treatments attempting light hand and do the end of could move her August, Chapman Nevertheless, testified that she remained housekeeping. Chapman in and worse but that she used her hand pain getting that it was because she had been told doctor to do so. In September her 1986, that, Dr. Adelaar advised in his she had Chapman opinion, as much as she would and that she would have to learn improved to live with He her to work. go her advised pain. 1986,
In the middle was hired at a Hol- of September Chapman in Inn in Richmond to work in the room iday laundry engaged towels, such activities as maids folding giving sup- sheets and and for six plies, loading unloading job and washers. She held this weeks but the in her hand worse each She got day. stopped 1986, work on October because of pain.
After she left the to Dr. job, Inn returned Holiday her Adelaar in November He was of that early opinion 1986. hand and He saw forearm continued to be sensitive pressure. 1986; Novem- on an basis in November irregular September, ber, 1987; Dr. Adelaar’s final December 1988. January diagnosis dystro- was that suffered from sympathetic He that in which the nerves con- phy. this is a condition explained in, thus constriction and blood vessels trolling dilation of the to, nerves blood flow the hands do not Those regulate properly. “have increased swelling abnormal with responses point ex- sweating.” Those nerves their “have problems compensating it to tremity surroundings.” opined normal Dr. Adelaar adapt dysfunc- has “a or permanent disability permanent tion of her arm or use of that arm.” He thirty percent explained further that the nature of is that: problem hand, wrist, elbow, fingers
she cannot move her actively through everyday a normal of motion in the course of range Yes, enough given activities. she can move in those areas *5 660
time and if she is not too much but she cannot having pain, use those as we would use it.
A clinical testified that de- psychologist seriously chronic pressed syn- and that she suffered from a serious pain long drome. Another clinical testified that as as she psychologist suffered from she continue to have emotional would physical pain He said to diminish pain. pain he would not expect Chapman’s “all that counseling. much” even with
I We consider first whether the trial court should have granted mistrial. ex- During following direct the testimony, changes occurred:
Q. finishing Did consult with Dr. after you again Adelaar
the hand management he recommended? therapy Yes, A. I did.
Q. Was there job? discussion about a any A. Yes. He knew I was for a before the acci- looking job
dent, and I told that I money him needed desperately. the (Emphasis added.) Defense counsel immediately requested trial court to instruct the italicized comment. disregard the The trial court so The continued: exchange instructed the jury.
Q. during What if did encounter problems, you any, five or at six weeks that were in the room you laundry the Inn? Holiday get-
A. There the day, kept was a lot of each pain using ting my worse. I was told the doctor to by keep long as money, just going hand. I needed the so I kept Ias could. mistrial. for a
(Emphasis added.) Defense counsel then moved The trial court listened to outside the argument presence to advise The but offered jury. grant court refused to a mistrial remark, which defense an offer disregard the italicized counsel declined.
661
The
or denial of a
grant
mistrial falls within the sound
Futrell,
discretion of the trial court. State Farm Ins. Co. v.
209
266, 274,
181,
Va.
163 S.E.2d
(1968).
187
A mistrial should not
be granted for minor
irregularities
mistakes in a trial which
can be cured
a direction
disregard
from the trial court to
Shoemaker,
16, 17,
or mistake.
irregularity
Carter v.
214 Va.
S.E.2d
(1973).
A mistrial
is not
unless
appropriate
*6
“there is a manifest probability
objectionable
evidence or
statements before the
are
to the adverse
prejudicial
party.”
Id.,
Clark argues that Chapman’s statements that she needed in, money inflamed passion the prejudiced, According to jury. Clark, this is demonstrated by the fact that during closing argu- asked, ments one juror “what amount does she want?” Clark ar- gues further that the size of the verdict also demonstrate helps that the jury acted on the basis of or passion with prejudice. instances,
In both Chapman was to responding about questions working. context, Read in her remarks can be taken as an expla- nation for her working despite injury. She does not appear have been attempting to make a for plea The money. trial court observed Chapman and the jury’s reaction to her an- swers. The trial court was persuaded that an instruction to disre- gard the remarks would be sufficient. We are not persuaded, record, this that created responses a manifest of probability Therefore, prejudice to Clark. we hold that the trial court did not abuse its discretion in denying the motion for mistrial.
II The bulk of Clark’s attention both on and in argu- brief oral ment was directed contends, towards the of He question damages. in that regard, that the of a rehabilitation counselor concerning Chapman’s employability, the of an econo- mist concerning Chapman’s wages lost and lost wages, future the of portion the jury instruction on concerned damages which lost wages and lost wages future all should have been from kept consideration the by All three jury. of these items are interrelated. The language of the challenged of the portion instruction provides a pertinent discussion; reads, to the overall backdrop it in relevant part, as follows: determining in then
If find verdict the you your plaintiff, entitled, of any consider may is you to which she damages of the weight greater which believe the following you by the defendant: negligence evidence was caused at unable to work she lost because she was (5) earnings Any her calling. or earning
(6) Any earnings lessening capacity, loss either, sustain in be reasonably expected that she may the future.
A as Bungar, psychologist, Sharon a clinical Chapman qualified not Clark did counseling. an area of rehabilitation expert object. emo- who have
Bungar that she works with explained people in their everyday or that can limit them tional disabilities physical gather to work. Her is approach activities or in their ability records, medical including of information on a range patient full notes, She records, and the like. lab physician’s reports, hospital *7 a so that she can establish then interviews and tests the patient in a to work ability that will maximize the patient’s plan help handle.” emotionally and fashion that the can patient “physically tes- Bungar In about a reaching judgment patient’s capabilities, and on information background tified that she relies both able and not on what a is person her own “behavioral observation able to do.” determined, case, things, other among
In Bungar Chapman’s 1945; an 11th that she had was born in August cashier, waitress, a education; as a and that she had worked grade worker. market, room laundry and as a a stock room worker in a information, that Chapman’s determined Bungar Based on this instruc- understanding simple of transferable work skills consisted rou- tions; techniques; performing and learning simple procedures work; things; oper- the cost of tine math to using figure repetitive needs; their to determine talking a cash to ating register; people courtesy. with tact and and with the dealing public em- concerning Chapman’s asked her Bungar opinion concerning one in two part She answered ployability. parts, concerning condition and two impact Chapman’s physical part of her emotional condition. impact work, Bungar With to to respect Chapman’s ability physical testified that Fil- she consulted the “Dictionary Occupational 12,000 ings” which lists more than that a can jobs person per- skills, identified, form. She on the basis of transferable Chapman’s that, 503 of those in her could have jobs opinion, Chapman per- However, formed to her accident. based on prior Chapman’s post- condition, that, accident Bungar was of from a opinion physical there were standpoint, “63 that could be only jobs appropriate her.”
Next, Bungar factored in emotional condition. Bun- gar explained that there are behavioral and emotional components to working. These include such factors as to do being things, able work, getting go to to ready to and from providing transportation work, and communicating interacting with co-workers and super- visors, duties, concentrating on work work done satisfacto- getting and rily, to adapting changing job. Bungar gave demands on the the following “based on the opinion: diagnosis of chronic-pain syn- drome related to the reflex the severe sympathetic dystrophy depression, I do not feel that she is for a capable competing job and maintaining that, a job Bungar at this time.” reiterated from a purely physical her is that suf- standpoint, has opinion fered an 87 % loss of access to the labor market but that from a combined physical emotional is the loss of access standpoint 100%. also testified
Bungar for a concerning recommendations pro- gram to rehabilitate individual She recommended Chapman. to counseling come to with the loss of the help Chapman grips hand; functions of her chronic counseling help manage her career decide what pain; counseling help Chapman jobs she potential ought job assistance pursue; placement locating an job. was of the view that her rec- appropriate Bungar ommendations, followed, if into a get would “Chapman position where she could be testi- Bungar market.” competitive job fied that the rehabilitation she outlined would take about program three months.
Clark ex argues that should have been Bungar’s testimony cluded because it was was not beyond her and because it expertise based on medical could not work. There testimony that Chapman dire, was extensive voir testimony, even in the midst of Bungar’s concerning an give expert opinion her concerning qualification she was so qualified court ruled that The trial employability. us to in the record to cause to anything Clark has not pointed Moreover, v. in Todt the trial court’s determination. question 211, we held 123, 126-27, Shaw, (1982), 286 S.E.2d 223 Va. in order to allow is not testimony necessary that medical follows, then, that such lost future income. It consider trial The Bungar’s opinion. not as a for predicate necessary admitting Bungar’s testimony. court did not err in
B Cook, Jr., Cook an economist. Robert W. as Chapman qualified left her job from the time she calculated lost income Chapman’s He also calculated the date of trial. through at the Inn Holiday future income. lost Chapman’s n Regarding lost pre-trial income, on the evidence Cook relied Inn in Henrico had secured a at a job Holiday that Chapman 1986, 29, that on October job 1986 and left September voluntarily He suffering. simply multiplied she was because the pain worked times the minimum number of would have days Chapman $11,246.00 which cov- income wage figure and arrived at a lost between elapsed ered the one and which had years three-quarter $730.00, He then subtracted and the date of trial. leaving job work in earned since she left an amount which he testified she had $10,516. a total of leaving October lost concerning Chapman’s Cook’s argues that work his- because her income should have been excluded pre-trial make calculation any was so as to tory sketchy incomplete Clark, em- Chapman’s lost According income mere speculation. the Holiday would have left suggests that she ployment history argu- We Clark’s reject Inn even if she had not been job injured. evi- view of the more than his nothing ment which amounts to Holiday not have left testified that she would dence. Chapman sug- history Even if her job injury. employment Inn except did otherwise, trial court to decide. The it was for the gests lost concerning Chapman’s testify not err in Cook to permitting income. pre-trial income, he considered future Cook testified
Regarding lost prov- health care to him three of by submitted reports Further, he in- Bungar. iders as well as information provided terviewed Chapman.
665 41 old with a life Cook determined that Chapman years work life remaining of an additional 38.7 and a expectancy years of a little over 11 He considered her work his- expectancy years. following to the accident and what work she had done tory prior the accident. He assumed that would work at the mini- $3.35 wage ($134) mum hour for 40 hours week for per per 11.3 the rest of her work-life He approximately years, expectancy. 3.6%, $134 reflecting that he reduced the week explained per by the difference average wage between the annual increase of 4.7 % and the discount rate of 8.3%. That reduction lowered the weekly $130 rate of for pay Cook’s calculations to week. per Cook then made a further reduction to take into account Bun- gar’s testimony concerning lost access to the labor Chapman’s market. He testified as follows:
Now, I had to reduce it a little more . . . because I was told she was not 100 unable to find a were like percent job. There 13 jobs out of a 100 she might be able to find. So 87 out jobs of 100 she can’t to work go for 87 87 percent opportunity, percent this amount of is all she’d be due. I money really $130 took the a week and it down dropped per- cent. about, $112 ... So that’s what we’re talking a week in losses from here until goes she out to ... or age stops work.
So I made a calculation of earnings future in the I just way it, described $44,710. and it came out to Cook testified that in his making gave calculations he to hold 13 out opportunity jobs. of 100 He stated explicitly that his calculations were not based on its being totally impossible to find work. brief,
On that Cook’s should have argues been excluded no because it was based on that had assumptions basis in fact. We disagree. Cook took the jury step by step calculations, through his of the informing stage at each data on record, which he light relied. consideration of the in Upon based, of the items on which it Cook stated his calculations were is plain to us that ex there was sufficient evidence to support pert testimony. The trial court did Cook’s admitting not err in testimony concerning earnings. lost future
C of the dam- Clark makes a that the argument portions separate wages future ages concerning wages instruction lost and lost contends that there was insuffi- granted. should not have been He of the instruction. His ar- cient evidence to those support portions similar, to his gument argument in this is regard many ways, Thus, measure, in large exclude and Cook’s Bungar’s testimony. the fact that and Cook’s was admissible leads to Bungar were challenged the conclusion that the of the instruction portions proper.
However, in addition to his contentions that Chapman’s work testified that was too and that no history sketchy physician life, she would be of for the rest of her working again incapable challenged Clark makes a further argument why portions the instruction should not have been Clark submits that granted. the econo granted the instructions should not have been because mist failed to take into account the rehabilitation testi expert’s of a could return to work with the benefit mony Clark that the economist’s four-step counseling argues program. use of % related figure only Chapman’s the 87 question trial, do with nothing condition at the time of but had whatever to might counseling. what her condition be after rehabilitation This last is advanced for the first time on argument being ap- Clark moved to Cook’s to Cook’s peal. exclude prior the stand. The basis of motion was taking that in months light of this work of 16 lady’s prior history total, done that to ask this witness what this would have lady in error to the future is and that it is pure pure speculation, allow in and we move this regard, this witness to this testify witness’ be excluded. were damages
That motion was denied. When the instructions on the follow- being argued, (5) (6) to items objected ing reasons: testifying
consistent with to the economist my objection record of the again plaintiff because of the limited track very work, con- in to being I would to this allowed object jury of earn- or loss earnings sider evidence to loss of any relating future, sir, when especially or in the ing capacity past the lady voluntarily terminated her employment after this accident.
That was the extent of Clark’s objection to the challenged por- tions of the damages argument instruction. The advanced here thus cannot be considered. Rule 5:25.
In our opinion,
evidence was
Chapman’s
sufficient to support
the challenged
of the
portions
damages instruction. The testimony
from Bungar and Cook was admissible. Chapman’s orthopedic
surgeon testified that she suffered a 30% permanent
disability
the use of her left arm.
testified to
chronic
depression. This was
to allow
enough
consider lost fu-
See,
ture earnings
lost earning capacity.
Exxon
e.g.,
Corp.
and/or
v.
235, 243,
224 Va.
Fulgham,
894,
294 S.E.2d
897-98 (1982)
(injured party with 50% permanent
entitled
disability
in-
struction on lost earning capacity
increase in
despite
salary by
time
trial);
Co.,
State Farm Ins.
Ill Clark contends that a contributory negligence instruction should have been granted. Clark, According the evidence which supports such an instruction came from own mouth. Clark points out that testified that she heard a loud *11 crash, looked saw the up, redi-rack then returned her attention to the meat Further, display. Clark, according was Chapman aware of a display table in the middle of the floor ten feet behind her which would require the redi-rack to turn to one side of that table or the other. that, least, Clark argues at the had a duty to use her senses and faculties to avoid danger by paying attention to the redi-rack after it hearing “bang” through the doors.
Chapman was a business invitee. She had to be aware
duty
of open and obvious dangers. Tazewell
v. Tur-
Supply Company
ner,
213 Va.
obvious to her. She had danger the redi-rack. being struck against without herself guarding contributory grant refusing court did not err in The trial instruction. negligence
IV exces- the verdict was that reject argument we Clark’s Finally, of is that argument The of that gravamen sive as a matter of law. $55,226.00 consisted of $63,475.89 damages, total of in special was which Clark claimed on Cook’s damages based Thus, argues, should have been excluded. and speculative approxi- no more than should have been damages the special could not $8,200 sup- of that amount damages mately special $290,000. a verdict of port income component decided that the lost
We have already Thus, Clark’s jury. before the of the was damages properly special that, con evidence given major Beyond fails. premise does not shock this verdict continuing extreme and cerning pain, record indi anything Nor does the conscience the Court. misunder or a prejudice, cate that it was the product passion, on the of the standing part jury.
V court reasons, of the trial foregoing judgment For all the will be
Affirmed. dissenting. Russell, joins, Carrico Justice with whom Chief Justice 104, 108 Martin, 1093, 1100, S.E.2d In v. 220 Va. Cassady the expert error to admit we held that it was reversible (1980), loss wage establish a plaintiff’s of an economist to no established had where the earning plaintiff loss of capacity, Because to the accident. of employment prior “track record” foundation, expert opinion we held that the the lack of factual “too Id. speculative.” this shows The record case is similar.
I think the present in- sparse was so history work lifetime 41-year-old plaintiff’s the admission foundation as to form an insufficient termittent *12 the economist Consequently, testimony. of the economist’s into a lifetime history that minimal work permitted extrapolate and mirrors. loss an construction of smoke wage using elaborate I testimony, Because I think it was error to admit that speculative would reverse.