A Personal Injury Plaintiff’s Nightmare: Zero Dollar Verdict Affirmed
The Virginia Supreme Court issued a decision on January 19, 2017, affirming a jury’s “zero dollar verdict” in a personal injury case. As of this writing, no Virginia Reporter citation is available. You may find the case at Gilliam v. Immel, No. 151944, 2017 Va. LEXIS 1 (Jan. 19, 2017). Justice Elizabeth A. McClanahan authored the Court’s opinion. The case arose in the Colonial Heights Circuit Court.
The plaintiff, Ms. Gilliam (“Gilliam”), alleged personal injuries arising from an automobile collision. Mr. Immel (“Immel”) rear-ended Gilliam’s car as she waited at a stoplight. Gilliam’s car showed little damage from the incident. But she complained of both neck and shoulder pain at the scene, and received ambulance transport to a medical facility. Several years earlier, Gilliam had undergone back surgery.
Gilliam went to work the day following the collision. She soon visited her primary care doctor, twice, “with complaints of severe lower back and neck pain.” She there received medication and palliative care. About ten months later, Gilliam obtained treatment from a Dr. Herring at Advanced Orthopaedic Centers. She initially presented there with “pain ‘going down’ her shoulder.” An MRI of her right shoulder showed “a partial tear around her bicep tendon and a labral tear.” A steroid injection gave Gilliam significant short-term relief. Eventually, however, Dr. Herring performed right shoulder surgery and prescribed follow-up physical therapy. Gilliam missed a day of work for the surgery.
At trial, Dr. Herring testified to the reasonable medical necessity of Gilliam’s treatment, and attributed her “shoulder injury to the accident based on Gilliam’s report that her shoulder injury started at the time of the accident.” Dr. Herring acknowledged, “the MRI…revealed other conditions in her shoulder including bursal surface fraying, degenerated labrum and AC joint osteoarthritis, all of which could have predated the accident.”
In total, Gilliam received $73,000 in medical care that she attributed to the collision. At the jury trial, Immel stipulated to the medical bills, but did not concede that the bills “were related to the motor vehicle accident.” Immel admitted liability, and the jury considered only the issue of damages.
Immel presented testimony from “an expert in orthopedic surgery,” one Dr. Whipple. This doctor did not see or treat Gilliam; instead, he reviewed her medical records. Dr. Whipple testified that “there was no relation between [Gilliam’s] shoulder, even her shoulder symptoms, much less any pathology or surgery and the motor vehicle accident.” He opined to his “impression” that Gilliam suffered a muscular strain injury in the collision. He stated his further opinion that such injury should resolve in a matter of weeks without lasting residual pain. As to the initial six weeks following the accident, Dr. Whipple testified “there may be some advantage to medical treatment…we can influence that process for better or worse with medical intervention.”
During its deliberations, the jury asked whether Immel’s insurance had covered Gilliam’s first four medical treatment visits. The trial judge, with counsel approval, responded to the jury to forbid any consideration of insurance. The jury ultimately “returned a verdict for Gilliam and assessed her damages at zero dollars.” Gilliam moved the court to set aside the judgment and for a new trial. The trial court denied the motions and entered judgment in accord with the jury’s verdict.
Gilliam appealed, contending that “she presented uncontroverted evidence that she was injured.” As traditionally done in its decisions, the Court stated the applicable standard of review. In sharp contrast to most cases wherein the jury finds for a personal injury plaintiff, the Court held:
Because Immel prevailed on the issue of damages, we review the evidence on that issue in the light most favorable to him. Vilseck v. Campbell, 242 Va. 10, 1, 405 S.E.2d 614, 614, 7 Va. Law Rep. 2766 (1991)(noting that where the jury returned a zero dollar verdict, “[the defendant] is entitled to have the evidence viewed in the light most favorable to him”); Mastin v. Theirjung, 238 Va. 434, 436, 384 S.E.2d 86, 87, 6 Va. Law Rep. 587 (1989)(noting that were a jury returned a zero dollar verdict, “we summarize the facts on [the damages] in the light most favorable to [the defendant].”
The Court noted that the evidence as to “the nature and extent of Gilliam’s injuries was not only in conflict, but dependent upon the credibility and weight of the witness testimony.” The Court articulated the central issue as follows: “When a jury has returned a zero dollar verdict, the issue is whether plaintiff ‘produced sufficient evidence to require the jury to award her damages,’” quoting Mastin v. Theirjung, 238 Va. 434, 437 (1989). Then, the Court quoted Smith v. Wright, 207 Va. 482, 486 (1966) as to the jury’s province: “[T]he jury are the sole judges of the weight and credibility of the evidence and have the right to discard or accept the testimony, or any part thereof, of any witness when considered in connection with the whole evidence before them.”
The Court reasoned that the jury “was entitled to reject” Gilliam’s testimony, and find “that she was feigning or exaggerating her injuries.” Further, and key to its affirmance, as the sole judge of the weight to be given to Dr. Whipple’s opinion, the jury was also free to discount his opinion, which was based on Gilliam’s subjective complaints.” The Court noted that Dr. Whipple “did not testify that any treatment she received was medically necessary…instead that medical intervention ‘can influence that process for better or worse.’”
The Court’s opinion underscored its final conclusion by stating that “the burden was on Gilliam to prove her damages by a preponderance of the evidence. Immel’s admission of liability did not relieve her of that burden.” Upon the presumption that the jury followed the trial court’s instructions of law, the Court held, “the jury was entitled to find that Gilliam failed to prove, by a preponderance of evidence, the damages she sought for her claims of lower back and neck injury…[W]e reject Gilliam’s claim that the jury was required to award her damages[.]”
In a footnote, the Court carefully distinguished its decision in Bradner v. Mitchell, 234 Va. 483 (1987). Gilliam relied upon Bradner to assert that “Dr. Whipple’s testimony is uncontroverted and must be a fixed part of the verdict.” The Court held Gilliam’s reliance on Bradner misplaced. It stated that Bradner’s principles apply only “when the jury has found that the plaintiff was injured and awards damages that consist of an amount that is ‘considered as a fixed constituent part of the verdict.’” Under Bradner, the Court explained, “ a jury verdict will be set aside as inadequate when the ‘remainder of the award’ is insufficient to compensate the plaintiff for proven non-monetary elements of damages…These principles have no application here where the jury found that the plaintiff was entitled to no damages.” The Court noted that the issue before was “not whether the verdict was inadequate. Instead, the issue [was] whether the jury was required to award Gilliam damages.”
The Court went on to decide an ancillary evidentiary issue. That issue concerned the admissibility of an epithet that Immel allegedly used toward Gilliam at the accident scene. Concluding that any emotional injury suffered by Gilliam from the slur did not relate to her claim for physical injuries, the Court upheld the trial judge’s decision to exclude it.
Without question, the Court spoke in emphatic terms in this decision. So much so that I actually wonder why it granted Gilliam’s petition for appeal. Indeed, the Court announced no new legal principles, but rested its analysis upon relatively longstanding precedent. For example, it cited Mastin and Vilseck for the distinction between an inadequate verdict, and this jury’s decision “that Gilliam was not entitled to recover any damages.” Both of those decisions date back over twenty-five years. The Court decided Bradner in 1987.
Thus, in effect, the Gilliam decision annotated previous precedent on facts that the Court deemed clear. If the Court publishes the decision, it likely will become a darling of the civil defense bar on those matters within its topical scope.
Just the same, I learned from the decision. Juries infrequently hand down zero dollar verdicts in personal injury cases. The applicable standard of review on damages, viewing the evidence most favorably to the defendant, provides an exceptionally difficult path for an appealing plaintiff.
The distinctions drawn between inadequate and zero dollar jury verdicts also intrigued me. From a legal standpoint, I can conjure a scenario wherein a jury finds for a personal injury plaintiff and awards zero dollars, yet, some element of damages constitutes “a fixed constituent part of the verdict.” Surely Gilliam thought that her situation embodied such an instance.
As always, I invite my readers’ feedback. What are your thoughts about the Gilliam decision?