19.6 Specific Causes of Action

• Library: Virginia Law and Practice: A Handbook for Attorneys (Virginia CLE) (2020 Ed.)

19.6 SPECIFIC CAUSES OF ACTION

19.601 Personal Injury Generally.

A. Causation. A plaintiff is entitled to recover for any bodily injury suffered as a result of the defendant's negligence. One issue that frequently arises is what evidence is sufficient to prove that the bodily injury was a proximate cause of the defendant's negligence.

1. Medical Testimony Versus Lay Testimony. Rule 2:701 provides:

Opinion testimony by a lay witness is admissible if it is reasonably based upon the personal experience or observations of the witness and will aid the trier of fact in understanding the witness' perceptions. Lay opinion may relate to any matter, such as—but not limited to—sanity, capacity, physical condition or disability, speed of a vehicle, the value of property, identity, causation, time, the meaning of words, similarity of objects, handwriting, visibility or the general physical situation at a particular location. However, lay witness testimony that amounts only to an opinion of law is inadmissible.

Expert medical testimony held to a reasonable degree of medical probability, pursuant to Va. Code § 8.01-399(B) and Rule 2:702, is most often used to prove proximate cause of a bodily injury. Only a medical doctor is qualified to state an expert opinion regarding the cause of a human injury, ²⁷³ and other medical professionals are generally not permitted to give

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expert opinions regarding the cause of a plaintiff's injury. ²⁷⁴ Note that chiropractors are permitted to give expert testimony by statute. ²⁷⁵

2. Plaintiff Testimony. The limitation on expert testimony as to causation does not extend to testimony by the plaintiff himself, ²⁷⁶ or to testimony by lay witnesses familiar with the plaintiff's physical condition. ²⁷⁷ The testimony of the plaintiff alone is sufficient to present a jury issue on causation of an injury. ²⁷⁸ Further, lay testimony of a causal connection between an accident and injury is admissible even when the medical testimony fails to establish the causal connection directly, ²⁷⁹ except in the case of medical malpractice where there is a presumption that expert testimony is necessary. ²⁸⁰

B. Compensatory Damages.

1. Purpose. The purpose of awarding compensatory damages in tort law is to make the victim whole. ²⁸¹ Actual or compensatory damages are the measure of the loss or injury sustained. ²⁸² The range of damages available to measure the loss and make the victim whole varies widely depending on the evidence presented in the case, and frequently, on the medical testimony presented.

2. Burden of Proof. The plaintiff bears the burden of proving her damages by the greater weight of the evidence. The plaintiff must

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show the amount of her damages with reasonable certainty, but while "proof with mathematical precision is not required, [. . . ] there must be at least sufficient evidence to permit an intelligent and probable estimate of the amount of damage." ²⁸³ Damages based on speculation and conjecture cannot be recovered. ²⁸⁴

3. Physical Pain, Past and Future. Past and future physical pain is also a common component of damage awards. ²⁸⁵ Specific proof of physical pain is not necessary when there is proof of bodily injury, as a jury is entitled to infer that pain flows from a physical injury. ²⁸⁶

A jury may also infer future pain in certain circumstances, particularly when a plaintiff has already suffered pain for a considerable length of time. ²⁸⁷ In Gwaltney, the evidence showed that the plaintiff's pain in her back was persistent and plaintiff testified that her injury was still very painful at the time of trial. ²⁸⁸ The court held that this was sufficient evidence to warrant an instruction on future pain and disability. ²⁸⁹

A jury issue on future damages was also raised by evidence of a permanent sensory loss accompanied by testimony from plaintiff that "her knee had been numb and remained numb." ²⁹⁰

4. Disfigurement or Deformity and Associated Humiliation or Embarrassment. While a plaintiff has the burden of proving his damages, humiliation, or embarrassment can be inferred from evidence of disfigurement or deformity and there is no requirement of direct evidence of humiliation or embarrassment. ²⁹¹

5. Inconvenience, Past and Future. Similarly, a plaintiff need not introduce direct evidence of future inconvenience when there is

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evidence that an injury has been ongoing. ²⁹² In Todt, evidence that the plaintiff was still suffering from her injuries at the time of trial was enough for the Court to uphold the giving of an instruction on future inconvenience and discomfort. ²⁹³

6. Medical Expenses, Past and Future. While a number of the elements of damages listed in the V.M.J.I. 9.000 can be inferred from evidence of other injury, introduction of medical bills and expenses can be a complicated process. Ordinarily, proof of medical expenses is shown by introduction of the plaintiff's medical bills. However, introduction of the bills is not guaranteed. In McMunn v. Tatum, ²⁹⁴ the Supreme Court held that if a defendant contests the medical necessity or causal relationship of medical bills and "further represents to the court that the defense will offer evidence on those issues, the bills will be insufficient in themselves to create a jury issue, and expert foundation testimony will be prerequisite to their admission." ²⁹⁵ Thus, under McMunn, a plaintiff with no expert medical testimony faces an uphill burden getting her medical bills before the jury if the defense follows McMunn and contests the medical necessity or causal relationship of the bills and offers its own evidence on those issues.

In that circumstance, the medical bills contested by the defense expert cannot be admitted for the purpose of proving financial damage. However, even in the face of a McMunn challenge, the bills are admissible to show that a plaintiff was treated for physical injuries and that she endured pain and suffering over a period of time. ²⁹⁶ Thus, when bills are contested as specified in McMunn, and the plaintiff has no expert to establish their medical necessity and causal relationship, the bills are nevertheless admissible to show physical injury and pain and suffering but not to show medical expense damages. As the court stated in Barkley v. Wallace, ²⁹⁷

Like the medical bills in Parker, the medical bills before us were relevant because they tended to establish the probability of Barkley's claim that she

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experienced pain and suffering as a result of the accident. Evidence of the medical bills also was relevant to establish the inconvenience that Barkley experienced because of Wallace's negligence. Id., at 373. This rule has even been extended to cover medical bills that were discharged in bankruptcy. ²⁹⁸

7. Future Medical Expenses. Unlike other areas of damages where the Court has stated that a jury can infer evidence of damages from other evidence in the record, in the area of future medical expenses, the Court requires more than an inference and speculative testimony is not permissible. ²⁹⁹ In Kendrick, the plaintiff presented evidence that suggested that he might need surgery if his condition worsened. The Court held that this evidence "merely suggested the possibility of future surgery" and was too speculative to permit the jury to consider damages for future surgery or future lost wages based on the surgery. ³⁰⁰

8. Argument by Plaintiff's Counsel at Trial. While the Supreme Court of Virginia has held that it is impermissible for a plaintiff to request a "per diem" or "daily rate" for pain and suffering, disfigurement, inconvenience, and the like, ³⁰¹ the court in Wakole v. Barber³⁰² stated that "as long as there is evidence to support an award of non-economic damages, plaintiff is allowed to break the lump sum amount into its component parts and argue a 'fixed amount' for each element of damages claimed as long as the amount is not based on a per diem or other fixed basis." ³⁰³

9. The Collateral Source Rule. Under the principle that the tortfeasor should not profit from insurance or other benefits that were paid for or earned by the victim, the Supreme Court of Virginia has barred

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tortfeasors from seeking to limit or discount damages because the plaintiff had insurance. Hence, evidence of insurance, medical payments, sick-leave payments, and the like are inadmissible to reduce the amount of compensatory damages. ³⁰⁴ This is so even where this might result in a windfall to the plaintiff—again under the theory that if one side is to receive a windfall, such windfall should inure to the benefit of the injured party and not the tortfeasor. ³⁰⁵

The collateral source rule also covers salary payments voluntarily made to a plaintiff by his or her employer, ³⁰⁶ and has even been applied to the discounts that insurers negotiate with healthcare providers so that, under the collateral source rule, the damage that can be awarded is the amount of the medical bill in full and not any insurance-adjusted discount. ³⁰⁷

The collateral source rule has never been applied outside the tort context. ³⁰⁸

10. Lost Earnings and Lost Earning Capacity, Past and Future. Like future medical expenses, lost earnings receive greater scrutiny from the court than damages that can be inferred from the injury itself. Evidence of lost wages that is based "entirely on statistics and assumptions" is too remote and speculative to be a foundation upon which damages can be awarded. ³⁰⁹ Evidence of lost wages and future lost wages must be "grounded upon facts specific to the individual whose loss is being calculated." ³¹⁰ Frequently, experts are necessary to meet these hurdles. However, experts must take care to properly document and calculate future lost wages. ³¹¹

Lay testimony is permitted to show lost earnings and lost earning capacity. ³¹² Inferences of lost earnings are permissible in cases where

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there is evidence that the injury is permanent and...