19.8 Damages

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

19.8 DAMAGES

19.801 Presentation of Damages at Trial.

A. Informing the Jury of the Amount Sued For. While the trial courts typically instruct the jury that the amount sued for is not evidence, ⁵⁰⁸ Virginia law permits either party to inform the jury of the amount of damages sought by the plaintiff in opening, closing or both. ⁵⁰⁹ The plaintiff may also request an amount less than the ad damnum in the complaint. ⁵¹⁰

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The plaintiff may not request an amount in excess of his or her ad damnum. ⁵¹¹

B. Admissibility of Medical Bills and Employment and Wage Evidence. The authenticity and reasonableness of medical bills are presumed. ⁵¹² Likewise, a plaintiff may testify regarding bills received after an accident to establish a rebuttable presumption, ⁵¹³ and those bills are not considered hearsay. ⁵¹⁴ Medical records and bills are also an exception to the hearsay rule under the business records exception of Rule 2:803(6). Evidence of employment, such as wage and salary records, is covered in Va. Code § 8.01-413.1.

C. Arguing Damages to the Jury.

1. Per Diem Arguments. Per diem arguments that present mathematical formulas for calculating damages along the lines that "the pain is worth $50 per day and plaintiff has been suffering for 1000 days so award $50,000" are not permissible. ⁵¹⁵ The Court held that use of a "mathematical formula setting forth on a blackboard the claim of pain, suffering, mental anguish, and the percentage of disability suggested by him on a per diem or other fixed basis, was speculation of counsel unsupported by evidence, amounting to his given testimony in his summation argument, and that it was improper and constituted error." ⁵¹⁶

2. Breaking Down Damages Into Separate Elements. However, the prohibition against using per diem calculations does not foreclose merely breaking down each element of damages and suggesting an amount to award for each element. ⁵¹⁷ In Wakole, plaintiff's counsel presented a chart that provided a mathematical equation using as a line item each element of damages from the model jury instruction on damages. ⁵¹⁸ Counsel

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then suggested an amount for each particular element of damages. The defense objected that this not only violated the ban on per diem arguments but also violated Va. Code § 8.01-379.1, which the defense argued, limited that party arguing damages to only one total amount. The court rejected both of these arguments and held that a plaintiff is permitted to request a fixed amount for each element of damages claimed.

D. Sufficiency of Verdicts. Trial judges are vested "with authority to exercise discretion in supervising the verdicts of juries to prevent miscarriages of justice. The law intends that the authority should be used and that judges should be more than mere referees between litigating parties." ⁵¹⁹ "If it appears that the verdict is so inadequate as to shock the conscience of the court and to create the impression that the jury has been influenced by passion, corruption or prejudice, or has misconceived or misunderstood the facts or the law, or if the award is so out of proportion to the injuries suffered to suggest that it is not the product of a fair and impartial decision, then it becomes the plain duty of the judge, acting within his legal authority, to correct the injustice." ⁵²⁰

E. Setting Aside Verdict as Inadequate or Excessive.

1. Grounds for Setting Aside Verdict. In order to justify setting aside a verdict as inadequate or excessive, the verdict must have been "so excessive or so small as to shock the conscience and create the impression that the jury has been influenced by passion or prejudice . . . or misconceived or misinterpreted the facts or the law. . . ." ⁵²¹ Whether a jury's award is inadequate is committed to the trial court's discretion. ⁵²²

2. Verdict Inadequate as a Matter of Law. In certain limited circumstances, a jury verdict can be found to be inadequate as a matter of law. A jury verdict for the exact amount of the plaintiff's medical special damages is inadequate as a matter of law. ⁵²³ However, verdicts in

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amounts less than or approximating a portion of special damages are not per se inadequate. ⁵²⁴

3. Remedies. In circumstances where a trial court finds a jury award to be excessive or inadequate, it has the power (i) to order a new trial, ⁵²⁵ (ii) to order the plaintiff to remit a portion of the awarded damages, or (iii) to order the defendant to pay an amount in excess of the jury verdict. ⁵²⁶

4. New Trial on Damages. Where the liability verdict is supported by "credible admissible evidence," the court may order a new trial only on damages. ⁵²⁷

5. Wrongful Death Awards. In wrongful death cases, where the jury awards inadequate or no damages to a decedent's statutory...