Wakole v. Barber ( 2012 )

PRESENT: All the Justices
BILLY T. WAKOLE, SR.
OPINION BY
v. Record No. 102176 JUSTICE CLEO E. POWELL
March 2, 2012
NARMINA BARBER
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
R. Terrence Ney, Judge
In this appeal, we address whether the circuit court erred
in 1) allowing counsel for Narmina Barber, a personal injury
plaintiff in an action arising from an automobile accident, to
argue in his closing that each item of damage was separate and
had a fixed numerical value, and 2) permitting Barber's counsel
to enumerate each item of damages to the jury during closing
argument. 1 We conclude that the argument made by Barber for
specific amounts for various types of damages did not invade the
province of the jury nor did it violate Code § 8.01-379.1.
Therefore, we will hold that the trial court did not err in
1
The defendant driver of the other vehicle, Billy T.
Wakole, Sr., also argues that the circuit court erred by
allowing Barber's attorney to argue his personal opinions to the
jury regarding the amount that ought to be awarded for each item
of damages. On appeal, Wakole specifically challenges Barber's
counsel's statement that "[Barber] is the most reasonable woman
you could ever meet. I submit to you that this is a modest
sum." However, Wakole failed to argue to the circuit court that
Barber's counsel was injecting his personal opinion into his
closing argument and therefore, the circuit court never ruled on
this issue. As such, we will not address this argument as a
basis for appeal. Rule 5:25. However, this type of argument
may be interpreted as stating a personal opinion. We caution
against argument that expresses a personal opinion about the
justness of a cause, credibility of a witness, or culpability of
a civil litigant.
denying Billy T. Wakole, Sr.'s motions to prohibit such
argument.
I. FACTS AND PROCEEDINGS
On November 10, 2006, Barber was a passenger in an
automobile driven by her husband when Wakole made a sudden left
turn in front of their vehicle hitting the passenger side of the
Barber's vehicle. Although Barber felt pain at the time of the
accident, she declined to go to the hospital but later sought
several types of treatment with limited success for headaches
and neck pain.
Prior to the accident, Barber was “always full of energy,
ready to work, ready to clean the house, ready to go out and
party, just always go, go, go.” Since the accident, she has
often been irritable because of the pain and the limitations
that the pain places on her activities with family and friends.
She periodically has had to hire people to assist her with
thoroughly cleaning her home. Her friends now describe her as
depressed and without energy.
As a result of her injuries, Barber brought this action
against Wakole, who admitted liability for the accident but
disputed the extent of Barber's damages. At trial, Barber
entered two exhibits of her medical expenses – one for $948 and
one for $4,173. In her complaint, Barber requested $50,000 in
damages.
2
Prior to closing argument, Wakole objected to any argument
by Barber that would amount to using Civil Model Jury
Instruction 9.000 as a mathematical formula utilizing each type
of damage as a line item. Wakole’s counsel argued that this
Court’s decision in Certified T.V. & Appliance Co, Inc. v.
Harrington, 201 Va. 109, 109 S.E.2d 126 (1959), prohibited such
an argument because that case held that counsel may not propose
a method to the jury by which the jury ought to calculate
damages. Counsel did not dispute that Barber put on evidence of
pain, suffering, and inconvenience but argued that assigning a
monetary value to each category would amount to nothing more
than speculation. The court overruled Wakole’s objection.
During Barber’s closing argument, she presented a chart
from which the jury could calculate damages, which she called a
formula, and argued for $50,000 in damages, including
compensation for medical bills, past inconvenience, "full and
fair compensation for the injuries she sustained," future
medical expenses, past pain and suffering, and her pain and
limitations that she will have for the remainder of her life. 2
Barber argued to the jury that the law recognizes "human losses"
2
Barber's counsel initially sought damages in excess of
$50,000, but Wakole objected and argued that Barber could not
ask the jury for an amount in excess of the amount she sought in
her complaint. The circuit court agreed. Counsel for Wakole
made no other objections.
3
and asserted that three years and nine months after the
accident, she still suffered from headaches and neck pain for
which medical treatment afforded little relief. She also argued
that she has been greatly inconvenienced by this accident in
terms of her daily life and her relationships with others. The
jury returned a verdict for $30,000 in damages.
II. ANALYSIS
CERTIFIED T.V. IS NOT DISPOSITIVE
"[T]he purpose of closing argument is to draw the jury's
attention to the body of evidence that has been admitted into
the record and to argue reasonable inferences that may be drawn
from that evidence." Graham v. Cook, 278 Va. 233, 250, 682
S.E.2d 535, 544 (2009). We have often said that "determinations
regarding the propriety of argument by trial counsel are matters
left to the sound discretion of the circuit court." Id. at 249,
682 S.E.2d at 544. We will not reverse a circuit court's ruling
unless such ruling was an abuse of discretion and the rights of
the complaining litigant have been prejudiced. Id.
Here, Wakole argues that the circuit court erred in
allowing Barber to use a chart during her closing argument to
request specific amounts from the jury for certain categories of
damages. To support this argument, Wakole relies upon our
holding in Certified T.V.. Such reliance, however, is
misplaced.
4
In Certified T.V., we held that allowing plaintiff's
counsel to make an argument to the jury based upon a "daily or
other fixed basis" would permit the plaintiff to present that
which is not in evidence and invade the province of the jury.
201 Va. at 114-15, 109 S.E.2d at 131. "Verdicts should be based
on deductions drawn by the jury from the evidence presented and
not the mere adoption of calculations submitted by counsel."
Id. at 115, 109 S.E.2d at 131. What amounted to putting
information not in evidence before the jury and thereby invading
its province in Certified T.V. was "the use by plaintiff's
counsel 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 . . . ." Id. We concluded that doing so was "speculation
of counsel unsupported by evidence, amounting to his giv[ing]
testimony in his summation argument, and that it was improper
and constituted error." Id. (citations omitted). The specific
argument in Certified T.V. that was objected to and ruled to be
inappropriate by this Court was as follows:
permanent phlebitis $5,475.00, traumatic arthritis at
50 cents – $5,475,00, mental anguish, re: pregnancy,
five months – $750.00, seven weeks on crutches at
$10.00 daily – $490.00
Id. at 113, 109 S.E.2d at 130. In passing on the impropriety of
the argument, we stated:
5
The suggested amount for permanent phlebitis is
the sum of $5,475.00, and, while the record does not
show how counsel arrived at that figure, it can be
assumed that it was fixed by calculating so many days
of the ailment at 50 cents per day, since the next
item listed is traumatic arthritis at 50 cents –
$5,475.00. The next items, mental anguish, re:
pregnancy, five months – $750.00, seven weeks on
crutches at $10.00 per day – $490.00, and inability
to wear shoes, dance, etc. – $5,000.00, appear to
have been calculated on a basis of a fixed amount to
be allowed each day for so many days.
Id. at 114, 109 S.E.2d at 130. The danger against which the
Court sought to guard was an argument placed before the jury
that was not based on the evidence and further was based on a
flawed premise that pain and suffering is constant from
individual to individual and the degree of pain is the same
daily. Id. at 115, 109 S.E.2d at 131.
These are not the facts of the present case. Here,
Barber's counsel presented the jury with a chart detailing
various amounts sought for different categories of damages. At
one point, counsel argued that Barber hoped to live an
additional thirty-five to forty years but did not assign a per
diem rate to this expectation. What Barber did was ask for a
fixed dollar amount for each category of damages. 3
3
Contrary to the argument made by the dissent that the
court erred in allowing counsel to assign value and to testify
in the guise of making argument, counsel was conveying to the
jury the values that Barber had placed on her pain and
suffering. Indeed, counsel at one point argued that "Barber
suggests [$15,000] as full and fair compensation for the
injuries she sustained[.]" Because they were the amounts sought
6
There is no question that a plaintiff is allowed to ask for
a total fixed dollar amount for any provable, non-economic
damages to include bodily injury, physical pain, mental anguish
(past and future), and inconvenience (past and future). There
is no question that the lump sum amount requested, unlike
medical bills or lost wages, is based on intangibles for which
there is no specific evidence of monetary value in the record.
The only limitations on a request for a lump sum are that the
amount be supported by the evidence and be an amount that will
fully and fairly compensate the plaintiff for damages suffered
as a result of the defendant's negligence.
Tellingly, because a plaintiff can request one lump sum for
all of the provable elements of damage combined, if a plaintiff
suffered only one non-economic loss, i.e., bodily injury, any
amount sued for above the economic loss would be an amount that
counsel should be able to request by amount. Consequently, just
as counsel can argue for a total amount requested by the
plaintiff, there is no principled reason why a plaintiff should
not be able to request a specific amount for each element of
damages sought as long as there is evidence in the record to
by Barber, the values placed upon the damages as broken down
should no more be disallowed as "estimates of counsel", than the
total amount requested in the ad damnum and conveyed to the jury
during closing argument.
7
support each element of damages claimed and the total requested
is no more than the ad damnum.
It has long been recognized that plaintiff is allowed to
ask for a "fixed amount" for non-economic loss caused by the
defendant's negligence. Today, we hold 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.
Here, because the defendant concedes that there was
evidence to support the plaintiff's non-economic damages, we
hold that the trial court did not err in allowing Barber to
request a fixed amount for each element of damages claimed. 4
CODE § 8.01-379.1 DOES NOT PREVENT A PLAINTIFF FROM
REQUESTING SPECIFIC AWARDS FOR DIFFERENT CATEGORIES OF
DAMAGES WHEN SUCH ARGUMENT IS SUPPORTED BY THE EVIDENCE
Next, Wakole argues that by allowing Barber's counsel to
enumerate each item of damages, the trial court violated Code
§ 8.01-379.1. Essentially, Wakole contends that because the
4
Although Barber's counsel referred to using a formula to
calculate damages, this term is misleading. The means by which
Barber presented her sought for damages to the jury was not "a
per diem or other fixed basis." Certified T.V., 201 Va. at 115,
109 S.E.2d at 131; Reid v. Baumgardner, 217 Va. 769, 772, 232
S.E.2d 778, 780 (1977). It is clear from reading the record
that the formula to which counsel referred was derived from 1
Virginia Model Jury Instructions – Civil, No. 9.000.
8
statute allows the parties to inform the jury of the amount of
damages sought, it limits the party to arguing only one total
amount.
Issues of statutory interpretation are pure questions of
law that we review de novo. Conyers v. Martial Arts World of
Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174, 178 (2007).
"When the language of a statute is unambiguous, we are bound by
the plain meaning of that language. Furthermore, we must give
effect to the legislature's intention as expressed by the
language used unless a literal interpretation of the language
would result in a manifest absurdity." Id. (internal citations
omitted).
The Code does address what a jury may be told about the
amount a plaintiff sues for:
Notwithstanding any other provision of law, any party
in any civil action may inform the jury of the amount
of damages sought by the plaintiff in the opening
statement or closing argument, or both. The plaintiff
may request an amount which is less than the ad damnum
in the motion for judgment.
Code § 8.01-379.1. Nothing in this provision states that when
addressing the jury regarding the total amount sought, the
plaintiff may only do so in terms of one lump sum. "Courts
cannot 'add language to the statute the General Assembly has not
seen fit to include.' " Jackson v. Fidelity & Deposit Co., 269
Va. 303, 313, 608 S.E.2d 901, 906 (2005) (quoting Holsapple v.
9
Commonwealth, 266 Va. 593, 599, 587 S.E.2d 561, 564-65 (2003)).
To take Wakole's argument to its logical conclusion, a plaintiff
would be precluded from presenting separate amounts for
quantifiable losses like medical expenses and lost wages as well
as those from non-economic losses, e.g., pain and suffering.
This interpretation would read into the statute language that is
not there. Thus, we hold that the trial court did not err in
allowing Barber's argument.
III. CONCLUSION
For the foregoing reasons, we will affirm the judgment of
trial court.
Affirmed.
JUSTICE McCLANAHAN, dissenting.
The dangers against which this Court sought to guard in
Certified T.V. were allowing counsel to use closing argument to
introduce evidence that was not before the jury and allowing
counsel to invade the province of the jury by suggesting a
calculation for damages. The circuit court allowed both in
permitting Barber's counsel to introduce estimates of value for
each element of intangible damages and place those values into
what counsel referred to as "the formula" given by the court.
In concluding that Certified T.V. is not dispositive, the
majority ignores the ratio decidendi for the Court's holding.
10
Prior to closing arguments, Wakole objected to the use of a
formula with fixed values for elements of pain, injuries, and
inconvenience. As Wakole explained to the circuit court,
Barber's counsel planned to use
the [model] damages instruction 9.00 and take
each factor which the jury is instructed to consider
and set it up in a mathematical equation as individual
line items.
For instance, a line item for pain and suffering,
a line item for inconvenience, and so forth. And what
I understand they intend do in their closing is assign
a value to each of those factors, and then at the
bottom come up with a sum, as if they have added them
all together in a mathematical equation.
Wakole asserted such argument was improper since it would
"suggest a method to the jury as to how they are to go about
coming up with a number" and because "the numbers that are
assigned to each individual factor are entirely arbitrary."
Overruling Wakole's objection, the circuit court agreed with
Barber that Certified T.V. only prohibits a "per diem argument."
During closing argument, Barber's counsel utilized a poster
board containing a chart that counsel represented as the law the
judge "just read to you." Telling the jury that "[t]his is the
formula," counsel displayed a chart containing an itemization of
intangible damages that included blank lines for past
inconvenience, future inconvenience, injuries, past pain and
suffering, and future pain and suffering. Counsel proceeded to
complete the chart with a black marker by assigning a numerical
11
value to each item. Counsel itemized the following elements of
intangible damages: past inconvenience from November 2006
through the date of trial - $5,000; future inconvenience -
$2,000; injuries and effect on health - $15,000;
1
past pain from November 2006 or "three years and nine months" -
$20,000; future pain - $25,000. 2 Counsel argued, "If you add
those up, it would be pretty reasonable."
By allowing counsel to introduce values representing each
element of intangible damages into a calculation Barber
represented as "the formula" based on the instruction given to
the jury, the circuit court permitted Barber's counsel "to
invade the province of the jury and to get before it what does
not appear in the evidence." Certified T.V. & Appliance Co.,
Inc. v. Harrington, 201 Va. 109, 115, 109 S.E.2d 126, 131
(1959). The values placed upon the elements of intangible
damages were "estimates of counsel" that "instill[ed] in the
minds of the jurors impressions not founded on the evidence."
Id. In fact, "an expert witness would not be permitted to
1
In discussing injuries and effect on health, counsel told
the jury that "the law doesn't break that out for some reason"
but the judge "instructed you on it" and "that's the law in
Virginia."
2
Because the numerical values assigned by Barber's counsel,
added together, exceeded the amount sought in Barber's
complaint, Wakole objected. After the circuit court sustained
the objection, Barber's counsel told the jury that "if you add
those up, it comes right over $50,000" but "[a]ll we are asking
for today is $50,000."
12
testify as to the market value of pain and suffering." Id.
Thus, counsel's use of these fixed values was "speculation" that
was "unsupported by evidence, amounting to his giv[ing]
testimony in his summation argument." Id. Although wide
latitude is generally given by the court during closing
argument, "[c]ounsel has no right to testify in the guise of
making argument, nor to assume the existence of evidence that
has not been presented." Graham v. Cook, 278 Va. 233, 250, 682
S.E.2d 535, 544 (2009). 3 The circuit court's error in allowing
3
I disagree with the majority that Wakole made any
concession that would permit Barber's counsel to introduce into
his argument estimates of value as to each item of intangible
damages. The majority concludes that "because the defendant
concedes that there was evidence to support plaintiff's non-
economic damages, we hold that the trial court did not err in
allowing Barber to request a fixed amount for each element of
damages claimed." That Wakole acknowledged Barber introduced
evidence to support her claim of pain, suffering, and
inconvenience is beside the point since Wakole did not contend
the jury instruction including these items was improper.
Rather, Wakole argued there was no evidence to support the
estimates of value given to these items by Barber's counsel:
I do not dispute that the plaintiff has put on
evidence of pain, and suffering, and inconvenience.
But they have no evidence whatsoever to suggest that
those intangible things – nor can they have any
evidence that those intangible things have a specific
value.
And if they offer a value, an arbitrary value,
they are invading the province of the jury, who has
the sole responsibility for determining the amount of
the verdict.
Wakole's argument did not constitute a concession that
would open the door for allowing counsel to introduce, in
13
counsel to assign values to the elements of damages was
compounded in allowing counsel to insert these values into a
calculation to be used by the jury in arriving at Barber's
damages. "[T]he use by plaintiff's counsel of a mathematical
formula" setting forth the claim of intangible damages on any
"fixed basis" is improper. Certified T.V., 201 Va. at 115, 109
S.E.2d at 131. "Verdicts should be based on deductions drawn by
the jury from the evidence presented and not the mere adoption
4
of calculations submitted by counsel." Id.
his closing argument, evidence of the values assigned to
these elements of damage.
4
Because Code § 8.01-379.1 permits a party to "inform the
jury of the amount of damages sought by the plaintiff," the
majority reasons "there is no principled reason why a plaintiff
should not be able to request a specific amount for each element
of damages sought." I cannot accept this expansion of the plain
language of the statute, nor can I accept the proposition that
by making a "request" for each element of intangible damages,
counsel's assignment of value to each such element is
transformed from impermissible testimony into permissible
argument. Informing the jury of the amount sought in
plaintiff's ad damnum is not the same as allowing counsel to
introduce evidence as to the value of individual elements of
intangible damages in his closing argument. While the jury may
be told of the amount plaintiff seeks to recover, it should not
be told by counsel how to calculate this total or what figures
to use in its calculation. "[T]here is no fixed rule or
yardstick by which to measure with mathematical precision the
definite amount of damages for physical pain, suffering and
mental anguish endured in personal injury cases," so it must
remain "within the sound discretion of the jury to determine
from the evidence what is fair and reasonable compensation."
Certified T.V., 201 Va. at 114, 109 S.E.2d at 130. The fact
that, in some cases, the jury can deduce for itself the value
plaintiff assigns to a claim for intangible damages solely from
the amount of damages sought without the necessity of counsel
14
In my view, allowing Barber's counsel to introduce, in his
closing argument, values for each of the elements of past
inconvenience, future inconvenience, injuries, past pain, and
future pain and incorporate them into a formula given to the
jury was patently improper and constituted error.
supplying that value to the jury is not justification for
allowing counsel to supply values for each element of intangible
damages when no such deduction can be made.
15