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Gunno v. McNair

Gunno v. McNair

Associated cases: 
Case No. 
Type of Proceeding: 
Appeal from the Circuit Court of Kanawha County (Judge Webster)

Whether the trial court abused its discretion in refusing plaintiff’s request for a new trial when the undisputed evidence established proximate causation and damages?


On September 13, 2011, Ashley Gunno (Petitioner/Plaintiff), while operating her vehicle between 45 and 50 miles per hour, approached a green light at the intersection of Route 119 and Oakwood Road.  As she proceeded through the intersection, she observed the Respondent/Defendant’s van turn in front of her.   She applied her brakes, but had no time to avoid the crash.  The violent collision caused substantial damage to each of the vehicles involved in the wreck.  Ms. Gunno filed suit alleging to have sustained significant injuries and damages as a result of the crash.  The Respondent/Defendant admitted negligence; therefore, the trial was limited to the question of damages.

Ms. Gunno received emergency medical attention for chest and neck pain at the scene of the accident.  EMTs immobilized her cervical spine and transported her to Charleston Area Medical Center where she complained of neck and back pain. After an evaluation, which included a battery of tests, all of which were reported as normal, Ms. Gunno was discharged to home.  Thereafter, she began to experience pain that radiated from her neck through her fingertips of both arms.  Her pain limited her ability to move and sleep. Ms. Gunno had no history of neck or back pain.   Due to the unrelenting pain, Ms. Gunno commenced treatment with orthopedist, Dr. Matthew Walker, who ordered physical therapy, and advised her not to return to work as a registered nurse for one (1) month as a result of her pain and injuries.  Physical therapist, Leslie Johnson, offered treatment in the form of cervical manipulations, heat therapy, electrical stimulation, weight lifting, stretching, etc. Ms. Gunno also utilized a TENS unit, a device used to send electrical pulses to relieve pain, up to the time of tria1.  Because Ms. Gunno was not a surgical candidate, and physical therapy was not working, Ms. Johnson recommended chiropractic care.  Therefore, Ms. Gunno commenced treatment with Chiropractor Jay McClanahan, who treated her neck and back injuries and recommended that she remain off work.  After several weeks of treatment, Ms. Gunno was cleared to return to work without restriction, but continued to utilize the help of her co-workers for laborious tasks.  Due to continued complaints, Ms. Gunno received a total of nine (9) trigger point injections from Dr. Marietta Babayev.  She then returned Dr. McClanahan’s care, which consisted of 10-15 treatments.  Ms. Gunno ultimately stopped treatment due to its cost. At the time of trial, Ms. Gunno continued to experience occasional neck and back pain.

Dr. McClanahan testified that he treated Ms. Gunno for neck and back pain over two courses of treatment.  He found decreased range of motion and muscle spasms in both her cervical & lumbar spine during both courses.  Dr. McClanahan testified that Ms. Gunno was not fully recovered upon discharge from the first course of treatment and she still had pain and limited function.  During his second course of treatment, Dr. McClanahan diagnosed "trigger points," i.e. objective indicators of pain and injury.    He ultimately opined that Ms. Gunno suffered a permanent injury, which would continue to cause her pain and discomfort in the future.  Importantly, Ms. Gunno did not offer her medical bills as evidence of damages at trial.  She also withdrew her claim for past lost wages.  Thus, Ms. Gunno’s damage claim was limited to non-economic damages.

Dr. Bruce Guberman, a defense medical examiner, evaluated Ms. Gunno.  He testified that Ms. Gunno sustained neck and back injuries as a result of the accident, but only related a portion of her medical care to the accident.  Dr. Guberman testified that the vast majority of Ms. Gunno’s subjective complaints were related to a fall, which occurred approximately one (1) month following the crash – a fall which Ms. Gunno failed to report to Dr. Guberman and Dr. McClanahan.  Ultimately, Dr. Guberman testified that there was no objective evidence to support Ms. Gunno’s subjective complaints of pain.

Following the presentation of evidence, the jury unanimously concluded that "the Plaintiff Ashley D. Gunno was injured as a proximate result of the accident of September 13, 2011."  Notwithstanding this finding, the jury awarded $0.00 in damages.  Judgment was entered on the verdict on May 29,2014.  On June 9, 2014, the Plaintiff timely filed a motion for a new trial.  Following a hearing on December 9, 2014, Circuit Judge Webster denied the post-trial motion by order entered July 28,2015.

The trial court found the decision in Toler v. Hager, 205 W. Va. 468, 519 SB.2d 166 (1999) persuasive in considering and denying the Plaintiff's Motion for New Trial. The Toler Court reinstated a jury verdict which awarded "$0.00" damages for pain and suffering to the Plaintiff.  In Toler, the Court explained that "in an action for personal injuries, the damages are unliquidated and indeterminate in character, and the assessment of such damages is the peculiar and exclusive province of the jury." The Court further explained that in a case of indeterminate damages for which the law gives no specific rule of compensation, the decision of the jury upon the amount of damages is generally conclusive, unless the amount is so large or small so as to induce belief that they were influenced by passion, partiality, corruption or prejudice, or mislead by some mistaken view of the case."  The trial court in this case found no such exception.

The trial court also relied upon Marsch v. American Electric Power Company, 207 W. Va. 174, 530 S.E.2d 173 (1999), which upheld an award of the jury awarding $0.00 for pain and suffering to the plaintiff. The Court in Marsch noted that "compensation for pain and suffering is an indefinite and unliquidated item of damages, and there is no rule or measure upon which it can be based. The amount of compensation for such injuries is left to the sound discretion of the jury, and there is no authority for a court to substitute its opinion for that of the jury. A mere difference in opinion between the court and the jury as to the amount of recovery in such cases will not warrant the granting of a new trial on the ground of inadequacy unless the verdict is so small that it clearly indicates that the jury was influenced by improper motives."

Finally, the trial court found Big Lots v. Arbagast, 228 W. Va. 616, 723 S.E.2d 846 (2012) persuasive and controlling.  In Arbagast, the jury placed a "$0.00” in a corresponding blank on the verdict form for past and future pain and suffering and future loss of enjoyment of life.  The Court reasoned that the verdict was a result of the jury's consideration of the conflicting evidence on damages and was rendered after careful deliberation and a conscious determination that the evidence did not support an award for pain and suffering. The Court noted that there was conflicting evidence as to the amount of pain and suffering specifically attributable to the subject injury and the amount of damages as a factual determination reserved for the jury.

This appeal followed.

Positions of the Parties: 

Respondent predominantly relied on the cases cited by the trial court, above, in support of his position.  Summarily, Respondent argued that the West Virginia Supreme Court of Appeals has repeatedly held that an award of damages is for the jury to determine and the Court should not substitute its own judgment for that of the jury, particularly when the damages are general damages, in indeterminate amounts, such as those for pain and suffering and loss of enjoyment of life.

Petitioner distinguished her case from the cases cited by the trial court on the basis of uncontroverted evidence of injury proximately caused by the incident.  For example, Petitioner argued that the disputed question in Toler was not the amount of damages the appellee should be awarded but, rather, whether the appellee was actually injured as a result of the accident.  In the present case, Petitioner argued, there is no dispute that Ms. Gunno was injured as a result of the subject crash.  Similarly, in Big Lots Stores, the Court concluded that the evidence supported the jury verdict awarding no damages when the evidence presented, inter alia, suggested that the plaintiff sustained an injury to her knee independent of the subject incident.  Again, Petitioner argued that while some of Ms. Gunno’s injuries could have been attributed to the post-accident fall, the fact remains that there was undisputed evidence that the crash proximately caused some injury to Ms. Gunno prior to the fall.  Lastly, Petitioner distinguished the ruling in Marsch, which again involved conflicting facts as to whether Mr. Marsch was actually injured as a result of the subject incident.

Petitioner relied upon Hagley v. Short, 190 W.Va. 672, 441 S.E.2d 393 (1994), where West Virginia’s highest court reversed a trial court’s decision to refuse a new trial requested on the basis of a zero damage award.  However, Respondent distinguished Hagley from the instant claim because in Hagley, plaintiff presented uncontroverted evidence of lost wages and incurred medical expenses, which were “determinable.”  Because Ms. Gunno failed to offer evidence of past medical bills and/or lost wages, her damages, Respondent argued, were indeterminable, and therefore, fell outside of the holding in Hagley.

Finally, in her Reply brief, Petitioner cited Talkington v. Barnhart, 164 W.Va. 488, 264 S.E.2d 450 (1980), wherein the West Virginia Supreme Court of Appeals reversed and remanded a case to be re-tried on liability and damages.  In Talkington, the jury awarded plaintiff-husband compensation for property damage done to his vehicle, but awarded zero damages to plaintiff-wife, despite the fact that she had submitted uncontroverted evidence of injury and medical bills related to the subject accident.  Ultimately, the Court in Talkington held that it was impossible to determine from the jury verdict whether “they voted that defendant was negligent and plaintiff was not contributorily negligent, or whether they believed plaintiff was negligent but erroneously assessed damages for Talkington's car repairs.”  Therefore, a reversal and remand on liability and damages was permissible.  Petitioner also cited  Freshwater v. Booth, W.Va., 233 S.E.2d 312 (1977), which was another case wherein damages were determined to be inadequate, and the issue of liability, primarily on the basis of a contributory negligence, was sufficiently in doubt.  Therefore, the Court authorized a remand on all issues.  Interestingly however, the Court in Freshwater stated the following:  A jury award for pain and suffering is an inherently subjective undertaking, and the degree of moral fault which a jury imputes to the tortfeasor is almost inevitably reflected in the liberality or parsimony of the pain and suffering award. Nevertheless, subjective though pain and suffering awards may be, the jury must give some reasonable compensation for pain and suffering to victims when such pain and suffering have been demonstrated, and an award which is so unreasonable that its adequacy cannot be debated by fair-minded men must be set aside.”

Probable Impact: 

In the present case, despite the fact that there was uncontroverted evidence of injury related to the crash, liability was not contested and Petitioner offered no evidence of economic damages.  Therefore, it is anticipated that the West Virginia Supreme Court of Appeals will affirm the trial court’s decision denying Petitioner’s request for a new trial.   Not much impact is anticipated.

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