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McKenzie vs. Servier

McKenzie vs. Servier

Associated cases: 
Case No. 
No. 19-0010
Type of Proceeding: 
Appeal from the Circuit Court of Marion County (Judge Wilson)

Was it error for the trial court to uphold a $0 verdict in a battery case where Petitioner allegedly suffered a traumatic brain injury and incurred medical bills exceeding $180,000?


Petitioner and Respondent are neighbors with a history of altercations.  On July 7, 2015, Respondent arrived home from work.  Approximately 20 to 30 minutes later, an altercation arose between the two men in the street.  Petitioner alleges that Respondent hit him in the face with a closed fist.  Respondent alleges that Petitioner, who was intoxicated, lunged forward and spit at him.  Respondent struck Petitioner “as a reflex.”  According to Respondent, Petitioner stumbled backward striking his heel on the edge of his driveway causing him to fall and strike his head.

The case was tried to a jury, which found that Respondent did, in fact, commit a battery on Petitioner.  However, it awarded $0 damages.  Petitioner moved for a new trial, but the trial court denied that motion.  Petitioner now appeals.

Positions of the Parties: 

Petitioner (McKenzie): 

Petitioner argues that his new trial motion should have been granted because (1) the damages are inadequate as a matter of law, and (2) the verdict is inconsistent.  Under West Virginia law, a new trial should be granted where specific elements of damage have been proven by undisputed evidence, but are not included in the verdict.  Here, Petitioner argues that his substantial injuries were clearly established by photographs, medical records, and the testimony of his treating physician.  Thus, a $0 verdict is clearly inadequate.  Furthermore, an award of $0 damages in inherently inconsistent with the jury’s finding that a battery was committed.

Respondent (Servier): 

Respondent argues, first, that any error relating to the verdict was waived because Petitioner failed to object to the verdict before the jury was discharged.  Respondent also argues that the jury’s $0 verdict was supported by the evidence.  Petitioner failed to prove that Respondent’s conduct proximately caused his injuries--especially in light of his own intoxication and the fact that the fall was caused by tripping over the edge of his own driveway.

Probable Impact: 

This case will not generate any new law.  However, the Supreme Court’s jurisprudence surrounding $0 verdicts is a bit confusing.  Hopefully, this case will provide us with some clarity.  Petitioner’s failure to object to the verdict form will undoubtedly play a part in the Court’s analysis, at least with respect to the inconsistent verdict issue.

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