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Gunno v. McNair

Gunno v. McNair

Case No. 
Opinion Date: 
Opinion Author: 
Memorandum Opinion

On September 13, 2011, Ashley Gunno (Petitioner/Plaintiff), while operating her vehicle proceeded through the intersection of Route 119 and Oakwood Road when the Respondent/Defendant’s van turned 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 that she sustained significant injuries and damages as a result of the crash. The Respondent/Defendant admitted liability; 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.


Whether the trial court abused its discretion in refusing plaintiff’s request for a new trial when the undisputed evidence established proximate causation and injury? Framed a little differently--Was the jury’s decision to award zero dollars “consistent” with its finding that the plaintiff sustained injury proximately caused by the defendant’s negligence?


Although the ruling of a trial court in granting or denying a motion for a new trial is entitled to great respect and weight, the trial court’s ruling will be reversed on appeal when it is clear that the trial court has acted under some misapprehension of the law or the evidence. Syl. pt. 4, Sanders v. Georgia-Pacific Corp., 159 W. Va. 621, 225 S.E.2d 218 (1976).

In her motion for a new trial, the Petitioner alleged that an award of zero dollars was inconsistent with the jury’s determination that the negligence of the defendant caused injury; however, the majority of the Court (Justices Davis, Benjamin and Workman) determined that the trial court did not directly discuss this issue. Instead, the circuit court’s order focused on the “adequacy” of the jury’s award of zero dollars for Petitioner’s losses.

“When jury verdicts answering several questions have no logical internal consistency and do not comport with instructions, they will be reversed and the cause remanded for a new trial.” Syl. pt. 1, Reynolds v. Pardee & Curtin Lumber Co., 172 W. Va. 804, 310 S.E.2d 870 (1983). In determining whether jury verdicts are inconsistent, “such inconsistency must appear after excluding every reasonable conclusion that would authorize the verdict.” Prager v. City of Wheeling, 91 W. Va. 597, 599, 114 S.E. 155, 156 (1922).

Here, the majority determined that the jury’s zero dollar damage award was inconsistent with the jury’s finding that Petitioner was injured as a proximate result of the automobile accident; and therefore, the Petitioner was entitled to a new trial to determine her damages.

Chief Justice Ketchum concurred, agreeing that the jury returned inconsistent interrogatory answers in the verdict form. However, Justice Ketchum, relying upon W.Va.R.C.P. 49(b), faulted Petitioner for failing to object to the verdict and request that the court “return the jury for further consideration of its answers” and award damages based on its finding that the plaintiff was injured in the car wreck. He noted that any objections to the verdict form based on defect or irregularity must be made prior to the jury’s dismissal. Syllabus Point 2, Combs v. Hahn, 205 W.Va. 102, 516 S.E.2d 506 (1999) Thus, Justice Ketchum queried whether Petitioner had waived her right to attack these irregularities in post-trial motions. Ultimately, Justice Ketchum agreed that a new trial on damages was warranted because Respondent did not assert the “waiver” defense.

Justice Loughry offered a rather scathing dissent. “The majority’s transparent attempt to ‘hide’ its grossly erroneous conclusion in a memorandum decision makes it even more important that the curtain be pulled back to reveal their improper analysis and incorrect result. While I have not previously hesitated to criticize the majority when its analysis bends to reach the result it seeks, I seldom find the majority so willing to ignore our precedent for the sole purpose of excusing the misguided strategies of parties and/or their counsel. In the instant matter, the petitioner so misapprehended the strength of her case that she intentionally forewent seeking special damages, hoping the jury would find the nature of her injury so compelling that it would more than compensate her in general damages. When the jury awarded her no damages, undoubtedly due to the hotly contested nature and extent of her injury, she decried the verdict as inadequate. The majority, in a stunning invasion of the jury’s province, rewards her miscalculation and strategical error with a “do-over” and badly fumbles the law in the process.”

Justice Loughry believed that the Petitioner did not challenge the inconsistency of the verdict. Even if she did, according to Modular Building Consultants of West Virginia, Inc. v. Poerio, Inc., 235 W.Va. 474, 480 n.4, 774 S.E.2d 555, 561 n.4 (2015), she waived it by failing to object to the verdict while the jury was still empaneled. Instead, Justice Loughry opined that what was truly at issue was the “adequacy” of the verdict. 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. Syl. Pt. 2, Richmond v. Campbell, 148 W.Va. 595, 595, 136 S.E.2d 877, 878 (1964). Justice Loughry felt that the majority disregarded virtually identical cases where the Court upheld the refusal to award general damages, citing to Marsch v. American Electric Power Co., 207 W.Va. 174, 179-80 n.6, 530 S.E.2d 173, 178-79 n.6 (1999) and Big Lots Stores, Inc. v. Arbogast, 228 W.Va. 616, 723 S.E.2d 846 (2012).


It appears that Petitioner sufficiently, albeit very subtly, preserved her “inconsistency” argument. Had Petitioner been more forceful in laying out her “inconsistency” argument in post-trial briefs, Respondent may have been more apt to argue “waiver.” Had that occurred, a new trial may not have been ordered. The message for litigators? Beware! Failure to raise a contemporaneous objection to an inconsistent verdict can be fatal.

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