THE CIRCUIT COURT OF THE CITY OF COLONIAL HEIGHTS Edward A.
Robbins, Jr., Judge
All the Justices
ELIZABETH A. McCLANAHAN, JUSTICE
personal injury action filed by Nancy Mae Gilliam against
Jacob Thomas Immel, the jury awarded a verdict in favor of
Gilliam but awarded her no damages. On appeal, Gilliam
contends that the trial court erred in denying her motions to
set aside the verdict and for a new trial. She also argues
that the trial court erred in excluding a racially charged
statement made by Immel at the scene of the vehicle accident.
We affirm the judgment of the trial court.
seeks damages arising from personal injuries she claims to
have sustained when a vehicle being operated by Immel struck
the rear bumper of the vehicle Gilliam was operating. Immel
admitted liability, and therefore, the trial was limited to
the issue of damages. Because Immel prevailed on the issue of
damages, we review the evidence on that issue in the light
most favorable to him. Vilseck v. Campbell, 242 Va.
10, 11, 405 S.E.2d 614, 614 (1991) (noting that where the
jury returned a zero dollar verdict, "[the defendant] is
entitled to have the evidence viewed in the light most
favorable to him"); Mastin v. Theirjung, 238
Va. 434, 436, 384 S.E.2d 86, 87 (1989) (noting that where the
jury returned a zero dollar verdict, "we summarize the
facts on [the damages] issue in the light most favorable to
was stopped at a traffic light with both hands on the
steering wheel of her vehicle when she "heard something
boom." She "saw [herself] headed towards
traffic" and "immediately put [her] foot back on
the brake to stop." Gilliam "realized that [Immel]
had hit [her]" when she looked in her rearview mirror
and saw his vehicle "backing up." During the
accident, Gilliam was restrained by her seatbelt and no part
of her body came into contact with any part of her vehicle.
Gilliam testified that at the time of the impact, her
"body just tensed up" but she did not suffer any
cuts, scrapes, bruises, swelling, or other visible signs of
injury. Gilliam did not testify as to any damage to her
vehicle and presented no other evidence of such damage. Immel
introduced two photographs taken of the rear bumper of
Gilliam's vehicle after the accident. The photographs did
not depict discernible damage to Gilliam's vehicle,
though there were "circle marks" on the photographs
that were made by Gilliam in an effort to "pick out the
damage on the vehicle."
Gilliam's request, she was transported by emergency
medical personnel to Southside Regional Medical Center.
Gilliam testified that she complained of pain in her lower
back and right side of her neck at the accident scene and to
personnel at the Southside Regional Medical Center. According
to Gilliam, "they did [an] x-ray on [her] neck and back
and they gave [her] . . . medicine." Gilliam went to
work as usual the day after the accident. Gilliam testified
she visited her primary physician twice after the accident
with complaints of severe lower back and neck pain. Gilliam
stated that "he gave [her] some medicine" and
recommended that she see an orthopedic doctor. Gilliam
testified she then sought treatment from physicians at
Advanced Orthopaedic Centers and received physical therapy.
Gilliam presented no medical evidence to support her claim of
back and neck injury. She admitted that she had previously
undergone back surgery several years prior to the accident.
to Gilliam, she complained to her doctors at Advanced
Orthopaedic Centers of pain "going down" to her
shoulder, and they referred her to a neurologist who ordered
an MRI of her shoulder and directed her to see Dr. Marion
Herring at Advanced Orthopaedic Centers. Dr. Herring, the
only medical witness offered by Gilliam, first saw Gilliam
approximately ten months after the accident for complaints of
right shoulder pain. Dr. Herring testified that the MRI scan
of her shoulder depicted "a partial tear around her
bicep tendon and a labral tear." After giving Gilliam a
steroid injection in the bursa area of her shoulder, Gilliam
reported 90% immediate improvement. Subsequently, he
performed surgery on Gilliam's shoulder and prescribed
physical therapy. Gilliam missed one day of work on the day
of her surgery and then resumed her normal work schedule.
Although Dr. Herring related Gilliam's shoulder injury to
the accident based on Gilliam's report that her shoulder
pain started at the time of the accident, he also testified
that the MRI scan revealed other conditions in her shoulder
including bursal surface fraying, degenerated labrum and AC
joint osteoarthritis, all of which could have predated the
introduced a summary of medical bills that totaled
approximately $73, 000 and covered the time period from the
date of the accident through her last visit with Dr. Herring.
Immel agreed that the medical bills were actually incurred by
Gilliam but expressly stated he was "not conceding [the
bills] were related to the motor vehicle accident." Dr.
Herring testified that his care and treatment of
Gilliam's shoulder was "reasonably medically
necessary" and "reasonably medically related to the
automobile accident." No other medical provider
testified as to the reasonableness or necessity of any other
treatment Gilliam received.
offered the testimony of Dr. Terry Whipple as an expert in
orthopedic surgery. Dr. Whipple did not treat or examine
Gilliam. He concluded that there was "no relation
between [Gilliam's] shoulder, even her shoulder symptoms,
much less any pathology or surgery and the motor vehicle
accident." He testified that "[t]he injuries that
[Gilliam] sustained in the accident according to all of the
evidence" led to his "impressions" that
"she had a muscular strain injury to her neck and a
muscular strain injury to her low back." Dr. Whipple
offered no opinion as to how long a muscle injury would be
symptomatic, stating that "symptoms are expressed as a
subjective impression of the person who is injured."
According to Dr. Whipple, muscle strain injury "would
resolve within a short period of time, [meaning] weeks, and
have no ongoing or residual significance at all." Dr.
Whipple further testified that while "there may be some
advantage to medical treatment" within the initial six
weeks after a strain, "we can influence that process for
better or worse with medical intervention."
the jury retired to deliberate, the jury submitted the
following question to the trial court: "Have the first
four expenses listed in the summary of medical bills been or
will be covered by the defendant or the defendant's
insurance?" Noting it did not
know if the question originated from one or more jurors and
that regardless, it had no need to know the answer, the trial
court gave the following response upon agreement of counsel:
"Insurance of any kind or the lack of insurance of any
kind has no role in this lawsuit. You cannot consider that
issue as part of your deliberations. And that is because you
have received no evidence on that and the law does not permit
you to speculate as to the presence or absence of insurance.
You must reach a verdict, if you can, on the evidence
that's been presented by the lawyers and the law as the
Court has instructed you." 
deliberation, the jury returned a verdict for Gilliam and
assessed her damages at zero dollars. Gilliam moved the trial
court to set aside the jury verdict and award a new trial.
The trial court denied ...