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Gilliam v. Immel

Supreme Court of Virginia

January 19, 2017



         PRESENT: All the Justices



         In this 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.


         Gilliam 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 [the defendant]").

         Gilliam 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."

         At 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.

         According 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 accident.

         Gilliam 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.

         Immel 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."

         After 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?"[1] 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." [2]

         Following 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 ...

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