United States District Court, W.D. Virginia, Abingdon Division
T. Copeland, Copeland Law Firm, P.C., and Michael A. Bragg,
Bragg Law, PLC, Abingdon, Virginia, for Plaintiff; James N.
L. Humphreys, Hunter, Smith & Davis, LLP, Kingsport,
Tennessee, for Defendant.
OPINION AND ORDER
P. Jones United States District Judge.
personal injury case arising out of a motorcycle accident, a
jury found in favor of the plaintiff and awarded $4, 509 in
damages. The plaintiff has moved for a new trial on the
ground that the jury award is inadequate as a matter of law.
For the reasons stated below, I will deny the motion.
evidence presented at trial persuaded the jury that defendant
Jamie Stapleton Rock, while driving a minivan, had
negligently turned in front of plaintiff John Bradley Ray,
causing Ray's motorcycle to collide with the side of the
minivan. The evidence pertaining to Ray's damages can be
summarized as follows.
the accident on August 25, 2014, Ray was transported by the
ambulance to the emergency department at Bristol Regional
Medical Center (“BRMC”). BRMC records of this
visit show that Ray was diagnosed with a contusion of the
chest wall and painful respiration. According to the records,
he reported no loss of consciousness, dizziness, headaches,
or altered mental status. An X ray showed no definite rib
weeks before the accident Ray was seen at Associated
Neurologists of Kingsport (“Neurologists”) in
order to follow up on a diagnosis of optic neuritis. One of
his close relatives has multiple sclerosis
(“MS”), which puts Ray at greater risk of
developing MS, and optic neuritis can sometimes be an early
symptom of MS. Otakar Krcal, M.D., a neurologist, determined
that Ray did not suffer from MS at that time.
returned to Neurologists on October 2, 2014, a little more
than a month after the accident. He was seen by Nurse
Practitioner Tracie Price. A record of this visit states that
Ray reported that he had lost consciousness at the time of
the accident, but he denied having memory problems. He
reported experiencing headaches approximately four times per
week since the accident, including severe headaches about two
times per week. Price found that his cognition was normal and
diagnosed him with post-concussive headaches.
first complained of memory loss to Neurologists in May of
2015. He wrote the complaint on an office intake form but did
not discuss the problem with a medical practitioner at that
time. On September 9, 2016, approximately two years after the
accident, Ray first reported to Nurse Practitioner Price that
he had short term memory problems and difficulty organizing
his thoughts. Price performed a Montreal Cognitive Assessment
that day, which showed mild cognitive decline. Ray underwent
a magnetic resonance imaging scan (“MRI”) with
contrast, and the results were within normal limits. Lab work
revealed slightly elevated liver enzymes but otherwise normal
results. According to Price, on March 1, 2017, Ray again
complained of memory problems as well as trouble sleeping. He
reported to her that he had to write notes to himself to
remember what he was doing.
Krcal testified that Ray was still being monitored for
development of MS and that it was difficult to separate the
treatment necessitated by the accident from the monitoring
required for MS. Dr. Krcal stated that Ray was probably
followed more closely than a typical patient with
Krcal testified that Ray's headaches following the
accident could have “possibly” resulted from
post-concussive syndrome. Ray reported to the physician that
his headaches had resolved by his second office visit
following the accident. Dr. Krcal could not say with any
certainty that Ray's memory problems were caused by the
accident, largely because there was no baseline memory
testing from before the accident that would provide a
comparison. Dr. Krcal testified that he was not aware of
anything else that would have caused Ray to suffer memory
loss. According to Dr. Krcal, post-concussive memory loss
does not usually worsen a year after an accident. Rather,
most memory problems following a concussion resolve within
the first few weeks or months, although they sometimes last
Smith, M.D., a neurosurgeon, performed an independent medical
examination of Ray at the request of the defense. Dr. Smith
noted that the MRI taken approximately two years after the
accident was normal. He acknowledged that Ray claimed memory
loss, but he could not say that it was caused by the accident
because there was no pre-accident data for comparison. Dr.
Smith noticed that Ray exhibited a flat affect, meaning that
he did not give much feedback in his interactions and was
slow to respond. However, Dr. Smith could not say that the
flat affect was caused by the accident. He testified that he
could not reach an opinion to a reasonable degree of medical
certainty based solely on anecdotal evidence.
Campbell, Ray's former girlfriend, lived with him at the
time of the accident. She testified that he had appeared
dazed when she saw him in the hospital and had complained
that his head and side were hurting. He was unable to drive
for about a week following the accident. He experienced
painful breathing, which led to additional medical visits.
Campbell testified that Ray had suffered from pneumonia and
broken ribs, and his head hurt so bad that he underwent an
stated that Ray's personality had changed after the
accident. He used to be very punctual and outgoing, but after
the accident, he was short-tempered, argumentative, and
forgetful. He stopped caring about things and wanting to do
things. He became disorganized and messy. Nevertheless, he
still managed to pay his bills on time and was only late in
paying two ...