STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Ashley D. Gunno, FILED 

Petitioner November 17, 2016 

released at 3:00 p.m. vs) No. 15-0825 (Kanawha County 12-C-1188) RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Kevin C. McNair, 

Respondent 

MEMORANDUM DECISION 

Petitioner Ashley D. Gunno appeals the order of the Circuit Court of Kanawha 

County entered July 28, 2015, that denied her motion for a new trial. Petitioner was 

injured in a car accident caused by Respondent Kevin C. McNair. On appeal, she 

challenges the jury’s verdict awarding no damages for her injuries despite Respondent’s 

admission of responsibility for the accident and a jury finding that Petitioner was injured 

as a proximate result of the accident. Petitioner, by counsel Damon L. Ellis and Anthony 

Majestro, filed a brief with this Court. Respondent, by counsel Geoffrey A. Haddad, filed 

a response. 

This Court has considered the record on appeal, the parties’ briefs, and their oral 

arguments. Upon our review, we believe that this case satisfies the “limited 

circumstances” requirement of Rule 21(d) of the Rules of Appellate Procedure and is 

appropriate for a memorandum decision reversing the circuit court’s order. For the 

reasons expressed below, the July 28, 2015, order is reversed and this matter is remanded 

for further proceedings consistent with this decision. 

On September 13, 2011, Petitioner and Respondent were involved in an 

automobile accident in Kanawha County as Petitioner was driving home from work along 

Route 119. As Petitioner approached the intersection of Route 119 and Oakwood Road, a 

van driven by Respondent turned in front of her. Petitioner was unable to avoid colliding 

with the van. The collision caused Petitioner’s car to spin around and hit a third vehicle. 

As a result of this accident, Petitioner’s car was a total loss and Respondent’s vehicle 

suffered heavy damage. 

Petitioner was treated at the scene by emergency responders and was transported 

to Charleston Area Medical Center for further evaluation. Petitioner testified that she told 

her treating physicians of pain in her neck and that when the doctor moved her legs, she 

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experienced intense back and neck pain. After her release from the emergency room, 

Petitioner went home and continued to experience pain and soreness, which kept her from 

sleeping. She testified that the pain was miserable and that she could not move without 

experiencing more pain. 

Petitioner saw Dr. Matthew Walker, an orthopedic specialist, to address persistent 

pain in her neck, which she described as radiating down her arms when she moved her 

neck, back pain, and intermittent burning sensations. Dr. Walker examined her and 

recommended one month off work for recovery. Dr. Walker also recommended physical 

therapy, which she received, and use of a TENS unit for pain. Petitioner asserted that the 

TENS unit provided only temporary relief. Dr. Walker ultimately discharged Petitioner 

from the orthopedist because there was nothing left that could be done to treat her 

symptoms. 

Petitioner then sought treatment with Dr. Jay McClanahan, a chiropractor, for the 

burning, aching, and throbbing pain she continued to experience in her neck and back. 

She claimed that her neck pain was more severe than her back pain. Dr. McClanahan 

ordered her to remain off work for three to four more weeks. Petitioner was treated by 

Dr. McClanahan from October of 2011 through the spring of 2012, for a total of thirty 

treatments. Dr. McClanahan found that Petitioner had decreased range of motion and 

muscle spasms. While she was not completely pain free following her treatments, she 

returned to work with restrictions and eventually was released to her normal work as a 

nurse. 

Petitioner claimed that she continued to feel pain while at work and at home. She 

maintained a home therapy program, including use of a TENS unit. She later sought 

treatment with the Holzer Clinic, where she received trigger point injections that initially 

relieved the pain, but she claimed the pain eventually returned. She also returned to Dr. 

McClanahan for another 10 to 15 treatments, concentrating on pain relief and increasing 

her range of motion, but these treatments ended when Petitioner could not afford the cost 

of treatment. Her pain continued, interfering with her care of her son, who was born after 

the accident in 2014. 

In June of 2012, Petitioner initiated this personal injury action against Respondent 

for damages arising from the accident. At trial, Dr. McClanahan testified that Petitioner 

suffered a permanent injury from the accident, one from which she will never fully 

recover. In addition, Dr. McClanahan suggested that she will continue to suffer flare-ups 

and that there is nothing she can do to prevent these. Petitioner’s husband, Rick Comer, 

testified at trial about seeing the aftermath of the accident and about his wife’s pain and 

suffering. He also confirmed that Petitioner was continuing to have problems with pain. 

At the behest of Respondent, Dr. Bruce Guberman testified during the trial. 

Respondent hired Dr. Guberman to review Petitioner’s medical records. He testified that 

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there was no evidence of pre-existing cervical or neck pain prior to the automobile 

accident. He examined Petitioner on one occasion on May 29, 2013. Dr. Guberman 

testified that at the time of this examination, Petitioner indicated that she was still 

suffering from persistent cervical and lumbar strain from the accident. He testified that 

Petitioner’s injuries were subjective and not supported by the objective diagnostic tests he 

administered, which resulted in normal findings. Dr. Guberman did acknowledge that 

Petitioner’s past medical records contained objective evidence of her pain and injury. 

Dr. Guberman also testified that approximately one month after the automobile 

accident, Petitioner fell. This was not initially reported to Dr. Guberman in the course of 

his examination of her. At trial, Petitioner testified that she tripped and fell while bracing 

herself, which resulted in increased and very intense neck pain. Dr. Guberman opined 

that the character of Petitioner’s injuries and complaints changed after this fall. 

Because Respondent admitted that he was responsible for the accident, liability for 

the accident was not contested. As a result of a strategic trial decision, Petitioner chose 

not to offer her medical bills into evidence or to seek recovery of the amount of the 

medical bills or lost wages. Because no evidence was offered during Petitioner’s case on 

the issues of past medical expenses, past lost wages, past vocational loss, future medical 

expenses, future lost wages, and future vocational loss, Respondent moved mid-trial for 

judgment in his favor on these issues. The trial court granted Respondent’s motion, and 

Petitioner’s case went to the jury on two issues: (1) whether Petitioner was injured as a 

proximate result of the automobile accident and, if so, (2) the amount of damages 

Petitioner should be awarded for harms and losses, including, but not limited to, past 

and/or future physical and mental pain and suffering, and reduced ability to enjoy life. 

The jury deliberated and returned a verdict as follows: On the issue of whether the 

petitioner was injured as a proximate result of the accident, the jury answered “Yes.” On 

the second issue regarding the compensation to which Petitioner was entitled for harms 

and losses, including, but not limited to past and/or future physical and mental pain and 

suffering and reduced ability to enjoy life, the jury awarded $0 in damages. Immediately 

after the jurors were polled and removed from the courtroom, Petitioner’s counsel argued 

that the verdict did not follow the evidence. The circuit court directed the parties to file 

post-trial motions. 

Petitioner filed a written motion for a new trial, arguing that the jury’s verdict 

awarding no damages for her past and future pain and suffering was wrong in light of the 

jury’s finding that Petitioner was injured as a proximate result of the automobile accident. 

Petitioner specifically argued that the jury’s verdict was inconsistent because while the 

jury determined that Petitioner was injured, it awarded no damages for her pain. 

Petitioner also argued that the verdict was inadequate. Respondent opposed the motion 

for a new trial, arguing that the jury’s decision to award no damages for pain and 

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suffering was entitled to great deference and that the jury’s verdict was supported by 

Respondent’s evidence. 

The circuit court denied Petitioner’s motion for a new trial by order entered July 

28, 2015. In its order, the circuit court found that there was not clear uncontroverted 

evidence of Petitioner’s actual pecuniary loss, including medical bills and other damages. 

Thus, the damages sought by Petitioner for her past and future pain and suffering were 

indeterminate and unliquidated. The circuit court reasoned that because Petitioner chose 

not to seek damages for her medical bills or other pecuniary loss, the jury’s award of no 

damages to Petitioner should be entitled to great weight and deference. It is from the 

court’s July 28, 2015, order that Petitioner now appeals. 

We review the denial of a motion for a new trial as follows: 

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 

terms of inadequacy of the verdict, we have said: 

In a civil action for recovery of damages for personal injuries in 

which the jury returns a verdict for the plaintiff which is manifestly 

inadequate in amount and which, in that respect, is not supported by the 

evidence, a new trial may be granted to the plaintiff on the issue of damages 

on the ground of the inadequacy of the amount of the verdict. 

Syl. pt. 3, Biddle v. Haddix, 154 W. Va. 748, 179 S.E.2d 215 (1971). 

While both Petitioner and Respondent present arguments on the inadequacy or 

adequacy of the jury’s award of damages for Petitioner’s losses, we need not address this 

issue. Instead, the core issue presented in this appeal is whether the jury verdict was 

inherently inconsistent. While the lower court’s order denying a new trial does not 

directly discuss any inconsistencies in the verdict, Petitioner did allege in her motion for 

a new trial that the verdict was inconsistent. Instead of addressing these inconsistencies, 

the circuit court’s order instead 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 consistence 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 

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Co., 172 W. Va. 804, 310 S.E.2d 870 (1983).1 Petitioner argues that the jury’s finding 

that Petitioner was injured as a result of the accident—an accident that Respondent 

admits was his fault—is inconsistent with an award of zero damages for her losses. 

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). While this Court has previously addressed alleged inconsistencies in jury 

verdicts, this is an instance where the Court has been asked to examine the issue in the 

context of an automobile accident, where a jury finds liability on the part of the defendant 

but awards no damages. The Alabama Court of Civil Appeals recently examined an 

almost factually identical scenario in Daniel v. Passmore, 998 So.2d 1079 (Ala. Civ. 

App. 2008). In Daniel, the plaintiffs, a wife and husband, were involved in an automobile 

accident with the defendant. Id. at 1080. The jury returned a verdict in which it 

determined that the defendant was liable for the automobile accident. Id. The jury 

awarded $600 to the wife and $0 to the husband. Id. On appeal, the Alabama court found 

that a jury verdict awarding $0 to the husband was inconsistent with the jury’s decision 

regarding the defendant’s liability. Id. at 1081. The court reiterated that “‘where a jury in 

a negligence action returns a verdict for the plaintiff but awards no damages such a 

verdict is inconsistent as a matter of law. Thompson v. Cooper, 551 So.2d 1030 

(Ala.1989) (emphasis added). . . .’” Id. 989 So.2d at 1080. The jury verdict in the case at 

bar is similarly inconsistent. 

Recently, this Court examined an inconsistent verdict in Modular Building 

Consultants of West Virginia, Inc. v. Poeria, Inc., 235 W. Va. 474, 774 S.E.2d 555 

(2015). In Poeria, the jury determined that the defendant was negligent but that the 

defendant did not breach its lease agreement. Id. at 479, 774 S.E.2d 560. On appeal, the 

plaintiff argued that the jury’s findings were inconsistent because in order to be negligent, 

the plaintiff would have had to have breached the lease agreement. Id. This Court 

determined that the verdict was not inconsistent because specific disputed facts admitted 

during trial could support the verdict. Id. at 479–80, 774 S.E.2d at 560–61. 

The present case, as with the Daniel case, is easily distinguishable from Poeria. 

Unlike Poeria, here there is no factual dispute that Respondent caused the accident and 

that Petitioner suffered injuries as a result of that accident. While there may be dispute as 

to whether the pain Petitioner experienced after her fall, which occurred about a month 

after the accident, was attributable to the accident, it is uncontroverted that prior to the 

fall, Petitioner experienced pain. Furthermore, Respondent’s expert witness 

acknowledged that Petitioner’s injuries would cause pain. 

The petitioner and respondent did not object to the instructions and do not raise 

instructional error in this appeal. 

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In the present appeal, the jury resolved any questions of injuries by making a 

finding that Petitioner was injured as a proximate result of the automobile accident. The 

award of zero dollars in damages is inherently inconsistent with the finding that 

Petitioner was injured as a proximate result of the accident. Petitioner’s past pain and 

suffering is amply supported by her own testimony, her husband’s testimony and the 

testimony of her treating chiropractor. We therefore conclude that Petitioner is entitled to 

a new trial to determine her damages as a result of Respondent’s negligence. 

For the reasons stated above, this Court reverses the July 28, 2015, order denying 

Petitioner’s motion for a new trial, and we remand this case to the circuit court for a new 

trial on damages. 

Reversed and remanded. 

ISSUED: November 17, 2016 

CONCURRED IN BY: 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

CONCURRING AND WRITING SEPARATELY: 

Chief Justice Menis E. Ketchum 

DISSENTING AND WRITING SEPARATELY: 

Justice Allen H. Loughry II 

Chief Justice Ketchum, concurring: 

The jury returned inconsistent interrogatory answers in the verdict form. 

The first interrogatory asked if the plaintiff was injured as a proximate result of the car 

wreck. The jury answered “yes.” However, the jury’s second interrogatory answer stated 

that the plaintiff was entitled to zero damages for her injuries. 

After the inconsistent interrogatories were returned, the plaintiff’s lawyers 

did not 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. See 

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W.Va.R.C.P. 49(b). If the plaintiff’s lawyers had requested the jury be required to further 

deliberate, the court, in its discretion, could have returned the jury for further deliberation 

on damages. Id. 

Generally, 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) (“Absent extenuating circumstances, the failure to timely 

object to a defect or irregularity in the verdict form when the jury returns the verdict and 

prior to the jury’s discharge, constitutes a waiver of the defect or irregularity in the 

verdict form.”). The rationale for requiring an objection prior to the jury’s dismissal is 

“in order to give the trial court the opportunity to correct any infirmity in the verdict 

while correction is still possible.” State Farm Mut. Auto. Ins. Co. v. Weber, 767 S.W.2d 

336, 338 (Mo.Ct.App.1989). If no objection is made prior to the jury’s dismissal, any 

defect or irregularity is waived. 

However, the failure to object to defects or irregularities is not applicable to 

post-trial motions seeking relief based on the inadequacy of the damages awarded. 

Syllabus Point 4, State ex rel. Valley Radiology, Inc. v. Gaughn, 220 W.Va. 73, 640 

S.E.2d 136 (2006) (“The general rule of waiver established by this Court in Combs v. 

Hahn, 205 W.Va. 102, 516 S.E.2d 506 (1999), which requires that any objections to the 

verdict form based on defect or irregularity be made prior to the jury’s dismissal, is not 

applicable to post-trial motions seeking relief based on the inadequacy of the damages 

awarded.”). The Court explained its rationale for this holding as follows: 

This is because a request for a new trial based on the 

inadequacy of damages is not a procedural objection to the 

verdict form, but a substantive objection to the amount of 

damages awarded in view of the evidence presented and the 

findings of the jury as to fault. Consequently, there is no 

basis for invoking the waiver rule established by this Court in 

Combs when the post-trial objection is solely to the adequacy 

of the damages. 

Id. at 78, 640 S.E.2d at 141. 

Even if the plaintiff’s lawyers waived any defect in the verdict form, I still 

would grant a new trial on damages. The defendant did not assert that the plaintiff failed 

to object to the inconsistent interrogatory answers and that the plaintiff waived the right 

to a new trial. Waiver was not argued before the trial court or before this Court in the 

present appeal. 

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Loughry, J., dissenting: 

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. Accordingly, I respectfully dissent. 

The petitioner was injured in an automobile accident for which the other 

driver admitted liability. Immediately post-accident, she sought treatment at the 

emergency room; she subsequently underwent physical therapy as well as treatment with 

a chiropractor and neurologist for neck and back pain. However, the petitioner also 

indisputably had pre-existing degenerative disc disease and a congenital condition 

unrelated to the accident. More importantly perhaps, the petitioner fell approximately 

one month after the accident, a fact that she did not fully disclose to at least one of her 

medical providers nor to an independent medical evaluator. Prior to trial, the petitioner 

withdrew her demand for all past and future special damages, including medical expenses 

and lost wages, seeking only general damages for “past and/or future physical and mental 

pain and suffering, and reduced ability to enjoy life.” The verdict form reflected a single 

line for such damages, upon which the jury entered “0.” 

Before discussing how the substantive law of this State compels upholding 

the jury’s verdict, I pause to illustrate the utter mangling of the issues presented in the 

majority’s decision. The majority concludes that, despite the petitioner plainly advancing 

a challenge to the adequacy of the verdict, what she “meant” to challenge was an 

inconsistency in the verdict. The majority proceeds to conclude that the verdict is 

inconsistent simply because the jury found that whatever injury the petitioner suffered 

was not worthy of a monetary award. The majority is wrong. 

Assuming, arguendo, that the petitioner had challenged the verdict based 

on an inconsistency, the very case law upon which the majority relies would actually 

require it to find such challenge had been waived. In 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), we observed that a failure to object to the verdict while the jury is still empaneled 

constitutes a waiver of a challenge to an inconsistent verdict. We observed that such 

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waiver constituted “additional grounds” for finding against the petitioner’s challenge to 

the verdict inasmuch as its counsel did not object to the inconsistent verdict “at the time 

the verdict was returned and before the jury was discharged.” Id. In support, we stated: 

The Court has held that “[a]bsent extenuating circumstances, 

the failure to timely object to a defect or irregularity in the 

verdict form when the jury returns the verdict and prior to the 

jury’s discharge, constitutes a waiver of the defect or 

irregularity in the verdict form.” Syl. Pt. 2, Combs v. Hahn, 

205 W.Va. 102, 516 S.E.2d 506 (1999). Moreover, “[t]he 

right [to clarification of an irregular verdict] after waiver 

cannot be reclaimed and revived by a motion for a new trial.” 

Id. at 107, 516 S.E.2d at 511. 

Poerio, 235 W.Va. at 480 n.4, 774 S.E.2d at 561 n.4. The petitioner herein 

unquestionably made no such objection at the time the verdict was rendered in this 

action. 

However, this analysis regarding waiver of challenges to inconsistent 

verdicts is wholly inapplicable because it is clear that the petitioner did not challenge the 

inconsistency of the verdict, but rather the inadequacy of the verdict as reflected in her 

assignments of error, briefs, and analysis. Even if the petitioner had not so characterized 

her challenge, our prior decisions clearly demonstrate that an objection to a $0 award for 

pain and suffering is a challenge to the adequacy of the verdict. Moreover, such 

challenge is a substantive, rather than procedural, objection that requires an entirely 

different analysis: “[A] request for a new trial based on the inadequacy of damages is not 

a procedural objection to the verdict form, but a substantive objection to the amount of 

damages awarded in view of the evidence presented and the findings of the jury as to 

fault.” State ex rel. Valley Radiology, Inc. v. Gaughan, 220 W.Va. 73, 78, 640 S.E.2d 

136, 141 (2006). This is precisely the argument advanced by the petitioner herein. To 

the extent the distinction between inadequate and inconsistent verdicts is not obvious, this 

Court explained the difference: 

In contrast to Combs [v. Hahn, 205 W.Va. 102, 516 S.E.2d 

506 (1999)] where the jury simply left two blanks without 

any number on them at all, the jury in this case inserted a zero 

on the lines designated on the verdict form for making an 

award to compensate the Respondents for pain and suffering 

and lost income. Whereas in Combs there was uncertainty 

that remained following the dismissal of the jury due to the 

incompleteness of the verdict form, in the case sub judice 

there was no confusion as to what the jury intended to award. 

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Valley Radiology, 220 W.Va. at 77, 640 S.E.2d at 140. We likewise made a similar 

distinction in Marsch v. American Electric Power Co., 207 W.Va. 174, 179-80 n.6, 530 

S.E.2d 173, 178-79 n.6 (1999), wherein we observed, again contrasting Combs, that 

[t]he defect in Combs was the jury’s failure to place any 

dollar amount on the verdict form for general damages. In 

the present case, a zero was placed on the appropriate lines 

for the jury’s determination of damages, [therefore] . . . their 

precise challenge on appeal is neither to the verdict form nor 

any inconsistency of the jury verdict. Rather, their challenge 

is to the inadequacy of the damages awarded by the jury, 

which requires no trial objection to preserve the issue for 

appellate review. In its allegations of waiver, Ohio Power 

blurs the lines between three distinct issues: defective verdict 

forms, inconsistency of the verdict, and inadequacy of the 

damages. 

Id. at 179-80 n.6, 530 S.E.2d at 178-79 n.6 (emphasis added). The majority confuses the 

exact same issues, using the wrong analysis to reach a similarly wrong result. 

Turning now to the actual substance of the petitioner’s appeal, the 

petitioner maintains that she made a “tactical decision” not to introduce medical bills as 

the result of a “popular” trend to relent on seeking recovery of medical expenses where 

those costs are disproportionately small compared to the “severity” of the injury. The 

petitioner cites a “plaintiff’s attorney” guide on damages in support of this trial strategy. 

However, this misguided tactic was previously met with similar results. In Adkins v. 

Foster, 195 W.Va. 566, 466 S.E.2d 417 (1995),1 the appellant introduced no out-ofpocket expenses for past medical treatment or lost wages, and the jury returned a verdict 

of $0. In discussing the jury’s verdict, we observed that the trial court had astutely noted: 

. . . I think one of the problems the plaintiff had in this case 

was that the plaintiff made no claim for any out-of-pocket 

expenses and no claim for any lost wages which would set the 

stage for this jury to see that there’s some—something of a 

loss. 

It was all dealing with future losses, and I just thought that 

that was—had some way to maybe create a mind-set for the 

1

The jury had originally awarded approximately $222,000.00 in damages; this verdict 

was appealed and we remanded for a new trial for reasons not relevant to the issues 

presented herein. 

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jury. There were no claims for—as I said, doctor bills, or 

hospital bills, or prescription bills, or any other out-of-pocket 

expenses or lost wages, and I think that is a problem in how 

the case was presented. 

Id. at 570, 466 S.E.2d at 421. This Court further observed that “the appellant, for 

whatever reason, did not adduce evidence of the cost of any treatment indisputably 

related to the injury of which the appellant complained.” Id. at 571, 466 S.E.2d at 422. 

Commenting further, we stated that “it appears that all of the damages evidence adduced 

by the appellant was controverted by the appellees to some extent, either as to its relation 

to this injury or otherwise.” In rejecting the claim that the verdict was inadequate, this 

Court found: 

In the present case, as previously indicated, the appellant 

introduced no evidence of actual doctor or hospital bills, or 

prescription bills, or any other out-of-pocket expenses or lost 

wages. If she had introduced such evidence, and if it were 

reliable, this Court would be compelled to conclude that she 

was entitled to a new trial on damages . . . . However, given 

the evidence adduced, viewed in the light most favorable to 

the defendant, we cannot say that the jury was compelled to 

return a verdict awarding damages to the appellant. 

Id. at 572, 466 S.E.2d at 423 (emphasis added). Like the Court in Adkins, I suspect the 

jury may have found the absence of any evidence concerning the petitioner’s medical 

bills or lost wages was a reflection on the credibility of her injury. This lack of evidence, 

along with the respondent’s vigorous challenge to the petitioner’s personal credibility, 

pre-existing conditions, and subsequent injury that occurred one month after the vehicle 

accident, easily explains the jury’s conspicuous conclusion that the petitioner was not 

injured to an extent that warranted a monetary recovery. 

The petitioner’s tactical miscalculations aside, the majority’s willingness to 

reward these miscalculations by disregarding virtually identical cases where this Court 

upheld the refusal to award general damages is astonishing. First, I note the litany of 

syllabus points firmly instructing this Court not to interfere with jury awards for pain and 

suffering, unless it can discern some patent error: 

Compensation for pain and suffering is an indefinite and 

unliquidated item of damages, and there is no rule or measure 

upon which it can be based. The amount of compensation for 

such injuries is left to the sound discretion of the jury, and 

there is no authority for a court to substitute its opinion for 

that of the jury. A mere difference in opinion between the 

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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). Nor 

can a mere difference of opinion on how the evidence could have or should have been 

viewed support overturning the jury’s verdict: “We will not find a jury verdict to be 

inadequate unless it is a sum so low that under the facts of the case reasonable men 

cannot differ about its inadequacy.” Syl. Pt. 2, Fullmer v. Swift Energy Co., Inc., 185 

W.Va. 45, 404 S.E.2d 534 (1991) (emphasis added). 

Second, this Court has made clear that these admonitions are even more 

imperative where, as here, the evidence on this issue is indisputably in conflict: “‘It is the 

peculiar and exclusive province of the jury to weigh the evidence and to resolve questions 

of fact when the testimony is conflicting.’ Point 3, Syllabus, Long v. City of Weirton, W. 

Va., (1975) [158 W.Va. 741,] 214 S.E.2d 832.” Syl. Pt. 2, Bourne v. Mooney, 163 W.Va. 

144, 254 S.E.2d 819 (1979); see also Syl. Pt. 4, Wager v. Sine, 157 W.Va. 391, 201 

S.E.2d 260 (1973) (“‘It is the peculiar and exclusive province of the jury to weigh the 

evidence and to resolve questions of fact when the testimony of witnesses regarding them 

is conflicting and the finding of the jury on such facts will not ordinarily be disturbed by 

this Court.’ Point 2 Syllabus, Graham v. Crist, 146 W.Va. 156, (118 S.E.2d 640.)”); Syl. 

Pt. 2, Walker v. Monongahela Power Co., 147 W.Va. 825, 131 S.E.2d 736 (1963) 

(“‘When a case involving conflicting testimony and circumstances has been fairly tried, 

under proper instructions, the verdict of the jury will not be set aside unless plainly 

contrary to the weight of the evidence or without sufficient evidence to support it.’ Point 

4, Syllabus, Laslo v. Griffith, 143 W.Va. 469, 102 S.E.2d 894.”). Further, in addressing 

this conflicting evidence, we are bound to view the conflict in the light most favorable to 

the defendant: “In an appeal from an allegedly inadequate damage award, the evidence 

concerning damages is to be viewed most strongly in favor of the defendant.” Syl. Pt. 1, 

Kaiser v. Hensley, 173 W.Va. 548, 318 S.E.2d 598 (1983). 

This Court has found these directives so clear that it has twice upheld 

verdicts containing no pain and suffering award in decisions that are virtually identical. 

In Marsch, 207 W.Va. 174, 530 S.E.2d 173, the jury awarded special damages, but no 

general damages for pain and suffering or loss of enjoyment of life. The plaintiff, like the 

petitioner herein, argued before this Court that he “presented adequate testimony of some 

degree of pain and suffering incurred during the fall and that the jury verdict must be set 

aside.” Id. at 182, 530 S.E.2d at 181. Similar to the case at bar, the defendant introduced 

evidence “tending to discount the existence of pain and suffering and indicating that the 

shoulder pain was due to a preexisting shoulder injury and the subsequent shoulder injury 

which occurred at home.” Id. at 182, 530 S.E.2d at 181. In upholding the jury’s verdict, 

this Court stated: 

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This Court has a responsibility to refrain from substituting its 

own judgment for that of the jury regarding the pain and 

suffering damages. We find that the absence of pain and 

suffering damages was supported by the evidence. The jury 

was presented with conflicting evidence, and some degree of 

difficulty was therefore encountered in separating the causes 

of any pain and suffering endured by the Appellant. As the 

Supreme Court of Illinois succinctly expressed in Snover v. 

McGraw, 172 Ill.2d 438, 217 Ill. Dec. 734, 667 N.E.2d 1310 

(1996), a jury may award pain-related medical expenses and 

may simultaneously determine that evidence of pain and 

suffering was insufficient to support a monetary award. 

Marsch, 207 W.Va. at 182-83, 530 S.E.2d at 181-82 (emphasis added). Similarly, in Big 

Lots Stores, Inc. v. Arbogast, 228 W.Va. 616, 723 S.E.2d 846 (2012), the plaintiff was 

awarded special damages, but nothing for pain and suffering. As we observed, “[o]f 

importance to our examination in Marsch was the fact that, just as in this case, the 

plaintiff’s preexisting and subsequent injuries may have made it difficult for the jury to 

distill the amount of pain and suffering specifically attributable to the subject injury.” 

Big Lots, 228 W.Va. at 620, 723 S.E.2d at 850. In upholding the verdict, this Court noted 

the jury heard testimony “challenging [plaintiff’s] credibility” concerning her pain and 

suffering and testimony suggesting her pre-existing and subsequent injuries were to 

blame for her pain. Id. 

The petitioner argues that the jury heard uncontroverted evidence that she 

sustained “some” injury as a result of the vehicle accident and had endured pain and 

suffering, and that the jury specifically found she had sustained an injury. However, as 

demonstrated in the cases above, merely sustaining an injury does not necessarily entitle 

a plaintiff to an award of damages for pain and suffering. Certainly, in both Marsch and 

Big Lots, the jury found an injury and awarded special damages, but no general damages. 

Nevertheless, in those cases, this Court found that our unmistakable jurisprudence 

precluded it from interfering with the jury verdict where there was conflicting evidence 

regarding the nature and extent of an injury compelled it to uphold these verdicts. The 

conflict in the evidence in Marsch and Big Lots is identical to the conflict presented in 

the case sub judice, i.e., the existence of pre-existing conditions and a subsequent injury, 

along with testimony challenging the petitioner’s credibility concerning her injury. As 

observed in Marsch, a jury may “‘determine that evidence of pain and suffering [is] 

insufficient to support a monetary award.’” 207 W.Va. at 182, 530 S.E.2d at 181 

(quoting Snover v. McGraw, 667 N.E.2d 1310, 1315 (Ill. 1996)); see also Hinson v. King, 

603 So.2d 1104 (Ala. Civ. App. 1992) (awarding past medical expenses, but not damages 

for pain and suffering, future medical expenses, and wages, was permissible); Randles v. 

Lowry, 84 Cal. Rptr. 321, 324 (Cal. Ct. App. 1970) (“[A]n award for the exact amount of, 

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or even less than, the medical expenses is not necessarily inadequate if there is a conflict 

as to whether the plaintiff suffered any substantial injury or pain.”); Symon v. Burger, 528 

N.E.2d 850, 852 (Ind. Ct. App. 1988) (“When a jury awards a personal injury plaintiff the 

exact amount, or approximately the exact amount, of his or her claimed medical expenses 

and other special damages but makes no allowance for pain and suffering, the verdict is 

not necessarily improper or irregular[.]”); Miller v. Swift, 42 S.W.3d 599, 603 (Ky. 2001) 

(upholding jury’s refusal to award pain and suffering damages where “the jury made a 

conscious decision to award nothing,” noting “[t]he civil justice system uses juries to 

decide exactly these types of factual disputes”); Hunter v. Sorensen, 266 N.W.2d 529, 

533 (Neb. 1978) (“The evidence on the cause, nature, and extent of plaintiff’s injury was 

conflicting . . . . [and] [t]he jury could reasonably have concluded that plaintiff 

experienced no pain and suffering, or if he did, that it was de minimis.”); Wheeler v. 

Huston, 605 P.2d 1339, 1345 (Ore. 1980) (“[T]he jury may conclude that the plaintiff 

suffered no general damages . . . . Such verdicts are valid and include cases in which (a) 

the plaintiff’s evidence of injury is subjective, (b) there is evidence that the plaintiff’s 

injuries for which general damages are claimed were not caused by the accident, and (c) 

the objective evidence of a substantial injury sustained by plaintiff is controverted by 

other competent evidence, or could be disbelieved by the trier of fact.”); Catalano v. 

Bujak, 642 A.2d 448, 451 (Pa. 1994) (“It would appear that the jury simply disbelieved 

evidence of damages in excess of what it awarded. It is not for any reviewing court to 

dictate what evidence a jury must believe.”). 

Nonetheless, the petitioner herein clings desperately to Kaiser v. Hensley, 

173 W.Va. 548, 318 S.E.2d 598 (1983), wherein this Court held that a verdict is 

inadequate where it does not include “elements of damage which are specifically proved 

in uncontroverted amounts and a substantial amount as compensation for injuries.” 173 

W.Va. at 549, 318 S.E.2d at 599, syl. pt. 3, in part (emphasis added). However, as noted 

above, the petitioner’s pain and suffering was in no way “uncontroverted.” In fact, it is 

clear that the entire reason the case was submitted to a jury was because the nature and 

extent of the petitioner’s injury was controverted; it was, in fact, the exclusive focus of 

the trial. The petitioner claimed she was injured, whereas the respondent contended the 

petitioner’s complaints were the result of pre-existing conditions, a subsequent injury, 

and were–on the whole–not credible. The parties’ attorneys implored the jury in their 

opening statements and closing arguments to assess the evidence and determine the 

nature and extent of the petitioner’s injury, as there was literally nothing else in dispute. 

More importantly, unlike special damages, which are capable of 

calculation, pain and suffering can never be an “uncontroverted amount.” Indeed, the 

“amounts” awarded for such damages lie solely within the discretion and judgment of the 

jury. As this Court has recognized, 

“[t]he reason for holding parties so tenaciously to the 

damages found by the jury in personal torts is that in cases of 

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this class there is no scale by which the damages are to be 

graduated with certainty. They admit of no other test than the 

intelligence of a jury governed by a sense of justice.” 

Williams v. Penn Line Serv., Inc., 147 W.Va. 195, 204, 126 S.E.2d 384, 389 (1962) 

(quoting Eby v. Wilson, 289 S.W. 639, 645 (1926)). Accordingly, Kaiser provides the 

petitioner with no relief. 

Despite its inapplicability to the instant case, I would be remiss if I did not 

take the opportunity to examine further syllabus point three of Kaiser. Even on its face, 

this syllabus point is suspect. As noted above, this syllabus point purports to require a 

“substantial amount” as compensation for injury, lest the verdict be deemed inadequate. 

Why or on what basis this Court would propose to require a “substantial amount” as 

compensation for “injuries” is incomprehensible. Some injuries frankly do not warrant a 

“substantial amount”; moreover, some “injuries” may be so inconsequential as to not 

warrant monetary compensation at all. This curious proposition warrants closer review. 

Kaiser cites Hall v. Groves, 151 W.Va. 449, 153 S.E.2d 165 (1967), and 

King v. Bittinger, 160 W.Va. 129, 231 S.E.2d 239, 243 (1976), as authority for this 

syllabus point. However, neither of these cases hold that any injury requires a 

“substantial amount as compensation.” Rather, they require that permanent injuries 

require a substantial amount as compensation. As reflected in syllabus point two of Hall, 

“[w]hen in an action for the recovery of damages for personal injuries the verdict . . . 

does not award a substantial amount as compensation for permanent injuries to the 

plaintiff . . . such verdict is wholly inadequate . . . .” 151 W.Va. at 449, 153 S.E.2d 166, 

syl. pt. 2, in part (emphasis added); see also Syl. Pt. 4, King, 160 W.Va. 129, 231 S.E.2d 

239 (same). Therefore, upon careful inspection, it becomes clear that the requirement for 

a “substantial amount” as compensation applies only to permanent injuries and that 

Kaiser badly misstates the law upon which it purportedly relies, eliminating the word 

“permanent” so as to change these holdings entirely and rendering Kaiser the curiosity it 

is today. 

This Court has wisely stated that “[i] is [] true that there is no market price 

or monetary equivalent for pain and suffering or for injuries of a nonpermanent nature, 

and [] a jury award for these will generally not be disturbed because of the small amount 

awarded.” Keiffer v. Queen, 155 W.Va. 868, 873-74, 189 S.E.2d 842, 845 (1972). 

Nearly forty years later, in Manor Care, Inc. v. Douglas, 234 W.Va. 57, 102, 763 S.E.2d 

73, 118 (2014) (Loughry, J., dissenting), I echoed these sentiments and cautioned that 

“[i]t is not for this Court to sit as a super-jury and reductively carve damage awards in the 

process of attempting to whittle away legal error.” Likewise, it is not for this Court to “sit 

as a super-jury” and enhance damage awards or grant new trials due to perceived 

“inadequate” verdicts simply because the majority disagrees with the jury’s assessment of 

the credibility of the witnesses and quality of evidence presented. “The sole measure of 

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damages for pain and suffering is the enlightened conscience of fair and impartial jurors.” 

Atlanta Transit System v. Robinson, 213 S.E.2d 547 (Ga. App. 1975). The majority’s 

continued refusal to respect the sanctity and considerable discretion of the jury is very 

troubling. However, the majority’s attempt to twist the petitioner’s argument into 

something which it (mistakenly) believes provides a more direct route to relief is simply 

inexplicable. 

Accordingly, I respectfully dissent. 

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