Present: All the Justices 

VELOCITY EXPRESS MID-ATLANTIC, INC. 

OPINION BY CHIEF JUSTICE LEROY R. HASSELL, SR. 

 September 12, 2003 

v. Record No. 022877 

BRIAN F. HUGEN 

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH 

Von L. Piersall, Jr., Judge 

I. 

 In this appeal, the primary issue that we consider is 

whether the plaintiff's closing argument to the jury deprived 

the defendant of its right to a fair and impartial trial. 

II. 

 Plaintiff, Brian F. Hugen, was seriously injured in an 

automobile accident on August 28, 2000. The accident occurred 

around 7:00 a.m. on State Route 32 in the City of Suffolk. 

Route 32 is a two lane highway that extends in northern and 

southern directions. The speed limit is 55 miles per hour. 

 Michael T. Ross was driving a car in the northern lane of 

travel. Plaintiff was driving his car in the same direction 

behind Ross' vehicle. Ross observed a white van approaching 

from the opposite direction. Defendant, Velocity Express MidAtlantic, owned the white van which was operated by its 

employee, Alvin J. Winston. The van "drift[ed] over" into 

Ross' lane of travel. Trying to avoid a collision, Ross 
steered his car "all the way to the shoulder of the road," and 

defendant's van "sideswipe[d]" Ross' car. Defendant's van 

then collided with plaintiff's car in plaintiff's lane of 

travel. 

 After the accident occurred, Winston told defendant's 

safety director: "I don't know what happened. Besides me, 

there were two other vehicles. The next thing I remember was 

when we got side to side of each other, I heard a mirror go 

off the van. Then when I went swerving, when I swerved in the 

wrong lane and hit another car and I tried to hit the brakes 

and tried to get over, somehow the van wouldn't get over. And 

then the van hit on the other car driving straight down the 

lane, other car going the other way." Winston told a police 

officer at the scene of the accident that Winston "never saw 

the first vehicle that he collided with." 

 As a result of the accident, plaintiff sustained 

catastrophic injuries, and he suffered permanent physical and 

mental disabilities. Plaintiff was in a coma for 62 days 

following the accident. He suffered a compression fracture of 

the thoracic vertebrae, a broken femur, a fractured hip, 

multiple fractures to his right ankle, collapsed lungs, and 

severe brain injuries. He experienced multi-system organ 

dysfunction, acute renal failure, multiple incidents of deep 

venous thromboses, and pneumonia. He has developed a rare 

2
condition known as heterotopic ossification, which causes 

abnormal new bone formations and ultimately will cause his 

joints to fuse together, thereby preventing him from moving 

his body. The severe stiffness in the joints caused by the 

heterotopic ossification has almost completely restricted 

plaintiff's use of his arms, hips, legs, and knees. 

Eventually, plaintiff will have a total ankylosis or "frozen 

jaw" that will prohibit him from opening his mouth, and his 

jaw will become "permanently locked." Plaintiff will lose all 

his teeth, and he will have to be fed through the insertion of 

a surgically-implanted tube into his stomach. 

 Plaintiff's brain injuries have impaired his memory, 

attention span, and abilities to concentrate, understand, and 

follow instructions. He ranks in the bottom five percent of 

the population in terms of his mental functions. As a result 

of his brain injuries, plaintiff eats excessive quantities of 

food because he is unable to discern when he is full. 

Consequently, plaintiff, who weighed approximately 175 pounds 

before the accident, now weighs 282 pounds. His weight 

impairs his ability to breathe, adversely affects his heart, 

and increases the risk of further blood clots. 

 During a jury trial, plaintiff and defendant relied upon 

expert witness testimony to establish life care plans that 

plaintiff will require because of his dire medical condition. 

3
Plaintiff's expert witnesses testified that plaintiff will 

need the services of a licensed practical nurse 24 hours each 

day for the remainder of his life. Robert D. Voogt, one of 

plaintiff's expert witnesses, testified that plaintiff needs 

the assistance of a licensed practical nurse because this type 

of nurse can provide the appropriate nursing care that 

plaintiff currently requires and will require in the future. 

Defendant's expert witness, Robert H. Taylor, testified that a 

certified nursing aide, who has less training and is less 

expensive than a licensed practical nurse, can provide the 24- 

hour daily care that plaintiff needs. Taylor testified that a 

certified nursing aide would cost approximately $96,360 per 

year, which, when added to the other costs, resulted in a life 

care plan that will cost $4,123,193.50. Plaintiff presented 

evidence, however, that a licensed practical nurse would cost 

$425,955 per year, which, when added to other costs, resulted 

in a life care plan that cost $17,091,000. 

 The jury returned a verdict in favor of plaintiff in the 

amount of $60,000,000. The circuit court entered a judgment 

confirming the verdict and defendant appeals. 

III. 

 Defendant asserts that the trial court erred in failing 

to instruct the jury on the defense of sudden emergency. 

Defendant claims that the van operated by its employee, 

4
Winston, was forced into plaintiff's lane of travel when Ross' 

car collided with defendant's van. We disagree with 

defendant. 

 The sudden emergency doctrine relieves a person of 

liability if, without prior negligence on his part, that 

person is confronted with a sudden emergency and acts as an 

ordinarily prudent person would act under the circumstances. 

See, e.g., Jones v. Ford Motor Co., 263 Va. 237, 262, 559 

S.E.2d 592, 605 (2002); Bentley v. Felts, 248 Va. 117, 120, 

445 S.E.2d 131, 133 (1994); Carolina Coach Co. v. Starchia, 

219 Va. 135, 141, 244 S.E.2d 788, 792 (1978); Pickett v. 

Cooper, 202 Va. 60, 63, 116 S.E.2d 48, 51 (1960); Southern 

Passenger Motor Lines, Inc. v. Burks, 187 Va. 53, 60, 46 

S.E.2d 26, 30 (1948). 

 Additionally, we have stated: 

 "Ordinarily the question of application of the 

sudden emergency doctrine is for the triers of fact. 

When evidence is conflicting or different inferences 

may be drawn from the evidence, it is for the jury 

to say (1) whether [the operator of the automobile] 

was confronted with an emergency; (2) whether the 

emergency, if one existed, was created by [the 

operator's] own negligence; and (3) whether [the 

operator of the vehicle] conducted himself as an 

ordinarily prudent person might have done under the 

same or similar circumstances." 

Cowles v. Zahn, 206 Va. 743, 746-47, 146 S.E.2d 200, 203 

(1966); accord Ford Motor Co., 263 Va. at 262, 559 S.E.2d at 

605; Starchia, 219 Va. at 141, 244 S.E.2d at 792. 

5
 In the present case, the circuit court correctly 

concluded that defendant was not entitled to a jury 

instruction on the sudden emergency doctrine. The accident 

was caused by the negligence of defendant's own employee. For 

example, Ross, the driver of the car that collided with 

defendant's van before that van collided with plaintiff's car, 

testified as follows: 

 "Q: Okay. Now, in your own words tell the 

members of the jury what happened from the time you 

observed the van. 

 "A: Well, from the time I observed the van I 

noticed that [Velocity's van] was kind of drifting 

over to my lane. And I went over to the shoulder to 

try to avoid a collision, and it never worked. You 

know, he got far enough over where he hit me, and I 

went off the road, lost control. 

. . . . 

 "Q: How much of the van came into your lane, 

from your observation? 

 "A: From my observation I would say over 

half." 

And, contrary to defendant's assertions, the evidence of 

record clearly demonstrates that the accident occurred in the 

lane of travel occupied by Ross and plaintiff. Simply stated, 

a sudden emergency did not exist. 

IV. 

A. 

6
 Plaintiff's counsel made the following remarks during his 

closing argument to the jury: 

 "The physical pain and mental anguish 

[plaintiff] suffered in the past and any that he may 

reasonably be expected to suffer in the future. We 

men are a proud lot at times probably to our 

detriment on occasion and sometimes our pride gets 

in our way. It is inconceivable to me that a man 

who cared for himself, who cared for his family, who 

on his wedding day to help his wife took her to 

Williamsburg in lieu of a trip to the islands so 

that she could be near her mother who was seriously 

and mentally ill at that point in time, a man who 

has taken care of himself and his family all of his 

life, a man who is basically now reduced to a role 

reversal. That is what has happened here, a 

complete, unequivocal role reversal. 

 "He can't perform sexually. Can't imagine what 

that is like. He can't basically do anything for 

himself. If you sit there by yourself with your 

arms still seated in a chair and just don't move -

 "[COUNSEL FOR DEFENDANT]: Your Honor, I am 

going to object to that argument as being in 

violation of the golden rule, Your Honor. 

 "[COUNSEL FOR PLAINTIFF]: I will rephrase it 

to avoid any problem. 

 "THE COURT: You can't put the jury in that 

position. 

. . . . 

 "[COUNSEL FOR PLAINTIFF]: [Velocity Express] 

can't find a doctor. But they don't want a doctor. 

They want a miracle. Just like the happening of 

this accident. No amount of witnesses would satisfy 

Velocity Express. You could have four bishops on 

the side of the road watching what is going on and 

they still could claim somehow it wasn't their 

fault. 

7
 "Ladies and gentlemen, it is all well and good 

that Corporate America balances the books and tries 

to make a profit. That is the American way, isn't 

it? But you cannot balance the books on the backs 

of the injured. You can't take a little man like 

this, injure him horribly, and then try to save 

money by a cheap life care plan. 

 "This guy Taylor they bring down here even - he 

can't fuss with the fact that Brian [Hugen] needs 

somebody 24 hours a day. Yet, what he wants to do 

is he doesn't want to give him a nurse. He wants to 

give him an aide. But he has to concede that the 

aide, which costs about [$]100,000 - the numbers are 

here somewhere - a year, if they gave him the nurse, 

the nurse would cost 394-. So what have you got? 

$500,000 a year. That would be the two combined. So 

that would save $400,000 a year that Velocity itself 

says would have to be spent. 

"Well, let me ask you all something. Suppose 

money were no object in this case and we didn't have 

Brian Hugen here. Let's say we have a man - a 

wealthy man, a man of means who could afford 

whatever he wants to. Suppose this had happened to 

them, Howard Hughes, Bill Gates, somebody like that. 

Suppose they were laying up in the condition Brian 

[Hugen] was. Do you think they would have one 

little aide? You don't think they wouldn't have an 

aide, a nurse, and whatever else it took to make 

their life as good as it possibly could?

 "[COUNSEL FOR DEFENDANT]: Your Honor, I am 

going to object to this argument, as well. It is 

improper. The plaintiff in the case is Brian Hugen. 

It is not Bill Gates. It is not anyone else. It is 

improper argument. There has been no evidence about 

what those individuals would expect, not even a 

reasonable inference.

 "THE COURT: Overruled.

 "[COUNSEL FOR PLAINTIFF]: So we get the 

discount plan. We are going to balance the books. 

So who is the economic well spring here? Who is 

providing Velocity Express with this big savings? I 

don't see her here in the courtroom. Her name is 

8
Florence Hugen. So you forgive me if I am a bit 

sarcastic, but Mr. Taylor's plan, I don't call that 

the Taylor plan[,] I call that the Flo plan because 

they are going to have Flo do everything that the 

nurse is supposed to do. 

 "Now, they give an aide in there. And I don't 

know a lot about aides but let me ask you something. 

Suppose something goes south for Brian? Who would 

you want in the house? And I am not talking about 

giving pills. Because Mr. Train wants you to 

believe that the only thing the nurse would do is 

give pills. Let me ask you. Suppose your husband 

were choking to death and he couldn't open his 

mouth? Do you want an aide trying to get your 

husband's throat clear or would you like to have a 

nurse - 

 "[COUNSEL FOR DEFENDANT]: Again, Your Honor. 

 "[COUNSEL FOR PLAINTIFF]: - while you're at 

work? 

 "THE COURT: I think it is not appropriate to 

ask the jurors to put themselves in the place of the 

party. 

 "[COUNSEL FOR PLAINTIFF]: And I apologize. If 

you can imagine you're responsible for a person. 

Don't imagine your family members. That was an 

improper question. And I perhaps in my enthusiasm 

or whatever you want to call it I misspoke. I do 

apologize to you. And Mr. Train's objection is well 

taken. I apologize, Mr. Train, and Velocity. But 

if you were responsible for someone, who would you 

want there? 

 "[COUNSEL FOR DEFENDANT]: Same objection, Your 

Honor. It is the same - I mean, you can't appeal to 

the jury. You can't place the jury - 

 "[COUNSEL FOR PLAINTIFF]: The idea of 

responsibility, Your Honor. 

 "THE COURT: I hate to interrupt the party when 

they are making their closing argument. 

9
 "[COUNSEL FOR DEFENDANT]: I do, too. 

 "THE COURT: The jurors shouldn't be asked to 

be put in the place of the parties. 

 "[COUNSEL FOR PLAINTIFF]: You know, [Dr.] 

Kreutzer's plan that he did for Brian, that is no 

Cadillac plan. I mean, you are not talking about a 

registered nurse. You are just talking about a 

licensed practical nurse. He doesn't have any money 

folded in for contingencies. I mean, there is not a 

nickel in there for any of that. I mean, it is not 

-- it is not some fluffed-up plan like the defense 

would have you believe. It is just basically what 

is needed. 

 "If, for example, if - suppose an individual 

were charged with the care of someone's, let's say, 

child or something like, this an eight-year-old 

child. And you had to pick an attendant for that 

child at the home while you were away. If the 

attendant was not qualified - and I am - I am 

talking about a child who can go to the kitchen to 

make a sandwich, go [to] the bathroom, run out of 

the house if there is a fire, things Brian can't do. 

If something happened to that child and you were 

responsible for selecting the attendant, social 

services would be coming all out the woodwork on top 

of you. And that is a big - 

 "[COUNSEL FOR DEFENDANT]: Your Honor, I 

object. I try not to interrupt, as well. But he 

keeps arguing if you are talking to the jury. 

 "THE COURT: I think in that case it was not 

[in]appropriate. I will overrule it." 

(Emphasis added). 

 At the conclusion of the plaintiff's argument to the 

jury, counsel for the defendant made a motion for a mistrial 

based upon plaintiff's cumulative improper and prejudicial 

arguments to the jury. The court denied the motion. 

10
B. 

 Defendant argues that the circuit court erred in denying 

the motion for a mistrial. Defendant contends that the 

circuit court erroneously overruled defendant's objections to 

plaintiff's references in closing argument to Howard Hughes 

and Bill Gates. Defendant also contends that plaintiff 

improperly and repeatedly requested that the jury place itself 

in plaintiff's position, thus wrongly invoking the "Golden 

Rule" despite the court's repeated instructions to counsel not 

to do so. 

 Responding, plaintiff asserts that the circuit court 

correctly denied defendant's motion for a mistrial. Plaintiff 

alleges that his references to Howard Hughes and Bill Gates 

were permissible to illustrate that "defendant's life care 

plan focused on cutting costs and not the plaintiff's medical 

needs." Plaintiff claims that his closing argument regarding 

the need for a licensed practical nurse did not improperly 

invoke the "Golden Rule." We disagree with plaintiff. 

 The principles we apply when considering whether a 

circuit court erred in denying a mistrial based on statements 

made by counsel in closing argument are well established. 

Generally, a new trial is not required if the circuit court 

sustains an objection to improper argument and instructs the 

jury to disregard the improper argument. However, if "counsel 

11
persists in such argument after the admonition of the court, 

or if it appears that the [prejudicial] influence of the 

argument was probably not wholly removed by the court's 

action" a new trial may be appropriate. Maxey v. Hubble, 238 

Va. 607, 614-15, 385 S.E.2d 593, 596 (1989) (quoting Rinehart 

& Dennis Co. v. Brown, 137 Va. 670, 676, 120 S.E. 269, 271 

(1923)); Kitze v. Commonwealth, 246 Va. 283, 288, 435 S.E.2d 

583, 585 (1993); Norfolk Southern Railway Co. v. Harris, 190 

Va. 966, 975, 59 S.E.2d 110, 114 (1950). If the objection to 

the alleged improper argument is not sustained by the circuit 

court, a new trial is appropriate if that court erred in 

overruling the objection and that error resulted in prejudice 

to the complaining party. Reid v. Baumgardner, 217 Va. 769, 

775, 232 S.E.2d 778, 781 (1977); McLane v. Commonwealth, 202 

Va. 197, 205, 116 S.E.2d 274, 280-81 (1960). The closing 

argument in this case includes argument to which objections 

were sustained and argument to which an objection was 

overruled. 

 We will first consider whether the circuit court erred in 

overruling defendant's objection to plaintiff's closing 

argument that, in effect, suggested to the jury that it award 

plaintiff damages that would permit him to procure the 

services of a licensed practical nurse because wealthy persons 

such as Howard Hughes or Bill Gates would procure the services 

12
of a licensed practical nurse if they had incurred plaintiff's 

injuries. 

 In Atlantic Coast Realty Co. v. Robertson's Ex'r, 135 Va. 

247, 263, 116 S.E. 476, 481 (1923), we discussed the wide 

latitude accorded lawyers during closing argument: 

"[An attorney] must be just to opposing litigants 

and witnesses and always respect their rights. His 

liberties in argument are large but they are not 

unlimited. He has no right to testify in argument 

nor to assume that there is evidence which has no 

existence, nor to urge a decision which is favorable 

to his client by arousing sympathy, exciting 

prejudice, or upon any ground which is illegal. 

Sometimes the impropriety is so serious in character 

that its evil effect cannot be corrected by the 

trial judge. If this ethical rule . . . is not 

sufficient to control those who fail to observe it, 

the courts, however reluctant they may be to limit 

the freedom of discussion, or to penalize a litigant 

for the transgression of his attorney, will be 

forced to curb this growing evil." 

 We stated, almost 100 years ago, that counsel in closing 

argument must not appeal to the economic fears and passions of 

a jury and that such argument constitutes reversible error. 

Southern Ry. Co. v. Simmons, 105 Va. 651, 666-67, 55 S.E. 459, 

464 (1906). In Simmons, counsel for the defendant, in closing 

argument, 

"expressed the fear that the railroad employees who 

had testified against the company would lose their 

places, although there was no evidence on this 

point; that counsel for the railroad company rode in 

private and palace cars when they came to court, 

although there was no evidence on this point; that 

the mind could not grasp the extent of the resources 

and possessions of the Southern Railway Company, 

13
while [the plaintiff] was a poor man with nobody but 

his wife and child, and with no one to help him but 

his wife; that the treasury of the railway company 

was so exhaustless that it would hardly feel the 

loss of $50,000, the amount claimed in the 

declaration; and that in estimating damages [the 

jury] should take into consideration the fact that 

exceptions had been taken by the defendant, and that 

it had been stated that if the verdict was against 

it, it would appeal." 

Id. at 665-66, 55 S.E. at 464. We concluded that "[s]uch a 

line of argument, if proper objection be made to it at the 

proper time and the trial court fails to take proper steps to 

correct its ill tendencies, will constitute a sufficient 

ground for reversing a judgment rendered upon a verdict thus 

obtained." Id. at 666-67, 55 S.E. at 464. 

 In Baumgardner, counsel for the defendant objected to the 

plaintiff's improper jury argument that asked a jury to award 

a verdict that included as damages $1,000 for each of the 

plaintiff's 28.7 years of life expectancy as established by an 

annuity table. The circuit court overruled the objection. 

Reversing the judgment of the circuit court, we held: 

 "The decision of the trial court as to the 

method by which to remove the prejudicial effect of 

improper argument is within its sound discretion, 

and an admonition to the jury to disregard such 

argument is generally deemed to have been sufficient 

and not to have been an abuse of the trial court's 

discretion. . . . However, if the trial court 

refuses to take any corrective action to eliminate 

the adverse effect on the jury of improper argument, 

the probability of prejudice is increased by the 

apparent approval given by the court to the 

argument." 

14
217 Va. at 774, 232 S.E.2d at 781. 

 Applying our well-established precedent, we hold that the 

circuit court erred in failing to grant the defendant's motion 

for a mistrial. As we have already stated, plaintiff's 

counsel made the following argument to the jury: 

"Suppose money were no object in this case and we 

didn't have Brian Hugen here. Let's say we have a 

man - a wealthy man, a man of means who could afford 

whatever he wants to. Suppose this had happened to 

them, Howard Hughes, Bill Gates, somebody like that. 

Suppose they were laying up in the condition Brian 

was. Do you think they would have one little aide? 

You don't think they wouldn't have an aide, a nurse, 

and whatever else it took to make their life as good 

as it possibly could?" 

 Defendant timely objected to this argument, and the 

circuit court overruled the objection. This argument was 

improper because plaintiff's counsel asked the jury to award 

damages based upon irrelevant economic considerations that are 

not part of the record in this case. The above-referenced 

portion of plaintiff's closing argument asked the jury to 

award damages to the plaintiff so that he could afford the 

same quality of medical care and treatment that the world's 

richest individuals might purchase for themselves. The law of 

this Commonwealth, however, only requires that a jury award 

plaintiff compensatory damages that will fairly compensate him 

for his injuries proximately caused by defendant's negligence. 

15
 The probable prejudicial impact of this argument is 

significant because the improper argument focused on the 

central dispute regarding damages in this case. As we have 

already stated, the defendant presented evidence that the 

plaintiff only required the services of a certified nursing 

aide who would cost approximately $96,360 per year, which, 

when added to other related costs, resulted in a life care 

plan that totaled $4,123,193.50. In direct conflict, however, 

plaintiff presented evidence that he required the services of 

a licensed practical nurse who would cost $425,955 per year, 

which, when added to the rest of his medical plan, represented 

a total cost of $17,091,000. Plaintiff's improper jury 

argument was designed to influence the jury's decision 

regarding this choice. The circuit court refused to take any 

corrective action to eliminate the adverse prejudicial effect 

on the jury of plaintiff's improper argument. Based upon the 

record before this Court, we conclude that the probability of 

prejudice upon the jury was great and such prejudice was 

increased by the apparent approval given by the circuit court 

because of that court's refusal to take corrective action. 

 We also consider whether the circuit court erred by 

refusing to grant defendant's motion for a mistrial because 

plaintiff improperly and repeatedly requested that the jury 

place itself in plaintiff's position, thus, invoking the 

16
"Golden Rule" despite the court's repeated instructions to 

plaintiff's counsel that he not do so. 

 We have repeatedly held that counsel may not, in closing 

argument, invoke the so-called "Golden Rule." "The function 

of the jury is to decide according to the evidence, not 

according to how its members might wish to be treated." 

Seymour v. Richardson, 194 Va. 709, 715, 75 S.E.2d 77, 81 

(1953); accord P. Lorillard Co. v. Clay, 127 Va. 734, 752, 104 

S.E. 384, 390 (1920). See also Norfolk & W. Ry. Co. v. 

Keatley, 211 Va. 507, 511, 178 S.E.2d 516, 519 (1971); State 

Farm Mut. Auto. Ins. Co. v. Futrell, 209 Va. 266, 272-73, 163 

S.E.2d 181, 186 (1968); Phillips v. Fulghum, 203 Va. 543, 547-

49, 125 S.E.2d 835, 838-40 (1962); Cape Charles Flying Serv., 

Inc. v. Nottingham, 187 Va. 444, 455-56, 47 S.E.2d 540, 545-46 

(1948); Crosswhite v. Barnes, 139 Va. 471, 486-87, 124 S.E. 

242, 247 (1924). 

 In Rinehart & Dennis Co. v. Brown, 137 Va. 670, 676, 120 

S.E. 269, 271 (1923) (citing Washington & Old Dominion Ry. v. 

Ward, 119 Va. 334, 339, 89 S.E. 140, 142 (1916)), we stated: 

 "Generally a new trial will be denied [when] 

improper argument has been checked by the court and 

the jury has been instructed to disregard the 

improper statements. If, however, counsel persists 

in such argument after the admonition of the court, 

or if it appears that the unfavorable influence of 

the argument was probably not wholly removed by the 

court's action, a new trial may be allowed." 

17
 In Virginia Elec. & Power Co. v. Jayne, 151 Va. 694, 144 

S.E. 638 (1928), we reversed a judgment in favor of a 

plaintiff because his counsel continued to make improper 

argument in spite of the circuit court's admonitions. Counsel 

in Jayne stated to the jury: "How long will the defendant 

company shed its tears after this trial is over? Do you 

suppose its tear duct has been hurt any?" The circuit court 

directed the jury to disregard these remarks and, 

subsequently, counsel stated to the jury: "That is just a 

figure of speech. You know corporations haven't any tear 

ducts." The circuit court instructed the jury to disregard 

this remark as well. Id. at 703, 144 S.E. at 641. 

 We concluded that these remarks were improper and 

prejudicial, and we reversed the judgment that confirmed the 

jury's verdict. We stated: 

 "Litigants can have no just grounds for 

complaint if verdicts obtained under such 

circumstances are set aside. To require counsel to 

confine their discussions before the jury to the law 

and the evidence is no hardship, but is in 

furtherance of justice, and of the prompt 

disposition of controversies based upon the law and 

the evidence, subjected of course to any fair 

analysis or criticism, which the ingenuity of 

counsel may devise." 

Id. at 704, 144 S.E. at 641. 

 Applying the aforementioned principles, we must conclude 

that plaintiff's repeated requests to the jury that it apply 

18
the "Golden Rule" were prejudicial and constitute reversible 

error. As we have previously stated, plaintiff argued to the 

jury: "Suppose your husband were choking to death and he 

couldn't open his mouth? Do you want an aide trying to get 

your husband's throat clear or would you like to have a nurse 

. . . while you're at work?" The defendant objected, and the 

circuit court stated: "I think it is not appropriate to ask 

the jurors to put themselves in the place of the party." 

Plaintiff apologized, but immediately he argued to the jury: 

"But if you were responsible for someone, who would you want 

there?" The defendant objected, and the circuit court again 

responded: "The jurors shouldn't be asked to be put in the 

place of the parties." 

 Even though the circuit court properly sustained most of 

the objections, plaintiff's counsel continued to invoke the 

"Golden Rule" during closing argument. This argument was 

highly prejudicial because plaintiff repeatedly asked the 

jury, despite the circuit court's admonitions, to assess his 

damages in relation to how the jurors would want to be 

compensated personally had they been injured and sustained the 

same injuries that plaintiff had sustained. And, even though 

plaintiff's counsel acknowledged to the circuit court that his 

use of the "Golden Rule" was improper, he continued to engage 

in this prejudicial argument. Moreover, plaintiff's repeated 

19
use of the "Golden Rule" was also highly prejudicial because 

this argument was designed to influence the jury's decision 

whether to base its verdict upon plaintiff's proposed life 

care plan that cost $17,091,000 instead of defendant's life 

care plan for plaintiff that cost $4,123,193.50. 

C. 

 Generally, when a litigant makes a prejudicial closing 

argument to a jury in a non-bifurcated trial, the appropriate 

remedy is to award a new trial on all issues. In this case, 

however, the evidence overwhelmingly supports a finding of 

liability. Thus, we hold that the prejudice caused by the 

improper jury argument, which involved the conflicting 

evidence about plaintiff's future medical care, could not have 

affected the jury's findings of negligence. Therefore, a new 

trial on all issues is not appropriate. Because this case 

will be remanded for a new trial on damages, we must consider 

certain issues that probably will arise upon remand. 

V. 

 Defendant argues that the circuit court erred by refusing 

to permit defendant to introduce evidence of plaintiff's 

history of crack cocaine use, depression, and short-term 

memory loss one year before the accident. Continuing, 

defendant contends that the circuit court erred by refusing to 

permit defendant to cross-examine plaintiff's expert witnesses 

20
regarding plaintiff's "pre-accident use of crack cocaine and 

its effect on his post-accident condition" and plaintiff's 

"pre-accident bouts of depression and [their] relationship to 

his post-accident claims for depression." 

 During the trial, plaintiff sought damages for cognitive 

and emotional injuries he sustained as a result of the 

accident, including memory loss and depression. Dr. William 

M. Bethea described plaintiff's emotional instability and 

depressive condition. Dr. Bethea also testified that 

plaintiff suffered from short-term memory loss. Dr. Jeffrey 

S. Kreutzer, a neuropsychologist, described plaintiff's range 

of post-accident cognitive defects, including his loss of 

memory and ability to concentrate. 

 Dr. Bethea testified, outside the presence of the jury, 

as follows: 

 "Q: Doctor, can . . . the habitual use of 

crack cocaine cause memory loss? 

 "A: [Counselor,] I would like to make it very 

clear that when I answer this question, I think it 

has absolutely nothing to do with this situation 

based upon the circumstances in which I have cared 

for him over the last year - Mr. Hugen over the past 

year. The answer would be yes. 

. . . . 

 "Q: Dr. Bethea, if I insinuated that it was my 

position that [plaintiff] had been using drugs since 

the accident, I apologize. That is certainly not 

what I am trying to say or insinuate in any way, 

shape, or form. 

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 "A: I just want to make it very clear that all 

of those things that I have testified to in terms of 

my assessment of the [plaintiff's] present set of 

circumstances would have absolutely nothing to do 

with prior . . . drug use. 

. . . . 

 "Q: And [plaintiff] has short-term memory 

loss, correct? 

 "A: Brian Hugen was deficient in a braininjury pattern not a drug-injury pattern." 

 This Court has consistently stated that "crossexamination on a matter relevant to the litigation and put in 

issue by an adversary's witness during a [trial] is not a 

privilege but an absolute right." Basham v. Terry, 199 Va. 

817, 824, 102 S.E.2d 285, 290 (1958); accord Food Lion, Inc. 

v. Cox, 257 Va. 449, 450, 513 S.E.2d 860, 861 (1999); Miller 

v. Commonwealth, 153 Va. 890, 895-96, 149 S.E. 459, 460 

(1929). 

 However, evidence sought to be elicited during crossexamination must be relevant. "Evidence is relevant if it 

tends to prove or disprove, or is pertinent to, matters in 

issue." Clay v. Commonwealth, 262 Va. 253, 257, 546 S.E.2d 

728, 730 (2001); Boggs v. Commonwealth, 199 Va. 478, 486, 100 

S.E.2d 766, 772 (1957). We have stated that "[e]very fact, 

however remote or insignificant, that tends to establish the 

probability or improbability of a fact in issue is relevant." 

22
Virginia Elec. & Power Co. v. Dungee, 258 Va. 235, 260, 520 

S.E.2d 164, 179 (1999); Ravenwood Towers, Inc. v. Woodyard, 

244 Va. 51, 56, 419 S.E.2d 627, 630 (1992). 

 Based upon the record before this Court, we conclude that 

the circuit court properly refused defendant's attempt to 

cross-examine plaintiff's expert witness on plaintiff's prior 

drug use because that evidence was not relevant. There is no 

evidence that plaintiff's brain injury or depression was 

caused by or related to drug use. Therefore, evidence of the 

plaintiff's prior use of cocaine or his depression could not 

"prove or disprove" matters in issue. For example, Dr. 

Bethea's testimony, proffered by defendant, established that 

plaintiff's injuries were not caused by drug use. Moreover, 

Dr. Kreutzer testified, outside the presence of the jury, that 

"[t]here's no indication in [plaintiff's medical] record that 

this man suffered medically, neurologically, as a consequence 

of drug or alcohol use." 

 Even though Dr. Bethea agreed, outside the presence of 

the jury, that crack cocaine could cause short-term memory 

loss, Dr. Bethea testified without equivocation that 

plaintiff's condition was not related in any way to drug use. 

Dr. Bethea also testified, outside the presence of the jury, 

that plaintiff's condition was so devastating that any 

emotional instability that occurred in past years would have 

23
had no effect on his current condition. Additionally, we note 

that the circuit court permitted defendant to cross-examine 

Dr. Bethea and elicit testimony of complaints that plaintiff 

made about depression one year before the accident. Simply 

stated, defendant does not have an absolute right to crossexamine a witness about evidence that is not relevant. 

VI. 

 Defendant argues that the circuit court improperly 

limited its cross-examination of Dr. Kreutzer regarding 

plaintiff's pre-injury depression. Defendant contends that 

Dr. Kreutzer's records show that plaintiff had told him of "a 

two-year history of untreated depressive episodes." Defendant 

states that Dr. Kreutzer testified that plaintiff "had been 

treated successfully for depression and that his depression 

had resolved several years before this accident." However, 

defendant says that medical records indicate that plaintiff 

experienced symptoms of depression as recently as one year 

before the accident and that Dr. Kreutzer's testimony was 

apparently false. 

 We hold that the circuit court did not err in limiting 

the scope of the cross-examination. As plaintiff correctly 

points out, plaintiff objected to defendant's crossexamination of Dr. Kreutzer on the basis that it was beyond 

the scope of direct examination. Plaintiff stated, in his 

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objection, that "[t]here was not a single question and/or 

answer elicited from this witness with regard to any diagnosis 

of depression." Dr. Kreutzer did not testify on direct 

examination about a diagnosis or subjective complaint of 

depression made by the plaintiff either before or after the 

accident and, therefore, the circuit court properly sustained 

the objection. 

VII. 

 In view of our holdings, we do not consider defendant's 

remaining assignments of error. We will remand this case for 

a new trial solely on the issue of damages. 

Affirmed in part, 

reversed in part, 

and remanded. 

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