; ;
ALLIED CONCRETE COMPANY, ET AL. v. ISAIAH
LESTER, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF JESSICA LYNN
SCOTT LESTER; ISAIAH LESTER, INDIVIDUALLY AND AS ADMINISTRATOR OF
THE ESTATE OF JESSICA LYNN SCOTT LESTER v. ALLIED
CONCRETE COMPANY, ET AL.
Record No. 120074, Record No. 120122
SUPREME COURT OF VIRGINIA
285 Va. 295; 736 S.E.2d 699; 2013 Va. LEXIS 8
January 10, 2013, DecidedPRIOR
HISTORY: [***1] FROM
THE CIRCUIT OF THE CITY OF CHARLOTTESVILLE. Edward L. Hogshire, Judge.
Lester
v. Allied Concrete Co., 2011 Va. Cir. LEXIS 245, 83 Va. Cir. 308 (2011)
DISPOSITION:
Record No. 120074 � Affirmed. Record No. 120122 � Reversed and final
judgment.
CASE
SUMMARY:
PROCEDURAL
POSTURE: An employer sought review of the judgment of the Circuit of the
City of Charlottesville (Virginia), which denied its motion for a new trial,
filed in a wrongful death suit against it, and denied its motion for a mistrial
based on juror misconduct. The husband of the decedent also appealed from the
trial court's judgment remitting the jury verdict.
OVERVIEW: The trial court did not err in denying
the employer's motion for a retrial on the basis that the trial was tainted by
the husband's dishonest conduct and his attorney's unethical conduct. The record
demonstrated that the employer received a fair trial on the merits and that the
trial court mitigated any prejudice the employer may have suffered as a result
of the misconduct of the husband and his attorney in destroying evidence related
to the husband's Facebook page and in providing false testimony related to his
prior use of anti-depressants and his medical history. Further, the record
showed that the trial court carefully considered this misconduct in denying the
employer's motion for a new trial. However, the trial court abused its
discretion in granting remittitur. There was no evidence in the record that the
trial court examined the damages specific to the husband or to the decedent's
parents or that the trial court made a reasoned evaluation of the damages. Thus,
the trial court reinstated the jury's damage award.
OUTCOME: The court affirmed the judgment of the
trial court.
CORE TERMS:
concrete, facebook, remittitur, misconduct, email, juror, jury verdict,
excessive, passion, discovery, mistrial, reasonable relation, involvement,
jury's award, injuries suffered, dishonest, abused, deleted, new trial,
photograph, clean, juror misconduct, evidence relevant, prior to trial,
impartial, favorable, sympathy, remitted, picture, retrial
LexisNexis(R)
HeadnotesCivil Procedure > Discovery > Misconduct
Civil
Procedure > Appeals > Standards of Review > Abuse of Discretion
HN1 |
A trial court generally exercises
"broad discretion" in determining the appropriate sanction for failure to
comply with an order relating to discovery. Consequently, the appellate
court accords deference to the decision of the trial court in such a case
and will reverse that decision only if the court abused its discretion. |
|
Civil Procedure >
Judgments > Relief From Judgment > General Overview
Civil
Procedure > Appeals > Standards of Review > General Overview
HN2 |
When it plainly appears from the record
and the evidence given at the trial that the parties have had a fair trial
on the merits and substantial justice has been reached, the appellate
court will affirm the judgment notwithstanding the potential for a defect
or imperfection in the process by which the judgment was obtained. Va.
Code Ann. � 8.01-678. |
|
Civil Procedure >
Judgments > Relief From Judgment > Fraud
HN3 |
Fed. R. Civ. P. 60(b)(3) provides for
relief from judgment on the basis of fraud or misconduct. However, it
requires the party seeking relief to demonstrate that such misconduct
prevented him from fully and fairly presenting his claim or defense. |
|
Civil Procedure >
Trials > Motions for Mistrial
Civil Procedure > Appeals >
Standards of Review > Abuse of Discretion
HN4 |
A trial court's ruling denying a motion
for mistrial will be set aside on appellate review only if the ruling
constituted an abuse of discretion. |
|
Civil Procedure >
Trials > Jury Trials > Jurors > Misconduct
Civil
Procedure > Trials > Jury Trials > Jurors > Selection > Voir
Dire
Civil Procedure > Trials > Motions for Mistrial
HN5 |
A litigant is entitled to a fair trial
but not a perfect one, for there are no perfect trials. One touchstone of
a fair trial is an impartial trier of fact � a jury capable and willing to
decide the case solely on the evidence before it. Voir dire examination
serves to protect that right by exposing possible biases, both known and
unknown, on the part of potential jurors. Where a party seeks a new trial
due to allegations of juror dishonesty during voir dire, a litigant must
first demonstrate that a juror failed to answer honestly a material
question on voir dire, and then further show that a correct response would
have provided a valid basis for a challenge for cause. The motives for
concealing information may vary, but only those reasons that affect a
juror's impartiality can truly be said to affect the fairness of a
trial. |
|
Civil Procedure >
Trials > Jury Trials > Jurors > Misconduct
Civil
Procedure > Trials > Jury Trials > Jurors > Selection > Voir
Dire
Civil Procedure > Trials > Motions for Mistrial
HN6 |
There is a significant difference
between a juror giving a honest but mistaken answer and giving a dishonest
answer. To invalidate the result of a trial because of a juror's mistaken,
though honest, response to a question, is to insist on something closer to
perfection than our judicial system can be expected to give. A trial
represents an important investment of private and social resources, and it
ill serves the important end of finality to wipe the slate clean simply to
recreate the peremptory challenge process because counsel lacked an item
of information which objectively he should have obtained from a juror on
voir dire examination. |
|
Civil Procedure >
Judgments > Relief From Judgment > Additurs & Remittiturs >
Remittiturs
HN7 |
Where the attack upon a verdict is
based upon its alleged excessiveness, if the amount awarded is so great as
to shock the conscience of the court and to create the impression that the
jury has been motivated by passion, corruption or prejudice, or has
misconceived or misconstrued the facts or the law, or if the award is so
out of proportion to the injuries suffered as to suggest that it is not
the product of a fair and impartial decision, the court is empowered, and
in fact obligated, to step in and correct the injustice. |
|
Civil Procedure >
Judgments > Relief From Judgment > Additurs & Remittiturs >
Remittiturs
Civil Procedure > Appeals > Standards of Review
> Abuse of Discretion
HN8 |
Setting aside a verdict as excessive is
an exercise of the inherent discretion of the trial court and, on appeal,
the standard of review is whether the trial court abused its discretion.
In determining whether a trial court has abused its discretion in granting
remittitur, the appellate court applies a two-step analysis: (1) it must
find in the record both the trial court's conclusion the verdict was
excessive and its analysis demonstrating that it considered factors in
evidence relevant to a reasoned evaluation of the damages when drawing
that conclusion, and then (2) it must determine whether the remitted award
is reasonably related to the damages disclosed by the evidence. Both of
these steps require an evaluation of the evidence relevant to the issue of
damages. In making that evaluation, the trial court, as well as the
appellate court, is required to consider the evidence in the light most
favorable to the party that received the jury verdict, in this case the
plaintiff. If there is evidence, when viewed in that light, to sustain the
jury verdict, then remitting the verdict is error. |
|
Civil Procedure >
Judgments > Relief From Judgment > Additurs & Remittiturs >
Remittiturs
HN9 |
Although a trial court may grant
remittitur on the grounds that the award is disproportionate to the
injuries suffered, courts have specifically rejected comparing damage
awards as a means of measuring excessiveness. |
|
Torts > Damages
> Consortium Damages > Children & Parents
Torts >
Damages > Consortium Damages > Spouses
HN10 |
The loss of a spouse is significantly
different from the loss of a child. |
|
COUNSEL: John W. Zunka (John M. Roche; Taylor
Anderson; Zunka, Milnor & Carter, on briefs), for Allied Concrete Company,
et al.
Malcom P. McConnell, III (Nathan J.D.
Veldhuis; Allen Allen Allen & Allen, on briefs), for Isaiah Lester.
JUDGES: OPINION BY JUSTICE CLEO E. POWELL. JUSTICE
McCLANAHAN, concurring in part and dissenting in part.
OPINION BY: CLEO
E. POWELL
[**701] [*300] PRESENT: All the Justices
OPINION BY JUSTICE CLEO E. POWELL
In
these combined appeals, we consider whether the trial court erred 1) in denying
a motion for a new trial based on the undisputed misconduct by the plaintiff and
his attorney; 2) in denying a motion for a mistrial based on juror misconduct;
and 3) in remitting the jury verdict.
I.
BACKGROUNDOn June 21, 2007, Isaiah Lester
("Lester") was driving his wife, Jessica, to work, traveling west on the Thomas
Jefferson Parkway in Albemarle County, Virginia. At the same time, William
Donald Sprouse ("Sprouse"), an employee of Allied Concrete Company ("Allied
Concrete"), was operating a loaded concrete truck and traveling east on the
Thomas Jefferson Parkway. Due to his speed, Sprouse lost control of his vehicle,
causing it to cross the center line and tip over, landing on the vehicle
occupied by Lester and Jessica. As a result Jessica suffered injuries that
ultimately proved
[***2] to be fatal.
Sprouse subsequently pled guilty to manslaughter in the death of Jessica.
On May 16, 2008, Lester, as Administrator and
beneficiary of Jessica's estate, filed a complaint against Allied Concrete and
Sprouse, seeking compensatory damages for economic and non-economic losses,
including mental anguish, for the wrongful death of Jessica. Jessica's parents
("the Scotts") were also named as statutory
[*301] beneficiaries. Lester also filed a separate
complaint against Allied Concrete and Sprouse, seeking compensatory damages for
his personal injuries. These actions were ultimately consolidated.
A. TRIALTrial in this case commenced on December 7, 2010.
After a three-day trial, the jury awarded Lester $6,227,000, plus interest, on
the wrongful death action, and $2,350,000, plus interest, on his personal injury
action. Similarly, the jury awarded each of the Scotts $1,000,000, plus
interest, on the wrongful death action.
Allied
Concrete filed multiple post-trial motions, including motions for sanctions
against Lester and the lead attorney on the case, Matthew B. Murray
1 ("Murray"),
arguing
[**702] that
Lester conspired with Murray to intentionally and improperly destroy evidence
related to Lester's
[***3] Facebook
account and provided false information and testimony related to his Facebook
page, his prior use of anti-depressants, his medical history, and the spoliation
of Facebook evidence. Further, Allied Concrete contended that Murray engaged in
deception, misconduct, and spoliation related to Lester's Facebook account.
Allied Concrete also filed a motion seeking, alternatively, dismissal of
Lester's claims, a new trial on liability and damages, a new trial on damages
only, or a remittitur order, arguing that the misconduct of Lester and Murray
precluded an impartial trial and verdict and resulted in an excessive verdict.
Finally, the defendants filed a motion for mistrial due to newly discovered
juror bias.
FOOTNOTES
1 At that time, Murray was the managing partner for the
Charlottesville office of Allen, Allen, Allen & Allen (the "Allen Firm").
The trial court allowed
extensive discovery on the post-trial motions, received written submissions,
conducted an evidentiary hearing, received the parties' proposed findings of
fact and conclusions of law, and entered a 32-page order detailing its findings
of fact and conclusions of law.
B.
SPOLIATION OF FACEBOOK EVIDENCEOn January
9, 2009, during the
[***4] pendency of
the actions, Lester sent a message through Facebook to David Tafuri ("Tafuri"),
an attorney for Allied Concrete. As a result, Tafuri was able to access Lester's
Facebook page.
[*302] On March 25, 2009, Allied Concrete issued a
discovery request to Murray, seeking production of "screen print copies on the
day this request is signed of all pages from Isaiah Lester's Facebook page
including, but not limited to, all pictures, his profile, his message board,
status updates, and all messages sent or received." Attached to the discovery
request was a copy of a photograph Tafuri downloaded off of Lester's Facebook
account. The photo depicts Lester accompanied by other individuals, holding a
beer can while wearing a T-shirt emblazoned with "I ❤ hot moms." That evening,
Murray notified Lester via email about the receipt of the discovery request and
the related photo.
The next morning, on March 26,
2009, Murray instructed Marlina Smith ("Smith"), a paralegal, to tell Lester to
"clean up" his Facebook page because "[w]e don't want any blow-ups of this stuff
at trial." Smith emailed Lester requesting information about the photo. Smith
also told Lester that there are "some other pics that should
[***5] be deleted" from his Facebook page. In a
follow-up email, Smith reiterated Murray's instructions to her, telling Lester
to "clean up" his Facebook page because "[w]e do NOT want blow ups of other pics
at trial so please, please clean up your facebook and myspace!"
2FOOTNOTES
2 Both of these emails were part of the same email thread
(collectively referred to as the "March 26, 2009 email"). In a subsequent email,
dated November 23, 2010, Murray referred to the March 26, 2009 email as a "stink
bomb." Allied Concrete makes much of this fact, even though Murray clearly
explains in the November 23, 2010 email that the March 26, 2009 email is a
"stink bomb," not because of the content of the email, but because the email
would probably upset the trial court.
On April 14, 2009, Lester contacted Smith and informed her that he
had deleted his Facebook page. The next day, Murray signed and served an answer
to the discovery request, which stated "I do not have a Facebook page on the
date this is signed, April 15, 2009." Allied Concrete subsequently filed a
Motion to Compel Discovery. On May 11, 2009, Murray told Smith to obtain the
information requested in the March 25, 2009 discovery request. Smith contacted
[***6] Lester, who eventually
reactivated his Facebook page. Smith was then able to access and print copies of
Lester's Facebook page.
3 After Smith
printed the Facebook page, consistent with the previous
[*303] directive to "clean up" his Facebook account,
Lester deleted 16 photos from his Facebook page. On May 14, 2009, Murray sent
the copies of Lester's Facebook page to Allied Concrete. On October
[**703] 12, 2009, Murray
provided additional, updated copies of Lester's Facebook page to Allied
Concrete.
FOOTNOTES
3 Smith only printed screen shots of the Lester's Facebook
page. These screenshots included small "thumbnail" versions of photographs
Lester had uploaded to his Facebook page. Aside from the thumbnail versions,
Smith did not print actual copies of any of the pictures Lester had uploaded to
his Facebook page.
At a
deposition on December 16, 2009, Lester testified that he never deactivated his
Facebook page. As a result, Allied Concrete had to subpoena Facebook to verify
Lester's testimony. Allied Concrete also hired an expert, Joshua Scotson
("Scotson") to determine how many pictures Lester had deleted. Scotson
determined that Lester had deleted 16 photos on May 11, 2009. This was later
confirmed by an expert
[***7] hired by
Lester to examine Scotson's methodology. All 16 photos were ultimately produced
to Allied Concrete.
On September 28, 2010, Allied
Concrete served a subpoena duces tecum on Smith, seeking production of all
emails between herself and Lester between March 25, 2009 and May 15, 2009. On
November 17, 2010, the trial court ordered Lester to file a privilege log,
listing everything he claimed was privileged and the basis for the claim. On
November 28, 2010, Lester filed an enhanced privilege log. However, Murray
intentionally omitted from the enhanced privilege log any reference to the March
26, 2009 email.
4FOOTNOTES
4 Post-trial, Murray initially claimed that the omission was
a mistake on the part of a paralegal. However, Murray subsequently admitted he
concealed the email out of fear that the trial court would grant a
continuance.
Ultimately, the
trial court decided that Allied Concrete was entitled to sanctions against
Lester and Murray. After a further hearing on the matter, the trial court
sanctioned Murray in the amount of $542,000 and Lester in the amount of $180,000
to cover Allied Concrete's attorney's fees and costs in addressing and defending
against the misconduct.
C.
[***8] LESTER'S
CREDIBILITYIn addition to lying about
deleting his Facebook page, Lester made a number of representations throughout
discovery that were ultimately determined to be untrue. Of particular note, it
was determined that Lester lied about his history of depression and past use of
anti-depressants, and he made false claims about doing certain volunteer work.
As a result of these misrepresentations, specifically the deletion of his
Facebook page, the trial court ordered that the following adverse inference jury
instruction would be given:
[*304] The
Court instructs the jury that the Plaintiff, Isaiah Lester, was asked in
discovery in this case to provide information from his Facebook account. In
violation of the rules of this Court, before responding to the discovery, he
intentionally and improperly deleted certain photographs from his Facebook
account, at least one of which cannot be recovered. You should presume that
the photograph or photographs he deleted from his Facebook account were
harmful to his case.
The Court further instructs
the jury that the presumption from this inference should not affect any award
due to the beneficiaries, Gary Scott and Jeanne Scott.
The trial court noted
[***9] that Allied Concrete knew of the
misrepresentations prior to trial. Thus, the trial court ruled that Lester's
misrepresentations "related solely to the issue of damages and were mitigated,
to the extent appropriate, by an adverse jury instruction, thus, they do not
affect the validity of the verdict as to liability." The trial court read the
jury instruction twice, once while Lester was testifying and again before the
closing arguments.
D. JUROR MISCONDUCTDuring
voir dire, the trial court posed the following question to the prospective
jurors:
Are any of you related by blood or marriage to any of the
attorneys? Do you know them or have significant involvement with them or their
law firms?
Only one potential juror,
Thomas Hill, responded that he knew several of the attorneys and that he had
retained at least one of them in the past. The rest of the potential jurors
remained silent.
Post-trial it was discovered that
the jury foreperson, Amanda Hoy ("Hoy"), was the former Executive Director of
Meals on Wheels of Charlottesville/Albemarle ("Meals
[**704] on Wheels"). This was relevant because the
Allen Firm sponsored the website of Meals on Wheels. Indeed, it was later
revealed that Hoy had communicated
[***10] frequently with representatives of the Allen
Firm regarding its sponsorship of the website. Additionally, it was discovered
that members of Murray's family volunteered for Meals on Wheels for more than 15
years and that Hoy knew some of those family members, specifically Murray's
[*305] mother. Furthermore, in
May 2010, Hoy had a brief email exchange with Murray regarding membership on the
Meals on Wheels Board of Directors. Hoy invited Murray to join the board, but
Murray declined. However, it was also revealed that Hoy had retired from Meals
on Wheels approximately six months prior to trial.
The trial court ultimately denied Allied Concrete's motion for a
mistrial, ruling that the evidence was "insufficient to prove that Murray had
any knowledge of improper conduct by Hoy." The trial court further ruled that,
because the meaning of the term "significant involvement" in the voir dire
question was subjective, "Hoy could have honestly considered her involvement
through Meals on Wheels with the Allen Firm to be insignificant at the time of
trial."
E.
REMITTITUROn the issue of remittitur, the
trial court examined Murray's conduct during trial, specifically noting "a
number of actions designed
[***11] to inflame the passions and play upon the
sympathy of the jury." Specifically, the trial court took issue with Murray:
weeping during opening statement and closing argument, stating that Sprouse
"killed" Jessica,
5 invoking God
and religion, and mentioning that Allied Concrete had, at one time, asserted
that Lester was contributorily negligent.
6FOOTNOTES
5 In its final order, the trial court incorrectly asserted
that Murray had stated that Sprouse "'killed' the plaintiff." However, the
actual statement was that "Allied Concrete's employee killed a wonderful woman,"
which clearly referred to Jessica.
6 Of these actions, the only one to which Allied Concrete
objected and moved for a mistrial was the mention of contributory negligence.
The trial court overruled the motion and gave a limiting instruction on the
matter.
The trial court
ordered remittitur of $4,127,000 of Lester's $6,227,000 wrongful death award,
leaving him with an award of $2,100,000. In making its ruling, the trial court
stated that it "consider[ed] all of the evidence in the light most favorable to
[Lester]." The trial court explained that the jury's award to Lester was
"grossly disproportionate" to
[***12] the $1,000,000 awarded to the Scotts.
When compared to the award given to the decedent's parents, both
of whom had a loving and long-lasting relationship with their daughter, it is
clear that the award granted to Lester bears no reasonable relation to the
damages proven by the evidence [*306] and that the award is so disproportionate to
the injuries suffered that it is likely the product of an unfair and biased
decision. The disproportionality of Lester's award is further highlighted when
seen in light of the fact that Lester had been married less than two years
before his wife's death . . . and that his behavior in the tragic aftermath
was characterized by extensive social activities and travelling, both in the
United States and overseas.
Commenting
on Murray's actions, the trial court further suggested that the jury award "was
motivated by bias, sympathy, passion or prejudice, rather than by a fair and
objective consideration of the evidence." However, the trial court also noted
that
Murray injected passion and prejudice into the trial, shouting
objections and breaking into tears when addressing the jury. Most of Murray's
actions in this respect were suffered without objections from defense [***13] counsel, who focused
their defense upon the denial of liability (despite Defendant Sprouse's
admission to having pled guilty to manslaughter in connection with the
accident . . .) and upon aggressive, but obviously ineffectual, attacks upon
Lester's credibility and character. This defense strategy produced the extreme
opposite of its desired effect, serving to create additional passion and
sympathy for Lester and anger towards the Defendants.
[**705] The court did not modify Lester's $2,350,000
personal injury award or the Scotts' award of $1,000,000 each.
Allied Concrete and Lester appeal.
II. ANALYSISOn
appeal, Allied Concrete argues that the trial court erred in denying its motion
for retrial because of the misconduct committed by Lester and Murray. Allied
Concrete further contends that the trial court erred in denying its motion for a
mistrial due to juror misconduct on the part of Hoy. Lester, on the other hand,
appeals the trial court's decision to grant remittitur.
A. PARTY MISCONDUCTAllied
Concrete argues that the trial court erred in denying its motion for a retrial
because the entire trial was tainted by Lester's
[*307] dishonest conduct and Murray's unethical
conduct. Allied Concrete contends
[***14] that the misconduct had a cumulative effect
that could not be mitigated by anything short of a new trial. We disagree.
7
HN1A trial court generally exercises "broad discretion" in
determining the appropriate sanction for failure to comply with an order
relating to discovery. Consequently, we accord deference to the decision of
the trial court in this case and will reverse that decision only if the court
abused its discretion . . . .
Walsh v. Bennett, 260 Va. 171, 175,
530 S.E.2d 904, 907 (2000) (citation omitted).
FOOTNOTES
7 While we recognize that Lester's conduct was dishonest and
Murray's conduct was patently unethical, the role of this Court in the present
case is limited to determining whether the litigants had a fair trial on the
merits.
In its September 1,
2011 order, the trial court gave a detailed description of each instance of
misconduct committed by either Lester or Murray. After discussing the extent of
the misconduct, the trial court then explained the steps it took to mitigate any
effects the misconduct may have had on the trial. It specifically noted that
Allied Concrete was fully aware of the misconduct prior to trial. Furthermore,
it allowed all of the spoliated evidence to be presented
[***15] to the jury and gave a jury instruction
relating to Lester's misconduct twice, once during his testimony and once before
the case was turned over to the jury.
8FOOTNOTES
8 Additionally, the trial court awarded Allied Concrete the
attorney's fees and costs it expended in addressing and defending against the
misconduct.
Of the
information Allied Concrete complained was withheld, the trial court found that
Allied had everything prior to trial with the exception of the March 26, 2009
email, which was not revealed to Allied Concrete until after trial. We note,
however, that the content of the March 26, 2009 email was limited to a
description of the photograph Tafuri downloaded from Lester's Facebook account
accompanied by instructions that Lester should "clean up [his] facebook and
myspace." As this picture was eventually offered into evidence and the fact that
Lester was told to delete pictures from his Facebook account was presented to
the jury, this evidence is clearly duplicative.
[*308] HN2"When it plainly appears from the record and the evidence given
at the trial that the parties have had a fair trial on the merits and
substantial justice has been reached," we will affirm the judgment
notwithstanding the [***16] potential for a defect or imperfection in
the process by which the judgment was obtained.
Centra Health, Inc.
v. Mullins, 277 Va. 59, 81, 670 S.E.2d 708, 719 (2009) (quoting Code �
8.01-678).
In the present case, the record
demonstrates that Allied Concrete received a fair trial on the merits. There is
ample evidence that the trial court mitigated any prejudice Allied Concrete may
have suffered as a result of the misconduct of both Lester and Murray.
Furthermore, the record demonstrates that the trial court carefully considered
this misconduct in denying Allied Concrete's motion for a new trial.
Accordingly, it cannot be said that the trial court abused its discretion in
refusing to grant a retrial.
9FOOTNOTES
9 Allied Concrete's argument relies heavily on HN3Federal Rule of Civil Procedure Rule 60(b)(3), which provides for
relief from judgment on the basis of fraud or misconduct. We note, however, that
even if this rule was applicable, it requires the party seeking relief to
"demonstrate that such misconduct prevented him from fully and fairly presenting
his claim or defense." Square Constr. Co. v. Washington Metro. Area Transit
Auth., 657 F.2d 68, 71 (4th Cir. 1981). Here, as previously noted, Allied
[***17] Concrete has failed to
make such a demonstration.
[**706] B. JUROR MISCONDUCTAllied Concrete next argues that the trial court erred in denying its
motion for a mistrial on the grounds that Hoy failed to answer a voir dire
question honestly. Allied Concrete contends that, had Hoy answered honestly, it
is likely that she would have been stricken for cause. Allied Concrete further
posits that, even if Hoy had misunderstood the question, Murray was fully aware
of the relationship between Meals on Wheels and the Allen Firm. Relying on the
Virginia Rules of Professional Conduct, Allied Concrete asserts that Murray had
an affirmative duty to disclose the relationship.
HN4"A trial court's ruling denying a motion for mistrial will be set
aside on appellate review only if the ruling constituted an abuse of
discretion." Robert M. Seh Co. v. O'Donnell, 277 Va. 599, 603, 675 S.E.2d 202,
205 (2009).
It has been recognized that,
HN5"'[a litigant] is entitled to a fair trial but not a perfect
one,' for there are no perfect trials." Brown v. United States, 411 U.S. 223,
231-32, 93 S. Ct. 1565, 36 L. Ed. 2d 208 (1973) (quoting Bruton v. United
States, 391 U.S. 123, 135, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968)).
[*309] One
touchstone of a fair trial is an impartial trier of fact � "a jury capable
[***18] and willing to decide
the case solely on the evidence before it." Smith v. Phillips, 455 U.S. 209,
217, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982). Voir dire examination serves to
protect that right by exposing possible biases, both known and unknown, on the
part of potential jurors.
McDonough Power Equip. v. Greenwood, 464
U.S. 548, 554, 104 S. Ct. 845, 78 L. Ed. 2d 663 (1984).
Where
a party seeks a new trial due to allegations of juror dishonesty during voir
dire,
a litigant must first demonstrate that a juror failed to answer
honestly a material question on voir dire, and then further show that a
correct response would have provided a valid basis for a challenge for cause.
The motives for concealing information may vary, but only those reasons that
affect a juror's impartiality can truly be said to affect the fairness of a
trial.
Blevins v. Commonwealth, 267 Va. 291, 296-97, 590 S.E.2d 365,
368 (2004), (citing McDonough, 464 U.S. at 556).
In
the present case, the dispositive issue before this Court is whether Hoy's
silence in response to the question about her relationship with the Allen Firm
amounts to a dishonest response to a material question. Contrary to Allied
Concrete's argument, Hoy's subjective interpretation of the question is the
proper focus
[***19] of the
trial court's analysis on this issue. It has been recognized that
HN6there is a significant difference between a juror giving a honest
but mistaken answer and giving a dishonest answer.
To invalidate the result of a . . . trial because of a juror's
mistaken, though honest, response to a question, is to insist on something
closer to perfection than our judicial system can be expected to give. A trial
represents an important investment of private and social resources, and it ill
serves the important end of finality to wipe the slate clean simply to
recreate the peremptory challenge process because counsel lacked an item of
information which objectively he should have obtained from a juror on voir
dire examination.
McDonough, 464 U.S. at 555.
In the present case, the trial court asked "Do you know [any of the
attorneys] or have significant involvement with them or their law firms?" The
record demonstrates that, while Hoy may have
[*310] known of Murray, there is no evidence that she
actually knew Murray. The only interaction between Hoy and Murray was one email
exchange, initiated by Hoy, seven months before the trial. Furthermore, the
email was not sent to Murray directly, but to the Allen
[***20] Firm website and then routed to Murray. Murray
specifically
[**707]
testified that he had never met or spoken with Hoy and there is no evidence to
the contrary. Similarly, a separate email exchange between Hoy and Emily Krause,
the Allen Firm's marketing director, merely indicates that Hoy knew Murray's
family; it does not indicate that she knew Murray himself. Thus, as the trial
court found, the evidence was insufficient to prove that Hoy was dishonest with
regard to knowing Murray.
Regarding the issue of
Hoy's "significant involvement" with Murray or the Allen Firm, it is important
to note that the question was asked in the present tense. As Hoy had retired
from Meals on Wheels six months prior to the trial, her silence was not
dishonest because, at the time of voir dire, Hoy did not have any involvement,
much less significant involvement, with either Murray or the Allen Firm.
10 Furthermore,
as the trial court noted, it is possible that Hoy did not believe that the Allen
Firm's involvement with Meals on Wheels was significant, as the donations from
the Allen Firm accounted for less than 1% of Meals on Wheels' annual budget.
Thus, as the trial court found, there is insufficient evidence to
[***21] "establish that Hoy's failure to respond . . .
to the question was dishonest." Indeed, there is clear evidence that, based on
the specific question asked, Hoy's response was completely honest. Accordingly,
we will affirm the decision of the trial court.
11FOOTNOTES
10 Similarly, Allied Concrete's argument that Hoy should have
known to speak up based on the actions of other jurors is unavailing. It has
been recognized that:
The varied responses to respondents' question on voir dire testify
to the fact that jurors are not necessarily experts in English usage. Called
as they are from all walks of life, many may be uncertain as to the meaning of
terms which are relatively easily understood by lawyers and
judges.
McDonough, 464 U.S. at 555.
The
question, on its face, could be interpreted a number of different ways.
Therefore, the fact that another juror may have interpreted the question in a
different manner, without more, has no bearing on Hoy's interpretation of the
question.
11 We further note that, even assuming that Murray knew of
Hoy's past relationship to the Allen Firm and that his failure to inform the
trial court violated a Rule of Professional Conduct, nothing in our
jurisprudence requires that [***22] such a violation automatically result in a
mistrial. Cf., Spence v. Commonwealth, 60 Va. App. 355, 369 n.6, 727 S.E.2d 786,
793 n.6 (2012) ("A violation of a particular rule of professional conduct does
not ipso facto require reversal of a criminal conviction.").
[*311] C. REMITTITURIn
his appeal, Lester argues that the trial court abused its discretion by failing
to properly consider the evidence supporting the jury's award. Lester points to
numerous unchallenged facts in this case that the trial court failed to consider
in ordering remittitur, such as the fact that he was present when Jessica was
injured, that he was the one legally responsible for deciding to remove Jessica
from life support, and that he was diagnosed with depression and post-traumatic
stress disorder as a result. Lester notes that, although the trial court claims
it considered the evidence in the light most favorable to him, the record does
not clearly establish that fact. According to Lester, the record actually
demonstrates that the trial court only viewed the evidence that was most
unfavorable to him. He further contends that the trial court's use of the jury's
award to the Scotts as a benchmark for his award was erroneous
[***23] because his relationship with Jessica was
different from Jessica's relationship with her parents.
HN7Where the attack upon . . . a verdict is based upon its alleged
excessiveness, if the amount awarded is so great as to shock the conscience of
the court and to create the impression that the jury has been motivated by
passion, corruption or prejudice, or has misconceived or misconstrued the
facts or the law, or if the award is so out of proportion to the injuries
suffered as to suggest that it is not the product of a fair and impartial
decision, the court is empowered, and in fact obligated, to step in and
correct the injustice.
Edmiston v. Kupsenel, 205 Va. 198, 202, 135
S.E.2d 777, 780 (1964).
HN8Setting aside a verdict as excessive . . . is an exercise of
the inherent discretion of the trial court and, on appeal, the standard
[**708] of review is whether
the trial court abused its discretion.
Poulston v. Rock, 251 Va.
254, 258-59, 467 S.E.2d 479, 482 (1996) (citing Bassett Furniture v. McReynolds,
216 Va. 897, 911, 224 S.E.2d 323, 332 (1976)).
In
determining whether a trial court has abused its discretion in granting
remittitur, we apply a two-step analysis:
[*312] (1) we
must find in the record both the trial [***24] court's
conclusion the verdict was excessive and its analysis demonstrating that it
"considered factors in evidence relevant to a reasoned evaluation of the
damages" when drawing that conclusion, and then
(2) we must determine whether the remitted award is "reasonably
related to the damages disclosed by the evidence."
Government Micro
Res., Inc. v. Jackson, 271 Va. 29, 44-45, 624 S.E.2d 63, 71 (2006) (alterations
omitted) (quoting Poulston, 251 Va. at 259, 467 S.E.2d at 482).
Both of these steps require an evaluation of the evidence relevant
to the issue of damages. In making that evaluation, the trial court, as well
as this Court, is required to consider the evidence in the light most
favorable to the party that received the jury verdict, in this case the
plaintiff. If there is evidence, when viewed in that light, to sustain the
jury verdict, then remitting the verdict is error.
Shepard v.
Capitol Foundry of Va., 262 Va. 715, 721, 554 S.E.2d 72, 75 (2001) (citation
omitted).
In the present case, the trial court
granted remittitur on two alternative grounds. The trial court initially relied
upon its finding that the jury's award to Lester was disproportionate when
compared to the jury's
[***25] award to the Scotts. This was error.
HN9Although a trial court may grant remittitur on the grounds that
the award is disproportionate to the injuries suffered, Edmiston, 205 Va. at
202, 135 S.E.2d at 780, we have specifically rejected comparing damage awards as
a means of measuring excessiveness. Rose v. Jaques, 268 Va. 137, 159, 597 S.E.2d
64, 77 (2004).
The trial court also found that "the
amount of the verdict in this case is so excessive on its face as to suggest
that it was motivated by bias, sympathy, passion or prejudice, rather than by a
fair and objective consideration of the evidence." In making this ruling, the
trial court specifically found that Murray's actions at trial were "geared
toward inflaming the jury," which contributed to the jury's excessive verdict.
The trial court also noted that Allied Concrete's aggressive defense strategy
further served "to create additional passion and sympathy for Lester and anger
towards [Allied Concrete]."
12 [*313] However, assuming that
the trial court correctly concluded that the jury verdict was improperly
motivated by Murray's "theatrics" and Allied Concrete's failed litigation
strategy, the trial court provided no basis for us to ascertain,
[***26] nor can we independently ascertain, "whether
the amount of recovery after remittitur bears a reasonable relation to the
damages disclosed by the evidence." Shepard, 262 Va. at 721, 554 S.E.2d at 75
(internal quotation marks omitted). It is apparent that the trial court simply
reduced Lester's award to match the Scotts' individual awards and then added the
economic loss Lester suffered as a result of Jessica's death. Such an approach
ignores the inherent differences in the two types of relationships and thereby
the differences in damages.
FOOTNOTES
12 It should be noted that Allied Concrete never sought
remittitur on this basis. Nor could it, as it would be highly illogical to
afford Allied Concrete relief on the basis of its own unsuccessful litigation
strategy.
It is axiomatic
that
HN10the loss of a spouse is significantly different from the loss of
a child. Clearly the relationship between Jessica and Lester was unique to them
and different from the relationship between Jessica and her parents. Indeed, the
trial court acknowledged as much. As such, the injuries suffered by Lester and
the Scotts as a result of her death were necessarily different and, therefore,
must result in different awards. However,
[***27] with the exception of Lester's economic
losses, nothing in the record indicates that the trial court examined the
damages specific to Lester or the Scotts. Thus, there
[**709] is no evidence that the trial court made a
reasoned evaluation of the damages. Accordingly, having determined that the
trial court abused its discretion in granting remittitur, we will reinstate the
jury's damage award and enter final judgment on the verdict. See id. at 723, 554
S.E.2d at 76-77; Baldwin v. McConnell, 273 Va. 650, 660, 643 S.E.2d 703, 708
(2007); Government Micro Res., 271 Va. at 49, 624 S.E.2d at 74; Poulston, 251
Va. at 264, 467 S.E.2d at 485; Edmiston, 205 Va. at 204, 135 S.E.2d at 781.
III.
CONCLUSIONAllied Concrete was fully aware
of the misconduct of Murray and Lester prior to trial and the trial court took
significant steps to mitigate the effect of the misconduct. Therefore, it cannot
be said that the trial court abused its discretion in refusing to grant a
retrial on that basis. Furthermore, the evidence demonstrates that Hoy's failure
to answer was not due to dishonesty on her part. Indeed, the
[*314] evidence adduced at trial would tend to show
that Hoy's lack of a response was, in fact, an honest
[***28] answer to the questions asked. Accordingly,
the trial court did not err in denying Allied Concrete's motion for a mistrial
on alleged juror misconduct.
Regarding the issue of
remittitur, it is apparent that the trial court based its decision to grant
remittitur on an improper comparison of awards and failed to provide any way of
ascertaining whether the remitted award bears a "reasonable relation" to the
damages suffered by Lester. Accordingly, we will reverse the trial court's order
of remittitur and reinstate the jury's verdict.
Record No. 120074 � Affirmed.
Record No.
120122 � Reversed and final judgment.
CONCUR BY: McCLANAHAN (In
Part)
DISSENT
BY: McCLANAHAN (In Part)
JUSTICE McCLANAHAN, concurring in part and dissenting
in part.
With this opinion, the Court has finally
divested the trial courts of their power over jury verdicts, rejecting the
ancient and accepted doctrine of the common law, that judges have
the power and are clearly charged with the duty of setting aside verdicts
where the damages are either so excessive or so small as to shock the
conscience and to create the impression that the jury has been influenced by
passion or prejudice, or has in some [way] misconceived or misinterpreted the
facts [***29] or the
law which should guide them to a just conclusion.
Bassett Furniture
Indus., Inc. v. McReynolds, 216 Va. 897, 912, 224 S.E.2d 323 n.*, 216 Va. 897,
224 S.E.2d 323, 332 n.* (1976) (quoting Chesapeake & Ohio R. R. Co. v.
Arrington, 126 Va. 194, 217, 101 S.E. 415, 423 (1919)).
What
the Court refers to as a "two-step analysis" in fact consists of multiple hoops
through which a trial court must now jump before it remits a jury verdict. Since
this Court first articulated the "number of determinations" that must be made
when a party challenges the trial court's exercise of discretion to remit a
verdict, that number has steadily increased.
1 As each new
factual scenario
[**710] comes
before the
[*315] Court, a
new determination, test, or restriction emerges from the Court, placing the
trial courts in the unenviable position of having to speculate as to whether
their remittitur will withstand this Court's next test. Meanwhile, the Court has
chipped away at the trial court's "inherent discretion" to the extent that such
discretion exists only in theory.
2FOOTNOTES
1 In Poulston v. Rock, 251 Va. 254, 259, 467 S.E.2d 479, 482
(1996), the Court stated that the standard by which the trial court's exercise
of discretion must be tested by this Court "requires [***30] us to make a number of determinations." The
Court must "find in the record both the trial court's conclusion that the
verdict was excessive and a demonstration that, in reaching that conclusion, the
trial court considered 'factors in evidence relevant to a reasoned evaluation of
the damages'" and must then "determine whether the amount of the recovery after
the remittitur bears a 'reasonable relation to the damages disclosed by the
evidence.'" Id. (quoting Bassett, 216 Va. at 912, 224 S.E.2d at 332). In
addition, the Court must evaluate the evidence in the light most favorable to
"the party who received the jury verdict." Poulston, 251 Va. at 261, 467 S.E.2d
at 483. In Shepard v. Capitol Foundry of Va., 262 Va. 715, 723, 554 S.E.2d 72,
76 (2001), the Court went beyond a determination of whether the recovery after
remittitur bore a reasonable relation to the evidence and included in its
analysis a determination of whether the facts "demonstrate[d] that the verdict
was not excessive." In Government Micro Resources, Inc. v. Jackson, 271 Va. 29,
49, 624 S.E.2d 63, 74 (2006), the Court determined whether there were "elements
of recovery upon which the compensatory damage award could be [***31] based." In Baldwin v. McConnell, 273 Va. 650,
656, 643 S.E.2d 703, 706 (2007), the Court concluded the trial court failed to
ascertain whether the amount of the recovery after remittitur bore a reasonable
relation to the evidence of damages despite the fact that this duty had
previously been considered the second step of the review undertaken by our
Court.
2 This Court has identified three circumstances that "compel
setting aside a jury verdict." Poulston, 251 Va. at 258, 467 S.E.2d at 481. The
first is a "damage award that is so excessive that it shocks the conscience of
the court, creating the impression that the jury was influenced by passion,
corruption, or prejudice." Id. The second is when the jury has "misconceived or
misunderstood the facts or the law." Id. The third is an award that "is so out
of proportion to the injuries suffered as to suggest that it is not the product
of a fair and impartial decision." Id. Setting aside a verdict under any one of
these circumstances "is an exercise of the inherent discretion of the trial
court." Id. at 258-59, 467 S.E.2d at 482.
Today the Court introduces yet another restriction on
the trial court's power to remit a jury verdict. According
[***32] to the majority, the trial court must provide
a way for this Court to ascertain whether the amount of recovery after
remittitur bears a reasonable relation to the damages. This determination can be
made, and has previously been made by this Court, through "an evaluation of the
evidence relevant to the issue of damages." Shepard v. Capitol Foundry of Va.,
262 Va. 715, 721, 554 S.E.2d 72, 75 (2001). Therefore, as the Court's opinion
illustrates, whether a jury's verdict has been motivated by passion, corruption
or prejudice, rather than the evidence before it, is no longer the predominant
concern. Instead, the primary focus of the Court is ensuring compliance with the
increasingly technical requirements it continues to impose on the language of
the trial court's order of remittitur.
[*316] In this case, the trial
court explained in detail both why it found the jury's verdict was motivated by
passion, corruption, or prejudice as well as why the award was so out of
proportion to the injuries suffered as to suggest it was not the product of a
fair and impartial decision. The trial court stated three times that it was
reviewing the evidence in the light most favorable to Lester while noting
specifically
[***33] the
evidence regarding the length of his marriage and his behavior after his wife's
death, demonstrating it "considered factors in evidence relevant to a reasoned
evaluation of the damages." Poulston, 251 Va. at 259, 467 S.E.2d at 482
(internal quotation marks omitted). Evaluating its remitted award, the trial
court took into account the "injuries actually suffered" by Lester, acknowledged
that Lester suffered loss not sustained by the Scotts, and remitted the award to
an amount a little over twice that awarded to each of the Scotts. Based on its
analysis of the "injuries actually suffered" by Lester, the trial court
determined that the remitted award bore "a reasonable relation to the damages
disclosed by the evidence." Id. (internal quotation marks omitted). Accordingly,
applying the "two-step analysis," I would conclude the trial court was well
within its discretion to order the remittitur.
3FOOTNOTES
3 Although the majority finds it was error to compare the
jury's award to Lester with its awards to the Scotts, I disagree. While we have
rejected comparing statewide or nationwide jury verdicts to reach an "average
verdict," this is not what the trial court did. See Rose v. Jaques, 268 Va. 137,
159, 597 S.E.2d 64, 77 (2004) [***34] (rejecting argument that jury's verdict was
excessive when compared to other post-traumatic stress disorder (PTSD) cases
statewide and nationally); John Crane, Inc. v. Jones, 274 Va. 581, 595, 650
S.E.2d 851, 858 (2007) (stating "average verdict rule" was rejected in Rose).
The trial court did not look to statewide or nationwide verdicts in wrongful
death cases to determine an "average verdict," but considered the injuries
suffered by the Scotts and those suffered by Lester to support its finding that
the award granted to Lester by the jury bore "no reasonable relation to the
damages proven by the evidence." The trial court based its finding on the
evidence at trial, which is precisely its charge.
In my view, the singular ability of the trial court to
assess whether the jury has been motivated by passion or prejudice has been
disregarded, and its inherent discretion to correct a verdict that it finds so
excessive as to shock the conscience of the court has been discarded. Yet,
[a]s we have often noted, "[t]here are many incidents which occur
in the trial of a common law case which a trial judge observes but which
cannot be reproduced in the cold printed [*317]
page." American Oil Co. v. Nicholas, 156 Va. 1, 12, 157 S.E. 754, 758 (1931).
[***35] [**711] We did not see or hear the [parties] as
they testified. We do not know whether they appeared cooperative or defiant,
responsive or evasive, candid or disingenuous. The trial judge was in a unique
position to hear the tone and tenor of the dialogue, observe the demeanor of
the witnesses, and assess the reaction of the jurors to what they saw and
heard.
Hogan v. Carter, 226 Va. 361, 373-74, 310 S.E.2d 666, 673
(1983). See also Richmond Newspapers, Inc. v. Lipscomb, 234 Va. 277, 300, 362
S.E.2d 32, 45, 4 Va. Law Rep. 961 (1987) ("We must necessarily accord the trial
court a large measure of discretion in remitting excessive verdicts because it
saw and heard the witnesses while we are confined to the printed record.").
With this Court's ever evolving limitations upon the
power and duty of trial judges to order remittitur, for all practical purposes
the last nail in the coffin of remittitur has been driven, sounding a death
knell for the important safety-valve that remittitur has represented in
operating the system of jury trials in Virginia.
I
would, therefore, affirm the trial court's judgment in its entirety since I
agree with the majority that the trial court did not abuse its discretion in
refusing to grant
[***36] a retrial
on the basis of the misconduct by Lester and Murray or err in refusing to grant
a mistrial due to juror misconduct.