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Cosby v. Clem

August 5, 2020

In Cosby v. Clem, the Supreme Court of Virginia upheld a jury verdict awarding Plaintiff $9,000 in damages despite claiming nearly $200,000 in medical bills.  Plaintiff, Susan Clem, was rear-ended by the Defendant, Glen Cosby, and Plaintiff subsequently claimed that the accident caused her spinal cord stimulator to malfunction, requiring corrective surgery.  At trial on damages only, it was revealed that Plaintiff had an extensive history of back pain arising from a prior injury.  Plaintiff had undergone several prior back surgeries, one of which was to implant the spinal cord stimulator.  Since its implantation, Plaintiff had complained of “unbearable” and “excruciating” pain, and repeatedly complained to her doctors that the stimulator was not working properly.  

Plaintiff also presented expert testimony as to the cause of the stimulator’s malfunction.  That expert opined that the accident caused the malfunction, but later admitted that his opinion was based solely on Plaintiff’s statement to him that the stimulator was working before the accident and stopped working after the accident.  Similarly, he was not able to identify the nature of the malfunction nor did he send the stimulator back to the manufacturer to determine the cause of the malfunction.  

Based on this testimony, the jury awarded Plaintiff $9,000 in damages.  The circuit court granted Plaintiff’s motion to set aside the verdict and for an additur1 in the amount of $188,513.08.  Defendant declined and appealed, arguing that the circuit court erred in setting aside the jury verdict.  The Supreme Court agreed and reinstated the verdict.  The Court held that, “where an impartial jury properly instructed has determined the issue of damages in a personal injury case, the verdict should not be disturbed if it is supported by a logical interpretation of the factual issues.”  The Court found that the jury’s verdict was supported by a logical interpretation of the factual issues.  Specifically, reasonable persons could have differed as to the conclusions to be drawn from and the weight given to Plaintiff’s testimony. The record included evidence that Plaintiff had a pre-existing condition, had complained of the efficacy of the stimulator before, and that the cause of the malfunction was unidentified.  As such, Plaintiff’s evidence was controverted and the jury was free to disregard it.  For those reasons, the Court found that the circuit court should not have set aside the verdict.

The power of the trial court to assess damages or increase the amount of an inadequate award made by jury verdict, as a condition of a denial of a motion for a new trial, with the consent of the defendant whether or not the plaintiff consents to such action.