                            STATE OF WEST VIRGINIA 

                          SUPREME COURT OF APPEALS 



Connor Tyree,
Defendant Below, Petitioner                                                     FILED
                                                                           November 16, 2018
vs) No. 17-1077 (Kanawha County 12-C-1783)                                   EDYTHE NASH GAISER, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
Pamela Bell, 

Plaintiff Below, Respondent 



                              MEMORANDUM DECISION
        Petitioner Connor Tyree, by counsel David A. Mohler and Joshua A. Johnson, appeals
the November 6, 2017, order of the Circuit Court of Kanawha County that set aside a jury verdict
in his favor and granted Respondent Pamela Bell’s Rule 59 motion for a new trial on the issue of
damages in this negligence action. Respondent, by counsel Robert B. Kuenzel, responds in
support of the circuit court’s order. Petitioner filed a reply.

        This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the Court finds no substantial
question of law and no prejudicial error. For these reasons, a memorandum decision affirming
the circuit court’s order is appropriate under Rule 21 of the Rules of Appellate Procedure.

       On May 19, 2011, Connor Tyree’s vehicle rear-ended Pamela Bell’s pick-up truck on
Corridor G in Kanawha County. The resulting police report found that Mr. Tyree was following
too closely and failed to maintain control of his vehicle. Ms. Bell filed the underlying action on
September 4, 2012. Mr. Tyree admitted liability prior to trial.

       A trial on the issue of damages commenced on February 3, 2014. Ms. Bell testified that
she was stopped at a red light when,

       [a]ll of a sudden, I got a big jolt in the back of [my] truck and my chest went into
       the steering wheel because where I’m short and it’s a big truck, I had to drive
       close to the steering wheel. And my head went back and forward and I sort of
       blacked out.

Ms. Bell further testified that the accident buckled the bed of her pickup truck bed, which caused
it to break off its frame. When Mr. Tyree asked if she was injured, she said, “I’m hurting in my
neck and I think I need an ambulance.” She tried to undo her seatbelt, but could not because she
was “hurting too bad.” She told the ambulance driver that her neck and right leg hurt. An
ambulance transported her to a hospital where she had a CT scan, an MRI, and x-rays. At the
hospital, she complained about pain “mostly in her lower back and in my leg and in my neck.”
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She followed up with nurse practitioner Kathy Hill. She did not initially complain about neck
pain to Ms. Hill because she was “trying to take care of it [herself] with heat and ice at home,
[but] then couldn’t stand the pain anymore.” Accordingly, she mentioned the neck pain to Ms.
Hill, who ordered physical therapy. She participated in physical therapy three times a week for
six months during which she was unable to engage in activities such as dog-walking, cooking,
cleaning, going to church, and grocery shopping. By the end of six months of therapy, she
regained the motion in her neck.

        With regard to her past medical history, Ms. Bell testified that she received a five percent
permanent disability award for an injury to her back in 1993. She further testified that, in 2003,
she strained her back at work and eventually received social security disability for that injury.
She also testified that she had received no physical therapy or chiropractic treatment for those
injuries between 2005 and the date of the accident, May 19, 2011.

         Ms. Bell presented the testimony of Ms. Hill, the nurse practitioner who treated her after
the accident. Ms. Hill testified that Ms. Bell received a back and neck injury as a result of the
accident and had six post-accident related appointments. During Ms. Bell’s first post-accident
appointment, Ms. Bell complained about back and leg pain, but not neck pain. During Ms. Bell’s
second appointment, on June 8, 2011, Ms. Hill noted Ms. Bell’s neck was “decreased with
flexion and extension.” During Ms. Bell’s third post-accident appointment, on July 8, 2011, Ms.
Hill diagnosed “cervical strain” and noted that it was “a chronic but intermittent problem with an
acute exacerbation . . . precipitated . . . [by] a motor vehicle accident.” Ms. Hill prescribed
physical therapy. At a fourth appointment on August 30, 2011, Ms. Hill found Ms. Bell’s
“symptoms had improved since her last visit,” “physical therapy and treatments were helping,”
and Ms. Bell “had more good days than bad and could move her head a little.” Ms. Hill further
testified that the care she rendered to Ms. Bell during these six visits was reasonably related to
the accident, that Ms. Bell’s pre-existing injuries were worsened by the accident, and that the
costs for Ms. Bell’s care were reasonable and necessary. Under cross-examination, Ms. Hill
testified that sprains, such a Ms. Bell’s, do not always resolve within one or two months.

       Ms. Bell also called physical therapist Tricia McClung who testified that she treated Ms.
Bell for six months; the treatments included ultrasound, electrical stimulation, heat or ice,
massages, and exercises normally rendered for cervical spine sprain-strain; that cervical strain is
consistent with a car crash injury; that a simple sprain-strain does not always heal in one or two
months; and that the care she rendered to Ms. Bell, and the cost of that care, were reasonable and
necessary.

       Throughout her case-in-chief, Ms. Bell presented evidence of her accident-related
medical expenses that totaled $35,816.14. Of that total, $25,023.00 related to the cost of physical
therapy. The remaining $10,793.14 was attributed to the cost of Ms. Bell’s ambulance transport,
emergency room treatment, scans, and x-rays on the day of the accident.

        During his case-in-chief, Mr. Tyree called Jimmy Adams, M.D., a pain specialist, who
examined Ms. Bell and her medical records at Mr. Tyree’s request. Dr. Adams opined generally
that symptoms of a strain or sprain show up between twenty-four hours and three days following
an injury; sprains and strains resolve within a month or so, sometimes sooner; and symptoms of a

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strain sprain are worst at their outset and improve thereafter. Dr. Adams then testified to a
reasonable degree of medical probability as follows: Ms. Bell’s scans and x-rays on the day of
the accident showed no acute trauma, but did show degenerative changes. Ms. Bell did not
complain of neck pain at her May 25, 2011, or June 8, 2011, medical appointments. Ms. Bell
first complained of neck pain at her third medical appointment on July 27, 2011, more than two
months after the accident. Ms. Bell began physical therapy for her neck pain on August 10, 2011,
more than two and a half months after the accident. Dr. Adams further testified that Ms. Bell’s
diagnosis of neck or cervical strain sprain was reasonable; however, there was a lack of objective
physical findings to substantiate Ms. Bell’s continued neck pain, i.e., no muscle spasm, no
temperature, no ropy texture, and no herniated disc. Dr. Adams then concluded that a short
course of physical therapy such as three times a week for four weeks is reasonable for a cervical
strain sprain; excessive physical therapy can aggravate symptoms; and the six months of physical
therapy Ms. Bell received for her neck strain sprain was “exorbitant” and “excessive,” but he
“wouldn’t quibble with one month of physical therapy.”

        Dr. Adams also testified that, during his physical examination of Ms. Bell, she showed
extreme anxiety, and turned her neck in “a very interesting and unusual manner” in that she
turned it only slightly from side to side. Dr. Adams further testified that when he touched Ms.
Bell’s low back “with the lightest touch, she displayed extreme pain.” Dr. Adams called this
response “allodynia” or displaying “pain out of proportion to the stimulus applied.” Therefore,
he believed “there may have been some . . . emotional component to her pain.” Finally, Dr.
Adams noted that, as he was testifying, he saw Ms. Bell fully turn her neck from side to side.

        On cross-examination, Dr. Adams confirmed that, as a result of the accident, Ms. Bell
“did sustain a cervical strain sprain” Dr. Adams also agreed that “the type of injury that [Ms.
Bell] sustained is the type of injury that folks receive in rear end type crashes.”

        Following the close of all evidence, the circuit court instructed the jurors that they were
“the sole judges of the ‘credibility of the witnesses’ and the ‘weight of the evidence’” and that
they “may give to the testimony of the witnesses such credit and weight as you believe it is
entitled to receive.” With regard to expert testimony, the court instructed that the jury “may
disregard the opinion entirely, or give it such weight as you find it deserves.” As to proximate
cause, the court instructed:

       Accordingly, any award of damages in this action must be confined solely to
       those injuries, if any, which Plaintiff Pamela Bell suffered or which were made
       worse as a proximate result of Defendant [Connor Tyree’s] conduct. You may not
       award damages for any injuries or conditions which the Plaintiff suffered prior to
       the incident in question except to the extent, and only to the extent, that any such
       prior injures or conditions were aggravated by the Defendant’s conduct.

Finally, the court instructed that

       [Y]ou may not find for Plaintiff Pamela Bell in this case unless you believe that
       Defendant Connor Tyree’s acts or omissions played a substantial part in bringing
       about or actually causing Plaintiff Pamela Bell’s injuries. Negligence, no matter

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       of what it consists, cannot give rise to liability on the Defendant’s part unless it is
       a proximate cause of the injury complained of. Accordingly, even if you believe
       that the Defendant was negligent, you may not find for the Plaintiff unless you
       also believe that the Defendant’s negligence, if any, was a proximate cause of the
       Plaintiff Pamela Bell’s injuries.

       The verdict form posed the following question: “Do you find by a preponderance of
evidence, more likely than not, that the plaintiff, Pamela Bell, was injured as a result of Connor
Tyree’s actions?” On February 5, 2014, the jury checked the box that provided “No (Pamela Bell
was not Injured as a result Connor Tyree’s actions)” and awarded no damages.

        On March 10, 2014, Ms. Bell filed a motion for a new trial pursuant to Rule 59 of the
Rules of Civil Procedure claiming that the jury’s verdict was against the clear weight of the
evidence. Ms. Bell argued that, at the very least, the jury should have awarded her the costs
associated with her ambulance ride to the hospital, her subsequent scans and x-rays, and her pain
and suffering on the day of the accident. Thereafter, Mr. Tyree filed a response. However, the
case remained dormant until December 20, 2016, when Ms. Bell filed a renewed Rule 59 motion
for a new trial based upon Gunno v. McNair, No. 15-0825, 2016 WL 6805006 (W.Va. Supreme
Court, Nov. 17, 2016)(memorandum decision).

        On November 6, 2017, the circuit court granted Ms. Bell’s motion for a new trial on the
issue of damages based upon the following findings and conclusions:

               “A verdict which disregards the instructions of the court or constitutes a
       mistake and by virtue thereof does not cover the actual pecuniary loss properly
       proved will be set aside.” [Syl. Pt. 3, Richmond v. Campbell, 148 W.Va. 595, 136
       S.E.2d 877 (1964).] . . . .

              Additionally, in [Syllabus Point 2 of] Hall v. Groves, 151 W.Va. 449, 153
       S.E.2d 165 (1967) . . . , the [Court] held,

                When in an action for the recovery of damages for personal
                injuries the verdict does not include as elements of damages all
                the items of hospital and medical expenses and loss of wages the
                amounts of which are definite and certain, are not controverted,
                and constitute a specific pecuniary loss by the plaintiff and which
                verdict does not award a substantial amount as compensation for
                permanent injuries to the plaintiff caused by the negligence of the
                defendant, and awards the plaintiff damages in an amount
                materially less than that to which the plaintiff is justly entitled, as
                shown by the evidence, such verdict is wholly inadequate in
                amount and will be set aside by this Court; and the case will be
                remanded to the trial court with directions that the plaintiff be
                granted a new trial upon the single issue of the quantum of
                damages which, under the evidence, he is justly entitled to
                recover.

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       . . . . In the case at hand, [Mr. Tyree] admitted liability and [Ms. Bell] proved at
       least some damages. The jury’s verdict of $0.00 is an amount materially less than
       that which [Ms. Bell] proved she was entitled.

               In Gunno . . . , the [Court] held that a jury’s finding of negligence required
       a finding of damages. In Gunno, the jury found that the defendant was liable for
       the subject crash, but, despite the testimony presented, made no finding of
       damages.

               At trial, [Mr. Tyree] admitted liability. Therefore, the only charge of the
       jury was to determine damages to [Ms. Bell]. [Ms. Bell] presented evidence of her
       injuries and damages. Although [Mr. Tyree’s] expert contradicted the amount of
       physical therapy that was necessary from the resultant crash, [the expert] opined
       that the emergent care and 4-8 weeks of physical therapy was reasonable and
       necessary. Nonetheless, the jury returned a verdict indicating that [Ms. Bell] was
       not injured because of [Mr. Tyree’s] admitted liability.

              When reviewing the evidence submitted at trial, in the light most favorable
       to the non-moving party, the defendant, the Court finds that the jury’s verdict
       disregarded the Court’s instructions, disregarded the evidence in the case, and is
       contrary to the laws of the State of West Virginia, specifically the holdings in
       Richmond . . . , Hall . . . , and Gunno. . . .

       Mr. Tyree now appeals the circuit court’s order.

               The standard of review applicable to an appeal from a motion to alter or
       amend a judgment, made pursuant to W. Va. R. Civ. P. 59(e), is the same
       standard that would apply to the underlying judgment upon which the motion is
       based and from which the appeal to this Court is filed.

Syl. Pt. 1, Wickland v. Am. Travellers Life Ins. Co., 204 W.Va. 430, 513 S.E.2d 657 (1998).

                 In reviewing challenges to findings and rulings made by a circuit court,
         we apply a two-pronged deferential standard of review. We review the rulings
         of the circuit court concerning a new trial and its conclusion as to the existence
         of reversible error under an abuse of discretion standard, and we review the
         circuit court’s underlying factual findings under a clearly erroneous standard.
         Questions of law are subject to a de novo review.

Syl. Pt. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000).

       We have said,

       [w]hen a trial judge vacates a jury verdict and awards a new trial pursuant to Rule
       59 of the West Virginia Rules of Civil Procedure the trial judge has the authority

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       to weigh the evidence and consider the credibility of the witnesses. If the trial
       judge finds the verdict is against the clear weight of the evidence, is based on
       false evidence or will result in a miscarriage of justice, the trial judge may set
       aside the verdict, even if supported by substantial evidence, and grant a new trial.

Syl. Pt. 3, in part, In re State Pub. Bldg. Asbestos Litig., 193 W.Va. 119, 454 S.E.2d 413 (1994).

       On appeal,

       “‘[i]t takes a stronger case in an appellate court to reverse a judgment awarding a
       new trial than one denying it and giving judgment against the party claiming to
       have been aggrieved.’ Point 1, Syllabus, The Star Piano Co. v. Brockmeyer, 78
       W.Va. 780 [, 90 S.E. 338 (1916)].” Syl. pt. 2, Young v. Duffield, 152 W.Va. 283,
       162 S.E.2d 285 (1968).

In re State Pub. Bldg. Asbestos Litig. at 121, 454 S.E.2d at 415, syl. pt 1. Moreover, “‘[a]n
appellate court is more disposed to affirm the action of a trial court in setting aside a verdict and
granting a new trial than when such action results in a final judgment denying a new trial.’ Syl.
pt. 4, Young v. Duffield, 152 W.Va. 283, 162 S.E.2d 285 (1968).” In re State Pub. Bldg. Asbestos
Litig. at 122, 454 S.E.2d. at 416, syl. pt. 2.

        With these standards in mind, we turn to Mr. Tyree’s four assignments of error. Mr.
Tyree first argues that the circuit court abused its discretion and intruded upon the exclusive
province of the jury when it rejected the jury’s determination that Ms. Bell was not injured as a
proximate cause of the accident. Mr. Tyree highlights that “[i]n determining whether the verdict
of a jury is supported by the evidence, every reasonable and legitimate inference, fairly arising
from the evidence in favor of the party for whom the verdict was returned, must be considered,
and those facts, which the jury might properly find under the evidence, must be assumed as
true.” Syl. Pt. 3, Walker v. Monongahela Power Co., 147 W.Va. 825, 131 S.E.2d 736 (1963). Mr.
Tyree claims that the circuit court failed to make “every reasonable and legitimate inference,
fairly arising from the evidence” in his favor, as it was required to do.

       We disagree and find that the circuit court did not abuse its discretion or intrude upon the
exclusive province of the jury when it rejected the jury’s determination that Ms. Bell was not
injured as a proximate cause of the accident. The clear and uncontroverted evidence at trial
showed that (1) Mr. Tyree admitted liability for the accident; (2) immediately following the
accident, Ms. Bell was transported by ambulance to the hospital, where she received testing and
treatment; (3) Ms. Bell was diagnosed as having a cervical strain sprain for which she underwent
medical treatment, including physical therapy; and (4) Nurse Practitioner Hill and Physical
Therapist McClung testified that the care they rendered Ms. Bell and the cost of that care were
reasonable and necessary. Finally, Mr. Tyree’s own expert, Dr. Adams, testified that Ms. Bell
suffered a cervical strain sprain as a result of the accident and that a month or so of physical
therapy was appropriate for such an injury. Accordingly, we conclude that the circuit court
properly granted Ms. Bell’s new trial motion because the jury’s verdict was against the clear
weight of uncontroverted evidence.



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        Mr. Tyree next argues that the circuit court erred in finding that “the only charge of the
jury was to determine damages to [Ms. Bell]” because he admitted liability and Ms. Bell
presented evidence of her injuries and damages. Mr. Tyree bases this argument on Syllabus Point
1 of Matthews v. Cumberland & Allegheny Gas Co., 138 W.Va. 639, 77 S.E.2d 180 (1953), in
which we held that “in order to recover in an action based on negligence the plaintiff must prove
that the defendant was guilty of negligence and that such negligence was the proximate cause of
the injury of which the plaintiff complains.” Mr. Tyree highlights that the trial court instructed
the jury that it should consider damages only for those injuries proximately caused by the
accident. Accordingly, Mr. Tyree argues that because the jury found Ms. Bell was not injured as
a proximate result of the accident, the jury properly awarded no damages.

         We reject this second assignment of error for the same reasons we rejected petitioner’s
first assignment of error: The jury’s verdict was against the clear weight of the evidence. Thus,
the circuit court correctly concluded that the jury’s only duty was to determine damages.

       Mr. Tyree’s third assignment of error is that the circuit court misinterpreted Gunno v.
McNair, No. 15-0825, 2016 WL 6805006 (W.Va. Supreme Court, Nov. 17, 2016) (memorandum
decision), because the Gunno jury found the plaintiff was injured as a proximate result of the
automobile accident, whereas, in this case, the jury did not find Mr. Tyree proximately caused
Ms. Bell’s injuries.

      In Gunno, another negligence case resulting from a vehicular accident, the plaintiff, Ms.
Gunno, appealed the circuit court’s denial of her motion for a new trial where the jury found that
she was injured as a proximate result of the defendant’s negligence, but awarded her no
damages. On appeal, we determined that

       there is no factual dispute that [r]espondent caused the accident and that
       [p]etitioner suffered injuries as a result of that accident. While there may be
       dispute as to whether the pain [p]etitioner 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, [p]etitioner experienced pain. Furthermore,
       [r]espondent’s expert witness acknowledged that [p]etitioner’s injuries would
       cause pain.

Id. at *4. Accordingly, we found that an award of zero damages was “inherently inconsistent
with the finding that [Ms. Gunno] was injured as a proximate result of the accident.” Id. We also
found that “[p]etitioner’s past pain and suffering [was] amply supported by her own testimony,
her husband’s testimony and the testimony of her treating chiropractor.” Id. We therefore
affirmed the trial court’s ruling that Ms. Gunno was “entitled to a new trial to determine her
damages as a result of [the r]espondent’s negligence.” Id.

       Mr. Tyree makes much of the fact that the Gunno jury found Ms. Gunno was injured as a
proximate result of the automobile accident, whereas, in the instant case, the jury did not find
Mr. Tyree proximately caused Ms. Bell’s injuries. We find that the circuit court did not err in
relying on Gunno in the order on appeal. First, and again, the jury’s “no proximate cause”
finding in the instant case was against the clear weight of the evidence. Second, in Gunno, as in

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the instant case, there was no question of fact as to who caused the accident, and petitioner’s
injury and the need for some treatment were supported by ample testimony. Moreover, Gunno
stands for the proposition that, where there is uncontroverted proof that the defendant
proximately caused at least some physical and pecuniary injuries, a zero dollar verdict cannot
stand. Accordingly, Gunno supports the circuit court’s finding in this case that the zero dollar
verdict cannot stand. Hence, we find no abuse of discretion.

         Mr. Tyree’s fourth and final assignment of error is that the circuit court’s delay in ruling
on his motions for a new trial prejudiced him. Specifically, Mr. Tyree argues that cases do not
get better with time, that memories fade, and that witnesses may become unavailable. Mr. Tyree
then notes that his expert, Dr. Adams, closed his practice and, therefore, may not be available to
testify at the newly-ordered trial. Mr. Tyree also argues that the circuit court’s recollection of the
evidence presented at trial no doubt faded between the date of trial and the date it entered its
order on November 6, 2017.

        Although the circuit court’s considerable delay in ruling on Ms. Bell’s Rule 59 motions is
regrettable, Mr. Tyree fails to show that the delay rises to the level of an abuse of discretion.
First, Mr. Tyree fails to point to any specific evidence to support his claim of prejudice, other
than the closing of Dr. Adams’s practice. By this statement, Mr. Tyree implies that Dr. Adams
may not be available; however, Mr. Tyree does not state whether he asked Dr. Adams about
availability. Further, Mr. Tyree puts forth no proof that the trial court’s delay will affect his case
more than it will affect Ms. Bell’s case. Finally, regarding Mr. Tyree’s claim that the circuit
court judge’s memory must have faded during its delay in ruling on Ms. Bell’s Rule 59 motions,
we note that the record of this case was no doubt available to the circuit court and supports the
circuit court’s order.

       Accordingly, for the foregoing reasons, we affirm the circuit court’s November 6, 2017,
order granting Respondent Pamela Bell’s Rule 59 motion for a new trial.

                                                                                           Affirmed.


ISSUED: November 16, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice Paul T. Farrell sitting by temporary assignment




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