VIRGINIA:
     In the Supreme Court of Virginia held at the Supreme Court
Building in the City of Richmond, on Thursday, the 4th day of June,
2015.


Glen Cosby,                                               Appellant,

 against       Record No. 141096
               Circuit Court No. CL10-1534

Susan Clem,                                               Appellee.


                                           Upon an appeal from a
                                     judgment rendered by the Circuit
                                     Court of Spotsylvania County.


     Upon consideration of the record, briefs, and argument of
counsel, the Court is of opinion that the circuit court erred in
setting aside the verdict rendered by the jury on June 5, 2012, in
the amount of $9,000.   Therefore, we will reverse the judgment of
the circuit court, reinstate the jury verdict, and enter final
judgment on the verdict.
     Susan Clem ("Clem") filed a complaint in the circuit court
seeking judgment against Glen Cosby ("Cosby") for damages arising
from a vehicle accident that occurred on January 11, 2009, when the
vehicle being operated by Cosby collided with the rear of the
vehicle in which Clem was riding as a passenger.   Cosby admitted
liability and the case was tried before a jury on the issue of
damages.    Clem claimed that the accident caused her previously
implanted spinal cord stimulator to malfunction and submitted
evidence of medical bills in the amount of $188,513.08.   After the
jury awarded damages to Clem in the amount of $9,000, the circuit
court granted Clem's motion to set aside the verdict and for
additur in the amount of $188,513.08, for a total award of
$197,513.08.   Upon Cosby's election declining to accept the additur
award pursuant to Code § 8.01-383.1(B), the circuit court awarded
Clem a new trial. 1   On appeal, Cosby contends the circuit court
erred in setting aside the jury verdict and awarding additur.
     Upon review of a circuit court's decision setting aside a jury
verdict, we will reinstate the verdict and enter judgment thereon
if there is any credible evidence in the record that supports the
verdict.   McGuire v. Hodges, 273 Va. 199, 205, 639 S.E.2d 284, 288
(2007); Hoar v. Great Eastern Resort Mgmt., 256 Va. 374, 378, 506
S.E.2d 777, 778 (1998).    "When 'reasonably fairminded [persons] may
differ as to the conclusions of fact to be drawn from the evidence,
or if the conclusion is dependent upon the weight to be given the
testimony,' then such evidence is controverted, and the jury's


     1
       When the matter was tried before a jury the second time, the
jury awarded damages to Clem in the amount of $1,766.25, the exact
amount of the bill for the treatment rendered to her in the
emergency room on the date of the accident. The circuit court
granted Clem's motion to set aside the verdict and for additur in
the amount of $188,513.08, which Cosby elected to accept under
protest pursuant to Code § 8.01-383.1(B). Progressive Gulf
Insurance Company, an underinsured motorist carrier, filed a motion
for a new trial in which it asserted an independent right to
decline the additur award. Upon consideration of the motion, the
circuit court ordered a new trial. When the matter was tried
before a jury the third time, the circuit court granted Clem's
motion for partial summary judgment as to damages in the amount of
$176,814.98. The jury was informed that Clem had proven her
medical damages of $176,814.98 and instructed to determine any
additional amount that should be awarded. The jury awarded damages
to Clem in the amount of $6,000 and the circuit court entered
judgment for Clem in the amount of $182,814.98.
                                  2
verdict cannot be disturbed either by the circuit court or this
Court."   Hundley v. Osborne, 256 Va. 173, 178-79, 500 S.E.2d 810,
813 (1998) (quoting Hall v. Hall, 240 Va. 360, 363, 397 S.E.2d 829,
831 (1990)).
     Although Clem contends that the accident caused her implanted
spinal cord stimulator to malfunction, the evidence was
controverted as to whether the stimulator was functioning properly
prior to the accident.   The evidence proved that Clem had an
extensive history of back pain arising from a back injury she
sustained in 1999.   Clem underwent several back surgeries including
one in 2003 in which a stimulator was implanted in her spinal cord
and another in 2004 to improve the effectiveness of the stimulator. 2
From the time the spinal cord stimulator was implanted, Clem
continued to complain of back pain, at times describing it as
"unbearable" and "excruciating," and remained on narcotic pain
medicine.   Additionally, she repeatedly complained to her doctors
that the stimulator was not working as effectively as she had
hoped.
     Furthermore, Clem's contention that the accident caused her
stimulator to stop working was based on her own testimony regarding
the functioning of the stimulator before and after the accident,
which the jury was free to disregard.   Clem testified that when the
accident occurred, she experienced a "twinge" in her lower back



     2
       The record in this case indicates that a spinal cord
stimulator is composed of an implanted pulse generator that sends
electronic pulses to the spine via a connecting cable attached to
an electrode placed in the spinal canal. The patient controls the
strength of the impulses with a remote programmer.
                                  3
that she had not felt before. 3    On April 15, 2009, she saw Dr.
Michael J. Decker, a specialist in physical medicine and
rehabilitation, and informed him that the stimulator had been
working well until the date of the accident.     Upon testing the
stimulator, Dr. Decker was unable to make the stimulator operate
until he increased the power to the point of causing Clem
significant shocks and pain.      Dr. Decker performed surgery on April
21 and determined that the electrode implanted in Clem's spinal
cord was working properly.   Therefore, Dr. Decker replaced only the
pulse generator and cable connecting the generator to the
electrode.
     While Dr. Decker testified that he believed the trauma Clem
sustained in the accident caused the stimulator to malfunction, he
admitted his opinion was based solely on Clem's statement to him
that the stimulator was working before the accident and stopped
working at the time of the accident.     He further admitted that
while he initially believed that a broken or loose wire may have
caused the stimulator to stop functioning, he found no such defects
upon x-ray examination of Clem's spine or during her surgery.       Dr.
Decker did not send that part of the stimulator he removed to the
manufacturer for testing or otherwise attempt to determine why the
part of the system he removed was not working.     As Clem's treating



     3
       The parties also disputed the force of the impact. Clem's
husband, who was driving the vehicle in which she was riding,
testified that the force of the impact was hard enough to break the
driver's seat. Cosby described the impact as "minimum" and
compared it to a bump in a parking lot. Cosby introduced
photographs depicting the conditions of the vehicles observed by
him after the accident.
                                  4
physician, his primary concern was to implant a functioning
stimulator rather than determine the cause of any malfunction in
the previously implanted system.    Thus, Dr. Decker did not identify
the nature of the malfunction.
     Clem had the burden to prove the damages she claimed resulted
from Cosby's negligence. 4   "[W]here 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."    Doe v. West, 222
Va. 440, 445, 281 S.E.2d 850, 852 (1981).    Based on the evidence
presented in this case, the jury was entitled to conclude that Clem
failed to prove the spinal cord stimulator malfunctioned as a
result of Cosby's negligence and to decline to award her damages
related to the treatment associated with her stimulator.    Because

     4
         The jury was instructed:

     In determining the damages to which the plaintiff, Susan Clem,
is entitled, you shall consider any of the following which you
believe by the greater weight of the evidence was caused by the
negligence of the defendant, Glen Cosby:

     (1)    any bodily injuries she sustained and their effect on her
            health according to their degree and probable duration;
     (2)    any physical pain and mental anguish she suffered in the
            past;
     (3)    any disfigurement or deformity and any associated
            humiliation or embarrassment;
     (4)    any inconvenience caused in the past;
     (5)    any medical expenses incurred in the past.

     Your verdict shall be for such sum as will fully and fairly
compensate the plaintiff, Susan Clem, for the damages sustained as
a result of the defendant's negligence.

                                    5
Clem's medical expenses related primarily to the treatment and
surgery associated with her stimulator, "[w]e cannot say that the
verdict [of $9,000] was based upon an unreasonable interpretation
of the evidence, which was susceptible to different findings.
Under these circumstances, the trial court should not have set
aside the first verdict."   Id. at 446, 281 S.E.2d at 853. 5
     For these reasons, we will reverse the judgment of the circuit
court, reinstate the jury verdict in the amount of $9,000, and
enter final judgment on the verdict. 6
     This order shall be certified to the said circuit court and
shall be published in the Virginia Reports.

                               A Copy,

                                 Teste:



                                          Patricia L. Harrington, Clerk



     5
       During the jury's deliberation, the jury submitted the
following question to the circuit court: "How much of these
expenses were actually paid out of pocket by the plaintiff?" In
response, the circuit court informed the jury it could not answer
the question and instructed the jury to make a decision based upon
the evidence it heard and the exhibits that were produced. Clem
asserts that "the jury's consideration of a matter not before them"
was "made clear" by this question. We disagree and will not assume
that the jury deliberately ignored the instruction of the circuit
court. See Raisovich v. Giddings, 214 Va. 485, 487-88, 201 S.E.2d
606, 608 (1974).
     6
       Our holding that the circuit court erred in setting aside the
verdict in the first trial renders it unnecessary for us to address
the remaining assignments of error.
                                  6
