UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ZED S. FRENCH, III,
Plaintiff-Appellee,

v.
                                                                No. 98-2135
WAL-MART STORES, INCORPORATED,
d/b/a Sam's Club,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
Norman K. Moon, District Judge.
(CA-97-42-3)

Argued: April 6, 1999

Decided: August 23, 1999

Before ERVIN, MICHAEL, and KING,
Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Stephen Atherton Northup, MAYS & VALENTINE,
L.L.P., Richmond, Virginia, for Appellant. Matthew B. Murray,
RICHMOND & FISHBURNE, Charlottesville, Virginia, for Appel-
lee. ON BRIEF: Timothy S. Baird, MAYS & VALENTINE, L.L.P.,
Richmond, Virginia, for Appellant. John G. Berry, BERRY &
EARLY, Madison, Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Zed French sued Wal-Mart seeking damages for personal injuries
sustained in an automobile accident, claiming that Wal-Mart had neg-
ligently installed new tires on the vehicle in which he was riding.
Wal-Mart appeals from the jury award to Mr. French of $1 million in
compensatory damages, plus interest, rendered in the district court for
the Western District of Virginia. Finding no error, we affirm.

I.

A.

On July 17, 1995, Wal-Mart's Sam's Club store in Charlottesville,
Virginia, installed new tires on the Jeep Cherokee belonging to Brian
Taylor, Mr. French's friend. On July 23, 1995, Mr. French rode with
Taylor in his Jeep to attend a golf tournament in Richmond. As they
traveled east on Interstate 64, the left front wheel came off Taylor's
vehicle, causing the Jeep to crash down toward the pavement and veer
violently before coming to rest near a guardrail. Anticipating a colli-
sion with the guardrail, Mr. French braced himself with such force
that he sustained a back injury that has left him in chronic pain.

Mr. French sued Wal-Mart in district court for negligently install-
ing the new tires on Taylor's Jeep.1 During a three-day jury trial con-
ducted in April 1998, Mr. French presented evidence from a variety
of witnesses, including himself and his family.

At the time of trial, Mr. French was forty-nine years of age and
principal of the William Monroe Middle School in Greene County,
_________________________________________________________________
1 The district court possessed jurisdiction of the civil action pursuant to
28 U.S.C. § 1332(a).

                    2
Virginia. Mr. French was that school's first and only principal, a posi-
tion he had occupied for twelve years. He had decided, by the time
of trial, to seek another position in the school system, because the
pain of his back injury deprived him of the energy he needed to prop-
erly function as a middle school principal. Mr. French was scheduled
to assume a new position at the end of the 1997-98 school year as an
elementary school principal, a less physically and emotionally stress-
ful job.

Mr. French testified regarding the impact of his back injury, which
he claimed had had a profound and devastating effect on his family
life. For example, since the accident he and his wife were able to only
infrequently have sexual relations because the pain he suffered for
two or three days thereafter was "beyond reason." Mr. French also
testified that he was an avid golfer, had played the game regularly
since the age of four or five, and that, before the accident, he had pos-
sessed a handicap that ranged between two and three. Indeed, prior to
the back injury, golf was his main relief from job stress and he usually
played two or three times a week. Mr. French has been unable to play
golf since the accident.

Another hobby and stress release that Mr. French actively pursued
before the accident was yard work. After the accident, however, he
has been able to do only about ten percent of what he had done
before. He is not able to use their riding lawnmower, because the
shaking and jerking aggravates his back. Mr. French testified that he
and his family live on a small lake, and that before the accident he
would go boating on the lake two or three times a month. He also
enjoyed fishing. After the accident he was not able to go boating or
fishing.

Mr. French's wife, son, and daughter testified to his limitations
after the accident. While he was, before the injury, active, energetic,
and involved in many activities, the accident left him severely
restricted. According to his daughter, Mr. French was unable to sit
long enough in church to watch her sing; nor could he go to basket-
ball games to watch her lead cheers. She testified that now, it is as
if "he's not always there." Both Mr. French's son and daughter testi-
fied that he was no longer able to play golf with them, nor was he able
to walk the course with them as they played in golf tournaments. Mr.

                     3
French's wife summarized his current relationship with his family:
"He just has to be left out now."

Under the evidence of Tim McMillan, the assistant principal at
William Monroe Middle School, Mr. French was, before the accident,
in "constant motion." McMillan also described Mr. French before the
accident as a rapid thinker and mover -- "a little bit hyper." But since
the accident, McMillan noticed that at times Mr. French was very
lethargic and his mental acuity occasionally was not what it used to
be. McMillan said that Mr. French used to frequently move up and
down the halls, thus interacting often with the students. After the acci-
dent, however, he generally stayed in the office areas. McMillan
observed that Mr. French was always stretching his back, and that he
occasionally had to go home in the middle of the day to ice down his
back.

Mr. French presented evidence that he lost more than 240 days of
work between the time of the accident and the trial, which resulted in
approximately $50,000 in lost wages. His medical expenses since the
accident totaled nearly $17,000. Mr. French's new position as ele-
mentary school principal paid almost $2,000 less than his position as
middle school principal; his future lost wages totaled approximately
$32,000.

B.

Mr. French complained of back pain immediately after the acci-
dent, and sought medical attention the following morning when his
back continued to hurt. He went to see Dr. David Duani in Charlottes-
ville, who had been Mr. French's family doctor since 1983. Dr. Duani
began treating Mr. French's back injury and continued treatment
through the time of trial. He saw Mr. French many times after the
accident for "unrelenting back pain" and referred Mr. French to multi-
ple health care providers, including Dr. Edward Isaacs, the University
of Virginia Pain Clinic, and a physical therapist. In Dr. Duani's view,
the accident caused Mr. French to suffer an acceleration/deceleration
injury resulting in ligamentous damage. Dr. Duani testified that Mr.
French's ongoing problem seemed to be joint instability in the low
back due to serious injuries to the surrounding ligaments.

                    4
Dr. Isaacs, a board certified neurologist with a specialty in muscu-
loskeletal medicine, first saw Mr. French in October 1997. Dr. Isaacs
prescribed a strong narcotic, Levo-Dromoran, for Mr. French's pain.2
He diagnosed Mr. French's condition as downward compression of
the sacrum into the pelvis, which disrupts the normal movement of
the joints involved. Mr. French wears a belt provided by Dr. Isaacs
that squeezes the sacroiliac joint in order to maintain some stability.3

In sum, Dr. Isaacs described the medical effects of the accident on
Mr. French as including the following: (1) Mr. French's pain is
chronic and permanent, necessitating lifelong use of narcotic medica-
tion; (2) he will never regain the state of health he enjoyed before the
accident; and (3) he will need continued physical therapy and physi-
cian care.

Prior to trial, Wal-Mart moved several times to exclude the testi-
mony and report of Larry Sinsabaugh, Ph.D., a vocational rehabilita-
tion expert, pertaining to the issue of lost earning capacity. Although
the district court, for the most part, rejected Wal-Mart's efforts in this
regard, it barred Dr. Sinsabaugh from testifying as to the specific sum
he found to represent Mr. French's lost earning capacity. The court
ruled that Dr. Sinsabaugh could offer testimony regarding Mr.
French's "capacity and what he predicts [French's] competence will
be to do the job."

Based on his review of Mr. French's medical records, employment
history, performance reviews, and interviews with Mr. and Mrs.
French, as well as vocational diagnostic tests, Dr. Sinsabaugh con-
cluded that Mr. French's future earning capacity was diminished, and
that he was at risk of losing his new job as an elementary school prin-
_________________________________________________________________
2 Levo-Dromoran is the trademark for preparations of levorphanol tar-
trate, "a synthetic narcotic analgesic with properties and actions similar
to those of morphine." Dorland's Medical Dictionary 923 (28th ed.
1994) [hereinafter Dorland's].
3 "Sacroiliac" is defined as"denoting the joint or articulation between
the sacrum and the ilium and the ligaments associated therewith."
Dorland's at 1479. The "sacrum" is "the triangular bone just below the
lumbar vertebrae." Id. The "ilium" is "the expansive superior portion of
the hip bone." Id. at 819.

                     5
cipal. Dr. Sinsabaugh elaborated that Mr. French's earning capacity
was diminished because of, inter alia, the permanency of his condi-
tion, his continued need to take narcotic medication, and the restric-
tions he has in standing, sitting, walking, and other functions he needs
to possess in order to perform his work.

In its defense pertaining to damages, Wal-Mart produced only the
expert testimony of Dr. David Uruqia, whom Wal-Mart chose to per-
form a Rule 35 physical examination on Mr. French. Dr. Uruqia testi-
fied that the injury from the accident was a lower back sprain or strain
that would have healed in three to four months. Dr. Uruqia also testi-
fied that the cause of Mr. French's continuing pain in his lower back
was preexisting osteoporosis and disc degeneration.

At the conclusion of a three-day jury trial, the jury was instructed,
conducted its deliberations, and returned a verdict for Mr. French in
the sum of $1 million plus interest.4 On June 24, 1998, the district
_________________________________________________________________
4 The jury was given the following instruction on damages, which pro-
vides in pertinent part:

          If you find your verdict for the plaintiff Zed S. French, III,
          then in determining the damages to which he 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:

          ...

          2) any physical pain and mental anguish he suffered in the
          past and any that he may be reasonably expected to suf-
          fer in the future;

          ...

          4) any inconvenience caused in the past and any that may
          be reasonably expected to occur in the future

          5) any medical expenses incurred in the past and any that
          may be reasonably expected to occur in the future;

          6) any earnings he lost because he was unable to work at
          his calling;

          7) any loss of earnings and lessening of earning capacity,
          or either, that he may reasonable [sic] be expected to
          sustain in the future.

                    6
court denied Wal-Mart's motion for a new trial. Wal-Mart filed a
timely Notice of Appeal on July 22, 1998.

II.

Wal-Mart raises four issues on appeal, all relating to the damage
award.5 Wal-Mart asserts that the district court abused its discretion
in the following ways: (1) instructing the jury on future medical
expenses; (2) instructing the jury on loss of earning capacity; (3)
admitting Dr. Sinsabaugh's testimony; and (4) refusing to grant Wal-
Mart's motion for a new trial. We will address each of the issues in
turn. Because the district court had jurisdiction based on diversity, the
substantive law of Virginia applies, including the law applicable to
the determination of Mr. French's damages. See Gasperini v. Center
for Humanities, Inc., 518 U.S. 415, 438-39 (1996).

A.

Wal-Mart contends that the district court erred in giving a jury
instruction on future medical expenses.6 We review a district court's
decision whether to give a jury instruction, and the content of that
instruction, for abuse of discretion. United States v. Bostian, 59 F.3d
474, 480 (4th Cir. 1995). This court will reverse for error in jury
instructions "only if the error is determined to have been prejudicial,
based on a review of the record as a whole." Wellington v. Daniels,
717 F.2d 932, 938 (4th Cir. 1983).

In a diversity action, state law determines the content of jury
instructions. Hardin v. Ski Venture, Inc., 50 F.3d 1291, 1293 (4th Cir.
1995). Under Virginia law, when a reviewing court considers whether
there was sufficient evidence to warrant a jury instruction, the court
views the evidence in the light most favorable to the party requesting
_________________________________________________________________

        Your verdict shall be for such sum as will fully and fairly
        compensate the plaintiff for the damages sustained as a result of
        the defendant's negligence.
5 Wal-Mart has raised no issues on appeal with respect to liability.

6 See supra note 4 (subparagraph (5)).

                     7
the instruction. Dalton v. Commonwealth, 512 S.E.2d 142, 148 (Va.
Ct. App. 1999). The evidence relied upon to support an instruction
must be "more than a scintilla." Rosen v. Greifenberger, 513 S.E.2d
861, 865 (Va. 1999) (citations omitted).

Additionally, under Virginia law, "a plaintiff must show the
amount of his damages with reasonable certainty. Proof with mathe-
matical precision is not required, but there must be at least sufficient
evidence to permit an intelligent and probable estimate of the amount
of damage." Hailes v. Gonzales, 151 S.E.2d 388, 390 (Va. 1966)
(citation omitted).

Wal-Mart asserts that Mr. French failed to present sufficient evi-
dence to permit a jury to reasonably estimate the amount of his future
medical expenses. Wal-Mart contends that Mr. French was required
to show not just the necessity of future medical expenses, but their
probable cost, and claims that his proof failed to pass muster in this
regard.

Dr. Isaacs testified that Mr. French would require physical therapy
in the future and that he would have to take narcotic medication for
the rest of his life for his chronic pain. Dr. Isaacs also testified that
he anticipated seeing Mr. French "rather closely" over the next twelve
weeks, and Mr. French's next appointment with Dr. Isaacs was sched-
uled within a week or so of Dr. Isaac's testimony.

Mr. French also presented evidence of his past medical expenses,
including the costs of visits to Dr. Isaacs and the physical therapist,
as well as the cost of his narcotic medication. J.A. 733-38. This evi-
dence of past costs, considered together with the testimonial evidence
regarding future medical treatment and need for medication, is suffi-
cient, when viewed in the light most favorable to Mr. French, to war-
rant the instruction given to the jury on future medical expenses.
Accordingly, we are unable to find that the district court abused its
discretion in instructing the jury on future medical expenses.

B.

Wal-Mart next contends that the district court erred in giving the

                     8
jury instruction for loss of earning capacity7 because Mr. French
failed to adduce sufficient evidence upon which the jury could reason-
ably estimate the amount of damages for lost earning capacity. We
also disagree with Wal-Mart on this point of contention.

We are guided in this regard by the decision of the Supreme Court
of Virginia in Exxon Corp. v. Fulgham, 294 S.E.2d 894 (Va. 1982).
In that case, the court held that evidence that the plaintiff had lost fifty
percent of the use of his left wrist and hand as a result of an automo-
bile accident and an ensuing operation, and that such limitation
affected his ability to do his job as an office-machine repairman, was
sufficient to support the giving of an instruction on loss of earning
capacity. In so holding, the court pointed to the unchallenged medical
testimony regarding the permanence of the limitation of motion in his
wrist and Fulgham's testimony regarding his diminished capacity to
perform his work and other activities. This evidence was described as
"sufficient for the jury to have found that by reason of the injury to
his left wrist, the plaintiff has sustained a lessening of earning capac-
ity in the future." Id. at 898. The court viewed as immaterial the fact
that plaintiff Fulgham was earning more at the time of trial as an
office-machine repairman than he earned in the same line of work
before the accident. See id. at 897.

In this case, Mr. French's change of jobs -- from middle school
principal to the less strenuous and lower paid position of elementary
school principal -- was powerful evidence that Mr. French had suf-
fered a loss of earning capacity. Despite Wal-Mart's contention to the
contrary, that Mr. French was, at the time of trial, still working as the
principal of William Monroe Middle School simply does not preclude
the giving of the instruction on loss of earning capacity. See id. at
897. In addition, Dr. Sinsabaugh testified to the jury that Mr. French
was also at risk of losing his job as an elementary school principal in
the future, because

        of his limitations, the permanency of his condition, the dem-
        onstrated time missed, the continued need to take the nar-
        cotic medication, [and] the restrictions he has in standing,
_________________________________________________________________

7 See supra note 4 (subparagraph (6)).

                     9
          sitting, reaching, walking and all those other functions he
          needs to work.

Under the authority of Fulgham, the testimony of Dr. Sinsabaugh,
coupled with the medical evidence of Dr. Isaacs and Mr. French's tes-
timony regarding his limitations and chronic pain after the accident,
was clearly sufficient to support the jury instruction on loss of earning
capacity. Fulgham, 294 S.E.2d at 898; see also Clark v. Chapman,
385 S.E.2d 885, 892 (Va. 1989) (testimony from doctor that plaintiff
suffered partial permanent disability in left arm and testimony from
plaintiff regarding chronic pain sufficient to support a jury instruction
on loss of earning capacity). Therefore, we also conclude that the dis-
trict court did not abuse its discretion in giving the loss of earning
capacity instruction to the jury.

C.

Wal-Mart also claims in its appeal that the district court erred in
allowing Dr. Sinsabaugh to testify that Mr. French suffered a loss of
earning capacity because Mr. French was at risk of losing his elemen-
tary school position in the future. Wal-Mart contends that this testi-
mony was speculative and Dr. Sinsabaugh's methods were unreliable.
This court also reviews a district court's decision to admit or exclude
expert testimony for abuse of discretion, Kopf v. Skyrm, 993 F.2d 374,
378 (4th Cir. 1993), including a district court's decision that expert
testimony satisfies the test for relevance and reliability under Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Benedi
v. McNeil-P.P.C., Inc., 66 F.3d 1378, 1384 (4th Cir. 1995). An
expert's testimony is admissible, under Rule 702 of the Federal Rules
of Evidence, if it "rests on a reliable foundation and is relevant."
Kumho Tire Co. v. Carmichael, 119 S. Ct. 1167, 1171 (1999) (extend-
ing Daubert's gatekeeping obligations to all expert testimony). A dis-
trict court has the "same broad latitude when it decides how to
determine reliability as it enjoys in respect to its ultimate reliability
determination." Id. at 1171; see also Westberry v. Gislaved Gummi
AB, No. 98-1540, 1999 WL 317537 (4th Cir. May 20, 1999).

As an initial matter, Wal-Mart did not object to Dr. Sinsabaugh's
qualifications as a rehabilitation counselor, a field in which he had
practiced for over twenty-five years. The record, which includes Dr.

                     10
Sinsabaugh's proffer of evidence, the numerous motions made by
Wal-Mart to exclude his testimony, and the district court's consider-
ation thereof, amply support the conclusion that the district court sat-
isfied its gatekeeping obligations under Kumho and Daubert. It is
clear that the district court gave careful consideration to the evidence
provided by Dr. Sinsabaugh, and to the relevant issues asserted with
respect to its admissibility.

Although the district court permitted Dr. Sinsabaugh to testify
regarding Mr. French's loss of earning capacity, it limited his testi-
mony to Mr. French's capacity and competence to perform his work
as an elementary school principal. The district court did not permit
Dr. Sinsabaugh to testify to the specific sum he found to represent Mr.
French's lost earning capacity, because it found there was a lack of
a proper foundation. Indeed, despite the district court's indication that
it would relax discovery cut-offs if Wal-Mart needed more prepara-
tion time prior to trial to arrange for rebuttal expert testimony, Wal-
Mart neither identified nor sought to call any witness to either rebut
or dispute Dr. Sinsabaugh's testimony. And Wal-Mart, of course, had
the opportunity to fully cross-examine Dr. Sinsabaugh with respect to
his evidence.

Accordingly, given the circumstances of this case, we are unable
to find that the district court abused its discretion in admitting Dr.
Sinsabaugh's testimony.

D.

Finally, Wal-Mart contends that the district court abused its discre-
tion by denying Wal-Mart's motion for a new trial based on exces-
siveness of the verdict. We review for abuse of discretion a district
court's denial of a Rule 59(a) new trial motion based upon alleged
excessiveness of a jury's compensatory damage award. Konkel v. Bob
Evans Farm, Inc., 165 F.3d 275, 280 (4th Cir. 1999) (citation omit-
ted). The law of Virginia governs consideration of Wal-Mart's new
trial motion and supplies the standard for determining whether the
jury award to Mr. French is excessive. See Gasperini, 518 U.S. at
438-39 (holding that a district court sitting in diversity must apply
state law standards when it considers a Rule 59(a) new trial motion

                     11
based upon the alleged excessiveness of the jury's compensatory
damage award); see also Konkel, 165 F.3d at 280.

The Supreme Court of Virginia has adopted the "shocks the con-
science" test for review of excessiveness claims. It has clearly
explained that a damage award may only be set aside as excessive if

          [it] is so excessive that it shocks the conscience of the court,
          creating the impression that the jury was influenced by pas-
          sion, corruption or prejudice; that the jury has misconceived
          or misunderstood the facts or the law; or, 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.

Poulston v. Rock, 467 S.E.2d 479, 481 (Va. 1996). Moreover, "there
is no fixed rule or standard by which damages can be measured for
mental and physical suffering." Hughes v. Moore, 197 S.E.2d 214,
220 (Va. 1973). Of significance here, the district judge, in denying
Wal-Mart's motion for a new trial, found that he was"not shocked
that the verdict of this amount was handed down by the jury."

In support of this claim of error, Wal-Mart contends that, factoring
out of the verdict approximately $100,000 in past and future lost
wages and past medical expenses, there was simply insufficient evi-
dence of pain and suffering to support the balance of the jury award.

The jury was properly instructed that it could award damages to
Mr. French for "any physical pain and mental anguish he suffered in
the past and any that he may be reasonably expected to suffer in the
future."8 Under Virginia law,"loss of enjoyment of life" is compensa-
ble and is included within the purview of "suffering." As the Supreme
Court of Virginia has explained, "the term `suffering' can readily be
understood by juries to encompass the mental anguish resulting from
the loss of enjoyment of life." Bulala v. Boyd, 389 S.E.2d 670, 677
(Va. 1990) (citation omitted). As discussed earlier, Mr. French pre-
sented substantial evidence to the jury of pain and suffering,
inconvenience,9 and loss of enjoyment of life resulting to him from
_________________________________________________________________
8 See supra note 4 (subparagraph (2)).
9 See supra note 4 (subparagraph (4)).

                    12
the back injury caused by the accident. Indeed, the evidence supports
the conclusion that Mr. French's suffering and loss of enjoyment of
life affected every aspect of his existence: from work and family to
his avocation -- golf.10 He could no longer share a bed with his wife,
watch his daughter sing in the church choir, or participate in many
other aspects of family, community, and work life.

Wal-Mart further argues that the district court should have exam-
ined comparable Virginia cases, and that if the court had done so, it
would have concluded that an award of $1 million to French was
excessive. We disagree. The district court is not required to review
previous awards in similar cases; indeed, Virginia law appears to cau-
tion against such an approach. Williams Paving Co. v. Kriedl, 104
S.E.2d 758, 764 (Va. 1958). The Supreme Court of Virginia
instructed in Williams Paving that

          the inadequacy or excessiveness of each verdict must be
          determined on the facts of the case, the character of the inju-
          ries sustained, and their resultant effect upon the injured
          party, which are never identical, and but seldom similar.
          Hence the amounts of respective verdicts for somewhat like
          physical injuries are by no means controlling or determina-
          tive of whether a verdict under consideration is excessive or
          not, or inadequate or not.

104 S.E.2d at 764.

The evidence of Mr. French's loss of enjoyment of life is more
_________________________________________________________________
10 The uncontradicted evidence established that Mr. French was an avid
golfer who, before the accident, possessed a two-to-three handicap. This
evidence substantiates the fact that he had been a very accomplished
golfer. Although not of record here, the United States Golf Association
(USGA), the national governing body of golf and developer of the handi-
cap system, permits a male golfer with a 2.4 handicap or better to attempt
to qualify for the U.S. Men's Amateur Championship, and a 7.4 handicap
or better authorizes a man over 55 to attempt to qualify for the U.S.
Senior Men's Amateur Championship. A male with a handicap of 1.4 or
better may seek to qualify for the United States Open Championship. See
USGA Entry Forms for US Open, Men's Amateur, and Senior Amateur.

                     13
than sufficient to support the verdict here. Given the evidence pre-
sented at trial and summarized above, we hold that the district court
did not abuse its discretion in finding that it was not shocked by the
verdict, and in therefore denying Wal-Mart's motion for a new trial.

III.

Finding no reversible error with respect to the jury award of dam-
ages to Mr. French, the judgment of the district court is hereby
affirmed.

AFFIRMED

                    14
