PRESENT: All the Justices

ALLIED CONCRETE COMPANY, ET AL.
                                            OPINION BY
v.   Record No. 120074                JUSTICE CLEO E. POWELL
                                         January 10, 2013
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.   Record No. 120122

ALLIED CONCRETE COMPANY, ET AL.

           FROM THE CIRCUIT OF THE CITY OF CHARLOTTESVILLE
                      Edward L. Hogshire, Judge

      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. BACKGROUND

      On 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 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 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. TRIAL

     Trial 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




                                 2
attorney on the case, Matthew B. Murray 1 (“Murray”), arguing that

Lester conspired with Murray to intentionally and improperly

destroy evidence related to Lester’s 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.

     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.




     1
       At that time, Murray was the managing partner for the
Charlottesville office of Allen, Allen, Allen & Allen (the
“Allen Firm”).

                                3
                  B. SPOLIATION OF FACEBOOK EVIDENCE

        On January 9, 2009, during the 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.

        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 be deleted” from his Facebook

page.    In a follow-up email, Smith reiterated Murray’s


                                   4
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!” 2

     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 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 directive to

“clean up” his Facebook account, Lester deleted 16 photos from

his Facebook page.   On May 14, 2009, Murray sent the copies of


     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.
     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.

                                 5
Lester’s Facebook page to Allied Concrete.   On October 12, 2009,

Murray provided additional, updated copies of Lester’s Facebook

page to Allied Concrete.

     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 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. 4


     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.

                                  6
     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. LESTER’S CREDIBILITY

     In 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:

     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



                                7
     any award due to the beneficiaries, Gary Scott
     and Jeanne Scott.

     The trial court noted 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 MISCONDUCT

     During 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 on Wheels”).

This was relevant because the Allen Firm sponsored the website

of Meals on Wheels.   Indeed, it was later revealed that Hoy had


                                   8
communicated 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 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. REMITTITUR

     On the issue of remittitur, the trial court examined

Murray’s conduct during trial, specifically noting “a number of

actions designed 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


                                 9
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. 6

     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 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 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.


     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.

                                10
       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 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.

       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. ANALYSIS

       On 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.


                                  11
                        A. PARTY MISCONDUCT

     Allied Concrete argues that the trial court erred in

denying its motion for a retrial because the entire trial was

tainted by Lester’s dishonest conduct and Murray’s unethical

conduct.   Allied Concrete contends that the misconduct had a

cumulative effect that could not be mitigated by anything short

of a new trial.   We disagree. 7

     A 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).

     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 to the jury and gave a


     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.

                                   12
jury instruction relating to Lester’s misconduct twice, once

during his testimony and once before the case was turned over to

the jury. 8

     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.

     “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 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

     8
       Additionally, the trial court awarded Allied Concrete the
attorney’s fees and costs it expended in addressing and
defending against the misconduct.

                               13
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. 9

                        B. JUROR MISCONDUCT

     Allied 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.


     9
       Allied Concrete’s argument relies heavily on Federal 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
Concrete has failed to make such a demonstration.



                                 14
     “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, “‘[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 (1973)

(quoting Bruton v. United States, 391 U.S. 123, 135 (1968)).

     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.” Smith v. Phillips, 455 U.S. 209, 217
     (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 (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


                                15
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 of the trial court’s analysis on this issue.    It

has been recognized that 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.

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 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 Firm website and then routed to Murray.    Murray

specifically testified that he had never met or spoken with Hoy



                                16
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

     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.



                                 17
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 “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. 11

                          C. REMITTITUR

     In 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

     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 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.”).

                                18
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 because his relationship with Jessica was

different from Jessica’s relationship with her parents.

        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.

Edmiston v. Kupsenel, 205 Va. 198, 202, 135 S.E.2d 777, 780

(1964).

        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.

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:




                                  19
     (1) we 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) 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 award to the Scotts.   This was

error.   Although 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




                                20
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

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, 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

     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.



                                21
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.

     It is axiomatic that the 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, 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 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.




                                22
                         III. CONCLUSION

     Allied 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 evidence adduced at

trial would tend to show that Hoy’s lack of a response was, in

fact, an honest 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.


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


                                23
     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 or the
     law which should guide them to a just conclusion.

Bassett Furniture Indus., Inc. v. McReynolds, 216 Va. 897, 912

n.*, 224 S.E.2d 323, 332 n.* (1976) (quoting Chesapeake & Ohio

Ry. 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


     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 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

                                24
new factual scenario comes before the 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. 2

     Today the Court introduces yet another restriction on the

trial court's power to remit a jury verdict.   According to the

majority, the trial court must provide a way for this Court to



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 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.

                                25
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.

     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 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


                                 26
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. 3

     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,

     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) (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.

                                27
     [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 page."
     American Oil Co. v. Nicholas, 156 Va. 1, 12, 157
     S.E. 754, 758 (1931). 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 (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 a




                                28
retrial on the basis of the misconduct by Lester and Murray or

err in refusing to grant a mistrial due to juror misconduct.




                               29
