Sands Anderson PC: Itemized Damages Permitted in Closing Arguments

Sands Anderson PC: Itemized Damages Permitted in Closing Arguments

By Sarah Warren Beverly

In an opinion that the Virginia Supreme Court handed down in March of this year, Justice Powell, writing for the majority, held that counsel for the plaintiff, in his closing argument, was permitted to assign a fixed dollar amount for each element of damages sought. Wakole v. Barber, 283 Va. 488, 722 S.E.2d 238 (2012) [enhanced version available to subscribers].

The plaintiff originally filed suit in Fairfax Circuit Court for personal injuries she sustained in an automobile accident, seeking $50,000 in damages. The defendant admitted liability, and the trial proceeded forward on damages alone. The plaintiff introduced evidence of her medical expenses, which totaled approximately $5,000. In his closing argument, Barber's counsel displayed a chart, specifically calling it a formula, of all elements of damages sought-medical bills, past inconvenience, past pain and suffering, full compensation for her injuries, and future pain and limitations-assigning a monetary value to each item. By adding these component parts, the plaintiff arrived at the total amount of damages sought. Over the defendant's objection that this type of argument was speculative and violated Virginia Supreme Court precedent, the court permitted the plaintiff's counsel to present the argument, and the jury returned a $30,000 verdict for the plaintiff.

In holding the trial court did not err in denying the defendant's motions to prohibit this type of argument, the Supreme Court distinguished the facts at issue from Certified T.V. & Appliance Co., Inc. v. Harrington, 201 Va. 109, 109 S.E.2d 126 (1959) [enhanced version], which until Wakole had been construed to prohibit itemization of damages in a closing argument. In Certified T.V., plaintiff's counsel presented a mathematical formula to the jury in order to calculate the plaintiff's pain and suffering on a per diem basis. The formula invaded the province of the jury. It presented the jury with information not in evidence. Specifically, the Wakole Court found fault with counsel's arrival at the per diem amount; there was no evidence that the plaintiff's pain and suffering was constant from day to day, or that it was a number individualized to the plaintiff's level of pain. The formula, and therefore the itemization of damages in the plaintiff's closing argument, amounted only to the speculation of counsel and was impermissible.

However, Justice Powell held that the plaintiff in Wakole was not using a formula, but was simply taking the total fixed dollar amount sought and breaking them down into their component parts:

Consequently, just as counsel can argue for a total amount requested by the plaintiff, there is no principled reason why a plaintiff should not be able to request a specific amount for each element of damages sought as long as there is evidence in the record to support each element of damages claimed and the total request is no more than the ad damnum.

283 Va. at 494, 722 S.E.2d at 241. The majority also found that the argument did not violate Virginia Code § 8.01-379.1, which permits a party to disclose to the jury the amount of damages sought. Because the plain language of the statute does not require only one lump sum to be presented to the jury, counsel for the plaintiff was entitled to list out a fixed amount for each element of damages.
Justice McClanahan, in her dissenting opinion, found Certified T.V. not so distinguishable, asserting that the rationale behind the decision was intended to prohibit counsel's assignment of fixed and arbitrary values that add up to the ad damnum. In his closing argument, counsel for the plaintiff referred to the chart as a formula, assigned a monetary amount for each item of intangible damages, added and totaled them to $50,000. Justice McClanahan found these values to be exactly what Certified T.V. prohibited: "'estimates of counsel' that 'instill[ed] in the minds of jurors impressions not founded on the evidence.'" Id. at 497, 722 S.E.2d at 243 (quoting Certified T.V., 201 Va. at 115, 109 S.E.2d at 131)). These fixed values assigned to each element were still speculation and not supported by evidence in the record.

However, the majority holding of Wakole appears to have qualified Virginia Supreme Court precedent prohibiting use of a formula to present damages to the jury. Certified T.V. may now stand only for the principle that it is improper to use a per diem formula multiplied by a certain number of days to reach a large, fixed value. However Wakole permits counsel in a closing argument to separate the total damages into their component parts and assign each a fixed value.

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