OPINION BY Justice CLEO E. POWELL.
In this appeal, we address whether the circuit court erred in 1) allowing counsel for Narmina Barber, a personal injury plaintiff in an action arising from an automobile accident, to argue in his closing that each item of damage was separate and had a fixed numerical value, and 2) permitting Barber's counsel to enumerate each item of damages to the jury during closing argument.
On November 10, 2006, Barber was a passenger in an automobile driven by her husband when Wakole made a sudden left turn in front of their vehicle hitting the passenger side of the Barber's vehicle. Although Barber felt pain at the time of the accident, she declined to go to the hospital but later sought several types of treatment with limited success for headaches and neck pain.
Prior to the accident, Barber was "always full of energy, ready to work, ready to clean the house, ready to go out and party, just always go, go, go." Since the accident, she has often been irritable because of the pain and the limitations that the pain places on her activities with family and friends. She periodically has had to hire people to assist her with thoroughly cleaning her home. Her friends now describe her as depressed and without energy.
As a result of her injuries, Barber brought this action against Wakole, who admitted liability for the accident but disputed the extent of Barber's damages. At trial, Barber entered two exhibits of her medical expenses— one for $948 and one for $4,173. In her complaint, Barber requested $50,000 in damages.
Prior to closing argument, Wakole objected to any argument by Barber that would amount to using Civil Model Jury Instruction 9.000 as a mathematical formula utilizing each type of damage as a line item. Wakole's counsel argued that this Court's decision in Certified T.V. & Appliance Co., Inc. v. Harrington, 201 Va. 109, 109 S.E.2d 126 (1959), prohibited such an argument because that case held that counsel may not propose a method to the jury by which the jury ought to calculate damages. Counsel did not dispute that Barber put on evidence of pain, suffering, and inconvenience but argued that
During Barber's closing argument, she presented a chart from which the jury could calculate damages, which she called a formula, and argued for $50,000 in damages, including compensation for medical bills, past inconvenience, "full and fair compensation for the injuries she sustained," future medical expenses, past pain and suffering, and her pain and limitations that she will have for the remainder of her life.
"[T]he purpose of closing argument is to draw the jury's attention to the body of evidence that has been admitted into the record and to argue reasonable inferences that may be drawn from that evidence." Graham v. Cook, 278 Va. 233, 250, 682 S.E.2d 535, 544 (2009). We have often said that "determinations regarding the propriety of argument by trial counsel are matters left to the sound discretion of the circuit court." Id. at 249, 682 S.E.2d at 544. We will not reverse a circuit court's ruling unless such ruling was an abuse of discretion and the rights of the complaining litigant have been prejudiced. Id.
Here, Wakole argues that the circuit court erred in allowing Barber to use a chart during her closing argument to request specific amounts from the jury for certain categories of damages. To support this argument, Wakole relies upon our holding in Certified T.V. Such reliance, however, is misplaced.
In Certified T.V., we held that allowing plaintiff's counsel to make an argument to the jury based upon a "daily or other fixed basis" would permit the plaintiff to present that which is not in evidence and invade the province of the jury. 201 Va. at 114-15, 109 S.E.2d at 131. "Verdicts should be based on deductions drawn by the jury from the evidence presented and not the mere adoption of calculations submitted by counsel." Id. at 115, 109 S.E.2d at 131. What amounted to putting information not in evidence before the jury and thereby invading its province in Certified T.V. was "the use by plaintiff's counsel of a mathematical formula setting forth on a blackboard the claim of pain, suffering, mental anguish, and the percentage of disability suggested by him on a per diem or other fixed basis...." Id. We concluded that doing so was "speculation of counsel unsupported by evidence, amounting to his giv[ing] testimony in his summation argument, and that it was improper and constituted error." Id. (citations omitted). The specific argument in Certified T.V. that was objected to and ruled to be inappropriate by this Court was as follows:
Id. at 113, 109 S.E.2d at 130. In passing on the impropriety of the argument, we stated:
Id. at 114, 109 S.E.2d at 130. The danger against which the Court sought to guard was an argument placed before the jury that was not based on the evidence and further was based on a flawed premise that pain and suffering is constant from individual to individual and the degree of pain is the same daily. Id. at 115, 109 S.E.2d at 131.
These are not the facts of the present case. Here, Barber's counsel presented the jury with a chart detailing various amounts sought for different categories of damages. At one point, counsel argued that Barber hoped to live an additional thirty-five to forty years but did not assign a per diem rate to this expectation. What Barber did was ask for a fixed dollar amount for each category of damages.
There is no question that a plaintiff is allowed to ask for a total fixed dollar amount for any provable, non-economic damages to include bodily injury, physical pain, mental anguish (past and future), and inconvenience (past and future). There is no question that the lump sum amount requested, unlike medical bills or lost wages, is based on intangibles for which there is no specific evidence of monetary value in the record. The only limitations on a request for a lump sum are that the amount be supported by the evidence and be an amount that will fully and fairly compensate the plaintiff for damages suffered as a result of the defendant's negligence.
Tellingly, because a plaintiff can request one lump sum for all of the provable elements of damage combined, if a plaintiff suffered only one non-economic loss, i.e., bodily injury, any amount sued for above the economic loss would be an amount that counsel should be able to request by amount. 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 requested is no more than the ad damnum.
It has long been recognized that plaintiff is allowed to ask for a "fixed amount" for non-economic loss caused by the defendant's negligence. Today, we hold that, as long as there is evidence to support an award of non-economic damages, plaintiff is allowed to break the lump sum amount into its component parts and argue a "fixed amount" for each element of damages claimed as long as the amount is not based on a per diem or other fixed basis.
Here, because the defendant concedes that there was evidence to support the plaintiff's non-economic damages, we hold that the trial court did not err in allowing Barber to request a fixed amount for each element of damages claimed.
Next, Wakole argues that by allowing Barber's counsel to enumerate each item of damages, the trial court violated Code § 8.01-379.1. Essentially, Wakole contends that because the statute allows the parties to
Issues of statutory interpretation are pure questions of law that we review de novo. Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174, 178 (2007). "When the language of a statute is unambiguous, we are bound by the plain meaning of that language. Furthermore, we must give effect to the legislature's intention as expressed by the language used unless a literal interpretation of the language would result in a manifest absurdity." Id. (internal citations omitted).
The Code does address what a jury may be told about the amount a plaintiff sues for:
Code § 8.01-379.1. Nothing in this provision states that when addressing the jury regarding the total amount sought, the plaintiff may only do so in terms of one lump sum. "Courts cannot `add language to the statute the General Assembly has not seen fit to include.'" Jackson v. Fidelity & Deposit Co., 269 Va. 303, 313, 608 S.E.2d 901, 906 (2005) (quoting Holsapple v. Commonwealth, 266 Va. 593, 599, 587 S.E.2d 561, 564-65 (2003)). To take Wakole's argument to its logical conclusion, a plaintiff would be precluded from presenting separate amounts for quantifiable losses like medical expenses and lost wages as well as those from non-economic losses, e.g., pain and suffering. This interpretation would read into the statute language that is not there. Thus, we hold that the trial court did not err in allowing Barber's argument.
For the foregoing reasons, we will affirm the judgment of trial court.
Affirmed.
Justice McCLANAHAN, dissenting.
The dangers against which this Court sought to guard in Certified T.V. were allowing counsel to use closing argument to introduce evidence that was not before the jury and allowing counsel to invade the province of the jury by suggesting a calculation for damages. The circuit court allowed both in permitting Barber's counsel to introduce estimates of value for each element of intangible damages and place those values into what counsel referred to as "the formula" given by the court. In concluding that Certified T.V. is not dispositive, the majority ignores the ratio decidendi for the Court's holding.
Prior to closing arguments, Wakole objected to the use of a formula with fixed values for elements of pain, injuries, and inconvenience. As Wakole explained to the circuit court, Barber's counsel planned to use
Wakole asserted such argument was improper since it would "suggest a method to the jury as to how they are to go about coming up with a number" and because "the numbers that are assigned to each individual factor are entirely arbitrary." Overruling Wakole's objection, the circuit court agreed with Barber that Certified T.V. only prohibits a "per diem argument."
During closing argument, Barber's counsel utilized a poster board containing a chart that counsel represented as the law the judge "just read to you." Telling the jury that "[t]his is the formula," counsel displayed a chart containing an itemization of intangible damages that included blank lines for past inconvenience, future inconvenience, injuries,
By allowing counsel to introduce values representing each element of intangible damages into a calculation Barber represented as "the formula" based on the instruction given to the jury, the circuit court permitted Barber's counsel "to invade the province of the jury and to get before it what does not appear in the evidence." Certified T.V. & Appliance Co., Inc. v. Harrington, 201 Va. 109, 115, 109 S.E.2d 126, 131 (1959). The values placed upon the elements of intangible damages were "estimates of counsel" that "instill[ed] in the minds of the jurors impressions not founded on the evidence." Id. In fact, "an expert witness would not be permitted to testify as to the market value of pain and suffering." Id. Thus, counsel's use of these fixed values was "speculation" that was "unsupported by evidence, amounting to his giv[ing] testimony in his summation argument." Id. Although wide latitude is generally given by the court during closing argument, "[c]ounsel has no right to testify in the guise of making argument, nor to assume the existence of evidence that has not been presented." Graham v. Cook, 278 Va. 233, 250, 682 S.E.2d 535, 544 (2009).
Wakole's argument did not constitute a concession that would open the door for allowing counsel to introduce, in his closing argument, evidence of the values assigned to these elements of damage.