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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
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attorney on the case, Matthew B. Murray1  (“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”).
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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
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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.
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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.
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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
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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
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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
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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.
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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.
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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.
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“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
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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.
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[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

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