Jordan v. Bero

In Jordan v. Bero, 158 W.Va. 28, 210 S.E.2d 618 (1974), a ten-year-old had sustained a severe and permanent brain injury after being hit by a car while riding his bicycle. The Court was called upon in Jordan to delineate the quantum of evidence necessary to meet the established reasonable certainty standard to support a jury instruction on the issue of damages for lasting and permanent effects of an injury suffered at the hands of a negligent defendant. The decision in Jordan necessarily focused on the medical evidence needed to prove a permanent physical injury in the context of an earnings capacity claim because of the plaintiff's reliance on his physical injury as the reason for his impaired earning capacity. In Jordan, a ten year old child was hit by a car while riding his bicycle. The child sustained permanent brain damage due to the accident. As a result of the brain damage, a jury awarded the child compensation for lost or impaired earning capacity. One of the issues the Court had to decide in Jordan was "whether sufficient evidence of future consequences from the negligent act of the defendant was proven to lawfully permit the jury to make an award for the future effects of the permanent injury." Jordan, 158 W. Va. at 52, 210 S.E.2d at 634. As an initial matter, Jordan held "that to form a basis of a legal recovery for the future permanent consequences of the wrongful infliction of a personal injury, it must appear with reasonable certainty that such consequences will result from the injury. Contingent or merely possible future injurious effects are too remote and speculative to support a lawful recovery." (158 W. Va. at 42, 210 S.E.2d at 629.) The decision next held that "the prognosis of the future effect of permanent injuries ... must be elicited from qualified experts, evaluated first by the court and then, if found sufficient, considered by the jury upon proper instruction." Jordan, 158 W. Va. at 49, 210 S.E.2d at 633. Jordan then went on to provide a non-exhaustive list of examples of the types of claims that permit recovery for future damages: Future damages are those sums awarded to an injured party for, among other things: (1) Residuals or those future effects of an injury which have reduced the capability of an individual to function as a whole man; (2) future pain and suffering; (3) loss or impairment of earning capacity; (4) future medical expenses. (158 W. Va. at 52, 210 S.E.2d at 634.) The Jordan Court concluded: There was ample evidence of permanency of an injury which was obscure only in its final and ultimate effects. Lay and medical evidence adduced in support of the plaintiff's case demonstrated that in addition to the permanent injury, plaintiff had suffered deleterious effects from the automobile accident from which a jury may have reasonably inferred he will so suffer in the future and that such suffering and residuals will effect this capacity to function as a whole man in the future. (158 W. Va. at 58-59, 210 S.E.2d at 638.)