In the automobile accident case of Wakole v. Barber, No. 102176 (Va. Mar. 2, 2012), the Virginia Supreme Court held 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.” Id. at 8. It explained further that argument did not violate the “unambiguous…plain meaning” of Va. Code Ann. §8.01-379.1: “Nothing in this provision states when addressing the jury regarding the total amount sought, the plaintiff may only do so in terms of one lump sum.” Id. at 9.
“During Barber’s closing argument, she presented a chart from which the jury could calculate damages, which she called a formula.” Id. at 3 (emphasis added). Nonetheless the Wakole car crash opinion held that reference to “formula” acceptable: “It is clear from reading the record that the formula to which counsel referred was derived from Virginia Model Jury Instructions – Civil, No 9.000.” Id. at 8.