$2.17 Million Verdict for Man Left in Chronic Pain After Vasectomy Nerve Injury

On October 7, 1994, Dr. Aurelio Benavides performed a vasectomy on Kent Gerver using a local anesthetic. Gerver testified that partway through the procedure he felt a sudden, sharp pain on the left side of his scrotum, as if something were being ripped from his body. The pain did not stop when he left the office.

Over the next two months Gerver saw doctors on 21 occasions looking for relief. Other specialists were brought in and further procedures were tried. When the case went to trial more than three years later, he was still in chronic groin pain and was taking methadone to manage it. He had been a machinist at General Electric. After the vasectomy he was moved to packing boxes on an assembly line, sitting with a bag of ice in his lap, and he later had to stop working because his medication made it unsafe for him to continue. He also described severe pain during intercourse.

Gerver and his wife, Billie Jo, sued Dr. Benavides in the Circuit Court of Berkeley County, West Virginia, alleging negligence in how the vasectomy was done. Their experts testified that the most likely cause of the pain was a suture placed through a nerve and never removed, and one of them testified that this fell below the standard of care. The experts also said the pain was likely to continue. Billie Jo Gerver testified about the loss of her husband's companionship. The defense acknowledged that something may have gone wrong during the vasectomy but argued that it was performed within the standard of care, and that pain after surgery can have other causes.

Trial began on March 10, 1998, before Judge David H. Sanders, and the jury returned its verdict on March 13. It found Dr. Benavides negligent and awarded Kent Gerver $2,118,431.11: $30,301.52 for medical expenses to date, $88,129.59 for lost wages and benefits to date, and $2 million in general damages covering future medical care, pain and suffering, lost earning capacity and loss of enjoyment of life. Billie Jo Gerver was awarded $50,000 for loss of consortium. The court entered judgment for $2,168,431.11 on March 18.

The verdict did not hold at first. After the judgment, the defense filed a fraud motion backed by surveillance video, shot between late March and late May 1998, of Gerver lifting a plastic lawn chair, sitting on a riding mower, running a weed trimmer and bending to pick up a piece of trash. On June 22, 1998, Judge Sanders vacated the judgment and ordered a new trial, finding that the video damaged Gerver's credibility and that his lost earning capacity had not been proved. During the trial the judge had also struck the testimony of the plaintiffs' economist and told the jury to disregard it. He denied the Gervers' requests to present evidence answering the video.

Barry J. Nace of Paulson & Nace in Washington, D.C., now Nace Law Group, and D. Michael Burke of Burke & Schultz in Martinsburg represented the Gervers on appeal. The Supreme Court of Appeals of West Virginia reversed on December 13, 1999. It held that Gerver never claimed he could not do the light tasks on the tape, that nothing in the video contradicted when his pain began or how it affected his life, and that evidence offered only to impeach a witness is a poor ground for a new trial. It found the medical testimony and wage records enough for the jury to conclude that his earning capacity was permanently impaired. It also turned down the doctor's request to cut the general damages under the state's cap on noneconomic damages, because the defense had not objected to a verdict form that combined economic and noneconomic losses on one line. The court sent the case back for entry of judgment on the jury's verdict.

The decision was not unanimous. Justice Maynard dissented, writing that the trial judge, who had watched Gerver in the courtroom, was better placed to weigh the video. Chief Justice Starcher concurred, writing that the tape showed a man moving slowly and in obvious discomfort, and that the defense had focused on liability and offered little or nothing on damages at trial.