                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Michael Gilbert, individually and as
Administrator and personal representative                                       FILED
of the Estate of Patrick M. Gilbert, deceased,                             November 10, 2016
Plaintiff Below, Petitioner                                                    RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
vs) No. 15-0994 (Kanawha County 13-C-358)

West Virginia Department of Transportation,

Division of Highways, Ronnie Lee Conrad, and John Doe(s),

Defendants Below, Respondents



                              MEMORANDUM DECISION
       Petitioner Michael Gilbert, individually and as Administrator and personal representative
of the Estate of Patrick M. Gilbert, deceased, by counsel Michael A. Jacks, appeals the “Order
Denying Plaintiff’s Motion to Set Aside Verdict and For a New Trial” entered by the Circuit
Court of Kanawha County on September 14, 2015. Respondents West Virginia Department of
Transportation, Division of Highways, Ronnie Lee Conrad, and John Doe(s), by counsel James
D. Stacy II, filed a response. Petitioner filed a reply.

        This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

                             Factual and Procedural Background

       This case stems from a motor vehicle accident that occurred on Interstate 79, about ten
miles south of Weston, West Virginia, on March 6, 2011. On that day, Respondent Ronnie
Conrad, an employee of Respondent West Virginia Division of Highways (“DOH”), was driving
a DOH Ford F-250 truck southbound in the right-hand lane to patrol the stretch of the interstate
between Weston and Flatwoods. The weather was overcast, snow was falling, and slush was
forming on the roadway. Mr. Conrad’s coworker, James Mimms, was in the passenger seat.

        As Mr. Conrad drove through a right-hand curve, Mr. Mimms spotted a disabled vehicle
on the right-hand berm facing northbound that had spun one-hundred and eighty degrees to face
oncoming traffic. Mr. Mimms advised Mr. Conrad that he spotted the vehicle and that he
believed the driver was still inside. In response, Mr. Conrad slowed his truck and pulled onto the
right-hand berm. Behind the truck driven by Mr. Conrad was a Toyota Corolla being driven

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southbound by Patrick Gilbert (“Mr. Gilbert”), petitioner’s twenty-year-old son. With Mr.
Gilbert in the Toyota were his sister, Jamie Spik, who was seated in the front passenger seat, and
his brother, Kyle Gilbert, who was seated in the back seat. The three siblings were traveling from
Pittsburgh to South Carolina. It is undisputed that Mr. Gilbert collided with the left rear corner of
the DOH truck and died as a result of the accident.

        Soon after the collision, West Virginia State Police Trooper Roy Allen Moss, who was
traveling southbound through the same stretch of interstate, came upon the disabled vehicle in
the right-hand berm facing the opposite direction. Trooper Moss spoke to the driver, who was
uninjured. As Trooper Moss traveled further south, he came to Mr. Gilbert’s Toyota that was off
of the interstate. Trooper Moss attempted to interview Ms. Spik and Kyle Gilbert, who were
outside of the vehicle, but neither could state what had occurred. Trooper Moss then came to Mr.
Conrad’s truck in the berm. He interviewed Mr. Conrad and Mr. Mimms, both of whom stated
that they had been struck from behind by the Toyota after they had pulled off of the interstate
and were slowing down in the berm. Trooper Moss took measurements from the accident scene
that he incorporated into a diagram.

        Petitioner filed a wrongful death action against Mr. Conrad and the DOH, claiming that
Mr. Conrad’s negligence caused the accident that resulted in his son’s death. The matter
proceeded to a jury trial in February of 2015. Petitioner’s theory at trial was that Mr. Gilbert
struck the DOH truck while the DOH truck was still at least partially on the interstate in the
process of slowing down and pulling onto the berm, as opposed to striking the DOH truck after it
was already on the berm. Petitioner supported this theory with the testimony of Ms. Spik, who
claimed that something was directly in front of them that caused Mr. Gilbert to slam on his
brakes and turn sharply to the right. Ms. Spik testified that these memories came to her
approximately a couple of days to a month after the accident. Petitioner also claimed, through
expert testimony, that Mr. Conrad must have slowed the DOH truck too abruptly, as evidenced
by (1) the testimony that Mr. Simms told Mr. Conrad about the disabled vehicle two to four
seconds after spotting it; (2) the fact that it typically takes a driver one to one-and-a-half seconds
to apply the brakes after deciding to stop; (3) the testimony that Mr. Conrad was traveling at
approximately fifty miles per hour when he passed the disabled vehicle; and (4) assuming the
estimates of stop-time and Mr. Conrad’s speed were accurate, Mr. Conrad would have had to
apply his brakes very hard to come to a stop at the point of collision.

        Respondents’ evidence was that Mr. Conrad used his right turn signal light before he
started to pull onto the berm; that Mr. Conrad was trained not to use his overhead warning lights
until he was on the berm; that Mr. Conrad had been traveling on the berm for several feet before
being struck by the Toyota; that Mr. Conrad did not stop on the roadway, but rather had moved
to stop on the shoulder of the highway, in accordance with his training; and that Mr. Conrad, in
accordance with his habit, did not decelerate rapidly when preparing to move onto the shoulder,
but rather, traveled significantly beyond the disabled vehicle. Additionally, Mr. Mimms testified
that they were on the shoulder when Mr. Gilbert struck them, and the impact forced the DOH
truck back onto the highway; that Mr. Conrad used his right turn signal before pulling onto the
shoulder; and that Mr. Conrad did not decelerate rapidly, as petitioner alleged.




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        Respondents also relied upon expert testimony to show that Mr. Gilbert was negligent in
the accident. The expert testified that Mr. Conrad’s tire mark from his left rear tire showed that
his truck was completely on the shoulder when it was struck from behind; that based upon the
distance between the disabled car and the point of impact, there should have been ample time for
Mr. Gilbert to brake to avoid the collision, instead of Mr. Gilbert slamming on his brakes and
going into spin; and that the estimates of the time it took for Mr. Simms to report spotting the
disabled car to Mr. Conrad and the time it took for Mr. Conrad to begin slowing down had to be
too long, given that the DOH truck was only three-hundred and fifty feet from the disabled car at
the time of impact.

        The jury returned a verdict in favor of respondents, finding that Mr. Conrad committed
no negligence in the collision. Petitioner filed a motion to set aside the verdict and for a new trial
in which he argued that (1) the verdict was against the clear weight of the evidence, and (2) the
circuit court erroneously refused to allow petitioner’s expert to testify that Mr. Conrad violated
West Virginia Code § 17C-13-3(a)(17), which prohibits stopping on a controlled access highway
under certain conditions. By order entered on September 14, 2015, the circuit court denied
petitioner’s motion, and this appeal followed.

                                             Discussion

        This Court has held as follows when addressing a motion to set aside a jury verdict and
grant a new trial:

               A motion for a new trial is governed by a different standard than a motion
       for a directed verdict. When a trial judge vacates a jury verdict and awards a new
       trial pursuant to Rule 59 of the West Virginia Rules of Civil Procedure, the trial
       judge has the authority to weigh the evidence and consider the credibility of the
       witnesses. If the trial judge finds the verdict is against the clear weight of the
       evidence, is based on false evidence or will result in a miscarriage of justice, the
       trial judge may set aside the verdict, even if supported by substantial evidence,
       and grant a new trial. A trial judge's decision to award a new trial is not subject to
       appellate review unless the trial judge abuses his or her discretion.

Syl. Pt. 3, In re State Pub. Bldg. Asbestos Litig., 193 W. Va. 119, 454 S.E.2d 413 (1994). We
have further that

       [i]n determining whether there is sufficient evidence to support a jury verdict the
       court should: (1) consider the evidence most favorable to the prevailing party; (2)
       assume that all conflicts in the evidence were resolved by the jury in favor of the
       prevailing party; (3) assume as proved all facts which the prevailing party's
       evidence tends to prove; and (4) give to the prevailing party the benefit of all
       favorable inferences which reasonably may be drawn from the facts proved.

Syl. Pt. 5, Orr v. Crowder, 173 W. Va. 335, 315 S.E.2d 593 (1983). With these standards in
mind, we turn to petitioner’s arguments.



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        Petitioner raises six assignments of error on appeal, the first of which is that the circuit
court wrongfully limited and precluded certain testimony from petitioner’s expert witness. At
trial, petitioner called an accident reconstructionist to testify that Mr. Conrad stopped too
abruptly on the highway, causing Mr. Gilbert to crash into him while the DOH truck was still on
the road, rather than off the road as respondents contended. The expert’s report concluded that
Mr. Conrad violated West Virginia Code § 17C-13-3(a)(17), which states that stopping a vehicle
on a controlled access highway is a misdemeanor. Additionally, petitioner complains that the
circuit court did not allow petitioner’s expert to mention the West Virginia Commercial Driver’s
License manual in his testimony. This Court has held that a circuit court’s admission or
exclusion of evidence will not be disturbed unless it appears that such action amounts to an abuse
of discretion. See Lacy v. CSX Corp., 205 W. Va. 630, 520 S.E.2d 418 (1999).

        Petitioner argues that the circuit court prohibited him from asking the expert whether Mr.
Conrad violated the statute on the basis that such inquiry allows the expert to interpret a statute
or express an opinion on the legality of conduct, which is prohibited by General Pipeline Const.
v. Hairston, 234 W. Va. 274, 765 S.E.2d 163 (2014). However, according to petitioner, the
circuit court confused allowing an expert to interpret a law with an expert referring to a statute in
order to establish the duty and standard of care in a negligence case, the latter of which is
permissible. Petitioner contends that if he had been permitted to ask his expert his opinion about
the ultimate issue – negligence – it would have had a substantial impact on the jury because it
would have explained the cause of the collision. Additionally, petitioner argues that the circuit
court should not have limited petitioner’s expert from referring to the West Virginia Commercial
Driver’s License manual because it is not a statute; it is similar to a treatise, to which an expert
may refer in his or her testimony.1

         Upon our review of the record, we find no error by the circuit court. Petitioner’s expert
was permitted to testify to his observations and calculations that supported petitioner’s theory,
i.e., that Mr. Conrad failed to engage his overhead lights or directional arrow; that Mr. Conrad
decelerated rapidly in order to pull onto the berm, causing Mr. Gilbert to have insufficient time
to avoid the DOH truck; and the collision occurred partly on the road. Further, petitioner’s expert
was permitted to refer to and quote from the CDL manual with regard to perception and reaction
times, as well as the prohibition of a driver stopping his vehicle on a controlled access highway.
Despite the fact that the circuit court prevented petitioner’s expert from saying that Mr. Conrad
violated West Virginia Code § 17C-13-3(a)(17), the entire text of the statute was read into
evidence without any objection by respondent, and the circuit court gave an instruction on it.

        As respondents correctly argue, this case was about whether the collision occurred on the
roadway or on the berm. There was lay testimony on this issue, and the jury believed that Mr.
Gilbert collided with the DOH after the DOH truck had left the roadway. We decline to usurp the
role of the jury in deciding the matter differently. See Long v. City of Weirton, 158 W. Va. 741,
214 S.E.2d 832 (1975).




       1
        We note that the circuit court also prohibited respondents’ expert from referring to the
Pennsylvania Driver’s License Manual in his testimony that Mr. Gilbert was negligent.
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       Petitioner’s second assignment of error also relates to the circuit court’s handling of
expert testimony. Petitioner argues that the circuit court allowed unreliable, speculative, and
misleading testimony from respondents’ expert, an accident reconstructionist, who testified that
that Mr. Conrad braked reasonably and decelerated slowly. Petitioner contends these opinions
were speculative and contradicted by Mr. Conrad’s and Mr. Mimm’s testimony. In syllabus point
two of Harris v. CSX Transp., Inc., 232 W. Va. 617, 753 S.E.2d 275 (2013), this Court held as
follows:

               When a trial court is called upon to determine the admissibility of
       scientific expert testimony, in deciding the “reliability” prong of admissibility the
       focus of the trial court's inquiry is limited to determining whether the expert
       employed a methodology that is recognized in the scientific community for
       rendering an opinion on the subject under consideration. If the methodology is
       recognized in the scientific community, the court should then determine whether
       the expert correctly applied the methodology to render his or her opinion. If these
       two factors are satisfied, and the testimony has been found to be relevant, and the
       expert is qualified, the expert may testify at trial.

         The testimony at trial was that the DOH truck was traveling fifty to fifty-five miles per
hour when Mr. Conrad and Mr. Mimms approached the disabled vehicle; that Mr. Mimms
testified that it took about three to four seconds for him to see the occupant, inform Mr. Conrad,
and for Mr. Conrad to apply the brakes; and they were traveling twenty miles per hour when Mr.
Gilbert collided with them. Petitioner asserts that respondent’s expert supplanted this testimony
with his own conclusions that the sequence must have been closer to two seconds, based on the
average reaction time to apply brakes. Respondent’s expert was permitted to discount Mr.
Conrad’s and Mr. Mimm’s testimony by opining that individuals generally estimate their speed
correctly, but not their time and distances.

        “The question of . . . qualification to speak as an expert lies largely in the discretion of
the trial court whose judgment will not be reversed unless it clearly appears that the witness is
not qualified.” State v. Brady, 104 W. Va. 523, 533, 140 S.E. 546, 550 (1927). In the present
case, respondents’ expert witness was accepted as an expert without any objection from
petitioner. The only challenge to the expert’s trial testimony occurred before he took the stand,
when petitioner objected to the expert testifying to Mr. Gilbert’s mental state, or lack of
attention, and any opinions based upon the Pennsylvania Driver’s License Manual. Respondent
offered no testimony on any of these points. Instead, petitioner seems to complain now that
respondents’ expert rejected Mr. Conrad’s and Mr. Mimms’ time estimate of three to four
seconds for Mr. Mimms to inform Mr. Conrad of the occupant in the disabled vehicle and for
Mr. Conrad to apply the brakes. However, respondents’ expert explained that, based on his
training and experience, and the testimony as to the speed and distance traveled, he rejected the
time estimate because it was not physically possible. Importantly, petitioner cross-examined
respondents’ expert on his conclusions and put before the jury the same arguments he raises in
this assignment of error. Accordingly, we find no error.

       Third, petitioner argues that the circuit court erred in denying his motion in limine to
preclude respondent’s expert from testifying on the basis that respondents failed to timely

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disclose their expert. Petitioner states that respondents failed to disclose any expert witness by
the first deadline of December 31, 2013. Petitioner states further that after Mr. Conrad and Mr.
Mimms failed to appear for their depositions, the circuit court entered a new scheduling order
that required expert disclosures by October 30, 2014. Petitioner states that discovery closed on
November 15, 2014, without respondents disclosing their expert.

        Petitioner states that respondent finally disclosed their expert three days after discovery
closed, but included no reports; just his name and resume. Petitioner filed a motion on November
25, 2014 to preclude the expert from testifying because of the late disclosure. The court denied
the motion, but required the expert’s deposition be held in Morgantown, near the office of
petitioner’s counsel. Respondents filed their expert’s reports on December 29, 2014, and the
parties deposed the expert a month later. The case went to trial eleven days after the deposition.
Petitioner argues that the late disclosure and deposition deprived petitioner’s expert the ability to
adequately respond at trial to respondent’s expert.

        Upon our review, respondents’ late expert witness disclosure did not warrant the circuit
court granting petitioner’s motion in limine to preclude the expert from testifying. We recently
held that

       [f]actors that may assist a court in deciding whether to permit late supplemental
       expert witness disclosure include: (1) the explanation for making the
       supplemental disclosure at the time it was made; (2) the importance of the
       supplemental information to the proposed testimony of the expert, and the
       expert’s importance to the litigation; (3) potential prejudice to an opposing party;
       and (4) the availability of a continuance to mitigate any prejudice.

Syl. Pt. 2, State ex rel. Tallman v. Tucker, 234 W. Va. 713, 769 S.E.2d 502 (2015).

       The record demonstrates that the circuit court considered these factors when ruling on
respondents’ motion to file the expert disclosure. Additionally, petitioner was in receipt of
respondents’ expert’s full report over a month before the trial, and took the expert’s deposition
almost two weeks before trial. Aside from a conclusory assertion that his expert was not prepared
to rebut the report, petitioner fails to demonstrate such prejudice that warrants a finding of an
abuse of discretion by the circuit court with respect to its handling of respondents’ expert witness
disclosure.

        Petitioner’s fourth assignment of error challenges two jury instructions, which petitioner
argues created higher standards of care on petitioner than on respondents in regard to
comparative negligence. The first allegedly erroneous instruction stated, generally, that Mr.
Gilbert had a duty to not only look, but to see what reasonably could be seen on the roadway and
to take reasonably prudent action to avoid danger. The instruction also stated that if Mr. Gilbert
failed to keep a proper lookout, the jury could assess such negligence on the verdict form. The
second challenged instruction stated that if the jury found that Mr. Gilbert was operating his
vehicle at a greater speed than was reasonable or prudent given the adverse weather conditions,
the jury shall find him negligent. Petitioner challenges the two instructions inasmuch as they



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referenced only to Mr. Gilbert, without stating that Mr. Conrad was subject to the same standards
of care.

        In syllabus point four of State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995), we
held as follows:

               A trial court’s instructions to the jury must be a correct statement of the
       law and supported by the evidence. Jury instructions are reviewed by determining
       whether the charge, reviewed as a whole, sufficiently instructed the jury so they
       understood the issues involved and were not misled by the law. A jury instruction
       cannot be dissected on appeal; instead, the entire instruction is looked at when
       determining its accuracy. A trial court, therefore, has broad discretion in
       formulating its charge to the jury, so long as the charge accurately reflects the
       law. Deference is given to a trial court’s discretion concerning the specific
       wording of the instruction, and the precise extent and character of any specific
       instruction will be reviewed only for an abuse of discretion.

        In the present case, petitioner claims that the instructions were erroneous because they
mention Mr. Gilbert by name, and thus, were incorrect statements of the law. What petitioner
fails to mention, however, is that the circuit court also gave two nearly identical instructions,
proposed by petitioner, which clearly spoke to all drivers. As respondents correctly argue, the
giving of these additional instructions that were free of reference to any specific party corrected
any alleged prejudice that could have resulted if only the challenged instructions had been given.
Accordingly, when reviewed as a whole, the instructions given were a correct statement of the
law. See Guthrie. We find no abuse of discretion by the circuit court with respect to its jury
instructions.

        In his fifth assignment of error, petitioner argues that the jury’s verdict was without
sufficient basis in fact, plainly wrong, and contrary to the weight of the evidence. Petitioner
argues that the exact location of the collision relative to the right lane of the interstate and Mr.
Conrad’s method of braking were disputed. He adds that the primary evidence that Mr. Conrad
acted with due care came from respondents’ expert, and should be rejected as unreliable.
Petitioner also notes that Mr. Conrad admitted that he did not look in his rear view mirror until
after Mr. Gilbert struck him from behind, and no evidence was introduced as to Mr. Gilbert’s
speed or his distance behind Mr. Conrad. Petitioner concludes that the accident would not have
happened if Mr. Conrad had (1) braked gently, or (2) maintained his speed until completely on
the berm and braked on the berm.

       In support of his argument, petitioner recounts the trial testimony as he believes should
have been viewed by the jury. However, petitioner’s theory of the case was presented to the jury,
and the jury rejected it. Additionally, the jury heard the unequivocal testimony of Mr. Conrad
and Mr. Mimms that, at no point, did Mr. Conrad slam on his brakes prior to the collision. “It is
the peculiar and exclusive province of the jury to weigh the evidence and resolve questions of
fact when the testimony is conflicting.” Syl. Pt. 3, Long, 158 W. Va. at 741, 214 S.E.2d at 837.
The jury heard from eyewitnesses and two experts, whose opinions conflicted. As we determined
in our discussion of petitioner’s first and second assignments of error, the jury resolved these

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conflicts in respondents’ favor and we decline to disturb the jury’s verdict based on petitioner’s
contrary view of the evidence. See Syl. Pt. 5, Orr.

        In petitioner’s final assignment of error, he merely rehashes his previous arguments to
conclude that the circuit court abused its discretion in denying his motion to set aside the verdict
and grant a new trial. For the reasons already discussed and decided above, we find no error in
the circuit court’s denial of petitioner’s motion.

      For the foregoing reasons, we affirm the Circuit Court of Kanawha County’s “Order
Denying Plaintiff’s Motion to Set Aside Verdict and For a New Trial” entered on September 14,
2015.

                                                                                         Affirmed.

ISSUED: November 10, 2016

CONCURRED IN BY:

Chief Justice Menis E. Ketchum
Justice Brent D. Benjamin
Justice Allen H. Loughry II


DISSENTING:

Justice Robin Jean Davis
Justice Margaret L. Workman




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