                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Katelyn Thorn,                                                                     FILED
Plaintiff Below, Petitioner                                                     May 30, 2014
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 13-0961 (Wood County 11-C-539)                                         OF WEST VIRGINIA


Larry J. Casey, II,

Defendant Below, Respondent



                              MEMORANDUM DECISION
       Petitioner Katelyn Thorn, by counsel James R. Leach and Victoria J. Sopranik, appeals
the order of the Circuit Court of Wood County, entered August 2, 2013, denying her motion for a
new trial. Respondent Larry Casey, III, appears by counsel David A. Mohler and Greg S. Foster.

       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 order of the circuit court is appropriate under
Rule 21 of the Rules of Appellate Procedure.

        In November of 2010, the parties were involved in an automobile accident in which
petitioner rear-ended a car driven by a third-party. Petitioner maintained that respondent struck
her from behind, causing her collision with the other car. In contrast, respondent claimed that
petitioner first struck the car in front of her, and respondent then struck petitioner. At the
conclusion of the trial conducted in January of 2013, a jury found that petitioner did not suffer
injuries as a direct and proximate result of respondent’s negligence. Thereafter, petitioner filed a
motion for a new trial pursuant to Rule 59 of the West Virginia Rules of Civil Procedure,
asserting that she was prejudiced by the circuit court’s exclusion of the medical records of Dr.
Houman Khosrovi, a neurosurgeon who examined her on one occasion approximately four
months after the automobile accident. The circuit court denied petitioner’s motion for a new trial,
and this appeal followed.

        The general standard of review concerning motions made under Rule 59 is whether the
ruling of the circuit court constituted an abuse of discretion, subject to a clearly erroneous
standard as to findings of fact and a de novo standard as to conclusions of law. Jones v. Setser,
224 W.Va. 483, 488, 686 S.E.2d 623, 628 (2009); Peters v. Rivers Edge Mining, Inc., 224 W.Va.
160, 172–73, 680 S.E.2d 791, 803–04 (2009). Each assignment of error in this case relates to the
circuit court’s ruling that excluded from evidence the office record of Dr. Khosrovi, who did not
appear as a witness at trial. Dr. Khosrovi prepared a summary of his evaluation, which began
with his restatement of the version of the collision as related by petitioner, then went on to

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describe his medical examination. He concluded that petitioner “most likely became
symptomatic as a result of the car accident” and recommended conservative treatment.

        Petitioner argues that Dr. Khosrovi’s medical records fall within an exception to the
hearsay rule1, that respondent waived any objection to the authenticity of the records, and that
she was substantially prejudiced by their exclusion. We begin with petitioner’s final assignment
of error. He states as follows:

               Dr. Khosrovi’s records were to provide the evidentiary cornerstone
       necessary to document the injuries sustained by [petitioner] in the accident.
       Specifically, his office note concisely documented an exam and diagnosis; it
       clinically correlated the imagine studies on MRI; it contained unequivocal opinion
       on causation; and, most importantly, it provided the basis for the opinions of
       [petitioner’s] expert witness, Dr. [Robert] Thompson. Thus, it devastated
       [petitioner’s] case when the trial court denied the jury access to the anchor of her
       case, Dr. Khosrovi’s promised record.




       1
         Hearsay is “a statement, other than one made by the declarant while testifying at the trial
or hearing, offered in evidence to prove the truth of the matter asserted.” W.Va. R. of Evid.
801(c). It is inadmissible unless provided by rule. W.Va. R. of Evid. 802. Petitioner argues that
the medical summary prepared by Dr. Khosrovi is admissible pursuant to Rule 803 of the West
Virginia Rules of Evidence, which provides:

              The following are not excluded by the hearsay rule, even though the
       declarant is available as a witness: . . .

               (4) Statements for purpose of medical diagnosis or treatment.—Statements
       made for purposes of medical diagnosis or treatment and describing medical
       history, or past or present symptoms, pain, or sensations, or the inception or
       general character of the cause or external source thereof insofar as reasonably
       pertinent to diagnosis or treatment. . . .

               (6) Records of regularly conducted activity.—A memorandum, report,
       record, or data compilation, in any form, of acts, events, conditions, opinions, or
       diagnoses, made at or near the time by or from information transmitted by, a
       person with knowledge, if kept in the course of a regularly conducted business
       activity, and if it was the regular practice of that business activity to make the
       memorandum, report, record, or data compilation, all as shown by the testimony
       of the custodian or other qualified witness, unless the source of information or the
       method or circumstances of preparation indicate lack of trustworthiness. The
       term “business” as used in this paragraph includes business, institution,
       association, profession, occupation, and calling of every kind, whether or not
       conducted for profit.


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        We conclude that petitioner overstates the importance of Dr. Khosrovi’s summary,
inasmuch as Dr. Thompson (petitioner’s expert witness) detailed in his testimony2 the medical
records that he reviewed in preparation for his evaluation of petitioner. In addition to the records
of Dr. Khosrovi, Dr. Thompson’s review also included the post-accident emergency room
records, the accident report, petitioner’s chiropractic records, and the results of petitioner’s MRI
and CT scans and x-rays. Dr. Thompson explained what he found in each of these documents,
and he related his understanding that petitioner was “the restrained driver of a vehicle that was
rear[-]ended by another vehicle going approximately [forty] miles an hour. . . . Her car was
driven into the car in front of her.” Finally, he concluded that petitioner suffered cervical sprain,
thoracic sprain, and a bulging disc at the L4-5, L5-S1 level as a result of the automobile accident
at issue. Petitioner has identified no specific information contained in Dr. Khosrovi’s summary
that was not sufficiently introduced through Dr. Thompson’s testimony.

       Rule 61 of the West Virginia Rules of Civil Procedure provides:

               No error in either the admission or the exclusion of evidence and no error
       or defect in any ruling or order or in anything done or omitted by the court or by
       any of the parties is ground for granting a new trial or for setting aside a verdict or
       for vacating, modifying or otherwise disturbing a judgment or order, unless
       refusal to take such action appears to the court inconsistent with substantial
       justice. The court at every stage of the proceeding must disregard any error or
       defect in the proceeding which does not affect the substantial rights of the parties.

         Furthermore, “‘[w]hen evidence is excluded and the action of the court in excluding it is
relied upon in the appellate court, it must appear on the record that the evidence rejected was or
would have been relevant, material and important to make its rejection available as a ground of
error.’ Syllabus Point 5, Maxwell v. Kent, 49 W.Va. 542, 39 S.E. 174 (1901).” Syl. Pt. 15, Board
of Educ. of McDowell County v. Zando, Martin & Milstead, Inc., 182 W.Va. 597, 390 S.E.2d
796 (1990). Because the substance of Dr. Khosrovi’s summary was introduced through other
sources—including petitioner’s own testimony—we find that if there was error in its exclusion,
that error was harmless.3 Thus, the circuit court did not abuse its discretion in denying
petitioner’s motion for a new trial.

       For the foregoing reasons, we affirm.



       2
        Dr. Thompson’s testimony was presented at trial by videotaped deposition. The
deposition transcript is contained in the appendix record on appeal, but the record is otherwise
sparse. While the parties included excerpts of arguments made before the circuit court related to
the admissibility of Dr. Khosrovi’s summary, no testimonial evidence other than the transcript of
Dr. Thompson’s testimony was included.
       3
         In light of our determination that the error, if any, is harmless, we need not undertake
consideration of petitioner’s arguments that (1) Dr. Khosrovi’s records fall within an exception
to the hearsay rule or that (2) respondent waived any objection to the authenticity of those
records.
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                                      Affirmed.

ISSUED: May 30, 2014

CONCURRED IN BY:

Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II

DISSENTING

Chief Justice Robin Jean Davis




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