                        STATE OF WEST VIRGINIA

                   IN THE SUPREME COURT OF APPEALS



MATTHEW EDWARD DREHER,
                                                     FILED
Defendant Below, Petitioner                                          November 14, 2013

                                                                         released at 3:00 p.m.
                                                                       RORY L. PERRY II, CLERK
vs.) No. 12-0888 (Kanawha County No. 08-C-1771)                      SUPREME COURT OF APPEALS
                                                                          OF WEST VIRGINIA


RICHARD R. ANDERSON,
Plaintiff Below, Respondent

and

JES, INC. d/b/a THE SOUND FACTORY,
Defendant/Third-Party Plaintiff Below,
Respondent

                             MEMORANDUM DECISION

              The Petitioner and defendant below, Matthew Dreher, by counsel Albert C.
Dunn, Jr., appeals a June 19, 2012, order of the Circuit Court of Kanawha County
denying his motion for a new trial. Respondent and defendant/third-party plaintiff below,
JES, Inc. d/b/a The Sound Factory, by counsel Travis A. Griffith, filed a response.
Respondent and plaintiff below, Richard Anderson, by counsel R. Chad Duffield, filed a
summary response. Petitioner Dreher filed a reply. 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 is appropriate under
Rule 21 of the Rules of Appellate Procedure.

              This case involves an automobile accident that occurred on July 19, 2008,
involving Dreher, who was driving under the influence (“DUI”), and Respondent Richard
Anderson, plaintiff below.1 Anderson sustained serious injuries as a result of the
accident. Dreher was allegedly drinking at the Sound Factory, a bar located on Kanawha
Boulevard in Charleston, on the night the accident occurred. It is owned and operated by
JES, Inc. JES was brought into the instant lawsuit by Anderson based on allegations that
it was negligent in serving Dreher alcohol even though he was visibly intoxicated. The
jury returned a verdict finding that Dreher’s negligence proximately caused Anderson’s
injuries. Anderson was awarded one million dollars for compensatory and punitive


1
 The accident occurred at approximately 11:20 p.m. near the corner of East Washington
and Elizabeth Streets in Charleston, when Dreher ran a red light.
                                             1

damages against Dreher. The jury found no negligence on the part of JES, Inc. and
attributed no fault to JES, Inc.

              In this appeal, Dreher alleges that the circuit court erroneously prohibited
him from using a prior inconsistent statement for the purposes of impeaching a key
witness at trial, Conrad Carpenter, the doorman working at the Sound Factory on the
night of the accident. Anderson had a prior statement of Mr. Carpenter taken by his
investigator, Michael Kidd, via telephone on October 28, 2009, wherein Carpenter stated
that he was aware of the accident that occurred on East Washington Street, and that “a
guy named Anderson was hit by a guy named Dreher”; that a police officer talked to him
about the accident and he told the officer that Dreher had been in the bar that night but
had left about three to four hours earlier; and that he remembered Dreher because he was
the only person in the bar who presented with an out of state identification on the night in
question. The telephone conversation was later transcribed. The statement was
inconsistent with his deposition and trial testimony, wherein Carpenter stated that Dreher
was not drinking at the Sound Factory that night because he remembered refusing
admittance to the only person who presented with an out of state identification, and
Dreher had a South Carolina driver’s license. Dreher alleges that if this evidence had
been admitted, the jury could have been persuaded that he was indeed drinking at the
Sound Factory that night, and thus, found Sound Factory liable for a portion of the
verdict under joint and severable liability.

             During discovery, both Dreher and JES requested witness statements,
expert opinions, and the basis for the expert opinions in various interrogatory requests to
Anderson. Anderson did not disclose the statement because he intended to only use the
statement for impeachment purposes, claimed it was work product, and claimed that
opposing counsel did not seek to compel the statement from him. The statement was
disclosed by Anderson’s counsel in its pretrial memorandum, wherein it was identified as
a potential exhibit for impeachment purposes. However, Anderson’s expert, Mark
Willingham, testified about Mr. Carpenter’s statement during his trial testimony.

              During Anderson’s case-in-chief, Mr. Willingham testified that he used
Carpenter’s statement to form his expert opinions. JES objected arguing that there is no
attorney work product exception to documents once they have been reviewed by an
expert. At that time, the court issued no ruling as to the admissibility of the statement
because Anderson’s counsel indicated he would “redirect him away from that.”

             Later, during JES’s case-in-chief, Mr. Carpenter was called to offer
testimony regarding his recollections of the evening of the accident while working as a
doorman for JES. During direct testimony, Mr. Carpenter testified as follows:

              BY MR. GRIFFITH: Okay. Do remember if you were
              working the door at The Sound Factory on July 19, 2008?

                                             2
A: I have to tell you, the only reason that I will say yes is
because I remember an incident. I didn’t remember the date,
but that’s the date that’s set forth in my deposition, so I would
have to say yes only because of that reason.

Q: You remember an incident?

A: I do.

Q: Are you speaking of the car accident that we’re here with
today?

A: The accident itself, no. I was at the door and I don’t know
what time and it was dark. Sgt. Mark Abbott come up to the
door with the Charleston Police Department. He had asked
me if anyone had been in the bar recently with an out-of-state
ID. I told him the only guy that came to the bar that night, and
I only knew this because it was very slow, I told him the only
gentleman that came to the door that night with an out-of­
state ID was loud. He appeared too intoxicated and a little
mouthy so I denied him access. I don’t believe I gave him a
description because at the time it seemed insignificant. But I
told him that the only person I seen with an out-of-state ID
that night was denied access to the bar.

Q: So at the time - do you remember when about in the
evening Sgt. Abbott from the Charleston Police Department
spoke to you about this?

A: I’m sorry, I don’t. It’s been two years. I don’t remember. I
know it was dark. When he came to speak with me it was ­
you know, I don’t even know if I can tell you it was dark. I
don’t know. It’s been two years, a little bit over.

Q: Did he mention anything specific about the accident?

A: No. When I asked him why - I was curious - he didn’t
mention at first, but I asked him why he was asking. He said
that there’d been an accident somewhere near Elizabeth
Street. That was about the extent of it.



                               3

             Q: But at the time he spoke to you the accident had already
             occurred?

             A: Yes, sir.

             Q: And at that point on July 19, 2008, you recall that you did
             not let anyone into The Sound Factory that had an out-of-state
             driver’s license?

             A: That’s correct. There wasn’t many people in there.

             During Anderson’s cross-examination of Carpenter, Anderson’s counsel
performed a brief lead up and moved into the recorded statement issue, which resulted in
an objection and two separate lengthy debates outside of the presence of the jury. The
following exchange occurred:

             BY MR. CURNUTTE: Yes, Your Honor. You [Carpenter]
             indicated you had been a Charleston policeman at this time?

             A: Yes, sir.

             Q: And you’re not a Charleston policeman now?

             A: That’s correct, sir.

             Q: And you were a Montgomery policeman after that?

             A: Yes, sir.

             Q: You’re not now?

             A: That’s correct, sir.

             Q: Do you remember a statement that you gave to a
             gentleman? An investigator named Mike ­

             MR. GRIFFITH: Your Honor, I have an objection now. May
             we approach?

             THE COURT: Yes.


             (Bench conference on the record)



                                           4

MR. GRIFFITH: Your Honor, this was brought ­

THE COURT: Can you lower your voice and get closer to the
microphone?

MR. GRIFFITH: Okay. Your Honor, this was brought up
early on in the case. There was a discussion when Mr. - I
believe his name is Williams - the expert they had, testified.
And I brought it to the Court’s attention that there were
apparently statements.

THE COURT: Right.

MR. GRIFFITH: They’d hired an investigator to speak and it
was recorded. Now I can actually show you, I pulled the
discovery request in anticipation of this, where we had asked
for not only any statements that were taken which they claim
work product -­

THE COURT: You need to lower your voice.

MR. GRIFFITH: Any statements they had which they
claimed work product for, but then also we asked for files of
their experts.
        Their expert testified on the stand that he was given
this statement and then it was never produced to us. That took
away the work product.
        I must remind the Court, I reminded Mr. Hayhurst and
Mr. Curnutte after the deposition of Dr. Guberman on last
Monday, I believe it was the 24th, that I’d never received
these statements and if they’d get them to me I wouldn’t
make a stink at trial.
        They never did. I’ve never seen them. They never
produced them. It’s not work product because they gave it to
their experts and you gave a previous ruling that it could not
be brought up in this case, and so I would like to uphold that
ruling at this point.

MR. CURNUTTE: Your previous ruling was –

THE COURT:          No, you need to lower your voice, too.



                              5

MR. CURNUTTE: Oh, okay. Your previous ruling was it
cannot be used in our case-in-chief.
      This is a statement used for impeachment purposes.
We can give it to opposing counsel when we use the
statement. And we are using the statement now strictly for
impeachment purposes.

MR. GRIFFITH: Your Honor, that was not work product
when they gave it to their expert and they never gave it to us.
At least, they never gave it to me.

THE COURT: Yeah, I think that’s accurate. Because your
expert has testified that he reviewed it and that takes it out of
the work product exception, does it not?

MR. CURNUTTE: We are not asking that the statement be
introduced into evidence or being used as evidence. It is
strictly being used for impeachment purposes.

                              ...

THE COURT: So you – have you ever given it to him to see?

MR. CURNETTE: To him?

THE COURT: Uh-huh.

MR. CURNETTE: No. Was going to. When I ask him if he
remembered the statement. And it’s not going to be evidence,
Your Honor. It’s strictly for impeachment.

MR. GRIFFITH: Your Honor, they took the statement.
Apparently it was a recorded telephone conversation.
Actually, it was taken by an investigator that they hired.
       I think there’s probably a foundation problem with it,
too, since they’ve never given a copy to Mr. Conrad [sic] to
review.
       But I’ve had to bring it up to opposing counsel, this is I
think the third time.

                              ...



                               6
THE COURT: All right, so I think we’re under Rule 613 of
the Rules of Evidence concerning a prior statement.
       It’s my understanding that through discovery the
defendants, JES, did request any statements be given to them.
Any statements taken, I guess, by any witness, of any witness.
       They’ve renewed that request but none has been
forthcoming. There has been testimony in this court that at
least one of the experts hired by the plaintiff had those
statements that were apparently taken by an investigator hired
by the plaintiff law firm.
       Mr. Griffith is objecting to any use of those statements
for any impeachment purposes of the witness who is presently
on the witness stand, as I understand that.
       Anything else you want to add to your objection, Mr.
Griffith?

MR. GRIFFITH: Your Honor, all I’ll add is what I reiterated,
what I stated at the bench. Prior statements of a witness, they
can examine a witness, but if you look at the last sentence of
Section A, “But on request, the same shall be shown or
disclosed to opposing counsel.”
       All parties to the defense of this case have asked in
discovery early on in the case whether the attorney, its agents
or representatives from them are in possession or custody of
any statement made or allegedly made by the defendant or
any officer, agent, employee, representative of the defendant.
       If so, they got to give the date of the statement, the
name, whether the statement was taken and the substance of
each statement.
       They objected to that interrogatory to the extent it
seeks disclosure of attorney work product. As Mr. Dunn aptly
pointed out when the first expert witness was on the stand, the
expert witness was talking about these prior statements which
were never disclosed to us, and by giving them to the expert
witness, they are no longer attorney work product and
should’ve been disclosed to us.
       Actually, I think they should’ve been disclosed to us
under the rule anyway, but this goes around the attorney work
product portion.
       Your Honor, also we asked details into the files of
expert witnesses in written discovery. The summary, grounds,
and the complete description all materials submitted to the


                              7

expert for review, and they objected that they would give that
in accordance with the Court’s scheduling order.
        I will reiterate that on October 24, 2011 when we took
the videotaped deposition of Dr. Guberman at Farmer Cline
and Campbell, we consulted, all current trial counsel
consulted, as the Court ordered, with regard to exhibits that
would be offered in trial to try to hamper down a lengthy
exhibit list and witnesses that would be offered at trial.
        At that meeting I told Mr. Curnutte and Mr. Hayhurst
that I had never received those statements and I would like to
see them prior to trial. They never supplemented with those.
        Then yesterday when we brought it up with regard to
the expert witness, they never gave them again, and now
they’re trying to use them to impeach a witness at trial when
they’ve never provided them to us, even though I believe
they’re under a duty to seasonably supplement their
discovery, and under the rule, to provide us with the prior
statements of any witnesses on the request that we - they
disclose the same.

                              ...

THE COURT: What is your all’s reasoning for not
exchanging this statement in discovery?

MR. CURNUTTE: Because it is not evidence. There is not
going to be presented in our case-in-chief. It is not offered as
evidence. It’s strictly impeachment.

THE COURT: Well, I don’t think that’s what the request
was. It wasn’t a request for evidence. Frankly, the rules of
discovery, what’s discoverable and what’s evidence, are not
even close in my book.
       It’s not whether you intend to use it. That wasn’t the
issue. You asked for any statement taken by any, of any
witness.

MR. GRIFFITH: Yes, Your Honor.

THE COURT: In your possession. You said it was work
product but then you gave it to your expert.



                               8

             MR. CURNUTTE: That was inadvertent, Your Honor. It is
             work product. It was inadvertently given to the expert. I
             don’t know how he got it.

             MR. GRIFFITH: It was given to the expert, Judge.
             Inadvertent or not, it was given to the expert. It takes it out of
             the work product. And I believe, I mean, they named these
             experts long ago. I’m sure it was given to the expert a long
             time ago.

             THE COURT: Yeah. I’m not going to allow it. It was
             requested in discovery, it was not forthcoming, it was not ­
             has been requested even as late as last week or so, and I don’t
             think that based on what I understand the discovery request to
             be, the Court determines whether or not something is going to
             be admissible at trial if there’s an issue.
                     But I am a big supporter of very broad discovery. No
             one ever came to this Court and sought any ruling, and I don’t
             think that you can argue work product if your expert’s now
             testified before this jury that he looked at that, and
             understanding what he believed the facts of this case were.

             During this point of the trial, the Court indicated that the statements could
not be used and jury was brought back into the Courtroom. At this point, Mr. Dunn,
counsel for Mr. Dreher, asked the Court the following questions:

             (Witness resumes the stand)

             MR. DUNN: Your Honor, can we approach the bench? I have
             a question.

             THE COURT: Yes, sir. Wait a minute. We’ve got the jury
             coming in, but yeah, that’s fine. Whatever, sir.

             (Bench conference on the record, jury enters courtroom)

             MR. DUNN: I don’t want to run afoul of the Court’s ruling. I
             mean, I had that chance to look at the statement and I
             understand the Court’s ruling.
                    But for example, in this statement, this witness said
             that he told the officer that the gentleman that was from out­
             of-state that was turned away had a Texas driver’s license.


                                             9

I think he’s already testified here, he testified in his
deposition he turned the gentleman away who had a South
Carolina driver’s license. Ironically, my client’s from South
Carolina.
       Are we prohibited from asking this witness, “Have you
ever told anybody that you turned somebody away because
they had a Texas driver’s license?”
       And then if he says no, you know, if he either lies or
he just says no, we can’t use that statement to impeach him,
but can we at least ask the question, you know, “Haven’t you
told somebody else previously something that’s in that
statement?”

MR. GRIFFITH: I think it goes to the heart of the statement.

MR. DUNN: I mean, his testimony.

                              ...

This says that the statement -- . . . -- the gentleman was there
for three or four hours.

THE COURT: Right. But you know, you all are all -- and
that’s part of the problem here is no one had the benefit of
any of this as discovery, and so here we are now, frankly,
worse than the 11th hour, hearing something for the very first
time that may have been very pertinent to the way you’ve
structured your defense.
       I don’t think it’s fair game, frankly. Because basically,
you’re approaching the bench with information that you just
got within the last five minutes.

MR. DUNN: Uh-huh.

THE COURT: Based on the statement you’ve seen for the
first time.

MR. DUNN: Yes.

THE COURT: No. I’m sorry. I don’t think it’s appropriate
to do that unless you all want to send the jury back out and
we’ll talk about it some more. I really don’t mind.


                              10

MR. DUNN: I think we should.

THE COURT: Thinking it through some more.

MR. GRIFFITH: I’m just going to start arguing perhaps he’s
lying, Judge. I mean -­

MR. DUNN: I think it -­

MR. GRIFFITH: -- it wasn’t proven in discovery, but it’s
whatever you want to do.

MR. DUNN: I think it’s a very important issue in this case
based upon what it is, so I mean, I think it merits at least
discussion on the record.

THE COURT: Okay.

                             ...

MR. DUNN: Well, Your Honor, I’ve had a chance to look at
the statement and I understand the Court’s ruling concerning
the use of the statement, I understand the plaintiff’s argument
that this statement is not going to be offered as evidence.
        I also completely understand the fact that the
defendants have asked for statements of witnesses previously
haven’t been presented.

THE COURT: Are you also in that discovery issue? Were
you asked for statements?

MR. GRIFFITH: He did, Your Honor.

MR. DUNN: I’m positive. I mean, I can’t tell you I can
quote my written discovery request. That’s a standard
question I put in every set of written discovery in every case.
I’m sure I did.

MR. GRIFFITH: Your Honor, I pulled theirs, too. It’s in
yours, too. Also, for the experts’ files.

MR. DUNN: My point is just simply, as I brought to the
Court’s attention up at the bench, that I think even if the

                              11

             statement can’t be offered to impeach the witness and the
             plaintiffs aren’t going to bring in Mr. Kidd2 to testify or
             someone else to provide some rebuttal, which I guess they
             could do, but I think at a minimum the witness should be
             allowed to be asked whether or not he has made a statement
             or told another individual.
                     For example, you know, “Have you told another
             individual this person you turned away with an out-of-state
             license on this day in question had a Texas license?” Because
             that’s what this statement says.
                     My client has a South Carolina license.             This
             statement, the witness said that my client was in the bar, or
             that individual, that my client was in the bar for two to three
             hours.
                     In his deposition, and I believe he’ll testify here, that
             and the inference is he turned my client away and then my
             client wasn’t even in the bar. That’s what they’re going to
             argue.
                     So I believe at least at a minimum he should be
             allowed to be asked has he made these statements or has he
             given this factual piece of information to anyone and see how
             he responds.
                     And whether or not, you know, asking this question
             runs afoul of the Court’s ruling about the use of this
             document for impeachment purposes.
                     I guess my entire point is based upon what I believe is
             somewhat fundamental fairness, this appears to be a very,
             very key piece of information that would go to the heart of
             this claim against the bar which is certainly the majority of
             what this evidence in this whole trial has been about.
                     I think somehow this – and I do believe it was an error.
             I do believe this document should have been produced. I
             believe it should have been produced when it was asked for
             last week, but at a minimum, I guess, we have the statement
             now. We can review it.
                     We can prepare for the examination of this witness
             with it, and at a minimum, you know, maybe some, maybe we
             can, maybe we seek a continuance until tomorrow after this
             evidence is presented and someone bring in rebuttal witness
             to attack what he testifies to.

2
  As indicated previously, Mr. Kidd is the private investigator who took the statement
from Mr. Carpenter.
                                            12

                                           ...

              THE COURT: That’s what I think, and that’s where I think
              there is fundamental fairness, a fundamental fairness issue.
                      Frankly, I don’t even know how you can take a written
              something that’s alleged to have been typed from some kind
              of a recording that nobody’s seen, either, and try to use it in
              the courtroom, either.
                      I don’t think that - if this is something taken from
              some recording, we think, which we frankly don’t even know,
              I don’t know, and somebody else has typed it, wasn’t the
              person who recorded it, I’m even thinking it’s getting more
              and more suspect.
                      And that’s frankly why we have discovery and we
              don’t do things like this at trial.
                      Certainly don’t have some gazillion dollar paid expert
              to come in who says they’ve seen it and the defense counsel
              have never seen it, and the defense counsel couldn’t even
              properly question your expert at a deposition, frankly,
              because they never had the benefit of what the expert had
              reviewed for purposes of the deposition.
                      I mean, we can unwind this a whole lot. Much less
              what the trial testimony is and what they relied on is what
              they believe are the facts, which we don’t even know if they
              are the facts.

              MR. CURNUTTE: Your Honor, we won’t use this statement
              at all then. We can call Michael Kidd as rebuttal witness.

                                           ...

              THE COURT: Well, they’re withdrawing their request to
              even use it, so that’s where we’re going to stay.
                      But that’s not with any understanding from me that
              that’s going to be proper rebuttal evidence, so that may be
              argument for another day. I don’t know.
                      For now, we’re going to try to get through the end of
              this trial. Do you need a break, Madam Court Reporter?

               Although Anderson’s counsel stated that he would introduce the
information during rebuttal by calling the investigator, Mr. Kidd, he never made any
attempt to offer any rebuttal testimony at the close of JES’s case-in-chief. Dreher did not

                                            13

object or otherwise attempt to elicit any testimony regarding the alleged recorded
statement made by Carpenter once Anderson withdrew the request to impeach.

             Following trial, both Anderson and Dreher filed separate motions
requesting a new trial. Both argued that the circuit court had committed error in
excluding the prior inconsistent statement of Carpenter. Anderson argued that he had no
duty to supplement discovery and provide defendants with Carpenter’s prior statement
while it was privileged work product; that the ruling was contrary to Rule 613 of the
West Virginia Rules of Evidence3; and that refusal to allow Anderson to question
Carpenter was a miscarriage of justice, as Carpenter was a key witness in the trial.

                JES filed an omnibus response to both motions and argued that the record
of the trial reflects that there was no “ruling” made by the Court which was the subject of
both motions for a new trial. JES claimed that both Dreher and Anderson created the
alleged error, and thus, they should not prevail. JES contended that even if a ruling had
been issued by the Court, it would not have been error for the Court to exclude the
evidence upon finding that plaintiff Anderson was required to supplement discovery with
the alleged statement of Carpenter after providing that statement to plaintiff’s expert
witness to formulate an opinion. Additionally, JES argued that even if a ruling had been
issued, it would not have been error to limit cross-examination of Carpenter under Rule
613 as the alleged statement had been specifically requested by opposing counsel during
discovery. JES also argued that there was no attorney work product to documents once
they have been reviewed by a witness. Anderson replied that the circuit court did in fact
issue a ruling prohibiting the use of the statement and that the error was not created by
him.

               On June 19, 2012, the circuit court entered an order denying both Anderson
and Dreher’s respective motions for a new trial. The circuit court found that it never
made a ruling on the issue due to the concession by Anderson’s counsel who stated,
“your Honor, we won’t use this statement at all then. We can call Michael Kidd (the
investigator) as a rebuttal witness.” The circuit court found that because there was no
ruling, there could be no error. The circuit court noted that discovery was sought by JES
and Dreher with regard to the statements that plaintiff may have taken. Although
Anderson objected claiming work product privilege, it became clear at trial that
Anderson’s expert had reviewed the statement and the information used by the expert
was discoverable once it was disclosed to him. The court found that even if it had issued
a ruling excluding the use of the statement, it would have been an appropriate sanction as
the statement was not disclosed during discovery. The court found that the situation was

3
 Rule 613(a) of the West Virginia Rules of Evidence provides, “[i]n examining a witness
concerning a prior statement made by the witness, whether written or not, the statement
need not be shown nor its contents disclosed to the witness at that time, but on request the
same shall be shown or disclosed to opposing counsel.”
                                            14

created by Anderson. Additionally, the court found that Dreher argued at trial that by
virtue of Anderson giving the statement to his expert witness, the statement no longer
remained protected work product, and, thus, Dreher could not succeed on a motion for a
new trial involving an alleged error that he helped to create.

               The circuit court also found that even if it had made a ruling limiting the
cross-examination of Carpenter, it would have been completely appropriate given the
nature of Rule 26 of the West Virginia Rules of Civil Procedure.4 Also, the court found
that at least twice prior to trial, counsel for defendants specifically requested that
plaintiff’s counsel provide copies of the statement and those requests went unanswered
and the statement was never provided. Thus, the requirements of Rule 613 of the West
Virginia Rules of Evidence, which requires that the statement of a witness shall be shown

4
  Rule 26(b)(4)(A)(i) of the West Virginia Rules of Civil Procedure provides, “[a] party
may through interrogatories require any other party to identify each person whom the
other party expects to call as an expert witness at trial, to state the subject matter on
which the expert is expected to testify, and to state the substance of the facts and opinions
to which the expert is expected to testify and a summary of the grounds for each
opinion.” With regard to the disclosure requirements of Rule 26, commentators have
stated as follows:

              Under Rule 26(b)(4)(A)(i) a party may use interrogatories to
              require an opposing party to (1) identify each person whom
              the other party expects to call as an expert witness at trial, (2)
              to state the subject matter on which the expert is expected to
              testify, and (3) to state the substance of the facts and opinions
              to which the expert is expected to testify, along with a
              summary of the grounds for each opinion. The primary
              purpose of this required disclosure is to permit the opposing
              party to prepare an effective cross-examination.                A
              prohibition against discovery of information, including facts
              and opinions, held by expert witnesses produces in acute form
              the very evils that discovery has been created to prevent. A
              lawyer even with the help of his/her own expert frequently
              cannot anticipate the particular approach the opponent’s
              expert will take or the data on which the expert will based
              his/her judgment.        Consequently, a litigant is entitled
              automatically and without prior judicial approval to
              substantial, though not complete discovery from the expert
              who expectably will be used at trial.

See Cleckley, F.; Davis, J.; Palmer, Jr., L; Litigation Handbook on West Virginia Rules of
Civil Procedure,4th Ed., Rule 26 § 26(b)(4), p. 730 (citations omitted).
                                             15

or disclosed to opposing counsel upon request, were not met. Lastly, the court found that
the jury is the sole judge as to the weight of the evidence and the credibility of the
witnesses and, thus, it found that Dreher’s motion for a new trial should be denied.

               In this appeal, Dreher argues that the circuit court incorrectly concluded
that it never made a ruling on the issue during trial because the parties understood that the
court was going to prohibit its use. Dreher also argues that the circuit court erred in
finding that the statement could not be used for impeachment purposes under Rule 613 of
the West Virginia Rules of Evidence. Dreher argues that proper sanction should have
been against only the plaintiff for failing to disclose the statement under Rules 26 and 34
of the West Virginia Rules of Civil Procedure, not Dreher. He also contends that the
circuit court erred in finding that the exclusion of the statement only went to Carpenter’s
credibility.

              In a brief summary response, Anderson argues that he did not have a duty
to supplement his discovery responses because they were correct when he responded and
the statement did not yet exist, and because JES never served a formal discovery request
for the statement, and because the statement was attorney work product. Anderson
likewise argues that the circuit court erred when it ruled that plaintiff could not use the
statement for impeachment purposes under Rule 613. He argues that the appropriate
sanction was to prohibit his expert from testifying about the statement, which the circuit
court did. He also argues that the statement was more probative than prejudicial, and
thus, should not have been barred under Rule 403 of the West Virginia Rules of
Evidence.

              Conversely, JES responds that Dreher has failed to prove any error because
the circuit court never made an actual ruling. JES also argues that Dreher failed to
preserve the issue for appeal because he did not attempt to cross-examine Carpenter. JES
also asserts that Dreher aided in the error by arguing that the statement should not be
permitted at trial because there was not an expert work production exception. JES
contends that even if there was a ruling, the court properly limited cross-examination
under Rule 613 because JES repeatedly requested the statement and the witness was even
questioned about the statement during his deposition, and it was never provided.

               Upon review of the record before us, we find no error meriting a new trial.
The trial transcript reveals that although the issue of impeachment was debated at length,
the culmination of the lengthy discussions resulted in Anderson’s counsel voluntarily
withdrawing his attempt to impeach Carpenter with his recorded statement. Thus, the
circuit court did not make any ruling on the cross-examination issue as a result of the
concession of Anderson’s counsel who stated on the record, “[y]our Honor, we won’t use
this statement at all then. We can call Michael Kidd as a rebuttal witness.” The circuit
court specifically acknowledged Anderson’s withdrawal by stating, “[w]ell, they’re
withdrawing their request to even use it, so that’s where we’re going to stay.”

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               However, even if the circuit court made an affirmative ruling on the cross-
examination issue, we find that Dreher failed to preserve the issue for appeal. Although
Dreher’s counsel sought clarification from the circuit court prior to Anderson’s
withdrawal of the request to impeach regarding whether he could ask Carpenter if he told
another individual that the person he turned away on the night of the accident had a Texas
driver’s license, Dreher did not object or otherwise attempt to elicit any testimony
regarding the alleged recorded statement made by Carpenter after Anderson’s
withdrawal. Unfortunately, Anderson’s counsel never called Mr. Kidd, the private
investigator, as a rebuttal witness.

             This Court has “continuously stated that to preserve an issue for appellate
review, a party must articulate it with such sufficient distinctiveness to alert a circuit
court to the nature of the claimed defect.” Syl. Pt. 2, in part, State ex rel. Cooper v.
Caperton, 196 W. Va. 208, 470 S.E.2d 162 (1996). This Court has further explained:

              The Rule in West Virginia is that parties must speak clearly in
              the circuit court, on pain that, if they forget their lines, they
              will likely be bound forever to hold their peace. . . It must be
              emphasized that the contours for appeal are shaped at the
              circuit court level by setting forth with particularity and at the
              appropriate time the legal ground upon which the parties
              intent to rely.

Id. at 216, 470 S.E.2d at 170 (citation omitted).

              Furthermore, it is well settled law in West Virginia that

              [a] [party] must carry the burden of showing error in the
              judgment of which he complains. This Court will not reverse
              the judgment of a trial court unless error affirmatively appears
              from the record. Error will not be presumed, all presumptions
              being in favor of the correctness of the judgment.

Syl. Pt. 2, WV Dept. of Health & Human Res. Emps. Fed. Credit Union v. Tennant, 215
W. Va. 387, 599 S.E.2d 810 (2004) (quoting Syl. Pt. 5, Morgan v. Price, 151 W. Va. 158,
150 S.E.2d 897 (1966)); see also State v. Browning, 199 W. Va. 417, 485 S.E.2d 1 (1997)
(“This Court will not consider an error which is not properly preserved in the record nor
apparent on the face of the record.”).

             Based on the foregoing, we conclude that the June 19, 2012, order of the
Circuit Court of Kanawha County denying Dreher’s motion for a new trial should be
affirmed.

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                                        Affirmed.


ISSUED: November 14, 2013

CONCURRED IN BY:

Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry, II




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