No. 15-0011–Phillips v. Stear                                                 FILED
                                                                           March 2, 2016
LOUGHRY, J., concurring, in part, and dissenting, in part:                    released at 3:00 p.m.
                                                                            RORY L. PERRY, II CLERK

                                                                          SUPREME COURT OF APPEALS

                                                                               OF WEST VIRGINIA




              Notwithstanding the contortionistic efforts of the majority, there is no existing

rule of civil procedure that “rewards” a litigant for failing to properly investigate, discover,

and litigate his or her case by handing them a second opportunity to try their case. While I

agree that sufficient error exists to warrant a new trial, I vehemently disagree with the

majority’s conclusion that the facts of this case come within the misrepresentation and

misconduct ground of Rule 60(b)(3). Accordingly, while I concur in the grant of a new trial,

I dissent to the analytical approach the majority employed to award that relief. In taking such

a decidedly misguided route, the majority has created the civil equivalent of a “get out of jail

free” card to be utilized any time hindsight or post-verdict investigation operates to

illuminate previously undisclosed or unknown facts pertinent to a case’s outcome.



              When the petitioners’ counsel attempted to impeach Stear, the trial court, in sua

sponte fashion, abruptly curtailed the line of inquiry and remonstrated counsel for his trial

tactics. Not only did the trial court’s hasty and improper evidentiary ruling prohibit a

legitimate line of cross-examination, but it further served to wholly eviscerate counsel’s

credibility with the jury. As a result, a new trial is not warranted simply because Stear

purportedly lied in his discovery responses regarding prior traffic citations or because the


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petitioners obtained evidence after the trial that could have been used to impeach him at trial.

Instead, the circuit court’s refusal to allow Stear to be impeached by the petitioner after State

Farm opened the door on the issue of Stear’s driving record is reversible trial error that

necessitates a new trial pursuant to Rule 59 of the Rules of Civil Procedure.



              Under the rubric of Rule 60(b)(3), the majority based its grant of a new trial

solely on Stear’s failure to provide accurate and comprehensive information regarding the

number of prior traffic citations he received, initially in written discovery responses and then

at trial. The majority relies, in part, on a report showing an additional traffic citation not

revealed during discovery and an affidavit obtained post-trial from Stear’s ex-wife alleging

additional incidents of traffic citations and poor driving behavior. Critically, the affidavit

contains no independent verification of these additional citations and the ex-wife has not

been subject to cross-examination regarding the content of her affidavit.1 While I do not seek

to condone perjury or discovery gamesmanship, even the majority concedes that it has no

idea whether Stear’s recollection of only one prior traffic citation was the result of willful

fabrication or merely a memory lapse.



              What this case underscores is the significant role that a thorough and skilled


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         There is no indication as to why the ex-wife was not interviewed or deposed before
trial or called as a witness at trial; neither is there an explanation as to why the additional
traffic citation referenced in the affidavit was not previously investigated.

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investigation, discovery, and cross-examination serve–they advance the litigational goal of

uncovering the truth. Unquestionably, the petitioners were aware of Stear’s inadequate or

inaccurate discovery responses, as demonstrated in their counsel’s readiness to impeach Stear

during cross-examination with a report revealing contradictory information. It was the circuit

court’s erroneous failure to allow him to do so–in the time-honored form of questioning that

is not only permissible but so undisputedly routine as to render the cessation of cross-

examination and concomitant admonishment of counsel utterly shocking–which warrants a

new trial.



               The majority’s application of Rule 60(b)(3) in this case could arguably lead

to the (incorrect) conclusion that a new trial may be obtained any time a witness makes a

misrepresentation during trial. While I find it hard to believe that the majority intended for

Rule 60(b)(3) to have such an undesirable application, the majority’s decision may launch

the undesired effect of encouraging post-trial investigatory efforts. Given the “gift” of a

second trial awarded for lately-discovered evidence, the majority has circumscribed the rules

of civil procedure and further undermined the preferred use of cross-examination to ferret

out the truth. As a result of the majority’s misguided analysis, fairly-obtained verdicts are

subject to being overturned for counsel’s failure to scrupulously investigate and prosecute

a case in the first instance. Despite its tortured use in this case, I would caution practitioners

that Rule 60(b)(3) is not a substitute for diligent investigation and cross-examination. The


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majority’s contention that Stears’ discovery “misrepresentation” prevented petitioners from

“fully and fairly preparing or presenting” its claim is simply wrong. It was the trial court’s

error in halting the petitioners’ attempt to impeach Stears that prevented a fair presentation

of the petitioners’ case, and nothing more.



               Accordingly, I respectfully concur in the result reached by the majority, but

dissent as to its analysis.




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