                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Erica Louise Barrett, Jerry T. Morgan,                                           FILED
and Gloria J. Morgan,                                                      November 21, 2014
Defendants Below, Petitioners                                               RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA
vs) No. 14-0047 (Harrison County 12-C-336-1)

Angela R. Retton, David G. Retton,

Maggie J. Retton, a minor,

David L. Retton, a minor,

And Trent J. Retton, a minor,

Plaintiffs Below, Respondents



                             MEMORANDUM DECISION
       Petitioners Erica Louise Barrett, Jerry T. Morgan, and Gloria J. Morgan, by counsel G.
Thomas Smith and D. Andrew McMunn, appeal the judgment of the Circuit Court of Harrison
County, entered October 15, 2013, favoring respondents in the total amount of $1,013,156,
subsequent to a jury trial. Respondents Angela R. Retton, David G. Retton, Maggie J. Retton,
David L. Retton, and Trent J. Retton, appear by counsel David J. Romano and Jennifer L. Finch.

       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.

        Petitioner Erica Barrett, while driving a car owned by Petitioners Gloria and Jerry
Morgan, struck the rear end of a stopped car driven by Respondent Angela Retton in August of
2010. Respondent was treated on the day of the accident at an urgent care facility and thereafter
underwent treatment with various providers for chronic pain related to disc herniations and disc
bulges. Respondent continued to work during this time. Respondent—first on her own and then
with assistance of counsel—unsuccessfully negotiated with petitioner’s motor vehicle insurer,
State Farm Insurance Company (“State Farm”). Respondent, together with her husband and
children, filed a civil complaint against petitioners in August of 2012. The case ultimately was
tried before a jury. At the conclusion of the evidence, the jury returned a verdict in favor of
respondents in the amount of $1,013,156, including $320,500 for future medical expenses.
Petitioners filed a Motion for a New Trial or, in the Alternative, to Alter or Amend the Judgment
to Reduce the Future Medical Damages. The motion was denied, and this appeal followed.



                                                1

        Petitioners assert five assignments of error: first, that the circuit court erred by allowing
respondents to introduce evidence of payments made by State Farm to petitioners’ expert
witnesses; second, that the circuit court erred by allowing respondents to introduce evidence of
future special damages that had not been timely disclosed; third, that the circuit court erred in
prohibiting petitioners’ expert witness, Dr. Sandra Metzler, from rendering an opinion on
causation; fourth, that the circuit court erred in refusing to give a “missing witness” instruction;
and, fifth, that the circuit court erred in denying petitioners’ request for remittitur. We consider
these assignments of error under the umbrella of our standard of review with regard to a circuit
court’s order denying a motion for new trial:

       “[T]he ruling of a trial court in granting or denying a motion for a new trial is
       entitled to great respect and weight, [and] the trial court’s ruling will be reversed
       on appeal [only] when it is clear that the trial court has acted under some
       misapprehension of the law or the evidence.” Syl. pt. 4, in part, Sanders v.
       Georgia–Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976).

Syl. Pt. 2, Estep v. Mike Ferrell Ford Lincoln–Mercury, Inc., 223 W.Va. 209, 672 S.E.2d 345
(2008). See also Neely v. Belk Inc., 222 W. Va. 560, 566, 668 S.E.2d 189, 195 (2008) (stating
that “a new trial should rarely be granted and then granted only where it is “‘reasonably clear
that prejudicial error has crept into the record or that substantial justice has not been done.’” In re
State Public Building Asbestos Litigation, 193 W.Va. [119,] 124, 454 S.E.2d [413,] 418 [(1994)]
(quoting 11 Charles Alan Wright and Arthur R. Miller, Federal Practice and Procedure § 2803
at 32–33).”).

         We begin with the first assignment of error that the circuit court erred by allowing
respondents to introduce evidence of payments made by State Farm to petitioners’ expert
witnesses as fees for the witnesses’ participation in various litigation matters. In their argument,
petitioners address the circuit court’s having allowed cross-examination concerning the
affiliation of petitioners’ witness Dr. Sandra Metzler (a biomechanical engineer) with a company
that had received more than $6 million from State Farm over about a five-year period, and the
affiliation of witness Dr. Kent P. Thrush (an orthopedic surgeon) with a practice that had
received more than $1 million for expert consultation over about a five-year period.1 Petitioners
lodged a continuing objection to any reference to insurance. We have said, “‘A trial court’s
evidentiary rulings, as well as its application of the Rules of Evidence, are subject to review
under an abuse of discretion standard.’ Syllabus point 4, State v. Rodoussakis, 204 W.Va. 58,
511 S.E.2d 469 (1998).” Syl. Pt. 11, State v. White, 228 W.Va. 530, 722 S.E.2d 566 (2011).
Petitioners argue that the court’s allowing any reference to State Farm at trial violates Rule 411
of the West Virginia Rules of Evidence, which provides:

       Evidence that a person was or was not insured against liability is not admissible
       upon the issue whether the person acted negligently or otherwise wrongfully. This
       rule does not require the exclusion of evidence of insurance against liability when

       1
         We note that in the pages of the trial transcript cited by petitioners, the reference to Dr.
Thrush’s connection with State Farm was fleeting and minimal, and referenced a specific bill
that was paid directly by State Farm.
                                                  2

       offered for another purpose, such as proof of agency, ownership, or control, if
       controverted, or bias or prejudice of a witness.

        Under the limited facts supported by the appendix record on appeal, we find that the
circuit court appropriately considered this evidence under the directive of Syllabus Point 2, Reed
v. Wimmer, 195 W.Va. 199, 465 S.E.2d 199 (1995):

       An insured is presumed to be protected from undue prejudice from the admission
       of evidence of insurance at trial if the following requirements are met: (1) the
       evidence of insurance was offered for a specific purpose other than to prove
       negligence or wrongful conduct; (2) the evidence was relevant; (3) the trial court
       made an on-the-record determination under Rule 403 of the West Virginia Rules
       of Evidence that the probative value of the evidence was not substantially
       outweighed by its potential for unfair prejudice; and (4) the trial court delivered a
       limiting instruction advising the jury of the specific purpose(s) for which the
       evidence may be used.

Upon consideration of this standard, we find that the circuit court did not abuse its discretion, as
any information about the relationships between each expert witness and State Farm Auto or its
affiliates was offered for the purpose of showing witness bias, a purpose expressly authorized by
Rule 411. Furthermore, that evidence was relevant to determinations about the credibility of
those witnesses, and the court conducted the appropriate balancing test. The references to
insurance throughout the case were sufficiently restricted to the purpose of evaluating bias, and
the circuit court gave limiting instructions at the relevant junctures, directing that any mention of
insurance “was introduced for the sole and only purpose to inform the jury of how this witness
may have been paid, so that the jury can consider it in evaluating [the witness’s] credibility and
believability.” The circuit court did not err.

       We turn, then, to petitioners’ second assignment of error that the circuit court erred by
allowing respondents to introduce evidence of future special damages that had not been timely
disclosed, recognizing that:

       [a] trial court is permitted broad discretion in the control and management of
       discovery, and it is only for an abuse of discretion amounting to an injustice that
       we will interfere with the exercise of that discretion. A trial court abuses its
       discretion when its rulings on discovery motions are clearly against the logic of
       the circumstances then before the court and so arbitrary and unreasonable as to
       shock our sense of justice and to indicate a lack of careful consideration.

Syl. Pt. 1, B.F. Specialty Co. v. Charles M. Sledd Co., 197 W.Va. 463, 475 S.E.2d 555 (1996).
Respondents served their disclosure of expert witnesses pursuant to Rule 26(b)(4) of the West
Virginia Rules of Civil Procedure on April 30, 2013, and the matter was not tried until October
of that same year. Respondents’ prior discovery responses show that respondents were
forthcoming about the expectation that Respondent Retton would incur future medical treatment
for the remainder of her life. As the circuit court aptly explained in its order denying the motion
for a new trial, petitioners “did not seek any relief from the [c]ourt based on allegedly inadequate

                                                 3

discovery responses [or] inadequate disclosure of expected expert testimony, and neither did
[petitioners] depose a single treating physician of [Respondent Retton], or otherwise seek any
further discovery on this issue.” In light of these circumstances, we find that petitioners were not
unfairly surprised, and the circuit court did not abuse its discretion in allowing evidence of future
medical damages.

        Next, we address petitioners’ third assignment of error that the circuit court erred in
prohibiting petitioners’ expert witness, Dr. Sandra Metzler, from rendering an opinion on
causation pursuant to a review for an abuse of discretion. “‘The admissibility of testimony by an
expert witness is a matter within the sound discretion of the trial court, and the trial court’s
decision will not be reversed unless it is clearly wrong.’ Syllabus Point 6, Helmick v. Potomac
Edison Co., 185 W.Va. 269, 406 S.E.2d 700 (1991), cert. denied, 502 U.S. 908, 112 S.Ct. 301,
116 L.Ed.2d 244 (1991).” Syl. Pt. 1, West Virginia Div. of Highways v. Butler, 205 W.Va. 146,
516 S.E.2d 769 (1999). See also Syl. Pt. 2, Morris v. Boppana, 182 W.Va. 248, 387 S.E.2d 302
(1989) (“‘Under W. Va. R. Evid. 702, a trial judge has broad discretion to decide whether expert
testimony should be admitted, and where the evidence is unnecessary, cumulative, confusing or
misleading the trial judge may properly refuse to admit it.’ Syllabus point 4, Rozas v. Rozas, 176
W.Va. 235, 342 S.E.2d 201 (1986).”). We agree with the circuit court that the testimony
petitioners sought to elicit from Dr. Metzler—that petitioner could not have suffered permanent
injuries as a result of the subject automobile collision—was unnecessarily cumulative in light of
the testimony of petitioners’ other expert witness, orthopedic surgeon Dr. Kent Thrush. We find
no abuse of discretion in the exclusion of this evidence.

        With respect to petitioners’ fourth assignment of error that the circuit court erred in
refusing to give a “missing witness” instruction, we note that denial of a request for a missing
witness instruction is within the trial court’s discretion. Page v. Columbia Natural Resources,
Inc., 198 W.Va. 378, 393, 480 S.E.2d 817, 833 (1996) (citing 1 Cleckley, Handbook on
Evidence, § 3–1(C)(j) at 164 (1994) (“the rule is discretionary and subject to an abuse of
discretion standard”). Furthermore, the instruction is required only where there is an unjustified
failure to call a material witness. Id. citing McGlone v. Superior Trucking Co., Inc., 178 W.Va.
659, 363 S.E.2d 736 (1987). Here, petitioners argue that respondents “chose not to call any . . .
specialists [who treated respondent] to testify at trial but instead depended on the testimony
provided by John Manchin, D.O., [respondent’s] primary care physician.” Petitioners speculate
that the testimony of these witnesses would have been adverse to respondents’ case. We agree
with respondents that there is no evidence that these witnesses were “missing[,]” because they
were equally available to both parties for deposition or trial testimony. See Syl. pt. 2, in part,
Tracy v. Cottrell, 206 W.Va. 363, 524 S.E.2d 879 (1999). We find no error with respect to the
circuit court’s declining the requested instruction.

        Finally, we address the fifth assignment of error that the circuit court erred in denying
petitioners’ request for remittitur, in which petitioners take exception to the award of
$320,500.00 for future medical expenses though, they argue, the trial testimony of Dr. Manchin
supports only $202,860.00 in such damages.2 We have written:

       2
           Remittitur is the method by which a court reduces an award. We have explained:


                                                 4

       “Where an injury is of such a character as to be obvious, the effects of which are
       reasonably common knowledge, it is competent to prove future damages either by
       lay testimony from the injured party or others who have viewed his injuries, or by
       expert testimony, or from both lay and expert testimony, so long as the proof
       adduced thereby is to a degree of reasonable certainty. . . .” Syl. Pt. 11, Jordan v.
       Bero, 158 W.Va. 28, 210 S.E.2d 618 (1974).

Syl. Pt. 6, Cook v. Cook, 216 W.Va. 353, 607 S.E.2d 459 (2004). Dr. Manchin testified that the
average annual cost of respondent’s treatment for the three years preceding trial was $5,880, and
it was likely that respondent would require more treatment in future years than she had required
to that point. Dr. Manchin testified that respondent’s condition was incurable, and that she would
require treatment for the remainder of her life. In addition, Respondent Angela Retton and
Respondent David Retton each testified that Respondent Angela Retton would have sought more
treatment than she did, but their financial resources were limited, consequently limiting the
amount of treatment sought. Inasmuch as Dr. Manchin testified about the effects of respondent’s
injuries to a reasonable degree of medical certainty, and it is uncontroverted that petitioner would



                       [t]he historic rationale for remittitur practice is that it saves
               the time and expense of a new trial if the plaintiff will accept a
               lesser sum as a verdict. The plaintiff is satisfied because the
               expense of a new trial is avoided, and the defendant is satisfied
               because he or she either obtains a new trial, or has had the verdict
               against him or her reduced. Thus this procedure generally has the
               effect of facilitating settlement, thereby enhancing judicial
               economy.

               Allsup’s Convenience Stores, Inc. v. North River Ins. Co., 127 N.M. 1, 6,
       976 P.2d 1, 6 (1998). It is generally understood that, when a court grants a
       remittitur, the plaintiff is given the option of either accepting the reduction in the
       verdict or electing a new trial. See Jordan v. Bero, 158 W.Va. 28, 210 S.E.2d 618
       (1974) (remanding case with directions to the trial court to give plaintiff a period
       of thirty days to decide whether he will accept remittitur or submit to a new trial).
       See generally 1 Linda L. Schlueter, Punitive Damages § 6.2A, at 366 (5th ed.
       2005) (“If remittitur is ordered, the plaintiff has the option of either accepting the
       reduced award or seeking a new trial on the issue. The trial court should not
       simply order remittitur but must get plaintiff’s consent or order a new trial.”
       (footnotes omitted)).

Perrine v. E.I. du Pont de Nemours and Co., 225 W.Va. 482, 560, 694 S.E.2d 815, 893 (2010).
Respondents argue that the request for remittitur is gamesmanship aimed at correcting
petitioners’ failure to move for a directed verdict at the close of the evidence pursuant to Rule
50(a) of the West Virginia Rules of Civil Procedure. Petitioners respond that they could not have
foreseen the need to move for a directed verdict on this issue because, inasmuch as there was no
basis for the award of future medical damages, they could not have known the amount of
damages that would be awarded.
                                                  5

require greater care (at a greater expense) than she had in the past, we find no error in the circuit
court’s denial of the request for remittitur.

        Having reviewed each of petitioners’ asserted errors under the standards prescribed, and
finding no error, we find no indication that the trial court acted under any misapprehension of the
law or the evidence in denying petitioners’ motion for a new trial. We accordingly give the order
of the circuit court the respect and weight demanded by our precedent. For the foregoing reasons,
we affirm.

                                                                                          Affirmed.

ISSUED: November 21, 2014

CONCURRED IN BY:

Chief Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum

DISSENTING:

Justice Brent D. Benjamin

DISSENTING AND WRITING SEPARATELY:

Justice Allen H. Loughry II



LOUGHRY, Justice, dissenting:

        I dissent to the majority’s refusal to place this case on the argument docket and the
resultant cursory affirmance of this case in a memorandum decision. The jury in this case
awarded more than one million dollars for injuries sustained in a rear-end, fender-bender
accident. If those amounts themselves are insufficient to raise a wary eyebrow, certainly the
significant issues of law raised in the petitioners’ assignments of error warrant this Court’s most
scrutinizing review.

        In this case, the trial court permitted the repeated mention of insurance, permitted the
introduction of sizeable future medical specials disclosed only a month before trial, prohibited a
qualified biomechanical engineer from testifying consistent with her expertise, and refused to
give a critical instruction. The issues raised in this case are ones that touch upon the daily
practice of thousands of personal injury and defense practitioners. In fact, this case engendered
amicus curiae briefs from both the Defense Trial Counsel of West Virginia and the West
Virginia Association for Justice. Clearly, contrary to the majority’s summary conclusion that this
case presents “no substantial question of law,” “prejudicial error,” or “other just cause,” the

                                                 6

associations representing the State’s practitioners believe this case presents issues of great
importance. See W.V.R.A.P. 21. I agree and am concerned for the precedential effect the
majority’s superficial treatment of the complex and substantial issues of law presented herein
will create.

      Accordingly, I dissent and caution practitioners and the lower courts to be mindful of the
manner in which this case was affirmed.




                                               7

