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Case Bulletin – West Virginia Supreme Court of Appeals Affirms Jury Verdict and Trial Court Rulings In Rear End Collision Accident In Response to Multiple Assignments of Error

On November 21, 2014, the West Virginia Supreme Court of Appeals issued a memorandum decision affirming the finding of the circuit court and jury verdict award  (over $1 million) in favor of the respondent in the case of Barrett v. Retton. This case resulted in a significant jury award for a rear-end motor vehicle accident .

 

The West Virginia Supreme Court of Appeals addressed the following assignments of error raised by the petitioners: (1) it was improper for the court to allow respondents to introduce evidence of payments made by an insurer  to petitioners’ expert witnesses as fees for their participation; (2) the court erred in allowing the respondents to introduce evidence of future special damages that had not been timely disclosed; (3) the court erred in prohibiting one of the petitioners’ experts from testifying as to causation; (4) the court erred in failing to give a “missing witness” instruction; and (5) the court erred in denying petitioners’ request for remittitur.

 

Petitioner, Erica Barrett, rear ended respondent, Angela Retton, while driving a vehicle owned by Petitioners, Gloria and Jerry Morgan.  As a result, respondent was forced to seek various medical treatment for chronic pain related to disc herniations and disc bulges. Although the respondent first sought to negotiate directly with State Farm Insurance Company, insurer for petitioner, unsuccessful attempts resulted in the filing of this civil suit. At the conclusion of trial, the jury issued a verdict in the amount of $1,013,156, including $320,500 in future medical expenses, in favor of the respondent. The appeal arose due to the denial of petitioners’ Motion for New Trial.

 

The first assignment of error raised by the petitioners was the argument that it was improper for the court to allow respondents to introduce evidence of payments made by State Farm to petitioners’ expert witnesses, as fees for their participation. Petitioners’ argument rested on Rule 411 of the West Virginia Rules of Evidence which precludes evidence related to a question of whether a person is or is not insured. The Court found that the circuit court did not abuse its discretion as the information related to the relationship between each expert witness and State Farm was offered for the purpose of showing bias, which is authorized under Rule 411.

 

The second assignment of error was that the circuit court erred in allowing the respondents to introduce evidence of future special damages that had not been timely disclosed. The circuit court had held that petitioners had not made any argument that the discovery responses were inadequate or that disclosure of expert testimony was inadequate. Further, the circuit court noted that the petitioners did not seek any further discovery on the issue of special damages where they could have and therefore, they were not unfairly surprised by the evidence of future medical damages. The Court affirmed the circuit court’s holding on this issue as well.

 

The third assignment of error was that it was improper for the circuit court to prohibit one of petitioners’ expert witnesses from rendering an opinion as to causation. Again, the Court affirmed the holding of the circuit court which found this evidence to be cumulative to other expert testimony offered by the petitioners and it was therefore not in error to be precluded.

 

The fourth assignment of error provided that the circuit court erred in failing to a give a “missing witness” instruction. The circuit court held that the failure of the respondents to call any specialist that treated the respondent to testify at trial, and instead relying on the primary care physician of the respondent, did not render any witness to be “missing.” The Court thereby affirmed the circuit court’s finding.

 

The final assignment of error rested on the petitioners’ argument that the circuit court erred in denying their request for remittitur. The circuit court held that based on the testimony offered by the respondent’s experts regarding the respondent’s condition, treatment sought, and inability of the respondent to receive further necessary treatment due to limited financial resources, that it was “uncontroverted” that the respondent would require greater care than she had in the past, and it was no error to deny petitioners’ request. The Court, in their memorandum decision, affirmed their holding.