Gentry v. Mangum

• Decision Date: 08 December 1995
• Docket Number: No. 22845,22845
• Citation: 195 W.Va. 512,466 S.E.2d 171
• Court: West Virginia Supreme Court
• Parties: David D. GENTRY and Nancy Gentry, Petitioners Below, Appellants, v. R. Michael MANGUM, Sheriff of Raleigh County; and Paul H. Flanagan, Vernon P. Barley and Jack P. MacDonald, in their Official Capacity as the County Commission of Raleigh County, Defendants Below, Appellees.

Page 171

466 S.E.2d 171

195 W.Va. 512

David D. GENTRY and Nancy Gentry, Petitioners Below, Appellants, v. R. Michael MANGUM, Sheriff of Raleigh County; and Paul H Flanagan, Vernon P. Barley and Jack P. MacDonald, in their Official Capacity as the County Commission of Raleigh County, Defendants Below, Appellees.

No. 22845.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 19, 1995.

Decided Dec. 8, 1995.

[195 W.Va. 514] Syllabus by the Court

1. An interpretation of the West Virginia Rules of Evidence presents a question of law subject to de novo review.

2. Summary judgment is proper only if, in the context of the motion and any opposition to it, no genuine issue of material fact exists and the movant demonstrates entitlement to judgment as a matter of law. A party seeking summary judgment must make

[195 W.Va. 515] a preliminary showing that no genuine issue of material fact exists. Once the movant makes this showing, the nonmovant must contradict the showing by pointing to specific facts demonstrating that there is, indeed, a trialworthy issue. An expert's deposition or affidavit that is conclusory only is not sufficient to meet the burden on the party opposing the motion, although an affidavit or deposition containing an adequately supported opinion may suffice to raise a genuine issue of fact. An issue is "genuine" when the evidence relevant to it, viewed in the light most favorable to the party opposing the motion, is sufficiently open ended to permit a rational factfinder to resolve the issue in favor of either side

3. The first and universal requirement for the admissibility of scientific evidence is that the evidence must be both "reliable" and "relevant." Under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Wilt v. Buracker, 191 W.Va. 39, 443 S.E.2d 196 (1993), cert denied, 511 U.S. 1129, 114 S.Ct. 2137, 128 L.Ed.2d 867 (1994), the reliability requirement is met only by a finding by the trial court under Rule 104(a) of the West Virginia Rules of Evidence that the scientific or technical theory which is the basis for the test results is indeed "scientific, technical, or specialized knowledge." The trial court's determination regarding whether the scientific evidence is properly the subject of scientific, technical, or other specialized knowledge is a question of law that we review de novo. On the other hand, the relevancy requirement compels the trial judge to determine, under Rule 104(a), that the scientific evidence "will assist the trier of fact to understand the evidence or to determine a fact in issue." W.Va.R.Evid. 702. Appellate review of the trial court's rulings under the relevancy requirement is under an abuse of discretion standard. State v. Beard, 194 W.Va. 740, 746, 461 S.E.2d 486, 492 (1995).

4. When scientific evidence is proffered, a circuit court in its "gatekeeper" role under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Wilt v. Buracker, 191 W.Va. 39, 443 S.E.2d 196 (1993), cert denied, 511 U.S. 1129, 114 S.Ct. 2137, 128 L.Ed.2d 867 (1994), must engage in a two-part analysis in regard to the expert testimony. First, the circuit court must determine whether the expert testimony reflects scientific knowledge, whether the findings are derived by scientific method, and whether the work product amounts to good science. Second, the circuit court must ensure that the scientific testimony is relevant to the task at hand.

5. In determining who is an expert, a circuit court should conduct a two-step inquiry. First, a circuit court must determine whether the proposed expert (a) meets the minimal educational or experiential qualifications (b) in a field that is relevant to the subject under investigation (c) which will assist the trier of fact. Second, a circuit court must determine that the expert's area of expertise covers the particular opinion as to which the expert seeks to testify.

6. The question of admissibility under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Wilt v. Buracker, 191 W.Va. 39, 443 S.E.2d 196 (1993), cert denied, 511 U.S. 1129, 114 S.Ct. 2137, 128 L.Ed.2d 867 (1994) only arises if it is first established that the testimony deals with "scientific knowledge." "Scientific" implies a grounding in the methods and procedures of science while "knowledge" connotes more than subjective belief or unsupported speculation. In order to qualify as 'scientific knowledge,' an inference or assertion must be derived by the scientific method. It is the circuit court's responsibility initially to determine whether the expert's proposed testimony amounts to "scientific knowledge" and, in doing so, to analyze not what the experts say, but what basis they have for saying it.

Scott S. Segal, Mark R. Staun, Andrew J. Katz, Segal & Davis, Charleston, for Appellants.

David P. Cleek, Cleek, Pullin, Knopf & Fowler, Charleston, for Appellees.

CLECKLEY, Justice:

The plaintiffs below and appellants herein, David D. Gentry and Nancy Gentry, his wife,

[195 W.Va. 516] appeal from an order of the Circuit Court of Raleigh County granting the defendants below and appellees herein, the Sheriff and County Commissioners of Raleigh County, summary judgment in an action brought by the Gentrys to recover damages for personal injuries sustained when David Gentry, who was a deputy sheriff, was shot in the line of duty. The Gentrys argue the defendants "deliberately intended" to injure David Gentry when they issued a policy requiring the deputy sheriffs of Raleigh County to change the location of the shotgun carried in police cruisers from the cabins of the vehicles to the trunks without providing training on the use and retrieval of the shotgun. On appeal, the plaintiffs claim the circuit court erred in granting summary judgment. They also claim the circuit court erred in refusing to allow a police officer whom they called as an expert witness to give opinion testimony in an area in which he had specialized knowledge by virtue of his experience, training, and education. For the reasons discussed below, we find the circuit court erred in refusing to permit the testimony of the plaintiffs' expert witness.

I. FACTS AND PROCEDURAL BACKGROUND

On June 1, 1991, Officer Gentry responded to a call about someone roaming around the Crab Orchard area of Raleigh County carrying numerous guns on his person and generally causing problems. Finding no one meeting that description, Officer Gentry prepared to leave the area when he spotted an old van with an expired inspection sticker. Officer Gentry then attempted to pull the van over because of the driving violation; however, the van sped away. After driving some distance, the driver of the van failed to make a turn and drove over an embankment. Deputy Gentry stopped his cruiser to investigate. Immediately after exiting the vehicle, he was shot once in his left hand and arm. Pursuant to a regulation which was issued by the Raleigh County Sheriff's Department, Deputy Gentry had a shotgun locked in the trunk of his police cruiser. After being shot, he began to move in an effort to reach the shotgun in the trunk. He also fired his .357 revolver at the assailant. The assailant then shot Deputy Gentry in the left leg.

Following this incident, the plaintiffs brought this action to recover for the injuries resulting from the June 1, 1991, shooting. In bringing the action, they charged the defendants knowingly promulgated and enforced a regulation that required the shotgun issued to Deputy Gentry be stored in the locked trunk of his police cruiser. The plaintiffs also claimed the defendants implemented this regulation without conducting an adequate investigation into the hazards associated with the decision or without providing Raleigh County deputies, including Deputy Gentry, with adequate training in utilization and retrieval of shotguns locked in the trunks of police cruisers. Lastly, the plaintiffs asserted the actions of the defendants satisfy the definition of "deliberate intent" found in the West Virginia Workers Compensation Act, W.Va.Code, 23-4-2 (1991), ¹ and entitles them to bring a so-called "Mandolidis" action. ²

Extensive discovery was conducted as the case progressed. In the course of the discovery, facts were developed which showed that Deputy Gentry, who had acted as a part-time administrative aide to the defendant, Sheriff R. Michael Mangum, had discussed with the Sheriff widespread dissatisfaction among the deputies with the policy requiring the locking of shotguns in the trunks of police cruisers. There was also evidence that Sheriff Mangum had had verbal disputes over the policy with three deputies who kept their shotguns in the cabs of their vehicles. The facts showed that, in spite of the problems with the policy, Sheriff Mangum never provided training for the adequate retrieval and use of the shotguns when they were located in the trunks of the police cruisers.

After considerable discovery was conducted, the defendants moved for summary judgment.

[195 W.Va. 517] . The circuit court deferred ruling on the motion to afford the plaintiffs an opportunity to conduct additional discovery. The deposition of Officer Charles Mader was taken to elicit his opinion regarding the defendants' "deliberate intent" to injure Deputy Gentry. Officer Mader testified in the deposition that Sheriff Mangum's failure to train the deputies on the retrieval and use of the shotguns after changing the location of the shotguns from the cabins of police cruisers to the trunks, especially when the Sheriff knew the deputies were uncomfortable with the policy, created a specific unsafe working condition with a high probability of serious injury or death. He also testified that Sheriff Mangum had a subjective realization that the dangerous condition created by his decision would lead to serious...