McPherson v. Bolen, 11-0287

• Decision Date: 24 May 2012
• Docket Number: No. 11-0287,11-0287
• Parties: Mary McPherson and Thomas McPherson, Plaintiffs , Petitioners v. Betty Sue Bolen, as Administratrix of the Estate of Larry E. Bolen, Sr., Defendant , Respondent
• Court: West Virginia Supreme Court

Mary McPherson and Thomas McPherson, Plaintiffs , Petitioners

v.Betty Sue Bolen, as Administratrix of the Estate of Larry E. Bolen, Sr., Defendant , Respondent

No. 11-0287

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

ISSUED: May 24, 2012

(Mercer County 07-C-813)

MEMORANDUM DECISION

Petitioners Mary McPherson and Thomas McPherson appeal from the Circuit Court of Mercer County's Order denying their Motion to Set Aside Verdict and Grant New Trial. Upon careful review, this Court finds no substantial question of law and, after consideration of the applicable standard of review and the record presented, we find no prejudicial error. For these reasons, a memorandum decision is appropriate under Rule 21 of the Revised Rules of Appellate Procedure.

On July 8, 2006, petitioner Mary McPherson [hereinafter "Mrs. McPherson"] was a passenger in a vehicle operated by her husband, petitioner Thomas McPherson, when it was rear-ended by Larry Bolen, Sr. [hereinafter "Mr. Bolen"]. Mrs. McPherson claimed soft tissue neck and back injuries as a result of the accident. Petitioners filed suit and liability for the accident was admitted by then-defendant, Mr. Bolen. Mr. Bolen passed away during the pendency of the suit and his wife, Respondent Betty Sue Bolen, Administratrix of the Estate of Larry Bolen, Sr., [hereinafter "Mrs. Bolen"] was substituted as the defendant. On October 12-13, 2010, the case was tried to a jury solely on the issue of damages. The jury returned a verdict in favor of petitioners in the amount of $11,190.60.¹

During the trial, both petitioners testified as well as Mrs. McPherson's treating chiropractor, Dr. Randy Maxwell. Dr. Maxwell testified that it was his opinion that Mrs. McPherson had sufferedpermanent neck and back injuries in the accident. In support of his opinion on permanency, he testified that "the literature" indicates that if a person has symptoms for three months following an accident, ninety percent of the time they will have suffered a permanent injury. Mrs. McPherson had treated with him on and off for approximately a year.

On cross-examination, Dr. Maxwell indicated that Mrs. McPherson had denied any prior neck or back injuries during her medical history and that, as a result, he would "have to assume" that her injuries were from the accident at issue. Defense counsel again elicited the testimony from Dr. Maxwell that three months of symptoms resulted in a permanent injury ninety percent of the time and asked, hypothetically, if he learned that Mrs. McPherson had been in three prior accidents whether that would affect his opinions. Dr. Maxwell responded simply that prior accidents would make Mrs. McPherson more susceptible to re-injury.

Mrs. McPherson testified that she had been in only one prior accident ten to fifteen years ago. Defense counsel then impeached Mrs. McPherson with medical records reflecting treatment for neck and back injuries sustained in rear-end accidents in 1993, 1999, and 2003 (just three years prior to the subject accident). The records reflected five months of treatment for the 1999 injury. Petitioners' counsel made no objection during the cross-examination of Mrs. McPherson utilizing the medical records as impeachment.²

Subsequent to Mrs. McPherson's testimony, petitioners' counsel asked to approach the bench and indicated that he wanted to call Mrs. Bolen to the stand. When counsel and the court asked what information she could possibly have about the case, petitioners' counsel replied, "I'm going to ask her why she didn't call any doctors to say this wasn't a permanent injury and she could testify to that." The court replied, "I think that you can argue that but I think that's improper to question her about that." Petitioners' counsel noted his objection and offered no further areas upon which he wished to question Mrs. Bolen nor persisted in his request to call Mrs. Bolen as a witness.³

During closing argument, defense counsel suggested that Dr. Maxwell's permanency theory should apply equally to Mrs. McPherson's prior accidents and injuries, arguing that either Mrs.McPherson's complaints and treatment could just as likely be the result of the permanency occasioned by the 1999 accident or that Dr. Maxwell's testimony on that issue was simply not credible. Petitioners' counsel made no objection during this portion of defense counsel's closing. During petitioners' closing argument, counsel noted the defense's failure to retain a medical expert as well as the defense's failure to call the doctors who treated Mrs. McPherson for the prior accidents to testify regarding permanency.

Following the jury's verdict, petitioners filed a Motion to Set Aside Verdict and Grant New Trial. In support, petitioners argued, 1) that it was improper for respondent to argue that Mrs. McPherson's medical records demonstrated that she had pre-existing conditions and permanent injuries therefrom without a defense expert to establish permanency; and 2) that it was error for the court to refuse to allow petitioners to call Mrs. Bolen. Petitioners argued, as to the first issue, respondent needed an expert to testify that Mrs. McPherson had pre-existing permanent conditions before properly arguing that point to the jury. As to the second issue, petitioners argued simply that this Court has recognized that a party has a right to call an adverse party, citing Syllabus Point 1 of Gable v. Kroger Co., 186 W. Va. 62, 410 S.E.2d 701 (1991), which states: "Under Rule 611 of the West Virginia Rules of Evidence [1985], a party is entitled to call an adverse party and interrogate that party by leading questions."

In response, respondent argued that defense counsel simply "connected the dots" between plaintiffs' own expert's testimony (about permanency resulting if symptoms continue after three months) and the undisputed evidence that Mrs. McPherson had three prior accidents with similar injuries, at least one of which she treated for more than three months. As to the trial court's refusal to allow Mrs. Bolen to testify, respondent argued that petitioners' offer of proof demonstrated that the only proposed area of inquiry would improperly inquire about "matters of trial strategy" which are not for jury consideration and represented that Mrs. Bolen would have had no knowledge of why an expert was not utilized.

The trial court denied the motion, finding that as to the pre-existing condition, counsel simply "argued a reasonable inference to the jury based upon [the] uncontradicted evidence." As to the refusal to allow Mrs. Bolen to testify, the trial court noted that liability had been admitted and that Mrs. Bolen would have no factual information as to damages. The court found further that

[a] decision to obtain or not to obtain an independent medical evaluation goes to trial strategy and her interrogation on that issue may have led to the introduction of impression's [sic] of defendant's counsel with regard to how the case should be tried, none of which would have been proper for jury consideration and would have been irrelevant to any of the issues being tried. The Court notes that plaintiffs' counsel did argue to the jury that defendant had an opportunity to obtain an IME, but did not do so.

This appeal followed.

This Court has held that "'[a]lthough the ruling of a trial court in granting or denying a motion for a new trial is entitled to great respect and weight, the trial court's ruling will be reversed on appeal when it is clear that the trial court has acted under some misapprehension of the law or the evidence.' Syl. pt. 4, Sanders v. Georgia-Pacific Corp., 159 W. Va. 621, 225 S.E.2d 218 (1976)." Syl. Pt. 1, Adams v. Consol. Rail Corp., 214 W. Va. 711, 591 S.E.2d 269 (2003). Moreover, it is well-established that "'[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.' Syl. pt. 4, State v. Rodoussakis, 204 W. Va. 58, 511 S.E.2d 469 (1998)." Syl. Pt. 3, Adams.

In this appeal, petitioners argue that the trial court erred in finding that it was proper for defense counsel to argue the existence of pre-existing, permanent injuries without a defense expert. Of paramount importance to the analysis of this assignment of error, is the fact that the only objection lodged by petitioners remotely touching on this issue was as to the admission of the medical records into evidence. See supra n.2. However, petitioners did not assign the admission of the records as error. Rather, their error is directed toward the allegedly improper argument of counsel that the records demonstrate a pre-existing condition. There was no objection during defense counsel's closing argument or even during impeachment of Mrs. McPherson with the medical records. West Virginia Rule of Evidence 103(a) states:

Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and

(1) Objection. - In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context[.]

In addition, this Court has held that "'[a] litigant may not silently acquiesce to an alleged error, or actively contribute to such error, and then raise that error as a reason for reversal on appeal.' Syllabus point 1, Maples v. West Virginia Department of Commerce, 197 W. Va. 318, 475 S.E.2d 410 (1996)." Syl. Pt. 6, Page v. Columbia Natural Resources, Inc., 198 W. Va. 378, 480 S.E.2d 817 (1996).

Notwithstanding their failure to properly preserve the issue for appeal, petitioners' argument is without merit. Petitioners argue simply that in order to attack their contention that Mrs. McPherson's complaints were the result of the accident at issue, respondent needed an expert to opine that her complaints were from a prior injury. Petitioners cite to Jordan v. Bero, 158 W. Va. 28, 210...