Tracy v. Cottrell, 25845.

• Decision Date: 12 November 1999
• Docket Number: No. 25845.,25845.
• Court: West Virginia Supreme Court
• Parties: Linda J. TRACY, Administratrix of the Estate of Douglas B. Tracy, Deceased, Plaintiff Below, Appellant, v. Athelene COTTRELL, by Her Administrator, Gabriel Cottrell, and General Motors Corporation, a Corporation Doing Business in the State of West Virginia, Defendants Below, Appellees.

524 S.E.2d 879

206 W.Va. 363

Linda J. TRACY, Administratrix of the Estate of Douglas B. Tracy, Deceased, Plaintiff Below, Appellant, v. Athelene COTTRELL, by Her Administrator, Gabriel Cottrell, and General Motors Corporation, a Corporation Doing Business in the State of West Virginia, Defendants Below, Appellees.

No. 25845.

Supreme Court of Appeals of West Virginia.

Submitted June 2, 1999.

Decided November 12, 1999.

Wayne King, Kevin Duffy, Clay, West Virginia, Attorneys for the Appellant.

Gary W. Hart, Jackson & Kelly, PLLC, Charleston, West Virginia, Joseph E. O'Neil, Lavin, Coleman, O'Neil, Ricci, Finarelli & Gray, Philadelphia, Pennsylvania, Attorneys for the Appellee, General Motors Corporation. DAVIS, Justice:

The appellant herein and plaintiff below, Linda J. Tracy (hereinafter "Tracy"), Administratrix of the Estate of Douglas B. Tracy (hereinafter "Douglas"), appeals the October 22, 1997, verdict of a Clay County jury, which returned a defense verdict for the appellee herein and defendant below, General Motors Corporation (hereinafter "GM"). Tracy further appeals the circuit court's subsequent order, entered June 11, 1998, which denied her motion to set aside the adverse jury verdict and refused to grant her a new trial. In her civil suit against GM, Tracy sought to recover for the wrongful death of her son, Douglas. Tracy contends Douglas's death was the result of a defective seat belt restraint system found in the GM automobile in which he was riding as a passenger. In this appeal, Tracy has assigned as error: (1) the giving of certain defense jury instructions; (2) the submission to the jury of special Interrogatory Number 10; (3) the exclusion of the Mertz memorandum; (4) the refusal to designate a witness as an expert; and (5) the preclusion of certain rebuttal testimony. Upon a review of the parties' arguments before this Court, the appellate record herein, and the pertinent authorities, we reverse the decision of the Circuit Court of Clay County.

I. FACTUAL AND PROCEDURAL HISTORY

On January 22, 1993, around 7:30 in the morning, sixteen-year-old Douglas B. Tracy was a passenger in a 1988 Chevrolet Celebrity automobile driven by sixteen-year-old Jennifer Shuler (hereinafter "Ms. Shuler"). Driving on rain-slickened Route 16 North in Clay County, West Virginia, Ms. Shuler veered off of the main road and onto the berm. On this stretch of road, which is heavily traveled by coal trucks, the berm is approximately three to ten inches lower than the main road. Apparently, Ms. Shuler attempted to steer her car back onto Route 16 when she over-corrected the steering wheel and lost control of the vehicle. The Celebrity vehicle then slid into the oncoming traffic of State Route 16 South where a Chevrolet Chevette, driven by Athelene Cottrell¹ (hereinafter "Ms. Cottrell"), struck the passenger side of the Shuler vehicle. After impact, the Celebrity continued to slide over an embankment and finally rested upright in a creek bed.

Witnesses and rescue workers at the scene testified that both Douglas and Ms. Cottrell were killed in the accident.² Ms. Shuler sustained severe injuries. Immediately after the accident, observers noted that Douglas was wearing both a lap seat belt and a shoulder belt. It was further reported that Douglas's shoulder belt fit him snugly. During rescue efforts, Douglas's shoulder belt was cut in order to free Ms. Shuler. Thereafter, Carl Wilson, II, Coroner for Clay County, and Trooper S.R. Butcher, of the West Virginia Department of Public Safety, examined Douglas's body and noted various bruises on his neck and shoulders where the belts had been located. Following the accident investigations and insurance companies' claims adjustments, the Shuler vehicle was destroyed.

In January, 1994, Tracy, Douglas's mother and the Administratrix of his estate, filed a wrongful death action in the Circuit Court of Clay County naming as defendants Ms. Cottrell and GM.³ The primary focus of the case was Tracy's contention that the Celebrity's restraint system was defective and had been negligently designed and tested. Additionally, Tracy asserted that GM failed to comply with express and implied warranties and further had failed to warn of the known hazards associated with its restraint systems. Prior to trial, the lower court granted GM's motion to bifurcate the trial as to liability and damages. The liability portion of the trial commenced on October 6, 1997. On October 22, 1997, the jury returned a verdict, comprised of ten special interrogatories, in favor of GM. Tracy moved for a new trial and to set aside the jury verdict. The circuit court denied the requested relief by order entered June 11, 1998. From the adverse jury verdict and the circuit court's order denying post-trial relief, Tracy appeals.

II. STANDARD OF REVIEW

Due to the multiple and diverse errors assigned for appellate consideration, we will incorporate specific standards of review applicable to the various issues in our discussion of those assignments. Nevertheless, a general standard of review also governs our consideration of the instant appeal. Given that the proceedings underlying this appeal culminated in a jury verdict, we must consider the manner in which we examine the correctness of jury decisions. Typically, " `[a]n appellate court will not set aside the verdict of a jury, founded on conflicting testimony and approved by the trial court, unless the verdict is against the plain preponderance of the evidence.' Point 2, Syllabus, Stephens v. Bartlett, 118 W.Va. 421[, 191 S.E. 550 (1937)]." Syllabus point 1, Walker v. Monongahela Power Co., 147 W.Va. 825, 131 S.E.2d 736 (1963).

In determining whether the verdict of a jury is supported by the evidence, every reasonable and legitimate inference, fairly arising from the evidence in favor of the party for whom the verdict was returned, must be considered, and those facts, which the jury might properly find under the evidence, must be assumed as true.

Syl. pt. 3, id. With this standard in mind, we proceed to consider the assigned errors.

III. DISCUSSION

On appeal to this Court, Tracy complains that the circuit court erred by (1) giving certain jury instructions submitted by GM; (2) incorporating, in the interrogatories submitted to the jury for their consideration, special Interrogatory Number 10; (3) excluding from trial the Mertz memorandum; (4) refusing to designate a particular witness as an expert; and (5) precluding certain proffered rebuttal testimony. We will in turn address each of these assignments.

A. Jury Instructions

Tracy has assigned as error four jury instructions given by the court. This Court held in Syllabus point 1 of State v. Hinkle, 200 W.Va. 280, 489 S.E.2d 257 (1996), that, "[a]s a general rule, the refusal to give a requested jury instruction is reviewed for an abuse of discretion. By contrast, the question of whether a jury was properly instructed is a question of law, and the review is de novo." Accord Skaggs v. Elk Run Coal Co., Inc., 198 W.Va. 51, 63, 479 S.E.2d 561, 573 (1996)

; Syl. pt. 6, Voelker v. Frederick Bus. Properties, 195 W.Va. 246, 465 S.E.2d 246 (1995); Syl. pt. 6, Tennant v. Marion Health Care Found., Inc., 194 W.Va. 97, 459 S.E.2d 374 (1995). We made clear in Skaggs that

[t]o challenge jury instructions successfully, a challenger must first demonstrate the charge as a whole created a substantial and ineradicable doubt about whether the jury was properly guided in its deliberations. Second, even if the jury instructions were erroneous, we will not reverse if we determine, based upon the entire record, that the challenged instruction could not have affected the outcome of the case.

198 W.Va. at 70, 479 S.E.2d at 580. Accord Syl. pt. 2, Roberts v. Stevens Clinic Hosp., Inc., 176 W.Va. 492, 345 S.E.2d 791 (1986); Syl. pt. 3, Lambert v. Great Atl. & Pac. Tea Co., 155 W.Va. 397, 184 S.E.2d 118 (1971). Finally, in Syllabus point 4 of State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995), we ruled:

A trial court's instructions to the jury must be a correct statement of the law and supported by the evidence. Jury instructions are reviewed by determining whether the charge, reviewed as a whole, sufficiently instructed the jury so they understood the issues involved and were not misle[d] by the law. A jury instruction cannot be dissected on appeal; instead, the entire instruction is looked at when determining its accuracy. A trial court, therefore, has broad discretion in formulating its charge to the jury, as long as the charge accurately reflects the law. Deference is given to a trial court's discretion concerning the specific wording of the instruction, and the precise extent and character of any specific instruction will be reviewed only for an abuse of discretion.

Accord Kessel v. Leavitt, 204 W.Va. 95, 144, 511 S.E.2d 720, 769 (1998),

cert. denied, 525 U.S. 1142, 119 S.Ct. 1035, 143 L.Ed.2d 43 (1999). Within the confines of these principles, we examine separately Tracy's assignment of errors relating to the four jury instructions.

1. Spoliation of Evidence. Tracy first contends that the circuit court erred in granting GM's Instruction Number 24, regarding an adverse inference which could be attributed to the spoliation of evidence. The following instruction was given:

You have heard testimony that the 1988 Chevrolet Celebrity at issue in this litigation was destroyed several months after the accident and before GM ever received notice of plaintiff's claim. Consequently, neither the expert witnesses retained by GM, nor any GM representative, had an opportunity to inspect the 1988 Chevrolet Celebrity in connection with this litigation.

Where, as here, plaintiff as the party making a claim fails to preserve evidence which should properly be part of plaintiff's case, you may infer that the evidence, if it had been available, would have been unfavorable to plaintiff's case.

Tracy claims it was error to give the...