EVIDENCE

Donna Jeannette Meadows v. James Ernest Meadows, Jr., Executor of the Estate of James Ernest Meadows, Sr., and Joseph Judson Meadows, No. 22812 (W. Va. February 14, 1996) (Cleckley, J.): 196 W. Va. 56, 468 S.E.2d 309:

Overruling prior cases which gave an expansive interpretation of the Dead Man's Statute, the Court held that (1) where the competence of the maker of a testamentary document is at issue, the Dead Man's Statute, W. Va. Code § 57-3-1, does not bar a party or interested witness from testifying as to the decedent's appearance and demeanor and such party or witness may give an opinion as to the decedent's competency if the other requirements of the Rules of Evidence are present and (2) when communications between a decedent and a party or interested witness are not offered for the truth of the matter asserted, but merely as the basis for an opinion regarding the mental competency of the decedent, the party or interested witness may used these communications to explain the opinion.

David D. Gentry and Nancy Gentry v. R. Michael Mangum, Sheriff of Raleigh County, et al., No. 22845 (W. Va. December 8, 1995) (Cleckley, J.): 195 W.Va. 512, 466 S.E.2d 171:

Where Mandolidis plaintiff sought to admit expert testimony regarding improper training procedures, but such testimony was rejected by the circuit court in granting summary judgment, as not being "scientifically" based, the Court held (1) in order to meet the reliability requirement of R. Evid. 104(a), scientific or technical evidence must be based upon "scientific, technical, or specialized knowledge," with such determination to be reviewed de novo on appeal; (2) in order to meet the relevancy requirement of R. Evid. 104(a), scientific or technical evidence must "assist the trier of fact to understand the evidence or to determine a fact in issue," with such determination to be reviewed under an abuse of discretion standard on appeal; (3) in order to fulfill his or her "gatekeeper" role under Daubert and Wilt, a trial judge must (i) determine whether the expert testimony reflects scientific knowledge, is based on the scientific method, and "amounts to good science," and (ii) determine whether the expert testimony is relevant to the issues presented; (4) in order to qualify an expert for purposes of testifying, a trial court should determine (i) whether the expert meets the minimum educational and/or experiential qualifications in a field that is relevant to the issues presented which will assist the trier of fact and (ii) whether the expert's area of expertise is reasonably related to the opinion which the expert proposes to offer; and (5) the question of admissibility under Daubert and Wilt arises only after it is established that the testimony deals with "scientific" knowledge, i.e., information derived from the application of scientific principles and methodologies.

State of West Virginia v. Earnest Sutphin, No. 22833 (W. Va. December 7, 1995) (Recht, J.): 195 W.Va. 551, 466 S.E.2d 402:

Affirming a second-degree murder conviction where the victim's father was permitted to testify regarding the defendant's threat to kill the victim if she ever left him, the Court held (1) hearsay within hearsay is nevertheless admissible, under R. Evid. 805, if each level of hearsay is governed by one of the exceptions to the hearsay rule; (2) a threat of future action is not hearsay under R. Evid. 801(d)(2) as against a declarant/party; (3) a threat of future conduct is a manifestation of a criminal defendant's state of mind and therefore is admissible as an exception to the hearsay rule contained in R. Evid. 803(3); (4) in order to qualify as an excited utterance under R. Evid. 803(2), the declarant must have (i) experienced a startling event or condition, (ii) reacted while under the stress or excitement of the event and not from reflection and fabrication, and (iii) the statement must relate to the startling event or condition; and (5) in order to determine whether an allegedly "excited utterance" was made under the stress or excitement of the event and not from reflection and fabrication, the trial court must consider (i) the lapse of time between the stimulus and the statement, (ii) the age, physical condition, and mental state of the declarant, (iii) the nature of the stimulus, and (iv) the nature of the statement.

Pamela J. Voelker, Administratrix of the Estate of Blake Andrew Weisenburg v. The Frederick Business Properties Company and Vincent Joseph Root, Sr., No. 22865 (W. Va. November 17, 1995) (McHugh, C.J.):195 W.Va. 246, 465 S.E.2d 246:

Where evidence was admitted regarding a mother/administratrix's methods of disciplining decedent child, failure to accompany the decedent child to his bus stop where he was killed, and use of illicit drugs in the decedent child's presence, the Court affirmed a defense verdict in a wrongful death case, holding that (1) evidence of a beneficiary's relationship with the decedent may be admitted into evidence for purposes of determining damages in a wrongful death action pursuant to W. Va. Code § 55-7-6(c)(1) which provides for recovery of damages for "[s]orrow, mental anguish, solace which may include society, companionship, comfort, guidance, kindly offices and advice of the decedent;" (2) whether evidence is relevant under R. Evid. 401 and 402 in determining damages in a wrongful death case and whether its probative value is outweighed by the danger of unfair prejudice pursuant to R. Evid. 403 must be determined on a case-by-case basis; and (3) a trial court's ruling on the admissibility of damages evidence in a wrongful death case will not be disturbed on appeal in the absence of an abuse of discretion.

Danny Reed and Sonya Reed v. Kathy L. Wimmer, No. 22705 (W. Va. October 27, 1995) (Cleckley, J.): 195 W.Va. 199, 465 S.E.2d 199:

Reversing on that part of a verdict awarding future medical expenses that were not supported by the evidence, but declining to reverse despite testimony by a plaintiff regarding insurance, the Court held (1) an insured is presumed to be protected from undue prejudice from evidence of insurance if (i) the evidence of insurance was offered for a specific purpose other than to prove negligence or wrongful conduct, (ii) the evidence was relevant, (iii) its probative value is not outweighed by its potential for unfair prejudice, and (iv) a limiting instruction is given advising the jury of the specific purpose(s) for which the evidence may be considered and (2) where evidence of insurance is wrongfully injected at trial, its prejudicial effect will be determined by applying R. Evid. 103(a), as well as (i) the relative strength of each parties' case, (ii) whether the evidence was emphasized by counsel or the witness, (iii) whether its admission appears to have been premeditated, (iv) whether the jury would reasonably have been expected to know of the existence of insurance even in the absence of such evidence; (v) whether the evidence was in disregard of a previous order, and (vi) whether a curative instruction can effectively dissipate any prejudice.

Shelley S. McDougal and David L. McDougal v. Julie K. McCammon, M.D., No. 22215 (W. Va. February 17, 1995) (Cleckley, J.): 193 W.Va. 229, 455 S.E.2d 788:

Affirming a defense verdict in a medical malpractice case where the plaintiff was surprised at trial by the introduction of a surveillance videotape which was not disclosed despite a discovery request, the Court held (1) rulings on the admissibility of evidence and the appropriateness of a particular sanction for discovery violations are within the discretion of the trial court; (2) evidentiary and procedural rulings by a trial court are subject to an abuse of discretion standard of review; (3) subject to certain exceptions, impeachment by contradiction may properly attack all kinds of testimony, whether given on direct or on cross-examination, as well as inferences suggested by evidence or arguments of counsel interpreting the evidence; and (4) in order to preserve the claim of unfai rsurprise as the basis for exclusion of evidence, the aggrieved party must move for a continuance or recess.

Sandra K. Michael, as Administratrix and Personal Representative on Behalf of the Estate of Randi Nichole Michael v. Francisco D. Sabado, Jr., M.D., No. 22032 (W. Va. December 21, 1994) (Cleckley, J.): 192 W.Va. 585, 453 S.E.2d 419:

Affirming a defense verdict in a medical malpractice case, the Court rejected plaintiff's complaint that the trial court unduly restricted the time available for rebuttal evidence, holding that (1) whether rebuttal evidence is appropriate depends upon the circumstances of the case and, accordingly, is within the sound discretion of the trial court and (2) trial courts have considerable discretion, pursuant to R. Evid. 403, with respect to the admission of contradictory evidence found to be admissible under R. Evid. 401, particularly because the admission of extrinsic evidence on collateral matters to impeach credibility is generally disfavored as confusing, misleading, and delaying.

West Virginia Department of Health and Human Resources ex rel. Brenda Wright, Social Services Worker v. David L., Jill L., Chelsea L., Ashley L., and Joshua L., No. 22311 (W. Va. December 15, 1994) (Cleckley, J.): 192 W.Va. 663, 453 S.E.2d 646:

Where, at the director of the father, a grandmother surreptitiously tape-recorded conversations between a mother and her children through the use of a voice-activated machine placed in the marital home, the Court held that a parent has no right on behalf of his or her children to give consent under W. Va. Code § 62-1D-3(a)(1) or 18 U.S.C. § 2511(2)(d) to have the children's conversations with the other parent recorded while the children are in the other parent's home and such recordings are inadmissible.

Roberta Mayhorn, as Executrix of the Estate of Homer Mayhorn v. Logan Medical Foundation, a corporation, dba Logan General Hospital; and Dr. Jim Gosien, M.D., No. 21933 (W. Va. December 9, 1994) (McHugh, J.): 193 W.Va. 42, 454 S.E.2d 87:

Reversing a directed verdict based upon a trial court decision that plaintiff's expert could not base his opinion upon information contained in a contradictory medical report, the Court held (1) R. Evid. 703 allows an expert to base an opinion on (i) personal observations, (ii) facts or data, admissible in evidence, and presented to the expert at or before trial, and (iii) information otherwise inadmissible in evidence if of a kind reasonably relied upon by those in the expert's field of expertise; (2) under R. Evid. 702, an opinion is admissible if the expert's methodology is scientifically or technically valid and properly applied, and the jury, not the trial judge, is to determine the weight to be given to the expert's opinions; and (3) the Rules of Evidence are paramount with respect to the admissibility of expert opinion and, to the extent that Gilman v. Choi, 185 W. Va. 177, 406 S.E.2d 200 (1990) indicates that the legislature may determine when an expert is qualified to state an opinion, it is overruled.

Mildred L.M. v. John O.F., No. 22037 (W. Va. December 8, 1994) (Cleckley, J.): 192 W.Va. 345, 452 S.E.2d 436:

Reversing a verdict in a paternity case where a jury apparently did not find persuasive blood test evidence establishing a 99% probability, the Court held (1) although a jury is not bound to accept expert testimony, it is not free to reject uncontradicted scientific evidence and substitute its own speculation in its place; (2) where uncontradicted expert testimony is rejected by a jury, there must be ample other testimony reasonably supporting its verdict; (3) where proper testing procedures are established by a preponderance of the evidence and the expert witness who interpreted the results was qualified, courts may take judicial notice of the accuracy and reliability of HLA blood-tissue test results in paternity cases that are introduced pursuant to W. Va. Code § 48A-6-3; and (4) under W. Va. Code § 48A-6-3, undisputed blood or tissue test results indicating a statistical probability of paternity of more than ninety-eight percent are conclusive on the issue of paternity and the trial court should enter judgment accordingly.

Joanna Porter Wheeler, individually, and as Administratrix, d.b.n. for the Estate of Paul David Porter v. Joseph Murphy, No. 22140 (W. Va. December 8, 1994) (Neely, J.): 192 W.Va. 325, 452 S.E.2d 416:

Reversing a jury verdict where the trial court refused to allow evidence of insurance to rebut testimony regarding the defendant's poverty, the Court held (1) proof of insured status offered on rebuttal as a financial asset that should be considered by the jury in awarding punitive damages does not violate R. Evid. 411; (2) where rebuttal consists of noncollateral evidence that is made material and relevant solely due to the evidence introduced by the defendant, it should be permitted as a matter of right; and (3) once a defendant offers evidence of financial status to influence the jury on punitive damages, then the plaintiff may rebut such evidence by introducing proof of insurance.

Glenn M. Wilt and Sandra B. Wilt v. Robert Buracker, Sheriff as Successor in Interest to Roy E. Thompson, Administrator of the Estate of Charles W. Nickelson, Jr., No. 21708 (W. Va. December 13, 1993) (Miller, J.): 191 W.Va. 39, 443 S.E.2d 196:

Reversing a personal injury verdict where expert economic testimony was offered placing a value on plaintiffs' hedonic damages for loss of enjoyment of life, the Court held (1) the admissibility of expert testimony under R. Evid. 702 depends upon whether such testimony is based on an assertion or inference derived from scientific methodology and is relevant to a fact in issue; (2) whether expert testimony is scientifically-based depends upon (i) whether the scientific theory and the testimony based upon such theory has been or can be tested, (ii) whether the scientific theory has been subjected to peer review and publication, (iii) whether the scientific theory's actual or potential rate of error is known, and (iv) whether the scientific theory is generally-accepted within the scientific community; and (3) the loss of enjoyment of life resulting from a permanent injury is part of the general measure of damages flowing from the permanent injury is is not subject to economic calculation.

Pauline Martin, Personal Representative of the Estate of James Martin v. David H. Smith, M.D., No. 21267 (W. Va. November 23, 1993) (Neely, J.): 190 W.Va. 286, 438 S.E.2d 318:

Affirming a $650,000 verdict against a psychiatrist after his patient committed suicide while on furlough, the Court rejected the psychiatrist's argument that the trial court erred in excluding his testimony regarding conversations with the decedent pursuant to the Dead Man's Statute because his mother testified in deposition regarding her conversations with the decedent, holding that although the Dead Man's Statute does not preclude otherwise excludable testimony where there has been a waiver, the mere taking of a deposition of a witness who is incompetent to testify under the Dead Man's Statute does not constitute a waiver unless the deposition is offered as evidence.

Raymond Kenneth McGuire, et al. v. Gertrude Walker, et al., No. 20917 (W. Va. October 23, 1992) (Miller, J.): 188 W.Va. 214, 423 S.E.2d 617:

Where defendant sought to introduce evidence of ownership of disputed land that was the subject of a number of deeds which referred back to a school lands sale deed, the Court stated that such deeds were admissible, holding that R. Evid. 803(15) permits the admission of statements in documents affecting an interest in property.

Deanna Lynn Haymaker, etc., et al. v. General Tire, Inc., an Ohio corporation, and Turnpike Ford, Inc., No. 20100 (W. Va. July 23, 1992) (McHugh, C.J.): 187 W.Va. 532, 420 S.E.2d 292:

Debra Adkins v. Mark Foster and Kathy Giauque, No. 20652 (W. Va. July 23, 1992) (Workman, J.): 187 W.Va. 730, 421 S.E.2d 271:

Where only statement at trial concerning the present value of future damages was made by attorney during closing argument and no instruction was given, the Court reversed, holding that although expert economic evidence may not be necessary in every case, an instruction regarding appropriate reduction of an award to present value should be presented to the jury both in cases where expert economic evidence is presented as well as in cases where no evidence is presented.

Michael Rine, an infant and incompetent, by and through his mother, natural guardian and next of friend, Traci L. Rine, and Traci L. Rine, individually v. Oscar S. Irisari, M.D., No. 20459 (W. Va. June 11, 1992) (McHugh, C.J.): 187 W. Va. 550, 420 S.E.2d 541:

Reversing a defense verdict in a medical malpractice case where the defendant introduced, on cross-examination, deposition testimony of a witness who was available to testify, the Court held in order to introduce former testimony under R. Evid. 804(b) (1), the proponent must demonstrate that the witness is unavailable. On a collateral issue, the Court held that where a party or witness is called as a witness by the opponent, the use of leading questions by that witness's own counsel on cross-examination is improper.

TXO Production Corp., etc. v. Alliance Resources Corp., etc., et al., No. 20281 (W. Va. May 14, 1992) (Neely, J.): 187 W.Va. 457, 419 S.E.2d 870:

Affirming a $10 million verdict in a slander of title case where evidence of malice included testimony by attorneys regarding unrelated actions in which the alleged wrongdoing had engaged in similar activities, the Court held (1) evidence of bad acts under R. Evi. 404(b) may be admissible when necessary to prove an actor's state of mind and (2) protections from the unfair admission of bad acts evidence include (a) the R. Evi. 404(b) requirement that the evidence is offered for a proper purpose, (b) the R. Evi. 402 requirement that the evidence is relevant, (c) the R. Evi. 403 requirement that probative value outweigh unfair prejudice, and (d) the R. Evi. 105 requirement that the jury be instructed that bad acts evidence is to be considered only for the purpose for which it is admitted.

Director, West Virginia Department of Natural Resources v. Phillip J. Gwinn and Tri-County Citizens for Irish Mountain, et al. v. Phillip J. Gwinn and State Water Resources Board, Intervenor, No. 19904 (W. Va. July 11, 1991) (Brotherton, J.): 185 W.Va. 442, 408 S.E.2d 21:

Reversing a trial court determination that the Water Resources Board is without authority to issue landfill permits, the Court held that the Water Resources Board has the authority, under W. Va. Code § 20-5A-15(a) & (g), to issue any order, including a permit, that the Chief of the Department of Natural Resources is empowered to issue.

John Fullmer, M.D., and Marlene Fullmer v. Swift Energy Co., Inc., No. 19630 (W. Va. April 22, 1991) (Neely, J.): 185 W.Va. 45, 404 S.E.2d 534:

Affirming the trial court's exclusion of evidence of pollution that occurred more than two years prior to institution of a suit for damage to riparian rights, the Court held that separate occurrences of pollution on different occasions give rise to distinct claims, and the statute of limitations for each claim begins to run at the time the pollution occurs.

In the Interest of Carlita B., No. 19899 (W. Va. July 29, 1991) (Workman, J.): 185 W.Va. 613, 408 S.E.2d 365:

Affirming the termination of parental rights of a mother's infant daughter, the Court held that the introduction of evidence in parental rights termination cases of prior acts of neglect or abuse toward children in general to show a neglectful or abusive disposition toward children does not violate W. Va. R. Evid. 404(b).

Charles R. Miller v. Monongahela Power Company, No. 19640 (W. Va. February 7, 1991) (Neely, J.): 184 W.Va. 663, 403 S.E.2d 406:

Affirming the admission of photographs of warning signs illustrative of expert testimony regarding the defendant's noncompliance with industry standards, the Court held that a trial court is afforded wide discretion in determining the admissibility of photographic evidence.

Gladys Y. Arnoldt, et al. v. Ashland Oil, Inc., a corporation, No. 19988 (W. Va. December 20, 1991) (Workman, J.): 186 W.Va. 394, 412 S.E.2d 795:

Where plaintiffs introduced evidence of unrelated corporate misconduct in order to impeach a statement made by its CEO which plaintiffs' introduced in their cross-examination of the CEO as an adverse witness, the Court held that R. Evid. 607 does not permit a party to introduce inadmissible evidence under the guise of impeachment. Where trial court excluded testimony of former EPA administrator who sought to establish defendant's compliance with applicable air quality standards, the Court reversed, holding a witness qualified as an expert by knowledge, skill, experience, training, or education may offer an opinion which will assist the trier of fact in understanding the evidence or to determine a fact in issue.

Phyllis Baber, Administratrix of the Estate of Richard Marshall Walker and Raymond Walker v. Nicholas Fortner, by Thomas Poe, Guardian ad Litem v. State Farm Mutual Automobile Insurance Company, No. 20138 (W. Va. December 19, 1991) (Brotherton, J.): 186 W.Va. 413, 412 S.E.2d 814:

Where defendant convicted of voluntary manslaughter was subsequently sued in a civil action, the Court held that the adjudication of a killing which results in a voluntary manslaughter conviction conclusively established the intentional nature of the act for purposes of any subsequent civil proceeding.

In the Matter of Meredith M. Breedlove, No. 20091 (W. Va. December 6, 1991) (Brotherton, J.): 186 W.Va. 279, 412 S.E.2d 473:

Affirming the application of the doctrine of judicial notice by a DMV hearing examiner who relied upon administrative records of the driver's prior conviction, the Court held that in a license revocation proceeding under W. Va. Code § 17C-5A-1, judicial notice may be taken of an adjudicative fact if the fact is not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the administrative agency, or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned.

Charles H. Cale, Okey P. Cale, Patricia A. McLaughlin, Robert L. Cale, Wilma Elder, and William F. Cale v. Sara E. Napier, Floyd J. Cale, Ada I. Morrison, Robert B. Blake, etc., et al., No. 20000 (W. Va. December 6, 1991) (Miller, C.J.): 186 W.Va. 244, 412 S.E.2d 242:

Ronald A. Gable, Administrator of the Estate of Carol A. Gable, and Ronald A. Gable, individually v. The Kroger Company, a corporation, No. 19996 (W. Va. October 16, 1991) (Neely, J.): 186 W.Va. 62, 410 S.E.2d 701:

Where trial court rejected plaintiff's request to call the defendant's employees as adverse witnesses, but with the condition that the defendant call those employees as its witnesses, the Court affirmed, holding that although a party is entitled under W. Va. R. Evid. 611 to call an adverse party and interrogate that party by leading questions, a trial judge has direction to exercise reasonable control over the presentation of evidence. The Court also affirmed the trial court's exclusion of two previous slip and fall incidents, holding that similar occurrence evidence must relate to the accidents or injuries or defects existing at substantially the same place and under substantially the same conditions.

Gladys Gilman and Bruce Gilman v. Young I. Choi, M.D., Pleasant Valley Hospital, Inc., a corporation, Bakshy Chhibber, M.D., and Thomas J. Moskalewicz, M.D., No. 19635 (W. Va. December 19, 1990) (McHugh, J.): 185 W.Va. 177, 406 S.E.2d 200:

Reconciling W. Va. R. Evid. 702 with W. Va. Code § 55-7B-7, which requires experts in medical malpractice cases to be qualified in the "same or substantially similar" medical field as the defendant physician, the Court held that the focus should properly be upon whether the proffered expert is "competent" in light of the circumstances presented, including the expert's specific field of expertise.

State of West Virginia v. John Allen Whitt, No. 19544 (W. Va. December 14, 1990) (Miller, J.): 184 W.V.a 340, 400 S.E.2d 584:

Rejecting a challenge to testimony by an assistant store manager concerning items of property found missing after an inventory conducted by the assistant store manager and two other employees, the Court held that R. Evid. 602 does not require that a witness's knowledge be positive or rise to the level of absolute certainty, but only that the witness actually perceived or observed that to which the witness testifies.

R. Wayne Rodgers, Administrator of the Estate of Hazlett M. Rodgers, Sr.; and R. Wayne Rodgers, Administrator of the Estate of Myrtle L. Rodgers, et al. v. Hazlett M. Rodgers, Jr., and John T. Rodgers, No. 19596 (W. Va. November 13, 1990) (Miller, J.): 184 W.Va. 82, 399 S.E.2d 664:

Expounding upon R. Evid. 406, the Court held that (1) evidence of a person's habit must be shown to be a regularly repeated response to similar circumstances; (2) evidence of habit is admissible even in the absence of corroborative testimony; and, (3) even if otherwise admissible, habit evidence is subject to the R. Evid. 403 balancing test to determine whether its probative value outweighs its prejudicial effect.

State of West Virginia v. Michael Perolis, No. 19607 (W. Va. October 18, 1990) (Neely, C.J.): 183 W.Va. 686, 398 S.E.2d 512:

Where defense counsel was precluded from asking leading questions of the prosecutrix in a sexual assault case regarding handwritten notes tending to impeach her direct testimony that she had not returned to the defendant's home following the assault, the Court reversed, holding that when a party calls a hostile witness, an adverse witness, or a witness identified with an adverse party, interrogation may be conducted by leading questions.

George W. Keyes, Jr., individually and as Administrator of the Estate of George W. Keyes, Deceased v. Robert J. Keyes, Annalaura Keyes, and Maude Keyes, No. 19126 (W. Va. April 16, 1990) (Neely, C.J.): 182 W.Va. 802, 392 S.E.2d 693:

Despite testimony at a bench trial that would ordinarily be barred under the Dead Man's Statute, W. Va. Code § 57-3-1, the Court held that when all parties agree to allow the trial judge in a bench trial to entertain testimony from all witnesses about transactions with a person who has died before trial, the admission of such testimony does not constitute reversible error.

Board of Education of McDowell County v. Zando, Martin & Milstead, Inc., No. 18773 (W. Va. February 22, 1990) (Miller, J.): 182 W.Va. 597, 390 S.E.2d 796:

The Court held that the trial court did not err in allowing a mining engineer, who had substantial experience in the construction industry, to testify regarding matters of structural engineering design, noting the liberality of Rule 702 of the Rules of Evidence.

Katherine L. Cross, Executrix of the Estate of Miriam Tate, Deceased v. State Farm Mutual Automobile Insurance Company, No. CC995 (W. Va. December 6, 1989) (McHugh, J.): 182 W.Va. 320, 387 S.E.2d 556:

In a certified question proceeding from the Fourth Circuit involving the testimony of insurance agents regarding conversations with deceased insureds, the Court held that where the only assertion is that agents are incompetent by virtue of their interests as agents, the "Dead Man's" statute, W. Va. Code § 57-3-1, does not bar testimony that an insurance agent orally informed the decedent of the costs of various levels of uninsured motorist coverage. As a more general proposition, the Court further held that a witness' status as an agent of a party does not alone render such witness a "person interested" under the "Dead Man's" statute.

Dennis L. Wright v. Karen S. Hanley, D.L. Peterson Trust, and Aetna Casualty & Surety Company, No. 18609 (W. Va. December 5, 1989) (Workman, J.): 182 W.Va. 334, 387 S.E.2d 801:

The Court held that evidence of failure to wear a seat belt is inadmissible in a negligence action either to assess comparative fault or to demonstrate failure to mitigate damages.

David J. Morris and M. Hannah Morris v. Prasada Rao Boppana, M.D., No. 18693 (W. Va. November 16, 1989) (Brotherton, C.J.): 182 W.Va. 248, 387 S.E.2d 302:

Where plaintiffs complained regarding jury disclosure of their settlement with several of the defendants, as well as defendant's argument to the jury that such settlement had caused plaintiffs' expert to change his testimony, the Court held that such decision rested within the sound discretion of the trial court.

Clifford King v. Kayak Manufacturing Corporation, No. 18910 (W. Va. November 9, 1989) (Miller, J.): 182 W.Va. 276, 387 S.E.2d 511:

In a product liability case brought by a quadriplegic against the manufacturer of an above-ground swimming pool into which he dove resulting in his injuries, the Court held: (1) a physician may testify as to the causal connection between the accident and the manner in which the plaintiff was injured; and, (2) advertising or promotional material concerning the use of a product may be admitted in a product liability case even though the plaintiff was not exposed to the material.