671 S.E.2d 693
JUSTICE ALBRIGHT not participating.
SENIOR STATUS JUSTICE McHUGH, sitting by temporary assignment.
SENIOR STATUS JUSTICE McHUGH disqualified.
JUDGE BEANE, sitting by temporary assignment.
4. “Factors to be considered in determining whether the failure to
supplement discovery requests under Rule 26(e)([1]) of the Rules of Civil Procedure should
require exclusion of evidence related to the supplementary material include: (1) the prejudice
or surprise in fact of the party against whom the evidence is to be admitted; (2) the ability of
that party to cure the prejudice; (3) the bad faith or willfulness of the party who failed to
supplement discovery requests; and (4) the practical importance of the evidence excluded.”
Syllabus point 5, Prager v. Meckling, 172 W. Va. 785, 310 S.E.2d 852 (1983).
5. “Rule 401 of the West Virginia Rules of Evidence requires the trial
court to determine the relevancy of the exhibit on the basis of whether the [exhibit] is
probative as to a fact of consequence in the case. The trial court then must consider whether
the probative value of the exhibit is substantially outweighed by the counterfactors listed in
Rule 403 of the West Virginia Rules of Evidence. . . .” Syllabus point 10, in part, State v.
Derr, 192 W. Va. 165, 451 S.E.2d 731 (1994).
6. “When a plaintiff does not prevail as to liability, any errors he claims
as to the issue of damages are harmless because, without a verdict on the liability issue, the
plaintiff is not entitled to any damages.” Syllabus point 3, Morris v. Boppana, 182 W. Va.
248, 387 S.E.2d 302 (1989).
Per Curiam: (See footnote 1)
Parkersburg Inn, Inc., appellant/respondent below (hereinafter “the Inn”),
appeals an order of the Circuit Court of Wood County denying its motion for a new trial.
The case involved a petition filed by the West Virginia Department of Transportation,
Division of Highways, appellee/petitioner below (hereinafter “DOH”), to determine whether
the Inn was entitled to compensation for damages caused by a road construction project. The
issue was submitted to a jury. The jury rendered a verdict in favor of DOH. In this appeal,
the Inn contends that the circuit court committed the following errors: (1) giving DOH's
Instruction No. 2; (2) permitting a witness to testify as an expert in an area outside of his
expertise; (3) prohibiting one of the Inn's witnesses from giving expert testimony; and (4)
excluding certain appraisal evidence. After a careful review of the briefs, record submitted
on appeal, and listening to the oral arguments of the parties, we affirm.
We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.
See also Syl. pt. 4, Sanders v. Georgia-Pacific Corp., 159 W. Va. 621, 225 S.E.2d 218
(1976) (“Although 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.”).
One of the issues raised by the Inn involves a jury instruction that was tendered
by DOH. In Syllabus point 6 of Tennant this Court set out the standard of review of a trial
court's jury instructions as follows:
The formulation of jury instructions is within the broad
discretion of a circuit court, and a circuit court's giving of an
instruction is reviewed under an abuse of discretion standard.
A verdict should not be disturbed based on the formulation of
the language of the jury instructions so long as the instructions
given as a whole are accurate and fair to both parties.
See also Doe v. Wal-Mart Stores, Inc., 210 W. Va. 664, 671, 558 S.E.2d 663, 670 (2001).
The remaining issues raised by the Inn involve the admissibility of certain
evidence. This Court has made clear that “[a] party challenging a circuit court's evidentiary
rulings has an onerous burden because a reviewing court gives special deference to the
evidentiary rulings of a circuit court.” Gentry v. Mangum, 195 W. Va. 512, 518, 466 S.E.2d
171, 177 (1995). As a result of such deference, “[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). See also Syl. pt. 1, in part, McDougal v. McCammon, 193 W. Va. 229, 455 S.E.2d 788 (1995)
(“Absent a few exceptions, this Court will review evidentiary . . . rulings of the circuit court
under an abuse of discretion standard.”).
With these reviewing standards in place, we will now address the merits of the
issues raised by the Inn.
“[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.”
Keesee v. General Refuse Serv., Inc., 216 W. Va. 199, 209, 604 S.E.2d 449, 459 (2004)
(quoting Syl. pt. 4, in part, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995)). We
have also long held that “'[i]t will be presumed that a trial court acted correctly in
giving . . . instructions to the jury, unless it appears from the record in the case that the
instructions were prejudicially erroneous[.]'” Hicks v. Ghaphery, 212 W. Va. 327, 334, 571
S.E.2d 317, 324 (2002) (quoting Syl. pt. 1, in part, State v. Turner, 137 W. Va. 122, 70
S.E.2d 249 (1952)).
Over the objections of the Inn, the trial court accepted DOH's Instruction
No. 2. That instruction, as modified by the trial court, (See footnote 5) read as follows:
The Respondents' right of access to public roads is not affected within the meaning of the guarantee against public encroachment so long as a convenient way of ingress and egress remains. The Constitution does not undertake to guarantee a property owner the public maintenance of the most convenient route to his door. The law will not permit the Respondents to be cut off from public thoroughfares, but they must content themselves with such route for outlet as the West Virginia Division of Highways may deem most compatible with the public welfare as long as access is reasonable and adequate. When the Respondents acquired property in the State of West Virginia, they did so in tacit recognition of these principles.
The above instruction was taken almost verbatim from two prior decisions of this Court. See State ex rel. Woods v. State Road Comm'n, 148 W. Va. 555, 560-61, 136 S.E.2d 314, 318
(1964); Richmond v. City of Hinton, 117 W. Va. 223, 227, 185 S.E. 411, 412 (1936). The
Inn contends that the substance of the language in Instruction No. 2 was merely obiter dicta
in Woods and Richmond; therefore, it could not be used as an instruction to the jury. (See footnote 6) Even
if we agreed with the Inn that the language in Instruction No. 2 was merely obiter dicta in Woods and Richmond, we reject the contention that such language could not be used as an
instruction to the jury. (See footnote 7) The mere fact that a “correct” statement of law is set out in an
opinion of this Court as obiter dicta does not impugn its integrity as a valid proposition of
law. As a general rule, legally valid principles of law set out in an opinion as “[d]icta of the
Supreme Court should not be disregarded by [a trial] court without a compelling reason.” Mendoza v. Easton Gas Co., 197 Cal. App. 3d 781, 788 (1988). See also Young v. New
Process Steel, 419 F.3d 1201, 1204 (11th Cir. 2005) (“Even though not required to adhere to
[dicta set out in] Pedraza . . ., we nonetheless choose to follow it. The statement makes
sense, and it expresses a conclusion compelled by the reasoning that led the Court to reach
the result it did in Pedraza.”); Burnette v. Perkins & Assocs., 33 S.W.3d 145, 149 (Ark.
2000) (“While this statement of the court [in Marsh] is dicta, as the commissioners and the
sewer district point out, it may nonetheless be persuasive and useful.”); State v. Johnson, 15
P.3d 1233, 1239 (N.M. 2000) (“While we agree with the Court of Appeals that footnote 1
in Boone was dicta and not binding authority, the Court of Appeals should give such
language adequate deference and not disregard it summarily.”); Lee v. Sauvage, 689 P.2d
404, 408 (Wash. Ct. App. 1984) (“Even if the quoted language is dictum, that does not mean
that we are bound to disregard it, as Lee implies.”).
As previously mentioned, a jury “instruction is proper if it is a correct statement
of the law[.]” Syl. pt. 5, in part, Jenrett v. Smith, 173 W. Va. 325, 315 S.E.2d 583 (1983).
The alleged obiter dicta that was taken from Woods and Richmond accurately reflects correct
legal principles, regardless of how those principles are categorized. (See footnote 8) Consequently, we find
no error in the trial court's decision to accept DOH's Instruction No. 2. (See footnote 9)
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.
The decision in Gentry also made clear that:
One knowledgeable about a particular subject need not be precisely informed about all the details of the issues raised in order to offer an opinion but merely possess enough information to assist the jury. Whether the witness is the best expert witness on the specific subject is a matter that goes to weight of testimony and not to qualifications.
Gentry, 195 W. Va. at 529, 466 S.E.2d at171.
Mr. Meers has a bachelor's degree in business from the University of Georgia. He has been a certified commercial real estate appraiser for twenty-five years and is licensed in West Virginia, Virginia and North Carolina. Mr. Meers has experience in appraisal of large business parks, office buildings, motels, hotels, shopping centers and malls. The appraisal work by Mr. Meers includes performing market studies to advise clients on such matters as area rent data, whether or not to build a facility, and the optimum location for building a facility. The evidence revealed that Mr. Meers had performed hundreds of condemnation appraisals. Mr. Meers testified regarding his condemnation appraisal work as follows:
Q. Okay. Would you walk us through, first, the different
kinds of projects that you appraised in the context of
condemnation work?
A. We've done many road projects for the State of North
Carolina in the region surrounding the Winston
Salem/Greensboro area and Charlotte. There are many projects
going on, ranging from interstate quality bypass routes around
Greensboro to widening projects along interstate highways to
surface and bridge projects in the various communities.
Q. All Right. And the properties that you've actually
appraised, would you describe for the jury what types [of]
properties those are?
A. They run from simple appraisal of vacant land up to
office buildings and shopping malls and hotels.
Q. Okay. So you have appraised shopping centers and
hotels?
A. Yes, I have.
Q. Prior to today, how many hotels approximately have
you appraised?
A. Over the course of my career I can account for twenty-
five, but sometimes the memory fades and those records_
Q. Okay. So it could be a few more than twenty-five?
A. It could be, yes, but I can account for at least twenty-
five. [ (See footnote 10) ]
(Footnote added). Based upon Mr. Meers' qualifications, as set out in the record, we believe
that Mr. Meers satisfied the test articulated in Syllabus point 5 of Gentry.
Mr. Meers conducted a study and generated a report that involved collecting
data on hotels in Wood County, state-wide and in surrounding states. Based upon an analysis
of that data, Mr. Meers concluded that neither the re-routing of Route 50 nor the road
construction in general had an impact on the Inn's hotel business. Mr. Meers' opined that
other factors may have caused a downturn in the Inn's hotel business, such as room rates,
competition from other hotels and the Inn's need to renovate.
The Inn contends that Mr. Meers “was not qualified to give any opinions on
the management of any hotel.” We believe the Inn mischaracterizes Mr. Meers' testimony.
Simply put, Mr. Meers did not render an opinion on how to manage a hotel. It is clear that
Mr. Meers was asked to opine on whether altering the location of Route 50, or the road
construction in general, had an impact on the Inn's hotel business. In making this
determination, Mr. Meers consulted a wide range of hotel data. The mere fact that some of
the data he examined involved hotel rates, for example, did not transform Mr. Meers
testimony into that of giving an opinion on hotel management. (See footnote 11) This Court has never held
that an expert may not consider incidental data that is in the area of another's expertise, but
is relevant to rendering an opinion that is in the testifying expert's area of expertise. (See footnote 12) See Gentry, 195 W. Va. at 525 n.18, 466 S.E.2d at 184 n.18 (“Neither a degree nor a title is
essential, and a person with knowledge or skill borne of practical experience may qualify as
an expert, although the circuit court may exclude testimony if the experience is too far
removed from the subject of the proposed testimony.”). Moreover, the issue of “[w]hether
the witness is the best expert witness on the specific subject is a matter that goes to weight
of testimony[.]” 2 Franklin D. Cleckley, Handbook on Evidence for West Virginia Lawyers§ 7-2(A)(1) (4th ed. 2000). See also Jones v. Patterson Contracting, Inc., 206 W. Va. 399,
405, 524 S.E.2d 915, 921 (1999) (holding that general safety engineer could testify as to
mining safety issues); Dolen v. St. Mary's Hosp. of Huntington, Inc., 203 W. Va. 181, 185,
506 S.E.2d 624, 628 (1998) (permitting dentist to testify as expert on whether emergency
room doctors deviated from standard of care in rendering treatment to patient with injured
jaw); Board of Educ. of McDowell County v. Zando, Martin & Milstead, Inc., 182 W. Va.
597, 612, 390 S.E.2d 796, 811 (1990) (permitting mining engineer to testify as expert witness
on matters of structural engineering and design). Objections as “'to the strength of an
expert's credentials . . . go to weight and not to the admissibility of their testimony.'” San
Francisco v. Wendy's Int'l, Inc., 221 W. Va. 734, 745, 656 S.E.2d 485, 496 (2007) (quoting Gentry, 195 W. Va. at 527, 466 S.E.2d at 186). See also In re Flood Litig. Coal River
Watershed, Nos. 33664, 33710, & 33711, ___ W. Va. ___, ___, ___ S.E.2d ___, ___, 2008
WL 2523224, *10 (June 26, 2008) (“The fact that the plaintiffs' experts did not have
substantial prior personal experience in assessing the effect of land disturbance from large-
scale timbering operations . . . went to the weight of their evidence; but their lack of such
experience did not render that evidence inadmissible.”). Consequently, we find no error in
admitting the expert testimony of Mr. Meers.
In terms of . . . the testimony of Mr. Cochrane, you know,
certain discovery was requested by the Department of
Highways, certain discovery information concerning experts.
None of that was provided by Parkersburg Inn as it relates to
Mr. Cochrane.
Mr. Cochrane was asked if he was going to offer expert
opinion. He said he was not aware of any. If_and when he said
that, counsel for Parkersburg Inn was there.
There was some mention about potential confusion.
Well, if there was any confusion on the witness's part or on
counsel for the Parkersburg Inn's part, then it was their
obligation to clear up that confusion. And during that
deposition if it was somehow confusing as to whether Mr.
Cochrane was going [to] offer expert testimony, then I believe
that it was the obligation of the party offering that witness to
clarify it and make clear on-the-record as to whether a witness
is going to be or not going to be an expert. If any confusion
resulted, then the party who created the confusion must bear the
harm, if harm results from that confusion.
We explained the importance of the discovery process in Graham v. Wallace,
214 W. Va. 178, 588 S.E.2d 167 (2003), as follows:
The discovery process is the manner in which each party in a dispute learns what evidence the opposing party is planning to present at trial. Each party has a duty to disclose its evidence upon proper inquiry. The discovery rules are based on the belief that each party is more likely to get a fair hearing when it knows beforehand what evidence the other party will present at trial. This allows for each party to respond to the other party's evidence, and it provides the jury with the best opportunity to hear and evaluate all of the relevant evidence, thus increasing the chances of a fair verdict.
Graham, 214 W. Va. at 184-85, 588 S.E.2d at 173-74. Pursuant to Rule 26(b)(4)(A)(I) of
the West Virginia Rules of Civil Procedure, “[a] party may through interrogatories require
any other party to identify each person whom the other party expects to call as an expert
witness at trial.” (See footnote 13) DOH asserts that during the course of discovery, the Inn provided a
witness list that included 64 witnesses. Only three witnesses were listed as experts. More
importantly, Mr. Cochrane was not listed as an expert witness. (See footnote 14) To the extent that the Inn's
initial response to discovery requests did not list Mr. Cochrane as an expert witness, Rule
26(e)(1)(B) required the Inn to supplement its initial response by naming Mr. Cochrane as
an expert. Rule 26(e)(1)(B) states
[a] party is under a duty seasonably to supplement that party's response with respect to any question directly addressed to . . . [t]he identity of each person expected to be called as an expert witness at trial, the subject matter on which the expert is expected to testify, and the substance of the expert's testimony.
It is also provided by Rule 26(e) “that if supplementation is not made as required by the rule,
the court, upon motion or upon its own initiative, may impose an appropriate sanction as
provided for under Rule 37.” Cleckley, et al., Litigation Handbook § 24(e). This Court has
noted that “[t]he failure to timely disclose an expert witness is serious conduct that may
warrant the exclusion of that expert's testimony[.]” Kiser v. Caudill, 210 W. Va. 191, 197,
557 S.E.2d 245, 251 (2001). See also Jenkins v. CSX Transp., Inc., 220 W. Va. 721, 727,
649 S.E.2d 294, 300 (2007) (affirming trial court decision to prohibit certain testimony by
expert witness because of failure to supplement discovery response).
Here, the Inn failed to supplement its discovery responses by timely informing
DOH that Mr. Cochrane would testify as an expert. (See footnote 15) In Prager v. Meckling, 172 W. Va.
785, 310 S.E.2d 852 (1983), we set out the test for excluding evidence for failure to
supplement discovery disclosures as follows:
Factors to be considered in determining whether the
failure to supplement discovery requests under Rule 26(e)([1])
of the Rules of Civil Procedure should require exclusion of
evidence related to the supplementary material include: (1) the
prejudice or surprise in fact of the party against whom the
evidence is to be admitted; (2) the ability of that party to cure the
prejudice; (3) the bad faith or willfulness of the party who failed
to supplement discovery requests; and (4) the practical
importance of the evidence excluded.
Syl. pt. 5, Prager, id. (See footnote 16)
Applying the Prager factors to this case, we believe that the record supports
finding DOH was prejudiced and surprised by the failure to timely disclose Mr. Cochrane as
an expert witness. Mr. Cochrane indicated during his deposition that he was not going to
provide expert testimony. Insofar as the issue of Mr. Cochrane testifying as an expert was
not ruled upon until he took the stand to testify, there was no reasonable way of curing the
prejudice. (See footnote 17) Secondly, although the Inn's failure to disclose Mr. Cochrane as an expert may
not have been in bad faith or made willfully, such failure did exhibit gross negligence.
Thirdly, insofar as the Inn produced other expert witnesses and lay witnesses to testify that
altering the location of Route 50, and the road construction, damaged its hotel business, the
exclusion of Mr. Cochrane's testimony did not effectively destroy the Inn's case. (See footnote 18) In sum,
we find no abuse of discretion in the trial court's decision to prohibit Mr. Cochrane from
presenting expert testimony.
2 Cleckley, Handbook on Evidence § 11-3(C)(1). (See footnote 19) We have held that “the use of either real or demonstrative evidence is left within the discretion of the trial court.” Runner v. Cadle Co., 204 W. Va. 21, 22, 511 S.E.2d 132, 133 (1998). With respect to the admission of an exhibit this Court has held:
Rule 401 of the West Virginia Rules of Evidence requires
the trial court to determine the relevancy of the exhibit on the
basis of whether the [exhibit] is probative as to a fact of
consequence in the case. The trial court then must consider
whether the probative value of the exhibit is substantially
outweighed by the counterfactors listed in Rule 403 of the West
Virginia Rules of Evidence.
Syl. pt. 10, in part, State v. Derr, 192 W. Va. 165, 451 S.E.2d 731 (1994). Rule 403 provides
that a trial court may exclude evidence “if its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.” See Rozas v. Rozas, 176 W. Va. 235, 237, 342 S.E.2d 201, 204 (1986) (“[W]here
the evidence is unnecessary, cumulative, confusing or misleading the trial judge may properly
refuse to admit it.”).
The trial court determined that Mr. Reed's report would not be admitted into
evidence as an exhibit because it was duplicative of his testimony and could cause confusion
for the jury during its deliberations. See State v. Knuckles, 196 W. Va. 416, 424, 473 S.E.2d
131, 139 (1996) (“[T]he role of the trial court is to keep from the jury's eyes or ears evidence
that may be misleading.”). Assuming, without deciding, that the trial court should have
allowed the report to be introduced into evidence as an exhibit, (See footnote 20) we find its exclusion to be
harmless error for two reasons. See W. Va. R. Civ. Pro. 61 (“No error in . . . the exclusion
of evidence . . . is ground for granting a new trial . . . unless refusal to take such action
appears to the court inconsistent with substantial justice. The court at every stage of the
proceeding must disregard any error . . . in the proceeding which does not affect the
substantial rights of the parties.”).
First, any error was harmless because the Inn had an opportunity to elicit
testimony from Mr. Reed regarding everything contained in his report. Second, any error
was harmless because Mr. Reed's appraisal report was done in 2002, (See footnote 21) for the purpose of
placing a value on the Inn's hotel in conjunction with its efforts to obtain a bank loan. (See footnote 22) In
other words, the appraisal report, and Mr. Reed's testimony that the Inn's hotel was valued
at over $8 million dollars in 2002, went to the issue of damages. (See footnote 23) This Court has held that
“[w]hen a plaintiff does not prevail as to liability, any errors he claims as to the issue of
damages are harmless because, without a verdict on the liability issue, the plaintiff is not
entitled to any damages.” Syl. pt. 3, Morris v. Boppana, 182 W. Va. 248, 387 S.E.2d 302
(1989). Finally, we have previously noted that “it is not our function to reverse jury verdicts
merely because some error occurred in the course of a civil trial. Errors that are harmless or
do not affect the substantial rights of the parties do not require reversal.” Jennings v. Smith,
165 W. Va. 791, 795, 272 S.E.2d 229, 231 (1980). (See footnote 24)