Benjamin Rogers v. Jessica L. Williamson ( 2020 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
Benjamin Rogers, September 3, 2020
EDYTHE NASH GAISER, CLERK
Defendant Below, Petitioner SUPREME COURT OF APPEALS
OF WEST VIRGINIA
vs.) No. 19-0513 (Doddridge County 17-C-3)
Jessica L. Williamson,
Plaintiff Below, Respondent
MEMORANDUM DECISION
Petitioner Benjamin Rogers, by counsel David A. Mohler and William M. Lorensen,
appeals the May 3, 2019, order of the Circuit Court of Doddridge County granting Respondent
Jessica L. Williamson a new trial. Respondent, by counsel Daniel C. Cooper and Jamison H.
Cooper, filed a response in support of the circuit court’s order. Petitioner filed a reply.
The Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.
On January 25, 2015, petitioner and respondent were involved in a motor vehicle
accident at the intersection of Route 50 and Route 18 in Doddridge County, West Virginia.
According to the West Virginia Uniform Crash Investigation Report (“accident report”), “[a]fter
[an] investigation[,] this officer determined that the traffic signal was operating correctly and that
vehicle number one or [vehicle] number two had [run the] traffic signal[;] however[,] due to
conflicting statements[,] no fault has been determined[.]” In the accident report, the investigating
officer, Michael Headley, Sheriff of Doddridge County, recorded the placement of the parties’
vehicles in or just outside the intersection, but did not record the presence of any skid marks on
the road.
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On January 18, 2017, respondent filed a civil action against petitioner in the Circuit Court
of Doddridge County, alleging that petitioner was responsible for causing the accident and her
resultant injuries. Respondent took Sheriff Headley’s deposition on May 9, 2017. Sheriff
Headley testified that there were no skid marks for him to record in the accident report because
“the rain had—between the rain and the fuel from [petitioner]’s truck running down, it would—
it had washed everything out.”
The circuit court held the trial in the underlying civil action on September 11 and 12,
2018. Petitioner testified that he had the green light, respondent ran the red light, and the
collision occurred in the fast lane. Conversely, respondent testified that she had the green light,
petitioner ran the red light, and the collision occurred in the slow lane. Over respondent’s
objection, the circuit court permitted petitioner to qualify Sheriff Headley as a liability expert
regarding which party caused the January 25, 2015, accident based on Sheriff Headley’s
experience of investigating “hundreds” of accidents, including approximately “six to seven”
accidents at the intersection of Route 50 and Route 18. Sheriff Headley testified that he received
on-the-job training from an officer with the Parkersburg Police Department as to how to perform
an accident investigation. On cross-examination, however, Sheriff Headley acknowledged that
he was not an accident reconstructionist and that as an elected official, he was not required to
undergo training at the West Virginia State Police Academy.
Following his qualification as an expert, Sheriff Headley testified that the point of impact
was in the fast lane:
Q. As far as determination where the impact occurred on Route 50 the left
lane versus—the left, fast lane versus the right slow lane, what was your opinion
based on?
A. My opinion is . . . [that] it occurred in the fast lane due to the point of
impact showing it was in the passing lane. There [were] marks on the road, very
faint but there [were] marks there.
Q. In the fast lane?
A. In the fast lane.
Sheriff Headley further opined that respondent caused the parties’ accident:
A. My opinion is that [respondent’s vehicle] ran the light due to the point of
impact beginning in the left lane, and I would estimate her speed [as] probably 65
to 68 [miles per hour], in there somewhere. Just a guess. That is only an opinion. I
may be completely wrong. That is just my opinion that she ran the light.
Q. It is also based on your prior experience of investigating accidents at the
very same intersection?
A. Yes.
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Q. And[,] that usually it is the drivers on Route 50 that run the red light?
A. Yes. It is usually east and west drivers that run the lights when the
accidents occur.
On cross-examination, Sheriff Headley acknowledged that he “did not make note” of the
presence of any skid marks in the accident report, contrary to his testimony that there were very
faint marks. Sheriff Headley further stated that he “[had] known [petitioner] for years” given that
prior to his election, Sheriff Headley was petitioner’s mailman.
Following trial, the jury returned a verdict in petitioner’s favor, and the circuit court
entered a judgment order memorializing the verdict on November 26, 2018. Thereafter,
respondent filed a motion for a new trial pursuant to Rule 59(a) of the West Virginia Rules of
Civil Procedure. Respondent argued that the circuit court’s ruling to allow Sheriff Headley to
offer an expert opinion as to which party caused the accident was erroneous and inconsistent
with substantial justice.
Petitioner filed a response, and the circuit court held a January 19, 2019, hearing on the
motion for a new trial. By order entered on May 3, 2019, the circuit court granted the motion for
a new trial, finding as follows:
[Sheriff Headley’s] opinion expressed at trial was based solely on three things: (1)
the location of the point of impact, which Sheriff Headley states that he recalled
from over two years ago when it was completely absent from his report (which is
unreliable); (2) his stated “guess” about [respondent’s] speed (which is
speculative); and (3) his belief that when other accidents happened at the same
intersection, it is usually caused by someone running the light on Route 50 (which
is irrelevant).
Accordingly, the circuit court concluded that Sheriff Headley’s opinion that respondent caused
the accident “could not assist the trier of fact” as “it was based on pure speculation” and that
allowing the jury to hear Sheriff Headley’s opinion as expert testimony was inconsistent with
substantial justice.
Petitioner now appeals the circuit court’s May 3, 2019, order. We review an order
granting a new trial pursuant to Rule 59(a) under the following standard:
“‘It takes a stronger case in an appellate court to reverse a judgment
awarding a new trial than one denying it and giving judgment against the party
claiming to have been aggrieved.’ Point 1, Syllabus, The Star Piano Co. v.
Brockmeyer, 78 W. Va. 780[, 90 S.E. 338 (1916)].” Syl. pt. 2, Young v. Duffield,
152 W. Va. 283, 162 S.E.2d 285 (1968)[, overruled on other grounds, Tennant v.
Marion Health Care Foundation, Inc., 194 W. Va. 97, 459 S.E.2d 374 (1995)].
“An appellate court is more disposed to affirm the action of a trial court in
setting aside a verdict and granting a new trial than when such action results in a
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final judgment denying a new trial.” Syl. pt. 4, Young v. Duffield, 152 W. Va. 283,
162 S.E.2d 285 (1968)[, overruled on other grounds, Tennant v. Marion Health
Care Foundation, Inc., 194 W. Va. 97 459 S.E.2d 374 (1995)].
A motion for a new trial is governed by a different standard than a motion
for [judgment as a matter of law pursuant to Rule 50 of the Rules of Civil
Procedure]. When a trial judge vacates a jury verdict and awards a new trial
pursuant to Rule 59 . . ., the trial judge has the authority to weigh the evidence
and consider the credibility of the witnesses. If the trial judge finds the verdict is
against the clear weight of the evidence, is based on false evidence or will result
in a miscarriage of justice, the trial judge may set aside the verdict, even if
supported by substantial evidence, and grant a new trial. A trial judge’s decision
to award a new trial is not subject to appellate review unless the trial judge abuses
his or her discretion.
Syl. Pts. 1, 2, and 3, In re State Public Bldg. Asbestos Litigation, 193 W. Va. 119, 454 S.E.2d
413 (1994). “Courts do not grant new trials unless it is reasonably clear that prejudicial error has
crept into the record or that substantial justice has not been done[.]” Asbestos Litigation, 193 W.
Va. at 124, 454 S.E.2d at 418 (quoting 11 Charles Alan Wright and Arthur R. Miller, Federal
Practice and Procedure, § 2803 at 32-33 (1973)) (Footnotes omitted).
As the motion for a new trial in the instant case concerned the admissibility of Sheriff
Headley’s opinion as to which party caused the accident, we have stated 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). Similarly, “[t]he admissibility of testimony by an expert witness is a matter
within the sound discretion of the trial court, and the trial court’s decision will not be reversed
unless it is clearly wrong.” Syl. Pt. 6, Helmick v. Potomac Edison Co., 185 W. Va. 269, 406
S.E.2d 700 (1991). Finally, Rule 702(a) of the Rules of Evidence provides that “[i]f scientific,
technical, or other specialized knowledge will assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education may testify thereto in the form of an opinion or otherwise.”
On appeal, the parties dispute whether Sheriff Headley was qualified as an expert based
upon his experience and/or training as an investigator of motor vehicle accidents. We find that
we need not resolve that dispute. Assuming, arguendo, that Sheriff Headley was properly
qualified pursuant to Rule 702(a), we find that the accident report prepared by Sheriff Headley,
Sheriff Headley’s deposition testimony, and his trial testimony all indicate that his opinion that
respondent caused the accident was speculative and unreliable.
To begin, Sheriff Headley did not record the presence of any skid marks on the road in
the accident report. At Sheriff Headley’s deposition, he explained that there were no skid marks
because the rain and the fluids from petitioner’s vehicle “washed everything out.” At trial,
Sheriff Headley testified that he could determine that the point of impact was in the fast lane
based on “very faint” skid marks. However, Sheriff Headley acknowledged on cross-
examination that he “did not make note” of any skid marks in the accident report, contrary to his
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testimony that there were very faint marks. Sheriff Headley further admitted that his estimation
of the speed that respondent was traveling was based on a “guess,” not any measurement or
calculation. Therefore, while petitioner argues that Sheriff Headley was qualified to give an
expert opinion, we find it significant that Sheriff Headley testified that his opinion that
respondent caused the accident could be “completely wrong.” Accordingly, we conclude that
Sheriff Headley’s opinion did not assist the jury in determining which party caused the accident
and, as a result, was inadmissible pursuant to Rule 702(a).
Nonetheless, petitioner argues that the jury’s verdict in his favor should be reinstated
based on an evaluation of the record as a whole. See Syl. Pt. 7, Earl T. Browder, Inc. v. County
Court of Webster County, 145 W. Va. 696, 116 S.E.2d 867 (1960) (holding that an order granting
a new trial “will be reversed by this Court where it appears that the case, as a whole, was fairly
tried and no error prejudicial to the defendant was committed therein”). Petitioner further argues
that in reviewing the jury’s verdict, “all reasonable and legitimate inferences must be considered
in favor of [the] party for whom the verdict was returned.” Shiel v. Ryu, 203 W. Va. 40, 47, 506
S.E.2d 77, 84 (1998). Finally, petitioner argues that any error in admitting Sheriff Headley’s
opinion as expert testimony is harmless unless there is “grave doubt about the likely effect of an
error on the jury’s verdict.” Lacy v. CSX Transp. Inc., 205 W. Va. 630, 644, 520 S.E.2d 418, 432
(1999), superseded by rule on other grounds as stated in Miller v. Allman, 240 W. Va. 438, 813
S.E.2d 91 (2018) (quoting Skaggs v. Elk Run Coal Co., Inc., 198 W.Va. 51, 71, 479 S.E.2d 561,
581 (1996) (Other internal citations omitted).
Respondent counters that the error in admitting Sheriff Headley’s opinion as expert
testimony was prejudicial because it affected the jury’s decision-making process to such an
extent that substantial justice was not done. See Asbestos Litigation, 193 W. Va. at 124, 454
S.E.2d at 418. Respondent further argues that this Court has no way of evaluating the record as a
whole because petitioner failed to include the complete trial transcript in the appellate record.
Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure provides that “[t]he
argument must contain appropriate and specific citations to the record on appeal, including
citations that pinpoint when and how the issues in the assignments of error were presented to the
lower tribunal,” and that “[t]he Court may disregard errors that are not adequately supported by
specific references to the record on appeal.” Petitioner argues that certain parts of respondent’s
testimony regarding the conditions at the time of the accident (wet or dry) and the extent of her
injuries caused the jury to find that respondent’s testimony was not credible as a general matter.
However, while the appellate record includes petitioner’s trial testimony and Sheriff Headley’s
trial testimony, it does not include respondent’s trial testimony. Therefore, pursuant to Rule
10(c)(7), we decline to address petitioner’s argument that the jury found respondent’s testimony
not credible. See State v. Honaker, 193 W. Va. 51, 56 n.4, 454 S.E.2d 96, 101 n.4 (1994) (stating
that we must “take as non[-]existing all facts that do not appear in the [appellate] record and will
ignore those issues where the missing record is needed to give factual support to the claim”).
Based on our review of the appellate record, we find that allowing the jury to hear, as
expert testimony, Sheriff Headley’s opinion that respondent caused the accident was prejudicial
error and inconsistent with substantial justice. Accordingly, we conclude that the circuit court did
not abuse its discretion in granting respondent a new trial.
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For the foregoing reasons, we affirm the circuit court’s May 3, 2019, order granting
respondent’s motion for a new trial.
Affirmed.
ISSUED: September 3, 2020
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison
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