On August 30, 2014, Petitioner Kevin Hanson lost control of his pickup truck and trailer. The cargo he was hauling (lumber) fell off the trailer and into the path of Respondent Larry Keeling, Jr., causing him to lose control of his motorcycle. Mr. Keeling suffered broken ribs and ACL/MCL tears of his right knee, resulting in medical expenses totaling $71,947.97. Mr. Keeling claimed wage loss caused by his inability to return to work as a fence installer.
During discovery, Respondent issued written discovery inquiring whether any surveillance had been conducted. At the time Petitioner's written discovery responses were due, Petitioner had retained Mr. John Perrine as a private investigator; however, Petitioner claimed that he had no investigative material. Subsequently, Mr. Perrine gathered information in the form of photographs and video surveillance, and produced a report to Petitioner. Petitioner delayed the disclosure of this information for eight weeks before voluntarily producing it days before trial. Petitioner advised Respondent that he had no intention of utilizing the information at trial and would object to Respondent's attempts to do so on the basis of attorney-work product.
Respondent filed a motion for sanctions regarding Petitioner's untimely discovery supplementation and requested an order from the court compelling Mr. Perrine to testify as a witness. Petitioner responded that he found the material to be of no significance and simply forgot to supplement the aforesaid discovery. Petitioner objected to the admissibility of Mr. Perrine's surveillance information (photographs and video) and testimony on the basis of work product. The trial court determined that Petitioner waived the work product protection because the information was voluntarily produced. The trial court permitted Respondent to call Mr. Perrine as a witness at trial, finding that the information was probative of Respondent's damages, and that the probative value of the information substantially outweighed any prejudicial effect of the information. At trial, Petitioner did not object to Mr. Perrine's testimony, or Respondent's efforts to admit the photographs into evidence. Moreover, during his case in chief, Petitioner offered the video surveillance into evidence.
During trial, the court questioned witnesses and offered commentary, which Petitioner viewed as inappropriate, but nonetheless, failed to object. After the close of evidence, the court instructed the jury as follows: "You and only you are the judges of the facts. If any expression of mine or anything I may or may not have done or said indicate any opinion relating to any factual matters of the case, I instruct you to disregard it." Parenthetically, it does not appear that Petitioner objected to the inadequacy of the charge.
Petitioner stipulated to liability, causation, and medical expenses in the amount of $71,947.97. Petitioner also stipulated that Respondent incurred lost wages and sustained physical pain and mental suffering as a result of Petitioner's negligence. Thus, the only issues to be determined by the jury were the amount to be awarded to Respondent for general damages and for lost wages. On May 18, 2016, the jury found for Petitioner liable for the following amounts: $71,947.97 for past medical expenses, $26,814.00 for past lost wages, $75,000 for future lost wages and benefits, and $375,000.00 for past and future non-economic damages.
Petitioner filed a motion for a new trial claiming that the awards for future lost wages and non-economic damages were excessive and caused by the trial court's improper questioning of witnesses; inflammatory comments toward Petitioner's counsel and witnesses; and, improperly permitting Respondent's counsel to present highly prejudicial evidence of and argument to the jury regarding Respondent's retention of Mr. Perrine. The trial court denied Respondent's new trial motion. Specifically, the trial court determined that Petitioner had waived any work product protection by voluntarily producing its investigator's information, and that the relevant information produced by Petitioner's investigator substantially outweighed any prejudicial effect of the evidence. Moreover, the trial court determined that its questioning of witnesses and commentary was appropriate; Petitioner waived any argument to the contrary by failing to object; and, the trial court instructed the jury not to allow it to be influenced by the trial court's conduct.
On September 25, 2017, the West Virginia Supreme Court of Appeals affirmed the trial court's denial of the petitioner's motion for a new trial.
- Is there a reasonable probability that the jury's verdict was unreasonably influenced by the trial court's remarks and/or questioning of witnesses such that it deprived Petitioner of a fair trial?
- Did the trial court abuse its discretion in allowing work product to be admitted at trial?
- Trial Court's Questioning of Witnesses During Trial
"A trial court must exercise its sound discretion when questioning a witness pursuant to Rule 614(b) of the West Virginia Rules of Evidence." Syl. Pt. 1, in part, State v. Farmer, 200 W.Va. 507, 490 S.E.2d 326 (1997). Further, Rule 614(b) authorizes trial courts to question witnesses "provided that such questioning is done in an impartial manner so as to not prejudice the parties." Syl. Pt. 3, in part, Farmer, 200 W.Va. at 508, 490 S.E.2d at 327. Typically, when a party asserts that a trial court's questioning of witnesses and comments were prejudicial and jeopardized the impartiality of the jury, the Supreme Court will evaluate the entire record to determine whether the party received a fair trial. See Syl. Pt. 3, State v. Thompson, 220 W.Va. 398, 647 S.E.2d 834 (2007)
In this case, Petitioner's failure to assert any objection to the judge's questioning of witnesses during trial caused him to seek relief under the plain error doctrine. The failure to raise contemporaneous objections to the trial judge's questioning and commentary would not bar review where "the judge's role [was] of such magnitude as to justify a review upon a plain error analysis[.]â€ Thompson, 220 W.Va. at 411, 647 S.E.2d at 847. "An unpreserved error is deemed plain and affects substantial rights only if the reviewing court finds the lower court skewed the fundamental fairness or basic integrity of the proceedings in some major respect." See also Syl. Pt. 2, State v. Shingleton, 237 W.Va. 669, 790 S.E.2d 505 (2016) ("To trigger application of the plain error doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings." Syl. Pt. 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995)). In clear terms, the plain error rule should be exercised only to avoid a miscarriage of justice. Syl. Pt. 7, in part, State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 (1996). The case relied upon by the Petitioner, Herbert J. Thomas Memorial Hospital Association v. Nutter, 238 W.Va. 375, 795 S.E.2d 530 (2016), was distinguished from the instant case because the attorney in Herbert had objected to many of the questions and had asked for a mistrial. Id. at __, 795 S.E.2d at 547. Conversely, in the case at bar, Petitioner failed to assert any objections to the judge's questioning of witnesses.
After careful examination of the entire record the Court found the trial judge's questions and comments were not of such magnitude that the impartiality of the jury's verdict could be called into question. The jury awarded an amount for lost wages that was significantly less than the amount Respondent sought. Regarding the jury's general damages award, it was neither outside the realm of the jury's sound discretion nor so large as to smack of partiality. See Syl. Pt. 2, in part, Richmond v. Campbell, 148 W.Va. 595, 136 S.E.2d 877 (1964). Had the trial court's questions and commentary been of such magnitude as to warrant the Supreme Court's review for plain error, it would have been reflected in the jury's verdict. It was not. Accordingly, there was no basis to invoke a plain error analysis.
2. Surveillance Evidence
Petitioner's voluntary production distinguishes the instant matter from those cases where there was an inadvertent or unintentional disclosure of privileged material. Although Petitioner argued that surveillance is protected by work product, the Supreme Court did not need to decide whether surveillance is work product for purposes of our decision. In McDougal v. McCammon, 193 W.Va. 229, 455 S.E.2d 788 (1995), the Court noted that "even if the work product doctrine applied, it would only have prevented the production of the [surveillance] video tape." 193 W.Va. at 237, 455 S.E.2d at 796; see also State ex rel. U.S.Fidelity and Guar. Co. v. Canady, 194 W.Va. 431, 444, 460 S.E.2d 677, 690 (1995) ("The work product doctrine . . . protects against disclosure of the fruits of an attorney's labor[.]â€). Importantly, the work-product doctrine pertains to pretrial discovery, not admissiblity[.]â€ Baker Donelson Bearman Caldwell & Berkowitz, P.C. v. Seay, 42 So.3d 474, 493 (Miss. 2010).
The pretrial hearing transcripts reflect the trial court's conclusion that the surveillance evidence was probative on the damages issues to be tried. As pointed out in the trial court's order denying the motion for a new trial, "[r]ulings on the admissibility of evidence are largely within a trial court's sound discretion and should not be disturbed unless there has been an abuse of discretion." Voelker v. Frederick Business Properties Co., 195 W.Va. 246, 465 S.E.2d 246 (1995). Although Petitioner argued prejudice during the pretrial hearing, such argument did not alleviate Petitioner's responsibility to assert and preserve any objections he had to the investigator's testimony as it evolved at trial. The rule in West Virginia is that "parties must speak clearly in the circuit court, on pain that, if they forget their lines, they will likely be bound forever to hold their peace . . . . It must be emphasized that the contours for appeal are shaped at the circuit court level by setting forth with particularity and at the appropriate time the legal ground upon which the parties intend to rely." State ex rel. Cooper v. Caperton, 196 W.Va. 208, 216, 470 S.E.2d 162, 170 (1996).
Further, the Court determined that the trial court addressed the investigator's testimony in light of Petitioner's voluntary production of the surveillance materials and whether such evidence would be probative on the issue of damages, not as a discovery sanction. That said, even if the trial court's ruling that allowed Respondent to call the investigator as a fact witness at trial were a discovery sanction, rather than an evidentiary ruling, it would have been within the trial court's discretion to impose such a sanction under the particular and unique set of facts outlined above. See W.Va.R.Civ.P. 26(e), in part ("If supplementation is not made as required by this Rule, the court . . . may impose upon the person who failed to make the supplementation an appropriate sanction[.]"); see also Syl. Pt. 1, in part, McDougal, 193 W.Va. at 232, 455 S.E.2d at 791 (1995) ("[T]he appropriateness of a particular sanction for discovery violations [is] committed to the discretion of the trial court.").
There are two very practical takeaways here for litigators. First, if you believe that the court is in violation of Rule 614(b) of the West Virginia Rules of Evidence, it may be prudent to raise objection(s) either in front of the jury, or at side bar. Second, it is, of course, appropriate to disclose the existence of protected work product; however, once produced, it may become admissible.