- 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 the Petitioner of a fair trial?
2. Did the trial court abuse its discretion in allowing work product to be admitted at trial?
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 the 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. In addition to non-economic damages, Mr. Keeling claimed past and present wage loss caused by his inability to return to work as a fence installer.
Prior to trial, Respondent issued written discovery inquiring whether any surveillance was conducted on Respondent. At the time Petitioner's written discovery responses were due, Petitioner had not retained an investigator. After the production of Petitioner’s discovery responses, Petitioner retained Mr. John Perrine as a private investigator, who 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 a court order 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 potential prejudicial effect. At trial, Petitioner did not object to Mr. Perrine's testimony, or the Respondent's efforts to admit the photographs into evidence. Moreover, during his case in chief, the 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.
At trial, 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 Respondent finding Petitioner liable for the following: $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 damage award was 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 the motion. Specifically, the trial court determined that Petitioner had waived any work product protection by voluntarily producing it's 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 be influenced by the trial court's conduct.
Summarily, Petitioner contends that the trial court judge's conduct, individually and/or collectively was improper and unreasonably influenced the jury's determination. Specifically, Petitioner pointed to the questioning of witnesses, including Respondent himself, his former employer, and his vocational expert. In all, the judge asked over 75 questions. Petitioner also alleges disparities in how the judge treated the economists for the two parties.
Petitioner cited Canons 2A and 3B(5) of the West Virginia Code of Judicial Conduct, which provide that a judge shall perform his duties without bias or prejudice and act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. See also State v. Thompson, 220 W.Va. 398, 647 S.E.2d 834, 844 (2007) (holding that these canons apply to the trial court conduct's at trial, including the court's questions, comments and gestures in front of the jury.).
Petitioner acknowledged that he did not make a contemporaneous objection. However, he argued that his failure to object to the trial court judge's remarks or questioning of witnesses did not waive his right to appeal based upon the "plain error analysis," discussed in State v. Thompson, supra.
To determine whether a document is protected work product, the primary motivating purpose behind the creation of the document must have been to assist in pending or probable future litigation. Syl. Pt. 9, State ex reI. Med Assur. of W. Va., Inc. v. Recht, 213 W. Va. 457, 462,583 S.E.2d 80,85 (W. Va. 2003); Syl. Pt. 7, State ex reI. United Hosp. v. Bedell, 199 W.Va. 316,484 S.E.2d 199 (1997). In order for a party's counsel to be able to get and use an opposing party's work product at trial, the West Virginia Rules of Civil Procedure mandate that the party demonstrate a "substantial need" to use the evidence, because he is unable to acquire substantially the same evidence through other means without incurring "undue hardship". See W. Va. R.C.P., Rule 26(b)(3). See also McDougal v. McCammon, FN 9, 193 W. Va. 229, 237 (W. Va. 1995); citing State ex reI. Chaparro v. Wilkes, 190 W. Va. 395, 398 (1993). Petitioner argued that the trial court allowed information to come into evidence as a sanction, and did not require Respondent to show a compelling need for the information.
Petitioner argued that he did not waive his work product protection by failing to object to the presentation of his investigator's testimony and/or the surveillance photographs as he properly preserved his objection during the pretrial process. Rule 103(b) of the West Virginia Rules of Evidence states that "[o]nce the court rules definitively on the record -- either before or at trial -- a party need not renew an objection or offer of proof to preserve a claim of error for appeal." See W.V.R.E., Rule 103(b).
Petitioner also contended that Mr. Perrine's testimony and his photographs were not relevant under Rule 402 of the West Virginia Rules of Evidence as the evidence was not probative of the severity of Respondent's injuries or his functionality; and, even if the evidence was relevant, the probative value was substantially outweighed by the proscribed dangers set forth in W.V.R.E. 403. Specifically, Petitioner raised several areas wherein Respondent's counsel examined Petitioner's investigator on matters that had nothing to do with Respondent's injuries or damages, and to the contrary was done for the sole purpose of inflaming the jury. For instance, in closing argument, Respondent's counsel suggested the Petitioner did not take responsibility for Respondent's injury because "[a]ccepting responsibility is not hiring an investigator to hide in the bushes and look inside plaintiff’s home." During closing argument, counsel for the Respondent argued that Petitioner's investigator's conduct was "sleazy", and placed emphasis on the unreasonableness of the investigator's pictures of Respondent's family, including young grandchildren, in public.
Rule 614 authorizes the trial court to question witnesses "provided that the questioning is done in an impartial manner so as not to prejudice the parties." Herbert J. Thomas Mem. Hosp. Ass'n v. Nutter, No. 15-0695,2016 WL 6833116, at *13 (W.Va. Nov. 17,2016), quoting, Syl. Pt. 3, State v. Farmer, 200 W. Va. 507, 507-15,490 S.E.2d 326, 326-34 (1997). Judges are not only authorized to ask questions of a witness from the bench, but may in some instances be required to do so' " when, for example, "it is necessary to expound upon matters not sufficiently developed by counsel." Farmer, 200 W. Va. at 513, 490 S.E.2d at 332, quoting, State v. Massey, 178 W.Va. 427, 436, 359 S.E.2d 865, 874 (1987), and citing, United States v. Ostendorff, 371 F.2d 729, 732 (4th Cir.), cert. denied, 386 U.S. 982 (1967); see also, Alexander ex reI. Ramsey v. Willard, 208 W.Va. 736, 742, 542 S.E.2d 899, 905 (2000), quoting, Nash v. Fidelity-Phoenix Fire Ins. Co., 106 W.Va. 672, 679, 146 S.E. 726, 728 (1929).
Here, Respondent argued that the trial court judge did nothing more than seek clarification from various witnesses as to why Respondent was not capable of returning to his time of injury job, and what impact his injuries would have on his ability to seek suitable employment and earn income. With respect to the court's questioning of Petitioner's investigator relative to "aggressive" surveillance activities, Respondent argued that based upon the investigator's use of various pronouns, the court merely sought clarification of the types of surveillance activities being contemplated at the time. Respondent emphasized that the trial court judge neither verbally nor by his conduct expressed an opinion on the credibility of the witnesses or the weight of the evidence presented by them. Nor did he express directly or indirectly an opinion regarding any question of fact to be decided by the jury. Finally, the court properly precluded Petitioner's investigator from testifying as to the lawfulness of his conduct as that is within the purview of the court.
Furthermore, Petitioner's failure to object could not be cured by the "plain error" doctrine. Respondent argued that there is no evidence to suggest that the trial court judge's conduct adversely impacted the jury's determination in favor of the Respondent. The jury returned a verdict in the amount of $548,751.97, which consisted of stipulated medical expenses of $71,947.97, past lost wages of $26,814, future lost wages of $75,000, and past and future general damages in the amount of $375,000. Because Respondent introduced substantial evidence to support the jury's verdict for economic and non-economic damages, it is fair to conclude that the jury based its decision on the evidence and not the questions or comments posed by the trial court judge's conduct.
"As a general rule, the voluntary disclosure of work product or an attorney-client communication constitutes a waiver of the immunity and privilege as to all other communications on the same subject." Chambers, 206 F.R.D. at 589, citing, State ex reI. McCormick v. Zakaib, 189 W.Va. 258, 261, 430 S.E.2d 316, 319 (1993) See also, W.Va. R. Evid. 502(a). Moreover, ''the work product doctrine 'furnishe[s] no shield against discovery, by interrogatories or by deposition, of the facts that the adverse party's lawyer has learned, or the persons from whom he or she had learned such facts, or the existence or nonexistence of documents, even though the documents themselves may not be subject to discovery.' " State ex rei. United Hosp. Ctr., Inc. v. Bedell, 199 W. Va. 316, 327, 484 S.E.2d 199, 210 (1997), quoting, 8 Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure, §2023 at 330-31 (2d ed. 1994) (footnote omitted). Respondent claimed that the cases cited by Petitioner provide no support for his claim that the trial court should have required Respondent to demonstrate "substantial need" for the use of the photographs and videos. In McDougal v. McCammon, 193 W.Va. 229,455 S.E.2d 788 (1995), for example, the issue was whether the trial court improperly admitted a portion of a video surveillance tape at trial where the tape was not revealed during discovery and the plaintiffs were surprised by its existence and use. No such facts exist in this case.
Petitioner argued that even if Petitioner's investigator's testimony of his observations and surveillance photographs were protected work product, Petitioner waived the protection by failing to object at the time of trial. Respondent also emphasized that Petitioner's investigator was a fact witness; he was not retained or identified as an expert witness; and, he offered no expert opinions. On the contrary, Petitioner's investigator's testimony was limited to his observations of the Respondent, which were relevant to show the Respondent's consistent functional limitations.
The West Virginia Supreme Court of Appeals will most likely affirm the jury's decision. On balance, even if the Court accepts the fact that the trial court judge abused his discretion in admitting protected work product information and in eliciting testimony favorable to the Respondent, based upon the parties’ stipulations and the substantial competent evidence offered at trial, it will be difficult to show that the jury's decision was inherently unreliable.
It is reasonably anticipated that the Court will take the opportunity to remind trial courts that they should studiously abstain from interfering with the presentation of the evidence; however, in this case the trial court did not offer any commentary regarding the credibility or the weight of the evidence; and, instructed the jury to disregard the trial court's conduct in formulating its decision. The Court may suggest that Petitioner's argument concerning the trial court judge’s questioning of witnesses would have been stronger had Petitioner objected outside the presence of the jury, thereby placing the trial court judge on notice of the potential for prejudice, thereby providing an opportunity to reconsider its involvement in the presentation of the evidence. Moreover, the Court may suggest that if Petitioner was sufficiently concerned about the cumulative effect of the trial court judge's conduct, Petitioner could have objected to the insufficiency of the trial court's jury instruction to refrain from considering the trial court's questioning, commentary and/or gestures during the trial. Since this did not occur, the Court may feel that neither the parties nor the trial court judge believed that the Petitioner was deprived of the right to a fair trial prior to receiving the jury's verdict.
Regarding the work product issue, it is reasonable to believe that the Court will find that Petitioner did not waive the work product privilege to the admissibility of his investigator's information; however, what appears to have been arguably admitted were facts, which is not protected work product. Here, the Petitioner's investigator acquired facts concerning the Respondent's injuries and the impact of his injuries on his functionality that were relevant to Respondent's claims. While there was a risk of prejudice, it cannot be sufficiently shown that any prejudice improperly influenced the jury's decision.