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General Pipeline Construction, Inc. v. Cora Phillips Hairston

General Pipeline Construction, Inc. v. Cora Phillips Hairston

Case No. 
Opinion Date: 
Opinion Author: 
Justice Ketchum

This case was presented to the Supreme Court for a second time this fall.  Previously, in 2010, the Court had the opportunity to discuss a statutory scheme which prohibited the excavation, removal or destruction of burial grounds or unmarked graves without a permit.  The Court therein stated that the statutory scheme preempted the common law of grave desecration as it applied to certain categories of graves.  The case was returned to the trial court, where a trial was held and the case was appealed again.

This case involved individuals who had family members buried in the old Crystal Block Cemetery in Logan County.  Crystal Block Hollow was the site of a now defunct coal mining town.    Death records demonstrate that Crystal Block Cemetery is the final resting place for numerous decedents who lived and/or worked in the mining community.

In 2004, Defendants Equitable Production and General Pipeline Construction began a project to relocate a gas pipeline on a large tract of land in Crystal Block Hollow.  A bulldozer operator began the construction of an access road in furtherance of that work.  Evidence tended to demonstrate that the bulldozer operator “plowed the road through the Crystal Block Cemetery with his bulldozer, removing headstones, crosses and fieldstones that marked gravesites.”  The Plaintiffs in the various consolidated cases are relatives of individuals buried in the cemetery.  In Hairston I, the Court clarified the elements of common law grave desecration and determined that W.Va. Code 29-1-8A preempts certain common law grave desecration cases.  After the Court’s ruling, the case was remanded and a three week jury trial was held.  The Plaintiffs presented evidence to meet the elements of the common law grave desecration claims, but also asked the trial court to instruct the jury that the Defendants could be found liable under the provisions of W.Va. Code 29-1-8a.


The issues on appeal included the proper application of W.Va. Code 29-1-8a, specifically in light of the Court’s ruling in Hairston I, the proper scope of expert opinion testimony in applying W.Va. Code 29-1-8a, and the Plaintiffs’ claims that the Defendants had engaged in spoliation of evidence.


First, the Court issued a new syllabus point.  Syllabus Point 4 makes clear that “West Virginia Code 29-1-8a [1993] does not give rise by implication to a private cause of action.”  The Court again analyzed the statutory scheme and determined that there was no direct or implied private cause of action for violations of the statute.  In cases involving unmarked graves of historical significance, it is the state’s Director of Historic Preservation who is empowered to enforce the statutory code section and to call upon the county prosecutor for assistance in seeking criminal penalties and civil damages.  The Plaintiffs in this case had produced sufficient evidence to prove their common law claims, but still asked the Judge to instruct the jury as to elements of the statutory scheme.  The trial court did instruct the jury that they could consider the elements of the code section in determining the Defendants’ liability.  The trial court erred in doing so, and its error affected the jury deliberations and verdict in such a manner that the entire case was remanded for a new trial.

The Defendants also argued that the trial court erred in permitting a plaintiffs’ expert to testify as to the meaning and interpretation of W.Va. Code 29-1-8a.  The Supreme Court held that expert opinion testimony “should not be allowed” when “the purpose of the testimony is to direct the jury’s understanding to the legal standards upon which their verdict must be based.”  Jackson v. State Farm Mut. Auto. Ins. Co., 215 W.Va. 634 (2004)  The Court agreed with the Defendants and held that it was error to allow the expert to “offer his opinion on the interpretation of W.Va. Code 29-1-8a and whether the defendants violated that Code section.”

Finally, the Defendants argued that the trial court erred in giving an adverse inference instruction regarding “spoliated” or destroyed evidence.  Already deciding to remand the case on other grounds, the Court left it to the trial court to reconsider the parties’ arguments on the spoliation issue.  The Court was concerned, however, that the trial court seemingly abdicated its role to weigh the potential evidence under Tracey v. Cottrell, 206 W.Va. 363 (1999).   The trial court must hold a hearing outside of the presence of the jury to determine whether the spoliation/adverse instruction can be presented to the jury at the new trial.


The Supreme Court seemed to agree that the Plaintiffs had supported their common law claims and that the verdicts would have been upheld if the Plaintiffs had not requested the questionable jury instructions.  The case provides some cautionary notes to litigants in post-remand situations.  In Hairston I, the Court cautioned the parties and the trial court about the application of W.Va. Code 29-1-8a. The tactical decision to pursue the common law claim along with the statutory claim means that the Plaintiffs here must tee the case up for trial again.

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