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Hanson v. Keeling

Supreme Court of West Virginia

September 25, 2017

KEVIN HANSON, Defendant Below, Petitioner
LARRY KEELING, JR., Plaintiff Below, Respondent

         Kanawha County No. 15-C-1801


         The petitioner (defendant below), Kevin Hanson, appeals the denial of his motion for a new trial following an adverse jury verdict in this personal injury action arising out of a motor vehicle accident. He asserts that the trial court's questioning of witnesses and commentary during trial adversely impacted both the fairness of the trial and the impartiality of the jury's verdict. He further asserts that the trial court erred in allowing the respondent (plaintiff below), Larry Keeling, Jr., to call the petitioner's investigator as a fact witness at trial. The parties are represented by counsel: David J. Mincer for the petitioner and Ben Salango for the respondent.

         Upon review of the parties' arguments, we affirm the trial court's denial of the petitioner's motion for a new trial. Inasmuch as this case does not present a new or significant question of law, and having considered the applicable standard of review and the record presented, this matter is properly disposed of through this memorandum decision in accordance with Rule 21(c) of the Rules of Appellate Procedure.

         I. Facts and Procedural Background

         On August 30, 2015, the petitioner was driving his pick-up truck that was pulling a trailer filled with lumber. The petitioner lost control of his vehicle, causing the lumber to fall off the trailer and onto lanes of travel. The respondent, who was traveling on his motorcycle, collided with the spilled lumber. He sustained two broken ribs and tears to the anterior cruciate ligament and medial collateral ligament in his right knee. Two separate knee surgeries were performed over the course of several months, and each surgery was followed by a course of physical therapy. The respondent's medical expenses totaled $71, 947.97.

          On September 23, 2015, the respondent instituted the instant litigation against the petitioner seeking damages, including lost wages. The respondent alleged that his knee injuries prevented him from returning to his employment as a fence installer. In the respondent's written discovery requests, he sought, among other things, "a copy of any and all surveillance videos, photographs, summaries or reports in your possession, custody, or control regarding or relating to Plaintiff." Although the petitioner retained an investigator in mid-November of 2015 to surveil the respondent, counsel responded "none" to the discovery request on December 4, 2015. The appendix record reflects that some surveillance photographs were taken weeks earlier, on November 17, 2015.[1]

         In correspondence dated December 22, 2015, the investigator updated the petitioner's counsel concerning the surveillance, attaching some surveillance photographs. The petitioner's counsel did not supplement his discovery responses at that time, but he did direct the investigator to conduct more intensive surveillance, which was performed on February 12 through 14, 2016. In early March 2016, the investigator sent his written report, including the photographs and videos he had taken of the respondent, to the petitioner's counsel. According to the petitioner's counsel, he determined the material was unhelpful and "had no further thoughts of the surveillance report."

         On or about May 11, 2016, the respondent's counsel, having become suspicious during a recent deposition that surveillance existed, emailed the petitioner's counsel, reminding him of the discovery request concerning surveillance. The petitioner's counsel responded, advising that surveillance had been conducted; that he was preparing supplemental discovery answers; and that the defense would object to any attempt by the respondent to use the surveillance materials at trial as it was work product. The next day, the petitioner provided supplemental discovery responses to the respondent, stating that the "[d]efendant objects on the grounds that these materials are work product. Notwithstanding and without waiving that objection, all surveillance videos, photographs, summaries and reports have been provided to Plaintiff's counsel. Defendant does not intend to use them at trial and Defendant objects to Plaintiff using them at trial."[2]

         On May12, 2016, the respondent filed a motion for sanctions based on the petitioner's delay in supplementing his discovery responses. Among other things, he sought the court's permission to call the investigator as a fact witness to describe his observations of the respondent and to introduce the surveillance materials at trial. The petitioner filed a response to the motion, essentially arguing that the respondent was not prejudiced by the delay in receiving the discovery materials because the petitioner did not intend to use them at trial; that the only discovery sanction previously recognized by this Court was to preclude use of the untimely disclosed materials at trial; that the investigator's materials could not be used at trial because they were the petitioner's work product for which the respondent had made no showing of a substantial need under Rule 26 of the West Virginia Rules of Civil Procedure; and that the surveillance evidence was inadmissible at trial because its probative value was substantially outweighed by its prejudicial effect. During the two hearings that followed, the court ruled that the respondent could call the investigator as a fact witness at trial based on the petitioner's voluntary production of the surveillance evidence, finding the same to be probative of the issues to be tried. The trial court noted the petitioner's objection and exception to that ruling.

         Prior to trial, the petitioner stipulated to liability, causation, and the respondent's medical costs. The only issues left for the jury's determination were past and future lost wages, pain and suffering, mental and emotional distress, and loss of enjoyment of life.

         At trial, the respondent called the investigator as a witness, questioning him concerning the manner in which he conducted the surveillance. He also questioned the investigator concerning three of the approximately forty-eight photographs he had taken. These three photos were admitted into evidence without any objection from the petitioner. When the respondent's counsel questioned the investigator regarding his observations of the respondent, including whether the respondent favored his injured leg and whether he had a limp, the investigator responded affirmatively, noting that the respondent's limp could be seen in the surveillance video.[3] The investigator further testified that "based on what I investigated, that he had a horrific knee injury, that I am surprised he could even walk, to be frank with you, and that he's healed very well." The petitioner's counsel asserted a single objection during the investigator's testimony, which involved whether the investigator had a duty to preserve evidence.[4] The objection was overruled, and the investigator explained that he deleted several photos because they were blurry.

         The respondent's trial witnesses also included himself; his wife; the owner of the fencing company where the respondent was employed at the time of the vehicle accident; the respondent's supervisor at the fencing company; his treating medical providers (orthopedic surgeon, physical therapist, and radiologist); a retained orthopedic expert; and a vocational rehabilitation/economics expert. His medical experts testified concerning the extent of the respondent's injuries, opining that he could not return to his former employment as a fence installer nor to any job that involved heavy manual labor and that he would have knee pain during his lifetime.[5] The respondent and his wife each testified concerning the respondent's injuries, how they impacted his employment and daily life, the efforts he made to find other employment, and the pain he suffered. The vocational rehabilitation/economics expert testified concerning jobs the respondent would be qualified to perform and his calculation of the respondent's past and future lost wages.

         The petitioner called two witnesses at trial: an orthopedic physician who had conducted an independent medical examination of the respondent and an economist. The orthopedist testified concerning his physical examination of the respondent and his opinion that the respondent's injuries were adequately treated; that those injuries do not continue to cause significant problems; that the respondent's continued knee pain is attributable to the arthritis in his knee; and that, but for the arthritis, the respondent could have returned to work as a fence installer. The petitioner's economist rendered opinions concerning the respondent's lost wage claim.

         Over the course of the trial, the court asked various witnesses a total of seventy-four questions. For example, during the testimony of the owner of the fencing company where the petitioner worked before the accident, the trial judge directed the witness to explain what a posthole digger is, whether the work is hard, and why it is hard. During the petitioner's cross-examination of this witness, the trial judge interjected, directing the witness to tell the jury why the work of a fence installer is such a "hard job"; seeking confirmation that there is nothing about the job that does not involve manual labor; and directing the witness to explain to the jury why removing a fence is as hard as installing one. The trial court also posed questions during the respondent's direct examination of his former supervisor at the fencing company, asking the witness to explain what a fence installer does and directing the witness to exit the witness box and demonstrate how the knees are involved and what mobility is required of a fence installer. The petitioner asserted no objections at any time to the trial court's questioning of any of the witnesses at trial.

         The jury returned a verdict in favor of the respondent, awarding him the stipulated amount of $71, 947.97 in past medical expenses. The jury also awarded the respondent $26, 814 in past lost wages;[6] $75, 000 in future lost wages;[7] and $375, 000 in past and future physical pain and suffering, mental and emotional distress, and lost enjoyment of life. The verdict totaled $548, 751.97. After deducting the pre-trial settlement in the amount of $250, 000 and adding to the verdict prejudgment interest in the amount of $6, 498.43, the trial court entered judgment against the petitioner in the amount of $305, 250.40 by order dated May 25, 2016.

         On June 6, 2016, the petitioner filed a motion for a new trial asserting that the trial court erred by asking extensive, improper, and biased questions of numerous witnesses during trial; by allowing the respondent to call the petitioner's investigator as a fact witness at trial because the surveillance was work product; and by allowing the respondent to introduce the investigator's report and surveillance video into evidence. By order entered July 29, 2016, the trial court denied the motion. The court found that the investigator's testimony was probative of the respondent's damages claim; that the respondent did not introduce the investigator's report into evidence; that it was the petitioner who played the surveillance video at trial; that the petitioner did not assert any relevancy objections at trial to the investigator's testimony; and that the three surveillance photos were admitted into evidence without any objection from the petitioner. The trial court entered an order that same day granting the respondent's motion for sanctions through which it directed the petitioner to reimburse the respondent for the costs incurred in subpoenaing the investigator to appear at trial.[8] This appeal followed.

         II. Discussion

         The petitioner challenges the circuit court's denial of his motion for a new trial. Our standard of review is well-settled:

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 ...

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