Derek Craig Swope
William B. Flanigan
Sanders, Austin, Swope & Flanigan
Princeton, West Virginia
Attorneys for Appellees
Maria Marino Potter
McQueen & Brown
Charleston, West Virginia
Attorney for Appellant
JUSTICE CLECKLEY delivered the Opinion of the Court.
RETIRED JUSTICE MILLER sitting by temporary assignment.
JUSTICE ALBRIGHT did not participate.
2. An insured is presumed to be protected from undue prejudice from the
admission of evidence of insurance at trial if the following requirements are met: (1) the
evidence of insurance was offered for a specific purpose other than to prove negligence or
wrongful conduct; (2) the evidence was relevant; (3) the trial court made an on-the-record
determination under Rule 403 of the West Virginia Rules of Evidence that the probative
value of the evidence was not substantially outweighed by its potential for unfair prejudice;
and (4) the trial court delivered a limiting instruction advising the jury of the specific
purpose(s) for which the evidence may be used.
3. Where evidence of insurance is wrongfully injected at a trial, its
prejudicial effect will be determined by applying the standard set out in Rule 103(a) of the
West Virginia Rules of Evidence. In addition to the possibility that the jurors are already
aware of the existence of insurance, the trial court should consider the relative strength of
each of the parties case or the lack of it, whether the jury was urged by counsel or the witness to consider insurance in deciding the issue of negligence or damages, whether the
injection of insurance was designed to prejudice the jury, whether the mention of insurance
was in disregard of a previous order, and whether a curative instruction can effectively
dissipate any resulting prejudice.
4. Before a verdict may be reversed on the basis of excessiveness, the trial
court must make a detailed appraisal of the evidence bearing on damages. Because the
verdict below is entitled to considerable deference, an appellate court should decline to
disturb a trial court's award of damages on appeal as long as that award is supported by some
competent, credible evidence going to all essential elements of the award.
5. "To warrant a recovery for future medical expenses, the proper measure
of damages is not simply the expenses or liability which shall or may be incurred in the
future but it is, rather, the reasonable value of medical services as will probably be
necessarily incurred by reason of the permanent effects of a party's injuries." Syllabus Point
15, Jordan v. Bero, 158 W. Va. 28, 210 S.E.2d 618 (1974).
In this personal injury action, Kathy L. Wimmer, the defendant below and
appellant herein, appeals a jury verdict which awarded Danny Reed and Sonya Reed, his
wife, the plaintiffs below and appellees herein, damages in excess of $270,000 for injuries
suffered in an automobile accident. The defendant appeals the final order of the Circuit
Court of Mercer County entered June 3, 1994, which denied her motion for a new trial. The
defendant raises two assignments of error: (1) the trial court should have granted a mistrial
when insurance coverage was mentioned in front of the jury; and (2) the issue of damages
for future medical expenses was not support by the evidence and should never have been
submitted to the jury. After reviewing the record and briefs of the parties, the judgment of
the trial court is affirmed, in part; reversed, in part; and remanded for entry of a remittitur
order of $10,000 because the award for future medical expenses was not supported by the
The defendant's insurer, Dairyland Insurance Company, settled with the
plaintiff for the policy limit of $20,000. The suit proceeded under W. Va. Code, 33-6-31
(1988), as the plaintiff sought to recover damages pursuant to the underinsured motorist
carrier provision of the policy with his insurer, Nationwide Mutual Insurance Company
(Nationwide).See footnote 2 The liability of Kathy L. Wimmer was admitted prior to trial, and she did not
appear at trial. Nationwide chose to defend in the name of the defendant. The sole issue at
trial was the calculation of damages.
Several medical experts were called at trial. The videotaped deposition of J.
Gordon Burch, M.D., a neurologist, was presented. It was Dr. Burch's opinion that the
plaintiff suffered lumbosacral and cervical sprain injuries in the accident. He suggested the
back pain that extended down the plaintiff's left leg was the result of a "pinched nerve." Dr.
Burch found the plaintiff's complaints of pain to be credible.
Clifford H. Carlson, M.D., a physiatrist, was called to testify. Dr. Carlson
explained that as a physiatrist his role was to work with persons suffering from orthopedic
or neurologic impairments to help them reach their maximum functioning level. It was the
opinion of Dr. Carlson that the plaintiff suffered a permanent back injury in the car accident
that would limit him to performing only light physical work throughout his life. Upon
reviewing the plaintiff's records, Dr. Carlson identified a preexisting back problem. The
plaintiff had undergone surgery when he was six months old to correct a congenital
malformation in his low back. When asked about the plaintiff's future care relating to the
injury, Dr. Carlson stated the plaintiff may require medication or physical therapy if his back
condition should exacerbate.
Michael D. Schinnick, Ph.D., a vocational evaluator, a work adjustment
specialist who deals with work injury management, testified he found the plaintiff to be
totally vocationally disabled. Dr. Schinnick noted the plaintiff was unsuccessful in his
attempts to continue working in lieu of his back problems even though he enrolled in a
vocational program to attain employment.
The plaintiff's next witness was Michael L. Brookshire, a professor of
economics at the West Virginia Graduate College in Charleston. He calculated the plaintiff's
lost wages at present value, assuming total vocational disability, at somewhere between $350,753, focusing on the years the plaintiff earned the most money, and $178,302,
averaging his high and low income years.
Yogesh Chand, M.D., a neurosurgeon, was unavailable for trial and, by
agreement of the parties, his deposition was read to the jury. After reviewing the evidence
and examining the plaintiff, it was Dr. Chand's opinion that the plaintiff suffered from a
herniated disc even though the results of the MRI test on him indicated a bulging disc instead
of a disc herniation. When questioned about possible surgery to correct a herniated disc, Dr.
Chand stated the operation has a success rate in the neighborhood of 70 percent and may cost
between $7,500 to $10,000. Dr. Chand did not state, however, that the plaintiff would
require such surgery.
Edward M. Litz, M.D., a board-certified orthopedic surgeon, testified on behalf
of the defendant. Upon examining the plaintiff, Dr. Litz found two preexisting back
conditions. He found the birth defect which required surgery and also noted a defect on the
spine due to constant stress on his backbone. He did not find a neurological or nerve-based
problem. Dr. Litz stated that the plaintiff was not totally disabled from employment
although he admitted the plaintiff could never return to work in the coal mines.
The defendant also called Errol Sadlon, a vocational rehabilitation counselor,
to testify. He stated the plaintiff could return to the work force performing "light work"
without much difficulty.
After deliberations, the jury returned a verdict awarding the plaintiff $3,000
for past and present pain, suffering, and emotional distress; $4,711.33 for past and present
medical expenses; $3,000 for past and present loss of physical function and loss of
enjoyment of life; $1,380 for past lost wages; $16,000 for future pain, suffering, and
emotional distress; $10,000 for future medical expenses; $16,000 for future loss of physical
function and loss of enjoyment of life; and $178,302 for future lost wages. Sonya Reed
received $38,000 for loss of consortium.
The defendant's motion for a new trial was denied by order entered June 3,
1994. This appeal ensued.
The plaintiff responds the trial court was correct in not granting a mistrial
considering the fact defense counsel did not make a timely objection to the testimony.See footnote 4 The plaintiff argues the testimony was not prejudicial to the defendant, but was elicited only after
repeated questioning during cross-examination in which the defendant tried to characterize
the plaintiff as litigious.See footnote 5
Furthermore, the plaintiff contends the questioned remarks are admissible
under the exceptions to Rule 411 of the West Virginia Rules of Evidence. The plaintiff
suggests insurance was mentioned to explain why he sought the advice of an attorney so soon
after the accident--because the insurance company would not repair his car. Finally, a
cautionary instruction advising the jury to disregard the issue of insurance during
deliberations was read by the trial court.
Reduced to its essence, the defendant contends the evidence offered in this case
was directly in defiance of our earlier cases and, because the evidence was introduced by a
party, the error cannot be harmless. See Atkins v. Barlett, 101 W. Va. 263, 132 S.E. 885
(1926) (finding that it was reversible error for a party to mention insurance). We disagree.
The cases that preexisted Rule 411 have been impliedly repealed unless the prior decisional
admissibility rules were codified as part of the West Virginia Rules of Evidence. As we
stated at Syllabus Point 7 in State v. Derr, 192 W. Va. 165, 451 S.E.2d 731 (1994):
"The West Virginia Rules of Evidence remain the paramount authority in determining the admissibility of evidence in circuit courts. These rules constitute more than a mere refinement of common law evidentiary rules, they are a comprehensive reformulation of them."
Under the West Virginia Rules of Evidence, no common law of evidence remains. See United States v. Abel, 469 U.S. 45, 51-52, 105 S. Ct. 465, 469, 83 L.Ed.2d 450, 457 (1984) ("[i]n reality, of course, the body of common law knowledge continues to exist, though in the somewhat altered form of a source of guidance in the exercise of delegated powers"). Thus, to the extent that our prior cases have carved out per se exclusionary rules that have not been codified in the West Virginia Rules of Evidence, their precedential value has been reduced to a "source of guidance" only; and, to the extent our prior cases are inconsistent or incompatible with the West Virginia Rules of Evidence, they have been implicitly overruled by Rule 402.See footnote 6
This case presents the opportunity to clarify the contours and scope of Rule
411 of the West Virginia Rules of Evidence. Rule 411 is simple and straightforward. It
provides as follows:
"Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, if controverted, or bias or prejudice of a witness."
The prohibition in Rule 411 is based on the assumption that jurors who are
informed about the insurance status of a party may find that party liable only because the
liability will be cost-free to the party, or that jurors will increase the amount of damages in
that only an insurance company will be affected adversely. By the adoption of this
exclusionary language, Rule 411 forbids two inferences. First, the Rule does not permit the
trier of fact to infer that an insured person is more likely than an uninsured person to be
careless. Second, Rule 411 rejects the inference that the foresight to take out insurance is
indicative of a responsible attitude, making negligence less likely. Although both the
inferences and their probative force are highly questionable, under the West Virginia Rules
of Evidence, the doctrine is clear, and compliance with Rule 411 and the other rules
discussed in this opinion is not a matter of judicial discretion.
Like all the categorical exclusionary rules contained within Article IV of the
West Virginia Rules of Evidence, Rule 411 does not prohibit all possible uses of evidence
regarding a party's insurance coverage.See footnote 7 Evidence of insurance may be listed for a variety
of relevant purposes. In other words, if evidence of insurance coverage is introduced for
purposes other than negligence and wrongful conduct, Rule 411 does not bar its admission.
The second sentence of Rule 411 lists several examples for which insurance evidence is not
prohibited. The list is not exhaustive and other purposes not listed in Rule 411 have been permitted. See 1 Franklin D. Cleckley, Handbook on Evidence for West Virginia Lawyers
§ 4-11(B) at 431 (3rd ed. 1994) ("[t]he 'other purposes' listed in Rule 411 are illustrative and
not exclusive"). Accordingly, the beginning inquiry must always be whether the evidence
is offered for a purpose other than negligence or wrongful conduct.
As noted above, ascertaining a legitimate purpose for which the evidence of
insurance is offered merely begins the inquiry. The trial court must next determine whether
the mention of insurance, while made for a stated purpose other than negligence or wrongful
conduct, is in fact relevant to the criteria mentioned in Rule 411. In determining its
relevancy, the trial court must find the evidence has sufficient probative value to meet the
standard of Rule 401. If it does not, Rule 402 mandates its exclusion. The third step
involved in the equation is Rule 403. This Rule requires the trial court to do the requisite
balancing and determine whether the probative value of the insurance evidence is outweighed
by its prejudicial effect. Similarly, trial courts retain discretion under Rule 403 to allow such
proof only where less prejudicial evidence is unavailable.See footnote 8 See State v. Guthrie, ___ W. Va.
___, ___, 461 S.E.2d 168, 189 (1995) ("[i]n applying Rule 403, it is pertinent whether a
litigant has some alternative way to deal with evidence that would involve a lesser risk of prejudice and confusion"). Finally, the trial court upon request must give a limiting
instruction pursuant to Rule 105.
Thus, under today's decision an insured is presumed to be protected from
undue prejudice from the admission of evidence of insurance at trial if the following
requirements are met: (1) the evidence of insurance was offered for a specific purpose other
than to prove negligence or wrongful conduct; (2) the evidence was relevant; (3) the trial
court made an on-the-record determination under Rule 403 that the probative value of the
evidence was not substantially outweighed by its potential for unfair prejudice; and (4) the
trial court delivered a limiting instruction advising the jury of the specific purpose(s) for
which the evidence may be used.
We now apply the standards of our Rules of Evidence to the facts of this case.
In the course of the plaintiff's cross-examination testimony concerning when he first
contacted an attorney, he referred to "the insurance company." On the basis of this
reference, defense counsel moved for a mistrial because, as he argues, the jury was
improperly invited to think of the availability of a deep pocket insurer footing the bill for any
damages assessed. The trial court denied the motion, implicitly concluding the evidence was
not introduced in violation of Rule 411, was relevant to rebut the inference suggested by the
cross-examiner, and was unlikely to have been perceived by the jury as an indication that there was insurance coverage pertinent to this case.See footnote 9 Nevertheless, the trial court gave an
instruction to disregard the reference to insurance.See footnote 10
Despite the defendant's characterization of the reference to insurance as highly prejudicial, we find the trial court did not commit error in refusing to grant a mistrial. First, and foremost, the decision to declare a mistrial is within the sound discretion of the trial court. See, e.g., State v. Davis, 182 W. Va. 482, 388 S.E.2d 508 (1989). It is reserved for the most egregious error that cannot be corrected by a curative instruction. "Mistrials in civil cases are generally regarded as the most drastic remedy and should be reserved for the most grievous error where prejudice cannot otherwise be removed." Pasquale v. Ohio Power Co., 187 W. Va. 292, 296, 418 S.E.2d 738, 742 (1992). See also Board of Educ. of McDowell County v. Zando, Martin & Milstead, Inc., 182 W. Va. 597, 390 S.E.2d 796 (1990); State v. Bennett, 179 W. Va. 464, 370 S.E.2d 120 (1988).
Second, the testimony at issue does not fall within the prohibition of Rule 411.
The statement did not suggest the defendant was insured; only that the plaintiff went to a
lawyer because "the insurance company" failed to fix the plaintiff's car. Indeed, Rule 411
contemplates that evidence of insurance may be admissible on issues other than negligence.
The trial court found the reference to insurance was a reasonable and relevant invited
response demonstrating the motivation of the plaintiff for contacting an attorney as quickly
as he did. The prohibition of Rule 411 is not intended to override the equally positive and
salutary principle that a party should have a reasonable opportunity to counter and rebut
adverse inferences raised by the opposition. Furthermore, we find the comment was in
response to interrogation by defense counsel, as found by the trial court, leaving him in a
position where he cannot complain under our invited error doctrine. See Shamblin v.
Nationwide Mut. Ins. Co., 183 W. Va. 585, 599, 396 S.E.2d 766, 780 (1990) ("the appellant
cannot benefit from the consequences of error it invited").
Finally, we must determine whether Rule 403 was violated. As suggested
above, in considering whether to admit or exclude evidence concerning insurance that is
offered for a purpose other than to prove a party acted negligently, the trial court must apply
the principles of Rule 403 to determine whether the probative value of the evidence is
substantially outweighed by the danger of unfair prejudice. See 10 J. Moore, Moore's
Federal Practice ¶ 411.04 (2nd ed. 1988 & Supp. 1994-95).
The trial court, after hearing arguments from both sides and taking some time
to reflect on the issue, explicitly concluded that the evidence was probative and that given
the context of the statement,See footnote 11 the danger of unfair prejudice was very small because the jury
was unlikely to make any inference that "the insurance company" meant the defendant's
insurance company. When evidence of insurance is elicited that is fairly conducive to the
accomplishment of a relevant and legitimate end in the proceeding, if prejudice results
therefrom to the adverse party, it should be deemed unavoidable. "Rule 403 was not
designed to allow the blanket exclusion of evidence of insurance absent some indicia of
[unfair] prejudice. Such a result would defeat the obvious purpose of Rule 411." Charter
v. Chleborad, 551 F.2d 246, 249, cert. denied, 434 U.S. 856, 98 S. Ct. 176, 54 L.Ed.2d 128
(1977). As we have said on numerous occasions, all relevant evidence has some prejudicial
effect, but Rule 403 grants relief to a party only when unfair prejudice is demonstrated. See
State v. Rector, 167 W. Va. 748, 280 S.E.2d 597 (1981); State v. Peacher, 167 W. Va. 540,
280 S.E.2d 559 (1981). The trial judge whose duty it is to be attuned to the trial as it
progresses is in the most advantageous position to correctly rule whether unfair prejudice,
or the lack of it, has emanated from the comments of the witness. State v. Derr, 192 W. Va.
at 178, 451 S.E.2d at 744 ("[t]he Rule 403 balancing test is essentially a matter of trial conduct, and the trial court's discretion will not be overturned absent a showing of clear
abuse"); accord State v. Dillon, 191 W. Va. 648, 447 S.E.2d 583 (1994).
While it is not possible, or at least not practicable, to enunciate rigid rules
concerning the latitude which a witness may refer to insurance to explain a legitimate
concern, there is universal agreement that the matter is within the sound discretion of the trial
court. Under the facts of this case, we cannot say that any material prejudice resulted from
the reference made to insurance and we must also assume that the jury followed the curative
instruction. See Greer v. Miller, 483 U.S. 756, 766 n.8, 107 S. Ct. 3102, 3109 n.8, 97
L.Ed.2d 618, 630-31 n.8 (1987) (there is a presumption that curative instructions are
effective); accord State v. Lusk, 177 W. Va. 517, 354 S.E.2d 613 (1987). If there was any
possibility of error, which we cannot identify, it was cured by the instruction to disregard.
In future cases, where feasible, counsel can avoid motions for mistrial by
requesting a bench conference prior to the time that he or she feels insurance might be
mentioned. In following this procedure, a trial court could require the necessary foundation
to be established outside the presence of the jury so that it might determine the admissibility
of the evidence without prejudice to the rights of the parties.
To complete our analysis, we believe it is helpful to address the issue of when
the mention of insurance in violation of Rule 411 constitutes reversible error. It is apodictic that a new trial is not to be granted absent the existence of error that affects substantial rights.
See W.Va.R.Evid. 103(a); Tennant v. Marion Health Care Found., Inc., ___ W. Va. ___, 459
S.E.2d 374 (1995). Thus, it beggars credulity to argue that mere mention of insurance by a
party is per se reversible error. Apart from the fairly obvious conclusion that most jurors are
aware of the law mandating insurance in West Virginia, there is no consensus among jurists
as to which party evidence of insurance adversely affects. See Safeco Ins. Co. of Am. v.
U.S. Fidelity & Guar. Co., 101 N.M. 148, 152, 679 P.2d 816, 820 (1984) (trial courts should
recognize that prejudicial tendencies of revealing insurance "can go in both directions").
Today with widespread insurance coverage and mandatory insurance laws in
many of our states, most courts are reluctant to grant a mistrial or reverse a verdict merely
because the issue of insurance was raised and especially when it was raised in ways that
were likely to be harmless. The prevailing view among the commentators is that evidence
of insurance is rarely prejudicial:
"[T]he underlying soundness of the general rule forbidding disclosure of the fact of insurance has been the object of scathing criticism. . . . Its costs include extensive and unnecessary arguments, reversals, and retrials stemming from elusive questions of prejudice and good faith. This state of affairs might be tolerable if the revelation of insurance were truly fraught with prejudice. But, . . . most jurors probably presuppose the existence of liability insurance anyway, and the heart of the policy nondisclosure is surrendered when jurors are examined about their connection with insurance companies. Consequently, the extent to which evidence of coverage or its absence is prejudicial is unclear. Even the direction in which such prejudice might work is obscure." McCormick On Evidence § 210 at 597 (3rd ed. 1984). (Footnotes omitted).
See also, 23 Charles A. Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure:
Evidence § 5369 (1980); 2 D. Louisell Evidence § 193 (Revised 1985). Indeed, the modern
"In general, the tendency now is to take a less serious view of the disclosure of the existence of liability insurance of the plaintiff, or conversely the absence of coverage of defendant, than formerly, and reversals are rare unless the disclosure is viewed as a deliberate invitation to the jury to base its decision on the presence or absence of insurance. As stated above, it is difficult to perceive how the mere mentioning of insurance could ever be reversible error." 1 Franklin D. Cleckley, Handbook on Evidence for West Virginia Lawyers § 4-11(A) at 429-30 (3rd ed. 1994).
McCormick's treatise suggests that rather than a mistrial or reversal, a limiting instruction
will usually cure any possible prejudice:
"If disclosure of the fact of insurance really is prejudicial, the corrective is not a futile effort at concealment, but the usual fulfillment by the court of its function of explaining to the jury its duty to decide according to the facts and the substantive law, rather than sympathy, ability to pay, or concern about proliferating litigation and rising insurance premiums." McCormick On Evidence, supra at 598.
On the other hand, we refuse to adopt a per se rule that evidence of insurance
is always harmless error. "If the Rule is to mean anything, it must have some teeth." 1
Stephen A. Saltzburg, Michael M. Martin, Daniel J. Capra, Federal Rules of Evidence Manual 554 (6th ed. 1994). Simply stated "there is no reason to treat erroneous admission
of evidence of insurance differently from any other evidentiary error." Federal Rules of
Evidence Manual at 554. Therefore, we hold that where evidence of insurance is wrongfully
injected at a trial, its prejudicial effect will be determined by applying the standard set out
in Rule 103(a) of the Rules of Evidence.See footnote 12 In addition to the possibility that the jurors are
already aware of the existence of insurance, the trial court should consider the relative
strength of each of the parties case or the lack of it, whether the jury was urged by counsel
or the witness to consider insurance in deciding the issue of negligence or damages, whether
the injection of insurance was designed to prejudice the jury, whether the mention of
insurance was in disregard of a previous order, and whether a curative instruction can
effectively dissipate any resulting prejudice.
Under Rule 103(a), to warrant reversal, two elements must be shown: error and
injury to the party appealing. Error is harmless when it is trivial, formal, or merely
academic, and not prejudicial to the substantial rights of the party assigning it, and where it
in no ways affects the outcome of the trial. Stated conversely, error is prejudicial and ground
for reversal only when it affects the final outcome and works adversely to a substantial right
of the party assigning it. Obviously, in order for the rule of harmless error to be called into play in support of a judgment, the judgment must be otherwise supportable and will be
reversed when there is no evidence to support it.See footnote 13 Instances in civil cases in which Rule
103(a) may be applied fall generally into two categories: (1) where the error is so slight that
no one could have been mislead thereby even if the evidence is in substantial conflict; and
(2) where the error is substantial, but from the record it is apparent that no impartial jury
could have reached any other verdict.
In conclusion, assuming that the mention of insurance was in violation of Rule
411, we are of the opinion that the situation exists here is covered by the first example set
out above. Accordingly, we find the trial court substantially complied with the rules as we
have discussed above and we find no reversible error.
None of the physicians who appeared at trial or whose depositions were read to the jury
testified as to the plaintiff's need for future medical expenses. Dr. Chand, in answer to a
hypothetical question, stated that surgery to repair a herniated disc would cost in the range
of $7,500 to $10,000. However, Dr. Chand did not state the plaintiff required the surgery
or would probably incur the expense of the surgery in the future. Accordingly, we find it
was error to submit this issue to the jury in the absence of evidence supporting an award for future medical damages. The proper remedy for this error is for this Court to order a
remittitur of that portion of the recovery and sustain the remainder of the judgment below.
Syl. pt. 2, Earl T. Browder, Inc. v. County Court of Webster County, 145 W. Va. 696, 116
S.E.2d 867 (1960).
Affirmed, in part;
reversed, in part;
and remanded with
"Q. Danny, when in relation to this accident
did you employ counsel; how long after the accident was it
before you went to a lawyer?
"A. If I remember correctly, it was -- it was a
few days after that.
"Q. After the accident?
"A. I mean after the accident, yes sir, because --
could I tell you why I employed a -- an attorney.
"Q. I just want to know when you went.
"A. Well, I'd like to tell you why.
* * *
"Q. My question was the date that you went?
* * *
"A. -- a few days after the accident, I don't
know how many days.
"Q. Okay, and did -- did you employ attorneys
at that time?
"A. Yes sir, 'cause the insurance company
wouldn't fix my car, or I didn't know the -- or whatever.
That's -- that's the main reason though. I'm sorry.
"Q. But you went about two or three days after
the accident occurred?
"A. Yes sir."
A survey of our earlier cases reveals our jurisprudence has long favored the
contemporaneous objection rule but has not addressed an objection and a motion to strike
(or request for other curative relief) in identical terms. See Vale v. Suiter & Dunbar, 58
W. Va. 353, 52 S.E. 313 (1905). Rule 103(a) of the West Virginia Rules of Evidence, on
the other hand, explicitly requires "a timely objection or motion to strike appear of
record." Although we do not base our decision on this issue, we believe the plaintiff's
position has merit. In Pasquale v. Ohio Power Co., 187 W. Va. 292, 309, 418 S.E.2d
738, 755 (1992), the appellant failed to make a timely objection but, instead, made a belated motion for a mistrial. This Court stated "[w]e disfavor the technique of not first making a timely objection to the error and instead waiting until a later time to move for a mistrial."
Once it is believed that evidence of a prejudicial nature has been
introduced, to satisfy the requirements of Rule 103(a) an objection must be interposed at
the time the evidence has been offered and the trial court thus be given an opportunity to
rule on the admissibility of the evidence. If the objecting party is of the opinion that the
sustaining of the objection is not enough to remove from the minds of the jury the
prejudice resulting from the inadmissible evidence, the trial court must then be requested
to instruct the jury to disregard the inadmissible evidence:
"If, the trial court having responded by so instructing the jury,
the objector should still consider that the interests of his client
have been irremediably prejudiced and that the actions of the
trial court, although favorable, have not been effective in
removing from the minds of the jury the prejudicial effect of
the objectionable matter, then a motion must be made at the
time for a mistrial. . . . Timely objections, followed by
appropriate and timely motions, are necessary to preserve
such points on appeal." Anderson v. Jaeger, 317 So.2d 902,
906-07 (Miss. 1975).
We believe there exist better and more substantial reasons to reject this assignment of error; nevertheless, we offer the above observations as a reminder to future litigants that the procedural requirements of Rule 103(a) are mandatory.
Rule 402 impliedly repeals prior decisional admissibility rules that have not been codified. Even when explicit authority to resolve an evidentiary issue is absent, the clear mandate of Rule 402 is to make relevant evidence admissible and irrelevant evidence inadmissible. The absence of case or decisional law as part of the list of the type of laws in Rule 402 manifests the drafters' intent to repeal uncodified exclusionary rules of evidence. I Franklin D. Cleckley, Handbook on Evidence for West Virginia Lawyers § 4-2(c) at 215 (____). Simply stated, the West Virginia Rules of Evidence "occupy the field."
"The appropriate test for harmlessness articulated by this Court in State v. Atkins, 163 W. Va. 502, 261 S.E.2d 55 (1979), cert. denied, 445 U.S. 904, 100 S. Ct. 1081, 63 L.Ed.2d 320 (1980), is whether we can say with fair assurance, after stripping the erroneous evidence from the whole, that the remaining evidence was independently sufficient to support the verdict and that the judgment was not substantially swayed by the error. The outcome of the harmless error analysis is fact specific." McDougal v. McCammon, ___ W. Va. ___, ___, 455 S.E.2d 788, 797-98 (1995).