Gary W. Hart
Kevin Duffy Jackson & Kelly, PLLC
Clay, West Virginia Charleston, West Virginia
Attorneys for the Appellant Joseph E. O'Neil
Lavin, Coleman, O'Neil,
Ricci, Finarelli & Gray
Attorneys for the Appellee,
General Motors Corporation
JUSTICE DAVIS delivered the Opinion of the Court.
JUSTICE SCOTT did not participate.
2. Before a trial court may give an adverse inference jury instruction or
impose other sanctions against a party for spoliation of evidence, the following factors
must be considered: (1) the party's degree of control, ownership, possession or authority
over the destroyed evidence; (2) the amount of prejudice suffered by the opposing party
as a result of the missing or destroyed evidence and whether such prejudice was
substantial; (3) the reasonableness of anticipating that the evidence would be needed for
litigation; and (4) if the party controlled, owned, possessed or had authority over the
evidence, the party's degree of fault in causing the destruction of the evidence. The party
requesting the adverse inference jury instruction based upon spoliation of evidence has the
burden of proof on each element of the four-factor spoliation test. If, however, the trial
court finds that the party charged with spoliation of evidence did not control, own, possess,
or have authority over the destroyed evidence, the requisite analysis ends, and no adverse
inference instruction may be given or other sanction imposed.
3. In West Virginia, to recover on a theory of crashworthiness against
the manufacturer of a motor vehicle, it is necessary only to show that a defect in the
vehicle's design was a factor in causing some aspect of the plaintiff's harm. Once the
plaintiff has made this prima facie showing, the manufacturer can then limit its liability if
it can show that the plaintiff's injuries are capable of apportionment between the first and
second collisions; therefore, the burden is upon the manufacturer to make the allocation.
Syllabus point 2, Blankenship v. General Motors Corp., 185 W. Va. 350, 406 S.E.2d 781
4. A defendant manufacturer seeking to apportion liability for the
indivisible injury of death in a wrongful death crashworthiness cause of action must prove,
by a preponderance of the evidence, that the defective product was not a factor in causing
the decedent's death. Absent such a showing, the defendant manufacturer is jointly and
severally liable for all of the harm.
5. In a wrongful death crashworthiness cause of action, the jury is
charged with determining whether the vehicle's design was defective. The ultimate issue
of whether the resultant death can be apportioned among the multiple collisions is a
question of law to be decided by the trial judge. If the trial judge concludes that the fatal
injury can be apportioned, the jury then may determine the apportionment of the
defendants' liability and the consequent damages for which they are responsible.
The appellant herein and plaintiff below, Linda J. Tracy (hereinafter Tracy), Administratrix of the Estate of Douglas B. Tracy (hereinafter Douglas), appeals the October 22, 1997, verdict of a Clay County jury, which returned a defense verdict for the appellee herein and defendant below, General Motors Corporation (hereinafter GM). Tracy further appeals the circuit court's subsequent order, entered June 11, 1998, which denied her motion to set aside the adverse jury verdict and refused to grant her a new trial. In her civil suit against GM, Tracy sought to recover for the wrongful death of her son, Douglas. Tracy contends Douglas's death was the result of a defective seat belt restraint system found in the GM automobile in which he was riding as a passenger. In this appeal, Tracy has assigned as error: (1) the giving of certain defense jury instructions; (2) the submission to the jury of special Interrogatory Number 10; (3) the exclusion of the Mertz memorandum; (4) the refusal to designate a witness as an expert; and (5) the preclusion of certain rebuttal testimony. Upon a review of the parties' arguments before this Court, the appellate record herein, and the pertinent authorities, we reverse the decision of the Circuit Court of Clay County.
Witnesses and rescue workers at the scene testified that both Douglas and
Ms. Cottrell were killed in the accident.See footnote 2
Ms. Shuler sustained severe injuries.
Immediately after the accident, observers noted that Douglas was wearing both a lap seat
belt and a shoulder belt. It was further reported that Douglas's shoulder belt fit him
snugly. During rescue efforts, Douglas's shoulder belt was cut in order to free Ms.
Shuler. Thereafter, Carl Wilson, II, Coroner for Clay County, and Trooper S.R. Butcher,
of the West Virginia Department of Public Safety, examined Douglas's body and noted
various bruises on his neck and shoulders where the belts had been located. Following the
accident investigations and insurance companies' claims adjustments, the Shuler vehicle
In January, 1994, Tracy, Douglas's mother and the Administratrix of his
estate, filed a wrongful death action in the Circuit Court of Clay County naming as
defendants Ms. Cottrell and GM.See footnote 3
The primary focus of the case was Tracy's contention
that the Celebrity's restraint system was defective and had been negligently designed and
tested. Additionally, Tracy asserted that GM failed to comply with express and implied
warranties and further had failed to warn of the known hazards associated with its restraint
systems. Prior to trial, the lower court granted GM's motion to bifurcate the trial as to
liability and damages. The liability portion of the trial commenced on October 6, 1997.
On October 22, 1997, the jury returned a verdict, comprised of ten special interrogatories,
in favor of GM. Tracy moved for a new trial and to set aside the jury verdict. The circuit
court denied the requested relief by order entered June 11, 1998. From the adverse jury
verdict and the circuit court's order denying post-trial relief, Tracy appeals.
It is a fundamental principle of law that a party who reasonably anticipates
litigation has an affirmative duty to preserve relevant evidence. Baliotis v. McNeil, 870
F. Supp. 1285, 1290 (M.D. Pa. 1994). Under certain conditions, where evidence is
destroyed, a trial court has discretion to sanction the offending party by an outright
dismissal of claims, the exclusion of countervailing evidence, or a jury instruction on
spoliation. This inference permits the jury to assume that 'the destroyed evidence would
have been unfavorable to the position of the offending party.' Howell v. Maytag, 168
F.R.D. 502, 505 (M.D. Pa. 1996) (quoting Schmid v. Milwaukee Elec. Tool Corp., 13
F.3d 76, 78 (3d Cir. 1994)). Tracy's issue is one of first impression for this Court,See footnote 5
although we have had occasion to address in general terms the issue of an adverse
inference jury instruction.
The seminal case on adverse inference instructions is McGlone v. Superior
Trucking Co., Inc., 178 W. Va. 659, 363 S.E.2d 736 (1987). McGlone required this
Court to determine whether an adverse inference instruction should be given which
required the jury to presume a negative inference as a result of a party's failure to call a
material witness. Prior to McGlone, decisions by this Court suggested a conclusive
presumption was to be inferred in such a situation. See Syl. pt. 5, Chambers v. Spruce
Lighting Co., 81 W. Va. 714, 95 S.E. 192 (1918). However, McGlone rejected presenting
such an instruction to the jury. Specifically, we held in Syllabus point 3 of McGlone that:
The unjustified failure of a party in a civil case to call an available material witness may, if the trier of the facts so finds, give rise to an inference that the testimony of the missing witness would, if he or she had been called, have been adverse to the party failing to call such witness. To the extent that Syllabus point 1 of Vandervort v. Fouse, 52 W. Va. 214, 43 S.E. 112 (1902), Syllabus point 5 of Garber v. Blatchley, 51 W. Va. 147, 41 S.E. 222 (1902), and Syllabus point 3 of Union Trust Co. v. McClellan, 40 W. Va. 405, 21 S.E. 1025 (1895), are inconsistent with this opinion, they are hereby overruled.
178 W. Va. 659, 363 S.E.2d 736.
In the instant proceeding, the adverse inference instruction on spoliation was
consistent with McGlone, insofar as the instruction imposed no negative presumption on
the jury. Here, however, the actual question requires a legal determination of whether any
grounds existed for giving an adverse inference instruction on spoliation. In examining
our prior decisions on adverse inference instructions, our cases suggest that some type of
control over evidence or fault must be attributable to a party when a witness or evidence
is unavailable. For example, in Syllabus point 5, in part, of Chambers v. Spruce Lighting
Co., we said that an adverse inference may be drawn [w]here upon a party to an action
rests the burden of proving a material fact in issue, h[e] fail[s], without sufficient excuse,
to produce when demanded a document in his possession[.] 81 W. Va. 714, 95 S.E. 192
(emphasis added). In Bartlett v. Baltimore Railroad Co., 84 W. Va. 120, 128, 99 S.E.
322, 322 (1919), we said that for an adverse inference to arise against a party, it must
appear that he is able to produce, and has some control, by reason of his situation or
relation, over the witness whose testimony would clear up the situation. (Emphasis
added). Further, in Kirchner v. Smith, 61 W. Va. 434, 450, 58 S.E. 614, 621 (1907), we
held that an adverse inference may arise '[w]here a party has in his possession or under
his control evidence by the introduction of which at the trial he would be able to render
certain a fact material to his success, which is otherwise left in doubt, and he withholds
such evidence[.]' Id. (quoting Syl. pt. 8, Hefflebower v. Detrick, 27 W. Va. 16 (1885))
Responding to Tracy's argument, GM cites to other jurisdictions which allow
an adverse consequence or an adverse inference instruction on spoliation of evidence, even
where a party does not control, possess or cause the destruction of evidence. However,
the cases cited by GM do not fully support GM's contention. In all of these cited cases,
the offending party owned or had control over the destroyed evidence. See Smith v.
American Honda Motor Co., Inc., 846 F. Supp. 1217 (M.D. Pa. 1994) (plaintiff was
owner of destroyed evidence); Anderson v. Litzenberg, 694 A.2d 150 (Md. Ct. Spec. App.
1997) (defendant had control over destroyed evidence); Harrison v. Bill Cairns Pontiac,
549 A.2d 385 (Md. Ct. Spec. App. 1988) (plaintiffs were owners of destroyed evidence);
Fire Ins. Exch. v. Zenith Radio Corp., 747 P.2d 911 (Nev. 1987) (plaintiff subrogating
insurer had taken control of evidence before it was destroyed); Pia v. Perrotti, 718 A.2d321 (Pa. Super. 1998) (defendant had control over destroyed evidence).
One case cited by GM holds blameworthy a party having no control over
destroyed evidence, in addition to holding blameworthy the party who owned the destroyed
evidence. The federal district court in Powe v. Wagner Electric Sales Corp., 589 F. Supp.
657 (S.D. Miss. 1984), granted summary judgment to the defendant on the basis of
spoliation of evidence. In Powe, the owner of a vehicle and a passenger were injured after
the vehicle's brakes failed. The owner and passenger jointly sued the manufacturer of the
braking system's master cylinder, based upon the cylinder's alleged defect. The defendant
moved for summary judgment against both plaintiffs asserting that the owner of the car
destroyed the master cylinder, thereby preventing the defendant from making an
examination of the evidence. The district court granted summary judgment, in part,
because of the spoliation of evidence reasoning that summary judgment was appropriate
where the fact that the evidence is missing is the fault of the Plaintiff and not due to the
destruction of the product in the collision or where the product is rendered unavailable by
circumstances beyond the Plaintiff's control. Powe, 589 F. Supp. at 661.
For the following reasons, we decline to adopt the rationale expressed by the
Powe court. Powe is not a well-reasoned opinion and is facially inconsistent. Insofar as
Powe granted summary judgment against the owner of the vehicle because the owner had
control over the master cylinder, its reasoning is sound. However, Powe provides no
rational explanation as to why the passenger was also penalized for the destruction of the
evidence. Powe provides no information as to any relationship between the parties;
ownership of the vehicle, be it joint or otherwise; or possible collusion in causing the
destruction of the evidence. Yet, Powe expressly recognized that such a sanction, i.e.,
summary judgment for the defendant, would not be appropriate where the evidence is
rendered unavailable by circumstances beyond the Plaintiff's control. Powe, 589
F. Supp. at 661. In fact, nothing in the opinion indicates that the passenger had the ability
to preserve the master cylinder. Therein lies the inconsistency in the opinion. As such,
Powe has no persuasive value to our resolution of the spoliation issue.
As a general matter, trial courts do not arbitrarily give adverse inference
instructions or impose other sanctions on a party as a result of spoliation of evidence. In
fact, trial courts have developed bright-line tests when making such a decision. Two
widely used and competing tests have been developed to guide trial courts in deciding
whether to give an adverse inference instruction or impose other sanctions for the
spoliation of evidence. Under one test,See footnote 6
adopted by the Third Circuit Court of Appeals in
Schmid v. Milwaukee Electric Tool Corp., 13 F.3d 76 (3d Cir. 1994), a trial court must
perform the following analysis in making a determination of whether to give an adverse
inference instruction or impose other sanctions on a party because of spoliation of
evidence: (1) determine the degree of fault of the party who altered or destroyed the
evidence; (2) determine the degree of prejudice suffered by the opposing party; and (3)
determine the availability of a lesser sanction that will protect the opposing party's rights
and deter future similar conduct. 13 F.3d at 79. Accord Moyers v. Ford Motor Co., 941
F. Supp. 883, 885 (E.D. Mo. 1996); Shaffer v. RWP Group, Inc., 169 F.R.D. 19, 25
(E.D.N.Y. 1996); Baliotis v. McNeil, 870 F. Supp. 1285, 1289 (M.D. Pa. 1994);
Anderson v. National R.R. Passenger Corp., 866 F. Supp. 937, 945-46 (E.D. Va. 1994);
Schroeder v. Pennsylvania, Dep't. of Transp., 710 A.2d 23, 26-27 (Pa. 1998).
Other courts rely upon a five-factor test to determine whether a party should
have an adverse inference instruction or other sanction imposed because of the spoliation
of evidence. Under this test, courts must determine: (1) prejudice to the defendant, (2)
whether the prejudice can be cured, (3) the practical importance of the evidence, (4)
whether the plaintiff was acting in good faith or in bad faith, and (5) the potential for abuse
in not sanctioning the plaintiff. See Mayes v. Black & Decker, Inc., 931 F. Supp. 80, 83
(D.N.H. 1996); Northern Assurance Co. v. Ware, 145 F.R.D. 281, 282-83 (D. Me.
1993); Headley v. Chrysler Motor Corp., 141 F.R.D. 362, 365 (D. Mass. 1991); Lewis
v. Darce Towing Co., Inc., 94 F.R.D. 262, 266-67 (W.D. La. 1982); Chicago Hardware
& Fixture Co. v. Letterman, 510 S.E.2d 875, 877 (Ga. Ct. App. 1999); Farrell v. Connetti
Trailer Sales, Inc., 727 A.2d 183, 187 (R.I. 1999).
Based upon our review of decisions from other jurisdictions and decisions
by this Court, we adopt the following spoliation of evidence test. We hold that before a
trial court may give an adverse inference jury instruction or impose other sanctions against
a party for spoliation of evidence, the following factors must be considered: (1) the party's
degree of control, ownership, possession or authority over the destroyed evidence; (2) the
amount of prejudice suffered by the opposing party as a result of the missing or destroyed
evidence and whether such prejudice was substantial; (3) the reasonableness of anticipating
that the evidence would be needed for litigation; and (4) if the party controlled, owned,
possessed or had authority over the evidence, the party's degree of fault in causing the
destruction of the evidence.See footnote 7
The party requesting the adverse inference jury instruction
based upon spoliation of evidence has the burden of proof on each element of the four-
factor spoliation test. If, however, the trial court finds that the party charged with
spoliation of evidence did not control, own, possess, or have authority over the destroyed
evidence, the requisite analysis ends, and no adverse inference instruction may be given
or other sanction imposed.
In the instant proceeding, the evidence supports Tracy's contention that she did not control, own, possess or have authority over the destroyed evidence. Therefore, we conclude that it was an abuse of discretion for the trial court to give an adverse inference instruction.
2. Use of the Words Warnings and Instructions in Jury Instructions. Tracy next argues that the trial court erred by giving GM's Instruction Numbers 25See footnote 8 8 and 26.See footnote 9 9 Tracy contends that these two instructions erroneously used the words instruction and warning interchangeably, despite this Court's earlier ruling that such words are separate, distinct, and not interchangeable. Tracey cites our decision in Ilosky v. Michelin,
172 W. Va. 435, 307 S.E.2d 603 (1983), to support her position. There is no merit to this
argument. We said clearly in Ilosky that 'a defective product may fall into three broad,
and not mutually exclusive, categories: design defectiveness; structural defectiveness; and
use defectiveness arising out of the lack of, or the adequacy of, warnings, instructions, and
labels.' 172 W. Va. at 441, 307 S.E.2d at 609 (quoting Morningstar v. Black & Decker
Mfg. Co., 162 W. Va. 857, 888, 253 S.E.2d 666, 682 (1979)) (emphasis in original). No
distinction was made in either Ilosky or Morningstar regarding the meaning to be attached
to the words warnings and instructions. Tracy has articulated no rationale for how
the use of the two words misled or confused the jury when the two words were used
Tracy also contends that Instructions Numbers 25 and 26 improperly placed
the burden upon her to demonstrate that a warning existed.See footnote 10
We do not read the
instructions as imposing any such burden. In fact, the instructions are consistent with our
decisions in Ilosky, 172 W. Va. at 441, 307 S.E.2d at 609, and Morningstar, 162 W. Va.
at 888, 253 S.E.2d at 682. Accord Johnson by Johnson v. General Motors Corp., 190
W. Va. 236, 244-45, 438 S.E.2d 28, 36-37 (1993). Both instructions reflected, among
other things, Tracy's proffered expert evidence which illustrated certain types of warning
devices which could have but were not used by GM. To the extent Tracy proffered such
evidence, it was incumbent upon her to prove that her specifically named warning devices
would have prevented Douglas's death. This burden was properly placed on Tracy. The
instructions which were given did not place a burden upon Tracy to demonstrate that a
warning existed. Therefore, the trial court committed no error by giving GM's Instruction
Numbers 25 and 26.
3. Apportioning Death under the Crashworthiness Theory. Tracy also
contends that it was error for the trial court to give GM's Instruction Number 31.See footnote 11
Specifically, Tracy contends that the phrasing of this instruction incorrectly states the
applicable law; invites the jury to speculate regarding the injuries which could have killed
Douglas; and places upon the jury the burden of apportioning such injuries even though
the injury in this case, death, is indivisible. Citing Mitchell v. Volkswagenwerk, AG, 669
F.2d 1199 (8th Cir. 1982); Fox v. Ford Motor Co., 575 F.2d 774 (10th Cir. 1978). In
contrast, GM argues that Tracy is precluded from asserting this error because she did not
raise it before the trial court. Alternatively, GM states that this Court has expressly
indicated that the jury should be the one to determine whether or not the damages can be
apportioned. Johnson by Johnson v. General Motors Corp., 190 W. Va. 236, 243 n.4,
438 S.E.2d 28, 35 n.4 (1993).
Before reaching the merits of the parties' contentions, it is necessary to
review the applicable law. Typically, this Court refuses to consider instructional error on
appeal unless an objection was made at trial.
As a general rule, no party may assign as error the giving of an instruction unless he objects thereto before the arguments to the jury are begun, stating distinctly as to the instruction the matter to which he objects and the grounds of his objection; and ordinarily only grounds thus assigned in the trial court will be considered on appeal of the case to this Court.
Syl. pt. 6, State v. Davis, 153 W. Va. 742, 172 S.E.2d 569 (1970). Accord W. Va. R. Civ. P. 51 (same); Syl. pt. 1, Roberts v. Powell, 157 W. Va. 199, 207 S.E.2d 123 (1973) (A party may only assign error to the giving of instructions if he objects thereto before arguments to the jury are begun stating distinctly the matter to which he objects and the grounds of his objection.).
Once it is apparent that a party challenging an instruction has properly
preserved the error for appellate review, we evaluate the trial court's exercise of its
discretion and the language of the instruction, itself.
A trial court . . . has broad discretion in formulating its charge to the jury, as long as the charge accurately reflects the law. Deference is given to a trial court's discretion concerning the specific wording of the instruction, and the precise extent and character of any specific instruction will be reviewed only for an abuse of discretion.
Syl. pt. 4, in part, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995). When, however, a particular instruction misstates or mischaracterizes the applicable law, a trial court abuses its discretion by so instructing the jury: '[i]t is reversible error to give an instruction which is misleading and misstates the law applicable to the facts.' Syllabus point 4, State v. Travis, 139 W. Va. 363, 81 S.E.2d 678 (1954). Syl. pt. 5, State v. Wyatt, 198 W. Va. 530, 482 S.E.2d 147 (1996). Stated otherwise, a jury instruction is erroneous if it has a reasonable potential to mislead the jury as to the correct legal principle or does not adequately inform the jury on the law. An erroneous instruction requires a new trial unless the error is harmless. State v. Miller, 197 W. Va. 588, 607, 476 S.E.2d 535, 554 (1996) (citation omitted). See also Syl. pt. 5, Wheeler v. Murphy, 192 W. Va. 325, 452 S.E.2d 416 (1994) ('An erroneous instruction is presumed to be prejudicial and warrants a new trial unless it appears that the complaining party was not prejudiced by such instruction. [Citations omitted.]' Syllabus Point 6, Ratlief v. Yokum, 167 W. Va. 779, 280 S.E.2d 584 (1981).).
At the heart of these alleged errors is the doctrine of crashworthiness and the
application of this law to the facts of the instant appeal. Simply stated,
[a] crashworthiness case is a case in which there are two collisions.
In the first phase of the accident, the plaintiff's automobile collides with another automobile or with a stationary object. Most of the property damage results from the first collision, but the occupants of the vehicle usually sustain little or no injury at this stage. Personal injuries occur most frequently in the second collision, in which the occupants are thrown against or collide with some part of their automobile. Courts will hold the manufacturer liable for the plaintiff's loss in the second collision only if defective design of the automobile caused or exacerbated the plaintiff's injury.
Johnson, 190 W. Va. at 240, 438 S.E.2d at 32 (quoting R.E.Y., Note, Apportionment of
Damages in the Second Collision Case, 63 Va. L. Rev. 475, 476 (1977) (footnote
omitted)). Thus, under the crashworthiness doctrine,
[a]ny design defect not causing the accident would not subject the manufacturer to liability for the entire damage, but the manufacturer should be liable for that portion of the damage or injury caused by the defective design over and above the damage or injury that probably would have occurred as a result of the impact or collision absent the defective design.
Larsen v. General Motors Corp., 391 F.2d 495, 503 (8th Cir. 1968). See also Bass v. General Motors Corp., 150 F.3d 842, 846 (8th Cir. 1998) (describing crashworthiness as the legal concept which imposes liability based on the construction or design of a product which causes enhanced or greater injuries in the course of or following an initial accident or collision brought about by some independent cause (internal quotations and citations omitted)).
In the practical application of the doctrine of crashworthiness to particular factual scenarios, courts have developed two standards for determining which party, the injured plaintiff or the defendant manufacturer, bears the burden of proving the existence of a defective design and to which collision the plaintiff's injuries are attributable. The first of these approaches, derived from Huddell v. Levin, 537 F.2d 726 (3d Cir. 1976), places a heavy burden of proof on the plaintiff:
First, in establishing that the design in question was
defective, the plaintiff must offer proof of an alternative, safer
design, practicable under the circumstances. . . . Second, the
plaintiff must offer proof of what injuries, if any, would have
resulted had the alternative safer design been used. . . . Third,
as a corollary to the second aspect of proof, the plaintiff must
offer some method of establishing the extent of enhanced
injuries attributable to the defective design. . . .[See footnote 12
Blankenship v. General Motors Corp., 185 W. Va. 350, 354, 406 S.E.2d 781, 785 (1991) (quoting Huddell, 537 F.2d at 737-38) (footnote added). See also Johnson, 190 W. Va. at 241, 438 S.E.2d at 33 (explaining Huddell as holding that the plaintiff not only has the burden of proving the defect and the enhanced injury, but the plaintiff must also prove the extent of the injury caused by the defect (footnote omitted)).See footnote 13 13
Contrariwise, the second approach, adopted by the courts in Fox v. Ford Motor Co., 575 F.2d 774 (10th Cir. 1978), and Mitchell v. Volkswagenwerk, AG, 669 F.2d 1199 (8th Cir. 1982), significantly lessens the plaintiff's burden of proof, distributing it more between both the injured plaintiff and the defendant manufacturer:
The more liberal rule announced in Fox (and cases that follow Fox) is that the plaintiff need show only a defect that was a factor in causing some aspect of the plaintiff's harm. Once the plaintiff has made this prima facie showing, the manufacturer can then limit its liability if it can show that the plaintiff's injuries are capable of apportionment between the first and second collisions. Therefore, under this more liberal standard, the burden is upon the manufacturer to make the allocation.
Blankenship, 185 W. Va. at 355, 406 S.E.2d at 786 (footnote omitted). See also Johnson, 190 W. Va. at 240-41, 438 S.E.2d at 32-33 (describing Mitchell as holding that the plaintiff has the burden of proving that there is a defect and that the defect enhanced the injuries. Once the plaintiff meets that burden the burden shifts to the defendants to apportion the damages.).See footnote 14 14
Weighing these competing theories, this Court, in Blankenship v. General Motors Corp., 185 W. Va. 350, 406 S.E.2d 781 (1991), adopted the less stringent standard embraced by the Fox/Mitchell line of cases:
In West Virginia, to recover on a theory of crashworthiness against the manufacturer of a motor vehicle, it is necessary only to show that a defect in the vehicle's design was a factor in causing some aspect of the plaintiff's harm. Once the plaintiff has made this prima facie showing, the manufacturer can then limit its liability if it can show that the plaintiff's injuries are capable of apportionment between the first and second collisions; therefore, the burden is upon the manufacturer to make the allocation.
Syl. pt. 2, 185 W. Va. 350, 406 S.E.2d 781. See also Johnson, 190 W. Va. at 241, 438 S.E.2d at 33 (recognizing this Court's allegiance to the Mitchell line of cases).
Having reviewed the law of crashworthiness and the standard previously
adopted by this Court, we turn now to assess the merits of the parties' arguments in the
present controversy. We note at the outset that counsel for Tracy specifically objected to
the trial court's decision to instruct the jury in accordance with GM's Instruction Number
31, and that he challenged the use of the article the in the phrase the plaintiff must
establish that an alleged defect was the proximate cause of Douglas Tracy's death.
(Emphasis added).See footnote 15
Comparing this language with the law of crashworthiness announced
in Syllabus point 2 of Blankenship, we are left with the firm conviction that the trial
court's instruction misstates the applicable law. In Blankenship we emphasized that it is
necessary only to show that a defect in the vehicle's design was a factor in causing some
aspect of the plaintiff's harm. Syl. pt. 2, in part, 185 W. Va. 350, 406 S.E.2d 781.
Employment of the definite article the in the jury instruction creates the
distinct impression that Tracy has to establish that the alleged defect was the one
particular, only, or sole proximate cause of Douglas's death. See, e.g., United States v.
Hudson, 65 F. 68, 71 (W.D. Ark. 1894) ('The' is the word used before nouns, with a
specifying or particularizing effect . . . .), mandamus granted sub nom. Hudson v.
Parker, 156 U.S. 277, 15 S. Ct. 450, 39 L. Ed. 424 (1895); Brooks v. Zabka, 168 Colo.
265, 269, 450 P.2d 653, 655 (1969) (It is a rule of law well-established that the definite
article 'the' particularizes the subject which it precedes. It is a word of limitation . . . .
(citation omitted)); Hoffman v. Franklin Motor Car Co., 32 Ga. App. 229, 237, 122 S.E.
896, 900 (1924) (The word 'the' is a definitive, and is commonly used before nouns
which are specific or understood.); Missouri v. Campbell, 210 Mo. 202, 224, 109 S.W.
706, 712 (1908) ([T]he article 'the' directs what particular thing or things we are to take
or assume as spoken of. It determines what particular thing is meant; that is, what
particular thing we are to assume to be meant. . . . (internal quotations and citation
omitted)), overruled on other grounds by Missouri v. Adkins, 284 Mo. 680, 225 S.W. 981
(1920); Lower Manhattan Loft Tenants v. New York City Loft Bd., 66 N.Y.2d 298, 304,
496 N.Y.S.2d 979, 982, 487 N.E.2d 889, 892 (1985) ('The' . . . 'refers to someone or
something that is unique . . . or exists as only one at a time.' (quoting Webster's Third
New International Dictionary 2368 (unabridged 1970))).
On the other hand, this Court's use of the indefinite article a in the Blankenship crashworthiness standard permits a plaintiff to recover so long as he or she demonstrates that the defective design was but a factor in causing . . . the plaintiff's
harm, Syl. pt. 2, in part, 185 W. Va. 350, 406 S.E.2d 781, thereby suggesting that the
plaintiff's injuries may have resulted from many possible elements, of which the defective
design is but one possible consideration. See Deutsch v. Mortgage Sec. Co., 96 W. Va.
676, 681, 123 S.E. 793, 795 (1924) (The indefinite article 'a' may some times mean one,
where only one is intended, or it may mean one of a number, depending upon the
context. (citation omitted)). See also Hudson, 65 F. at 71 (noting the indefinite or
generalizing force of 'a'); Arkansas v. Martin, 60 Ark. 343, 349, 30 S.W. 421, 422
(1895) ([T]he adjective 'a' . . . [is] commonly called the 'indefinite article,' and so
called, too, because it does not define any particular person or thing . . . .); California
v. One 1940 Buick Sedan, 71 Cal. App. 2d 160, 164, 162 P.2d 318, 320 (Dist. Ct. App.
1945) (construing a to be synonymous with the word any, which may mean . . . 'one
out of many' (citations omitted)); Stephan v. Pennsylvania Gen. Ins. Co., 224 Conn. 758,
764, 621 A.2d 258, 261 (1993) (recognizing that the indefinite article 'a' . . . refer[s]
to unlimited objects (citation omitted)). But see Harward v. Virginia, 229 Va. 363, 366,
330 S.E.2d 89, 91 (1985) ('Any' and 'a' are not synonymous. 'Any' includes 'all' and
'a' is limited to 'one.' (citation omitted)).
Because there exists in the subject instruction a reasonable potential that
the jury was misled as to the correct legal principle to be applied during their
deliberations, due to the substitution of the word the where the term a was required,
we find that reversal on this ground is warranted. See State v. Miller, 197 W. Va. at 607,
476 S.E.2d at 554.
In addition to challenging the specific wording of GM's Instruction Number
31, Tracy also asserts that the instruction incorrectly directs the jury to apportion the
indivisible injury at issue in this case, i.e., death. We previously considered the issue of
indivisible injuries and the jury's apportionment thereof in Johnson stating, in dicta, that
a crashworthiness case is a unique case. Because of its uniqueness, absent special
circumstances, the jury should be the one to determine whether or not the damages can be
apportioned. Johnson, 190 W. Va. at 243 n.4, 438 S.E.2d at 35 n.4 (emphasis added).
Despite our earlier refusal to adopt the crashworthiness jurisprudence recognizing that the
appropriateness of apportionment is a question of law, see Mitchell, 669 F.2d at 1208, and
establish[ing] a bright line rule that death . . . [is] incapable of apportionment in
crashworthiness cases, Johnson, 190 W. Va. at 243 n.4, 438 S.E.2d at 35 n.4 (citations
omitted), we find the current controversy to constitute the special circumstances alluded
to in Johnson.
Unlike the serious, though ultimately nonfatal, injuries sustained by the
plaintiffs in Johnson,See footnote 16
the injury at issue in this case is, by its very nature, indivisible and
incapable of apportionment.See footnote 17
'Certain results, by their very nature, are obviously
incapable of any logical, reasonable or practical division. Death is such a result . . . .'
Mitchell, 669 F.2d at 1203 n.2 (quoting William L. Prosser, Handbook of the Law of Torts
§ 52, at 315 (4th ed. 1971) (footnote omitted)). See also Fox, 575 F.2d at 787 (noting that
death is not a divisible injury in which apportionment is either appropriate or possible
(citations omitted)). Given that the indivisible injury of death does not lend itself to
apportionment, courts deciding crashworthiness cases involving indivisible injuries have
based liability for the resultant damages upon common law principles of concurrent
Concurrent, as distinguished from joint [sic] negligence, [sic] arises where the injury is proximately caused by the concurrent wrongful acts or omissions of two or more persons acting independently. That the negligence of another person than the defendant contributes, concurs or co-operates to produce the injury is of no consequence. Both are ordinarily liable. And unless the damage caused by each is clearly separable, permitting the distinct assignment of responsibility to each, each is liable for the entire damage. The degree of culpability is immaterial.
Mitchell, 669 F.2d at 1206 n.6 (quoting 1 T. Shearmon & A. Redfield, The Law of Negligence § 122, at 317-18 (6th ed. 1913) (emphasis added)) (additional citations omitted). See also Bass, 150 F.3d at 850 (treating defendant manufacturer as a concurrent tortfeasor jointly and severally liable for [the plaintiff's indivisible] total injuries (citations omitted)); Restatement (Second) of Torts § 433B(2) (1965) (Where the tortious conduct of two or more actors has combined to bring about harm to the plaintiff, and one or more of the actors seeks to limit his liability on the ground that the harm is capable of apportionment among them, the burden of proof as to the apportionment is upon each such actor.).See footnote 18 18
When applied specifically to the law of crashworthiness, concurrent negligence concepts place 'the burden of establishing that the injuries in a multiple- accident situation are capable of apportionment . . . upon the defendants.' Mitchell, 669 F.2d at 1208 (quoting Mathews v. Mills, 288 Minn. 16, 23, 178 N.W.2d 841, 845 (1970)) (additional citation omitted). Thus, [i]f the manufacturer's negligence is found to be a substantial factor in causing an indivisible injury such as . . . death, . . . then absent a reasonable basis to determine which wrongdoer actually caused the harm, the defendants should be treated as joint and several tortfeasors. Mitchell, 669 F.2d at 1206 (citation omitted). With due recognition for our prior acceptance of concurrent negligence concepts and our adoption of the crashworthiness doctrine, we take our jurisprudence in this field one step farther by today holding that a defendant manufacturer seeking to apportion liability for the indivisible injury of death in a wrongful death crashworthiness cause of action must prove, by a preponderance of the evidence, that the defective product was not a factor in causing the decedent's death. Absent such a showing, the defendant manufacturer is jointly and severally liable for all of the harm.See footnote 19 19
Lastly, and with specific appreciation of the complexity of liability issues attending indivisible fatal injuries in crashworthiness cases, we recognize that '[w]hether or not the harm to the plaintiff is capable of apportionment among two or more causes is a question of law.' Mitchell, 669 F.2d at 1208 (quoting Mills, 288 Minn. at 23, 178 N.W.2d at 845) (emphasis omitted) (additional citation omitted). Accord Restatement (Second) of Torts § 434(1)(b) (1965). As a question of law, the issue of apportionment is a matter for the trial judge to decide, not the jury. Determinations involving questions of law are within the sole province of the court, while determinations of fact are within the province of the jury. Thus, the court must resolve questions of law and cannot delegate that responsibility to the jury. Syl. pt. 4, in part, Harrison v. Town of Eleanor, 191 W. Va. 611, 447 S.E.2d 546 (1994). Therefore, '[o]nce the trial court determines that the harm is capable of apportionment, the question of actual apportionment of damages among several causes becomes one of fact to be determined by the jury.' Mitchell, 669 F.2d at 1208-09 (quoting Mills, 288 Minn. at 23, 178 N.W.2d at 845 (citation omitted)) (additional citation omitted).
Accordingly, we hold that in a wrongful death crashworthiness cause of
action, the jury is charged with determining whether the vehicle's design was defective.
The ultimate issue of whether the resultant death can be apportioned among the multiple
collisions is a question of law to be decided by the trial judge. If the trial judge concludes
that the fatal injury can be apportioned, the jury then may determine the apportionment of
the defendants' liability and the consequent damages for which they are responsible.See footnote 20
Having found that the circuit court erroneously instructed the jury regarding
the law of crashworthiness, we reverse this case and remand it to the circuit court for
further proceedings consistent with this opinion.See footnote 21
Before evidence may be admitted under
W. Va. R. Evid. 803(6), the proponent must
demonstrate that such evidence is (1) a
memorandum, report, record, or data
compilation, in any form; (2) concerning acts,
events, conditions, opinions or diagnoses; (3)
made at or near the time of the matters set forth;
(4) by, or from information transmitted by, a
person with knowledge of those matters; (5) that
the record was kept in the course of a regularly
conducted activity; and (6) that it was made by
the regularly conducted activity as a regular
Id. Finally, in Syllabus point 12 of Lacy, we said that [a] record of a regularly conducted activity that otherwise meets the foundational requirements of W. Va. R. Evid. 803(6) is presumptively trustworthy, and the burden to prove that the proffered evidence was generated under untrustworthy circumstances rests upon the party opposing its admission. Id.
The evidence establishes that the Mertz memorandum falls squarely under Rule 803(6), as a record of a regularly conducted business activity. The Mertz memorandum should not have been excluded on the grounds that the preparer had to be present at trial.See footnote 23 23
In determining who is an expert, a circuit
court should conduct a two-step inquiry. First,
a circuit court must determine whether the
proposed expert (a) meets the minimal
educational or experiential qualifications (b) in a
field that is relevant to the subject under
investigation (c) which will assist the trier of
fact. Second, a circuit court must determine that
the expert's area of expertise covers the
particular opinion as to which the expert seeks to
Gentry also noted that [n]either a degree nor a title is essential, and a person with knowledge or skill borne of practical experience may qualify as an expert, although the circuit court may exclude testimony if the experience is too far removed from the subject of the proposed testimony. Gentry, 195 W. Va. at 525 n.18, 466 S.E.2d at 184 n.18.
The record is unclear as to whether the trial court precluded Mr. Wilson's
testimony, in part, because he was not a medical doctor. To the extent that such a
professional title formed part of the trial court's basis for excluding this testimony, it was
erroneous under Gentry. As a nonmedical coroner for Clay County, Mr. Wilson's
employment required that he make an official determination regarding the cause of death.
To the extent that the trial court excluded Mr. Wilson's testimony because an autopsy was
not performed on Douglas's body, this too was error. Mr. Wilson also is an undertaker
and operates a mortuary. This Court held long ago that [t]he testimony of an undertaker,
who prepared the body of deceased for burial, describing the condition of his body, caused
by its violent contact with the bridge, is admissible to prove the cause of death. Syl. pt.
11, State v. Weisengoff, 85 W. Va. 271, 101 S.E. 450 (1919). See also Syl. pt. 3, West
Virginia Div. of Highways v. Butler, ___ W. Va. ___, ___ S.E.2d ___ (No. 25791 June
15, 1999) (Under the permissive standard for the admission of expert testimony set forth
in Rule 702 of the West Virginia Rules of Evidence, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may testify to the value of real
property in an eminent domain proceeding if the proffered testimony will assist the trier
of fact to understand the evidence or to determine a fact in issue.).
In the final analysis, precluding Mr. Wilson's testimony as an expert
regarding Douglas's death was harmless error. GM correctly asserts that Mr. Wilson did,
in fact, make a nonresponsive statement to the jury wherein he stated that Douglas died as
a result of the seat belt breaking his neck.
Tracy's last assignment of error involves the trial court's refusal to allow Mr.
Wilson to testify on rebuttal that Douglas's internal injuries were not severe enough to
cause death. This Court indicated in Syllabus point 4, in part, of Adams v. Sparacio, 156
W. Va. 678, 196 S.E.2d 647 (1973), that the issue of rebuttal testimony is addressed to
the sound discretion of the trial court and the exercise of such discretion is not subject to
review by an appellate court unless there has been an abuse thereof. See Michael v.
Sabado, 192 W. Va. 585, 595, 453 S.E.2d 419, 429 (1994) (Under the plain language
of Rule 611(a) [of the West Virginia Rules of Evidence] and our prior decisions, a trial
court has discretion in allowing rebuttal testimony after a party rests its case. (citing State
v. Oldaker, 172 W. Va. 258, 304 S.E.2d 843 (1983))). The record in the instant case
shows that testimony was proffered by GM's expert suggesting the types of internal
injuries a person might suffer in such a collision. Because the trial court permitted the
testimony, it was proper for Tracy to offer the rebuttal testimony of Mr. Wilson about the
types of internal injuries Douglas actually sustained. Therefore, we find that it was an
abuse of discretion by the trial court to preclude rebuttal testimony by Mr. Wilson.
Failure to warn refers to the allegation that a product
is defective because it does not contain adequate warnings or
instructions. In order to determine whether the 1988
Chevrolet Celebrity was defective due to a lack of adequate
instructions, or warning, you must determine whether a
reasonably prudent manufacturer would have utilized
instructions or warnings in the 1988 Chevrolet Celebrity
regarding the occupant restraint system different from the
warning or instruction used by GM.
In order to find GM liable under plaintiff's failure to warn theory, plaintiff must prove by a preponderance of the evidence that:
(1) in 1988, GM knew or should have known that by reason of the alleged defect (excessive slack) in the occupant restraint system, the Celebrity was not reasonably safe absent the warning suggested by plaintiff;
(2) the warning in the manner suggested by plaintiff and the method suggested by plaintiff was feasible at the time of manufacture; and
crash even if the defect alleged by plaintiff had not been present at the time of the crash, your verdict still must be in favor of GM.
(1990) (mem. decision).
Corp. v. Edwards, 482 So. 2d 1176 (Ala. 1985), overruling recognized by Brooks v. Colonial Chevrolet-Buick, Inc., 579 So. 2d 1328 (Ala. 1991); Czarnecki v. Volkswagen of America, 172 Ariz. 408, 837 P.2d 1143 (Ct. App. 1991); Doupnik v. General Motors Corp., 225 Cal. App. 3d 849, 275 Cal. Rptr. 715 (1990); Fouche v. Chrysler Motors Corp., 107 Idaho 701, 692 P.2d 345 (1984); Buehler v. Whalen, 70 Ill. 2d 51, 15 Ill. Dec. 852, 374 N.E.2d 460 (1978); Valk Mfg. Co. v. Rangaswamy, 74 Md. App. 304, 537 A.2d 622 (Ct. Spec. App.), cert. granted sub nom. Montgomery County v. Valk Mfg. Co., 313 Md. 9, 542 A.2d 845 (1988) (table decision), rev'd, 317 Md. 185, 562 A.2d 1246 (1989); McDowell v. Kawasaki Motors Corp. USA, 799 S.W.2d 854 (Mo. Ct. App. 1990); Lee v. Volkswagen of America, Inc., 688 P.2d 1283 (Okla. 1984) (per curiam); May v. Portland Jeep, Inc., 265 Or. 307, 509 P.2d 24 (1973); Engberg v. Ford Motor Co., 87 S.D. 196, 205 N.W.2d 104 (1973); Sumnicht v. Toyota Motor Sales, U.S.A., Inc., 121 Wis. 2d 338, 360 N.W.2d 2 (1984); Chrysler Corp. v. Todorovich, 580 P.2d 1123 (Wyo. 1978).
sustained if the negligence of two or more parties concurred in time and place and the negligence of each proximately contributed to the resulting harm. Then recovery may be had against all the parties whose negligence proximately contributed to the injury. (citation omitted)).
involving fatal injuries. See supra note 16 (describing nonfatal injuries sustained by plaintiffs in Johnson). See also Syl. pt. 2, Johnson, 190 W. Va. 236, 438 S.E.2d 28 (limiting treatment of crashworthiness doctrine to discussion of effect of jury's apportionment of damages upon prior settlements).
If Mertz is not going to be here to testify, you can't come in
and talk about Mertz.
. . . .
I'm not going to permit Mr. King [counsel for Tracy] to put Mertz' memorandum in[to evidence], because you were talking about what Mertz' opinion was, and if Mertz had an opinion, he could come down here and tell us what it is.
Because it is apparent from the record that the trial court ultimately based its exclusion of the Mertz memorandum on Mr. Mertz's failure to testify, we accordingly limit our
determination of this assignment to this ruling.
The following are not excluded by the hearsay rule, even though the declarant is available as a witness: