Michael S. Santa Barbara, Esq.
Gina M. Groh, Esq.
Ollar & Santa Barbara Charles Town, West Virginia
Martinsburg, West Virginia Attorney for Food Lion, Inc.
B. Craig Manford, Esq.
Martinsburg, West Virginia
Attorneys for Shroades
The Opinion of the Court was delivered PER CURIAM.
JUDGE GARY L. JOHNSON, sitting by temporary assignment.
JUSTICE McGRAW dissents and reserves the right to file a dissenting Opinion.
JUSTICE SCOTT did not participate.
This case is before this Court upon appeal of a final order of the Circuit
Court of Berkeley County entered on June 26, 1998. In that order, Jerimi M. Shroades,
the appellee and plaintiff below, was awarded $106,159.82 pursuant to a jury verdictSee footnote 1
a negligence action filed against Food Lion, the appellant and defendant below, alleging
that he was injured when he was struck by a shopping cart. In this appeal, Food Lion
raises several assignments of error and asks that it be granted judgment as a matter of law
or in the alternative, that it be granted a new trial. After reviewing the record, we find
that the circuit court erred by not granting Food Lion's motion for continuance, and thus,
reverse the final order and remand this case for further proceedings.
On December 10, 1996, the plaintiff filed a complaint against Food Lion
alleging that he was injured on or about February 25, 1996, when he was hit in the back
by an unattended shopping cart while placing groceries in his vehicle in the Food Lion
parking lot in Inwood, West Virginia. Specifically, the plaintiff alleged that the shopping
cart had drifted away from one of the steel rail stalls or cart corrals located in the parking
lot for patrons to return their shopping carts after leaving the store. The plaintiff further
alleged that Food Lion had negligently constructed the shopping cart stall on a slight grade
in the parking lot and had failed to put a barrier across the stall to insure that the shopping
carts would remain inside. The plaintiff maintained that as a result of Food Lion's
negligence, he had to undergo surgery to repair a herniated lumbar disc and had suffered
a permanent injury.
The case proceeded to trial on May 13, 1998, and the jury returned a verdict
in favor of the plaintiff in the amount of $107,000. The verdict included an award of
$27,000 for past medical expenses; $10,000 for future medical expenses; $5,000 for past
lost wages and benefits; $15,000 for past pain and suffering; and $50,000 for disability
and/or permanent injury. Following the trial, the circuit court, upon motion by Food
Lion, granted a remittitur of $840.18 for past medical expenses because the jury's award
was in excess of the amount of past medical expenses proven at trial. Food Lion's other
post trial motions were denied, and this appeal followed.
This Court has long since held that the decision to grant a continuance is
within the sound discretion of the trial court. In Syllabus Point 1 of Levy v. Scottish Union
& Nat'l Ins. Co., 58 W.Va. 546, 52 S.E. 449 (1905), this Court stated that: It is well
settled as a general rule that the question of continuance is in the sound discretion of the
trial court, which will not be reviewed by the appellate court, except in case it clearly
appears that such discretion has been abused. More recently, this principle was restated
in Syllabus Point 2 of State v. Bush, 163 W.Va. 168, 255 S.E.2d 539 (1979): A motion
for continuance is addressed to the sound discretion of the trial court, and its ruling will
not be disturbed on appeal unless there is a showing that there has been an abuse of
discretion. In Syllabus Point 3 of Bush, this Court explained that [w]hether there has
been an abuse of discretion in denying a continuance must be decided on a case-by-case
basis in light of the factual circumstances presented, particularly the reasons for the
continuance that were presented to the trial court at the time the request was denied.
Finally, in Syllabus Point 1 of McDougal v. McCammon, 193 W.Va. 229, 455 S.E.2d 788
(1995), this Court held:
The West Virginia Rules of Evidence and the West Virginia Rules of Civil Procedure allocate significant discretion to the trial court in making evidentiary and procedural rulings. Thus, rulings on the admissibility of evidence and the appropriateness of a particular sanction for discovery violations are committed to the discretion of the trial court. Absent a few exceptions, this Court will review evidentiary and procedural rulings of the circuit court under an abuse of discretion standard.
Despite Food Lion's extensive discovery requests in this case, Dr.
Liberman's report was not disclosed until April 29, 1998, less than two weeks prior to
trial. The report was dated December 1, 1997 and carbon-copied to plaintiff's counsel.
During oral arguments before this Court, plaintiff's counsel stated that notwithstanding the
fact that the report indicated it was sent to him on December 1, 1997, he did not receive
a copy of Dr. Liberman's report until April 27, 1998, at which time he promptly disclosed
it to Food Lion in his third supplemental response to the defendant's interrogatories and
request for production of documents. While we make no determination that plaintiff's
counsel acted improperly in this regard, we cannot ignore the fact that important and
highly relevant information was not disclosed to the defense until just a few days prior to
trial. In McDougal, we stated:
The fairness and integrity of the fact-finding process is of great concern to this Court; and, when a party fails to acknowledge the existence of evidence that is favorable or adverse to a requesting party, it impedes that process. Normally, when this type of violation impacts the outcome of the trial, this Court will require redress in the form of a new trial. As a general rule, wrongfully secreting relevant discovery materials makes it inequitable for the withholder to retain the benefit of a favorable verdict.
193 W.Va. at 238, 455 S.E.2d at 797.
Although the plaintiff in this case did supplement his discovery responses
with Dr. Liberman's report, the disclosure was made far outside the scheduling order and
just a few days prior to trial. More importantly, the report indicated that the plaintiff had
suffered another shopping cart injury in another parking lot the year before he was
allegedly injured in the Food Lion parking lot. Food Lion was clearly prejudiced by this
late disclosure as it was denied the opportunity to further develop the evidence regarding
this preexisting injury through additional discovery. It is difficult to imagine evidence
more probative as to liability than a prior injury caused by the same mechanism alleged
to have caused the injury in this case, i.e. a runaway shopping cart. In addition to the
obvious impact on the claimant's credibility, such evidence could have also completely
changed the expert medical testimony in this case with regard to causation. While the
plaintiff maintains that he did not suffer a prior injury at Walmart and that Dr. Liberman
merely made typographical errors in his report, it is obvious that additional discovery time
would have cleared up this confusion. Food Lion simply should have been given the
opportunity to conduct further discovery, and thus, the trial court abused its discretion by
failing to grant Food Lion's motion for a continuance. Consequently, we reverse the final
order on this issue.
As noted above, Food Lion has presented several other assignments of error.
In particular, Food Lion claims that the trial court erred in the admission of certain
evidence and in instructing the jury regarding liability. Food Lion also asserts that the
evidence did not support the jury's verdict. However, in light of our finding that the trial
court erred by not granting a continuance to allow further discovery, we need not address
these issues. Accordingly, for the reasons set forth above, the final order of the Circuit
Court of Berkeley County entered on June 26, 1998, is reversed, and this case is remanded
for further proceedings consistent with this opinion.
Reversed and Remanded.