John B. Garden
Bachmann, Hess, Bachmann & Garden
Wheeling, West Virginia
Counsel for Appellant
Jacob M. Robinson
Wheeling, West Virginia
Counsel for Appellees
This Opinion was delivered Per Curiam.
1. "'"Failure to make timely and proper objection to remarks
of counsel made in the presence of the jury, during the trial of a
case, constitutes a waiver of the right to raise the question
thereafter either in the trial court or in the appellate court."
Point 6, Syllabus, Yuncke v. Welker, 128 W. Va. 299 [36 S.E.2d 410
(1945)].' Syllabus point 7, State v. Cirullo, 142 W. Va. 56, 93
S.E.2d 526 (1956)." Syl. Pt. 5, State v. Davis, 180 W. Va. 357,
376 S.E.2d 563 (1988).
2. "The collateral source rule also ordinarily prohibits
inquiry as to whether the plaintiff has received payments from
collateral sources. This is based upon the theory that the jury
may well reduce the damages based on the amounts that the plaintiff
has been shown to have received from collateral sources." Syl. Pt.
8, Ratlief v. Yokum, 167 W. Va. 779, 280 S.E.2d 584 (1981).
3. "Records made routinely in the regular course of business,
at the time of the transaction or occurrence, or within a
reasonable time thereafter, are generally trustworthy and reliable,
and therefore ought to be admissible when properly verified." Syl.
Pt. 4, State v. Fairchild, 171 W. Va. 137, 298 S.E.2d 110 (1982).
This is an appeal by Terry C. Ackerman from a June 5, 1992,
order of the Circuit Court of Ohio County which set aside a defense
verdict in favor of the Appellant and granted the Appellees a new
trial. The Appellant contends that the lower court's decision to
grant a new trial was in error. We agree, and accordingly reverse
the decision of the circuit court and reinstate the original jury
This action was initiated by the Appellees, Daniel B., an
infant, suing by his next friend, Richard B., and Richard B. and
Jenny B., individually, subsequent to an accident which occurred on
November 4, 1984.See footnote 1 Daniel B., then nine years of age, and was
injured when he was struck by the side of the Appellant's vehicle
on Eoff Street in Wheeling, West Virginia. The Appellees' civil
action alleged that the Appellant had negligently operated her
motor vehicle and sought recovery for Daniel's personal injuries
and medical expenses. The Appellant denied negligence.
On March 30, 1990, subsequent to a four-day trial, the jury
returned a verdict in favor of the Appellant, finding that
negligence had not been proven by preponderance of the evidence.
The Appellees filed a motion for a new trial, and the verdict was
set aside on March 11, 1991, upon the following three grounds: (1)
prejudicial remarks made by the Appellant during a jury viewing of
the accident scene; (2) improper references to insurance made by
the Appellant during direct examination; and (3) improper admission
of Daniel B.'s hospital record containing prejudicial hearsay which
was unsupported by a witness. The Appellant contends that the
alleged errors did not deprive the Appellees of a fair trial and
that they did not form a legitimate basis for the granting of a new
During a jury view of the accident scene, the jurors were
permitted to stand on a porch where one of the Appellees' witnesses
claimed to have observed the accident. The Appellant allegedly
commented to her counsel's paralegal that it was impossible to see
the accident scene from that vantage point because trees and a van
would have blocked the witnesses' vision. Subsequent to the jury
view, counsel for the Appellees advised the court in chambers as
While we were at the view, I overheard
the defendant, Ms. Ackerman, comment to the
paralegal, Brenda Gittings, I believe her name
is, that works for Mr. Garden that it was
impossible to see the porch where Dottie
Jaeger was positioned at the time of the
collision or to see the boy from the porch
from Lane 22 because the trees and the van
blocked vision. It was within hearing of the
jurors. I can't say that any of the jurors
At this point in time I would, simply,
ask that Ms. Ackerman be instructed on proper
procedure, that she not make comments in front
of jurors, and I will, likewise, advise the
plaintiffs of that. I don't know how else to
Counsel for the Appellees neither sought a mistrial nor made any formal objection, and the issue was not raised again until the Appellees filed their post-trial motions.
Dottie Jaeger, the witness for the Appellees who allegedly
observed the collision from the porch, testified at trial regarding
her recollection of the accident and the position from which she
allegedly saw the accident. Mrs. Jaeger testified that she had
known the Appellees for approximately five years and had visited
their house on several occasions. She also explained that she had
not told the police that she had witnessed the accident when they
first arrived on the scene. Furthermore, she testified that she
had first met with the Appellees' counsel and discussed her
recollection of the accident on the Friday prior to trial.
We have consistently maintained that failure to make a timely
objection seriously impairs the right to subsequently raise the
objection. In syllabus point 5 of State v. Davis, 180 W. Va. 357,
376 S.E.2d 563 (1988), we explained:
"'Failure to make timely and proper
objection to remarks of counsel made in the
presence of the jury, during the trial of a
case, constitutes a waiver of the right to
raise the question thereafter either in the
trial court or in the appellate court.' Point
6, Syllabus, Yuncke v. Welker, 128 W. Va. 299
[36 S.E.2d 410 (1945)]." Syllabus point 7,
State v. Cirullo, 142 W. Va. 56, 93 S.E.2d 526
Despite the failure of the Appellees' counsel to object or seek a mistrial, the lower court determined that the Appellees were entitled to a new trial because of "the remarks made by Defendant [Appellant] at the view of the scene of the accident. These were highly prejudicial." However, the Appellees' counsel did not formally object to the comment during the jury view, and there was no evidence to indicate that any juror had actually heard the remark. Furthermore, the lower court specifically instructed the jury to consider only the evidence introduced at trial. Absent evidence that any juror actually heard the remark or was prejudiced by it in some fashion, we fail to discern any harm in the remark and conclude that the lower court erred by relying upon this remark as a basis for its decision to award a new trial.
The lower court also based its award of a new trial upon the
Appellant's alleged improper reference to insurance during her
direct examination. The Appellant, a registered nurse, was
questioned during her direct examination regarding admission
procedures in an emergency room. The testimony proceeded as
Q: Are you familiar and were you
familiar in 1984 with what the
protocol was about the taking of a
history of a patient who presented
themselves to the Emergency Room?
A: Well, I can only tell you from my
own, personal experience as far as
-- my son broke his arm when he was two years old.
They take them in, and if they're
immediately in danger, then they
will take care of the child first,
and then later on you have to go
through insurance people and give
them all of the insurance and
everything. You also have to give
them a brief summary of what
happened to the child.
This reference by the Appellant to insurance was the only mention of insurance in the presence of the jury at any time during the trial.
Subsequent to that comment and the request of Appellees'
counsel to approach the bench, the lower court ordered a conference
in chambers. Counsel for the Appellees made the following
The introduction into this case of insurance information, health insurance, or whatever type of insurance she was alluding to, I think prejudices the plaintiffs' case to a substantial degree. I would move for some type of an appropriate remedial action or, in the alternative, a mistrial with the cost to be borne by the defense.
The lower court denied the motion for a mistrial, reasoning that
the mention of insurance was inadvertent. At the close of the
evidence, the Appellees renewed their motion for a mistrial, and
that motion was again denied.
We have previously explained that not every mention of
insurance during trial constitutes reversible error. Ratlief v.
Yokum, 167 W. Va. 779, 280 S.E.2d 584 (1981). In Ratlief, a
plaintiff indicated during direct examination that he had medical
insurance. On cross-examination, it was disclosed that eighty
percent of his medical bills had been paid by insurance. After
addressing the mentioning of insurance during trial, we concluded
that any error in the admission of testimony regarding insurance
was harmless since the jury found in favor of the defendant on the
issue of liability. Id. at ___, 280 S.E.2d at 590. In syllabus
point 8 of Ratlief, we explained that "[t]he collateral source rule
also ordinarily prohibits inquiry as to whether the plaintiff has
received payments from collateral sources. This is based upon the
theory that the jury may well reduce the damages based on the
amounts that the plaintiff has been shown to have received from
collateral sources." In other words, the rule has its foundations
in the concern that a jury may inaccurately or unfairly determine
the amount of damages to which a plaintiff is entitled. As we
recognized in Ratilef, however, when the case is resolved on the
issue of liability, reference to insurance is not dispositive of
the issue of harm. "The reason the error is harmless in this case
is that the jury did not reach the damage issue but disposed of the
case against the plaintiff on the liability issue." Id. at ___,
280 S.E.2d at 590.
Similarly, the jury in the present case based its
determination on the issue of liability. Because the jury found in
favor of Appellant on the issue of liability, the reference to
insurance had no impact on any damages the jury might have awarded
had it reached the issue of damages. Moreover, the Appellant's
statement regarding insurance was generic in nature and was
unrelated to any inquiry regarding her personal insurance coverage.
She was simply describing the procedures typically employed in an
emergency room setting. We agree with the lower court's conclusion
that the Appellant's reference to insurance was inadvertent, that
it did not prejudice the Appellees in any manner, and that it was
In granting the Appellees a new trial, the lower court also
relied upon an alleged improper admission of defendant's Exhibit 7,
which contained a reference indicating that Daniel B. had been
"running" into the street. The manner in which Daniel B. entered
the street had become an issue of contention in this civil action.
During the cross-examination of Daniel B.'s father, the Appellant
introduced, without objection, an emergency/trauma record from
Emergency Medical Services at Ohio Valley Medical Center. That
record, introduced as defendant's Exhibit No. 1, noted that a nine-year-old was "hit by a car while he was running across the road."
The Appellant also introduced Exhibit No. 7, a portion of the
hospital chart known as the "run record" documenting the
transportation of Daniel to the Ohio Valley Medical Center. That
record noted: "Pt [patient] running across street and struck via
The Appellees initially objected to the introduction of the
"run record," despite the fact that it was part of the Emergency
Room record, on the ground that they had not previously examined
the exhibit and had no knowledge of how the statement was obtained.
When the "run record" was eventually admitted into evidence as
Defendant's Exhibit No. 7, however, it was admitted during the
direct examination of the Appellant, without objection.
Nonetheless, the lower court cited the admission of Defendant's
Exhibit 7 as a ground for his award of new trial, explaining as
follows: "No witness was called to support the same and it
contained hearsay of a prejudicial nature." The Appellees neither
objected to Defendant's Exhibit No. 7 at the time of its admission
nor raised its admission as error in either of their post-trial
motions. The issue was eventually addressed in their memorandum in
support of the post-trial motions; however, that memorandum was not
filed until more than four months after trial.See footnote 2
The issues of lack of objection and delay in bringing the
alleged error to the attention of the court are secondary to the
principal issue of concern; even the substance of the argument is
of questionable merit. Rule 803(6) of the West Virginia Rules of
Evidence provides that the following documents are admissible into
Records of Regularly Conducted Activity.
-- A memorandum, report, record, or data
compilation, in any form, of acts, events,
conditions, opinions, or diagnoses, made at or
near the time by, or from information
transmitted by, a person with knowledge, if
kept in the course of a regularly conducted
business activity, and if it was the regular
practice of that business activity to make the
memorandum, report, record, or data
compilation, all as shown by the testimony of
the custodian or other qualified witness,
unless the source of information or the method
or circumstances of preparation indicate lack
of trustworthiness. The term 'business' as
used in this paragraph includes business,
institution, association, profession,
occupation, and calling of every kind, whether
or not conducted for profit.
The "run report" qualifies as a report or record made at or near the time in question kept in the course of regular activity. Such a report is generated by the emergency medical team and/or paramedic in the ambulance each time an individual is transported to the hospital.
We have previously recognized the admissibility of medical records under the hearsay exception contained in Rule 803(6). Tedesco v. Weirton General Hosp., 160 W. Va. 466, 235 S.E.2d 463 (1977). We have noted, however, that such "records may be admissible as records kept in ordinary course of business if verified by their custodian or supervisor." State v. Bias, 171 W. Va. 687, 692, n.4, 301 S.E.2d 776, 782, n.4 (1983). The "run report" in question, while technically an ambulance record, was also part of the emergency room record. No authentication was offered for this document. Proper authentication would have required testimony by either a custodian of the records or an otherwise qualified witness. United States v. Porter, 821 F.2d 968 (4th Cir. 1987), cert. denied 485 U.S. 934 (1988); State v. Fairchild, 171 W. Va. 137, 298 S.E.2d 110 (1982). In syllabus point 4 of Fairchild, we explained: "Records made routinely in the regular course of business, at the time of the transaction or occurrence, or within a reasonable time thereafter, are generally considered trustworthy and reliable, and therefore ought to be admissible when properly verified." See also Hill v. Joseph T. Ryerson & Son, Inc., 165 W. Va. 22, 268 S.E.2d 296 (1980). The trustworthiness must be established, however, by testimony of a custodial or supervisory official demonstrating the regularity of the notation practice as an established procedure. Fairchild, 171 W. Va. at 147, 298 S.E.2d at 120. "However, in no instance may records of this kind prove themselves." Id. at 147, 298 S.E.2d at 120.
In the present case, no objection was offered at the time the
record was introduced. Moreover, no evidence of lack of
trustworthiness or prejudice to the Appellees has been identified.
We therefore hold that any error in admitting the record without
proper authentication was harmless,See footnote 3 and the admission of the
record should not have been employed by the lower court as a
justification for the award of a new trial.
The jury in this matter, subsequent to a four-day trial, found
that negligence had not been proven by a preponderance of the
evidence. In granting the Appellees' motion to set aside that
verdict, the lower court cited the three grounds examined above.
Having reviewed those alleged errors and the justification they
allegedly provided for a new trial, we find that the lower court
erred by basing its determination upon such purported errors. We
therefore reverse the judgment of the lower court and reinstate the
jury verdict in favor of the Appellant.
Footnote: 1As has been our practice in the past, we refrain from using the full name of the infant child or his family. See, e.g., Nancy Viola R. v. Randolph W., 177 W. Va. 710, 356 S.E.2d 464 (1967).
Footnote: 2The submission of that memorandum more than four months after trial was well beyond the ten-day limitation set forth in Rule 59 of the West Virginia Rules of Civil Procedure. Our findings on this issue, however, are based upon the substantive issue rather than upon that delay.
Footnote: 3The lower court permitted the Appellees to question the Appellant regarding the source of the information contained in the "run record," and counsel for the Appellees emphasized the alleged reliability problem to the jury.