David W. Johnson
Lewis, Friedberg, Glasser, Casey & Rollins
Charleston, West Virginia
Attorney for the Appellant
Robert A. Taylor
Masters & Taylor
Charleston, West Virginia
Attorney for the Appellees
JUSTICE WORKMAN delivered the Opinion of the Court.
JUSTICE BROTHERTON and JUSTICE RECHT did not participate.
RETIRED JUSTICE MILLER sitting by temporary assignment.
JUDGE FOX sitting by temporary assignment.
1. "'In reviewing a trial court's ruling on a motion for a
judgment notwithstanding the verdict, it is not the task of the
appellate court reviewing facts to determine how it would have
ruled on the evidence presented. Its task is to determine whether
the evidence was such that a reasonable trier of fact might have
reached the decision below. Thus, in ruling on a motion for a
judgment notwithstanding the verdict, the evidence must be viewed
in the light most favorable to the nonmoving party. If on review,
the evidence is shown to be legally insufficient to sustain the
verdict, it is the obligation of this Court to reverse the circuit
court and to order judgment for the appellant.' Syllabus Point 1,
Mildred L.M. v. John O.F., 192 W. Va. 345, 452 S.E.2d 436 (1994)."
Syl. Pt. 1, Barefoot v. Sundale Nursing Home, W. Va. , 457
S.E.2d 152 (1995).
2. "'In determining whether there is sufficient evidence to
support a jury verdict the court should: (1) consider the evidence
most favorable to the prevailing party; (2) assume that all
conflicts in the evidence were resolved by the jury in favor of the
prevailing party; (3) assume as proved all facts which the
prevailing party's evidence tends to prove; and (4) give to the
prevailing party the benefit of all favorable inferences which
reasonably may be drawn from the facts proved.' Syl. pt. 5, Orr v.
Crowder, 173 W. Va. 335, 315 S.E.2d 593 (1983), cert. denied, 469 U.S. 981, 105 S. Ct. 384, 83 L. Ed.2d 319 (1984)." Syl. Pt. 6,
McClung v. Marion County Comm'n, 178 W. Va. 444, 360 S.E.2d 221
3. "'One who by extreme or outrageous conduct intentionally
or recklessly causes severe emotional distress to another is
subject to liability for such emotional distress, and if bodily
harm to the other results from it, for bodily harm.' Syllabus pt.
6, Harless v. First National Bank in Fairmont, 169 W. Va. 673, 289
S.E.2d 692 (1982)." Syl. Pt. 1, Dzinglski v. Weirton Steel Corp.,
191 W. Va. 278, 445 S.E.2d 219 (1994).
4. We do not adopt a bright-line rule that expert testimony
is never required to prove the tort of outrage. Although expert
testimony may be a helpful and effective method of proving
emotional distress and its relationship to the act complained of,
it is not always necessary. A determination by the trial court as
to whether a plaintiff has presented sufficient evidence, absent
expert testimony, such that the jury from its own experience can
evaluate the claim, its causal connection to the defendant's
conduct and the damages flowing therefrom will not be disturbed
unless it is an abuse of discretion.
5. '"'Courts must not set aside jury verdicts as excessive unless they are monstrous, enormous, at first blush beyond all measure, unreasonable, outrageous, and manifestly show jury passion, partiality, prejudice or corruption.' Syl. Pt., Addair v. Majestic Petroleum Co., Inc., 160 W.Va. 105, 232 S.E.2d 821 (1977)." Syl. pt. 5, Roberts v. Stevens Clinic Hosp. Inc., 176 W.Va. 492, 345 S.E.2d 791 (1986).' Syl. Pt. 2, Capper v. Gates, W. Va. , 454 S.E.2d 54 (1994).
The Appellant, Rite Aid of West Virginia, Inc. ("Rite Aid"),
appeals from a jury verdict in favor of the Appellees, Connie
Tanner and Marjorie Legg. Following the verdict, Rite Aid filed a
motion for judgment notwithstanding the verdict, or in the
alternative, for a new trial, which the circuit court ultimately
denied. We initially denied review in this case, but thereafter
granted an appeal solely on the issue of damages. Rite Aid asserts
several assignments of error in the proceedings below and asks that
judgment be entered in its favor. We discern no error from the
record, however, and we hereby affirm the judgment and the circuit
court's related rulings in all respects.
In Barefoot v. Sundale Nursing Home, W. Va. , 457
S.E.2d 152 (1995), we recently stated as follows:
'In reviewing a trial court's ruling on a motion for a judgment notwithstanding the verdict, it is not the task of the appellate court reviewing facts to determine how it would have ruled on the evidence presented. Its task is to determine whether the evidence was such that a reasonable trier of fact might have reached the decision below. Thus, in ruling on a motion for a judgment notwithstanding the verdict, the evidence must be viewed in the light most favorable to the nonmoving party. If on review, the evidence is shown to be legally insufficient to sustain the verdict, it is the obligation of this Court to reverse the circuit court and to order judgment for the appellant.' Syllabus Point 1, Mildred L.M. v. John O.F., 192 W. Va. 345, 452 S.E.2d 436 (1994).
Syl. Pt. 1, Barefoot, W. Va. at , 457 S.E.2d at 156.
In performing the required analysis under West Virginia Rule
of Civil Procedure 50(b), we do not examine the credibility of the
witnesses, conflicts in the testimony, or the weight of the
evidence. Rather, the appropriate inquiry is stated in syllabus
point six of McClung v. Marion County Commission, 178 W. Va. 444,
360 S.E.2d 221 (1987):
'In determining whether there is sufficient evidence to support a jury verdict the court should: (1) consider the evidence most favorable to the prevailing party; (2) assume that all conflicts in the evidence were resolved by the jury in favor of the prevailing party; (3) assume as proved all facts which the prevailing party's evidence tends to prove; and (4) give to the prevailing party the benefit of all favorable inferences which reasonably may be drawn from the facts proved.' Syl. pt. 5, Orr v. Crowder, 173 W. Va. 335, 315 S.E.2d 593 (1983), cert. denied, 469 U.S. 981, 105 S. Ct. 384, 83 L. Ed.2d 319 (1984).
Syl. Pt. 6, McClung, 178 W. Va. at 446, 360 S.E.2d at 223.
While our review is limited by these considerations, it is
nevertheless de novo. Barefoot, W. Va. at , 457 S.E.2d at
159. Having established the legal prism through which we must view
this matter, we now set forth the primary evidence adduced by the
Appellees at trial.See footnote 1
Connie Tanner was a forty-four-year-old mother of four at the
time of the incident which formed the basis for the complaint. Her
mother, Appellee Marjorie Legg, was a seventy-five-year-old widow
at the time. Neither of the Appellees had ever been accused of any
criminal misconduct prior to the events herein.
The incident in question occurred in August 1991. Ms. Tanner,
along with her ten-year-old daughter Brandi, had just retrieved
Marjorie Legg from the hospital, where she had been undergoing
treatment for depression.See footnote 2 The three family members then proceeded
immediately to Rite Aid, entered the store, and went straight to
the pharmacy to have Ms. Legg's prescription filled. While Ms.
Legg sat down and waited for the prescription to be filled, Ms. Tanner found some soap on sale and decided to purchase it. When
the prescription was filled, Ms. Tanner asked the pharmacy clerk if
the soap could be purchased at the pharmacy register rather than at
the check-out line at the front of the store.See footnote 3 The clerk rang up
the items, and the items were paid for and placed in a single bag.
Ms. Tanner took the bag, and the three began to leave the store.
Ms. Legg and Brandi exited the store just a few steps ahead of
Ms. Tanner. Before Ms. Tanner could reach the outside of the
store, however, a male Rite Aid employee stopped her by "roughly"
grabbing her shoulder and ceasing her forward motion.See footnote 4 The
employee informed Ms. Tanner that she would have to step back into the store, stating "[o]ne of you has taken something you haven't
paid for, and you're going to have to come back in the store." Ms.
Tanner immediately became nervous, and the employee again stated
"[g]et your grandmother, get your daughter and get back in the
store. Get them back in the store." According to the Appellees,
two male Rite Aid employees conducted the ensuing investigation.
Ms. Tanner testified to being both scared and embarrassed and
stated that one employee had a "hateful" look on his face and was
speaking quite loud. Ms. Tanner stated that she then yelled out to
her mother that both her and Brandi would have to return to the
store because of the theft allegation. Ms. Legg testified that she
knew by the tone of her daughter's voice and the employee's voice
that she was required to return to the store. When the three
family members re-entered Rite Aid, one employee took them to the
front of the store near the check-out counter. Ms. Tanner stated
that one of the employees was "angry" and "in a state of rage . .
One employee again accused Ms. Tanner of shoplifting and said
"[l]et's have the bag." Ms. Tanner started to remove the bag from
her hand and the employee grabbed it from her. The employee
searched the bag, noticed the soap, and asked to see the purchase
receipt. While Ms. Tanner could not locate the receipt, the
pharmacy clerk confirmed that Ms. Tanner had paid for the
merchandise. Both Ms. Tanner and Brandi testified, however, that the employee continued to insist in a loud and abusive fashion that
one of the three had shoplifted merchandise and that he was "going
to find it."See footnote 5
The employee then placed his hand into Ms. Legg's pocket, who
was shaking at the time. Ms. Tanner insisted that he stop, and
then turned her mother's pockets inside out so that he could see
she had taken no merchandise. Ms. Tanner then patted her own
pockets as well. The employee, however, continued to insist that
something had indeed been stolen. He then attempted to take Ms.
Legg's purse. Ms. Legg stamped her cane twice in disapproval. Ms.
Tanner, however, both out of fear and a desire to resolve the
incident for her mother's sake, took both her mother's and her own purse, removed the items therein, and showed the employee the
contents. According to Ms. Tanner, the employee then gave some
indication that Brandi "was next." Ms. Tanner stated that she
looked at Brandi and saw the most frightened look she had ever
witnessed. At this point, Ms. Tanner, regardless of the
consequences, made a decision to leave the store. Ms. Tanner
estimated that the incident transpired over a period of twenty to
Upon reaching the car, Ms. Legg became very upset because she
had forgotten to buy her aspirin. Ms. Legg convinced her daughter
to return to the store to buy the medicine. Ms. Tanner very
reluctantly agreed to do so, and in the process of purchasing the
aspirin, she overheard a Rite Aid employee state that the EAS
machine had been going on and off all day. No apologies were ever
extended to the Appellees by Rite Aid officials.
Throughout the events discussed above, the store was still
crowded. Ms. Tanner stated that there were at least two lines of
people and that the three family members were placed right next to
the onlooking customers.See footnote 6 The Appellees were not only concerned
about the obvious embarrassment of being confronted in this manner
in the presence of strangers. For instance, Ms. Legg testified that she was fearful that someone she knew might be witnessing the
incident.See footnote 7 She was particularly concerned that her son, Patrick
Legg, Investigative Bureau Chief for the City of Charleston Police
Department, would enter the store or otherwise learn of the
There was a great deal of testimony concerning the effect that
the incident had on the Appellees. Ms. Tanner testified that "[i]t
was the scariest moment in . . . [her] life." When she arrived
home, her son testified that she burst into tears. She also became
physically ill, enduring a bout of vomiting. Later that evening,
Ms. Tanner picked up her husband from work. He testified that "she
was crying and upset . . . [and] shaking." During the months
following the incident, and to some extent to this day, Ms. Tanner
has experienced (1) bouts of crying (sometimes waking her from a
sound sleep); (2) a loss of appetite; (3) nervousness; (4)
difficulty sleeping; and (5) weight loss.
Family members testified that Ms. Tanner was, indeed, a
different person following the incident. Her son stated that she
began to neglect her housekeeping. Ms. Tanner, her son and her
husband also testified that while she previously enjoyed shopping
a great deal, especially with her mother, she practically ceased
the activity for fear of being wrongly accused again. She stated that when she did go to the grocery store, she would leave her
purse in the car to avoid suspicion. There was also testimony that
while she was previously involved in fund raising activities at her
daughter's school, she ceased the activity for fear of rumors that
might circulate about the incident or general mistrust that others
might harbor about her honesty.
Ms. Legg suffered similar ill effects. Ms. Tanner testified
that her mother was "shaking all over" and was "hysterical" during
the drive home. As for general manifestations, there was testimony
that Ms. Legg suffered from: (1) a loss of appetite; (2) weight
loss; (3) vomiting; and (4) disturbing dreams related to the
incident.See footnote 8 As noted above, she was particularly upset about what
Patrick Legg, her police-officer son, would think. Patrick
testified that when he saw his mother following the incident, she
was extremely upset. Ms. Legg herself testified that she "went all
to pieces." Patrick even felt it necessary to take his mother to
his own home, where she stayed with him for two days. He noted
that his mother's behavior changed after the incident, particularly
with regard to him, and perhaps, he surmised, out of a sense of
A. Well, she quit calling me, quit coming to the house or wanting to come to the house, and would talk -- she used to talk at great length on the phone. Her conversations were real short, and I would go down to see her, and it was a short visit because she would either say she was tired or whatever.
Patrick and Ms. Legg also stated that she ceased some of her
previous activities. For instance, she resigned as president of
her tenant council and as a caller at bingo. Her primary fear,
like her daughter's, was that an individual she knew either
witnessed or heard of the incident and that "people wouldn't trust
. . . [her] any more." She also stated that while she was truly
fond of shopping with her daughter and associating with others
prior to the incident, she largely ceased these activities
following the events at Rite Aid.
While the Appellees produced no expert testimony at trial, Dr.
Voltin, as noted above, testified on Rite Aid's behalf. Dr. Voltin
examined the Appellees and testified that within a reasonable
degree of medical probability, neither Appellee suffered from any
problem related to or caused by the incident at Rite Aid. He also
testified that he believed the Appellees manifestations were "an
exaggeration beyond that which would be expected following the
alleged incident." In regard to Ms. Legg specifically, Dr. Voltin
testified, that her symptoms were present even prior to the
incidents at Rite Aid and related to her depression. As for Ms.
Tanner, Dr. Voltin stated that she too had a pre-existing anxiety
disorder and had exhibited similar symptoms following the death of
her brother some years earlier.
Following a two-day trial, the case was submitted to the jury
on March 23, 1994. The following three causes of action were
presented to the panel: (1) intentional infliction of emotional
distress (the tort of outrage); (2) battery; and (3) false
imprisonment. After deliberating for approximately two hours, the
jury sent a note to the judge stating "[w]e would like you to tell
us about battery again." The judge reread the previous
instructions on battery and the jury again retired to continue
their deliberations. After approximately two more hours of
deliberation, the jury returned a verdict. While the jury
indicated on the verdict forms (one for each Appellee) that they
found for the Appellees on both the false imprisonment and outrage
claims, and for Rite Aid on the battery claim, they marked "NO" on
the verdict form next to the general interrogatory that asked
"[w]as there any injury proximately caused to the plaintiffs."
Nevertheless, in indicating the $12,000 in compensatory damages to
be awarded to both Appellees in the next interrogatory, the jury
found that the damages "were proximately caused by the defendant's
conduct . . . ." The jury made an additional award of $18,000 in
punitive damages to each Appellee after specifically finding that
Rite Aid was "guilty of malice, oppression, or wanton, willful, or
reckless misconduct or criminal indifference to the civil
obligation affecting the rights of plaintiffs."
The judge noted the inconsistency on causation in the verdict
form and explained the problem to the jury. She then further
instructed the jury as follows:
I'm not suggesting to you how you fill out the
verdict form or what you wish to do, but I am
going to ask you to retire back to the jury
room to reconsider this, okay? Because you
have indicated that there were no injuries
proximately caused, and then down here on 8,
you've indicated that there were damages which
were proximately caused. So it needs to be
consistent, and you need to go back and review
If you have any questions of me,
I'll be happy to come back and read you some
After a few minutes, the jury returned the verdict forms,
having marked "YES" and crossed out "NO" in response to the
proximate cause inquiry, thus finding proximate cause. The circuit
court then entered judgment for the Appellees on March 30, 1994.
The Appellant filed its motion for judgment notwithstanding the
verdict, or in the alternative for a new trial, on April 7, 1994.
The circuit court denied the motion on June 13, 1994. We initially
denied review in this case, but thereafter granted an appeal solely
on the issue of damages. We did so in order to address a very
important principle relating to the tort of outrage.See footnote 9 This issue,
which is largely a question of first impression, deals with the
necessity of expert testimony to prove the causation and severity elements for intentional infliction of emotional distress. As set
forth more fully herein, we discern no error in the proceedings
below. Consequently, we hereby affirm the judgment and the circuit
court's challenged rulings.
A. The Necessity of Expert Testimony:
Our current jurisprudence on the tort of outrage has its
genesis in Harless v. First National Bank in Fairmont, 169 W. Va.
673, 289 S.E.2d 692 (1982). In syllabus point six of Harless, we
stated as follows: "'One who by extreme or outrageous conduct
intentionally or recklessly causes severe emotional distress to
another is subject to liability for such emotional distress, and if
bodily harm to the other results from it, for bodily harm.'
Syllabus pt. 6, Harless v. First National Bank in Fairmont, 169 W.
Va. 673, 289 S.E.2d 692 (1982)." Syl. pt. 1, Dzinglski v. Weirton
Steel Corp., 191 W. Va. 278, 445 S.E.2d 219 (1994).
This formulation of the cause of action is identical to that
which is contained in Restatement (Second) of Torts § 46(1)
(1965).See footnote 10 For this reason, the jurisprudence and comments attached to § 46 have substantially influenced our subsequent development of
this claim. For instance, we have made repeated reference in our
prior cases, in whole or in part to comment (d), which states as
d. Extreme and outrageous conduct. The
cases thus far decided have found liability
only where the defendant's conduct has been
extreme and outrageous. It has not been enough
that the defendant has acted with an intent
which is tortious or even criminal, or that he
has intended to inflict emotional distress, or
even that his conduct has been characterized
by 'malice,' or a degree of aggravation which
would entitle the plaintiff to punitive
damages for another tort. Liability has been
found only where the conduct has been so
outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and
utterly intolerable in a civilized community.
Generally, the case is one in which the
recitation of the facts to an average member
of the community would arouse his resentment
against the actor, and lead him to exclaim,
The liability clearly does not extend to
mere insults, indignities, threats,
annoyances, petty oppressions, or other
trivialities. The rough edges of our society
are still in need of a good deal of filing
down, and in the meantime plaintiffs must
necessarily be expected and required to be
hardened to a certain amount of rough
language, and to occasional acts that are
definitely inconsiderate and unkind. There is no occasion for the law to intervene in every
case where some one's feelings are hurt. There
must still be freedom to express an
unflattering opinion, and some safety valve
must be left through which irascible tempers
may blow off relatively harmless steam.
Id. (emphasis added); see Courtney v. Courtney, 190 W. Va. 126, 437
S.E.2d 436 (1993)("Courtney II")(quoting comment (j) concerning the
nature of severe emotional distress);See footnote 11 Courtney v. Courtney, 186 W. Va. 597, 413 S.E.2d 418 (1991)("Courtney I"); Kanawha Valley
Power Co. v. Justice, 181 W. Va. 509, 383 S.E.2d 313 (1989).
The reason that we have demanded such strict proof of
unprecedented and extreme misconduct was perhaps best stated in
Keyes v. Keyes, 182 W. Va. 802, 805, 392 S.E.2d 693, 696 (1990):
"Especially where no physical injury accompanies the wrong, the
tort of outrage is a slippery beast, which can easily get out of
hand without firm judicial oversight."See footnote 12 Id.
The crux of Rite Aid's argument is that a plaintiff must
adduce expert testimony to prove causation and severe emotional
distress under the tort of outrage. Rite Aid's argument is based
almost exclusively on an isolated quotation from our decision in
Courtney II which provides as follows:
However, where the claim is only one for severe emotional distress from outrageous conduct, the emotional distress forms the basis of the cause of action. To recover damages for a claim based solely on emotional distress, such emotional distress must not only be severe, but must manifest distinct psychological or mental patterns that are commonly recognized by experts. In some instances, physical manifestations may occur.
Id. at 130, 437 S.E.2d at 440.See footnote 13
As an initial matter, one must recognize that Courtney II did
not present the question addressed herein. Second, Rite Aid reads
Courtney II in overbroad fashion and does not take into account our
pre-existing, analogous case law.
First, one must examine exactly what we were addressing in
Courtney II. The only substantial assignment of error in Courtney
II was that the circuit court had erroneously ruled that the
statute of limitations barred the plaintiff's claims for assault
and battery and intentional infliction of emotional distress. Id.
at 133, 437 S.E.2d at 438. No issue was raised about proof for the
tort of outrage, because the case was dismissed below as a matter
of law on purely legal grounds. The above-cited quotation from Courtney II was meant to demonstrate the difference between a cause
of action for intentional infliction of emotional distress as
opposed to the damages for emotional distress that one might
recover as an adjunct to another substantive tort, such as assault
and battery. Id. at 130, 437 S.E.2d at 438. We then used this
analysis in an attempt to demonstrate that the tort of outrage
seeks recovery for a "personal injury," thus requiring resort to a
two-year statute of limitations. Id. at 133, 437 S.E.2d at 438.
The above-quoted language relied upon by Rite Aid was, at most,
merely an attempt to illuminate the distinction. For that reason,
it can only be considered as dicta.See footnote 14
Second, it becomes clear that Rite Aid's position is not well-
taken when one examines our precedent dealing with the analogous
area of proof for emotional distress as a damage element contained
within another substantive tort. For instance, in Slack v. Kanawha
County Housing & Redevelopment Authority, 188 W. Va. 144, 423
S.E.2d 547 (1992), the plaintiff asserted claims for invasion of
privacy, retaliatory discharge, and civil conspiracy. The circuit
court granted one of the defendants judgment notwithstanding the
verdict as to $30,000 in emotional distress damages that were
parasitic to plaintiff's substantive claim for invasion of privacy.
The circuit court reasoned that the emotional distress damages
could not stand because "the evidence of such damages consisted
solely of the plaintiff's testimony, uncorroborated by any medical
or expert testimony." Id. at 151, 423 S.E.2d at 554.
In reversing that ruling, we stated that "[w]e have not
required plaintiffs who have suffered emotional distress damages to
buttress such claims by corroborative evidence at the peril of
having their claims dismissed as a matter of law." Id. at 152, 423
S.E.2d at 555; see also, e.g., Mace v. Charleston Area Medical Ctr.
Found., Inc., 188 W. Va. 57, 67, 422 S.E.2d 624, 634 (1992)("In
spite of the admitted paucity of evidence of emotional distress . . . [as an adjunct to a retaliatory discharge claim,] [w]e will not
disturb the jury's award of $50,000.00 for emotional distress.");
Criss v. Criss, 177 W. Va. 749, 751, 356 S.E.2d 620, 622
(1987)("Although the appellant's claim for damages for emotional
distress . . . [as an adjunct to a claim for assault and battery]
would have been strengthened by supporting medical or psychological
evidence, the testimony offered by the appellant and her
grandmother was sufficient to raise issues for jury
determination.")See footnote 15
If anything, then, our analogous existing caselaw indicates
that expert testimony is not required in every case to prove the
causation and severity elements for intentional infliction of
emotional distress. Indeed, Harless itself, the genesis for this
cause of action in West Virginia, fails to make mention of any such
requirement. Restatement § 46(1) and its comments, upon which we
have placed great reliance in the past, also omit any such mandate.
In formulating our rule for expert testimony in the context of the
tort of outrage, however, we feel compelled to examine authority
from other jurisdictions. Our research has disclosed a split of
One line of authority suggests that expert testimony is rarely
required for proof of intentional infliction of emotional distress.
See, e.g., Richardson v. Fairbanks North Star Borough, 705 P.2d
454, 457 n.6 (Alaska 1985)("Expert medical testimony may be the
most effective method of demonstrating the existence of severe
emotional distress, but it should not be the exclusive means of
ascertaining a party's mental state.") This approach has garnered
some support from the commentators. One of the seminal articles on
the tort of outrage states that a claim for intentional infliction
of emotional distress "is much cheaper to bring than a negligence
action since there is no need for experts either with respect to
causation or extent of injury." Daniel Givelber, The Right to
Minimum Social Decency and the Limits of Evenhandedness:
Intentional Infliction of Emotional Distress by Outrageous Conduct,
82 Colum. L. Rev. 42, 51 (1982); see Angela M. Elsperger, Comment,
Damages--Intentional Infliction of Emotional Distress in the
Workplace: Defining Extreme and Outrageous Conduct in North
Dakota's Job Description, 70 N.D. L. Rev. 187, 191 n.43
(1994)(stating "experts are not needed to show causation or extent
of injury because the extremity and outrageousness of the conduct
A second line of authority, however, requires expert
testimonySee footnote 16 in every case where the tort of outrage is alleged. See, e.g., Kazatsky v. King David Mem. Park, Inc., 515 Pa. 183,
197, 527 A.2d 988, 995 (1987)(stating that "it is unwise and
unnecessary to permit recovery to be predicated on an inference
based on the defendant's 'outrageousness' without expert medical
confirmation that the plaintiff actually suffered the claimed
We think the first line of authority is better reasoned and
more consistent with our jurisprudence and the Restatement. Like
that authority, we do not adopt a bright-line rule that expert
testimony is never required to prove the tort of outrage. Although
expert testimony may be a helpful and effective method of proving
emotional distress and its relationship to the act complained of,
it is not always necessary.See footnote 17 A determination by the trial court as to whether a plaintiff has presented sufficient evidence absent
expert testimony such that the jury from its own experience can
evaluate the claim, its causal connection to the defendant's
conduct and the damages flowing therefrom will not be disturbed
unless it is an abuse of discretion.
We note that this approach has found support among both the
commentators and other jurisdictions. For instance, one
commentator has stated as follows:
If the evidence in a given case [asserting a claim for intentional infliction of emotional distress] is such that the jurors, or judge, in a bench trial, can from their own experiences evaluate both the substance of the injury claimed and its probable relationship to the defendant's misconduct, the plaintiff may prove causation without the aid of expert testimony. . . .
When prima facie proof of the fact of
injury or causes involves matters beyond the
competency of ordinary lay persons, expert
witnesses must be employed.
Marilyn Minzer et al., Damages in Tort Actions § 6.12 , 
(1989)(footnotes omitted); see McKnight v. Simpson's Beauty Supply,
Inc., 86 N.C. App. 451, 454, 358 S.E.2d 107, 109 (N.C. Ct. App.
1987)("Our holding is simply that the jury was capable of
determining without the aid of a physician or psychiatrist whether
plaintiff was shocked and upset following his abrupt, unexplained
dismissal and whether such feelings were caused by defendant's
conduct."); Chandler v. Denton, 741 P.2d 855, 867 (Okla. 1987)("In
most cases, jurors from their own experience are aware of the
extent and character of the disagreeable emotions that may result
from a defendant's outrageous conduct. Severe emotional distress
may be shown either by physical manifestations of the distress or
by subjective testimony."); Bennett v. City Nat'l Bank & Trust Co.,
549 P.2d 393, 399 (Okla. Ct. App. 1975)("If from their own
experience, jurors are aware of the extent and character of the
disagreeable emotions that may result from the defendant's conduct,
then such is a matter of general knowledge."); Hackney v. Woodring,
424 Pa. Super. 96, 104, 622 A.2d 286, 290 (Pa. Super Ct. 1993),
rev'd, Pa. , 652 A.2d 291 (1994)("The emotional reactions
discussed in comment j to § 46 predate the advent of psychiatry and
can readily be established without the testimony of one learned in
that area of medical science. . . . While the average juror may not have personally experienced the extreme fright, humiliation,
embarrassment and loss of self-esteem to which Hackney testified,
these feelings are within the realm of common understanding which
all jurors bring with them to the jury box.")See footnote 18
Further, as stated by the leading commentators, often the
flagrancy and "enormity" of the defendant's misconduct "adds
especial weight to the plaintiff's claim, and is in itself an
important guarantee that the mental disturbance which follows is
serious and not feigned." Keeton et al., supra § 12 at 57 and 56
(stating also that "the elimination of trivialities calls for
nothing more than the same common sense which has distinguished
serious from trifling injuries in other fields of the law");
Restatement, supra § 46 cmt. j (stating that "in many cases the
extreme and outrageous character of the defendant's conduct is in
itself important evidence that the distress has existed").See footnote 19
Certainly this analysis does not preclude a defendant from
having an expert examine the plaintiff and testify to the results
and conclusions concerning the examination. Indeed, beyond cross-
examination, this type of testimony is the principal defensive
weapon to counter the plaintiff's testimony. Were we to adopt a
different approach, a defendant would be left in the difficult
position of attempting to counter a plaintiff's subjective
testimony on causation and severity of the distress. The expert
must not, however, be permitted to usurp the province of the jury
on these two elements, and the circuit court should so instruct the
panel and limit the testimony where necessary. We have no doubt
that a properly instructed jury can sort out the competing
In applying these principles to the instant case, we conclude
that the lower court did not abuse its discretion in determining
that the nature of the plaintiffs' claim and their evidence in
support thereof was such that the jury could properly evaluate it
without expert testimony. The jury accepted the evidence which
demonstrated that the Appellees, inter alia, (1) were publicly
accused of criminal wrongdoing, (2) endured a lengthy, humiliating public search of their persons and belongings, (3) were repeatedly
labeled as thieves, and (4) were ridiculed by onlooking customers.
We think the emotions and manifestations that they experienced as
a result were well within the common understanding of the average
juror and were properly submitted to the panel. Accordingly, an
expert witness' direct or supplementary testimony on behalf of the
Appellees to prove causation or severity of distress in these
circumstances was not required. We thus discern no error from the
Appellees' failure to adduce such testimony.
B. Summary Disposition of Miscellaneous Assignments of Error:
Rite Aid asserts some additional arguments that merit at least
a summary discussion.
1. Duplicative Recovery
First, Rite Aid asserts that the award of punitive damages here constituted an impermissible double recovery. Rite Aid cites Dzinglski v. Weirton Steel Corp., 191 W. Va. 278, 445 S.E.2d 219 (1994), in support of this argument. In Dzinglski we reviewed a jury's award to the plaintiff on a claim for intentional infliction of emotional distress in the amount of $500,000 in compensatory damages and $150,000 in punitive damages. While other causes of action were alleged, the outrage claim was the only cause that reached the jury. The trial court subsequently struck the punitive damages award, and the plaintiff cross-assigned the ruling as error. We concluded, as a matter of law, that the facts in Dzinglski did not amount to outrageous conduct. Nevertheless, we went on to discuss the plaintiff's cross-assignment of error concerning the propriety of the circuit court's quashing of the punitive damages award. In upholding the circuit court's action, we stated as follows:
In Wells v. Smith, 171 W.Va. 97, 297 S.E.2d 872 (1982), [overruled on other grounds, Garnes v. Fleming Landfill, Inc., 186 W. Va. 656, 413 S.E.2d 897 (1991),] we recognized that in permitting recovery for emotional distress without proof of physical trauma where the distress arises out of the extreme and outrageous conduct intentionally caused by the defendant, damages awarded for the tort of outrageous conduct are essentially punitive damages.
Dzinglski, 191 W. Va. at 288, 445 S.E.2d at 229.
Neither the trial transcript, the verdict form nor Rite Aid's
proposed jury instructions indicate that the argument under Wells
was raised below. Had Rite Aid done so, the purported error could
have been easily remedied before this matter was presented to the
jury and finally disposed of. Given the failure to preserve and
develop the putative error below, we decline to address it herein.
2. Excessive Damages
Rite Aid also argues that the jury's awards for compensatory and punitive damages were grossly excessive.See footnote 20 We recently restated the well-settled rule applicable to this contention in syllabus point two of Capper v. Gates, W. Va. , 454 S.E.2d 54 (1994): '"'Courts must not set aside jury verdicts as excessive unless they are monstrous, enormous, at first blush beyond all measure, unreasonable, outrageous, and manifestly show jury passion, partiality, prejudice or corruption.' Syl. Pt., Addair v. Majestic Petroleum Co., Inc., 160 W. Va. 105, 232 S.E.2d 821 (1977)." Syl. pt. 5, Roberts v. Stevens Clinic Hosp. Inc., 176 W. Va. 492, 345 S.E.2d 791 (1986).' Capper, W. Va. at , 454 S.E.2d at 57. After reviewing the record as a whole in the light most favorable to the Appellees, we cannot say that respective awards for $12,000 in compensatory damages and $18,000 in punitive damages meet the required standard for remand. Accordingly, we conclude that this assignment of error is not meritorious.
After careful consideration of the briefs, the record, and
oral argument, we conclude that the circuit court did not err.
Accordingly, based on the foregoing analysis, we hereby affirm the
Footnote: 1 We would note that the parties presented dramatically
different versions of what did or did not occur. For instance, Rite Aid asserted that the incident in question never even took place. This obviously was a jury issue which was resolved against Rite Aid, and, as previously stated, we limited this appeal to the issue of damages.
Footnote: 2 Rite Aid's expert witness was Dr. Russell Voltin, a board certified neurologist and psychiatrist. He testified as follows concerning Ms. Legg's hospitalization:
A. This July of 1991, she was hospitalized at CAMC and noted to be suffering from depression and was also noted not to have followed up with prescribed outpatient psychiatric care. In August of 1991, she was hospitalized at Highland Hospital for depression, treated with antidepressant medication, showed a favorable response and was discharged to outpatient care. (Emphasis added).
Footnote: 3 According to Ms. Tanner, the line at the front of the store was crowded, and she wanted to get her mother home as soon as possible, given her recent release from the hospital.
Footnote: 4 Rite Aid apparently only detains suspected shoplifters in two instances. In the first instance, a Rite Aid employee must actually observe the customer taking and concealing merchandise. In the second instance, a customer will trigger the store's "EAS" machine. An EAS machine was in place at the front of the store in the instant case. When customers walked through the machine to exit the store, an alarm sounded and a light on the machine flashed if the machine detected the presence of a special magnetic sticker. The sticker is placed on many items that are frequently subject to pilfering. The products with tags are demagnetized by the check- out clerk at the time of purchase. Both Ms. Legg and Ms. Tanner testified that the machine did not activate when they exited the store.
At trial, Rite Aid officials, relying in part on training materials, discussed the proper procedure to be followed when the EAS is triggered. These procedures include, inter alia, the following: (1) never accuse, threaten or otherwise act in an aggressive manner toward the customer; (2) be courteous and discreet; (3) never grab the customer's bag; (4) never touch the customer; (5) advise the customer that a tag may have not been
demagnetized and ask them to return to the counter; and (6) if an individual is stopped erroneously, apologize for any inconvenience.
Footnote: 5 Rite Aid makes much of some confusion on the part of the Appellees about the timing and substance of the events that occurred. For instance, Ms. Tanner was confronted on cross- examination with previous deposition testimony wherein she stated that she was allowed to leave the store following the pharmacy clerk's verification of the purchase. The events herein were obviously traumatic and occurred over two-and-one-half years prior to trial. In fact, Ms. Tanner attributed her difficulty in remembering the above details to the effect that the encounter had on her at the time. Consequently, we do not think it unreasonable
for the jury to have credited the substance of the Appellees' testimony concerning the sequence and substance of the relevant events.
We are troubled, however, by another matter. In a case this term, McCormick v. Allstate Insurance Company, No. 22551 (W. Va. filed May 4, 1995), we entered an unpublished order which directed counsel to "refrain from the use of intemperate language in documents filed with this Court." Id. In Rite Aid's opening brief, it characterizes the emotional distress suffered by the Appellees to be nothing short of "whining." We do not countenance these types of ad hominem personal attacks. Accordingly, we caution counsel, and all members of the Bar who practice before this Court, that such inappropriate references will not be tolerated in the future.
Footnote: 6 The waiting customers were obviously intrigued by the spectacle. Ms. Tanner testified that an onlooking woman even
commented "[o]oh, honey, looks like they've got them a couple." Ms. Tanner testified that at that point that she "knew that everybody in the store probably thought . . . [they] were thieves."
Footnote: 7 Brandi did in fact see a young schoolmate among the crowd of onlooking customers.
Footnote: 8 It appears that on cross-examination Ms. Legg testified that she had suffered from the same or similar symptoms in the past as a result of her depression.
Footnote: 9 Even in light of our order limiting review to the issue of damages, the Appellant has asserted some assignments of error that clearly relate more to liability. Given the narrow nature of our review, we do not address these alleged errors.
Footnote: 10 We suggested in Harless that a plaintiff alleging the tort of outrage must prove the following four elements:
'One, the wrongdoer's conduct was intentional
or reckless. . . . Two, the conduct was
outrageous and intolerable in that it offends against the generally accepted standards of decency and morality. . . . Three, there was a causal connection between the wrongdoer's conduct and the emotional distress. Four, the emotional distress was severe.'
Id. at 694-95, 289 S.E.2d at 704 (quoting Womack v. Eldridge, 215 Va. 338, 342, 210 S.E.2d 145, 148 (1974)).
Footnote: 11 Comment (j) provides in pertinent part as follows:
j. Severe emotional distress. The rule
stated in this Section applies only where the
emotional distress has in fact resulted, and
where it is severe. Emotional distress passes
under various names, such as mental suffering,
mental anguish, mental or nervous shock, or
the like. It includes all highly unpleasant
mental reactions, such as fright, horror,
grief, shame, humiliation, embarrassment,
anger, chagrin, disappointment, worry, and
nausea. It is only where it is extreme that
the liability arises. Complete emotional
tranquillity is seldom attainable in this
world, and some degree of transient and
trivial emotional distress is a part of the
price of living among people. The law
intervenes only where the distress inflicted
is so severe that no reasonable man could be
expected to endure it. The intensity and the
duration of the distress are factors to be
considered in determining its severity. Severe
distress must be proved; but in many cases the
extreme and outrageous character of the
defendant's conduct is in itself important
evidence that the distress has existed. For
example, the mere recital of the facts in Illustration 1 above goes far to prove that the claim is not fictitious.
The distress must be reasonable and justified under the circumstances, and there is no liability where the plaintiff has suffered exaggerated and unreasonable emotional distress, unless it results from a peculiar susceptibility to such distress of
which the actor has knowledge. See Comment f.
It is for the court to determine whether on
the evidence severe emotional distress can be
found; it is for the jury to determine whether, on
the evidence, it has in fact existed.
Restatement, supra § 46 cmt. j (emphasis added); see also id., cmt. k ("Normally, severe emotional distress is accompanied or followed by shock, illness, or other bodily harm, which in itself affords evidence that the distress is genuine and severe.")(Emphasis added).
Footnote: 12 Mere numbers alone, however, can never be a justification for refusing or unnecessarily limiting a cause of action in tort: "It is the business of the law to remedy wrongs that deserve it, even at the expense of a 'flood of litigation,' and it is a pitiful confession of incompetence on the part of any court of justice to deny relief on such grounds." W. Page Keeton et al., Prosser and Keeton on The Law of Torts § 12 at 56 (5th ed. 1984).
Footnote: 13 We also stated that "[c]ertainly, at the very least, this type of severe emotional distress will exhibit mental and emotional damages readily recognizable by qualified experts." Courtney II, 190 W. Va. at 132, 437 S.E.2d at 442. We would note that no authority was cited for this proposition and that no extended
analysis was performed. Interestingly enough, we overruled a decision that was discussed in Courtney II, in part, because it "made no attempt to analyze cases from other jurisdictions to determine how they" viewed the particular question at issue. Id.
Footnote: 14 Further, we have not been particularly equivocal when we have determined that expert testimony is necessary to prove analogous causes of action. For instance, in Heldreth v. Marrs, 188 W. Va. 481, 425 S.E.2d 157 (1992), we determined that a plaintiff could recover, without the necessity of physical injury, for negligent infliction of emotional distress when he or she witnesses a close relative suffer a critical or fatal injury at the hands of a negligent defendant. Id. at 485, 425 S.E.2d at 161. In regard to that cause of action, we stated as follows:
We emphasize, however, that in addition to
showing that the plaintiff's emotional
distress was reasonably foreseeable, and that
a cause and effect relationship between the
emotional distress and the accident existed,
the plaintiff must also prove the seriousness
of the emotional distress through the use of
medical and psychiatric evidence.
Id. at 491, 425 S.E.2d at 167 (emphasis added).
Furthermore, had we intended to use the quoted language in
Courtney II for the purpose asserted by Rite Aid, we had a recent,
quintessential opportunity to do so in Hines v. Hills Department
Stores, Inc., W. Va. , 454 S.E.2d 385 (1994). In Hines, we were faced with a suit by former department store cashiers alleging, in part, that the defendant had committed the tort of outrage. We recognized in Hines that none of the cashiers had
received counselling or presented expert testimony to prove emotional distress. Nevertheless, rather than relying on what Rite Aid might term the "black letter law" contained in Courtney II, and quickly disposing of the case, we reversed the matter on other grounds following an extended analysis. Hines, W. Va. at ___, 454 S.E.2d at 390.
Footnote: 15 We are cognizant of our suggestion in Courtney II that where the recovery for emotional distress is ancillary or parasitic to another substantive tort, the emotional distress need not be as severe, and thus might survive on a lesser showing, than when one seeks recovery exclusively for emotional distress via the tort of outrage. See Courtney II, 190 W. Va. at 130, 437 S.E.2d at 440.
Footnote: 16 The circuit court's inquiry should take all facts and reasonable inference in the light most favorable to the plaintiff
and then determine if the injury's cause and its severity are within the common understanding of reasonable jurors. It would obviously be prudent for plaintiff's counsel to seek such a determination at the pretrial stage and prior to any discovery deadline set by the circuit court. Should counsel wait for the circuit court to rule on the question in the context of a defense motion for summary judgment or for directed verdict, it may be too late to employ the necessary expert should the circuit court deem one to be necessary.
Footnote: 17 16We think West Virginia Rule of Evidence 702 is helpful by analogy here. Rule 702 provides as follows:
Rule 702. Testimony by Experts. If
scientific, technical, or other specialized
knowledge will assist the trier of fact to
understand the evidence or to determine a fact
in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or
education may testify thereto in the form of
an opinion or otherwise.
W. Va. R. Evid. 702.
Helpfulness to the jury, then, is the touchstone of Rule 702. While expert testimony is often presumed to be helpful to the jury, "[t]his presumption vanishes where the testimony concerns matters within the everyday knowledge and experience of a lay juror." 2 Franklin D. Cleckley, Handbook on Evidence for West Virginia Lawyers § 7-2(A)(2) (3rd ed. 1994). Justice Cleckley summarizes the inquiry as follows: "Under Rule 702, expert testimony is inadmissible as to a matter which obviously is within the common knowledge of jurors because such testimony, almost by definition, can be of no real assistance." Id.; accord Syl. Pt. 3, McCroskey v. Proctor, 175 W. Va. 345, 332 S.E.2d 646 (1985); United States v. Harris, 995 F.2d 532 (4th Cir. 1993).
Under some circumstances, expert testimony may still be helpful beyond this limit where the testimony would clearly "add precision and depth to the ability of the trier of fact to reach conclusions about subjects which lie well within common experience." 2 Cleckley, supra § 7-2(A)(2). Similarly, it would have been helpful in the instant case to assist the trier of fact in ascertaining to what degree the plaintiff's emotional distress was the proximate result of the tort, given her prior history of emotional problems. There may be many instances, like that of the instant case, where expert testimony may be helpful but not mandatory.
The decision by the Superior Court in Hackney was a thinly- veiled invitation for the Pennsylvania Supreme Court to revisit the inflexible rule that it laid down in Kazatsky, 515 Pa. at 197, 527 A.2d at 995, discussed above regarding the necessity of expert
testimony. As indicated by the summary reversal of Hackney, the invitation was refused.
Footnote: 19 Professor Givelber has persuasively analyzed the proposition in the following manner:
Since it is the moral quality of defendant's
conduct, and the inferences to be derived from
it, that dominate the proof, the plaintiff can
typically present evidence sufficient to
support a finding of all elements of the tort
without the heavy reliance on expert witnesses
and exhaustive discovery that are so
characteristic of many personal injury cases. If the defendant's conduct is outrageous (a matter as to which the opinions of experts are irrelevant) this may support an inference that the defendant caused plaintiff's suffering,
and that the plaintiff's suffering was severe.
Givelber, supra at 64 (emphasis added).
Footnote: 20 Part and parcel with this argument, Rite Aid contends that the verdict was based on passion, prejudice or mistake. Rite Aid asserts that its motion for a mistrial or for judgment in its favor should have been granted because of the short period of time that the jury took to change the inconsistent verdict form to find in favor of the Appellees. It asserts that the jury's conduct
demonstrates that it "failed to follow the trial Court's instructions, and had instead decided to simply punish Appellant
regardless of whether there was an injury in this case or not."
We think the more reasonable inference from the jury's speed in correcting the inconsistent verdict form is much less sinister than that propounded by the Appellant. Once instructed by the circuit court about the nature of the problem, the panel simply recognized its error and remedied it in short order. This conclusion is buttressed by the obviously careful attention that the jury paid to its duties. Runaway juries do not typically write
notes to presiding judges stating "[w]e would like you to tell us about battery again." Further, we note that the jury spotted an error in the verdict form that escaped the attention of both counsel and the court. The record does not disclose that the members of the jury were anything other than attentive and faithful to their oath.