Brent E. Beveridge
Thomas G. Steele
Fairmont, West Virginia Clarksburg, West Virginia
Attorney for the Appellants Attorney for the Appellees
The Opinion of the Court was delivered PER CURIAM.
2. The imposition of sanctions by a circuit court under W.Va.R.Civ.P. 37(b)
for the failure of a party to obey the court's order to provide or permit discovery is within the
sound discretion of the court and will not be disturbed upon appeal unless there has been an
abuse of that discretion. Syl. Pt. 1, Bell v. Inland Mut. Ins. Co., 175 W. Va. 165, 332 S.E.2d
127, cert. denied sub nom. Camden Fire Ins. Ass'n v. Justice, 474 U.S. 936 (1985).
3. 'In formulating the appropriate sanction, a court shall be guided by
equitable principles. Initially, the court must identify the alleged wrongful conduct and
determine if it warrants a sanction. The court must explain its reasons clearly on the record
if it decides a sanction is appropriate. To determine what will constitute an appropriate
sanction, the court may consider the seriousness of the conduct, the impact the conduct had
in the case and in the administration of justice, any mitigating circumstances, and whether
the conduct was an isolated occurrence or was a pattern of wrongdoing throughout the case.'
Syl. Pt. 2, Bartles v. Hinkle, 196 W.Va. 381, 472 S.E.2d 827 (1996). Syl. Pt. 1, Sheely v.
Pinion, 200 W.Va. 472, 490 S.E.2d 291 (1997).
4. Under W. Va. R. Evid. 803(8)(C), the contents of a public report, record or document are an exception to the hearsay rule and are assumed to be trustworthy, unless the opponent of the report establishes that the report is sufficiently untrustworthy. Syl. Pt. 4, Hess v. Arbogast, 180 W. Va. 319, 376 S.E.2d 333 (1988).
This is an appeal by Bonita Sue Hadox and Robert Hadox (hereinafter
Appellants) from a jury verdict in the Circuit Court of Marion County in favor of Raenna
Martin (hereinafter Appellee) in a personal injury action arising from an automobile
accident. The Appellants allege that the trial court erred by failing to admit the accident
report and certain medical bills, as well as by refusing to enter judgment for the Appellants
as a matter of law. Based upon the briefs, arguments, and record before this Court, we
reverse the decision of the Circuit Court of Marion County and remand for a new trial.
Immediately following the accident, Appellant Mrs. Hadox informed Sergeant
Cole that her neck and arm were aching. Her primary concern was that she was six to seven
weeks pregnant, and she was distressed regarding the possible effect of the accident upon her
unborn child. Mrs. Hadox reported to the emergency room on advice of her obstetrician, but
she refused to undergo neck x-rays due to her pregnancy. A cervical collar was placed on
her neck, and she was instructed to take Tylenol or Advil for pain. Within one week, Mrs.
Hadox suffered a miscarriage.See footnote 2
Approximately five weeks after the accident, Mrs. Hadox was examined by Dr.
Russell Buindo based upon complaints of neck pain. Dr. Buindo diagnosed a soft tissue
injury, right upper trapezius strain and a cervical sprain, and recommended physical
therapy. Based upon the advice of Dr. Buindo, Mrs. Hadox was treated by two physical
therapists from July 1996 through June 1997. Both physical therapists testified at trial that
their treatment was necessitated by the soft tissue injury, as diagnosed by Dr. Buindo. Mrs.
Hadox was thereafter examined by Dr. Buindo three times in 1998 and 1999.
In the Appellee's answer to the complaint, she admitted liability for the
accident which is the subject of this civil action, but denie[d] said accident was a proximate
cause of Plaintiffs' claimed injuries and damages. During the September 17, 1999, trial of
this matter, the lower court admitted only the bills from one physical therapist, Mountain
State Physical Therapy, in the amount of $2,907.00. The bills from Dr. Buindo and Madison
House Physical Therapy (hereinafter Madison House) were excluded based upon a pretrial
ruling requiring submission of evidence twenty days prior to trial.See footnote 3
The actual bills for Dr.
Buindo and Madison House were not provided by the Appellants to defense counsel until
four or five business days before trial. Defense counsel did have knowledge of the existence
of the bills and the Appellants' intention to use the bills as exhibits at trial. The Appellants
had not, however, disclosed the exact dollar amounts of the bills in the pretrial order due to
delays in obtaining the bills from PEIA.See footnote 4
Based upon this discovery violation, the lower
court refused to admit the Dr. Buindo and Madison House bills at trial.
During trial, the Appellee testified that she was traveling less than thirty miles
per hour at the time of impact; that the impact did not push the Hadox vehicle into the car in
front of the Hadox vehicle; and that the Appellee's vehicle barely hit the Hadox vehicle. In
an attempt to rebut the Appellee's characterization of the accident as relatively minor and
specifically to contradict the Appellee's particular assertion that the Hadox vehicle was not
pushed forward, the Appellants attempted to introduce the accident report prepared by
Sergeant Cole. Through introduction of the report, the Appellants sought to undermine the
credibility of the Appellee's statements regarding the severity of the accident through
evidence that both the front and rear of the Appellants' vehicle had been damaged.
The Appellee objected to the Appellants' attempted introduction of the accident
report, contending that the report was hearsay. The lower court sustained that objection and
immediately requested a bench conference. During that bench conference, the lower court
asked counsel for the Appellants if the accident report had been listed as an exhibit in the
pretrial order. The Appellants' counsel explained that the accident report had not been listed
as an exhibit because negligence wasn't an issue [the Appellee had admitted liability]. It
is now for impeachment purposes. The lower court again stated that the objection to the
accident report would be sustained.
At the conclusion of the trial, the jury returned a verdict awarding no damages
to the Appellants. The Appellants appeal that determination to this Court, requesting review
of the lower court's refusal to: (1) admit the accident report into evidence; (2) admit the
medical bills into evidence; and (3) enter judgment for the plaintiffs as a matter of law.
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.
With specific regard to our review of the lower court's imposition of sanctions for violations of time-frame orders, syllabus point one of Bell v. Inland Mutual Insurance Co., 175 W.Va. 165, 332 S.E.2d 127, cert. denied sub nom. Camden Fire Insurance Association v. Justice, 474 U.S. 936 (1985), provides as follows:
The imposition of sanctions by a circuit court under
W.Va.R.Civ.P. 37(b) for the failure of a party to obey the court's
order to provide or permit discovery is within the sound
discretion of the court and will not be disturbed upon appeal
unless there has been an abuse of that discretion.
We consequently review these issues under an abuse of discretion standard.
Rule 37(b)(2)(B) of the West Virginia Rules of Civil Procedure authorizes a trial court to
sanction a party for failure to obey a pretrial order by prohibiting that party from introducing
designated matters in evidence[.]
The failure to adhere to time constraints enumerated in pretrial orders and the
resulting sanctions was discussed by this Court in Sheely v. Pinion, 200 W.Va. 472, 490
S.E.2d 291 (1997). In syllabus point one of Sheely, we explained as follows:
In formulating the appropriate sanction, a court shall be guided by equitable principles. Initially, the court must identify the alleged wrongful conduct and determine if it warrants a sanction. The court must explain its reasons clearly on the record if it decides a sanction is appropriate. To determine what will constitute an appropriate sanction, the court may consider the seriousness of the conduct, the impact the conduct had in the case and in the administration of justice, any mitigating circumstances, and whether the conduct was an isolated occurrence or was a pattern of wrongdoing throughout the case. Syl. Pt. 2, Bartles v. Hinkle, 196 W.Va. 381, 472 S.E.2d 827 (1996).
In Bartles, we explained:
On the appeal of sanctions, the question is not whether we
would have imposed a more lenient penalty had we been the
trial court, but whether the trial court abused its discretion in
imposing the sanction. It does not mean, however, that we will
rubber stamp the sanction decisions of a trial court. Both Rule
16(f) and 37(b) of the Rules of Civil Procedure allow the
imposition of only those sanctions that are "just."
196 W.Va. at 389-90, 472 S.E.2d at 835-36 (citation omitted).
As the United States Supreme Court recognized in Chambers v. NASCO, Inc.,
501 U.S. 32 (1991), [b]ecause of their very potency, . . . [sanction] powers must be
exercised with restraint and discretion. . . . A primary aspect of . . . [a trial court's] discretion
is the ability to fashion an appropriate sanction for conduct which abuses the judicial
process. Id. at 44-45 (citation omitted). This Court summarized the difficulties
encountered in fashioning appropriate sanctions and the need to refrain from overly harsh
sanctions as follows in Bartles:
It is hard to find an area of the law in which the governing rules are, and probably have to be, so vague. Admittedly, a trial court has broad authority to enforce its orders and to sanction any party who fails to comply with its discovery rulings. Doulamis v. Alpine Lake Property Owners Ass'n, 184 W.Va. 107, 399 S.E.2d 689 (1990); W.Va.R.Civ.P. 16(f) & 37(b)(2). The difficulty is that the range of circumstances is so vast, and the problems so much matters of degree, as to defy mechanical rules. Taken together, the cases set forth a list of pertinent considerations. Among those commonly mentioned are the public's interest in the expeditious resolution of litigation, the court's need to manage its docket, the severity of the violation, the legitimacy of the party's excuse, the repetition of violations, the deliberateness vel non of the misconduct, mitigating excuses, prejudice to the other side and to the operations of the court, and the adequacy of other sanctions. See 9 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2370 (2nd ed. 1995).
196 W. Va. at 389, 472 S.E.2d at 835.
In a concurrence to Cox v. State, 194 W. Va. 210, 460 S.E.2d 25 (1995), Justice
Cleckley explained that a circuit court must be guided by equitable considerations in
formulating appropriate sanctions. Id. at 218, 460 S.E.2d at 33.
First, the circuit court must consider the conduct at issue and explain why the conduct warrants sanction. Obviously, a pattern of wrongdoing may require a stiffer sanction than an isolated incident. . . . Wrongdoing that actually prejudices the wrongdoer's opponent or hinders the administration of justice may demand a stronger response than wrongdoing that, through good fortune or diligence of the court or counsel, fails to achieve its untoward object. Furthermore, there may be mitigating factors that must be accounted for in shaping a circuit court's response.
Id. at 218-19, 460 S.E.2d at 33-34. Justice Cleckley noted that the trail of omissions existing in Cox were long, callous, and egregious and therefore warranted sanctions by the lower court in that case. Id. at 219, 460 S.E.2d at 34.
In the case sub judice, however, we conclude that the lower court's imposition
of the penalty of exclusion of the medical bills from Dr. Buindo and Madison House was not
justified under these circumstances. The violation was minimal, isolated, and unlikely to
prejudice the Appellee's rights. The Appellee knew of the existence of those bills and the
Appellants' intention to present them as exhibits as trial, but did not have knowledge of the
precise amounts of those bills. The bills were properly disclosed as exhibits in the pretrial
order; only the dollar amounts were left blank. The record is devoid of evidence indicating
that this omission was malicious or intentionally deceptive. Moreover, the Appellants
advanced a legitimate reason for the late disclosure of the precise dollar amounts, explaining
their inability to obtain exact bills through the PEIA insurance process.
Further, the Appellants were distinctly prejudiced by the exclusion of the bills.
They were deprived of the ability to prove the specific dollar amounts of bills incurred, as
reflecting necessary treatment resulting from the injuries incurred in the accident. We
consequently find that the lower court abused its discretion in excluding the medical bills in
The Appellants assert that the accident report was admissible under Rule
803(8) of the West Virginia Rules of Evidence, as an official government record, and also
admissible due to Sergeant's Cole's unavailability at trial.See footnote 5
Rule 803(8) of the West Virginia
Rules of Evidence provides as follows:
Rule 803. Hearsay Exceptions: Availability of Declarant Immaterial.
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
. . . .
(8) Public Records and Reports.--Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the state in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.
In Ours v. West Virginia Department of Motor Vehicles, 173 W. Va. 376, 315
S.E.2d 634 (1984), this Court explained: As a general rule, accident reports are admissible
under the official records exception to the hearsay rule if they meet certain criteria calculated
to insure their reliability and trustworthiness. Id. at 380, 315 S.E.2d at 639. In syllabus
point four of Hess v. Arbogast, 180 W. Va. 319, 376 S.E.2d 333 (1988), this Court observed:
Under W.Va.R.Evid. 803(8)(C), the contents of a public report, record or document are an
exception to the hearsay rule and are assumed to be trustworthy, unless the opponent of the
report establishes that the report is sufficiently untrustworthy.
The Appellants attempted to introduce the accident report to substantiate their
claim of the existence of damage to both the front and rear of the their vehicle, a fact
necessary to successful rebuttal of the Appellee's claims that the impact did not cause the
Appellants' vehicle to lurch forward and hit the vehicle in front of the Appellants' vehicle.
The trial court's exclusion of the accident report was prejudicial since that report constituted
the primary means through which the Appellants could have disproved the Appellee's
contention that the Appellants were exaggerating the seriousness of the accident. We
conclude that the Appellants established the necessary predicates for the admission of the
accident report under West Virginia Rule of Evidence 803(8).
The alternate ground for the exclusion of the accident report was premised
upon the Appellants' failure to list the accident report as a potential exhibit during pretrial
proceedings. The Appellants contend that the accident report was not listed as an exhibit
because the Appellee had admitted liability. The accident report became imperative only as
rebuttal to the Appellee's claims of insignificant damage resulting from the accident.
Under these circumstances, and consistent with our conclusions regarding the
severity of the lower court's sanction for discovery violations on the issue of introduction of
medical bills, we conclude that the trial court also abused its discretion and committed
reversible error by excluding the accident report. The report was of a critical nature, so that
there is no reasonable assurance that the jury would have reached the same conclusion had
the evidence been admitted. Adams v. Fuqua Indus., Inc., 820 F.2d 271, 273 (8th Cir. 1987)
(holding that accident report was necessary to presentation of case and exclusion was in
[a] statement not specifically covered by any of the foregoing
exceptions [former testimony, statement under belief of
impending death, statement against interest, or statement of
personal or family history] but having equivalent circumstantial
guarantees of trustworthiness, if the court determines that (A)
the statement is offered as evidence of a material fact; (B) the
statement is more probative on the point for which it is offered
than any other evidence which the proponent can procure
through reasonable efforts; and (C) the general purposes of
these rules and the interests of justice will best be served by
admission of the statement into evidence. However, a statement
may not be admitted under this exception unless the proponent
of it makes known to the adverse party, sufficiently in advance
of the trial or hearing to provide the adverse party with a fair
opportunity to prepare to meet it, the proponent's intention to
offer the statement and the particulars of it, including the name
and address of the declarant.
Based upon our conclusion that the accident report was admissible under Rule 803(8), we do not address the Appellants' contention that Sergeant Cole's unavailability renders the report admissible.