Opposition Brief — Potomac Edison Co. v. Helmick

Suprema Court, U.S.

FILED

3) SEP 11 199]

No. 91-265 OFFIGE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1991

-

POTOMAC EDISON COMPANY,

Petitioner,

JOE D. HELMICK, TAMM. HELMICK,

CARL BELT, INC., and HESTER INDUSTRIES, INC.,

Respondents.

+

Petition For A Writ Of Certiorari

To The Supreme Court Of Appeals

Of West Virginia

*

BRIEF OF RESPONDENTS JOE D. HELMICK

AND TAMMY HELMICK IN OPPOSITION

.

* FRANK E. SIMMERMAN, JR.

ALLEN, JOHNSON & SIMMERMAN

P.O. Box 150

Clarksburg, West Virginia 26302

(304) 624-6555

* Counsel of Record for

Respondents Joe D. Helmick and

Tammy Helmick

Of Counsel:

DonaLD H. CookMAN

CookMAN & MorELAND

92 East Main Street

Romney, West Virginia 26757

(304) 822-3566

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

~\

QUESTION PRESENTED

Whether the combination of: (1) West Virginia’s sys-

tem of comparative negligence; (2) West Virginia’s Rules

on Joint and Several Liabilities; and (3) West Virginia’s

Statutory Workers’ Compensation Immunity violate Fed-

eral due process and equal protection principles?

For the benefit of this Court, it should be noted that:

as conceded by Potomac Edison Company, the question

presented in this Petition is essentially identical to the

first question presented in Monongahela Power v. Miller,

Cert. Pending, No. 91-146 (filed July 22, 1991). (See Peti-

tion page 7, footnote 4.) Moreover, it should be noted that

both Monongahela Power Company and Potomac Edison

Power Company are wholly owned subsidiaries of Alle-

gheny Power System, Inc. (See pages numbered ii of both

Petitions 91-146 and 91-265.)

il

TABLE OF CONTENTS

Page

CUIRS TH POO CN eS oon ic cece escscensseeenes i

TABLE OF AUTIOOIRETIOG «occ ccciccvcvscevencse iii

PRELIMINARY STATEMENT ...................-:. 1

OPINIONS AND ORDERS BELOW ................ 2

PaO se 6 a0 6s 664455 05005069 445 e eee ene ee 3

aeay ETS GW BRE CO vase eas Uasewdenanen 3

REASONS FOR DENYING THE WRIT............. 6

I. The Petition Should Be Denied Because West

Virginia’s System Of Comparative Negligence,

Combined With West Virginia’s Rules on Joint

And Several Liability, And West Virginia’s

Statutory Workers’ Compensation Immunity

Constitute A System Of State Law Tort Princi-

ples Which Are Not Wholly Arbitrary Or Irra-

tional And Which Do Not Violate Fourteenth

pg ee 7

Il. The Petition Should Be Denied Because The

Transparency Of Potomac Edison’s Argument

That West Virginia’s Tort System Is Wholly Arbi-

trary Or Irrational Is Best Illustrated By The Facts

That Hester Industries, Inc., Through Its Counsel,

Has, In These Proceedings, Made Equally Compel-

ling Arguments That The West Virginia Tort Prin-

ciples Under Consideration Are Both

Constitutional And Unconstitutional ........... 11

CR RES os 6 v.00 cu stduvudeaneea eee eaaee cee 13

APPENDIX OF RESPONDENTS JOE D. HELMICK

PAIGE? EAE L TUES oss vad nscnsnaneeveseeas A-1

ili

TABLE OF AUTHORITIES

Page

Cases

Atlantic Coast Line R.R. Co. v. Erie Lackawanna

R.R. Co., 406 U.S. 340 (1972) (per curiam) ......... 8

Bowman v. Barnes, 168 W. Va. 11, 282 S.E.2d 6113

EE ED 5

Carlson v. Smogard, 298 Minn. 362, 215 N.W.2d

eee nay Che ay anvestsscesesccess 8

Couch v. Thomas, 26 Ohio App. 3d 55, 497 N.E.2d

EG aca Send ec veceserevcssccces 8

Crab Orchard Improvement Co. v. Chesapeake &

Ohio Ry. Co., 115 F.2d 277, 282 (4th Cir.), cert.

|) a 10

Feres v. United States, 340 U.S. 135 (1950) ........... 9

Halcyon Lines v. Haenn Ship Ceiling & Refitting

Ce . : 9

Hudson v. Union Carbide Corp., 620 F.Supp. 558

lee ssececthessecceevereses 8

Jones v. Laird Foundation, Inc., 156 W. Va. 479, 195

eee cies tccce ev esnscccecsssceees 10

Kentucky Utilities Co. v. Jackson County Rural

Elec. Coop. Corp., 438 S.W.2d 788 (Ky. 1969)....... 8

L.M. Duncan & Sons v. City of Clearwater, 478

EE 8

Lockheed Aircraft Corporation v. United States,

ES osc c ceive cee cccccseesvcces 9, 10

Mandbolidis v. Ellkins, Industries, Inc., __ W. Va.

Ss 4

Martinez v. California, 444 U.S. 277 (1980) ........... 8

iv

TABLE OF AUTHORITIES - Continued

Page

Mulder v. Acme-Cleveland Corp., 95 Wis. 2d 173,

yA Rg eee rr eee ree 8

National Fruit Product Co. v. Balitmore & Ohio

R.R. Co., __ W. Va. ___, 329 S.E.2d 125 (1985)

Eee Tere rT ee Ce Pee ro ee 2, 10, 11

Raisler v. Burlington Northern R.R. Co., 219 Mont.

yee FB | errr eee ererT rere r ree 8

Stencel Aero Engineering Corp. v. United States,

pre ee ET 5 0. ov ots a viene oeaw nd ye anNs ch0% 9

Sunspan Engineering & Construction Co. v.

Spring-Lock Scaffolding Co., 310 So.2d 4 (Fla.

RP ee oy te Oe yee ty tn ere 8

Sydenstricker v. Unipunch Products, Inc., 169 W.

VO. SGD, TES GEO Ble CP 6 cence cdswercesdees 10

Tsarnas v. Jones & Laughlin Steel Corp., 418 Pa.

a ee ee Pe SI a cc eS eee cpesaredes chee 8

Weyerhaeuser S.S. Co. v. United States, 372 U.S.

We SE Cocoa ec erreur ruc cen cen cdun eee T ease ees 9

CONSTITUTIONAL PROVISIONS,

STATUTES AND RULES

Be AP cee s erick ee serenade an ses awa b es 2

Longshoremen’s and Harbor Workers’ Compensa-

OM AGE, Be UDA. Bete va vcceeedsccvesceser: 9

West Virginia Code §23-4-2 (Supp. 1991)............ 10

No. 91-265

¢

In The

Supreme Court of the United States

October Term, 1991

.

POTOMAC EDISON COMPANY,

Petitioner,

V.

JOE D. HELMICK, TAMMY HELMICK,

CARL BELT, INC., and HESTER INDUSTRIES, INC.,

Respondents.

¢

Petition For A Writ Of Certiorari

To The Supreme Court Of Appeals

Of West Virginia

¢

BRIEF OF RESPONDENTS JOE D. HELMICK

AND TAMMY HELMICK IN OPPOSITION

+

PRELIMINARY STATEMENT

Through its Petition, Potomac Edison Company

requests this Court exercise its discretion to review

whether the combination of (1) West Virginia’s system of

comparative negligence; (2) West Virginia’s Rules on Joint

and Several Liability; and (3) West Virginia’s Statutory

Workers’ Compensation Immunity violate due process

and equal protection principles when a unanimous West

Virginia Supreme Court of appeals has concluded that

this tort system does not violate the United States Consti-

tution.

Moreover, while contending that the West Virginia

Tort system is wholly arbitrary and irrational, Potomac

Edison concedes that “other State and Federal Courts

have rejected constitutional arguments akin to those pre-

sented by this (its) Petition.” Potomac Edison Petition at

16. Potomac Edison also requests that this Court fashion a

remedy when Potomac Edison has been unable to pre-

cisely describe the relief to which it claims to be entitled,

and the West Virginia Supreme Court of appeals has held

that “judicial intrusion into the statutory framework, par-

ticularly on so complex an issue, is unwarranted,” and

best left to the legisiature. National Fruit Product v. The

Baltimore & Ohio R.R. Co., 329 S.E.2d 125 at (West Virginia,

1985). Potomac Edison’s assertions notwithstanding, the

issues presented by the Petition do not involve a substan-

tial Federal question, do not present any issue appropri-

ate for review, and Respondents Joe D. Helmick and

Tammy Helmick pray that this Petition for Writ of Cer-

tiorari be denied.

OPINIONS AND ORDERS BELOW

Respondents Joe D. Helmick and Tammy Helmick

accept Petitioner’s statement of the applicable opinions

and orders below.

JURISDICTION

The Petitioner claims that jurisdiction lies under 28

U.S.C. §1257; however, Petitioner has failed to identify

any of the grounds for which Certiorari should be

granted, as set forth in Rule 10 of the Rules of this Court.

¢

STATEMENT OF THE CASE

On October 24, 1986, Respondent Joe D. Helmick was

employed as a laborer by Respondent Carl Belt, Inc. On

that date, Carl Belt, Inc. was performing construction

work for Respondent Hester Industries, Inc. On October

24, 1986, while Respondent Helmick was assisting in the

movement of a guy wire which supported a 19.9 kilovolt

phase to ground terminal pole, the guy wire was electri-

fied and Mr. Helmick suffered severe burns to his left

forearm and the soles of his feet, ultimately resulting in

the amputation of his left arm at the elbow.

In 1987, Mr. Helmick filed a claim for Workers’ Com-

pensation benefits against his employer, Respondent Car!

Belt, Inc., and was ultimately awarded $53,760.00.

In October, 1988, Respondents Joe D. and Tammy

Helmick filed the instant action against: 1) Petitioner

Potomac Edison Company, alleging negligent design and

construction of the terminal pole and associated guy

wire; 2) Respondent Carl Belt, Inc., seeking recovery

beyond Workers’ compensation benefits for deliberate

and intentional exposure-to a known hazard; and 3)

against Respondent Hester Industries, Inc. predicated

upon Potomac Edison Company’s prior assertion that

Hester Industries, Inc. owned the subject terminal pole

and guy wire and was thus responsible for design and/or

construction defects.

As conceded by Potomac Edison Company, West Vir-

ginia’s Workers’ Compensation laws do allow both

employees and Third party tort-feasors to pursue

employers directly, or for contribution, in limited circum-

stances. Specifically, if the employee and/or third party

can meet the burden of proof imposed by Mandolidis v.

Elkins Industries, Inc., __ W. Va. __, 246 S.E.2d 907

(1978), and its progeny.

Prior to trial, the Helmicks dismissed their Mandolidis

claim against Respondent Carl Belt; however, Petitioner

Potomac Edison continued to assert its cross-claim for

contribution and indemnification against Carl Belt, Inc.,

predicated upon, among others, Mandolidis grounds.

According to the pleadings, the order of proof was

Plaintiffs Joe D. Helmick and Tammy Helmick, followed

by Potomac Edison Company, to be followed by Carl Belt,

Inc. and Hester Industries, Inc.

At the conclusion of Potomac Edison's case, Car! Belt,

Inc., through counsel, moved for the entry of a directed

verdict predicated upon Potomac Edison Company’s fail-

ure to meet the burdens of proof established under Man-

dolidis. In response to the Motion for Directed Verdict,

Potomac Edison Company, through its counsel, strenu-

ously argued that it had met the requisite Mandolidis

burden. Potomac Edison failed to assert at trial that dis-

missal of its claims for contribution against Carl Belt, Inc.

would result in the deprivation of any constitutionally

protected right. (The issue raised in the Petition). The

trial court concluded that Potomac Edison had failed to

meet its burden of proof and Respondent Carl Belt, Inc.

was granted a directed verdict as to all claims theretofore

asserted by Potomac Edison.

Consistent with the general rules of comparative neg-

ligence, and the holdings of Bowman v. Barnes, 168 W. Va.

11, 282 S.E.2d 613 (1981), juries in West Virginia are

required to assess fault among all parties proximately

contributing to causation. Accordingly, the jury was

given a special verdict form which directed it to deter-

mine the negligence, if any, of the parties to the accident,

Joe D. Helmick, Potomac Edison, Inc., and Carl Belt, Inc.

The jury concluded that Joe D. Helmick had not been

negligent; however, both Potomac Edison Company and

Carl Belt, Inc. were guilty of negligence which prox-

imately caused the accident. The jury then assigned unto

Potomac Edison Company, 40% of the negligence which

had proximately caused the accident and assigned unto

Carl Belt, Inc., 60% of all negligence. Notably, Carl Belt,

Inc. had offered no evidence, had not been present nor

represented at argument, and the assignment to Carl Belt,

Inc. was an assignment to an “empty chair” defendant.

The jury further found that Hester Industries, Inc., did

not breach Paragraph Fifteenth of its contract with Pot-

omac Edison, Inc. and consistent with West Virginia law

under the Principles of Joint and Several Liability, the

entire verdict was assessed against Petitioner Potomac

Edison, Inc., which including pre-judgment interest,

totalled $515,621.86.

Thereafter, through a series of post-trial motions, Pot-

omac Edison Company first asserted its claim that dis-

missal of its claim for contribution against Carl Belt, Inc.

——E

constituted a deprivation of Federal constitutional protec-

tions. Each and every post-trial motion filed on behalf of

Potomac Edison Company was denied by the Circuit

Court of Hampshire County.

On September 18, 1990, the West Virginia Supreme

Court of Appeals granted Potomac Edison’s Petition for

Appeal, and the instant claims of deprivation of constitu-

tional protections were among the nine various errors

assigned by Potomac Edison. Potomac Edison Company

invited the West Virginia Supreme Court of Appeals to re-

write the laws of contribution and indemnity, arguing

that deprivation of Potomac Edison’s right to seek contri-

bution from Carl Belt, Inc. violated the Fourteenth

Amendment to the United States Constitution, as well as

the West Virginia Constitution. In an opinion dated June

27, 1991, the West Virginia Supreme Court of Appeals

unanimously rejected this argument, relying upon its

recent ruling in Miller v. Monongahela Power Company, ___

W. Va. __, 403 S.E.2d 406 (1991), Cert. Pending, No.

91-146 (July 22, 1991).

In Miller, the West Virginia Supreme Court held that

the combination of: (1) West Virginia’s System of Com-

parative Negligence; (2) West Virginia’s Rules on Joint

and Several Liability; and (3) West Virginia’s Statutory

Workers’ Compensation Immunity does not violate Fed-

eral due process and equal protection principles.

¢

REASONS FOR DENYING THE WRIT

The Petition for Writ of Certiorari does not even

allege that this case satisfies the criteria specified in Rule

10 for review by this Court. There is no allegation that the

West Virginia Supreme Court of Appeals’ decision in

Miller or Helmick is in conflict with any other decision

construing West Virginia’s System of Comparative Negli-

gence, coupled with West Virginia’s Rules on Joint and

Several Liability and West Virginia’s Statutory Workers’

Compensation Immunity.

As conceded in the instant Petition at page 16, “Other

State and Federal courts have rejected constitutional

arguments akin those presented by this Petition.”

The Petition does not identify any important question

of law which has not been, but which should be settled

by this Court. Instead, the Petition reveals that Potomac

Edison Company is simply dissatisfied with the imposi-

tion of liability imposed under established State law tort

principles by the Circuit Court of Hampshire County and

a unanimous West Virginia Supreme Court of Appeals.

The decisions of these courts were correct and need not

be reviewed by this Court.

I. The Petition Should Be Denied Because West Vir-

ginia’s System Of Comparative Negligence, Com-

bined With West Virginia’s Rules On Joint And

Several Liability, And West Virginia’s Statutory

Workers’ Compensation Immunity Constitute A Sys-

tem Of State Law Tort Principles Which Are Not

Wholly Arbitrary Or Irrational And Which Do Not

Violate Fourteenth Amendment Principles.

This Court has stated “that the State’s interest in

fashioning its own rules of tort law is paramount to any

discernible Federal interest, except perhaps to an interest

in protecting the individual citizen from State action that

is wholly arbitrary or irrational.” Martinez v. California,

444 U.S. 277, 282 (1980).

Only one of the cases which Petitioner cites as sup-

porting its position, Carlson v. Smogard, 215 N.W.2d 615

(1974), purports to be controlled by constitutional princi-

ples, although the Court there relied on both State and

Federal constitutional provisions in a most conclusory

manner. The other cases cited by the Potomac Edison

Company turn on statutory interpretations, Couch v.

Thomas, 26 Ohio App. 3d 55, 497 N.E.2d 1372 (1985),

Kentucky Utilities Co. v. Jackson County Rural Elec. Coop.

Corp., 438 S.W.2d 788 (Ky. 1969), or contractual and state

constitutional provisions, L.M. Duncan & Sons v. City of

Clearwater, 478 So.2d 816 (Fla. 1985) and Sunspan Engineer-

ing & Construction Co. v. Spring-Lock Scaffolding Co., 310

So.2d 4 (Fla. 1975).

Contrary to Potomac Edison Company’s assertions,

West Virginia’s tort and Workers’ Compensation systems

of Joint and several liability and employer immunity is

not unique to West Virginia. Similar tort principles exist

throughout America without violating constitutional

standards. Hudson v. Union Carbide Corp., 620 F. Supp. 558

(N.D. Ga. 1985); Raisler v. Burlington Northern R.R. Co.,

219 Mont. 254, 717 P.2d 535 (1985); Tsarnas v. Jones &

Laughlin Steel Corp., 418 Pa. 513, 412 A.2d 1094 (1980);

Mulder v. Acme-Cleveland Corp., 95 Wis. 2d 173, 290

N.W.2d 276 (1980).

This Court has previously considered virtually the

same issues as those presented in this action in Atlantic

Coast Line R.R. Co. v. Erie Lackawanna R.R. Co., 406 U.S.

ited ba.

340 (1972) (per curiam), and Halcyon Lines v. Haenn Ship

Ceiling & Refitting Corp., 342 U.S. 282 (1952), where this

Court refused to allow third-party tort-feasors to obtain

contribution from employers who were covered by the

limitation of liability provisions of the Longshoremen’s

and Harbor Workers’ Compensation Act (33 U.S.C.

§§ 901-950). In Lockheed Aircraft Corporation v. United

States, 460 U.S. 190 (1983) and in Weyerhaeuser S.S. Co. v.

United States, 372 U.S. 597 (1963), cited by the Petitioner,

the issue of third-party indemnity was resolved solely on

the basis of statutory interpretation to permit the indem-

nity claims by the third party against the employer. The

issue of limiting third-party claims against employers

was also before this Court in Stencel Aero Engineering

Corp. v. United States, 431 U.S. 666 (1977) in which the

plaintiff was injured when the ejection seat of a jet fighter

malfunctioned during flight, permanently injuring the

pilot. The pilot sued Stencel, the manufacturer of the

ejection system, for negligence. Stencel cross-claimed

against the United States for indemnity. Stencel claimed it

was passively negligent while the government’s active

negligence caused the injuries. The pilot, like Helmick in

this action, had received compensation. This Court dis-

missed Stencel’s third-party claims under the limitation

of liability provision of Feres v. United States, 340 U.S. 135

(1950), which immunizes the United States from a claim

asserted by a member of the military, which is essentially

identical to the immunity of the employer (Carl Belt) in

the state of West Virginia from a claim asserted by an

employee (Helmick).

West Virginia maintains a comprehensive system of

Workers’ Compensation which includes the balancing of

10

interests of the employee, employer and third parties.

Besides granting recovery to employees against non-neg-

ligent employers and denying contribution claims

grounded in negligence by third parties against

employers, the system also provides protection for third-

party tort-feasors by precluding employers from recov-

ering Workers’ Compensation benefits paid to employees

injured by negligent third parties, all as part of the quid

pro quo in the balancing of the competing interests of the

employee, employer and third parties. Lockheed, supra, at

198. National Fruit Product Co. v. Baltimore & Ohio R.R. Co.,

__ W. Va. __, 329 S.E.2d 125 (1985) and Crab Orchard

Improvement Co. v. Chesapeake & Ohio Ry. Co., 115 F.2d 277,

282 (4th Cir.), cert. denied, 312 U.S. 702 (1940). It is

imperative to note that both employees and third parties

are afforded the identical right to recover from an

employer either directly or by contribution, providing the

claim is based upon an injury from conduct rising to a

standard of deliberate intent. Sydenstricker, 288 S.E.2d at

511; W. Va. Code § 23-4-2 (Supp. 1991). Also included

within this comprehensive statutory scheme is West Vir-

ginia’s treatment of the receipt of Workers’ Compensation

benefits as a collateral source as it relates to third-party

tort-feasors. See Jones v. Laird Foundation, Inc., 156 W. Va.

479, 195 S.E.2d 821 (1973). Petitioner’s argument is

merely a veiled attempt to avoid the collateral source rule

as established and applied in West Virginia.

Finally, this Court is directed to page 132 of National

Fruit Product Co. v. Baltimore & Ohio R.R. Co., supra, where

the West Virginia Supreme Court of Appeals was urged to

recognize the reciprocal cause of action now sought by

Petitioner, to-wit: to allow an employer to recover

od be

11

Workers’ Compensation benefits from a negligent third

party. In National Fruit, the West Virginia Supreme Court

declined to allow such recovery, ultimately stating that:

“We have traditionally stated that our Workers’

Compensation System is entirely a statutory

creature and for this reason we feel that judicial

intrusion into the statutory framework, partic-

ularly on so complex an issue, is unwarranted.

Subrogation statutes are of necessity extremely

complex and detailed because they must be

designed to anticipate all of the multifaceted

problems that may occur.” 329, S.E.2d, at 132

The West Virginia Supreme Court then identified

some of the issues and problems which would be raised,

and identified problem areas affecting Workers’ Compen-

sation immunity, joint and several liability, contribution,

subrogation, mitigation of damages and standing, among

others. See National Fruit Products Co., supra, at 132, note

5.

Like the West Virginia Supreme Court of Appeals, ©

this Court should decline to exercise judicial intrusion

into such complex statutory framework and the instant

Petition should be denied.

II. The Petition Should Be Denied Because The Trans-

parency Of Potomac Edison’s Argument That West

Virginia’s Tort System Is Wholly Arbitrary Or Irra-

tional Is Best Illustrated By The Facts That Hester

Industries, Inc., Through Its Counsel, Has, In These

Proceedings, Made Equally Compelling Arguments

That The West Virginia Tort Principles Under Con-

sideration Are Both Constitutional And Unconstitu-

tional.

On or about September 5, 1991, Hester Industries,

Inc., through its Counsel, filed its Response Brief In

12

Support Of Petition For a Writ of Certiorari, arguing that

“The system of tort liability to compensate injured

workers in West Virginia is violative of the Fourteenth

Amendment principles of equal protection and due pro-

cess as applied to third parties.” In its brief, Hester fails

to disclose that on or about July 17, 1990, in Defendant

Hester Industries’ Response to Defendant Potomac Edi-

son’s Petition for Appeal, Hester Industries, Inc. con-

tended that “Denial of contribution to Potomac Edison

does not constitute a denial of its constitutional rights.”!

Although Counsel for Hester Industries, Inc. appears

to have forgotten the position it previously urged upon

the West Virginia Supreme Court of appeals, this Court is

directed to pages 9-14 of the Appendix hereto wherein

Hester Industries, Inc. makes a compelling argument for

the constitutionality of the West Virginia tort system, then

distinguishing many of the cases it now relies upon. Although

it may be subject to argument, it is submitted that if the

West Virginia tort system were wholly irrational or arbi-

trary, counsel could not advance such inconsistent argu-

ments in good faith.

1 See page 5, heading “Issues”, subparagraph numbered 2.

of Defendant Hester Industries’ Response to Defendant Pot-

omac Edison’s Petition for Appeal, reprinted in full text in the

Appendix hereto.

wt > tesmiwieliill

13

CONCLUSION

For the foregoing reasons, Respondents Joe D. Hel-

mick and Tammy Helmick respectfully request that the

Petition for Writ of Certiorari be denied.

Respectfully submitted,

* FRANK E. SIMMERMAN, JR.

ALLEN, JOHNSON & SIMMERMAN

P.O. Box 150

Clarksburg, West Virginia 26302

(304) 624-6555

* Counsel of Record for

Respondents Joe D. Helmick and

Tammy Helmick

Of Counsel:

DonaLD H. CookMAN

CooKMAN & MorELAND

92 East Main Street

Romney, West Virginia 26757

APPENDIX

A-1

IN THE SUPREME COURT OF APPEALS

OF WEST VIRGINIA

AT CHARLESTON

JOE D. HELMICK and

TAMMY HELMICK,

Plaintiffs,

(Circuit Court of

Hardy County

POTOMAC EDISON COMPANY, — County

a Maryland corporation, No. 88-C-118)

HESTER INDUSTRIES, INC., NO.

a West Virginia corporation,

and CARL BELT, INC., a

Maryland corporation,

VS.

Defendants.

DEFENDANT HESTER INDUSTRIES RESPONSE TO

DEFENDANT POTOMAC EDISON’S PETITION FOR

APPEAL

WALLACE, ROSS AND GIBSON

By: /s/ Joseph A. Wallace

Joseph A. Wallace

/s/ Geraldine S. Roberts

Geraldine S. Roberts

P. O. Box 1669

Elkins, W. V. 26241

Counsel for Defendant,

Hester Industries, Inc.

A-2

I. NATURE OF PROCEEDINGS AND RULINGS

BELOW

1. The defendant, Hester Industries (hereinafter

Hester) opposes defendant Potomac Edison’s petition for

reversal of the final order of the Circuit Court of Hardy

County in this action.

2. This action was originally filed by the Plaintiffs

solely against Potomac Edison. In their answers to inter-

rogatories, Potomac Edison alleged that Hester owned

the utility pole in question, which resulted in the Plain-

tiffs amending their complaint to add Hester as a defen-

dant, in Hardy County Circuit Court, not Federal Court,

as stated by Potomac Edison in its request for appeal.

3. Prior to trial, the Plaintiffs dismissed their claim

against Carl Belt, Inc. At trial, the judge dismissed Pot-

omac Edison’s cross-claim against Carl Belt, Inc. at the

close of testimony. All claims against Hester were dis-

missed except for the contract indemnification issue. See

Trial Transcript pp. 548 and 575.

4. On the issue of whether Hester Industries was

liable under the indemnification clause of its contract

with Potomac Edison, the jury found that Hester Indus-

tries was not liable. In its verdict form the jury found that

Carl Belt was 60% (sixty percent) negligent, and Potomac

Edison was 40% (forty-percent) negligent.

5. Because there was insufficient evidence to hold

Carl Belt liable for Mandolidis-type negligence, the court

denied Potomac Edison’s request for contribution against

Carl Belt.

A-3

6. Approximately nine months after trial, Potomac

Edison sent out an investigator to interview members of

the jury. Based on the information uncovered at that time,

Potomac Edison requested that the judge reimpanel the

jury. This motion was denied.

Il. STATEMENT OF FACTS

The accident from which this action arose occurred

on October 24, 1986, when employees of Carl Belt, Inc.

were performing work on Hester Industries property.

Carl Belt, Inc. was an independant contractor expanding

Hester facilities in Moorefield, West Virginia. The work

involved digging a ditch near a building. A guy wire to

an electrical pole, which had been installed by Potomac

Edison, was obstructing the work of Carl Belt. Carl Belt’s

supervisors had contacted Potomac Edison twice

unsucessfully to move the guy wire, and therefore

decided to move the guy wire themselves, without the

knowledge of Hester Industries. While moving this guy

wire, the wire came in contact with charged electrical

apparatus at the top of the pole, which resulted in the

injury to Joe Helmick.

The pole to which the guy wire was attached had

been installed by Potomac Edison prior to October 24,

1986, pursuant to a request by Hester Industries, for

electrical service. Location and design of the pole were

determined solely by Potomac Edison. The agreement

between Hester Industries and Potomac Edison was a

standard electrical service agreement produced by Pot-

omac Edison. The agreement included an indemnification

A-4

clause, and a clear recitation that Potomac Edison owned

all poles and equipment. See Exhibit A.

In its Answer, Potomac Edison alleged that Hester

Industries owned said pole, which Potomac Edison

argues should relieve Potomac Edison of any liability

concerning the installation of the pole. At trial, the issue

of pole ownership was argued by Potomac Edison with-

out supporting evidence. Potomac Edison also argued

that their customer had insulated it from liability by

executing the required service agreement which con-

tained paragraph seven, the indemnification clause and

paragraph fifteen, the removal or tampering clause. The

Circuit Court directed a verdict on the indemnification

issue. The other issue under the electrical service agree-

ment was submitted to the jury, which found that Hester

was not negligent and paragraph fifteen would therefore

not apply.

At jury selection held prior to trial, extensive voir

dire was conducted by counsel for all parties in the case,

including Potomac Edison. The questions now alleged by

Potomac Edison to require a new trial were never asked

during voir dire. See Transcript of Voir Dire.

Discovery cut-off in this case was July 3, 1989 and the

jury was selected on July 10, 1989. Potomac Edison did

not reveal its expert witness, despite prior requests for

disclosure of witnesses (see Exhibit B, Interrogatory to

Potomac Edison No. 23), until approximately noon on

Sunday, July 16, 1989 with opening statements scheduled

for 9:00 A.M. the following day. The Plaintiffs’ Motion in

Limine to exclude the testimony of Potomac Edison’s

expert was granted by the Circuit Court.

A-5

On July 14, 1989, two (2) days before trial and thir-

teen (13) days after discovery cut-off, Potomac Edison

filed an Amended Complaint raising the indemnification

issue for the first time. The trial court permitted the

untimely raising of this issue over Hester’s objection.

Nevertheless, the jury resolved this matter in Hester’s

favor.

III. ISSUES

1. The circuit court had adequate basis for directing

a verdict in favor of Carl Belt as to Potomac Edison’s

cross-claim for indemnification and contribution.

2. Denial of contribution to Potomac Edison does

not constitute a denial of its constitutional rights.

3. The circuit court did not err in refusing to allow

contribution by Potomac Edison against Carl Belt.

4. The circuit court did not err in granting Hester’s

motion for a directed verdict on Potomac Edison’s cross-

claim for indemnification based upon the contract

entered into between Hester and Potomac Edison.

5. The circuit court did not err in not allowing John

St. Clair, an expert witness for Potomac Edison, to testify.

6. The circuit court properly allowed Clarence E.

Jones, Ph.D., to testify as an expert witness in the trial of

this matter

7. The failure of the trial court to reduce the amount

of damages awarded the plaintiffs by the jury because the

plaintiffs failed to mitigate their damages is not grounds

for awarding a new trial.

8. This Defendant takes no position with the trial

court’s ruling in admitting the photographs of plaintiff's

injuries.

9. The trial court did not err in refusing to grant

defendant, Potomac Edison a new trial on the basis of

alleged concealment of information by jurors.

IV. DISCUSSION

1. The circuit court had adequate basis for directing

a verdict in favor of Carl Belt as to Potomac

Edison’s cross-claim for indemnification and con-

tribution.

Potomac Edison argues that the trial court improp-

erly dismissed its cross-claim against Defendant Carl

Belt, and that sufficient facts had been established to

show that Carl Belt met the deliberate intent requirement

to maintain a common law action against a workers’

compensation employer under Mandolidis v. Elkins Indus-

tries, Inc., 161 W. Va. 695, 246 S.E. 2d 907 (1978). Mando-

lidis allows an employee to recover against his employer

in a common law negligence action if the employee can

prove that the employer acted in a “willful, wanton, or

reckless” manner. In Cline v. Joy Mfg. Co., 310 S.E. 2d 835

(W. Va. 1983), the court further developed the test for

deliberate intent, requiring that the employer have had

knowledge and appreciation” of the high degree of risk.

In 1983, the West Virginia Legislature reacted to the Man-

dolidis cases and passed the Mandolidis reform of the

Workers’ Compensation Act. W. Va. Code § 23-4-3 (1983).

The amendments raised the level of proof required to find

an employer liable for “deliberate intent”. Under the

A-7

Mandolidis reform, a plaintiff must establish five specific

facts in order to prevail. These are (1) an unsafe work-

place which presented a high degree of risk and a strong

probability of serious injury or death, (2) that the

employer had a subjective realization of the risk, (3) that

the risk was a violation of a specific statute or safety

standard, (4) that despite such knowledge, the employer

deliberately exposed the employee to such degree of risk,

and (5) that the employee suffered serious injury or death

as a direct result of the exposure. W. Va. Code

§ 23-4-3(c)(2)(ii). The statute also provides that a trial

court may direct a verdict against the plaintiff, if there is

insufficient evidence to find that all the facts were

proven. W. Va. Code § 23-4-3(c)(2)(iii)(B).

The accident in the present action occurred in Octo-

ber, 1986, therefore, the proper standard to determine

whether an action may be maintained action the workers’

compensation employer is the reform statute, and not

merely Mandolidis negligence as alleged by Potomac Edi-

son. In the present action, the claim by the Plaintiff

against Carl Belt was dropped prior to trial, after the

completion of discovery, because of insufficient evidence

to prove all the requirements of the statute. At trial, Carl

Belt moved for a directed verdict at the close of evidence.

A directed verdict in a Mandolidis action is allowed under

West Virginia Code § 23-4-2(c)(2)(iii)(B). Construing this

code section in a diversity action, the Federal District

Court for the Southern District of West Virginia held in

Handley v. Union Carbide Corp., 620 F. Supp. 428 (S.D. W.

Va. 1988) that if there is insufficient evidence on any of

the five points required under the statute, a directed

verdict is proper.

A-8

The trial court set out its specific findings concerning

the evidence regarding Carl Belt. (See trial transcript at

pages 462-64.) It is clear from the transcript that the trial

judge knew and applied the appropriate standard in

viewing the evidence and granting a directed verdict in

favor of Carl Belt.

In order for a third-party tortfeasor to obtain contri-

bution against an otherwise-immune workers’ compensa-

tion employer, the third-party must establish the same

facts as a plaintiff in such an action. Miller v. Gibson, 355

S.E. 2d 28 (W. Va. 1987). While Miller was determined on

the Mandolidis-Cline standard, that standard is at least as

strict as the one established by the West Virginia Legisla-

ture in its reform. As the trial court properly dismissed

Carl Belt at the close of evidence, Potomac Edison may

not have contribution against Carl Belt, and therefore is

liable for the entire amount of the jury verdict.

2. Denial of contribution to Potomac Edison does

not constitute a denial of its constitutional rights.

Potomac Edison argues that it is unconstitutional to

refuse to allow contribution against Carl Belt. The stan-

dard of review proposed by Potomac Edison is strict

scrutiny, alleging that the court’s action violated a funda-

mental right or a involved suspect classification. This is

clearly wrong. The United States Supreme Court has

established specific suspect classifications which subject a

statute to strict scrutiny: race, religion, sex, or alienage.!

—_

? Potomac Edison has cited McLaughlin v. Florida, 379 U.S.

184 (1964), as authority for invoking strict scrutiny. This case

(Continued on following page)

A-9

16A Am. Jur. 2d, Constitutional Law § 750 at 816. While

Potomac Edison is a corporate entity and does not fit any

of these classifications. Fundamental rights which will

invoke strict scrutiny include the right to procreation, the

right to marry, and First Amendment rights including

freedom of speech, freedom of assembly, freedom of the

press, the right to interstate travel, and the right to vote.?

16A Am. Jur. 2d, Constitutional Law § 750 at 819. While

legislatures may not confer rights on corporations which

are not available to individuals, corporations may be

classified as the legislature sees fit, without violating the

Fourteenth Amendment. 16A Am. Jur. 2d, Constitutional

Law § 777. Sunspan Engineering & Construction Co. v.

Spring-lock Scaffolding Co., 310 So. 2d 4 (Fla. 1975), cited

by Potomac Edison as the basis of its constitutional claim,

is factually distinguishable from the present case. The

Florida statute which was held to be unconstitutional in

Sunspan allowed employers to recover from negligent

third parties, but did not allow contribution against

employers. Sunspan has been distinguished by federal

district courts construing the Pennsylvania and Colorado

Workers’ Compensation Acts. See Albrecht v. Pneuco

(Continued from previous page)

involved a challenge to a statute which prohibited co-habita-

tion between mixed-race couples and is clearly distinguished

from the facts in the present case.

2 Access to the courts may be a fundamental right, but it

does not invoke strict scrutiny in this instance. In the case cited

~ by Potomac Edison, Bankers Life & Casualty Co. v. Crenshaw, 468

U.S. 71 (1988), the Supreme Court denied the appeal of an

insurance company which was challenging a state statute

which allowed for the imposition of punitive damages on

equal protection grounds.

A-10

Machinery Co., 448 F. Supp. 851 (E.D. Pa., 1978) and Greer

v. Intercole Automation, Inc., 553 F. Supp.275 (D. Co. 1982).

It is also clearly distinguishable from the West Virginia

law which grants only the employee the right to sue a

third-party tortfeasors. Jones v. Laird Foundation, 156 W.

Va. 479, 195 S.E. 2d 821 at 828 (1973). The employer does

not have a right to recover its loss from a negligent third-

party. National Fruit Product Co. Inc. v. Baltimore & Ohio

Railroad Co., 329 S.E. 2d 125 (W. Va. 1985). Additionally,

West Virginia does permit the third-party tortfeasor to

have contribution against the employer if the negligent

third-party can prove Mandolidis negligence against the

employer. Miller v. Gibson, 355 S.E.2d 28 (W. Va. 1985).

In the present case, the trial court followed the lan-

guage of the Workers’ Compensation statute as inter-

preted by the West Virginia Supreme Court in denying

contribution for Carl Belt. Any third party tortfeasor,

individual or corporation is held to the same standard of

proof to recover from a covered employer. The Court has

noted in National Fruit Product v. Baltimore & O.R. Co., 329

S.E. 2d 125 at 129, n.2 (W. Va. 1985), that while this allows

a windfall for the injured employee, any change must be

enacted by the Legislature. (Citing Jones v. Laird Founda-

tion, Inc., 156 W. Va. 479, 195 S.E. 2d 821 at 828 (1973) (J.

Sprouse, concurring), which further states that “it is not

for this Court to compound the inequity by permitting

the negligent physician the protection for a government

umbrella with the employer footing the bill.”) The hold-

ing in Jones v. Appalachian Power Co., 145 W. Va. 478, 115

S.E. 2d 129 (1960), is similar. There the Court held that

“[t]he amount of compensation received for injury or

death from Workmen’s Compensation Fund is not a

A-11

proper subject for a remittitur in an action by the injured

person, ..., against a third party responsible for his

injury... .” Jones, 115 S.E. 2d 129, Syllabus Point 3.

As there is no basis .o invoke strict scrutiny, the

statute need only pass the rational basis test. 16A Am. Jur

2d, Constitutional Law §752. The purpose of Workers’

Compensation is to insure that an injured employee is

compensated for his job-related injury. In exchange the

subscribing employer is given immunity from suit, except

in cases which fall under the Mandolidis reform statute.

W. Va. Code §§23-2-8, and 23-4-2. This immunity was

necessary to withstand constitutional challenges when

Workers’ Compensation was first enacted, and is clearly a

rational basis on which to uphold the statutory immunity

granted to complying employers. See New York Central

Railroad Co. v. White, 243 U.S. 188 (1917).

3. The circuit court did not err in refusing to allow

contribution by Potomac Edison against Carl Belt.

Because workers’ compensation benefits are a legisla-

tive exclusive remedy, contribution is available against an

employer only if the employee or the third-party

tortfeasor can prove the five factors under the Mandolidis

reform. The West Virginia Supreme Court of Appeals

addressed the specific issue of recovery of the entire

verdict against one tortfeasor, despite allocation of per-

centage of negligence and workers’ compensation immu-

nity, in Riggle v. Allied Chemical, 378 S.E.2d 2d 282 (W. Va.

1989). At trial, the jury returned a verdict for the plain-

tiffs, and apportioned causation between the two remain-

ing defendants. The trial court had dismissed the

A-12

Mandolidis action against the employer, and assessed the

entire amount of the judgment against the remaining

defendant. Riggle, 378 S.E. 2d at 285. The court later

assessed the employer in the defendant's cross-claim, but

there was a Mary Carter agreement and a contractual indem-

nity agreement between the co-defendants. Id at 286 and

288.

The assessment in Riggle is identical to the present

case. The claim against Carl Belt was dismissed by the

trial court for insufficient evidence to uphold a Mando-

lidis action, yet left in because of Potomac Edison’s cross-

claim. The jury awarded damages to the plaintiffs, and

assessed negligence against the parties. In the trial court’s

final order it noted that the Plaintiffs could recover

against Potomac Edison and, because Carl Belt had been

dismissed on the Mandolidis action, it was not liable to

Potomac Edison for contribution. See Trial transcript at

596-97.

Potomac Edison proposes to allow an offset to the

third-party tortfeasor for the amount of workers’ com-

pensation benefits or the percentage of negligence

assessed against the employer, whichever is less. This is

clearly against precedent and the purpose of workers’

compensation. See Jones v. Appalachian Power Co., 145 W.

Va. 478, 115 S.E. 2d 129 (1960). The Workers’ Compensa-

tion statute is a trade-off. The employee gives up any

right of action against his employer in exchange for a

statutory right to be compensated for on the job injuries,

absent Mandolidis negligence on the part of the employer.

W. Va. Code §§23-2-6, and 23-4-2.

| Sines.

A-13

Workers’ compensation is not a complete recovery.

The Act completely covers medical expenses, but only

compensates the employee partially for his lost wages.

There is no recovery for pain and suffering, mental

anguish, or loss of consortium. Jones v. Laird Foundation,

195 S.E. 2d, 821 at 827-28. The Court has held that a

negligent tortfeasor may not have a set-off in the amount

cf a workers’ compensation recovery, as this would serve

to excuse the third-party. Id. at 828. Potomac Edison

would like to apportion the set-off between the Plaintiff

and his wife. While Tammy Helmick’s claim for loss of

consortium is derivative of her husband’s action, she has

had no recovery from Workers’ Compensation. Potomac

Edison claims that the dissent in Mooney v. Eastern Assoct-

ated Coal supports this type of set-off, Mooney should be

distinguished from the present case in that Mooney con-

cerned a claim by a widow of an employee, who was

entitled to death benefits under workers’ compensation.

Mooney v. Eastern Associated Coal Corp., 326 S.E. 2d 427 (W.

Va. 1984).

The Court has held as recently as 1985 that any

contribution between employers and third-party

tortfeasors must be legislatively enacted. National Fruit

Product Co. Inc. v. Baltimore & Ohio Railroad, 329 S.E. 2d

125 (W. Va. 1985). In view of the protection which the

Workers’ Compensation Act offers both employees and

non-negligent employers, the Court should not change its

position now.

A-14

4. The circuit court did not err in granting Hester’s

motion for a directed verdict on Potomac Edi-

son’s cross-claim for indemnification based upon

the contract entered into between Hester and Pot-

omac Edison.

Potomac Edison contends that it was inappropriate

for the court to grant Hester’s motion for a directed

verdict on Potomac Edison’s cross-claim for indemnifica-

tion. The basis of said cross-claim is the Electric Service

Agreement dated December 1, 1982, between Hester and

Potomac Edison. (See Exhibit A).

Following the close of Potomac Edison’s evidence,

the circuit court directed a verdict in favor of Hester with

regard to paragraph seven of the Electric Service Agree-

ment. Paragraph seven provides in pertinent part as fol-

lows:

... the Customer [Hester] agrees to at all times

indemnify and save harmless the Company

[Potomac Edison] from and against all claims,

demands, suits, actions and judgments and from

and against all costs, expenses, pecuniary or

other loss that may arise out of any damage,

injury or loss of or to person, life and (or) prop-

erty caused by any act or omission of the Cus-

tomer, its agents, servants and employees, . .

It is well settled that where, from the evidence, only

one inference may be reasonably drawn, it is the impera-

tive duty of the court as a matter of law to direct a

verdict. Where a motion for a directed verdict is made by

a party at the trial of a case, all reasonable doubts and

inferences should be resolved in favor of the party

against whom the verdict is asked to be directed and the

A-15

court must assume as true those facts which the jury may

properly find from the evidence. Prager v. Meckling, 310

S.E.2d 852 (W. Va. 1983); Cook v. Heck’s Inc., 342 S.E.2d 453

(W. Va. 1986); McGuire Oil Co. v. Ellis, 377 S.E.2d 460 (W.

Va. 1988).

Before the indemnification clause of the Electric Ser-

vice Agreement would be enforceable, there must be a

showing of negligence on the part of Hester. It is only

then that Hester would have the duty to indemnify Pot-

omac Edison.

The rule is that when the evidence does not prima

facie entitle a party to recover, the motion to direct a

verdict for the moving party should be sustained. Hinkle

v. Martin, 163 W.Va. 482, 256 S.E.2d 786 (1979). It is clear

that Potomac Edison failed to establish a prima facie right

to recover under the indemnification clause of the Electric

Service Agreement. Where a party is not entitled to

recover under any view of the evidence as is here with

Potomac Edison, a verdict should be directed for the

adverse party, Hester. Mountaineer Contractors v. Mountain

State Mack, Inc., 160 W. Va. 292, 268 S.E.2d 886 (1980); Delp

v. Itmann Coal Company, 342 S.E.2d 219 (W. Va. 1986).

5. The circuit court did not err in refusing to allow

John St. Clair, an expert witness for Potomac

Edison, to testify.

On May 22, 1989, the circuit court entered an Order

directing that ail discovery shall be completed on or

before July 3, 1989. On March 15, 1989, Potomac Edison

filed its Answers to Hester’s First Set of Interrogatories

wherein the response was that Potomac Edison had not

A-16

retained any experts. (See Exhibit B). On July 10, 1989,

following the conclusion of discovery, Potomac Edison

filed a Supplemental Answer to Hester’s Interrogatory

No. 23, wherein E. William Johnson, an economist and

Stephen M. Townsend, a psychologist, were disclosed as

expert witnesses. (See Exhibit C). Even at this time, Pot-

omac Edison still failed to disclose John St. Clair as an

expert witness. On Sunday, July 16, 1989, at approx-

imately noon, the day before the trial was to begin, Pot-

omac Edison disclosed John St. Clair as an expert witness

via a fax message. During the course of the presentation

of Potomac Sdison’s evidence, counsel called John St.

Clair as a witness. The circuit court would not permit his

testimony because of the late disclosure. (See Trial Tran-

script 425-426).

Under Rule 26(b)(4)(A)(i), West Virginia Rules of

Civil Procedure, a party is required to disclose to another

party the identity of persons whom that party intends to

call as expert witnesses at trial only when that party has

determined within a reasonable time before trial who his

expert witnesses will be. Michael v. Henry, 354 S.E.2d 590

(1987), (emphasis added). There is no argument that

would support the position that counsel for Potomac

Edison’s disclosure of John St. Clair as an expert witness

was made within a reasonable time before trial. Further-

more, it is ludicrous for counsel for Potomac Edison to

contend that this expert witness was made available for

deposition when his identity was made known less than

twenty-four hours before the commencement of trial.

Rule 26(e)(1)(B), West Virginia Rules of Civil Pro-

cedure, provides in pertinent part:

A-17

(e) Supplementation of responses. A party

who has responded to a request for discovery

with a response that was complete when made

is under no duty to supplement his response to

include information thereafter acquired, except

as follows:

(1) A party is under a duty reasonably to

supplement his response with respect to any

question directly addressed to:

* * +

(B) The identify of each person expected to

be called as an expert witness at trial, the subject

matter on which he is expected to testify, and

the substance of his testimony.

This Rule provides for sanctions for failure to comply

with a discovery request, regarding subsequently

obtained information, as part of the court’s inherent

power to impose sanctions in carrying out its obligation

to conduct a fair and orderly trial. Prager v. Meckling, 310

S.E.2d 852 (W. Va. 1983).

The circuit court, in its inherent power, would not

allow the testimony of John St. Clair inasmuch as Pot-

omac Edison had failed to supplement its responses to

discovery requests in a timely manner and disclose this

witness. Unlike the facts in Hulmes v. Catterson, 388 S.E.2d

318 (W. Va. 1989), where a pretrial conference and a trial

date had not been set, a jury had been selected and the

trial in this matter was to begin the next day.

Additionally, Potomac Edison had failed to obey the

circuit court’s order setting a discovery deadline of July 3,

1989. Rule 37(b), West Virginia Rules of Civil Procedure,

provides that if a party fails to obey an order with regard

Tn

A-18

to discovery, the circuit court may impose sanctions. In

this case, the circuit court refused to allow Potomac Edi-

son to introduce evidence through the testimony of its

expert witness, John St. Clair. The imposition of sanctions

by a circuit court under Rule 37(b), West Virginia Rules of

Civil Procedure, is within the sound discretion of the

court and will not be disturbed upon appeal unless there

has been an abuse of that discretion. Bell v. Inland Mutual

Insurance Co., 332 S.E.2d 127 (W. Va.), cert denied 474 US.

936 (1985). Potomac Edison has failed to show an abuse of

discretion by the circuit court.

The circuit court’s action in disallowing the testi-

mony of John St. Clair on behalf of Potomac Edison was

appropriate and should not be disturbed.

6. The circuit court properly allowed Clarence E.

Jones, Ph.D., to testify as an expert witness in the

trial of this matter.

Potomac Edison contends that the Plaintiff’s expert,

Clarence E. Jones, should not have been permitted to

testify as an expert witness.

Rule 702, West Virginia Rules of Evidence, allows the

use of expert witnesses to “ . . . assist the trier of fact to

understand the evidence or to determine a fact in

issue, . .. ” The test in West Virginia to determine

whether a witness qualifies as an expert is whether the

witness is shown through training, education, or practical

experience to possess significant skill and knowledge

regarding the technical subject. Cleckley, Handbook on

Evidence § 71(B).

A-19

Before an expert opinion is admissible, a foundation

must be laid wherein the expert’s qualifications must be

demonstrated to the court. As to the question of a wit-

ness’s qualification as an expert, it lies largely in the

discretion of the trial court, whose judgment is not to be

reversed, unless it clearly appears that the witness is not

qualified. Moore, et al. v. Shannondale, Inc., 152 W. Va. 549,

165 S.E.2d 113 (1968). The trial court has broad discretion

in the matter of admission or exclusion of expert testi-

mony and the ruling will be sustained unless it is mani-

festly erroneous. Salem v. United States Mine Co., 370 US.

31 (1962). This court in State v. Johnson, 111 W.Va. 653, 164

S.E. 31 (1932), stated that the question of qualification of a

witness as an expert rests largely in the discretion of the

trial court, there being no arbitrary and fixed test of such

qualification. It is a question for the jury as to the weight

of the expert’s testimony. It is clear that the determination

of whether a witness has sufficient knowledge of the

matter in question, so as to be qualified to give his

opinion, is largely within the discretion of the trial court

and will not ordinarily be disturbed on appeal unless

clearly and prejudicially erroneous. State v. M.M., 163

W.Va. 235, 256 S.E.2d 549 (1979); Mollohan v. Black Rock

Contracting, Inc., 235 S.E.2d 813 (W. Va. 1977).

The proper foundation for the admission of the

expert testimony of Clarence E. Jones was properly laid

by counsel for the Plaintiffs. (See, Trial Transcript 88-91).

The circuit court granted counsel’s motion to qualify Dr.

Jones as an expert. (See, Trial Transcript 92). Although

counsel for Potomac Edison objected to the qualification

of this witness as an expert, the circuit court’s ruling

should not ” . . . be disturbed on appeal unless clearly

A-20

and prejudicially erroneous.” Cox v. Galigher Motor Sales

Co., 213 S.E.2d 475 (W. Va. 1975). Potomac Edison has

failed to show that the trial court’s decision with regard

to the testimony of Dr. Jones as an expert witness and the

subsequent admission thereof was in any way clearly and

prejudicially erroneous.

7. The failure of the trial court to reduce the amount of

damages awarded the plaintiffs by the jury because

the plaintiffs failed to mitigate their damages is not

grounds for awarding a new trial.

Defendant, Potomac Edison, alleges that the trial

court erred in refusing to reduce the amount of damages

awarded by the jury because Joe Helmick failed to miti-

gate his damages by not returning to work after the job at

Hester Industries was completed.

In the instant case, Joe Helmick returned to work for

Carl Belt after the accident, performing light duty chores,

and ceased working when the job at Hester Industries

was completed. He did seek other employment, but at the

time of trial had not been able to secure employment. In

Gault v. Monongahela Power Co., 223 S.E.2d 421 (W. Va.

1976), Gault testified that, prior to the accident he. had

retired on a trial basis, but intended to return to work

because his retirement earnings were not adequate to

support he and his wife. Monongahela Power Company

cited error in the trial court for allowing testimony of this

nature, stating that such testimony was speculative. This

Court held that a Plaintiff has a right to be compensated

for impairment of his physical capacity and impairment

of his ability to earn, regardless of whether or not he

A-21

intends to work. In this case, Joe Helmick’s earning

capacity has been impaired, and whether or not he can, or

intends to return to work, is not the basis for reducing the

amount of the jury’s verdict or setting aside the verdict

and awarding a new trial.

The jury, in reaching its verdict, heard the evidence

and weighed the testimony of all witnesses, including

expert witnesses regarding the economic loss Joe Helmick

had suffered as a result of this accident. In West Virginia,

an Appellate Court must not set aside a jury verdict upon

the claims that it is excessive, “unless the verdict is

monstrous and enormous, at first blush beyond all mea-

sure, unreasonable and outrageous, and such as mani-

festly shows jury passion, partiality, prejudice, or

corruption”, quoting Addair v. Majestic Petroleum Co.,

W.Va 105, 232 S.E.2d 821 (1977). See also Roberts v. Stevens

Clinic Hosp., Inc., 345 S.E.2d 791 (W.Va. 1986).

It is clear that the verdict arrived at by the jury was

in accordance with the evidence adduced at the trial, and

the verdict should stand.

8. This Defendant takes no position with the trial court’s

ruling in admitting the photographs of plaintiff's

injuries.

This Defendant takes no position with regard to any

error of the trial court in admitting the photographs taken

by Plaintiff’s treating physician of Plaintiff’s wrist and

hand inasmuch as it objected to their admission at the

trial of this action on the basis of their inflammatory

nature. Defendant, Potomac Edison, argues that the trial

court erred in admitting these photographs, citing the

A-22

case of Catlett v. MacQueen, 375 S.E.2d 184 (W.Va. 1988),

where this Court ruled that the Trial Court properly

excluded photographs which were not used by a doctor

to aid in his testimony.

While Potomac Edison argues that the photographs

were improperly admitted into evidence, this Defendant

will concede that this Court’s position on the admission

of photographs as evidence is becoming more liberal.

Most recently this Court in Roberts v. Stephens Clinic

Hosp., Inc., supra, ruled that the admission of a “day in

the life tape” was proper.

Although Dr. Caccucio did rely on these photographs

during his testimony at the trial of this matter, Plaintiff —

testified that he had no pain in the areas depicted by the

photographs and this testimony somewhat minimized the

inflammatory nature of the photographs upon the jury.

9. The trial court did not err in refusing to grant defen-

dant, Potomac Edison a new trial on the basis of

alleged concealment of information by jurors.

Upon conducting a post-trial interview with mem-

bers of the jury be an investigator, Potomac Edison

allegedly discovered information which they believe war-

rants a new trial. Potomac Edison moved the trial court to

grant them a new trial, basing the motion on grounds that

two members of the jury were related by marriage and

that one member’s husband had been killed in an indus-

trial accident. No proof of these facts was offered by

Potomac Edison other than the affidavit of a non-juror

whose source of information is not known. The trial court

denied the Motion for a New Trial.

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Case law and underlying policy support the trial

court’s decision. Attorneys are required to conduct a

comprehensive and diligent pre-trial inquiry with regard

to jury members. Failure to conduct pre-trial inquiry and

to conduct meaningful voir dire does not entitle a party

to a new trial. Accordingly, the trial court properly

denied Potomac Edison’s Motion for a New Trial.

Post-trial examination of the jurors alleged!y

revealed that two of the jurors were related by marriage

and the third had lost her spouse in an industrial acci-

dent. Failure of Potomac Edison to conduct a pre-trial

investigation of the jurors and failure to conduct mean-

ingful voir dire does not constitute wilful or inadvertent

failure to disclose relevant information, and is not

grounds to set aside the jury verdict and award a new

trial.

It has never been a practice in West Virginia to set

aside a jury verdict on the basis of an attorney’s failure to

conduct meaningful voir dire. In State v. Scotchel, 285

S.E.2d 384 (W.Va. 1981), this Court ruled that a Defen-

dant’s assertion, after verdict was returned, that the juror

had been prejudiced would not be well taken, since

Defendant did not exercise due diligence on voir dire.

This question has most recently been addressed in State v.

Hardway, 385 S.E.2d 62 (W.Va. 1989), where this Court

ruled that where a Defendant did not exercise reasonable

diligence in ascertaining possible disqualification of juror

on basis that juror was related to prosecutor’s secretary

and thus, was not denied fair trial through service of that

juror because Defendant failed to ask questions which

would determine whether any member of jury panel was

closely related to prosecutor or member of his staff.

A-24

Potomac Edison inquired of the jury if they were

related by blood or marriage to a shareholder of Carl Belt,

Incorporated, an employee of Carl Belt, Incorporated, a

shareholder of Potomac Edison Company, an employee of

Potomac Edison Company, but failed to inquire if any of

the jurors were related to each other.

As to the juror who failed to disclose that her hus-

band was killed in an industrial accident, she was not

asked to reveal this information on voir dire. Attorney for

Potomac Edison conducted the following voir dire in

addition to that of the Court:

Question: Has any member of the panel or his or

her relatives, either by blood or marriage, or

friends, been involved in any lawsuit, criminal

or civil, involving alleged personal injuries? Or

has any of you made a claim or had a claim

made against you for damages or monies as a

result of personal injuries?

Jury: No response.

Question: If any member of the jury panel

answers the Question 12 in the affirmative, we'll

have to go through that.

Jury: No response.

Question: Has any member of the panel been a

victim of or had a relative or friend who has lost

a limb or become permanently or partially disabled

in any manner whatsoever?

Jury: No response.

Voir Dire Transcript, p. 10

It is clear that this juror would have not been

required to respond affirmatively to Potomac Edison’s

A-25

voir dire inquiries because he did not describe her partic-

ular set of circumstances. Neither the juror nor husband

was involved in a lawsuit claiming of personal injuries,

her husband did not lose a limb, was not permanently or

partially disabled, but was killed. This Court has held

that there was no connection between the alleged fact

that some of the jurors had lost relatives by automobile

accidents and the qualification of individual jurors who

hear the case. Utt v. Herold, 127 W.Va. 719, 34 S.E.2d 357

(1945).

If Potomac Edison had engaged in a pre-trial inquiry

of the jurors on the jury list rather than a post-trial

inquiry, relevant information about these jurors could

have been ascertained before the jury was chosen. Bio-

graphical information was provided to the parties by the

Circuit Court and it is not violative of any West Virginia

law for a party to conduct a discreet, pre-trial inquiry.

Pre-trial inquiry would have given Potomac Edison an

opportunity to prepare and utilize a more meaningful

voir dire and if it could not get the jurors struck for cause,

it could have used its preemptory strikes to bar these

jurors from sitting on the jury.

In Wagoner v. laeger, 49 WV 61, 38 S.E. 2d 528 (1901),

the Supreme Court ruled that a verdict will not be dis-

turbed because of challenge against a juror, grounds for

which might have been discovered by exercise of ordi-

nary diligence and that failure to exercise such diligence

is equivalent to a waiver of the challenge. In the case of

Garrett v. Patton, 81 W.Va. 771 (1918), the Supreme Court

found that in order that the disqualification of a juror

may be made ground for setting aside a verdict, it must

be made to appear by the party making the motion that

he did not know of, and could not have discovered by the

use of reasonable diligence, such disqualification before

the jury was sworn. (Emphasis added.) Failure by Pot-

omac Edison to use reasonable diligence before trial to

ascertain facts about the jury and to conduct meaningful

voir dire does not warrant a post-trial inquiry to glean

information about the jurors for the purposes of securing

a new trial.

The post-trial inquiry of the jurors by Potomac Edi-

son was improper. The Court advised the jurors not to

discuss the case after they rendered their verdict and

were excused.

The Voir Dire Transcript, at p. 24 reads:

The Court then thanked the jury for their service

in the case and excused them from further ser-

vice in this case. He also informed them at this

time that they did not need to talk with anyone

about the case, etc.

In Roberts v. Stephens Clinic Hosp., Inc., 345 S.E.2d 791

(W.Va. 1986), this Court ruled that parties may not engage

in posttrial, collateral attack upon jury’s integrity in

absence of showing of corruption or bias. Haight v. Goin,

346 S.E.2d 353 (W.Va. 1986) also provides that a juror

should not discuss the case with anyone outside the jury

room.

Further, Potomac Edison did not secure affidavits

from the jurors, but rather tendered the affidavit of a non-

juror, believed to be an employee of Potomac Edison’s

counsel, based upon discussions between the affiant and

the individual jurors. Affidavits of Jurors are inadmis-

sible to impeach their own verdict. The affidavit of a non-

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juror is hearsay and is not the proper vehicle under

which a jury verdict may be set aside. See Miller v. Blue

Ridge Transp. Co., 15 S.E.2d 400 (W.Va. 1941); Utt v. Herold,

34 S.E.2d 357 (W.Va. 1945).

This information about the jurors was not revealed to

the Court and the other parties until some nine (9)

months after the verdict was entered, at which time Pot-

omac Edison filed a Motion to Set Aside the Jury Verdict

under Rule 60(b) of the West Virginia Rules of Civil

Procedure on the basis of newly acquired evidence. Even

if it were proper for to engage in a post-trial inquiry of

the jurors, the Court did not err in refusing to set aside

the jury verdict. Rule 60(b) of the West Virginia Rules of

Civil Procedure limits the time for Motions filed on newly

acquired evidence strictly to eight (8) months from the

date of the judgment order, which was filed on July 26,

1990, a period of more than eight months prior to April

27, 1990. This issue has recently been addressed by the

Court in the case of Savas v. Savas, 382 S.E.2d 510 (W.Va.

1989), and this Court strictly interpreted Rule 60(b) and

ruled that a party seeking relief from final judgment on

ground of mistake, surprise, excusable neglect, or

unavoidable cause, newly discovered evidence, fraud,

misrepresentation or misconduct, or for any other reason

justifying relief must seek relief within reasonable time,

but in any case not more than eight months after the

judgment order was entered.

There was no bias of any juror in the instant case.

Potomac Edison failed to conduct a diligent investigation

of the jurors before the jury was sworn and did not

conduct a meaningful voir dire. As there was no error in

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the Trial Court with regard to the jury being chosen, the

verdict must stand.

V. PRAYER

WHEREFORE, the Defendant, Hester Industries,

opposes Defendant, Potomac Edison’s request for Appeal

and respectfully requests that this Honorable Court let

stand the verdict and judgment of the Circuit Court of

Hardy County.

Respectfully submitted,

Defendant Hester Industries

By counsel