# Appendix — Buracker v. Wilt

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1994
- **Citation:** 511 U.S. 1129

## Text

IN THE SUPREME COURT OF APPEALS OF WEST
VIRGINIA

September 1993 Term

GLENN M. WILT AND SANDRA B. WILT
Plaintiffs Below, Appellees

v «

ROBERT BURACKER, SHERIFF AS SUCCESSOR
IN INTEREST TO ROY E. THOMPSON,
ADMINISTRATOR
TO THE ESTATE OF CHARLES W. NICKELSON, JR.,
Defendant Below, Appellant

Appeal from the Circuit Court of Jefferson County
Honorable Ronald E. Wilson, Judge
Civil Action No. 88-C-186

AFFIRMED, IN PART,
REVERSED, IN PART,
AND REMANDED

Appendix Page |

Submitted: September 28, 1993
Filed: December 13, 1993

John C. Skinner, Jr.

F. Samuel Byrer

Deborah L. Barr

Nichols & Skinner

Charles Town, West Virginia
Attorneys for Appellees

Walter M. Jones, III

E. Kay Fuller

Martin & Seibert

Martinsburg, West Virginia

Attorneys for Appellant

JUSTICE MILLER delivered the Opinion of the Court.

JUSTICE NEELY concurs and reserves the right to file a
concurring opinion.

73

Appendix Page 2

Tinian

SYLLABUS BY THE COURT

1. Under Rule 702 of the West Virginia
Rules of Evidence, there is a category of expert testimony
based on scientific methodology that is so longstanding and
generally recognized that it may be judicially noticed and, a
trial court need not ascertain the basis for its reliability.

2. In analyzing the admissibility of expert
testimony under Rule 702 of the West Virginia Rules of
Evidence, the trial court’s initial inquiry must consider
whether the testimony is based on an assertion or inference
derived from the scientific methodology. Moreover, the
testimony must be relevant to a fact at issue. Further
assessment should then be made in regard to the expert
testimony’s reliability by considering its underlying scientific
methodology and reasoning. This includes an assessment of
(a) whether the scientific theory and its conclusion can be and
have been tested; (b) whether the scientific theory has been
subjected to peer review and publication; (c) whether the
scientific theory’s actual or potential rate of error is known;
and (d) whether the scientific theory is generally accepted
within the scientific community.

3. """Whether a witness is qualified to
state an opinion is a matter which rests within the discretion
of the trial court and its ruling on that point will not ordinarily
be disturbed unless it clearly appears that its discretion has
been abused.” Point 5, Syllabus,

Overton v. Fields, 145 W. Va. 797

Appendix Page 3

——————————EE

[117 S.E.2d 598 (1960)].’ Syllabus Point 4, Hall v. Nello
Teer _Co., 157 W. Va. 582, 203 S.E.2d 145 (1974).”

Syllabus Point 12, Board of Education v. Zando, Martin &
Milstead, 182 W. Va. 597, 390 S.E.2d 796 (1990).

4. The loss of enjoyment of life resulting
from a permanent injury is part of the general measure of
damages flowing from the permanent injury and is not subject
to an economic calculation.

~ "In an injury case where the
manifestations of the permanent injury may be obscure and the
extent of the injury itself may be obscure because of its
character, positive medical evidence to a degree of reasonable
certainty that the injury is permanent is sufficient to take the
question to the jury and to support an award of damages for
the future effects of such injury.” Syllabus Point 13, Jordan
y. Bero, 158 W. Va. 28, 210 S.E.2d 618 (1974).

6. "If there be evidence tending in some
appreciable degree to support the theory of proposed
instructions, it is not error to give such instructions to the
jury, though the evidence be slight, or even insufficient to
support a verdict based entirely on such theory.’ Syllabus
Point 2, Snedecker v. Rulong, 69 W. Va. 223, 71 S.E. 180

(1911)." Syllabus Point 4, Catlett v. MacQueen, 180 W. Va.
6, 375 S.E.2d 184 (1988).

il

Appendix Page 4

7. “Prejudgment interest, according to West
Virginia Code § 56-6-31 (1981) and the decisions of this
Court interpreting that statute, is not a cost, but is a form of
compensatory damages intended to make an injured plaintiff
whole as far as loss of use of funds is concerned." Syllabus
Point 1, Buckhannon-Upshur County Airport Authority v. R
& R Coal Contracting, Inc., 186 W. Va. 583, 413 S.E.2d 404
(1991).

8. Expenditures for household services are
included within the phrase “similar out-of-pocket
expenditures" used in W. Va. Code, 56-6-31 (1981), and
prejudgment interest may be awarded under that section.

9. "Rule 59(a), [West Virginia Rules of
Civil Procedure], provides that a new trial may be granted to
any of the parties on all or part of the issues, and in a case
where the question of liability has been resolved in favor of
the plaintiff leaving only the issue of damages, the verdict of
the jury may be set aside and a new trial granted on the single
issue of damages.’ Syl. pt. 4, Richmond v. Campbell, 148
W. Va. 595, 136 S.E.2d 877 (1964).” Syllabus Point 3,
Gebhardt v. Smith, 187 W. Va. 515, 420 §.E.2d 275 (1992).

10. | Where liability is clearly established and
the jury has made an erroneous over-calculation of damages,

a remittitur may be directed on remand. If the plaintiff
declines

ill

Appendix Page 5

ee

to accept the remittitur, then a new trial will be ordered solely
on the issue of damages.

Appendix Page 6

Miller, Justice:

This is an appeal from a jury verdict and final order
of the Circuit Court of Jefferson County entered May 15,
1992, in favor of the appellees and plaintiffs below, Glenn M.
Wilt and Sandra B. Wilt. The plaintiffs sustained permanent
injuries when the automobile in which they were riding was
struck by a vehicle driven by Charles W. Nickelson, Jr. Mr.
Nickelson was killed in the collision, and this action was
brought against his estate.

At trial, the plaintiffs presented the testimony of
several police officers who testified that Mr. Nickelson had an
empty bottle of "Wild Turkey” whiskey between his legs when
they removed his body from the accident scene. The officers
also testified that there were several other empty alcoholic
beverage containers found in the vehicle and that the smell of
alcohol coming from the vehicle was “extreme.” Moreover,
the deposition testimony of Lori Hall, a passenger in Mr.
Nickelson’s car, was read to the jury. It was to the effect that
she and Mr. Nickelson had been drinking "Wild Turkey”
whiskey earlier in the day, although she could not remember
the quantity they had consumed.

The plaintiffs also presented the testimony of John

Kaputska, who observed the Nickelson vehicle for several
minutes

Appendix Page 7

immediately prior to the accident' Mr. Kaputska testified that
the Nickelson vehicle caught his attention because it was being
driven erratically, was following his vehicle too closely, and
was not being driven in a straight line. The Nickelson vehicle
then passed Mr. Kaputska at a high rate of speed, and Mr.
Kaputska lost sight of the Nickelson vehicle as it went around
a curve in the road. As Mr. Kaputska came around the curve,
he saw that the Nickelson vehicle had struck the Wilt vehicle.

The primary reason we accepted this appeal was to
determine whether the testimony of an economist calculating
a monetary amount of damages for the loss of enjoyment of
life, often called hedonic damages, is admissible evidence.

This Court held in Flannery v, United States, 171 W. Va. 27,
297 S.E.2d 433 (1982), that damages for the loss of

enjoyment of life are a valid element of ecovery when a
plaintiff has suffered a permanent injury.? "[OJnce a
permanent injury has been established . . . the plaintiff is
entitled to additional damages . . . for the permanent effect of
the injury itself on *the capability of an individual to function
as a whole man.’" 171 W. Va. at 30, 297 S.E. 2d at 436,
quoting Jordan v, Bero, 158

‘Mr. Kaputska was driving his vehicle along the same road and
in the same direction as the Nickelson vehicle.

7A recent article by D. L. Price entitled Hedonic Damages: To

Value a Life Or Not to Value a Life, 95 W. Va. L. Rev. 1055 (1993),
discusses this question with some emphasis on Flannery v. United States
supra.
2
Appendix Page 8

W.Va. 28, 51, 210 S.E.2d 618, 634 (1974). We went on to
explain in Flannery:

"[T]he loss of enjoyment of life is encompassed
within and is an element of the permanency of
the plaintiff's injury. To state the matter in a
slightly different manner, the degree of
permanent injury is measured by ascertaining
how the injury has deprived the plaintiff of his
customary activities as a whole person. The
loss of customary activities constitutes the loss
of enjoyment of life." 171 W. Va. at 30, 297
S.E.2d at 436.

A.

Before we embark on a discussion of hedonic
damages, it is necessary to establish the test for admissibility
of expert testimony. Our cases contain some variation on this
issue, particularly after our adoption of Rule 702 of the West
Virginia Rules of Evidence.? We note that our Rule 702 is
identical to Rule 702 of the Federal Rules of Evidence. Of
some significance, then, is the United States Supreme Court’s
recent decision in Vv Ww ]
Inc., 509 U.S. _ , 113 S. Ct. 2786, 125 L. Ed. 2d 469
(1993), that discussed the relationship of Rule 702 with the
traditional federal evidentiary

Rule 702 of the West Virginia Rules of Evidence states:

"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

Appendix Page 9

cea ii

by knowledge, skill, experience, training, or education
may testify thereto in the form of an opinion or
otherwise.”

Appendix Page 10

rule on expert testimony that was first articulated in Frye v.
United States, 54 App. D.C. 46, 293 F. 1013 (1923).*

Before we adopted Rule 702, we recognized the Frye
test and set out our version of it in Syllabus Points 7 and 8 of
State v. Clawson, 165 W. Va. 588, 270 S.E.2d 659 (1980):

he In order for a scientific test to
be initially admissible, there must be general
acceptance of the scientific principle which
underlies the test."

"8. There are certain scientific tests
that have been widely used over a long period
of time, such that their general acceptance in
the scientific community can be judicially

noticed.”
See_also State v. Armstronq, 179 W. Va. 435, 369 S.E.2d
870 (1988); State v. Barker, 179 W. Va. 194, 366 S.E.2d 642

(1988). As we stated in Syllabus Point 8 of Clawson, where
the scientific test is generally accepted, it can be judicially
noticed and the

‘Frye propounded a “general acceptance” test for
scientific principles that was explained as follows:

“Just when a scientific principle or discovery crosses the
line between the experimental and the demonstrable
stages is difficult to define. Somewhere in this twilight
zone the evidential force of the principle must be
recognized, and while courts will go a long way in
admitting expert testimony deduced from a well-
recognized scientific principle or discovery, the thing
from which the deduction is made must be sufficiently

Appendix Page |!

established to have gained general acceptance in the
particular field in which it belongs.” 54 App. D.C. at
47, 293 F. at 1014.

Appendix Page 12

ee ee eee ae

expert need not demonstrate its scientific validity.” We also
stated in note 4 of State v. Armstrong, 179 W. Va. at 439-40,
369 S.E.2d at 874-75 (1988), that there is a general trend
under Rule 702 to liberalize the Frye rule:

"An increasing number of the courts and
many of the leading commentators interpret
Rule 702 of the Federal Rules of Evidence,
which is identical to our Rule 702, as limiting
the Frye ‘general acceptance’ test to a test
solely for determining whether judicial notice
can be taken of the scientific test’s general
reliability. See P. Giannelli and E.
Imwinkelreid, Scientific Evidence §§ 1-5, 1-5
(E)-(F), 1-6, 1-6(A)-(D) (1986) (collecting
authorities); Giannelli, General Acceptance of

lent = , in Scientific
vi 11-32 (E. Imwinkelreid
2d ed. 1981). Therefore, according to this
view, a scientific expert’s testimony is
admissible if shown to involve relevant
scientific tests which assist the trier of fact to
understand the evidence, even if such tests and
the underlying scientific principle(s) are not yet
generally accepted in the particular scientific
field.” (Emphasis in original).

SWe elaborated on this point in State v. Woodall, 182 W. Va. 15,
22, 385 S.E.2d 253, 260 (1989):

"The basic reliability of
scientific tests is often at issue when such evidence is
admitted. Judicial resources can be squandered attacking
and supporting scientific tests that are, in fact, generally
accepted by scientists in the field... . For reasons of

Appendix Page 13

—_—

judicial economy, at some point a tnal court may take
judicial notice of a test’s general reliability. This point
occurs when the issue of a test’s reliability has been
addressed authoritatively by senior appellate courts in a
line of cases that determine that the test in question is
generally accepted by scientists. This comports with the
provisions of W.Va.R.Evid., Rule 201 [1985].”

Appendix Page 14

In Daubert, supra, the United States supreme Court re-
examined the Frye standard and determined that it was too
stringent as applied to the admissibility of expert testimony in
light of Rule 702 of the Federal Rules of Evidence. The
plaintiffs in Daubert sought to introduce expert testimony
showing the relationship between a drug manufactured by the
defendant and birth defects in children whose mothers had
taken the drug while pregnant with those children. The
defendant argued that the expert testimony offered by the
plaintiffs could not meet Frye’s "general acceptance” test.
The trial court and the Ninth Circuit Court of Appeals
agreed,® with the Court of Appeals stating that because the
expert testimony proffered had not been published or subjected
to peer review, it could not be shown to be a generally
accepted scientific technique, and was thus violative of the
Frye standard.

The United States Supreme Court reversed and held that
the Frye test was superseded by Rule 702 because the Frye
test was not included within Rule 702:

"Nothing in the text of (Rule 702] establishes
’general acceptance’ as an absolute prerequisite
to admissibility. . . . The drafting history
makes no mention of Frye, and a rigid ’general
acceptance’ requirement would be at odds with
the ‘liberal thrust’ of the Federal Rules and
their ‘general approach of relaxing the
traditional barriers to “opinion” testimony.’
Beech Aircraft Corp. v. Rainey, 488 U.S. 439,
450, 102 L. Ed. 2d 445, 463 (1988)] (citing
Rules 701 to

$See 951 F.2d 1128 (9th Cir. 1991).

6

Appendix Page 15

705)." 509 U.S. at __, 113 S. Ct. at 2794,
125 L. Ed. 2d at 480. (Citation omitted.)’

Nonetheless, the Supreme Court clearly concluded that
the standard established in Rule 702 would not "result in a
‘free-for-all’ in which befuddled juries are confounded by
absurd and irrational pseudoscientific assertions." 509 U.S.
at , 113 S. Ct. at 2798, 125 L. Ed. 2d at 484." The
Supreme Court emphasized that in supplanting the Frye test by
Rule 702, this did not abandon all limits on the admissibility
of purportedly scientific evidence, but rather that, "under the
Rules [of Evidence] the trial judge must ensure that any and
all scientific

"The Supreme Court went on to state:

“Given the Rules, permissive backdrop
and their inclusion of a specific rule on
expert testimony that does not mention
“general acceptance,’ the assertion that
the Rules somehow assimilated Frye is
unconvincing. Frye made ‘general
acceptance’ the exclusive test for
admitting expert scientific testimony.
That austere standard, absent from and
incompatible with the Federal Rules of
Evidence, should not be applied in
federal tnals.” 509 U.S. at_, 113 S.
Ct. at 2794, 125 L. Ed. 2d at 480.
(Footnote omitted).

"The Supreme Court stated that “[vJigorous cross-
examination, presentation of contrary evidence, and careful instruction on
the burden of proof are the traditional and appropriate means of attacking
shaky but admissible evidence. See Rock v Arkansas, 483 U.S. 44, 61,
[107 S. Ct. 2704, 2714, 97 L. Ed. 2d 37, 52] (1987).* 509 U.S. at _, 113
S. Ct. at 2798, 125 L. Ed. 2d at 484.

Appendix Page 16

The Court also noted that a trial court may direct a
verdict where it reaches the conclusion “that the scintilla of evidence
presented supporting a position is insufficient to allow a reasonable juror
to conclude that the position more likely than not is true{.]" 509 U.S. at

, 113 S. Ct. at 2798, 125 L. Ed. 2d at 484.

Appendix Page 17

testimony or evidence admitted is not only relevant, but
reliable." 509 U.S. at 113 S. Ct. at 2795, 125 L. Ed. 2d at
480.

The Supreme Court outlined the various types of
considerations that a trial court must take into account when
determining the admissibility of expert testimony under Rule
702,° and concluded that the inquiry must be a flexible one:'°

*Procedurally, as the Supreme Court observed in Daubert: "Faced
with a proffer of expert scientific testimony, then, the trial judge must
determine at the outset, pursuant to Rule 104(a), whether the expert is
proposing to testify to (1) scientific knowledge that (2) will assist the trier
of fact to understand or determine a fact in issue.” 509 U.S. at_, 113 S.
Ct. at__, 125 L. Ed. 2d at 482. (Footnotes omitted).

‘The considerations named by the Supreme Court include:

(1) A determination of whether the expert testimony is in fact
“scientific knowledge.” ("[I]n order to qualify as ‘scientific knowledge,’
an inference or assertion must be derived by the scientific method.
Proposed testimony must be supported by appropriate validation--i.e.,
*good grounds,’ based on what is known. In short, the requirement that
an expert’s testimony pertain to ‘scientific knowledge’ establishes a
standard of evidentiary reliability." 509 U.S. at_, 113 S. Ct- at 2795, 125
L. Ed. 2d at 481.).

(2) A determination of whether the expert evidence or
testimony will "’assist the trier of fact to understand the evidence or to
determine a fact in issue.’ This condition goes primarily to relevance.”
509 U.S. at _, 113 S. Ct. at 2795, 125 L. Ed. 2d at 481. ("Rule 702’s
*helpfulness’ standard requires a valid scientific connection to the pertinent
inquiry as a precondition to admissibility." 509 U.S. at_, 113 S. Ct. at
2796, 125 L. Ed. 2d at 482.).

(3) "[A] preliminary assessment of whether the reasoning or
methodology underlying the testimony is scientifically valid and of whether
that reasoning or methodology properly can be applied to the facts in
issue.” 509U.S.__, 113 S. Ct. at 2796, 125 L. Ed. 2d at 482. (Relevant

Appendix Page 18

considerations thereto include (a) whether the theory or technique “can be
(and has been) tested"; (b) “whether the theory

Appendix Page 19

;

"(The] overarching subject [of Rule 702] is the scientific
validity--and thus the evidentiary relevance and reliability--of
the principles that underlie a proposed submission. The focus,
of course, must be solidly on principles and methodology, not
the conclusions that they generate." 509 U.S. at__,113 S.
Ct. at 2797, 125 L. Ed. 2d at 484.

The Court also recognized:

"{I]n practice, a gatekeeping
role for the judge, no matter
how flexible, inevitably on
occasion will prevent the jury
from learning of authentic
insights and innovations. That
nevertheless, is the balance that
is struck by Rules of Evidence
designed not for the exhaustive
search for cosmic understanding
but for particularized resolution
of legal disputes." 509 U.S. at
_, 113 S. Ct. at 2798-99, 125 L.
Ed. 2d at 485. (Footnote
omitted).

In summary, the Supreme court concluded:

"’[G]Jeneral acceptance’ is not a
| necessary precondition to the
| admissibility of scientific
| evidence under the Federal
Rules of Evidence, but the Rules
of Evidence--especially Rule

Appendix Page 20

a

;
:
=
3
3

702--do assign to the trial judge
the task of ensuring that an
expert’s testimony both rests
upon a reliable

or technique has been subjected to peer review and publication” ("The fact
of publication (or lack thereof) in a peer-reviewed journal thus will be a
relevant, though not dispositive, consideration in assessing the scientific
validity of a particular technique or methodology on which an opinion is
premised."); (c) what is the known or potential rate of error of particular
scientific techniques; and (d) whether there is general acceptance of the
theory ("Widespread acceptance can be an important factor in ruling
particular evidence admissible, and ‘a known technique that has been able
to attract only minimal support within the community,’ [United States v.]
Downing, [753 F.2d 1224, 1238 (3d Cir. 1985),] may properly be viewed
with skepticism."). 509 U.S. at___,113S. Ct. at 2797, 125 L. Ed. 2d at
483. (Citation omitted).

9

foundation and is relevant to the
task at hand. Pertinent evidence
based on scientifically valid
principles will satisfy those
demands.” 509 U.S. at _, 113
S. Ct. at 2799, 125 L. Ed. 2d at
485.

We also note that the Court in Daubert found
that certain scientific theories could be judicially noticed. The
Court stated in note 11: “Of course, well-established
propositions are less likely to be challenged than those that are
novel, and they are more handily defended. Indeed, theories
that are so firmly established as to have attained the status of
scientific law, such as the laws of thermodynamics, properly
are subject to judicial notice under Fed. Rule Evid. 201." 509

Appendix Page 21

U.S. at_, 113 S. Ct. at 2796, 125 L. Ed. 2d at 482. See also
note 5, supra. We also are of the view that, under Rule 702,
there is a category of expert testimony based on scientific
methodology that is so longstanding and generally recognized
that it may be judicially noticed, and, therefore, a trial court
need not ascertain the basis for its reliability.

Thus, we believe that Daubert is directed at situations
where the scientific or technical basis for the expert testimony
cannot be judicially noticed and a hearing must be held to
determine its reliability. We conclude that Daubert’s analysis
of Federal Rule 702 should be followed in analyzing the
admissibility of expert testimony under Rule 702 of the West
Virginia Rules of Evidence. The trial court’s initial inquiry
must consider whether the testimony is based on an assertion
or inference derived from scientific methodology. Moreover,
the

10

Appendix Page 22

wanes

testimony must be relevant to a fact at issue. Further
assessment should then be made in regard to the expert
testimony’s reliability by considering its underlying scientific
methodology and reasoning. This includes an assessment of
(a) whether the scientific theory and its conclusion can be and
have been tested; (b) whether the scientific theory has been
subjected to peer review and publication; (c) whether the
scientific theory’s actual or potential rate of error is known;
and (d) whether the scientific theory is generally accepted
within the scientific community."

B.

Our customary rule for determining whether a trial
court’s ruling on the admissibility of expert testimony is
erroneous is contained in Syllabus Point 12 of Board of

Education v. Zando, Martin & Milstead, 182 W. Va. 597,
390 S.E.2d 796 (1990):

"""Whether a witness is
qualified to state an opinion is a
matter which rests within the
discretion of the trial court and
its ruling on that point will not
ordinarily be disturbed unless it
clearly appears that its discretion
has been abused.” Point 5,

''We recognize that Rule 702 is not confined to scientific expert
testimony, but applies to “scientific, technical, or other specialized
knowledge{.]" The Supreme Court in Daubert, supra, confined its
discussion to scientific expert testimony. The two justices who joined in
a separate opinion concurring, in part, and dissenting, in part, raised the
question: “Does ail of this dicta apply to an expert seeking to testify on
the basis of "technical or other specialized knowledge’ . . . or are the

Appendix Page 23

‘general observations’ limited only to ‘scientific knowledge’?” 509 U.S.
at , 113 S Ct. at, 125 L. Ed. 2d at 487. The foregoing textual
standards may still be applied to any expert by deleting the word
‘scientific. "

11

Appendix Page 24

ee eS ee es a ee

WE Ge Bk Ae Rel at ORAS Fete

5 EIR dt SA iB Ree VON ele

,

syllabus, Overton v. Fields, 145
W. Va. 797 [117 S.E.2d 598
(1960)].’ Syllabus Point 4, Hall

v. Nello Teer Co., 157 W. Va.
582, 203 S.E.2d 145 (1974)."

Applying Rule 702 to the case at bar, we must
consider whether the specialized knowledge of the plaintiffs,
expert was relevant’’ to the calculation of damages for the
plaintiffs’ loss of enjoyment of life such that it would assist
the trier of fact to understand the evidence or to determine a
fact in issue.” Because we are not convinced that the
testimony offered by the plaintiffs’ expert has any relevance
whatsoever to a calculation of damages for the loss of
enjoyment of life, we conclude that the trial court abused its
discretion by allowing the testimony at trial.

The economic calculations for Mrs. Wilt’s claim for
hedonic damages were presented through the testimony of
economist Michael Brookshire, Ph.D. Dr. Brookshire utilized
a theory that every human life has the same whole-life value.
This “benchmark” whole-life value was arrived at by
combining and averaging the economic values arrived at in
over 50 “willingness-to-pay” studies.'? According to Dr.
Brookshire, this whole-life value is

"*As we stated in Gilman v. Choi, 135 W. Va. 1/7/, 179,
406 S.E.2d 200, 202 (1990): “Rule 702 of the West Virginia Rules of
Evidence . . . is concerned primarily with the relevancy of expert

testimony. See syl. pts. 1-2, State v. McCoy, 179 W. Va. 223, 366
S.E.2d 731 (1988)." (Emphasis added).

According to Dr. Brookshire, the bench-mark value of
an abstract average American’s whole life can be derived from willingness-
to-pay studies. The willingness-to-pay studies are based upon several
categories of statistical data obtained from the following sources: (1) wage
risk studies of the United

12

the same for all persons and is set at $2.5 million. From this
amount, he subtracts another average value that he terms the
"economic machine." The economic machine represents the
value of a person’s average lifetime economic earnings, such
as wages, fringe benefits, and household services. This value
is «timated at $800,000, leaving as a “bench-mark" value
$1.7 million, which is contended to be the general value of the
loss of enjoyment of life to the average unknown American.

The plaintiffs also presented the testimony of a
psychologist who estimated that Mrs. Wilt, based upon loss-
of-enjoyment-of-life tests he had devised, had suffered a 51-60
percent loss of her enjoyment of life. Using the percentage
assigned by the psychologist, Dr. Brookshire then calculated
Mrs. Wilt’s net economic loss of enjoyment of life by
applying it to the bench-mark figure of $1.7 million and
factoring in Mrs. Wilt’s life expectancy. Mrs. Wilt’s net
economic loss of enjoyment of life was fixed at $685,493.

Our initial concern is that the willingness-to-pay studies
upon which Dr. Brookshire’s calculations are based have no
relevance to the particular loss of enjoyment of life suffered
by a plaintiff due to a given permanent injury. The
willingness-to-pay studies that were used did not involve
persons suffering a

States Government that depict the wage--differential in high risk jobs; (2)
behavioral studies focusing on a consumer's willingness to pay for safety
devices; (3) economic cost estimates used by federal agencies issuing safety
regulations; and (4) a combination of the foregoing.

13

Appendix Page 26

Toth eb le Ch cet clio gn bie

permanent injury in a personal injury context. Moreover, the
willingness-to-pay studies did not use methodology designed
to calculate the loss of enjoyment of life, but were nonetheless
extrapolated by Dr. Brookshire into what he claimed to be
valid data for calculating damages for Mrs. Wilt’s loss of
enjoyment of life.

The underlying studies were not presented into
evidence and are not a part of the record. Consequently, it is
not possible to determine their precise methodology.
Certainly, under any Rule 702 analysis, without a detailed
explanation of the underlying studies’ methodology, the expert
testimony would not meet the reliability standard and the
testimony should be excluded.

Even if we were to assume that Dr. Brookshire’s
explanation of the reliability of the willingness-to-pay studies
was sufficient, the question would then be whether the studies
were sufficiently relevant to support his calculations on loss of
enjoyment of life. In his testimony, Dr. Brookshire gave an
example of the loss-of-enjoyment-of-life methodology. This
example was based on wage-versus-risk studies and involved
a hypothetical illustration of 10,000 window washers working
on skyscrapers and the risk of death between those working on
the first-floor windows and those working on the top floors.
From federal statistics, he found a 1 in 10,000 greater chance
of death for top-floor window washers than other window
washers. He

14

Appendix Page 27

then assumed a wage differential of $300 per year for top-
floor washers. Thus, the bottom-floor washers were willing
to accept $300 less a year to avoid the top-floor work. He
concluded that if the 10,000 workers were willing to accept

$300 less, then the value of one life in that context is
$3,000,000."

“The testimony in this regard was as follows:

"Q. Could you discuss in more detail how the studies of
differing wage rates [versus] different risks of death generate values of life
from the actual decisions of workers?

"A. Yes, there are four foundations for that two and-a-
half million dollar conclusion. The first is something called: Wage
[versus] risks studies.

“Let me try to give you an example of how these studies
work. Lets talk about first floor window washers on skyscrapers
[versus] top floor window washers on sky [scrapers]. They do
exactly the same job. But let’s assume that out of every 1000
such window washers those who work on the top floor have a |
in 10,000 greater chance of death on the job. We know that from
federal statistics by occupation on what the death risk is.

"So, if there is 1 in 10,000 difference in death
what if the economists
. . . and this is what happens in these studies that | am
going to talk about, look
at the average wage differentials, this comes from Adam
Smith, what if we knew that there was an average wage
difference of $300.00 a year for 10,000 first floor
window washers.

Appendix Page 28

aes

"That is, they are willing to pay these first floor window
washers $300.00 a year in terms of lower wages: ’we will accept
$300.00 a year just don’t make us go on that top floor.’

"That means that 10,000 workers

15

Appendix Page 29

Although the foregoing illustration was not taken from
any of the willingness-to-pay studies, Dr. Brookshire testified
that it was designed to illustrate the methodology used in a
wage-versus-risk study approach to determine the total value
: of a life. Even if we were to assume that this methodology
has some valid economic basis, we reject it from a legal
standpoint because it has nothing to do with defining the

particular value of the loss of enjoyment of life in this case.’

Moreover, the calculations are based on assumptions
that appear to controvert logic and good sense. Anyone who
is familiar with the wages of coal miners, policemen, and
firefighters would scoff at the assertion that these high risk
jobs have any meaningful extra wage component for the risks
undertaken by workers in those professions. '°

|

were willing to pay $300.00 each, that
is three million dollars, to save one
human life. Remember if they go up
to the top floor one of those 10,000
will die.”

''The willingness-to-pay studies do not relate in any way
to the actual component of damages, the enjoyment of life.

“Another illustration was given to disclose the
methodology underlying the value of the average life by using studies on
consumers’ willingness to pay for safety devices to protect their lives. Dr.
Brookshire set the cost of an automobile airbag at $300 and indicated that
highway death statistics showed that with an airbag the risk of death went
down by 1 in 10,000, that is, one life will be saved if 10,000 people have
air bags. He then concluded:

"Let’s say we do a study on air bags,
and this is one that economists have

done, we knew [sic] that out of 10,000
people that buy air bags they pay an

Appendix Page 30

| |

average of . . . let’s give you the same
number, $300.00 a year for an air bag.
I think it is more expensive

16

Appendix Page 31

The majority of jurisdictions that have addressed
whether expert testimony based upon willingness-to-pay
studies is relevant to one’s loss of enjoyment of life have
concluded that such testimony is inadmissible. The most
thorough analysis of this issue was made by the Court of

Appeals for the Seventh Circuit in Mercado v. Ahmed, 974
F.2d 863, 871 (7th Cir. 1992):

"(W]e have serious doubts about [the] assertion
that the studies [relied] upon actually measure
how much Americans value life. For example,
spending on items like air bags and smoke
detectors is probably influenced as much by
advertising and marketing decisions made by
profit-seeking manufacturers and by
government-mandated safety requirements as it
is by any consideration by consumers of how
much life is worth. Also, many people may be
interested in a whole range of safety devices
and believe they are worthwhile, but are unable
to afford them. More fundamentally, spending
on safety items reflects a consumer’s
willingness to pay to reduce risk perhaps more
a measure of how cautious a person is than
how much he or she values life. Few of us,
when confronted with the threat, Your money
or your life!’ would, like Jack Benny, pause
and respond, "I’m thinking, I’m thinking.’
Most of us would empty our wallets. Why that
decision reflects less the value we place on life
than

than that, but let’s just use the same example; $300.00
each for an air bag.

Appendix Page 32

on ane eater ad Bh

"Let’s say that we knew the highway death
statistics, and by the mid 1980s we did know these
things, we didn’t have these statistics until the mid
1980s, that with an air bag the risk of death goes down
about 1 in 10,000. Out of 10,000 people one life will be
saved if 10,000 folks have an air bag.

"What does that mean? 10,000 people spend
$300.00 each, that is three million in total, to save one
life.”

17

Appendix Page 33

whether we buy an airbag is not immediately
obvious." (Emphasis in original).

The Mercado court also addressed the relevancy of
other studies that have been used to support calculations for
hedonic damages. Those studies were similar to the ones used
by Dr. Brookshire and included the amount of extra salary
paid to those who perform risky work. Another study focused
on government estimates concerning increased costs for
complying with health and safety regulations:

"To say that the salary paid to those who hold
how much we value life ignores the fact that
hum mov mon
incentives. For example, someone who
believes police officers working in an
extremely dangerous city are grossly
undercompensated for the risks they assume
might nevertheless take up the badge out of a
sense of civic duty to their hometown. Finally,
government calculations about how much to
spend (or force others to spend) on health and
safety regulations are motivated by a host of
considerations other than the value of life: is
it an election year? how large is the budget
deficit? on which constituents will the burden
of the regulations fall? what influence and
pressure have lobbyists brought to bear? what
is the view of interested constituents? And so
on.” 974 F.2d at 871. (Emphasis ,added)."’

Appendix Page 34

'*The Seventh Circuit in an earlier case, Sherrod v. Berry, 827
F.2d 195 (7th Cir. 1987) (applying Indiana law), approved expert
testimony for calculation of economic damages for loss of enjoyment of
life. Sherrod was reversed, en banc, on other grounds. 856 F.2d 802 (7th
Cir. 1988). It would appear that Mercado settled this issue and, in effect,

overruled Sherrod. See also Southlake Limousine & Coach, Inc. v. Brock,
578 N.E.2d 677 (Ind. App. 1991) (rejecting expert calculations for hedonic

damages).

18

Appendix Page 35

In Foster v. Trafalaer House Oil & Gas, 603 So.2d
284 (La. App. 1992), the court recognized, as we did in
Flannery, that the loss of enjoyment of life is an element of
general damages. That court went on to elaborate on the
nature of the task of determining the amount of such damages:

"[C]ompensation [for general damages] is never
a true measure or a true compensation for what
is lost. The task of awarding general damages
is a uniquely human endeavor, not only calling
upon the trier of fact to consider the host of
factors unique to each individual case, but also
requiring the trier of fact to draw upon the
Virtually unlimited factors unique to us as
human beings .. .

"[E]conomic theories which attempt to
extrapolate the ‘value’ of human life from
various studies of wages, costs, etc., have no
place in the calculation of general damages."
603 So. 2d at 286.

See also Livingston v, United States, 817 F. Supp. 601
(E.D.N.C. 1993) (applying North Carolina law); Sterner _v.
Wesley College, Inc., 747 F. Supp. 263 (D. Del. 1990)
(applying Delaware law); Fetzer v. Wood, 211 Ill. App. 3d
70, 84, ISS Tl. Dec. 626, _ , 569 N.E.2d 12371 1246 (1991)

("the jury is in a better position to decide without imposing an
expert's theory as to valuation.”).

Finally, in order to lay to rest any future confusion
over whether a different methodology can make this type of

Appendix Page 36

evidence admissible under Rule 702, we believe this issue is
similar to that addressed in Crum v. Ward, 146 W. Va. 421,
122 S.E.2d 18 (1961). In Crum, we held that, from a
substantive law standpoint, testimony could not be introduced
placing a monetary

19

Appendix Page 37

value on a plaintiff's pain and suffering. As we stated in
Syllabus Point 4 of Crum: "In the trial of an action for
damages for personal injuries based in part on pain and
suffering, testimony attempting to place a money value on
pain and suffering is inadmissible.”

Moreover, not unlike the situation addressed in Crum,
in Flannery, supra, we discussed the question of loss of
enjoyment of life in terms of a subjective jury evaluation issue
rather than as an objective calculable item:

"Here, however, we have an element, a
component, of damages that may be considered
by a jury in determining the amount of its
award. Just as a jury may consider the nature,
effect and severity of pain when fixing damages
for personal injury, or may consider mental
anguish caused by scars and disfigurement, it
may consider loss of enjoyment of life." 171
W. Va. at 32, 297 S.E.2d at 438. (Emphasis in
original; citations omitted)."

Consequently, we conclude that the loss of enjoyment of life
resulting from a permanent injury is part of the general
measure of damages flowing from the permanent injury and is
not subject to an economic calculation.

'"]t should be noted that Flannery came to us as certified questions
from the Court of Appeals for the Fourth Circuit based on its
determination that damages for personal injuries under the Federal Tort
Claims Act, 28 U.S.C. SS 2671, were to be determined under the state law
where the injury occurred. See Flannery v. United States, 649 F.2d 270
(4th Cir. 1981). After receiving our answers to the certified questions, the
Fourth Circuit decided that federal law applied and declined to follow our

Appendix Page 38

answers. Flannery v. United States, 718 F.2d 108 (4th Cir. 1983), cert.
denied, 467 U.S. 1226, 104 S. Ct. 2679, 81 L. Ed. 2d 874 (1984).

20

iat ae ee

Appendix Page 39

Il.
A.
Future Dental Expense

The defendant also cites as error the admission of, the
testimony of the plaintiffs’ dental expert, Dr. Leroy Jackson,
who testified concerning the future dental expenses that Mr.
Wilt would incur. The defendant contends that Dr. Jackson
was unable to testify with a reasonable degree of certainty
about Mr. Wilt’s future dental expenses. The jury awarded
Mr. Wilt $5000 under this category of damages. Dr. Jackson
stated that while Mr. Wilt had dentures prior to the car
accident, those dentures would have to he replaced because,
prior to the accident, Mr. Wilt required only a partial-plate
denture, and after the accident, he required a full-plate
denture. Dr. Jackson testified that, to a reasonable degree of
medical certainty, he was certain that Mr. Wilt would require
one or two additional upper dentures in his lifetime.'® Dr.
Jackson was not asked to separate the difference between Mr.
Wilt’s dental impairment before and after the accident.

In Syllabus Point 13 of Jordan v. Bero, supra, we
Stated:

"In an injury case where the
manifestations of the permanent injury may be
obscure and the extent of the injury itself may
be obscure because of its character, positive
medical evidence to a degree of reasonable
certainty that the injury is

"Dr. Jackson testified that the 1991 cost for the type of upper
denture needed by Mr. Wilt was $550.

21

Appendix Page 40

NARA Bie he ey

permanent is sufficient to take the question to
the jury and to support an award of damages
for the future effects of such injury.”

It is clear that Dr. Jackson testified to a degree of reasonable
certainty that Mr. Wilt had suffered a permanent dental injury
as a result of the accident. Thus, it was not error for the trial
court to allow Dr. Jackson’s testimony to be considered by the
jury and the jury was free to award damages for the future
effects of Mr. Wilt’s injury.

itiv m

The jury verdict included an itemized award of
$500,000 in punitive damages to each of the plaintiffs. The
defendant contends that such a large award of punitive
damages was violative of constitutional due process
safeguards. The defendant also contends that it was error,
under the evidence presented at trial, for the trial court to
instruct the jury that driving under the influence of alcohol
was evidence of reckless negligence and that punitive damages
could be awarded therefor.

The instruction given by the trial court regarding
driving under the influence of alcohol was as follows: "By
Statute in W. Va. a person may not drive a vehicle in this
State while he is under the influence of alcohol and a person
may not drive a vehicle in reckless disregard of the safety of
others." The defendant contends that giving such an
instruction was error

22

Appendix Page 41

because no direct evidence was admitted at trial to the effect
that Mr. Nickelson was intoxicated or driving under the
influence of alcohol. We disagree. The instruction given by
the trial court is in line with several of our cases where we
recognized that a person who drives while under the influence
of alcohol in reckless disregard of the safety of others may be
— to an award of punitive damages. See Hensley v. Erie
Ins. Co., 168 W. Va. 172, 283 S.E.2d 227 (1981). Cf.
Perry v. Melton, 171 W. Va. 397, 299 S.E.2d 8 (1982).

There was abundant testimony to the effect that Mr.
Nickelson had been drinking "Wild Turkey" whiskey shortly
before the accident, and that the "Wild Turkey" bottle was
between his legs at the time of the accident. Moreover, the
investigating police officers noticed an “extreme” smell of
alcohol coming from the vehicle, and Mr. Nickelson was
observed driving "erratically" and at a “high rate of speed”
immediately before the accident. As we stated in Syllabus

Point 4 of Catlett v. MacQueen, 180 W. Va. 6, 375 S.E.2d
184 (1988):

"If there be evidence tending in some
appreciable degree to support the theory of
proposed instructions, it is not error to give
such instructions to the jury, though the
evidence be slight, or even insufficient to
support a verdict based entirely on such

theory.’ Syllabus Point 2, Snedecker v.
Rulong, 69 W. Va. 223, 71 S.E. 180 (1911).”

Clearly, the evidence presented by the plaintiffs was sufficient
to instruct the jury that driving under the influence of alcohol

23

Appendix Page 42

is prohibited by statute in this State, and the trial court did not
commit error by giving that instruction.

The defendant also contends that the award of punitive
damages violated constitutional due process guarantees because
the trial court failed to adequately instruct the jury so as to
protect the defendant from a punitive award “grossly
disproportionate to the severity of the offense or to accomplish
society’s goals of punishment and deterrence[.]" Our general
rule on the adequacy of jury instructions concerning punitive
damages was stated in Syllabus Point 13 of TXO Production
Corp, v. Alliance Resources Corp., 187 W. Va. 457, 419
S.E.2d 870 (1992), aff'd, 509 U.S. _, 113 S. Ct. 2711, 125
L. Ed. 2d 366 (1993). We find that the jury instruction was
adequate under TXO and, under this standard, the amount of
punitive damages awarded was not improper even if the
hedonic damage evidence had been excluded.

ol
Prejudgment Interest

The defendant argues that the trial court erred when
it awarded the plaintiffs prejudgment interest an their award
of damages for the loss of household services. There was
undisputed testimony at trial that a cousin of Mr. Wilt’s
performed those services because Mrs. Wilt was unable to do
so, and that the cousin accepted significantly less
compensation from the plaintiffs than the going rate for those
services. The

24

Appendix Page 43

defendant contends that household services are not "special
damages" under W. Va. Code, 56-6-31 (1981), and thus
prejudgment interest may not be paid on that award. We
disagree.

W. Va. Code 56-6-31, states, in pertinent part:

"{I]f the judgment or decree, or any part
thereof, is for special damages, as defined
below, or for liquidated damages, the amount
of such special or liquidated damages shall bear
interest from the date the right to bring the
same shall have accrued, as determined by the
court. Special damages includes lost wages and
income, medical expenses, damages to tangible
personal property, and similar out-of-pocket
expenditures, as determined by the court."
(Emphasis added).

As we stated in Syllabus Point 1 of Buckhannon-
n hority v R n in
Inc., 186 W. Va. 583, 413 S.E.2d 404 (1991):

"Prejudgment interest, according to
West Virginia Code § 56-6-31 (1981) and the
decisions of this Court interpreting that statute,
is not a cost, but is a form of compensatory
damages intended to make an injured plaintiff
whole as far as loss of use of funds is
concerned.”

It is clear to us that expenditures for household services are

included within the phrase “similar out-of-pocket
expenditures" used in W. Va. Code, 56-6-31, and

Appendix Page 44

prejudgment interest may be awarded under that section.
They are out-of-pocket funds the plaintiffs lost due to the
negligence of the defendant’s decedent and are intended to
make the plaintiffs whole. Thus, household services
expenditures are special damages for the purposes of W. Va.
Code, 56-6-31, and the trial court did not err by awarding

25

Appendix Page 45

prejudgment interest upon those damages.

Ill.

Because the hedonic damage evidence was improperly
admitted, this case must be remanded. We recognized in
Syllabus Point 3 of Gebhardt v. Smith, 187 W. Va. 515, 420
S.E.2d 275 (1992), that where liability has been clearly
established and, on appeal, error has been found to have
occurred, a new trial may be awarded on that issue alone:

"Rule 59(a), [West Virginia Rules of
Civil Procedure], provides that a new trial may
be granted to any of the parties on all or part
of the issues, and in a case where the question
of liability has been resolved in favor of the
plaintiff leaving only the issue of damages, the
verdict of the jury may be set aside and a new
trial granted on the single issue of damages.’

Syl. pt. 4, Richmond v. Campbell, 148 W. Va.
595, 136 S.E.2d 877 (1964)."

In Roberts v. Stevens Clinic Hospital, Inc., 176 W.
Va. 492, 345 S.E.2d 791 (1986), the jury awarded damages

in the amount of $10 million in a wrongful death claim of a
two-and-one-half-year old child. We found the award
excessive and remanded the case with directions to the circuit
court “to enter a remittitur of $7,000,000 and enter judgment
on the verdict for $3,000,000 or, in the alternative, at the
option of the plaintiff, to award a new trial." 176 W. Va. at
504, 345 S.E.2d at 804.

Another approach was taken in Harlems v. First

Appendix Page 46

National Bank in Fairmont, 169 W. Va. 673, 289 S.E.2d 692
(1982). There, the jury returned a verdict in a personal injury

case, which was

26

Appendix Page 47

broken down into various components. Upon analyzing the
various damage components of the award, we found that some
were not legally authorized under the facts of the case. The
total award of damages was $80,000; however, we determined
that the correct award should have been $25,000 and came to
this conclusion:

"We, therefore, accord the right of
remittitur to the plaintiff on the basis that he
may accept within forty-five days from the
mandate of this Court a judgment of $25,000
together with interest thereon from the date of
the jury verdict against the Bank and Wilson or
the judgment will be set aside and he shall be
entitled to a new trial on the issue of damages."
169 W. Va. at 698, 289 S.E.2d at 706.

Thus, these cases illustrate the principle that where
liability is clearly established and the jury has made an
erroneous over-calculation of damages, a remittitur may be
directed on remand. If the plaintiff declines to accept the
remittitur, then a new trial will be ordered solely on the issue
of damages.

Consequently, we conclude that because the plaintiffs
offered substantial evidence supporting all their damage claims
except for Mrs. Wilt’s claim for loss of enjoyment of life,
which was assessed separately by the jury, we remand the
case with instructions that if the plaintiffs wish to remit the
hedonic damage award, judgment may be entered on the

remaining damages. ”°

*®The jury’s award to Mrs. Wilt, without the hedonic damage
component, was $88,387.57 for hospital, doctor, and medical expenses and
an additional $30,000 for such future expenses. Additionally, she received

Appendix Page 48

$25,000 for future pain and suffering, and $120,000 for past and future
loss of household

27

Appendix Page 49

if not, then the plaintiffs may have a new trial on the damage
issue alone because liability clearly has been established.”'

Therefore, the judgment of the Circuit Court of
Jefferson County is affirmed, in part, reversed, in part, and
remanded.

A f firmed ==, ion Ss. é€en §
reversed, in part;

and
remanded.

services. These compensatory damages totaled $263,387.57. The hedonic
damage award was $225,000. When these latter damages are removed,
there is still an adequate basis to sustain the $500,000 punitive damage
award for Mrs. Wilt under TXO Production Corp. v. Alliance Resources
Corp., supra. The same is true of Mr. Wilt who received compensatory
damages in the amount of $44,973.84 and punitive damages of $500,000.

Other jurisdictions have recognized the power of an appellate
court to reverse a judgment in regard to only that portion of the judgment
that is in error. In particular, they have held, as is the case here, that a
judgment may be reversed on a portion of compensatory damages while
sustaining an award for punitive damages. See Kerr v. First Commodity
Corp., 735 F.2d 281 (8th Cir. 1984); Flame Coal Co. v. United Mine
Workers, 303 F-2d 39 (6th Cir.), cert. denied, 371 U.S. 891, 83 S. Ct. -
186, 9 L. Ed. 2d 125 (1962); Higginbotham v. O'Keeffe, 340 S.W.2d 350
(Tex. Civ. App. 1960). See generally, 97 A.L.R.2d 1145 (1964 &
Supps. 1983 & 1993); 5 C.J.S. Appeal & Error § 1918 (1993); 5 Am. Jur.
2d Appeal & Error § 940 (1962 & Supp. 1993).

28

Appendix Page 50

STATE OF WEST VIRGINIA

At a Regular Term of the Supreme Court of
Appeals continued and held at Charleston, Kanawha County,
on the 13th day of December, 1993, the following order was
made and entered:

Glenn M. Wilt and Sandra B. Wilt,
Plaintiffs Below, Appellees

vs.) No. 21708

Robert Buracker, Sheriff as Successor in
Interest to Roy E. Thompson, Administrator
to the Estate of Charles W. Nickelson, Jr.,
deceased, Defendant Below, Appellant

The Court, having maturely considered the
transcript of the record, the brief Amicus Curiae tendered on
behalf of the Defense Trial Counsel of West Virginia, the
brief Amicus Curiae tendered on behalf of the West Virginia
Chamber of Commerce, and the oral argument and briefs of
counsel thereon, is of opinion for reasons stated in writing and
filed with the record that there is error in the judgment of the
Circuit Court of Jefferson County, rendered on the 18th day
of November, 1992, but not such as to require reversal of the
entire judgment. It is therefore considered and ordered that
said judgment is affirmed insofar as the circuit court's
awarding of prejudgment interest on the plaintiffs’ award of
damages for the loss of household services; the circuit court’s
admission of the testimony of plaintiffs’ dental expert, Dr.
Leroy Jackson; the instructions given by the trial court; and
the award of punitive damages, but insofar as the circuit
court’s ruling allowing hedonic damages evidence, the

Appendix Page 51

same is reversed, set aside and annulled. AND this action is
remanded to the Circuit Court of Jefferson County with
directions that if the plaintiffs wish to remit the hedonic
damages award, judgment may be entered on the remaining
damages. If not, then the plaintiffs may have a new trial on
the damages issue alone since liability clearly has been
established; all of which is ordered to be certified to the
Circuit Court of Jefferson County.

The syllabus of points adjudicated, prefixed to
the written opinion prepared by Justice Miller, was concurred
in by Chief Justice Workman and Justices Brotherton, Neely
and McHugh. Justice Neely reserves the right to file a
concurring opinion.

A True Copy

Attest:_/s/ Ancil G. Ramey
Clerk, Supreme Court of

Appeals

Appendix Page 52

Appendix Tab B

No. 21708

IN THE SUPREME COURT OF APPEALS OF WEST
VIRGINIA

At Charleston

ROBERT BURACKER, SHERIFF,
as Successor in Interest to
ROY E. THOMPSON, Administrator
to the Estate of Charles W.
Nickelson, Jr., deceased,
Appellant,

v.

GLENN M. WILT and
SANDRA B. WILT,

Appellees.

Appeal From The Circuit Court of
Jefferson County, West Virginia
Civil Action No. 88-C-186

PETITION FOR REHEARING

MARTIN & SEIBERT, L.C.

Walter M. Jones, III

E. Kay Fuller

Post Office Box 1286
119 South College Street
Martinsburg, WV 25401
(304) 267-8985

Counsel for Appellant

Appendix Page 53

Comes now the Appellant, Robert Buracker, Sheriff,
as Successor in Interest to Ruy E. Thompson, Administrator
to the Estate of Charles W. Nickelson, Jr., deceased, by and
through his counsel Walter M. Jones, III, E. Kay Fuller, and
Martin & Seibert, L.C. and petitions this Court pursuant to
Rule 24 (a) of the West Virginia Rules of Appellate Procedure
for a rehearing on the issue of punitive damages raised in the

instant appeal.

I. NATURE OF PROCEEDINGS AND RULING
BELOW

Be The Appellant, Robert E. Buracker, Sheriff, as
Successor in Interest to Roy E. Thompson, Administrator to
the Estate of Charles W. Nickelson, Jr., deceased, hereinafter
referred to only as Robert Buracker, previously appealed the
Order of November 16, 1992, of the Circuit Court of
Jefferson County, West Virginia, seeking a reversal thereof.

2. The petit jury of the Circuit Court of Jefferson
County, West Virginia returned a verdict in favor of the
Appellees, December 22, 1991, in the amount of
$1,533,361.30. The verdict included an award of punitive
damages in the amount of $1,000,000.00, apportioned
$500,000.00 to each Appellee.

3. This Honorable Court ruled December 13,
1993, that hedonic damages testimony presented during the
trial of this action was inadmissible.

4. The $1,000,000.00 award of punitive damages
was in part based upon this inadmissible testimony.

5. The Appellant, therefore, seeks a reversal of the
punitive damage award which was based upon inadmissible

Appendix Page 54

evidence.

Appendix Page 55

Hi. STATEMENT OF
FACTS

This litigation arises from a fatal collision on U.S. 340
in Jefferson County, West Virginia, which occurred May 3,
1986. On May 3, 1986, Charles W. Nickelson, Jr., deceased,
was Operating his motor vehicle northbound on U.S. 340;
passengers in his car were Lori Stokley Hall and Charles W.
Nickelson, III, deceased. At approximately 6:17 p.m., a
head-on collision occurred between the vehicle operated by
Charles W. Nickelson, Jr., deceased, and a truck driven by
Appellee, Glenn M. Wilt. Appellee, Sandra B. Wilt, was a
passenger in her husband’s truck. As a result of the collision,
Charles W. Nickelson, Jr. and Charles W. Nickelson, ITI were
instantly killed. Appellees, Glenn and Sandra Wilt, suffered
personal injury, as did Lori Stokley Hall.

During the trial of this matter, no competent evidence
of intoxication - as opposed to consumption - of Charles W.
Nickelson, Jr., deceased, was proffered or admitted.
Nevertheless, the trial court, over objection, instructed the
jury on the law of driving under the influence and also
instructed the jury that punitive damages may be awarded for
malicious, oppressive, intentional, or willful, reckless, or
criminally indifferent activity. Furthermore, the jury was
permitted to hear inadmissible hedonic damages testimony.
As a result, the jury returned a verdict of $1,000,000.00 in
punitive damages against the Estate of Charles W. Nickelson,
Jr.

On December 13, 1993, this Court ruled that the
hedonic damages testimony presented during the trial of this
action was inadmissible and affirmed in part and reversed in
part the final Order of the Circuit Court of Jefferson County,
West Virginia. The Appellant seeks a rehearing on this issue

Appendix Page 56

of punitive damages since it was in part based upon
inadmissible testimony.

Appendix Page 57

iil. ASSIGNMENTS OF ERROR

1. The Trial Court erred by invading the province
of the jury by making a finding of fact of a contested issue
and further erred by permitting an award of punitive damages
based upon this finding without proper safeguards and
instruction as to the awarding of punitive damages.

2. The Trial Court erred when it permitted the
jury to consider punitive Camages after hearing inadmissible
hedonic damages testimony.

3. The Trial Court erred when it refused to
conduct a meaningful post-trial review of the punitive damages
award.

IV. POINTS AND AUTHORITIES

I. PUNITIVE DAMAGES SHOULD BE SET
ASIDE.

In determining whether a verdict is supported by the
evidence, every reasonable and legitimate inference fairly
arising from the evidence in favor of the party for whom the
verdict is returned must be considered and the facts which the
jury might properly find under the evidence must be assumed
as true. However, it is also clear that verdicts returned
without adequate foundation must be amended or set aside.

llosky v. Michelin Tire Corp., 172 W.Va. 435, 307 S.E.2d

603 (1983); Elsey Ford Sales, Inc. v. Solomon, 167 W.Va.
891, 280 S.E.2d 718 (1981). Furthermore, where a party

seeks to recover damages which are indeterminate in nature,
a verdict must be set aside as excessive if it is not supported
by. evidence or is so large so as to indicate that the jury was

Appendix Page 58

influenced by passion, partiality, prejudice or corruption, or
entertained a mistaken view of the case. Earl J. Browder,
nc. Vv n f Webster

Appendix Page 59

County, 145 W.Va. 696, 116 S.E.2d 867, Syl. Pt. 4 (1960);
Elsey, 280 S.E.2d at 721. Clearly, the verdict returned by the
jury in the instant civil action was excessive. The verdict was
not supported by the evidence and was so large that it
indicated that the jury was influenced by passion, partiality,
prejudice or corruption and, by Court instruction, the jury
entertained a mistaken view of the case. Furthermore, the
verdict was based upon inadmissible evidence which also
mislead the jury and permitted os jury to be mislead and
confused.

A. The trial court violated due process
rights of the Appellant.

In instructing the jury that it could award punitive
damages, the trial court violated the due process rights of the
Appellant’s decedent. The trial court did not adequately
insure that the award of punitive damages would not be
grossly disproportionate to the severity of the offense or to
accomplish society’s goals of punishment and deterrence such

as is required by Pacific Mutual Life Ins. Co. v, Haslip, 113

L.Ed.2d 1, 111 S.Ct. 1032 (1991), and Garnes v,. Fleming
Landfill, Inc., 186 W.Va. 686, 413 S.E.2d 897 (1991).

Moreover, the trial court did not engage in a "meaningful and
adequate review" of the award during post-trial proceedings
using well established principles as required. Garnes, 413
S.E.2d at 899, Syl. Pt. 2.

The trial court in instructing the jury on punitive
damages stated many, but not all, of the Garnes factors which
are to be considered by a jury in awarding punitive damages.
Furthermore, the court instructed the jury to consider
additional factors beyond those enunciated in Garnes.
Specifically, the trial court advised the jury that punitive
damages should bear a reasonable relationship to the harm that

Appendix Page 60

is likely to occur from the Defendant’s conduct as well as to
the harm that actually has occurred. The court instructed the
jury that it could consider the reprehensibility of the
Defendant’s conduct, how long the Defendant continued in his
actions

Appendix Page 61

and whether he was aware his actions were likely to cause
harm, as well as the financial position of the Estate. The
trial court did not advise the jury to consider whether the
Defendant made reasonable efforts to make amends by
offering a fair and prompt settlement, nor did the court
instruct the jury concerning whether the Defendant profited
from his wrong. Those elements, however, were not
appropriate in the instant civil action. The court also
instructed the jury to consider the nature of the Defendant’s
wrongdoing, the extent of harm inflicted and the party’s
intent.

l. Punitive damages should bear a reasonable
relationship to the harm. The jury was presented with
excessive damages based upon inadmissible testimony.
Therefore, the jury, after being mislead by the testimony
concerning hedonic damages, was unable to appropriately
adjust its awards -- whether compensatory or punitive. After
being presented unsupported testimony as to the harm that
allegedly had and would occur to the Appellees via hedonic
damages testimony, the jury did not and could not have an
adequate foundation upon which to determine whether punitive
damages bore a reasonable relationship to harm caused by the
Defendant. This first factor to be considered by the jury was
therefore circumvented by the trial court’s admission of
hedonic damages testimony.

2. The jury may consider factors of the
Defendant’s conduct including reprehensibility, how long the
Defendant continued in his actions, whether he was aware his
actions were causing or were likely to cause harm, whether he
attempted to conceal or cover up his actions or the harm
caused by them, whether/how often the Defendant engaged in
similar conduct in the past, and whether the Defendant made
reasonable efforts to make amends by offering a fair and

Appendix Page 62

prompt settlement for the actual harm caused once his liability
became clear

Appendix Page 63

aaa

to him. The jury received little evidence of the Defendant’s
conduct and heard testimony only as to alcohol consumption
and erratic driving. From that, however, the court found as
a fact that Charles W. Nickelson, Jr., deceased, was driving
under the influence and so instructed the jury. This act by the
trial court again circumvented any meaningful deliberation and
finding by the jury. The second factor, in determining
whether to award punitive damages was also stripped from the
jury’s consideration.

The jury was instructed to consider the reprehiensibility
of the Defendant’s conduct of driving under the influence as
per the instructions of the court without hearing such
testimony from the witness stand. The jury also utilized this
finding of fact when it was instructed to consider how long the
Defendant continued in his actions, whether he was aware his
actions were causing or were likely to cause harm and whether
he attempted to conceal or cover up his actions or the harm
caused by them, and whether/how often he engaged in similar
conduct in the past. The court, however, did not instruct the
jury to consider whether the defendant attempted to conceal or
cover up his actions or the harm caused by them.

3. Punitive damages should remove any profit the
Defendant made from his wrongful conduct. The trial court
did not instruct the jury as to the removing of any profit
which the Defendant may have made from his conduct since
this was not an issue in the instant civil action. The third
factor for the jury’s consideration, therefore, need not be
considered in any post-trial review.

: 4. As a matter of fundamental fairness, punitive
damages should bear a _ reasonable relationship to
compensatory damages. While the trial court properly
instructed the jury that punitive damages should bear a

Appendix Page 64

‘ 4
>

reasonable relationship to compensatory damages, it is clear
that

Appendix Page 65

the award does not bear that required relationship thereby
violating fundamental fairness and the due process rights of
Charles W. Nickelson, Jr., deceased. When the underlying
compensatory damages were inflated by inadmissible evidence
and unproven claims, any large punitive damages award would
also be incorrect.

While the trial court instructed the jury that punitive
damages should bear reasonable relationship to compensatory
damages, the jury was unable to do so based upon the
improper introduction of hedonic damages testimony. After
the introduction of such testimony,the jury was mislead as to
the actual compensatory damages, and was unable to assign
punitive damages, if any, proportionately. Only the trial court
could have insured that the fourth factor was complied with.
However, when the trial court permitted the hedonic damages
testimony as an element of compensatory damages, it became
a foregone conclusion that punitive damages could not bear a
reasonable relationship to actual compensatory damages.

5. The financial position of the Defendant is
relevant. The trial court also instructed the jury that in
awarding punitive damages it could consider the financial
position of the Defendant. Yet, it was clear from the
testimony as presented, and from arguments of counsel for the
Appellees, that an insurer was involved. Due to the minimal
assets of Charles W. Nickelson, Jr., deceased, in contrast to
the enormous amounts of damages which the Appellees were
seeking via testimony and demonstrative evidence on the issue
of hedonic damages, it was eminently clear to the jury that a
source other than the Estate of Charles W. Nickelson, Jr.,
deceased, would be liable for any verdict returned. This fact
was further supported by the testimony presented as to
minimal personal assets of Charles W. Nickelson, Jr.,
deceased, and further by the specific instruction of the Court

Appendix Page 66

that the Sheriff would not be liable in any manner

Appendix Page 67

as a result of the verdict.

Therefore, for the foregoing reasons, the trial court did
not properly constrain the jury in its discretion of awarding
punitive damages and moreover, the trial court violated the
due process rights of the Defendant in permitting the jury to
award punitive damages when adequate testimony and
evidence to support such an award were clearly absent.

B. The award was based in part on
inadmissible evidence and should be
set aside.

Moreover, having permitted inadmissible testimony to
be considered by the jury, the $1,000,000.00 award of
punitive damages is partly based upon improper testimony
which again corrupted and mislead the jury. The jury was
given no guidance, nor were any parameters set which could
help the jury to distinguish between the award of punitive
damages based upon the admissible as opposed to the
inadmissible portion of the testimony presented at trial. There
likewise is no way to distinguish between a proper and an
improper punitive damages award post-trial. Therefore, the
award based in part upon inadmissible testimony, not subject
to delineation must be set aside.

c. The Appellant has been denied a
meaningful post-trial review.

Garnes also requires a trial court to conduct a post-trial
review. In its post-trial review, however, the trial court did
not consider the factors upon which it instructed the jury, nor
did it take into account the additional factors necessary for a
meaningful post-trial review. Moreover, in permitting the
Appellees to accept either a remittitur of only $225,000.00 or

Appendix Page 68

“1. 7...

a new trial without any regard to a review or reduction of the
punitive damages award again deprives the Appellant of the
meaningful post-trial review he is assured in Garnes.

Appendix Page 69

3
:
:

In reviewing an award of punitive damages, the trial
court should, at a minimum, consider the factors given to the
jury as well as the following additional factors:

1. The costs of the litigation;

y a Any criminal sanctions imposed on the
defendant for his conduct;

3. Any other civil actions against the same
defendant based on the same conduct; and

4. The appropriateness of punitive damages to

encourage fair and reasonable settlements when
a clear wrong has been committed. A factor that
may justify punitive damages is the cost of litigation
to the Plaintiff.

Id., 413 S.E.2d at 900, Syl. Pt.4.

In its post-trial review, however, the trial court did not
fully consider the foregoing additional factors. Moreover, if
a remittitur of only $225,000.00 of the improper verdict is
permitted without further consideration, this Court will also
have failed to provide meaningful post-trial review to the
Appellant.

The costs of this litigation are in excess of costs for
standard personal injury litigation due only to the Appellees’
late request to present an additional claim of hedonic damages
which has been deemed to be inadmissible only after the
parties incurred extreme expense in retaining expert witnesses
and the other costs associated therewith. Apart from the
additional claim of hedonic damages, the costs of this
litigation would not have been out-of-line with similar

Appendix Page 70

litigation. This undue expense was a fault of the Appellees
and should be considered in favor of the Appellant.

No criminal sanctions were imposed because Charles
W. Nickelson, Jr. was killed as a result of this collision. The
Court, therefore, need not consider this element.

Several companion cases arising from the same
accident, based upon the same conduct and

Appendix Page 71

against the same Defendant,were filed in the Circuit Court of
Jefferson County and all were settled prior to the trial of this
action. Those companion cases included a declaratory
judgment action wherein the Circuit Court of Jefferson County
determined that the amount of underinsured motorist coverages
available to the Wilts was equal to the amounts for which their
insurer had previously offered to settle. Appellees counsel,
however, asserted and continues to assert, additional
underinsured coverages are available which necessitated the
trial of this action. The trial court, however, failed to
consider the attempt to reach a fair and reasonable settlement
in this action. The fact that companion cases were settled
prior to tnal and that State Automobile Mutual Insurance
Company, the insurer of Charles W. Nickelson, Jr. and the
Wilts, offered to its insured the amount of underinsured
motorist coverages subsequently determined by the Circuit
Court to be the proper amount, is indicative of the fact that a
fair and reasonable settlement was attempted. This factor
should be considered most favorable to the Appellant.

The fourth and final factor which the Court should
consider in reviewing the award of punitive damages is the
appropriateness of the punitive damages and its effect in
encouraging fair and reasonable settlements when a clear
wrong has been committed. The appropriateness of punitive
damages must be considered in light of the evidence
presented. The evidence presented in the instant civil action,
however, is of alcohol consumption, not intoxication, and
therefore, the requisite for punitive damages was not met,
thereby rendering an award of punitive damages inappropriate.
Moreover, the introduction of inadmissible hedonic damages
testimony overinflated the value and severity of the instant
civil action which directly lead to the excessive punitive
damages award. The trial court failed to adequately instruct
the jury that punitive damages should bear a reasonable

Appendix Page 72

relationship to the harm that is likely to occur from

Appendix Page 73

the Defendant’s conduct and failed to exclude hedonic
damages testimony from the jury’s consideration when
awarding punitive damages. Rather, the trial court instructed
the jury on the law of driving under the influence which
constituted a finding of fact by the trial court that the decedent
was driving under the influence. This judicial finding of fact
invaded the province of the jury and ignored the fact that no
testimony was permitted during the trial of this action to
support this finding. The instructions, and lack thereof,
therefore, improperly influenced the jury and gave the panel
a mistaken view of the case. These factors are interactive and
must be considered as a whole upon review. TXO Production

Corp. v. Alliance Resources Corp., 113 S.Ct. 2711 (1993).

Upon post-trial review, the trial court was again
presented with argument and authority that hedonic damages
testimony was improperly admitted and therefore, lead to an
inappropriate result. As per this Court’s previous ruling in
this action, hedonic testimony is inadmissible and should not
have been presented to the jury in this case and therefore, any
award which resulted therefrom is inappropriate and should be
set aside.

In reflecting upon the punitive damages award returned
by the jury in the instant civil action, this Court must protect
the constitutionally mandated due process rights of the Estate
of Charles W. Nickelson, Jr., deceased, and should find that
the punitive damages award returned against it was a result of
bias, passion and prejudice of the jury based upon improper
instruction, inadmissible testimony and was further the result
of unfettered jury discretion without due safeguards imposed.

CONCLUSION

Since the ruling that hedonic damages testimony is

Appendix Page 74

inadmissible in the State of West

12

Appendix Page 75

Virginia, the Estate of Charles W. Nickelson, Jr. has been
denied its constitutionally mandated post-trial review, wherein
the trial court should at a minimum consider factors given to
the jury. Since the jury considered an improper element of
damages, the trial court in its cursory post-trial review did not
conduct a meaningful post-trial review without seriously
considering whether the award of punitive damages was based
at least in part upon the improper testimony presented at trial.
In its December 13, 1993, Opinion, this Court permitted the
Plaintiff to either accept a remittitur of the $225,000.00
awarded by the jury for loss of enjoyment of life or to accept
a new trial based upon damages only. That option, however,
overlooks another improper award of damages, punitive
damages, which was partly based upon the inadmissible
evidence and again denies the Estate of Charles W. Nickelson,
Jr., deceased, constitutional safeguards.

For the foregoing reasons, the Appellant respectfully
requests that this Court rehear the issue of punitive damages
in this action and either issue a remittitur for the improper
award of $1,000,000.00 or in the alternative order a new trial
of the instant civil action.

Respectfully submitted,

ROBERT BURACKER,
SHERIFF, AS SUCCESSOR
IN INTEREST TO ROY E.
THOMPSON,
ADMINISTRATOR TO THE
ESTATE OF CHARLES W.
NICKELSON,
IR., DECEASED
BY COUNSEL
MARTIN & SEIBERT, L.C.

Appendix Page 76

ERE dt I SN

BY:_/s/ E. Kay Fuller
E. Kay Fuller
119 S. College St.
P.O. Box 1286
Martinsburg, WV 25401
(304) 267-8985

13

CERTIFICATE OF SERVICE

I, E. Kay Fuller, counsel for the Appellant, in the
foregoing action, hereby certify that I have served a true copy
of the foregoing PETITION FOR REHEARING upon the
following counsel, by mailing the same to them by U.S. Mail,
First Class, postage prepaid, at their respective addresses, this
lith day of January , 1994.

William Richard McCune, Esquire
JACKSON & KELLY

P.O. Box 1068

Martinsburg, WV 25401-1068

John C. Skinner, Jr., Esquire
NICHOLS & SKINNER, L.C.
P.O. Box 487

Charles Town, WV 25414

/s/ E. Kay Fuller
E. Kay Fuller

G:\WPDATA\10263\0000\AKD0 164

14

Appendix Page 78

Appendix Tab C

STATE OF WEST VIRGINIA

At a Regular Term of the Supreme Court of
Appeals continued and held at Charleston, Kanawha County,
on the 26th day of January, 1994, the following order was
made and entered:

Glenn M. Wilt and Sandra B. Wilt,
Plaintiffs Below, Appellees

vs.) No. 21708

Robert Buracker, Sheriff as Successor
in Interest to Roy E. Thompson,
Administrator to the Estate of Charles
W. Nickelson, Jr., deceased, Defendant
Below, Appellant

The Court, having maturely considered the
petition for rehearing and reargument filed in the above-
captioned case, is of opinion to, and doth hereby deny the
prayer of the petitioner and doth order that the final order
entered herein be made absolute and certified as heretofore
directed.

A True Copy

Attest:_/s/ Ancil G. Ramey
Clerk, Supreme Court of

Appeals

Appendix Page 79

Appendix Tab D

IN THE CIRCUIT COURT OF JEFFERSON COUNTY,
WEST VIRGINIA

GLENN M. WILT and
SANDRA B. WILT,

PLAINTIFFS,
VS. CIVIL ACTION NO. 88-C-186

ROBERT BURACKER, Sheriff,

as Successor in Interest to

ROY E. THOMPSON, Administrator
to the Estate of Charles W.
Nickelson, Jr., deceased,

DEFENDANTS.

-TRIAL RELI

COMES NOW the Defendant, Robert Buracker,
Sheriff, as Successor in Interest to Roy E. Thompson,
Administrator to the Estate of Charles W. Nickelson, Jr.,
deceased, by and through his counsel, Walter M. Jones, III,
E. Kay Fuller and Martin & Seibert, L.C., and respectfully
moves this Court for the following post-trial relief:

Pursuant to Rule 50 of the West Virginia Rules of
Civil Procedure, the Defendant moves for entry of an Order
of Judgment Notwithstanding the Verdict. In support of his
Motion for Judgment Notwithstanding the Verdict, the
Defendant asserts that the trial court erred in denying the
Defendant’s Motion for a directed verdict on the issues of
liability and damages. With respect to the Defendant’s
Motion for a directed verdict as presented at the close of the

Appendix Page 80

Plaintiffs’ case-in-chief on the issue of liability, the trial court
erred when it refused to grant the Defendant a directed verdict
despite the fact that the

Appendix Page $1

Plaintiffs failed to establish by a preponderance of the
evidence that the Defendant was guilty of negligence which
proximately caused the accident and resulting injuries. With
respect to the Defendant’s Motion for a directed verdict on the
issue of damages, the trial court erred in refusing to direct a
verdict in favor of the Defendant on three elements of
damages: (1) the Plaintiffs presented speculative evidence as
to future dental expenses of Plaintiff, Glenn M. Wilt; (2) the
Plaintiffs failed to establish a prima facie case supporting an
award of the recovery of punitive damages; and (3) the
Plaintiffs presented conflicting and speculative evidence as to
the claim to recover the value of household services.

Pursuant to Rule 59 of the West Virginia Rules of
Civil Procedure, the Defendant alternatively moves for a new
trial based upon five errors committed by the trial court. In
support of his motion, the Defendant would state that the trial
court erred in: (1) forcing the Defendant to exhaust its
preemptory strikes to remove from the jury panel tainted
jurors who should have been stricken for cause and permitting
to sit on the jury a juror who stated during individual voir dire
that he had a preconceived notion toward the truthfulness of
a witness called on behalf of the Plaintiffs; (2) permitting the
Plaintiffs to present evidence of hedonic damages when such
evidence is not admissible and the attempt to quantify the
value of a human life is not generally accepted in the field of
forensic economics; (3) allowing testimony of an economist
concerning the value of lost household services allegedly
suffered by Plaintiff, Sandra B. Wilt, when

Appendix Page 82

such testimony was presented without an adequate foundation
and was speculative; (4) refusing to strike from the jury’s
consideration future dental expenses of Plaintiff, Glenn Wilt,
despite the fact that the Plaintiffs failed to present evidence to
a reasonable degree of medical certainty concerning such
future dental expenses; and, (5) instructing the jury on the
element of punitive damages and permitting the jury to award
punitive damages without sufficient evidence to establish a
claim upon which punitive damages could be awarded.

Alternatively, the Defendant moves pursuant to Rule
59 of the West Virginia Rules of Civil Procedure to alter and
amend the verdict of the jury returned December 20, 1991.
In support of his Motion to alter and amend the verdict, the
Defendant would state that the verdict is based upon improper
elements of damages: (1) the verdict includes the award of
punitive damages without sufficient evidence upon which to
base an award of punitive damages; (2) the verdict includes an
award of future dental expenses to Plaintiff, Glenn M. Wilt,
when testimony as to the future medical expenses of Plaintiff,
Glenn M. Wilt, was not presented to a reasonable degree of
medical certainty; ( 3) the verdict includes damages for lost
household services and the loss of enjoyment of life when
such awards were returned without an adequate foundation
therefor; and, (4) the verdict includes damages for loss of
enjoyment of life based upon inadmissible evidence of hedonic
damages.

Appendix Page 83

LEED STORRS WE A a EL hE aR

SAR ES NW ANOLE NE SL

Pursuant to Rule 60 of the West Virginia Rules of
Civil Procedure, the Defendant moves for relief from
judgment. In support of its Motion, the Defendant would
state that the Order of the Circuit Court of Jefferson County
entered the 15th day of May, 1992 grants to the Plaintiffs a
sum which aggregates interest impermissibly. Furthermore,
the Defendant is entitled to a verdict credit in the amount of
$79,681.79 which constitutes the recovery of Plaintiffs Glenn
M. and Sandra B. Wilt from a companion interpleader action
filed in the Circuit Court of Jefferson County styled State
ee IIL. Lori Stokely. Glenn M. Wilt. Sandra B. Wil
and Roy E. Thompson, as Successor in Interest to Donald B.
Giardi admin f the E . Charles W
Nickelson, Jr., Defendants, Civil Action No. 88-C-77, plus a

corresponding interest reduction.

The Defendant further states the Verdict Order
impermissibly permits any award of pre-judgment interest on
the jury’s award of the loss of household services to Plaintiff
Sandra B. Wilt in contravention of West Virginia Code §56-6-
31.

In further support of his Motion, the Defendant relies
upon the Memorandum of Law filed herein.

WHEREFORE, the Defendant, Robert Buracker,
respectfully requests post-trial relief via Judgment
Notwithstanding The Verdict, a New Trial and Alteration or
Amendment of the Verdict of the Jury returned December 20,
1991, or alternatively relief from judgment by striking
impermissible aggregation of interest and

Appendix Page 34

granting to the Defendant a verdict credit.

ROBERT BURACKER, SHERIFF, AS
SUCCESSOR IN INTEREST TO ROY E.
THOMPSON, ADMINISTRATOR TO THE
ESTATE OF CHARLES W. NICKELSON,

IR., DECEASED nist
BY COUNSEL

Appendix Page 85

MARTIN & SEIBERT, L.C.

By:_/s/ E. Kay Fuller
Walter M. Jones, III
E. Kay Fuller
P.O. Box 1286
119 South College Street
Martinsburg, WV 25401
(304) 267-8985

CERTIFICATE OF SERVICE

I, E. Kay Fuller, Counsel for the Defendant in the
foregoing action, hereby certify that I have served a true copy
of the foregoing AMENDED MOTION FOR POST-TRIAL
RELIEF upon the following counsel, by mailing the same to
them by U.S. Mail, First Class, postage prepaid, at their

respective addresses, this 26th day of___May
1992.

Dale Buck, Esquire

JACKSON & KELLY

P.O. Box 1068

Martinsburg, West Virginia 25401

John C. Skinner, Jr., Esquire
NICHOLS & SKINNER, L.C.

P.O. Box 487

Charles Town, West Virginia 25414

Appendix Page 36

/s/ E. Kay Fuller _
E. Kay Puller

Appendix Page 87

IN THE CIRCUIT COURT OF JEFFERSON COUNTY,

WEST VIRGINIA

GLENN M. WILT and
SANDRA B. WILT,

PLAINTIFFS,
VS. CIVIL ACTION NO. 88-C-186

ROBERT BURACKER, Sheriff,

as Successor in Interest to

ROY E. THOMPSON, Administrator
to the Estate of Charles W.
Nickelson, Jr., deceased,

DEFENDANTS.

MOTION FOR A REMITTITUR

COMES NOW the Defendant, Robert Buracker.
Sheriff, as Successor in Interest to Roy E. Thompson,
Administrator to the Estate of Charles W. Nickelson, Jr.,
deceased, by and through his counsel, Walter M. Jones, ITI,
E. Kay Fuller and Martin & Seibert, and moves this court for
a Remittitur in the amount of $1,350,000.00. In support of
his Motion, the Defendant would state that the jury’s verdict
of $1,533,361.41 is not entirely supported by the evidence and
specifically that $1,350,000.00 of the total verdict is
unsupported by the evidence and should therefore be subject
to a Remittitur or in the alternative a new trial. In further
support of his Motion, the Defendant relies upon the
Memorandum of Law filed herein.

Appendix Page 33

‘ ROBERT BURACKER, SHERIFF,

AS SUCCESSOR IN INTEREST TO
ROY E. THOMPSON,
ADMINISTRATOR TO THE

| ESTATE OF CHARLES W.
NICKELSON DECEASED

BY COUNSEL

NE A Ae AO RI A A RE hk Toe

Appendix Page 89

|
;
:
eect

MARTIN & SEIBERT

2 RNG eR

By:_/s/ E. Kay Fuller
E. Kay Fuller
P.O. Box 1286
119 South College Street
Martinsburg, WV 25401
(304) 267-8985

TIFICATE OF SERVICE

I, E. Kay Fuller, Counsel for the Defendant in the
foregoing action, hereby certify that I have served a true copy
of the foregoing MOTION FOR A REMITTITUR upon the
following counsel, by mailing the same to them by U.S. mail,
First Class, postage prepaid, at their respective addresses, this

26th _ day of May ,1992.

Dale Buck, Esquire

JACKSON & KELLY

P.O. Box 1068

Martinsburg, West Virginia 25401

John C. Skinner, Jr., Esquire
NICHOLS & SKINNER, L.C.

P.O. Box 487

Charles Town, West Virginia 25414

/s/ E. Kay Fuller
E. Kay Fuller

Appendix Page 90

IN THE CIRCUIT COURT OF JEFFERSON COUNTY,
WEST VIRGINIA

GLENN M. WILT and
SANDRA B. WILT,

PLAINTIFFS,

s

‘

VS. CIVIL ACTION NO. 88-C-186

ROBERT BURACKER, Sheriff,

as Successor in Interest to

ROY E. THOMPSON, Administrator
to the Estate of Charles W.
Nickelson, Jr., deceased,

DEFENDANTS.

MEMORANDUM OF LAW IN SUPPORT OF
DEFENDANT’S MOTION FOR POST-TRIAL RELIEF

COMES NOW the Defendant Robert Buracker,
Sheriff, as Successor in Interest to Roy E. Thompson,
Administrator to the Estate of Charles W. Nickelson, Jr.,
deceased, by and through his counsel, Walter M. Jones, III,
E. Kay Fuller and Martin & Seibert, and in support of his
Motion for Post-Trial Relief, does state as follows:

STATEMENT OF FACTS

On or about May 3, 1986, a collision occurred on U.S.
340 approximately two tenths of a mile north of the Virginia
border in Jefferson County, West Virginia involving an
automobile driven by Charles W. Nickelson, Jr., deceased,

Appendix Page 91

pues

and a truck driven by Glenn M. Wilt. As a result of the
collision, Charles W. Nickelson, Jr. and his infant son,
Charles W. Nickelson, III, were killed. A passenger in the
Nickelson vehicle, Lori S. Hall, was injured. Also injured in
the collision were Plaintiffs, Glenn and Sandra Wilt. As a
result of the collision, suit was filed in the Circuit

Appendix Page 92

Court of Jefferson County, West Virginia styled Glenn M.
Wil | Sandra B. Wil Rol Buracl Sheriff

: T Roy E. TI Admini

the Estate of Charles W. Nickelson, Jr., deceased, Civil
Action No. 88-C-186. A trial of the matter was held before
a jury with the Honorable Ronald E. Wilson presiding,
beginning December 18, 1991 with a verdict returned by the
jury on December 20, 1991, against the Defendant in the
amount of $1.5 million. At issue in the trial was the liability
of Charles W. Nickelson, Jr., deceased, and the damages
sustained by the Plaintiffs.

During voir dire, the trial court inquired of potential
jurors as to their knowledge of, or familiarity with the parties.
In response thereto, Lawrence Hawk indicated he was a
classmate of Brian Wilt, a son of the Plaintiffs and a witness
called to testify as to the damages sustained by the witness’s
mother. During personal voir dire at the bench, attended by
the trial court and counsel for the parties hereto, Mr. Hawk
indicated that he had a preconceived opinion that Brian Wilt
is a truthful person. The trial court, however, refused to
strike Mr. Hawk for cause and the juror sat on the jury as
defense counsel had exhausted all peremptory strikes in order
to strike other jurors from the jury panel.

The trial court also refused to strike for cause Rodney

White, a reporter for The Morning Journal newspaper, who
stated he had heard about the accident, stating that his
information came from the Sheriff, and that it was “possibly

a D.U.I." The defense

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Appendix Page 93

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was forced to exhaust a peremptory strike in order to remove
Mr. White from the jury.

During the trial of this matter, the Plaintiffs presented
evidence of expert witnesses, a psychologist and an economist,
who attempted to quantify losses allegedly sustained by
Plaintiff Sandra B. Wilt as a result of the collision, and
attached a monetary value to the value of Ms. Wilt’s life and
her losses allegedly attributed to the May 3, 1986 collision.
Furthermore, the economist proffered testimony concerning
the value of household services, past and future, due to the
fact that Sandra B. Wilt, when injured, could not perform
household services. Also presented, however, was testimony
that the Wilts expended approximately $10.00 per week for
household services rather than the $8.33 per hour (utilizing
hours lost per week ranging from 22 - 9.28) cited by the
economist as the value of household services in the Ranson
area. Moreover, a witness presented by the Plaintiffs testified
as to the time actually expended in the Plaintiffs’ household to
perform household services with such time being
approximately two hours per week. However, the economist
used as a base figure 35 hours per week to perform household
services in the Plaintiff's household.

Doctor Leroy R. Jackson also testified on behalf of the
Plaintiffs concerning future dental expenses of Glenn M. Wilt.
Dr. Jackson testified that future dental expenses of Plaintiff,
Glenn M. Wilt, would cost approximately $550.00, yet could
not testify to a reasonable degree of dental or medical
certainty that

.

Appendix Page 94

dentures and partial plates worn by Glenn M. Wilt would need
to be replaced in the future solely as a result of the may 3,
1986 collision. Rather, Dr. Jackson testified that Glenn M.
Wilt wore false teeth prior to the accident and that all false
teeth must be replaced at some time in the future. Dr.
Jackson could not testify to a reasonable degree of medical
certainty that the false teeth worn by Glenn M. Wilt would be
replaced in the future as the result of the May 3, 1986
collision.

Through a Motion in limine, a toxicology report made
by the West Virginia State Medical Examiner's office
performed upon the body of Charles W. Nickelson, Jr.,
deceased, was excluded from evidence. The basis of the
exclusion was that the test was administered in 1986 pursuant
to statute, West Virginia Code §17C-5B-2 which at the time
of administration, held that results of such tests were
inadmissible. No other competent evidence of intoxication, as
opposed to consumption, of Charles W. Nickelson, Jr.,
deceased, was proffered or admitted. Rather, testimony of
“erratic” driving behavior of the Nickelson vehicle moments
prior to the collision, a statement of Lori Hall concerning
consumption of amounts of alcohol by Charles W. Nickelson,
Jr. the day of the fatal collision, and the presence of alcohol
in the vehicle was admitted. Nevertheless, the trial court,
over the objection of defense counsel, instructed the jury on
the law of driving under the influence and stated that driving
under the influence is prima facie negligence. Based upon
evidence of alcohol consumption, but lacking any evidence of
intoxication, the trial court also

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Appendix Page 95

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instructed the jury that punitive damages may be awarded for
malicious, oppressive, intentional, or willful, reckless or
criminally indifferent activity. As a result, the jury returned
a verdict of one million dollars ($1,000,000.00) in punitive
damages against the Defendant, apportioning $500,000.00 to
each Plaintiff.

ARGUMENT
I. FORCING THE EXHAUSTION OF
PREEMPTORY STRIKES FOR BIASED
WITNESSES DURING VOIR DIRE
CONSTITUTES REVERSIBLE ERROR

The trial court should have stricken for cause juror
Lawrence Hawk based on his statement that he believed Brian
Wilt was a truthful person (R.I., p. 40-41). He stated that he
had known Brian Wilt since school and had played football
with him. He does not remember the accident but did state
that if Brian Wilt would testify, he would testify truthfully.
His statement clearly indicates an insurmountable prejudice in
favor of the Plaintiff, and the Defendant’s counsel should not
be required to use a peremptory strike to remove him from the
jury. It should be noted that Defendant’s counsel used both
peremptory strikes to remove jurors who knew the Plaintiffs
or facts of the case and that Mr. Hawk served as a juror
despite the Motion to Strike for Cause.

Either party in any action or suit may, ...
examine on oath any person who is called as a
juror therein, to know whether he is ...
sensible of any bias or prejudice ... and if it
should appear to the court that such a person
... does not stand indifferent in the cause,
another shall be called and placed in his stead

Appendix Page 96

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for the trial of that cause.
West Virginia Code §56-6-12.

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Appendix Page 97

Se eae Se a ne Teer

The object of this statute is to secure a jury whose
minds are wholly free from bias or prejudice, either for or
against a party. State v. Hatfield, 48 W.Va. 561, 37 S.E. 626
(1900); State v. Sanders, 161 W.Va. 399, 242 S.E.2d 554
(1978). Jurors who on voir dire indicate possible prejudice
should be excused, or should be questioned individually to
determine whether they entertain a bias or prejudice for or

against either party requiring their excusal. State v. Deaner,
W.Va. , 334 §.E.2d 627 (1985). Any doubt

regarding the impartiality of a prospective juror must be
resolved in favor of the party seeking to strike the prospective

juror. Davis v. Wang, ___—s- W.Va. , 400 S.E.2d 230
(1990); State v, West, 151 W W.Va. 209, 20¢ 200 S.E.2d 859, 866

(1973); State v. Matney, __-—s W.Va. __, 346 S.E.2d 818,
822 (1986).

Mr. Hawk’s statement constituted an unequivocal
indication of bias favoring the Plaintiff's witness. Mr. Hawk
would favor Brian Wilt’s testimony under any circumstances.
That fact alone requires the court to strike him for cause as
Brian Wilt’s testimony was instrumental to the Plaintiffs,
damage case. Because his statement clearly raised a doubt as
to his ability to be fair and impartial, any remaining question
about his eligibility to serve on the jury must be resolved in
favor of dismissal for cause. Matney, 346 S.E.2d at 822
(prospective juror properly struck for cause where he stated in
voir dire that he knew defendant and decedent in murder
trial).

The qualification of jurors is within the discretion of
the trial court, and will not be set aside unless the error is
plainly

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Appendix Page 98

iia,

manifest. State v. McMillion, 104 W.Va. 1, 138 S. E. 732 (

1927 ) . However, "[t]he process of selecting jurors should
endeavor to secure jurors who are not only free from
prejudice, but are also free from the suspicion of prejudice.”
State v. Siers, 103 W.Va. 30, 136 S.E. 503 (1927). Both
Lawrence Hawk and Rodney White failed to meet the litmus
test of juror qualification, because they could not render a
verdict solely upon the evidence and without bias or prejudice.
State v. Wilson, 157 W.Va. 1036, 207 S.E.2d 174 (1974).
Failure to discharge a clearly objectionable venireman
constitutes reversible error, even where a _ peremptory
challenge prevents the juror’s impaneling. West, 200 S.E.2d
at 865-66 . The prior relationship between Lawrence Hawk
and Brian Wilt, the Plaintiff's son, should, ipso facto,
constitute grounds for his dismissal from the jury panel.
When combined with his clear statement of bias favoring the
Plaintiffs witness, the Court's failure to strike Lawrence Hawk
for cause constitutes reversible error. The potential prejudice
surrounding the possible D.U.I., mandates the removal of
cause of Rodney White.

In addition, Rodney White stated during individual voir
dire that he had heard that this case was “possibly a D.U.I."
Over the objection of the Defendant to strike Mr. White for
cause, the Court allowed Mr. White to remain as a juror,
forcing the Defendant to utilize one of his two peremptory
challenges. Mr. White’s statement demonstrated his
preconceived notion of the case as well. The mere knowledge
of a "D.U.I." in light of the evidence and the suppression of
the blood alcohol report, goes to

A &

Appendix Page 99

the heart of the issue of punitive damages, especially when
related to a conversation with, or concerning the Sheriff (the
Defendant). This act of the trial court, therefore, denied the
Defendant full use of his limited peremptory strikes.

Based upon this reversible error, the Defendant, Robert
Buracker, respectfully requests the verdict of this tainted jury
be set aside or amended or in the alternative that he be
granted a new trial.

Il. HEDONIC DAMAGES TESTIMONY
IS INADMISSIBLE AND SHOULD
NOT BE PERMITTED WITHOUT
AN ADEQUATE FOUNDATION
THEREFOR

The trial court erred when it permitted the Plaintiffs to
present testimony of hedonic damages when such testimony is
not recognized in this jurisdiction. The introduction of such
testimony which was without foundation constituted undue
prejudice to the Defendant resulting in reversible error.

While loss of enjoyment of life is a recognized element

of a permanent injury award pursuant to Flannery v. ULS.,
171 W.Va. 27, 297 S.E.2d 433 (1982), the attempt to quantify

that element is not a recognized and permissible avenue to
introduce a claim for damages.

The Plaintiffs proffered alleged experts to testify as to
the value of Sandra wilt’s life. That testimony, however,
lacked a proper foundation and was therefore inadmissible as
violative of Rule 401 of the West Virginia Rules of Evidence.

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Appendix Page 100

Furthermore, the attempt to quantify the loss of this
intangible element of damages violates the prohibition of the
West Virginia Supreme Court of Appeals concerning per diem
assessments because testimony of an economic evaluation of
the alleged loss of enjoyment of life is paramount to a per
diem analysis which is specifically prohibited in West
Virginia. Crum _v, Ward, 146 W.Va. 421, 122 S.E.2d 18
(W.Va. 1961).

Moreover, the valuation of an economist is not
logically or reasonably based and the testimony of Dr.
Brookshire failed to consider Sandra Wilt’s individual
characteristics.

Dr. Brookshire uses two different "benchmarks" for
calculating damages: one for the lost enjoyment of life per
year for unknown persons in the amount of $39,781, and
another for the total life value in the amount of $2,542,409.
Dr. Brookshire maintains that these "benchmarks" are annual
values of the ability to enjoy life, and that they come from the
"total life value" of the unknown, statistically anonymous,
average American life less the value of the “economic
machine."

The total life value of the unknown, average American
in 1991, according to Dr. Brookshire, was $2,542,409. This
number comes from an article written by Ted Miller which
reviews 67 “willingness to pay” studies, disregards 20 of these
Studies, adjusts the results of some of the remaining studies,
averages the results of the remaining 47 studies, and concludes
that the unknown statistically anonymous, average American
life is worth $2,542,409 in 1991 dollars. Dr. Brookshire has
not attempted to

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Appendix Page 101

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validate the value of the average American life and has
accepted the value as “created” by Ted Miller in his 1986
article. Willingness to pay studies, according to Dr.
Brookshire, focus on what people, and in one instance
government agencies, are willing to pay to preserve an
unknown, statistically anonymous, average American life.

Dr. Brookshire calculates his hedonic damages
benchmark by subtracting from the $2,542,409 the "economic
machine” component (i.e. the income generating~capacity) of
the average American. The result of this subtraction,
according to Dr. Brookshire, is the value of the ability to
enjoy life which in an injury case is $1,782.602. This number
is then divided by the remaining years of projected life
expectancy for the unknown, statistically average American
(i.e. 44.81 years). The result is $39,781 per year, which is
Dr. Brookshire’s benchmark value for the ability to enjoy life
per year for the Plaintiff.

This annualized lost enjoyment of life is constant over
the lifetime of an unknown, statistically anonymous, average
American and would apply whether the Plaintiff were an
infant or a person of retirement age. These manipulations,
through the economic machine, however, never consider the
earning capacity or lack thereof of a particularized Plaintiff.

Dr. Brookshire’s “benchmark value” may or may not
apply to the Plaintiff Sandra Wilt. It applies only if the jury
determines that Sandra Wilt enjoyed life to the same extent as
the statistically anonymous, average American. If the jury
determines

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Appendix Page |U2

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that Sandra Wilt enjoyed life more than the average American,
it should increase Dr. Brookshire’s “benchmark value." On
the other hand, if the jury determines that Sandra Wilt enjoyed
life less than the average American, it must decrease the
"benchmark value." Dr. Brookshire presumably defers to the
sound discretion of a jury to determine whether Sandra Wilt
enjoyed life to the same extent as the statistically anonymous
average American. if Dr. Brookshire defers to the discretion
of the jury to increase or decrease his benchmark values, then
he should also defer to the sound discretion of the jury in
assessing the damages of Sandra Wilt without the benefit of
his statistically manipulated benchmark.

The benchmark value provided by Dr. Brookshire does
not account for the varying levels of enjoyment of life from
person to person, or for the same person as they grow older,
have children, change jobs, and retire. The only calculation
that Dr. Brookshire has made in an attempt to "personalize"
his benchmark value for Sandra Wilt, is to apply her projected
life expectancy to the annual benchmark, apply _ the
percentages of lost enjoyment of life supplied by Dr. Parsons,
and then reduce to present value. This calculation yields the
number in his report of $685,493 which Dr. Brookshire
identifies as being the present value of the lost enjoyment of
life. Dr. Brookshire’s attempt to “personalize” his benchmark
for Sandra Wilt also relies upon percentages of lost enjoyment
of life assumptions supplied by Dr. Parsons. If Dr. Parsons’
assumptions are incorrect, then the resulting calculation
performed by Dr. Brookshire would also be incorrect.

xs

Appendix Page 103

During his December 6, 1991 deposition, Dr.
Brookshire stated that he could not "help a jury scientifically
quantify pain and suffering.” (Deposition p. 56). Yet Dr.
Brookshire claims he can assist a jury in quantifying a much
more intangible element of damages, that being the loss of
enjoyment of life. Neither are elements which an expert,
through mathematical calculations, can assess. Furthermore,
any attempt to assess the loss of enjoyment of life as
performed by Dr. Brookshire fails to consider pain and
suffering and particularized components of Sandra Wilt. Of
significance, Dr. Brookshire did not consider the pre-existing
health conditions of Sandra Wilt in determining his
calculations in her alleged loss of enjoyment of life and Dr.
Brookshire stated “only a jury in my opinion can tailor that
for things like pre-existing health ..." (Deposition, p. 58).
Dr. Brookshire attempts to testify to the benchmark value of
the “normal” enjoyment of life and states that a psychologist
will then enabie him to tailor the loss of enjoyment to the
particular Plaintiff, yet Dr. Brookshire has consistently stated
that he uses calculations of an average anonymous American,
and that his calculations do not take into account pre-existing
conditions of a particular Plaintiff. These inconsistencies
alone should preclude Dr. Brookshire’s attempt to quantify the
loss of enjoyment of life. moreover, Dr. Brookshire testified
that he relied upon the projections of Dr. George Parsons, yet
he does not believe that Dr. Parsons has taken into
consideration the pre-existing paralysis suffered by Mrs. Wilt
as a result of an unrelated brain

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Appendix Page 104

abscess. (Deposition, pp. 60 & 62). When asked to locate in
Dr. Parsons’ report (which Dr. Brookshire relied upon in
forming his calculations) where Dr. Parsons took into account
diminution of Mrs. Wilt’s enjoyment of life prior to the
automobile accident which is the subject of the instant civil
action, Dr. Brookshire could not locate such factor and stated
"I doubt if there is anywhere I could point to it.” (Deposition,
pp. 60 & 62). Furthermore, Dr. Brookshire stated that he did
not make a calculation as to the loss of enjoyment of life of
Mrs. Wilt as a result of her previous brain surgery and
resulting paralysis. Having admitted that pre-existing
conditions - which would obviously impact the alleged loss of
enjoyment of life of Mrs. Wilt - were not considered by either
Dr. Parsons or Dr. Brookshire, the calculations by Dr.
Brookshire in which he attempts to place a value on Mrs.
Wilt’s lost enjoyment of life are not reliable nor are they
relevant. Without proper consideration of pre-existing
conditions, any attempt to quantify any damages is mere
speculation and should have been precluded.

In addition to the strong language found in Crum,
supra, the court in Sargent v. Malcomb, 150 W.Va. 561, 146
S.E.2d 561 (W.Va. 1966), stated that “there is no exact
formula for placing a money value on such matters as pain,
suffering and mental anguish resulting from personal injuries
or embarrassment resulting from bodily disfigurement or
scars.” Sargent, 126 S.E.2d at 566. Again in 1982 the court
referred to recovery for pain and suffering damages as
"unliquidated" because "there is no precise

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Appendix Page 105

ew ee ee A

monetary calculation that can be used to determine the amount
of the loss." Flannery, 297 S.E.2d at 435.

This rationale applies to any attempt to value the lost
enjoyment of life in a personal injury case. This measure of
loss should be left in the capable hands of a jury without the
unnecessary testimony of an expert, particularly when the
expert fails to consider all elements which would impact a
Plaintiff's enjoyment of life.

The testimony which Dr. Brookshire presented to the
jury is also impermissible because his area of testimony is not
generally accepted in his field. Without gaining general
acceptance in the pertinent field, the testimony should have
been excluded according to State v. Woodall, 182 W.Va. 15,
385 S.E.2d 253 (1989), and Rule 702 of the West Virginia
Rules of Evidence.

Before an expert is permitted to testify based on
publications as Michael Brookshire has done, these
publications must first be shown to be authoritative in nature.
Ventura v. Winegardner, 178 W.Va. 82, 357 S.E.2d 764
(1987). Michael Brookshire’s testimony is not based on any
authoritative studies or research but instead relies primarily on
articles and summaries written about such research which
were published in the Journal of Forensic Economics cited
above. The Journal is published by The National Association
of Forensic Economists of which Brookshire is a vice-
president. In fact, the article by Ted Miller is the source
upon which Dr. Brookshire relies.

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Appendix Page 106

It is Dr. Brookshire’s testimony that he himself
discredits the study upon which he now relies to place the
value of a whole life. Dr. Brookshire has inherently admitted
that the very studies he relies on are not generally accepted in
the field. Absent such general acceptance the proffered
testimony violates the Frye standard thereby rendering it
inadmissible.

As Justice Neely pointed out in Roberts v, Stevens

Clinic Hospital, Inc,, 176 w.va. 492, 345 S.E.2d 791 (1986),
a person would not trade a life for $10,000,000.00 nor

$100,000,000.00 nor even $1,000,000,000.00. Id., 345
S.E.2d at 800. Dr. Brookshire testified that the willingness
to pay studies upon which he relied have no statistical
significance in calculating loss of enjoyment of life.
(Deposition, p. 71). To then attempt to extrapolate a value
for life from willingness to pay studies misinterprets the
purpose of these studies, misapplies the results and defies
logical reasoning, thereby rendering the testimony
inadmissible.

Judge Copenhaver interpreted this identical testimony
of Dr. Brookshire under the West Virginia Wrongful Death
statute in Kee v, Imperial Foods, Co., Civil Action No. 2:89-
0954, U.S.D.C. §$.D. W.Va. (1991) and found that Dr.
Brookshire’s proffered testimony was speculative and not
appropriate for jury consideration and therefore ordered it
excluded. The trial court in this case should have likewise
excluded this testimony.

The method of calculation of loss of enjoyment of life
damages is purely speculative. It is not helpful to the jury as
required by Rule 702, as any attempt to place a numerical
value on

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Appendix Page 107

liquidated damages such as pain and suffering involve
impermissible speculation. Crum, 122 S.E.2d 23-27. Even
Dr. Brookshire admits that the “value of any specific
life is not directly observable:" Brookshire and §. Smith,

The Practice Book for Plaintiff and Defense Attorneys, 167
(Anderson, 1990).

To prevent speculation from passing as science, a
proponent of a test or method not generally recognized in a
particular scientific community bears the burden of proving
that the method is reliable. State v. Woodall, 385 $.E.2d at
259-60. The Woodall standard requires the Plaintiffs to prove
that the hedonic methodology is reliable to make it admissible,
assuming arguendo that hedonic damages testimony is
admissible at all.

Rule 702 requires that an expert’s testimony assist the
trier of fact to understand the evidence or to determine a fact
in issue. Expert testimony as to matters of common
knowledge and experience of the jurors is admitted only when
the matter is difficult to comprehend or explain. Since the
jury could comprehend the concept of the pleasures of i:fe, no
expert testimony of the dollar value on hedonic damages was

necessary.

In State v. Clawson, 165 W.Va. 588, 270 S.E.2d 659,
676 (1980), the court noted that an expert’s opinion lacks
probative force where the conclusions are contingent,
speculative or merely possible. “The better practice is to
withhold any monetary figure from the jury’s consideration
which might be suggestive for amounts not proven in
evidence”. Since both Dr. Parsons’ and Dr. Brookshire’s
testimony on loss of enjoyment of life damages is

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Appendix Page 108

speculative, it was not helpful to the jury and should have
been excluded rather than permitted. The admission of the
testimony confused or mislead the jury as is evidenced by its
verdict which bears no resemblance to the testimony presented
by the Plaintiffs as to the actual losses suffered.

Plaintiff Sandra Wilt was claiming, inter alia, future
losses. Such future losses, however, must be proven with
reasonable certainty. Jordan v. Bero, 158 W.Va. 28, 210
S.E.2d 618 (1974), Syl. Pt. 9.

In an attempt to prove her future losses, the Plaintiffs
retained a psychologist and economist who attempted to
measure the losses suffered by Mrs. Wilt and to project her
losses in to the future with dollar figures attached thereto.
The attempt to project the losses, however, fails to meet the
criteria of Jordan and specifically ignores that such future
losses must be proved with reasonable certainty.

Dr. George E. Parsons, the psychologist retained by
the Plaintiffs to examine Mrs. Wilt, testified that he had not
diagnosed Mrs. Wilt, yet testified as to alleged losses she has
suffered, and attempted to project those losses. Furthermore,
Dr. Parsons testified that in his professional opinion Mrs. Wilt
had suffered a permanent loss and testified to a reasonable
degree of psychological certainty that the cause of her losses
was the collision. However, Dr. Parsons made no assessment
of Mrs. Wilt’s pre-existing conditions yet testified these
conditions could have had a direct impact on her condition at
the time of the accident

ih

Appendix Page 109

as well as her condition at the time of his examination. Dr.
Parsons was aware of Mrs. Wilt’s pre-existing condition, yet
made no attempt to distinguish losses between the pre-existing
condition and the losses she may have suffered as a result of
the accident which is the subject of this litigation. Moreover,
Dr. Parsons did not take into consideration the rehabilitation
which Mrs. Wilt underwent and discounted her significant
progress at the rehabilitation hospital.

While recognizing that rehabilitation would impact his
impressions and projections, Dr. Parsons could not testify that
any improvement made through rehabilitation would continue
in the future, yet he wants a jury to believe his projections are
reliable.

Of critical importance is the fact that Dr. Parsons
could not validate his studies or projections, could not identify
any other psychologist in the country that utilizes the
instrument he has created which purports to measure hedonic
losses, and could not point to any scientific literature in any
field that supports his claim that one can measure the hedonic
loss suffered by an individual in terms of percentages.

Dr. Michael Brookshire, the Plaintiffs’ economist,
attempted to quantify the losses suffered by Mrs. Wilt based
upon the projections and calculations as provided by Dr.
Parsons. Those underlying calculations, however, are invalid
and any attempt to quantify losses based upon incorrect
projections is also invalid. The projections made by Dr.
Parsons fail to meet the Jordan

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Appendix Page | 10

criteria that future losses must be proved with reasonable
certainty. Id. at 634. The hedonic losses allegedly suffered
by Mrs. Wilt are intangible and are not readily apparent, and,
pursuant to Jordan, must be proved by expert opinion
testimony to a reasonable degree of certainty. Id, at 635. Dr.
Parsons can not opine to a reasonable degree of certainty as
to the hedonic losses suffered by Mrs. Wilt as his
assumptions, calculations and projections are invalid. Dr.
Parsons has admitted to elements of Mrs. Wilt’s psychological
makeup which he should have taken into account in attempting
to project future losses of an intangible nature such as hedonic
damages. Without taking into account all relevant factors, any
attempt to project future losses cannot be ascertained to a
degree of reasonable certainty as the law in this jurisdiction
requires, and should have been excluded.

Dr. Brookshire relied upon invalid projections in
attempting to quantify the value of a human life and even
assuming arguendo that such calculations can be made, the
calculations at issue in this situation were incorrect and were
not made to a reasonable degree of certainty. Presentation of
testimony based on invalid projections was not proper. The
calculations of Dr. Brookshire as to the value of a human life,
therefore, should have been excluded.

This Court, in ruling upon the motion in limine to
suppress the testimony of hedonic damages stated:

The deposition of George Edward Parsons,
Ph.d. has been reviewed by the Court. My
understanding of the Court’s interpretation of
the 700 Rules and in particular 702 is that

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Appendix Page 111

i sine dihalaladiel

this testimony would not be barred. While I
agree with your analysis and if I were making
the rules, I would prohibit this testimony and I
would prohibit Dr. Brookshire’s testimony, but
I’m not. And my understanding of the
Supreme Court’s interpretation of the rules
dictates to me that this testimony is admissible
and that all of your arguments go to not barring
the testimony, but to the weight of the
testimony. (Trial transcript, p. 124).

The West Virginia Supreme Court of Appeals has
rejected a petition for appeal concerning the admissibility of
hedonic damages testimony. Terry v. CMI Corporation, 186
W.Va. 102, 411 S.E. 2d 245 (1991). That act, however, is
not a dispositive act by the West Virginia Supreme Court of
Appeals on the question of whether hedonic damages
testimony is permissible in this jurisdiction. Of particular
significance is the fact that the Court did not accept the Terry
case for full briefing and consideration and the Petition for
Appeal does not squarely present the question of whether
hedonic damages is a permissible element of recovery or
whether it constitutes a double recovery.

It is well settled that an Order refusing certiorari only
affirms the decision of the lower court in that particular case
and does not constitute controlling authority.

The Court pointed out in State ex rel Smith v. Truman

E. Gore, Commissioner, 150 W.Va. 71, 143 S.E.2d 791
(1965) that:

A refusal to grant certiorari has no such

significance. It simply means that fewer than
four members of the Court, for various

Appendix Page 112

reasons, deemed it desirable to review a
decision of the lower court. The denial of
certiorari by the United States Supreme Court
does not indicate approval or disapproval of the
decision of a State Court. Maryland v.

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Appendix Page 113

Baltimore Radio Show, Inc., 338 U.S. 912, 94
L.Ed. 562, 70 S.Ct. 252.

The Terry case has no applicability to the issues
presented here and is not controlling precedent in order to
determine whether hedonic damages testimony is admissible
in the instant civil action.

Perhaps the most significant fact concerning the
admissibility of this evidence is the statement of this court
wherein the court expressed a willingness to exclude the
proffered testimony on hedonic da

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_1555%3A3. Public record. Not legal advice.