*1 not form the basis jury’s speculation does appeal, on and we for a meritorious claim by the trial court in

find no reversible error potential

the manner in which the witness list presented jury.

IV. Conclusion we find no foregoing,

Based on the revers- Accordingly, us.

ible error the case before

we affirm the conviction and sentence Appellant received in the Circuit Court of

Mingo County.

Affirmed. participating.

Justice ALBRIGHT not sitting by

Senior Status Justice McHUGH

temporary assignment.

672 S.E.2d Terry Estep,

Teresa ESTEP and Husband,

Her Plaintiffs

Below, Appellees

MIKE FERRELL LINCOLN- FORD INC.,

MERCURY, A West Cor

poration, Company, Motor A Doing

Foreign Corporation Business Below, Virginia, Ap Defendants

pellants.

No. 33810.

Supreme Appeals Court of Virginia.

Submitted 2008. Oct. Dec. 2008.

Decided

Dissenting Opinion of Justice

Benjamin Jan.

212

McHUGH, Senior Status Justice:1 (hereinafter “Ford”) Company Ford Motor 14, 2007, appeals the March order of the Circuit Court County denying of McDowell judgment Ford’s motion for as a matter of product liability law or a new trial in a case.2 The motion was made after a found against in a brought by lawsuit Teresa (hereinafter Estep Estep”) “Ms. Terry Estep alleging that their 1999 Ford was defective because the bags vehicle’s air deploy protect failed to Estep dur- ing single vehicle crash.3 Ms. alone wearing vehicle and was not safety belt at the time of the crash. Ford maintains that the lower court erred by: permitting not Ford to introduce *5 trial; (2) safety belt granting evidence at not judgment as a matter Estep of law when Ms. prove failed to that the vehicle was defective under the standards established West Vir- (3) law; ginia allowing Estep’s experts Ms. to present entirely upon specu- evidence based conjecture; incorrectly lation and instructing jury regarding the compliance with raising federal standards a rebuttable presumption.

Having completed our careful examination record, of the study and concluded our arguments both oral and written of counsel light governing legal precepts, of the we Bonasso, Romaine, Michael Wong Susan affirm the decision of the circuit court. Lorea, Flaherty, Sensabaugh Robert P. & Background I. Factual and Procedural Bonasso, P.L.L.C., Charleston, Craig A. Mor- single This case involves a car accident in Austin, gan, Craig Morgan, Law Office of A. Estep which Ms. lost control of her Ford TX, Vice, Appel- Pro Hac Counsel for the Ranger driving while alone. The accident lants. 5, 2000, Panther, occurred on October near Bueci, Guy Bucci, Stacy Jacques, R. Virginia, A. the when lost traction L.C., Javins, Charleston, Bailey & Pamela over an oil slick on the road. The vehicle Lambert, Gilbert, embankment, Appellee. Counsel for the went over an traveled 30 feet 1. spouse directly Pursuant to an administrative order entered on former is not involved in this 11, 2008, September the E. Honorable Thomas appeal damages since his claim for for loss of Justice, McHugh, assigned Senior Status was expressly rejected by jury. consortium was the Supreme a Appeals sit as member of the Court of Estep complaint The defendants named in the 12, Virginia commencing September of 2008, Company were both Ford Motor and the local continuing until the Chief de- Justice dealer, Mercury, car Mike Ferrell Ford-Lincoln longer necessary, termines that assistance is no during argu- explained Inc. It was Ford oral light Joseph illness Justice P. Al- pure product ment that since the case awas bright. liability case there was no need the for dealer to participate Esteps’ sounding after the claims involving negligence 2. Claims and breach of war- negligence warranty and breach of were dis- ranty were at trial. dismissed missed at trial. originally 3. The suit was filed Teresa Terry Estep, and her former husband but the $993,157.50. Thereafter, crashing hillside while into Ford filed a motion

down a wooded descent, and came to rest in during judgment the for as a matter of law or a new tree 2007, bag 14, the Tug River. The air on Fork trial. On March the trial court deploy failed to of the vehicle denying driver’s side post-trial entered an order mo- accident, Estep sustained during order, and Ms. petitioned tion. From that required injuries that extensive serious back appeal; granted this Court review Janu- on repair. surgery 10, ary 2008. on Estep complaint was filed October II. Standard of Review 27, 4, January By order entered on appeal, we are this asked review granted Esteps’ the lower court post-verdict denial lower court’s motion exclude belt evi- motion in limine to judgment as a matter of law and the upon presentation at trial based dence from alternative motion for a new trial. The stan- provisions of West Code 17C- applied dard of review under either circum- (1993)(Repl.Vol.2004).4 15-49 stance is settled. proceeded jury to trial before a The case post-trial judgment A motion for persons on November 2006. Dur- of six formerly a matter of law was called a motion trial, ing long the week heard tes- notwithstanding previously the verdict. We timony Ford and from witnesses for both while terminology changed observed that including expert Estep, witnesses from when Rule 50 of the West Rules of testimony upon Based both sides. Civil Procedure was amended record, experts in an air whether rulings regarding standard of review of bag deploys depends upon type of colli- motion unaffected. v. Sundale Barefoot produced rep- involved. Ford sion Home, Nursing n. roadway, resenting that the vehicle left the result, *6 7 S.E.2d 159 n. As a in proceeding while over an became airborne syllabus point five of Smith v. First Commu embankment, spun a struck and around tree Bancshares, Inc., 809, nity 575 descending through the air and force-

while (2002),we modified the terminolo in riv- fully on all four wheels landed syllabus gy point used in three of v. Brannon Estep presented evidence that erbed. Ms. (1996), Riffle, 197 W.Va. 475 S.E.2d 97 to roadway, off the rolled down the vehicle slid read as follows: becoming airborne an embankment without appellate of tree, The standard review for the squarely it hit a two-foot wide where granting [judgment of a motion for a aas pivoted colliding after with the tree and pursuant matter of to Rule 50 of the law] proceeded then down the embankment until Virginia Rules of Civil Procedure is gently sig- in The it landed the riverbed. court, appeal, de novo. On this after con- type nificance of the of crash and how the sidering light the evidence in the most car descended the embankment related to party, favorable to the nonmovant will sus- Estep’s in- proximate cause of Ms. back [judgment granting tain the of a as a mat- juries. Estep’s that Ms. Ford maintained only ter of when one reasonable con- law] injured when the ear landed on all back was to the verdict can be reached. riverbed; clusion as Estep four wheels in the Ms. But if reasonable minds could differ as to injury occurred a maintained her as importance sufficiency and of the evi- body being result of her thrown forward dence, ruling granting a a circuit court’s steering wheel when the over [judgment a matter will be re- law] as the tree. struck versed. jury weighed the evidence re- Estep. a verdict for Ms. The trial The case before us involves a review of the turned judgment in a matter judgment court entered on the verdict denial of a motion for Gillingham Stephenson, favor of Ms. in the amount of law. In v. pursuant Estep stipulated safely percent

4. a at the time of the accident to to five reduction belt !7C-15-49(d). § expenses preclude the Code The text of in medical in order to wearing p. her a set forth at introduction of not statute is infra. (2001), Safety A. Belt Evidence in reliance 551 S.E.2d W.Va. we con- syllabus point above-quoted

on the The first issue raised ... “will sustain that this Court cluded appeal is the lower court’s refusal to allow judg- for ... motion post-verdict of a denial safety use of belt evidence at trial. Central only law when one a matter of ment as ruling regard to the trial court’s in this is the can be to the verdict conclusion reasonable safety belt statute set forth in West at at 551 S.E.2d 667. Id. reached.” requiring Code 17C-15-49. addition to of the denial the As to our review occupants public high that all on vehicles trial, syllabus point four of a new motion for belts, ways safety wear this statute contains Corporation, 159 Georgia-Pacific v. Sanders provision limiting pur what a when (1976), directs 225 S.E.2d W.Va. safety pose evidence of violations of the belt granting or ruling of a trial court “the law is admissible court. In this latter for a new trial is entitled denying a motion regard, provides the statute as follows: weight, the trial respect [and] great appeal ruling (d) will be reversed on court’s A violation of this section is not ad- trial court has [only] it is clear that the when negligence missible as evidence of or con- law misapprehension of the acted under some tributory negligence comparative negli- on our evidence.” We elaborated or the proceeding gence civil action or involving a lower court’s review standards damages, and shall not be admissible in a new trial in Tennant ruling on a motion for Provided, mitigation damages: That the Foundation, Inc., 194 v. Marion Health Care defendant, may, upon court motion (1995), as follows: hearing an in camera conduct determine court rulings of the circuit “We review injured party’s whether an failure to wear a trial and its conclusion as concerning new safety proximate a belt was a cause of the under an of reversible error to the existence injuries complained Upon of. such a find- standard, ... the circuit abuse of discretion court, then, ing by may the court findings under a underlying factual court’s trial, by special interrogatory to the [and][q]uestions clearly erroneous standard (1) injured party jury, determine that the Id. law ... a de novo” standard. [under] failed to wear a belt and that the at at 459 S.E.2d failure to wear the belt constituted apply partic- Any other standards which mitigate damages. failure to The trier of *7 appeal in will be set ular issues raised this may injured party’s fact reduce the recov- pertinent in of the issue. forth our discussion ery damages by for medical an amount not III. Discussion percent five thereof. In the exceed stipulates earlier, plaintiff event the to the reduc- points Ford to four er- As noted damages, by percent tion of five of medical made the lower court this case. rors legal basis for Ford’s assertions include: make calculations and The the court shall the (1) safety by concluding that belt evidence mitigation damages of for fail- the issue of provisions under the of was not admissible safety ure to wear a belt shall not be law, safety incorrect- the belt the lower court cases, jury. In all the presented to ly interpreted safety belt statute and/or computation of the dollar amount actual applied way in a allowed the statute to be reduction be determined the court. shall (2) rights; process violated due that Ford’s argument regarding application of Ford’s support there was insufficient evidence safety law has two elements. The belt liability Estep’s product claim under Ms. reading of the first is that the lower court’s (3) law; Estep’s expert overly that is broad. Ford asserts statute testimony proper foundation and was lacked only under the literal terms of the statute conjec- entirely upon speculation and based a violation of the statute is time evidence of ture; jury improperly in- was it on the inadmissible is when is offered legal a manu- regarding structed effect of negligence mitigation damages issues of or complying facturer with federal standards. beyond express limits of the statute. will address each issue in turn. We Second, says applying that the lan- the March denying Ford order Ford’s post-trial guage preclude of the statute so as to intro- motions. safety of evidence of belt use in a

duction part analysis There ais two to section (d). case is unconstitutional. crashworthiness part The first states that a violation position by supports arguing Ford 17C-15-49, which is the failure to wear design sys- of an entire belt, where restraint a seat is not admissible as evidence of question, called into a tem is manufacturer negligence contributory negligence or or may precluded explaining not be from to the comparative negligence any civil action components of the how all various of the proceeding damages, or and shall not system were to work restraint intended with- mitigation damages. be admissible in violating process principles. due out language plainly negligence This relates to damages. involving A a crashworthiness case (d) part The second of section relates to motor vehicle is sometimes referred to as a [Ejvidence wearing causation.... of not a collision,” “secondary impact,” “second or seat belt purpose is admissible for the injury” “enhanced case. 62A Am.Jur.2d causation, injured party stipu- unless the Liability § Products This is (5%) percent lates to the five reduction of liability a because defendant’s is based on an expenses.... medical alleged protect occupants failure to of a injured party stipulates Once the to the consequences vehicle from the crash (5%) reduction, percent five then evidence liability rather than for the crash itself. Id. wearing of not a seat belt is not admissible. adopted The crashworthiness doctrine stipulated per Plaintiffs to the five cent Virginia in Blankenship v. Mo General (5%) reduction, applied which the Court Corporation, tors S.E.2d the verdict. This statute was enacted well (1991). Syllabus point one of Blanken (10) years over ten ago and this Court does ship injury” prem addresses “enhanced not believe it is unconstitutional. following way: ise of the doctrine in the generally We concur with the lower court’s complaint against A the seller of a motor reading of the statute. a vehicle states cause of action under West portion of the belt statute on complaint law if the does not al argument which Ford focuses its states: “A collision, lege that a vehicle defect caused violation of this section is not admissible as alleges only injuries but that the sustained negligence contributory negli- evidence of or occupant aas result of the collision gence comparative negligence in civil design were enhanced defect in the proceeding damages, action or and shall vehicle. mitigation not be admissible of dam- (Emphasis original.) contends 17C-15-49(d). ages[.]” Argu- W.Va.Code appreciate lower court failed to that the ing interpretation the correctness of its provisions only belt statute *8 statutory provision, Ford asks us to con- preclude safety introduction of belt in use courts, sider the primarily course other fed- order to negligence address issues of or miti- eral, applying preclu- have taken in similar gation damages adequacy of rather than the provisions sive of other states’ laws. After product’s design. of a examining parties the cases raised both in (d) analysis The lower support respective court’s of subsection positions of their and the of Virginia § West Code through independent 17C-15-49 is re- cases discovered our research,5 following findings flected in only contained in about the certain conclusion DaimlerChrysler F.Supp. 269 F.3d Corp., Corp., See v. 407 Hue v. General Jimenez Motors 716 (4th Cir.2001) (W.D.Mo.1989) law); (applying 439 (applying South Carolina Missouri common law); DePaepe Corp., 33 F.3d Carrasquilla Corp., v. General Motors 166 v. Motor Mazda (7th Cir.1994) law); (M.D.Pa.2001) (applying 737 F.Supp.2d (applying Pennsyl Illinois 181 Bar law); Ltd., 965 F.2d ron v. Ford Motor vania DaimlerChrysler Co. Canada Corp., Milbrand v. of (7th Cir.1992) (E.D.Tex.2000) (applying 195 F.Supp.2d (applying North Carolina 105 601 Tex law); law), Co., common Chrysler Corp., F.Supp.2d 89 F.3d Gardner v. v. Brown Ford Motor 67 (10th 1996) law); (E.D.Va.1999) law); (applying Virginia 729 Cir. (applying Kansas 581 La- Gen-

217 belt, safety in split is that there is a to wear her which turn could can arrive to which we mitigation adoption damages.6 of what influence the issue of of authority regarding the of safety proviso excluding Without a belt defense crash- crashworthiness is dubbed cases, Handling in deroga- 1 Mo- such use of this evidence is eases. also worthiness See. (2008); express safety § of Cases 2d 1A:10 tion terms of the belt VehicleAccident tor Liability § Products 1031 statute. 63A Am.Jur.2d (1997). Ultimately, question boils down § Code 17C-15-49 of statutory construction and treatment

to (d) specifically does not address the use of policy determinations legislative safety belt evidence crashworthiness or courts. cases, design phrase any defect but the “in stated, argues that it Concisely Ford has proceeding damages” civil action or for is system safety of designed a restraint certainly enough encompass broad to such occupant an of its motor vehicle. Unless statutory actions. In matters of construc “ part “system,” is made to a of that reference tion, statutory provision which is ‘[a] clear belts, fully pres- safety Ford is unable to i.e. unambiguous plainly expresses and jury. understand ent its defense to the We interpreted legislative intent will not be expressed by Nonethe- the concerns Ford. given the courts but will be full force and less, obligated wording to look at the we are 2, Syl. pt. Epperly, effect.’ State v. 135 statute, admittedly safety which is belt 877, (1951).” Syl. pt. W.Va. essentially being are asked to broad. We Huffman, Sowa v. 191 443 S.E.2d W.Va. phrase “except in crashworthiness insert (1994). Legislature The chose not to reach the eases” into the statute order to pro limit the effect of this statute to cases result Ford wants. ceeding theory negligence on it alone as safety provisions regarding proposes that the belt statute extended limitation

Ford per- preclusion safety all not bar admission of evidence of belt does safety except public policy expressed civil failure to wear a belt actions. son’s through negli- it used “as evidence of the terms of the statute is that non- when would be contributory negligence compara- may only be raised in a gence or use belts negligence mitigation mitigate damages, ... of dam- civil action to and even [or] tive 17C-15-49(d). § Ford that use is limited to situations where the ages.” W.Va.Code plaintiff stipulate percent does not to a five maintains it did not want to offer purposes, damages. in medical As to belt evidence for of these but reduction state Estep’s public policy, is not “at instead wanted to use it to refute Ms. ments of this Court liberty policy judgments did not reasonable care to substitute our claim use designing Legislature.” Taylor-Hurley those of the v. the 1999 restrain Ed., Although Mingo County Bd. occupants in a crash such as this. terms, Consequent couched in different Ford’s intended 551 S.E.2d ly, we in a crashworthiness or use of the evidence nevertheless does relate hold involving mitigation damages. injury It enhanced ease a motor vehi negligence cle, express provisions would allow Ford to show that Ms. 17C-15-49(d) (1993) (Repl.Vol.2004) injury by failing Code

contributed to her enhanced (Del. Wolhar, Corp., 686 A.2d 170 Corp. v. American Motors eral Motors v. Whitehead Sales 1996); (Ind. 1990) law); (Utah N.E.2d 566 Hopper Carey, (applying v. P.2d 920 common App.1999); Reed v. Chrysler Corp., 494 N.W.2d Co., 170 Vt. 750 A.2d 981 Ulm v. Ford Motor *9 (Iowa 1992); Floyd Corp., 224 25 v. General Motors (2000). 71, (1998); Roug- Kan.App.2d 960 P.2d 763 America, Hyundai 805 So.2d 147 eau v. Motor opposition In its memorandum in to Ms. Es- (La.2002); Olson v. Ford Motor Co., 558 N.W.2d limine, tep’s suggested a similar motion Ford (Minn.1997); 491 Estate Hunter v. General of by stating patently that be outcome “it would (Miss.1999); Corp., 729 So.2d 1264 Motors Shi- right produce deny unfair to Ford the to 194, Corp., 271 Neb. 710 pler v. General Motors (2006); severely plaintiff that the would not have been as Country N.W.2d 807 Mott v. Sun Garden Products, Inc., injured simply 120 N.M. 901 P.2d 192 the seat belt that had she worn (1995); Swajian Corp., 559 v. General Motors provided.” (R.I.1989) law); (applying A.2d 1041 common 218 safety in a of evidence of belt evidence civil action which the

limit the introduction proceeding action or civil crashworthiness of a vehicle is called into belt use when, upon motion of the defen- damages question relationship bears a rational to dant, trial court determines that failure the legitimate some State concern. See Hart proximate safety a belt was a cause to wear Candy Wheeling sock-Flesher Co. v. sustained, injuries the and the trier of fact Co., Grocery Wholesale W.Va. interrog- through special use of a determines (1985). upheld A law will be (1) atory injured party failed to the wear long the rational basis as as it under test (2) safety and omission constitut- a belt such relationship legitimate a to bears rational a mitigate damages. Upon such ed failure to state interest. Sale ex rel. Sale v. Gold may of fact findings, the trier reduce man, 186, 194, 208 W.Va. 539 S.E.2d recovery damages injured party’s for medical percent. five in an amount not to exceed provides The statute further that introduc- (f) Virginia In subsection of West safety precluded tion of belt use evidence is 17C-15-49, § Legislature Code enlists injured party stipulates when an to a five Police, cooperation of the State other percent damages. reduction of medical departments agencies county state and and secondary We turn now to Ford’s municipal agencies and law-enforcement with argument regarding applicability of the Program Highway Safety the Governor’s to safety belt statute to crashworthiness cases. program promote conduct an educational to Although fully developed less than its first encourage compliance safety with belt argument, essentially claim is that Ford’s provides pro laws. The statute that “[t]his preclusive even if it is found that the eviden gram shall be focused on the effectiveness of tiary provision Virginia § Code 17C- belts, safety monetary savings and the 49(d) broadly enough is written to include 15— public usage to the from other benefits cases, crashworthiness the statute must be safety requirements penal belts and the applied deemed unconstitutional to such provision specified ties in this Id. This law.” deprives cases because it manufacturers the purpose Legis embodies the or intent of the opportunity fully positions. defend their safety in enacting lature belt law: the Locke, Syl. pt. See State ex rel. Miller v. Legislature sought promote public safety (“A (1979) by protecting passengers drivers and travel may yet be statute constitutional as written ing highways. on our state Protection of the unconstitutionally given applied be in a citizenry legitimate is a state interest. ease.”). us, upon Based the facts before the eviden tiary mandatory preclusion set forth in the In order for a statute “to with safety appears belt law to be reasonable scrutiny stand constitutional under Legislature extension concern of the standard,7 process substantive due it must protection passengers for the of drivers and appear Leg that the means chosen by allowing stipulate a fixed them to re proper legislative pur islature to achieve a damages recovery duction order to seek pose relationship bear a rational to that unimpeded by safety belt defense when purpose arbitrary are not or discrimi they injured in are an accident. Taken as a natory.” State ex rel. Harris v. Calen whole, dine, 172, 179, Virginia rep § Code 17C-15-49 233 S.E.2d (footnote added). policy punishes a rational non resents Thus the safety question compliance with the belt mandate raised under facts met,8 present through precluding case is whether fines if certain conditions are mandatory process 7. The due 8. Enforcement of the belt law clause of West (c) III, of West is addressed in subsection Constitution is set forth in Article section 10 17C-15-39, provides as Code which follows: as follows: Any person provisions who violates life, person deprived liberty, No shall be section shall be fined not more than twen- *10 property, process without due law .... ty-five dollars. No court costs or other fees shall be assessed for a violation of this section. “punishment” denying but avoids a second intended use. The standard of reasonable severely limiting injured plaintiffs an re- particu- or safeness is determined not manufacturer, covery public in a civil action. The lar related but what a reason- underlying may ably prudent policy the statute also reflect manufacturer’s standards legislative recognition that such evidence should have been at the product time the prove highly prejudicial confusing could was made. additionally fact. trier of We observe testimony maintains that of Ms. Legislature ignore did not the inter- Estep’s expert, accident reconstruction who it ests of defendants such cases since professional registered was a engineer with tempered evidentiary preclu- the effect of the specialties design in machine and mechanical by specifying statutory sion method for engineering, did reasonably not set forth a mitigating damages. legislative This intent prudent manufacturer’s standard to which purpose is furthered whether or not the weigh could the evidence. Ford safety pre- evidence of belt use is limited or only further maintains that the standard that cluded under the terms of the statute. Ac- Estep expert proposed was that an air cordingly find we that West Code bag always deploy should pre- when it would 17C-15-49(d) (1993) (Repl.Vol.2004), pro- injury vent deploy never when it would

viding preclusion for the limitation or of the not. Our review transcript of the use of belt evidence in civil action testimony expert relevant does not proceeding damages, for has a reasonable support this conclusion. legitimate and rational basis related to a state interest and does not violate the due summarizing Before our findings III, process guarantee of Article section 10 of regarding expert’s testimony, we observe the West Constitution. reviewing that our task in a trial court's ruling judgment on a motion for as a matter considering When substantive due of law “is to determine whether the evidence process challenges statutory provisions, was such that a trier might reasonable of fact liberty this Court is at not to substitute its Syl. pt. have reached the decision below.” judgment Legislature. for that of the Of part, O.F., Mildred L.M. v. John course, Legislature free is to alter its (1994). “While a policy by amending statement belt plenary, review of this motion is it is also provide exception statute to an for erashwor circumscribed because we must review the Thus, injury eases. Ford’s thiness/enhaneed light evidence in a most favorable to the obtaining recourse for the relief it desires is nonmoving party.” Syl. pt. part, Alkire legislative judicial. rather than Bank, v. First National 197 W.Va. Sufficiency B. of Evidence proposes Ford next that the low The record before us reveals that the de- granting request er court erred not its for product fective nature of the was demon-

judgment as a matter of law because Ms. ways by Estep’s strated various Ms. re- Estep did not show that the Ford sum, expert. construction In engineer was defective under the standard established according testified that to automotive indus- in Morningstar v. Black & Decker try Manufac bag expected standards an air is to de- Co., turing 253 S.E.2d 666 ploy in a severe crash where there is a (1979). Syllabus point Momingstar four of greater twenty-five percent than risk of seri- sets forth the relevant standard as follows: injury occupants or death to the ous jurisdiction general explained test motor vehicle. He that whether

establishing liability subject strict in tort is wheth- crash involved a head-on collision product er the involved suggested by is defective in the with the tree as or a reasonably sense that it is not safe for its less direct into crash the tree because the probable violating Enforcement of this section shall be accom- cause of another section code, plished only secondary as a action when a of this passenger driver of a vehicle has been detained *11 during all of these matters proposed, the informed of airborne as vehicle was closing argument. Ford’s deployed given the ex- have bags should air change in veloci- as to the pert’s calculations testimony hearing to the addition the the collision. While resulting from ty cross-examination, including expert, the standard, his own he offer expert did not scene, the jury had viewed the accident the which were test standards accepted Ford’s picture and a Ranger involved in the accident arrive at the to national standards based on undamaged steering wheel next to the of an bag deployment should air speeds at which steering Estep Ranger the which wheel of specifically noted the expert also occur. This evidence. It was Ford had introduced into system particular in this failure of Ford’s jury weigh province of the to the within the severity. the crash’s View- vehicle to detect it the credibil evidence before and determine light in the most favorable ing the evidence involving ity a case of witnesses. “When the required, we find that Estep to Ms. conflicting testimony and circumstances has Momingstar the standard shows that record tried, jury fairly ... the verdict of the been no reversible error was was satisfied contrary plainly not be set aside unless will committed. without weight the of the evidence or to Syl. pt. it.” support evidence to sufficient Testimony Expert C. Griffith, 143 part, Laslo v. argument, next Ford claims its (1958). As jury The reached its con Estep presented no evidence that Ms. parameters within the of the evidence clusion alleged in the that an defect show therefore, conclude, that the presented. We theory injury her spinal since caused her grant judg correctly refused to lower court founded on the false conclusion causation was ment as a matter of law on this issue. steering in the vehicle was that wheel that the lower Ford’s contention is bent. Jury D. Instruction granting judgment as a by not court erred The final error Ford raises concerns it on cross- matter of law because was shown jury refusal to instruct the the trial court’s testimony Ms. Es that examination compliance relevant federal motor with engi tep’s expert, a biomechanical second safety standards raises a rebuttable vehicle neer, assumption that was based on the false reasonably was presumption that this vehicle steering had been bent wheel safe and not defective. Estep thus maintains that Ms. crash. Ford injury that “the refusal carry proof on It is clear her burden of failed requested jury is reviewed give a instruction and causation. [by for an abuse of discretion. Court] this expert testified that biomechanical contrast, question jury By of whether injury Estep’s back proximate cause of law, question instructed is a properly was being over thrown forward was Ms. Syl. pt. and the review is de novo.” testimony, During her steering wheel. Hinkle, part, State v. expert that she reached this conclu- said (1996). Applying these standards S.E.2d representation of Ms. Es- sion based on we find no error. expert that the tep’s reconstruction accident jury previously considered a The record reflects This Court steering wheel was bent. similar to the one at issue during expert on instruction cross-examination Corporation, 190 go have to Johnson v. General Motors biomechanics said that she would In Johnson if computations her the W.Va. back and reconsider decidedly jury may that a consider sugges- we stated steering not bent. No wheel were standards, compli- but that the federal by Ford that the time be tion was made occur, not conclusive ance with those standards is reconsideration to nor taken for this design product was proof that calculations entered into evi- were alternative at 438 S.E.2d at 39. would have demonstrat- reasonable. Id. dence Ford which given by the lower court The instruction steering ed that wheel had to be bent for reads as follows: type injury to occur. The *12 in have assert- IV. Conclusion Defendants this case The in liability the their is determined ed that foregoing For the disclosed in the reasons product reason- of whether the was light discussion, 14, 2006, March the order of the which it purpose the for ably suited for County Circuit Court McDowell is af- gener- in intended accordance with the was firmed. industry, accepted of the ally standards Affirmed.

having regard state of due for the existent the time technology and the state of art at Justice BENJAMIN dissents and reserves right dissenting opinion. the a to file designed manufac- was and pi’oduct Industry not conclu- tured. standards are P. Justice JOSEPH ALBRIGHT not ordinary in or manu- design care sive as participating. rather, evidence but are admissible facture sitting by Senior Justice McHUGH Status your for consideration. temporary assignment. Compliance by or seller a manufacturer BENJAMIN, J., dissenting: any federal or or admin- with state statute respectfully majority’s I dissent from the regulation existing time a at the istrative decision to affirm the circuit rulings court’s prescribing manufactured product was and affirming in this In underlying case. testing, design, inspection, for standards majority rulings, relies on W.Va.Code manufacture, or in- labeling warning or 17C-15-49, observing § that this statute is may product of a be structions use ruling.” “central to trial court’s Op. at by you in determin- when [sic] considered noted, § 351. As therein W.Va.Code 17C-15- ing product issue of defect. only 49 not that all occupants mandates public highways on motor vehicles wear safe- clearly given in The instruction Johnson9 belts, ty that the “... but also statute con- applied delineates the law this area as provision limiting tains a when and for what in that that the facts case. We conclude purpose of violations of case now instruction the lower court in the Id. belt law admissible in court.” Specifi- is a of the before us also is correct statement cally, provides that the statute a violation of though it for the law even does not account the statute is not admissible as evidence of presumption by suggested rebuttable Ford. in mitigation fault and is also not admissible recognizing reach this that We conclusion evidentiary damages. I conclude that the neither the con- Johnson our discussion nor § direction of 17C-15-49 violates W.Va.Code in that tents of instruction under review Rule-Making Separation Clause and the compliance that national case stated with of the West of Powers Clause Con- presumption. standards raises a rebuttable stitution. a appreciate Ford’s desire to re- We create Separation of Powers Clause of the presumption compliance regarding buttable provides Constitution in rele- standards,

with federal but find that “[tjhe part legislative, vant that executive provide the circumstances this case do not departments judicial separate shall be distinct, requiring a that neither shall basis same. so exercise the prescribing The instruction examined in Johnson stated manufactured standards for part: pertinent testing, design, inspection, or manufacture of lawsuit, course of the trial of this you may product, a factor which take into is evidence has been introduced to effect determining whether the consideration car vehicle, that manufactured and sold It is not of itself was defective. conclusive Defendant, complied Mo- with certain Federal way. either Safety Vehicle tor the National Standards established charge industry you I standards are not Highway Safety Transportation ordinary design care and conclusive as Administration. manufacture, but rather are evi- admissible respect With to those Federal Vehicle Motor consideration, together your dence for with all Standards, Safety you are that com- instructed the other evidence this case. pliance a manufacturer federal stan- with dards, existing product at the time the 190 W.Va. at 438 S.E.2d at 39. Found., S.E.2d belonging gan Med. 193 W.Va. to either properly powers Const, (1994) Sep- (invalidating art. 1. The a statute that was in W.Va. othersU” Evid., 702); merely a Clause “is not with R. Rule Tet Powers conflict aration of Co., fundamental law part of the Colony it is v. Old suggestion, er such, and, strictly it must be (invalidating of our State statute *13 closely Evid., followed.” State ex construed in with R. Rule was conflict W.Va. Manchin, 155, 279 167 W.Va. 702). v. rel. Barker Virginia 402 of the Rules of Rule West (1981). considering Sepa- In S.E.2d 622 provides: Evidence Clause, Court has not Powers ration of admissible, except All relevant evidence is the doctrine where we to utilize “hesitated by provided otherwise the Constitution a direct and fundamental that there felt States, by of the United the Constitution of government by one branch encroachment rules, by Virginia, of West these the State powers of another branch the traditional into by adopted by Supreme other rules Appalachian Power Co. v. government.” Appeals. Court of Evidence which is not 887, 757, 759, PSC, 296 S.E.2d 889 170 W.Va. relevant is not admissible. (1982). admissibility of in civil is trials Rule-Making Clause of Pursuant pursu- determined our Rules of Evidence Constitution, Supreme Virginia the West rule-making power. ant to our constitutional power pro- “shall have Appeals Court what and is not attempting to determine is proceedings, mulgate rules for all cases trial, § 17C- admissible a civil W.Va.Code criminal, all of the courts of the civil and directly with of our 15-49 conflicts Rule 402 writs, warrants, process relating to State Consequently, Evidence. it is in Rules of which shall have the procedure, practice Separation of Powers Clause violation Const, 8, art. law.” W.Va. and effect of force Virginia the West Constitution and the of our eight, article section three § 3. “Under Rule-Making Virginia Clause of the West Constitution, Supreme Appeals Court of Const, 5, 1, 8, § W.Va. art. art. Constitution. promulgate rules for power to have the shall evidentiary provi- § 3. I conclude that the State related to courts of the all of the § 17C-15-49 are uncon- sions of W.Va.Code procedure, which shall process, practice, and stitutional. 1, Syl. of law.” Pt. and effect have the force majority Accordingly, I from the dissent 742, Warner, 179 W.Va. 372 v. Bennett opinion. regard, “[t]he In this Evidence remain the Virginia Rules of West authority determining the ad-

paramount Syl. missibility in circuit courts.” of evidence Derr, part, v. 192 W.Va. Pt. State (1994). Pursuant to the con- 451 S.E.2d Virginia ex rel. West of West STATE authority granted to this Court stitutional Clause, Insurance govern- “a National Auto Rule-Making statute Inc., Company, evidentiary] Petitioner ing procedure matters [or which conflicts with criminal cases [civil or] v. Supreme Court promulgated rule BEDELL, A. The Honorable Thomas invasion of the court’s legislative be a would Judge of the Circuit Court of Harrison Arbaugh, v. rule-making powers.” State County, Virginia; A. West and John 132, 138, 595 S.E.2d W.Va. Yanchek, Respondents. (Davis, J., dissenting) (quoting People v. Hol- No. 34337. 1983)). lis, (Colo.Ct.App. P.2d Supreme Appeals Court 17C-15-49 To the extent W.Va.Code Evidence, Virginia. Court’s Rules of conflicts with this it is and must be invalidated. unconstitutional Oct. 2008. Submitted Butler, Highways v. Div. of Decided Dec. (1999) (invali 146, 516 S.E.2d 769 with dating a that was conflict statute 702); Evid., Mayhorn Rule v. Lo- R.