Lacy v. CSX Transportation, Inc.

520 S.E.2d Lacy,

Tanya and Michael L. LACY Husband, Plaintiffs

Her

Below, Appellants, TRANSPORTATION, INC.,

CSX Below, Appellee.

Defendant Brooks,

Richard Plaintiff

Below, Appellant, Inc., Transportation, Defendant

Below, Appellee. 25341.

No. Appeals

Supreme Court Virginia.

West 13, 1999.

Submitted Jan.

Decided 1999. June

Dissenting Opinion of Justice July 1999.

Workman

gent, special but concluded in its verdict that proximate CSX’s was not a cause challenge of the accident. Plaintiffs the sub- sequent CSX, judgment entered in favor of (1) arguing that the lower court erred in refusing to instruct the on strict liabili- (2) ty; permitted counsel for CSX was engage improper argument respect Virginia concerning effect of West law (3) liability; and several the trial in excluding court erred a statement con- diagram prepared by tained in a a CSX employee following indicating the collision the location of one of the locomotives in- reverse, volved in the accident. finding We merit in the latter two contentions. I.

BACKGROUND Skaggs, Esq., H. John Calwell & McCor- Shortly p.m. January after 11:00 mick, Charleston, Virginia, Attorney West a car driven Cacoe Sullivan left the Appellant Brooks. Albans, Kroger parking heading lot St. Tiano, Berthold, Esq., fiancee, William M. Tiano & west on Third Avenue. Sullivan’s O’Dell, Charleston, Virginia, Attorney Brooks, West riding in pas- Richard the front Appellants Lacy. seat, mother, for senger’s Tanya Lacy, while her was in the back seat with Sullivan’s and O’Neill, Murray, Esq., Mary Thomas J. tracks, Brooks’s infant son. CSX’s railroad Murray Murray, Ohio, Sandusky, & Attor- comprised of two main-line and two side neys Lacy Appellants for and Brooks. tracks, parallel run to Third Avenue immedi- Williams, Massie, Esq., Marc E. Robert L. ately to the south. Loftus, Huddleston, Esq., Esq., Paul J. Bo- Avenue, traveling on While Third Sulli- len, Beatty, Copen, Huntington, Porter & stop sign van’s car a encountered from where Virginia, Attorneys Appellee West CSX. occupants flashing could see that lights gates of the still-distant Fifth McGRAW, Justice: crossing Street were activated. Sullivan’s Tanya Lacy Plaintiff-appellants and Rich- proceeded vehicle to the intersection of Third injured were in ard Brooks when the car (adjacent Avenue and Fifth Street they passengers which were collided awith crossing), stop stop slowed but did not at a operated by appellee Transporta- train Street, sign, made a left turn onto Fifth went tion, (“CSX”), grade crossing Inc. at a in St. gate around lowered onto the one of the arms Albans, Virginia January in 1995. West tracks, by and was struck broadside a west- brought against Plaintiffs actions both CSX traveling per bound train at 50 miles hour.1 car, Sullivan, in and the driver Cacoe paraplegic apparently Brooks was rendered County. At the Circuit Court Kanawha by the accident. trial, was close of two-week liability undisputed that from view bifurcated on the issues of and dam- It was Sullivan’s Avenue, second, ages, negli- traveling found both on Third slower- defendants disputed ing 1. this train were not at fault in the accident. It was not that the westbound train however, was, conflicting testimony properly re- involved in the collision sounded its There approached crossing, garding parked whether there were rail cars on whistle as Thus, obstructing headlights functioning. view of the were it was the side tracks Sullivan's operat- approaching plaintiffs that westbound locomotive. conceded the individuals Albans, crossing. mayor of seen The former St. locomotive could be moving “shifter” Bassitt, crossing previ- the west. had from Edward indicated he approaching the however, conflicting was, evidence re- ously problem of There discussed with CSX the just locomotive was garding how distant this the Fifth extended activations at Street testimony of the accident. The at the time of early employees crossing as as 1989. CSX engineer, Calvin the eastbound locomotive’s in that drivers also testified to the fact Bowen, as 300 to 400 feet placed it as close ignored frequently area the cross- St. Albans traveling crossing, Fifth Street west of the warning signals. ing hour, twenty per when the miles fifteen to expert grade- Plaintiffs’ the area of train. car struck the westbound Ph.D., crossing safety, Berg, testi- William of a proffered evidence the form Plaintiffs circuitry that the fixed-distance installed fied by a investi- diagram prepared CSX accident tracks at the Fifth Street on main-line (the diagram”), gator, “accident G.A. Green designed warning crossing is to activate a indicating locomotive was eastbound approaching train is within whenever away, further as far as two to three blocks to 2,200 2,000 crossing, regardless feet of the however, crossing; this evi- the west of the Thus, speed. while a train of the train’s trial court. dence was excluded speed sixty traveling at the maximum respect issue at trial with The central give twenty-five sec- per miles hour would negligent permit- it was CSX was whether warning, approach of a ond slower-mov- slow-moving locomotives ting both fast- and ing longer in much locomotive could result crossing approach the Fifth Street simul- estimated, Berg warning times. Dr. based taneously its main-line tracks. The cross- acci- part information contained warning system consisting active had an diagram, that the eastbound locomotive dent gates. flashing-light signals and automatic warning system would have activated the ability asserted at trial that the Plaintiffs forty prior to the accident. over seconds warning system provide a crossing “positive warning” approaching of an train optimal Berg Dr. further stated that the effectively practice neutralized CSX’s twenty-five thirty warning time was sec- switching allowing slow-moving locomo- onds, warning and that times excess main-line It was tives to use the tracks. forty in a increase in seconds result dramatic alleged practice frequently resulted people driving the number of around de- crossing’s in the extended activation of the ployed gates. importance of He stressed the gate flashing lights and arms when no trains warnings, giving motorists credible and the result, proximity. were hazardous As provide warning times at need to uniform according plaintiffs, using CSX was crossings significant dispari- where there are warning system in accordance with its speeds.3 example ties train As one design, compliance was not in with and thus Berg- practices, alternatives to CSX’s Dr. (1998).2 § 49 C.F.R. 234.225 warning-time pointed to so-called constant (“CWT”), Sullivan, technology gives witnesses, a consistent including testi-

Several warning regardless speed ap- encountering of the of the past experience their fied to cited slow-moving proaching train. Other alternatives extended activations because of slow-moving vicinity Berg relegating Dr. trains in the of the Fifth Street included Institute, provides: § Con- 2. 49 C.F.R. 234.225 dards Manual on Uniform Traffic Highways § 8C-5 trol Devices (1988) ("Where Street and grade crossing warning sys- highway-rail A speeds of different trains on tem shall be maintained to activate accor- design warning system, vary considerably with the of the given dance normal track under provide than 20 but in no event shall less special operation, or circuits should be devices warning operation time for the normal seconds provide reasonably uniform notice in installed to grade crossing through trains before the is advance of all train movements over the cross- occupied by rail traffic. adopted by ing.”). This manual has been Transportation, Virginia Department Di- West assertion, support Berg 3. In of the latter Dr. § Highways. Va.C.S.R. 157-5-2.1 vision of W. cited, among authority, published other a manual (1994). auspices Department under the of the U.S. Transportation. See American National Stan- tracks, necessary justify trains to side where the fixed distance the installation of CWT. circuitry specifically designed to accommo- gave opinion He that the characteristics speeds,4 keeping or date the lower slower crossing, including existing pres- of the circuitry locomotives outside of the on the warning system ence of an active gates, ap- main-line tracks when faster trains are sight and the excellent distance at the cross- proaching. ing, did not make priority Fifth Street a ease, presented testimony In its CSX candidate for CWT. Wolf, Gary expert railway opera- an evidence, hearing jury After delib- tions, Blaschke, Ph.D., Joseph expert and an sending indicating erated until a note engineering highway design. traffic and they having difficulty reaching were a unani- rejected Both of these witnesses the conten- gave mous verdict. The trial court then twenty-five thirty tion that seconds was an AJZe%-type jury instruction.6 The subse- time, optimal warning and cited the absence quently special regarding rendered a verdict regulation mandating federal maxi- Sullivan, liability, finding CSX and as well as warning mum times.5 Each stated that plaintiffs Tanya Lacy Brooks, and Richard primarily improve CWT was intended ve- negligent, but determining that Sullivan’s crossings, hicular flow at not to increase traf- negligence proximate was the sole cause of safety. Dr. fic Blaschke also testified that jury the accident. percent ascribed one involving CWT was indicated in situations negligence CSX, Brooks, Lacy each to heavy heavy both vehicular traffic and train ninety-seven activity, percent and that crossing the Fifth Street to defendant Sulli- generate did not the level of vehicular traffic van.7 The circuit judgment court entered lines, 4. you preponderance In contrast main where the fixed 1. Do find from a circuitry defendant, distance is activated when a train Transportation, evidence that Inc., 2,000 2,200 within negligent? feet of the Fifth Street tracks, crossing, on the side where the maximum X Yes hour, speed per is limited to 15 miles the warn- No only is activated when a train is 500 to 600 crossing. feet from the so, you negligence 2. If do find such on the Inc., part Transportation, proxi- of CSX was a § 5. While 49 C.F.R. 234.225 mandates a mini- injuries mate cause of the sustained seconds, warning twenty mum time of there are plaintiffs? apparently no restrictions on the maximum _Yes warning provided time that to motorists. do, however, regulations place Federal certain No X responsibilities upon remedy railroads to false you preponderance 3. Do find from a crossing warning systems. activations of See 49 defendant, Sullivan, evidence that the Cacoe § C.F.R. 234.107 negligent? 6. The instruction informed the Yes X _No your duty it is to make an honest and sincere verdict, effort ... arrive at [to] if it's at all so, you 4. If do find possible. [J]uror[s] should not be obstinate. part proximate of Cacoe Sullivan was a cause They They should not be stubborn. should be injuries by plaintiffs? of the sustained the open argu- minded and should listen the to others, ments and should talk the matters Yes X freely fairly, over and and make an honest No effort, women, as fair-minded to come to a presented you preponderance conclusion on all of the ... 5. Do find from a of the issues so long juror plaintiff, Tanya Lacy, as each can evidence that the do so without sacrific- was ing negligent? her own convictions. approved by A similar instruction was the Su- X Yes preme Court of the United States in Allen v. _No States, United 164 U.S. 17 S.Ct. L.Ed. 528 so, you negligence 6. If the do find such part Tanya Lacy proximate cause of special jury 7. The verdict returned the was as injuries plaintiffs? sustained follows: _Yes VERDICTFORM X No the relation- jury needs to understand jury’s special upon the based favor of CSX parties and the effect of a ship between subsequent Motion for a Plaintiffs’ verdict. CSX, percent against finding of either one Notwithstanding Judgment and New Trial way plaintiffs have of the because trial court. was denied the Verdict case, argued this plead[ed] this case and relationship between because of II. cooperation that we’ve seen parties and the here, fully jury to understand needs DISCUSSION that. plaintiffs who tha[n] no different This is A. try every to a case come time we seem well, jury, you if find more and tell Liability Joint and Several plaintiff fifty percent at fault then this than the trial first contend that Plaintiffs any money. going get It’s the is not to permitting counsel for CSX court erred thing. same post-judgment effects of potential argue the in- proposed The trial court refused CSX’s liability jury.8 joint to the We and several struction, ruled that CSX but nevertheless issue, finding that the trial reverse on liability argue joint several and could and by permitting its discretion court abused intrigue.” plain- “point Counsel for out speculate and otherwise counsel for CSX the court’s attention brought the issue to tiffs jury the rail regarding whether mislead the immediately closing before a second time charged pay ultimately be road would citing Wheeling arguments, Valentine judgment if both CSX the entire Co., 382, 376 S.E.2d 588 Elec. fault. were found at defendant Sullivan (1988), asserting argument such “invit[ing] would be tantamount trial, motion in plaintiffs filed a Prior to joint liability nullify the law of and several any questions, sugges- exclude limine “to again trial court Virginia.” West comments, tions, testimony or ar- allegations, argue joint permit and sev- ruled to CSX defendant, [CSX], as to the gument by the liability. eral joint Virginia’s and several effect that West following dur- for stated the Counsel CSX may The cir- liability [CSX].” law have ing closing argument: the motion after CSX cuit court ruled on just stop let’s talk Let’s for a minute and proposed instruction on the issue.9 CSX about, really what about what this case is argued trial court that obligations to its civil you preponderance of the criminal indifference find from a 7. Do Brooks, proximately plaintiff, the accident of Jan- Richard caused evidence negligent? uary 1995? Yes X Yes _ _No X No so, you on the infra, 8. If do find note we For reasons discussed proximate part was a cause of Richard Brooks disapprove expressly this verdict form. injuries plaintiffs? sustained liability, 8. Under the doctrine of and several _Yes plaintiff elect sue and all of those "[a] X No damages responsible her] his from whom- [or any, percent negligence, do What if 9. percent- pay, irrespective their able to ever is you parties to each of the listed below: assess Syl. pt. part, Anchor age of fault.” Sitzes Inc., Freight, 289 S.E.2d Motor Transportation, Inc. % (1982). 679 Cacoe Sullivan 97 % Tanya Lacy 1 % proposed "You are instruction stated: 9. CSX’s 1 Richard Brooks % prin- Virginia recognizes the instructed that West liability, ciple known and several of law as Total 100 % any party against provides whom a that re- Inc., finding negligence made can be held is Transportation, act in a 10. Did CSX willful, sponsible the entire verdict.” with for wanton or reckless manner or

639 present in case in- going here for two weeks the evidence.” While has been on Brooks, Lacy, arguments of rather than Tanya Richard volves the counsel this trial. evidence, family. underlying are This is not the introduction of and Cacoe Sullivan suing principle equally applicable that plaintiffs have two such a case where we preserve respect closing argu- in This is a case which the error two defendants. money by opponent, party an need not family trying get from the ments object Lacy any- party Tanya contemporaneously doesn’t want where railroad. objected daughter. previously to the trial court’s in thing from her argument, ruling permitting limine such and They spent trying two weeks to convince argument subsequently pursued by They fault. you that CSX was at didn’t reasonably scope opponent falls within the you spend trying to convince two weeks by ruling. afforded the court’s This conclu- Why was at fault. that Cacoe Sullivan by Virginia Trial sion is bolstered West you go why I’ll tell not. If back into not? 23.04, objections Court Rule which disfavors jury room and return this verdict of that by during closing arguments: counsel “Coun- responsibility [plaintiffs’ coun- shared that interrupted argument by sel shall not be wants, jury you go if back into that sel] counsel, except may opposing be neces- say[s] return verdict that ... room and sary bring objec- to the court’s attention fault, percent 1 percent 99 Cacoe Sullivan’s any jury by tion to statement made fault, Tanya Lacy guess what? and CSX’s opposing ruling counsel and to obtain a on judg- Richard Brooks can collect the entire objection.” They it ment from CSX. can also collect Sullivan, wanted, they if from Cacoe but not, case, required Plaintiffs were this going to what are the odds a mother is objection lodge at the counsel for an time actually daughter. ask her remarks, challenged since the CSX made you go jury into that So when back room already ruled in limine on trial court had form, any finding fill out this verdict plaintiffs’ objection argument. to this line of CSX, part percent, percent, 1 10 on present Consequently, issue has been percent, percent, 50 100 it’s the same preserved for review. essence, is, thing. percent telling One Reaching plaintiffs’ as the merit of CSX, you totally completely are re- error, we that sertion of note Court sponsible for this accident. concerning rulings reviews a trial court go you you choices when So have two appropriateness argument counsel You can out on this verdict form. find of discretion. before the for abuse responsibility for this accident was in con trial court has broad discretion “[A] fault, solely solely or Cacoe Sullivan’s jury,” Dawson trolling argument before the fault, they’re split and CSX’s because 43, 717, 721, Casey, 364 S.E.2d v. 178 W.Va. going looking to come for us. (citation (1987) curiam) omitted), and (per objected to this Counsel for Cacoe Sullivan interfered with such discretion “will not be delivered, argument at it was but the time court, appears appellate unless by the trial court.

was overruled rights complaining party have matter, injustice manifest prejudiced, been or that As a threshold therefrom,” Syl. pt. State obliquely suggests appellate review of resulted (1927). plaintiffs’ Boggs, is barred failure to 103 W.Va. S.E. this issue Bennett, Syl. object pt. State v. during closing argument. This See also Court As we previously Syllabus point 1 of held Winter Hinkle, Mackey Syllabus point v. Iris noted in 180 W.Va. 379 S.E.2d 383 (1994), ari, (1989), objection 445 S.E.2d to an adverse “[a]n “ argu ‘[g]reat latitude is allowed counsel ruling a motion in limine to bar evidence cases, keep within must preserve point, though ment of but counsel at trial will even evidence, calculated not make statements objection at the time the evi no was made inflame, jury, nor offered, prejudice mislead the or unless there has been dence make re- permit encourage witnesses to change admitting or significant the basis tendency permit argument a in- to on marks which would have to used instruction and ” flame, jury.’ prejudice workings comparative negli or mislead the of modified 2, (Quoting Syl. pt. Kennedy, 162 gence, juries joint State informing sanction about (1978)). 244, 249 S.E.2d 188 because, liability in and several their estima tion, juries likely respond are to to such While our ultimate focus is therefore on by being information more conscientious trial court abused its discretion whether the assigning responsibility about to defendants. regarding permitting argument poten- Dep’t High ex rel. See DeCelles State joint post-judgment tial effect of and several of 422, 425, 419, ways, 243 Mont. 795 P.2d requires liability, inquiry us to first (1990); Shockey Luna v. Sheet Metal & generally appropri- determine whether it is Co., 193, 195-97, Welding 113 Idaho 743 P.2d jury ate to inform the about this doctrine. Davis, 61, (1987); 64-65 Kaeo v. 68 Haw. previously This touched Court 447, 460-61, (1986). 387, 719 P.2d For permissible it to issue of whether is instruct Luna, example, Supreme in the Idaho Court joint jury liability a on and several Valen- stated that Co., 382, Wheeling tine v. Elec. 180 W.Va. Valentine, joint liability, the doctrine of In several 376 S.E.2d 588 gave under which a defendant a trial court an instruction identical to assessed mere proposed by present negligence may required pay CSX the case. 1% to 9, if, supra. appeal, plaintiffs damages See note the defendant 100% of On for some reason, attempted justify joint the trial court’s action tortfeasor is unreachable by citing Syllabus point 2 through judicial process, trap of Adkins v. “poses a Whitten, 106, jury.” 297 S.E.2d 881 for the uninformed An informed (1982), requires a court instruct the jury likely carefully will be much more jury comparative on the doctrine of modified prior reaching examine the facts a ver- negligence requested. when The Court re- fault, holding dict a defendant even 1% at jected Adkins, applicability observing cosmetically appealing no matter how a proposed that the partial might allocation of fault be. ... instruction did not deal with measur- Luna, 196, 113 Idaho 743 P.2d at 64. appellant against of the Other courts stress that consideration Rather, alleged that of the tortfeasors. joint liability and several is not relevant to apportionment damages dealt with determining any issue of fact. The Court of among alleged Consequently, tortfeasors. Appeals recently of South Carolina took this duty imposed by of a trial court Ad- approach, where it held that it was error jury kins to instruct the as to the effect of trial court to refuse an instruction on comparative negligence did not exist in this joint liability and several “[b]ecause the doc case. bearing jury’s trine has no on the ultimate Valentine, 386, 180 W.Va. at 376 S.E.2d at fact-finding determining role the relative (emphasis original). concluding After joint negligence of tortfeasors.” Fernanders proffered that the ap- instruction “was not S.C., Inc., 470, v. Marks Constr. 330 S.C. id., propriate case,” in this the Court went on (S.C.Ct.App. 510-11 instructing to find that jury error 1998); Winterhalter, see also Dranzo v. joint liability on and several was harmless 578, 592, Pa.Super. 577 A.2d jury because the found neither defendant (1990) (“the collectibility uncollectibility or negligent. certainly sug- While Valentine judgment, operation joint and sever gests jury that it error to inform the of the liability, simply jury’s al not relevant to the joint liability, doctrine of and several consideration of whether the defendants attempt forge Court that case did not causally percent”); were liable and in what concerning broad rule this issue. Phoenix, City Gehres v. 156 Ariz. 486- divergent concerning There are views (Ariz.Ct.App.1987). 753 P.2d 176-77 appropriateness informing liability. effects of and several Some Courts both sides the debate take jurisdictions, however, employing positions; perceive the same rationale credible we

641 practical by way on charge resolution of this issue turns on court of instruction or only lightly that have been considerations jury applicable to inform the as to the law upon. touched the facts of the case. This should be the ease comparative to our negligence.” law of Adkins, In the Court determined that a requirement Id. This in is echoed W. Va. R. jury’s apportionment of fault would be more 49(a), special Civ. P. which in operation if the context of reliable it were instructed on the comparative requires “give jury the doctrine modified fault: verdicts a court to explanation concerning such and instruction practical standpoint apparent a From it is jury, given type may that a of verdict form the matter thus submitted as be neces- by Bradley Appalachian [v. mandated sary jury findings to enable the to make its Co., 332, Power W.Va. 256 S.E.2d 879 upon Wright each issue.” Professors and (1979),] requires gross damage “preferable” Miller assert approach that the finding plaintiffs per- verdict and a of the 49(a) juries under Rule tois inform of the centage negligence, may well surmise legal findings, noting effect of their factual plaintiffs may that the reduce (much Adkins) in as we did that to do other- damage his award. It seems to us that a likely unavailing, wise “is to be and there is jury’s deliberations should not be attended always jury danger guess that the will they such surmises but rather should law, wrong may shape about the openly legal princi- informed as to the verdicts, special contrary answers to the ples comparative negli- involved in our beliefs, attempt its actual in a mistaken gence they may doctrine so that make a ensure the results it deems desirable.” 9A rational decision. Miller, Wright Charles A. & Arthur R. Fed- 297 S.E.2d at 884. The § eral Practice and Procedure at 197- instruction sanctioned in Adkins “enables the (2d ed.1995). jury to understand the mechanics of the com- rule,” parative contributory negligence King obviously generally This Court does not 276, 279, Kayak Mfg. Corp., “blindfolding” jury regarding sanction (1989), and thus eliminates legal findings, effect of its factual but nor possibility premise that it will its factual every informing jury do we endorse findings upon perception an erroneous of the consequence conceivable attach to legal consequences finding plaintiff par- findings. such tially determining utility at fault. In that the superficial In addition to the reasons stat instructing jury comparative negli- Valentine, perceive outweighs ed we an even more gence countervailing other consid- erations, rejected significant justification rejecting applica we notion that for inevitably joint information would result in bias on tion of Adkins the context of part jury: liability: Any several conclusion about how joint liability ultimately argue jury To that a and several will af once informed of comparative negligence might particular largely specula law ma- fect a defendant is nipulate plaintiff it in order to favor the Pennsylvania Superior tive. As the Court jury. argument assumes biased Such pointed holding proper out in that is was premised theory on a individual jury a trial court to refuse a instruction on jurors disregard will their oaths to follow joint liability, and several “neither the court the court’s instructions as to the law. The jury say nor the can with assurance how argument easily same could as be made rendered, any, any if much of the verdict one regard any aspect instruction on Dranzo, pay.” tortfeasor will in fact jurors the law. do not will We believe 1356; Pa.Super. at A.2d at see also disregard obligations apply their the law DeCelles, 243 Mont. at 795 P.2d at 423 objectively to the facts of the case. (“instruction (Sheehy, dissenting) [on J. Adkins, 171 W.Va. at 297 S.E.2d at 884 liability] jury spec and several allowed the ulate as to matters outside the evidence

The Court Adkins also stressed that case”) system, original). (emphasis “under our trial it is incumbent parties, nothing in evidence that jury has been un- there was a that instructed When a compar- directly supported such conten- the doctrine of otherwise der Adkins considers apportion- in context tion. the of ative fault, required speculate to not about it is was, event, any argument CSX’s mis- Rather, its verdict. the consequences the of implied leading to that it the extent that comprehend

jury easily what effect its can plaintiffs ultimately who could control would litigants, on the without findings have will pay. obviously ignores This the fact that beyond any evidence that need to consider would, upon plain- if called CSX it were of the cause of relevant to determination satisfy judgment, a tiffs to the entire have cannot be the action. The same said of against right comparative contribution Sul- joint jury’s lia- and several consideration (1923); Syl. pt. § livan. W. 55-7-13 Va.Code bility, in most cases the ultimate finan- where 3, Inc., Freight, v. Sitzes Anchor Motor 169 jury impact cial a verdict on individual (“As (1982) 698, 679 W.Va. 289 S.E.2d be- fully appreciated be cannot defendants tortfeasors, joint right compara- tween anyone judgment long after rendered. until tive inter se based contribution exists degrees primary their relative fault or consistently reject has This Court 3, negligence.”); Syl. pt. Haynes v. City arguments to base permitting ed counsel be (1977) Nitro, 230, 161 240 S.E.2d 544 W.Va. speculation. jury upon mere In fore the (“In joint Virginia West one tort-feasor is Smith, Syllabus Jenrett point v. joint entitled to contribution from another 325, (1983), W.Va. 315 S.E.2d we noted tort-feasor, except where the act is malum ‘“[tjhough wide latitude that is accorded se.”). arguments jury, before counsel arguments may not be founded on facts not potential jury To inform about jury, or inferences which must before joint liability effects of and several without ” jury.’ not from facts before the arise it, misleading otherwise trial courts could Ward, (Quoting Syl. pt. Crum 146 W.Va. conceivably required to instruct be and/or (1961)). Consequently, 122 S.E.2d 18 permit complex evidence on such and often arguments “nothing amount to more contribution, proscribed subjects as indemni- conjecture speculation and [are] than ... ty, bankruptcy, statutory the effect of _” properly excluded Gardner v. CSX immunities, common-law the extent of defen- Inc., 490, 502, Transp., 498 S.E.2d resources, dants’ financial and the existence Similarly, a instruc- court’s coverage just to name insurance a few. — prompt jury speculate tions should not to Riggle Our v. Allied discussion Chem. Syl. as that are not to facts evidence. Cf. (1989), Corp., 180 W.Va. 378 S.E.2d 282 Co., pt. Oates Continental Ins. unwieldy potentially illustrates conse- (1952) (“A jury will quences reading might flow from Adkins permitted findings to base its of fact require the post-judgment instruction on upon conjecture speculation.”). or case, jury’s findings. effects of a In that argument pursued by defendant-appellant,

The line of CSX Griffith Brothers Con- tractors, the present respect demonstrates case how con- claimed error potential post-judgment jury trial sideration of ef- court’s refusal to instruct joint likely requiring liability agreement fects of and several the effect an it to degenerate conjecture co-defendant, Chemical, indemnify into about whether a Allied particular ultimately except entirely will defendant bear a where the latter was at fault. greater plaintiffs portion “Mary Allied entered into a loss than is Chemical had trial, agreement prior attributable to its fault. Counsel CSX Carter” settlement speculated plaintiffs unwilling provided, among things, would be other that it any judgment against pay plaintiffs everything to collect Cacoe Sulli- would recovered van, indemnity forcing and would instead resort from its under crossclaim (Allied pay judgment. agreement. voluntarily entire While such an Chemical had $500,- plausible indemnity perhaps giv- outcome is limited its crossclaim to inference en unique relationship 000—the Brothers’ familial of these extent of Griffith insur- generally hold that in a it is coverage.) anee The Court summarized civil trial abuse of the trial argument Griffith Brothers’ follows: discretion for court jury permit argument by instruct or Appellant maintains the court regarding operation counsel of the doc- indemnity agree- should have revealed liability, trine of and several where the jury. argues jury ment to the It that the purpose thereof is to communicate to the if it should have known that assessed even potential post-judgment effect of percent to Griffith Broth- one of the fault assignment their of fault. ers, pay then have to the latter would the Appellant judgment. argues entire that The circuit in this court case abused its court, request, because a must on instruct only by permitting discretion not CSX to jury finding plaintiff the a on the effect jury possible legal inform the about the ef fifty percent negligent, the court should joint liability, fect of and several but also jury on have instructed the the effect of (cid:127) allowing go it effectively to so far as to indemnity agreement here. the jury liability exhort the to it of all on absolve Riggle, 180 W.Va. at 378 S.E.2d at 289. per such basis. Counsel that “[o]ne stated prefaced by noting is, CSX, The Court its discussion essence, telling you cent in are jury that Adkins “we did not rule in that the completely totally responsible and for this accident,” should be instructed on how the court com- a a theme that stressed sec putes plaintiffs’ recovery the amount of the jury ond time when the was told that it had a percentages from the relative choice between two ultimate outcomes: “You damages.” and the amount of total Id. In responsibility can find that for the this acci concluding court did fault, that the trial not abuse solely dent was Sullivan’s Cacoe or refusing its in to instruct fault, discretion on the solely any split CSX’s because and indemnity agreement, Riggle the Court in they’re going looking to come for us.” These problem instructing stated that with “[t]he gave misleading impression statements indemnity jury agreement on the ... is any way fault, if that CSX was in at found it that such would an instruction have been invariably pay would be left the entire misleading instructing jury If, without also judgment. repeatedly have as we de agreement on the and clared, settlement the insur- jurisdiction is “[t]his committed to the coverage appellant. ance Comment to a concept joint liability among and several jury concerning party’s coverage Sitzes, tortfeasors,” a insurance Syl. part, pt. supra, in (ci- usually error.” constitutes reversible Id. permitted argue a defendant cannot be omitted). Riggle tation the facts in While against finding upon a based of fault mislead attempt unique, any analogously ing speculation possible about the ramifica jury legal joint inform the effect about the application. tions of the doctrine’s liability likely and several to encounter is argues even if trial CSX similar obstacles. by permitting court did abuse its discretion We are not to sanction for inclined joint argue and several effects of ays speculation into invite matters that because, liability, such harmless error was conjecture part jury, and which notwithstanding request opposite for an its suggest stopping point do easy result, per one found the railroad respect necessary to the disclosures to avoid Therefore, negligent. according cent misleading fact. the trier of Nor the case CSX, closing argument prejudicial had no liability discern, do we several jury. persuaded. effect are not on the We Adkins, juries likely we are did 61,10 R. P. misconceptions “[a] harbor or Under W. Civ. otherwise act Va. only regarding Accordingly, trial if there is party this doctrine. we entitled to a new by any parties Virginia of the 10. Rule 61 of the West Rules of Civil omitted the court or provides: ground setting granting Procedure trial or for a new vacating, modifying or aside a verdict or for No error either the admission or the ex- order, disturbing judgment otherwise or un- no a clusion of evidence and error or defect in anything appears ruling less refusal to take action or order or done or such jury’s precluded finding from probability that the ver- therefore a reasonable trial influenced er- court’s error harmless. affected or trial dict was Marion Health Care Tennant v. ror.” B. Inc., 97, 111, Found., S.E.2d making In this determina- Admissibility Diagram Accident tion, must reviewing court ascertain also that the Plaintiffs contend trial “ likely about ‘grave it has doubt whether excluding of a portion court dia erred ...; jury’s of an error on the verdict’ effect gram employee prepared doubt, grave does have then if a court accident, investigating course of Skaggs v. Elk harmful.” Run Coal error is indicating a statement includes location Co., Inc., 51, 71, 479 slower-moving locomotive eastbound omitted). (internal (1996) citation They time of the collision. assert regularly evidence was a record conduct special or use of verdicts activity, ed and was thus admissible interrogatories pursuant Va. R. written W. exception hearsay R. under W. Va. Evid. review, generally appellate P. 49 aids see Civ. 803(6). support In of trial court’s exclu the Moore, Federal Practice 9 James W. Moore’s hearsay grounds, sion evidence of such on (3d ed.1998); however, 4.11[1][a], § at 49-11 argues “investigator was not CSX that its a particularly helpful in such devices are not accident, testify to the did not at witness repercussions assessing broadly preju the trial, position based his the and conclusion on jury. In dicial remarks made before this of the what [eastbound] locomotive on others moreover, case, interrogatory as the answer investigation.” told in him his We conclude signing percent negligence was one interpreting that court below in the erred ultimately court meaningless, since the trial 803(6) plaintiffs require Rule to establish not at ruled that the railroad was fault based personal that statement was within the the jury’s finding regarding upon the the ab knowledge investigator of the railroad who Regardless proximate sence of cause.11 diagram. made the accident conclusion, jury the still how reached its responsible diagram, The prepared found that CSX was not for the which was con- argument report by accident. Because CSX’s concern nection with an accident mandated law,12 liability provides represen- and state several advocated and federal outcome, grave crossing indicating an ultimate we are left with tation of the Fifth Street argument the the doubts about of such on relative movements of the car and train effect jury’s findings diagram the in this case. are in the We involved collision. The also justice. negligence.” King Kayak Mfg. Corp., court with substantial inconsistent 182 276, 280, (1989); every stage proceeding The court at of the 387 S.E.2d cf. Co., disregard any pro- must error or defect in the Bradley Appalachian Power ceeding 332, 342-43, (1979). affect the does not substantial rights parties. of the interrogatory in this case should have condi any upon apportionment responsibility tioned apportionment paragraph 11. The of fault 9 of finding parties that two or the more of were form, (see supra), the verdict note 7 was at best proxi negligent, negligence and that such was a superfluous, conceivably jury’s and rendered the E.g., Henry of the mate cause collision. Woods special fatally verdict inconsistent. While the 20:11, Deere, Comparative § & Beth Fault jury assigned negligence parties, to each of the (3d ed.1996). Sullivan, them, only specifical- one of was Cacoe plaintiffs apparently object not Since did below ly guilty negli- jury found the been to have form, presently assign to the verdict and do not gence proximately caused accident. respect consistency jury's to the error verdict, special directly we will address this involving compara- In cases concurrent and/or issue. negligence, jury apportion tive asked to only parties negligence fault to those whose argument for CSX conceded at oral Counsel proximately otherwise found to have caused 12. question diagram prepared injury. Importantly, "the should not be satisfying reporting requirements course degree asked to consider a defendant’s individual § state law. and federal See 49 U.S.C. until it has first considered (1994); (1998); pt. primary W. liability issues 49 C.F.R. Va.C.S.R. of the defendant’s to the plaintiff plaintiff's degree contributory § and the 150-8-2 following contains the handwritten notation instead apparently upon relied statements westward-pointing attached to a arrow: “ST. eyewitnesses. made other analogized It ALBANS SHIFTER TO 3 BLOCKS reports to accident prepared by police, #2 WEST OF X-ING MAIN TRACK.” stating that such evidence is often redacted expert, Berg, Plaintiffs’ Dr. part relied hearsay exclude statements. After the upon this in forming opinion statement his court ruling, plaintiffs made its elected not to regarding Also, the cause of the accident. put the remainder of the diagram accident plaintiffs apparently proffered this statement into evidence.14 driver, to deflect contention that exceptions, With few this Court Sullivan, Cacoe preoccupied with the evidentiary reviews rulings made a trial eastbound locomotive due to prox- its relative for an abuse court of discretion: imity crossing. CSX focused attention Virginia The West Rules of Evidence and testimony engineer of the of the east- Virginia the West Rules of shifter, Civil Bowen, Procedure bound indicating Calvin significant allocate discretion to the trial only it was 300 to 400 feet west of the Fifth in making court evidentiary procedur- crossing Street when the car was struck Thus, rulings. al rulings on the admissibil- westbound train. The put railroad con- ity of evidence ... are committed to emphasis, siderable both in its cross-exami- discretion of the trial nation of court. during witnesses and Absent a few opening and exceptions, statements, closing Court will review eviden- shorter distance tiary procedural establishing rulings locomotive was in circuit court proximity hazardous under an abuse crossing, to the of discretion and that stan- Sullivan dard. attempting was to “beat the east-

bound train.” Syl. 1, pt. McCammon, McDougal v. 193 229, (1995).

Plaintiffs, W.Va. 455 S.E.2d 788 at We have the conclusion of their case-in- chief, previously held that “[t]he action a moved to admit the of trial diagram accident in admitting court entirety. objected excluding or evidence in to the inclusion of the exercise of its regarding the statement discretion will not the be dis- location of the turbed appellate the ap- eastbound shifter court unless it locomotive.13 The trial pears subsequently court that such action ruled to amounts to an admit the dia- abuse gram Syl. 10, a of regularly pt. as record of a discretion.” Huffman, State v. conducted activity 55, 803(6), (1955), under W. 141 Va. R. Evid. W.Va. 87 541 but S.E.2d overruled excluded the regarding grounds, Bedell, statement on other the loca- State ex rel. R.L. v. 435, tion of 893; the eastbound locomotive. W.Va. Syl. The court S.E.2d see also 4, concluded that pt. Riggle this statement was “third- v. Allied Corp., Chem. 180 W.Va. hearsay” 561, (1989). upon hand However, based the fact that the 378 S.E.2d 282 “[a]n preparer diagram, Green, of the interpretation G.A. Virginia did of the West Rules of directly question, observe the accident in presents question subject but Evidence a of law 13. Plaintiffs asserted at stipu- during trial that CSX had argument.) oral appar- The circuit court lated to the fact that if a custodian of the rail- ently proceeded assumption, on the same since it witness, reports road’s accident were called as a admitted diagram. the balance of the accident testify he or diagram ques- she would that the stress, however, opportunity We take this that Green, prepared by tion was Mr. G.A. a CSX Virginia Rule 23.05 of the West Trial Court Rules employee, in connection with his routine investi- ordered, provides: now stipu- “Unless otherwise gation of the collision. While CSX stated at trial writing, signed by lations müst parties be in the stipulate that admissibility it did not to the of the counsel, making promptly them or their filed never, diagram, the railroad has either before the with the clerk.” arguments trial court or in its brief or directed to Court, plaintiffs’ representation. contested reject argument 14. We out-of-hand CSX's that proceed upon assumption We therefore that plaintiffs present waived the claim of error necessity plaintiffs CSX waived calling of withdrawing diagram. the remainder of the which, report, custodian of the accident at the least, clearly objected Plaintiffs very any to the trial court’s ex- obviated need to authenticate the regarding clusion of the produced record or show that it statement was in (Coun- eastbound locomotive, regularly course a activity. conducted and it is this exclusion of evidence sel point they for CSX in fact challenge appeal. conceded the latter that on (6) con- 1, regularly Syl. pt. Gentry v. it was made review.” to de novo practice. activity regular a See

Mangum, ducted (1995). Thus, ruling on the Cleckley, “a court’s trial 2 Franklin D. Handbook generally testimony is reviewed for admissibility § Lawyers 8- Virginia West on Evidence for discretion, to the extent the ‘but ed.1994). abuse of (3d 3(B)(6), at 223 interpreta- on an ruling turns court’s [circuit] the trial focus here is on whether Our Rule Evidence Virginia] of a [West tion by excluding the statement court erred Sutphin, plenary.”’ State our review is appellant’s question asserted basis 560, 466 S.E.2d 195 W.Va. re- satisfy the foundational failure to fourth (citations omitted); (1995) see also State 803(6), quirement Rule that the informa- Quinn, 490 S.E.2d from a set in the record be derived tion forth ruling court’s circuit Because the knowledge. with source re- upon legal conclusion grounded a was requirements of garding foundational requirement The statements 803(6), de novo review Rule we undertake must be derived from contained a record ruling court’s whether determine W. knowledge is a reflection of sources with upon permissible interpretation of based Advisory R. Committee Va. Evid. 602.16 this rule. Notes to Fed.R.Evid. 803 make clear admitted evidence be Before dispense! with the [does not] ] “this rule ... R, 803(6),15 proponent under W. Va. Evid. requirement knowledge.” Con of first-hand (1) evidence is must demonstrate that such Rule sequently, to be under admissible record, memorandum, compi or report, data 803(6), in a must the matters set forth record (2) acts, lation, form; concerning personal knowledge either based (3) events, conditions, diagnoses; opinions or recorder, knowledge or the matters set made or near time information, who supplier the recorded (4) forth; transmit by, or from information transmitting together with those involved knowledge those by, person ted recorder, matters; (5) acting must be rou kept in final the record tinely accuracy.17 activity; duty and under a of regularly of and course a conducted 803(6) 803(6) problem provides: does eliminate the of Rule 17.Rule not 15. multiple hearsay: participant in the chain "Each following not excluded the hear- are ob that created the document—from the initial rule, say though even the declarant is available server-reporter the entrant —must be act to final aas witness: ing regularly in course the conducted the of business, must the test or the evidence meet of (6) Regularly of Conducted Activi- Records hearsay exception. un some other The reason record, memorandum, ty. report, or data —A derlying exception fails the business records if events, form, acts, any compilation, con- in of participants pattern of outside of the is the ditions, opinions, diagnoses, made at or or Marga regular activity.” 5 B. Weinstein & Jack by, near time from information trans- the or Berger, [4], A. ret Weinsteins Federal Evidence kept by, person knowledge, a with if mitted (Joseph McLaughlin § 803.11 M. 803-69 regularly the of a conducted business course ed., ed.1999); 2d see also United States v. Bueno- regular activity, practice and if it was the Sierra, 375, (11th Cir.1996) n. 10 99 F.3d 379 activity to make the memoran- business (“[E]ach possession the link in chain must dum, record, report, compilation, all or data satisfy requirements the of the business records testimony shown custodian or hearsay exception exception or some other to (he witness, qualified unless other source of Thus, rule.”) omitted). (citation as the circuit or information or method circumstances of correctly perceived, hearsay court statements preparation indicate lack trustworthiness. police reports are inadmissible contained paragraph The term as used "business” duty report. where See 2 the declarant has no business, institution, association, pro- ("Wheth 3(B)(6), includes Cleckley, supra, § at 227-28 8— kind, fession, occupation, calling every and by police dispatcher] is [a er ... record made a a profit. entry may whether or not conducted determined business well be duty give caller to such information and provides part knowledge Rule 16. 602 in relevant that "[a] whether the caller had first-hand may reported.”); testify actually witness a evi- to matter unless were see also facts that 1429, Snyder, support dence introduced a find- v. 787 F.2d 1434 sufficient United States denied, 836, (10th Cir.), personal knowledge 479 U.S. 107 S.Ct. that the witness cert. has 134, (1986) ("although entries a matter.” L.Ed.2d complexities Evidence, Because of the inherent al Rules of Judiciary Senate record-keeping processes, in modern howev Committee stated understanding that “[a] 803(6) er, knowledge element of sufficient foundation ... Rule will be laid if the party liberally seeking previ construed. This Court to introduce has the evidence is ously able to show that it respect hearsay regular practice noted with was the other activity exceptions memorandums, contained Rule 803 that based such “[t]he reports, records, personal knowledge requirement, compilations or data upon while not minimis, person transmission from a very knowledge de is not meant to be a diffi 1277, ....” may S.Rep. (1974), cult No. standard and if at 17 reprint- be satisfied it is likely ed in 1974 proves more than not that the U.S.C.C.A.N. evidence 7063. percipiency of the declarant.” State v. As numerous federal applying courts Rule 569, 578, Phillips, 194 W.Va. 461 S.E.2d 803(6) concluded, have require “there is no (1995) alia, (citing, inter W. R. Evid. Va. person ment that the whose first-hand knowl 104(b)). Whether a statement contained in a edge was the basis of the entry [record] be record is based a source with knowl identified, long so as it entity’s was the ... edge “may appear from ... [the declarant’s regular practice get information from such or statement] be inferable from circum Int’l, person.” Saks Inc. Export v. M/V Advisory stances.” Committee Notes to (2d Champion, 1011, 1013 Cir.1987); 817 F.2d Fed.R.Evid. 803. Farms, Inc., see also Munoz v. Strahm (Fed.Cir.1995); F.3d 503-4 Baxter McCormick discusses the inferential means Corp. Inc., Healthcare Healthdyne, knowledge which the requirement of Rule (11th Cir.1991), F.2d 803(6) vacated and may be satisfied: per dismissed stipulation, 956 F.2d 226 proof Direct the maker of the (1992); Co., White Indus. v. Cessna Aircraft knowledge may statement had actual F.Supp. (D.Mo.1985); 1059-60 difficult, impossible and even be Lieberman, 95, 100 United States v. 637 F.2d prove specifically identity of the infor- (2d Cir.1980) (“direct proof of actual knowl mant knowledge. with actual Evidence edge person making the record or duty it was someone’s business providing the information required, is not organization’s routine to observe the requisite knowledge may be inferred prima matter will be facie sufficient to es- from the fact that it was someone’s business knowledge. tablish actual This does not information”); to obtain such United States dispense personal with the need for Ahrens, (8th 530 F.2d 784 n. 6 Cir. knowledge, permits but proved by it to be 1976) (Rule 803(6) require personal “does not practice evidence of reasonable as- knowledge of the maker of the record aas sumption general practice was fol- precedent condition to its admission into evi regard particular matter, lowed with to a dence”); Morris, 730, Stone v. 546 F.2d 738- by appropriate or other circumstances. (7th 1976). 39 Cir. Braun, al., 2 Kenneth S. et McCormick on (John 290, ed., § Strong Thus, Evidence at 275 W. satisfy order to the knowl ed.1992) (footnotes omitted); 4th edge requirement 803(6), see also 5 party of Rule Margaret Jack B. Berger, seeking Weinstein & A. may to admit such evidence establish 803.11[4], (1) § Weinstein’s Federal Evidence at preparer either that the of the record had ed., (2) (Joseph McLaughlin knowledge 803-71 M. 2d reported; ed. of the matters or 1999) (“The person name of the reported whose first- that the information was transmit knowledge entry by hand was the person knowledge basis of the ted with who was long need not regular acting regularly be known so as the in the course of a conducted (3) practice get activity; was to the information from regular practice or that it awas (footnote omitted). person.”) activity rely upon At the time of the communications 803(6) incorporated Rule was persons knowledge. into the Feder- from with See In Re police investigating report by parties or officer’s which re- statements made to the officer third not”). sult from the officer’s own observations and duty may report under business no ], 803(6) knowledge may be admitted [under Rule

648 preclude where ei Litig., does not admission Antitrust Japanese Electronic Prod. Cir.1983) (3d circumstantial 238, (citing Zenith ther the record itself or other 723 F.2d 288 Co., necessary provide Elec. Indus. foundation. Corp. v. Matsushita factors Radio (E.D.Pa.1980)), 1190, “testimony 1237 rev’d or F.Supp. of the custodian other 505 nom., Elec. grounds qua sub Matsushita a sine non of qualified on other witness is not Co., Corp., 475 admissibility Ltd. v. Zenith Radio Indus. case where the occasional 538 L.Ed.2d qualification 106 S.Ct. 89 as a record can be met U.S. business (1986), abrogated grounds, evidence, on other by by a ... circumstantial or com Pfeiffer Dist., F.2d Area 917 v. Ctr. School Marion circumstantial bination of direct and evi that the cir- 779 We therefore hold Corp. Zenith v. Matsushita dence.” Radio in inter- 1190, 1236 as a matter of law Co., Ltd., cuit court erred F.Supp. Elec. Indus. requiring singularly as preting this rule (E.D.Pa.1980), grounds, on other modified plaintiffs prove preparer (3d Cir.1983); also 723 F.2d 238 see United Green, personal diagram, Mr. had (7th accident Franco, v. F.2d States concerning knowledge location of Kail, Cir.1989); United v. 804 F.2d States at the time of shifter locomotive eastbound (8th Cir.1986); v. Indus. White Cess the collision. Co., 1060; F.Supp. at na see Aircraft Berger, generally supra, & Weinstein handicapped determining wheth- We are 803.11[1], Thus, § to -60. 803-59 er trials court’s exclusion of this evidence 803(6) required by foundation Rule be (i.e., grounds whether supportable on other evidence, established circumstantial or knowledge plaintiffs otherwise satisfied the and circumstantial 803(6)) a combination direct of Rule the fact that requirement evidence. parties stipulated that a custodian of the question required to testi- record not case, In this two factors create a alone, fy. inclined to this basis we are On strong regular inference had a that CSX by plaintiffs failure to demon- excuse practice predicating reports accident diagram that the accident was based strate First, plaintiffs’ first-hand information: ex upon knowledge. a source See United Berg, pert, Dr. testified that is standard (4th Saunders, 886 F.2d States investigators to procedure for railroad inter Cir.1989) (stipulation police reports were following a locomotive their in view crew kept “records that are maintained and Importantly, in an Rule volvement accident. customary records” ne- normal and business 803(6) requirements permits the foundational trial); their admission at Hard v. cessitated testimony “shown of the custodi (E.D.Pa.1975) Stevens, 65 F.R.D. 639-40 qualified record] or other witness.” [of waiving necessity calling (stipulation custo- added.) (Emphasis qualified “A witness is estopped party dian records from chal- partici required personally ... to have lenging hospital admission of record based pated or observed the creation of the trustworthiness). Nevertheless, upon lack of ..., actually or who document know record require- knowledge we are satisfied ” ed the information .... United States 803(6) here, met based ment Rule. (citations Franco, F.2d at 1139 and inter give circumstantial factors that rise omitted). Rather, quotation nal marks an that the contained inference information only be foundational witness “need someone diagram in accident derived from was knowledge procedure governing of the knowledge. sources with and the creation maintenance records 803(6) sought Rule evidence is not to be United States v.

While admitted.” (7th Fairchild, 678, Cir.1985), self-authenticating, see 776 Keplinger, State v. F.2d 693 147, denied, 137, 110, 1183, 106 2919, 120 476 171 298 cert. S.Ct. 91 W.Va. S.E.2d U.S. (1986).18 (1982) (“in Berg’s no of this instance records L.Ed.2d 548 Doctor testimo themselves”); accident-investigation proce prove ny regarding B. v. Acker kind Daniel (1993), man, 1, 6, 1, provided proof 190 435 6 dure circumstantial that the W.Va. S.E.2d 104(a), determining admissibility 18. of records the rules of W. Va. R. Evid. In evidence. 803(6), 1101(b)(1). a bound under Rule trial court is not 649 diagram likely upon was in- demonstrating accident based of circumstantial evidence provided employees practice obtaining formation CSX a both routine informa- personnel involved the accident. from tion railroad involved acci- dents, organization-wide duty and an to ac- support- The second circumstantial factor curately report mishaps, there was a diagram the accident is admission of to sufficient foundation warrant admission of personnel engaged fact that the re- CSX entirety. diagram the accident in its porting the collision—from the locomotive employ- crews involved in the accident to the During argument oral CSX as responsible preparing ee for the accident dia- ruling proper serted that the trial court’s acting gram duty accuracy. under a —were the statement within contained required accurately Railroads are to record diagram untrustworthy. A trial court is report concerning grade- and information entrusted with considerable discretion to ex crossing 225.11, §§ accidents. 49 C.F.R. that, although clude evidence it satisfies the 225.19(b) (1998); § W. Va.C.S.R. 150-8-2 803(6), requirements foundational Rule (1984). regulations Federal also mandate trustworthiness; however, otherwise lacks adopt as and comply railroads such CSX entirely is clear the court below was plan” per- with written “internal control attempting to exercise its discretion accidents, taining reporting and that Moreover, regularly manner. record of they among employees disseminate their “[a] activity conducted that meets the foundation policy declaring statement the railroad’s 803(6) requirements presump al of Rule complete to accurate commitment and re- tively trustworthy, prove and the burden to accidents, incidents, injuries porting of all proffered generated evidence was arising operation ... from the rail- untrustworthy under circumstances rests road, compliance [and] to full with the letter upon party opposing its admission. See spirit and Federal [the Railroad Adminis- Syl. Fairchild, pt. State reporting regulations.” tration’s] accident (1982) (“Records 298 S.E.2d 110 made rou 225.33(a)(1) (1998). § legal duty C.F.R. The tinely in regular ... course of business imposed upon effectively duty creates a reliable, generally trustworthy are employees reliably to report accidents. ought to be prop therefore admissible when Indeed, employees individual railroad are verified.”); erly Syl. pt. Hess v. Arbo subject possible pen- criminal civil cf. and/or (1988) gast, 180 causing alties for violate railroad to (“Under 803(8)(C), R. Evid. the con W. Va. reporting requirements. mandated report public of a or document are ... tents 21311(a) (1994); § § U.S.C. C.F.R. 225.29 trustworthy, oppo assumed to be unless the report report nent establishes that the report pre A or record other sufficiently untrustworthy.”).20 pared organization19 an in routine com par- presumption The of trustworthiness is pliance prima with state federal law is and/or where, ticularly here, 803(6), robust as record is facie sufficient under Rule where the party prepared who it. imposed by give such law adverse Com- duties rise Inc., F.Supp. regular practice pare Transp., inference that it was a Yates v. Bair (S.D.N.Y.1965) (trustworthiness or report base the record first-hand Therefore, knowledge. light they we hold that medical enhanced fact that records prepared by government organiza Advisory 19. Committee other if 'the information or circum- sources of denied, "cert. U.S. 99 S.Ct. " lack stances indicate of trustworthiness.’ See (1979) (governmental L.Ed.2d 288 functions Japanese also In Re Electronic Prod. Antitrust could be within the definition of included broad (burden Litig., proving at 723 F.2d un- 803(6)"). 'business' in Rule upon party opposing trustworthiness rests sion). admis- proximity of the they regarding the assertions behalf party on whose were adverse collision, Hoffman, at the time of the v. locomotive with Palmer second prepared), were 477, 481-82, 109, 114-15, interpretation 63 S.Ct. find that the trial court’s we 318 U.S. (1943) (report 803(6) of train preparer of a requiring 650-51 L.Ed. Rule as days engineer two prepared activity regularly accident conducted record of a railroad favorable to regarding after accident con- knowledge its personal have contempla- made in as deemed inadmissible tents, admit concomitant refusal to and the litigation). tion regarding the location the statement locomotive, was reversible shifter eastbound anything suggest pointed CSX has error.21 under report prepared own was that its The fact circumstances. questionable question in was adverse to diagram III. signifi unquestionably originator provides Also, reliability. the trustwor cant indicia CONCLUSION by the record is bolstered thiness of this stated, judgment For the reasons preparation, which purpose for its ultimate County is of Kanawha the Circuit Court require satisfy reporting federal

was new hereby and remanded for a reversed Baker, 526 F.2d Lewis v. ments. See opinion. with this trial consistent (2d Cir.1975) (fact that railroad was 473-74 report file accident with the ICC required to remanded. Reversed and report “sufficient indicia of trustworthi gave record). be admissible as business ness” to WORKMAN, Justice, dissenting: any fail to discern basis therefore

We 1999) (Filed July regard that the statement which to conclude major- respectfully of the eastbound shifter was with the ing the location I must dissent untrustworthy. ity’s conclusion that reversible error committed, ruling on first the trial court’s Finally, argues that error in admissibility of a statement contained of this related to the circuit court’s exclusion second, investigative report, railroad in cumula was harmless that was evidence during closing argument by counsel for CSX presented at trial. tive of other evidence addressing in the effect of and several indicates, however, Our review of record liability. relating only at trial that the other evidence at position of the eastbound locomotive significant in serious and error most testimony the accident was the the time of majority’s opinion groundless deter- is its engineer, state Calvin Bowen. Bowen’s making mination that the trial court erred inconsistent, on were since ments this issue evidentiary ruling concerning the admis- point indicated that his locomotive at one he portion of a Before sion of document. to 400 feet from the Fifth Street was 300 prob- proceeding to discuss the substantive occurred, crossing when the accident while majority position, I must first lems with the “just he stated that he was east another procedural path em- point out a flaw the (which crossing” can Second Street ployed by majority in its review of this away far three blocks from construed as evidentiary rulings issue. It is axiomatic collision). apparent the site of the Given this under an abuse of discretion are reviewed testimony, find contradiction Bowen’s we Syl. McDougal Pt. standard. See no merit in assertion that the state CSX’s McCammon, 229, 455 diagram harmless ment contained (1995); Part- Wintergreen see also West ly cumulative of other evidence. (4th Cir.1990) (un- ners, Inc., F.2d (stating Thus, published opinion) that “determina- importance on the of the evi- based proponent has met the testimony tion of whether the question support dence rec- requirements foundation business plaintiffs’ expert, as well as to deflect CSX’s refusing grounds, to instruct the we cuit court erred 21. Because we reverse on other liability. plaintiffs’ cir- strict decline to claim that the address exception representation the circum- strates that ords and whether fails to accu- rately stances indicate a lack is depict trustworthiness grounds the full for the trial left to the sound discretion the trial ruling. court’s While the trial court did rec- judge”). the inherent To circumvent limita- ognize preparer that the document’s lacked placed appellate tions on an court with re- personal knowledge concerning descrip- evidentiary gard ruling, ato trial court’s tive information about the location of the majority argument has constructed that locomotive, eastbound the trial court’s stated evidentiary ruling, de novo review of the as a ruling basis for its was the “third-hand hear- whole, permitted based on the trial say” problem by presented the information improper application court’s of the business reliability presented and the inherent lack of hearsay exception. Gentry records See v. by hearsay. majority disingenu- The 512, 518, Mangum, 195 W.Va. 466 S.E.2d ously omits reference to decisive comments (1995) (stating party that “[a] chal- made concerning trial court the basis lenging evidentiary rulings circuit court’s ruling' for its investigatory on the railroad has an a reviewing onerous burden because report and further omits reference to the gives special court deference to the evidentia- inherent discretion is that built into Rule court”). ry ruling's majority circuit The 803(6) Virginia of the West Rules of Evi- cites this Sutphin, Court’s decision State v. (hereinafter 803(6)”). dence “Rule (1995), support preferred approach reviewing significantly, majority Most circum ruling trial court’s on a de novo basis. 803(6) language scribes critical Rule that however, Sutphin, depart does from uti- completely determinative the evidentia lizing reviewing abuse of discretion as the ry presented issue The below. business rec evidentiary rulings; merely standard for hearsay exception permits ords the introduc recognizes appellate permit- that an court is regularly tion of certain conducted business fashion, plenary ted to review in the limited activities “unless the source of information aspect interpretation of the trial court’s of an prepa or the method or circumstances of Critically, evidentiary the full rule. review ration indicate lack of trustworthiness.” permitted evidentiary interpreta- of an rule’s 803(6), part, (emphasis sup W.Va.R.Evid. tion the trial does not court alter the plied); P. Gregory Joseph, see also Ste abuse of discretion that standard controls all phen Saltzburg A. and Trial Evidence Comm. evidentiary rulings. This is made clear Litigation, of the ABA Sec. of Evidence in Sutphin’s pronouncement, which follows its America, (1987) (observing Rule 803 at 43 recognition plenary evidentiary review for “[p]erhaps significant founda most issues, interpretational “we will not dis- requirement tional is trustworthiness” and evidentiary rulings turb the absent an abuse [803(6) contemplates judge ] “rule of discretion trial court.” Id. at will if the exclude document source of majority completely 466 S.E.2d at 411. The the information it or the contained method thus, misses this distinction and its decision preparation or circumstances of its indicate a completely dispense with the abuse of trustworthiness”); see lack also Munoz v. fatally discretion review standard of (Fed. Farms, Inc., Strahm F.3d flawed. Cir.1995) (stating “[r]eliability is the ba only majority Not is the mistaken with admitting sis for evidence under the business regard applicable standard of review exception”). records The Second Circuit suc majori- and how applied, the same is but the Intern, cinctly recognized in Saks Inc. v. ty characterizing errs the trial court’s (2nd “Export Champion”, F.2d 1011 M/V ruling evidentiary being issue as Cir.1987), principal precondition that “[t]he “grounded upon legal conclusion regarding admission of documents business rec requirements foundational Rule 803(6) pursuant 803(6).” ords to Fed.R.Evid. is that suggests majority that the sole the records have sufficient indicia of trust ruling basis for the court’s lack trial personal worthiness to be considered reliable.” Id. at knowledge pre- on the document parer’s part. A review record demon- 1013.

652 language by the is fact that such information used notation the

Ignoring plain the clearly being prove hearsay that and is offered to regard to its court with conclusion trial liability.2 the ultimate issue of Since the trustwor at issue not the information hearsay, multiple hear document itself is that “it is majority states instead thy, the by say problem presented the document’s entirely the below was that court not clear originated that from inclusion of information in this attempting to its discretion exercise gives party. majority lip the a third While the makes clear that manner The record 803(6) proposition to Rule service the that on its ruling was indeed based trial court’s hearsay problem of within does not solve the lo the handwritten train that determination very hearsay, utterly apply it fails to the law report on the details included railroad cation concerning hearsay multiple it cites to which not due to their “third-hand were reliable presented by this Baxter the facts ease. See pressed, hearsay” origin. the trial When Inc., v. 944 Corp. Healthdyne, Healthcare “Well, ruling: explained I’ve its court (11th Cir.1991) (stating that F.2d 1577 reliability. It’s on it a lack passed as to 803(6) not eliminate a double “Rule does hearsay, only hearsay, and knows no one hearsay problem unless the informant’s adjustor [’s the the claims what basis excep to the also conforms one of statement regarding was].” train location notation vacated, against hearsay”), to the rule tions the have to How much clearer does court (11th Cir.1992). illustrate, F.2d 226 To 956 court, The trial as the its rationale? state majority evidentiary first cites the as the redaction, majority likened the recognizes, sumption which underlies the admission of reports required, police it to that of requiring “[e]ach that business records typically re hearsay are where comments participant in chain that created the doc the reports before the are introduced moved observer-reporter initial ument —from the to United v. Saun into evidence.1 See States acting final entrant —must be the (4th Cir.1989) ders, (holding 886 F.2d regularly course conducted business police by made to officers that statements underlying rec ... The the business reason duty no re parties third under business to exception participants ords if fails port are not under business rec admissible regular activity.” pattern is outside the King exception); Burger ords Ramrattan v. Margaret Berger, B. Weinstein & A. Jack (D.Md.1987) (uphold Corp., F.Supp. 522 § 803.11[4] Weinstein’s Federal Evidence ruling por in limine that ing trial court’s (2d ed.1999) (emphasis supplied). 803-69 police report containing tions of statements Continuing law, applicable recitation of witnesses inadmissible wit were because majority recognizes “hearsay state acting in regular were course of nesses not police inad reports ments contained are statements); making business United duty missible where the declarant has no (9th Pazsint, 703 F.2d 420 Cir. States report” and even cites case decided 1983) (ruling tape-recorded made calls Circuit, acknowledging that “state Tenth police reporting defendant’s witnesses to [police] ments made officer third call actions were not business records since report parties duty under no business duty report ers were under business 803(6). not” be admitted under Rule United judge’s po police). The trial use of the (10th F.2d Snyder, States report analogy lice demonstrates that Cir.); denied, cert. U.S. S.Ct. hearsay concern was in court’s fact 134, 93 the facts L.Ed.2d 78 When presented by problem descriptive infor are these applied this case well-established mation. requirements for admission as a business record, evidentiary problem pre- necessary The crux of the it is clear that the elements investigator’s descriptive present. are not sented hearsay too and 1. The trial court stated: are much let the balance jury. come in benefit that for the it serves judge got The a little on these has discretion n reports. Department accident We allow in disputes descriptive one 2. No informa- Safety’s police extremely pertinent of Public accident other tion was to the ultimate issue liability. reports, portions we redact certain accident, prepared analysis employed by employee the railroad who Since ma- issue, Green, report jority Mr. was not majority, 6.A. would be correct. how- accident, only present ever, at the time of the the reaches that its conclusion the source of way descriptive he could have obtained the critical information was a railroad em- regarding information the location of the ployee solely by Appellant’s inference. Since speaking from eastbound locomotive was expert routinely ques- testified that railroads parties. Obviously, third those third with employees railroad when investigating tion duty parties were under no to accu- business accidents, majority leaps to the conclu- rately report their observations. Therein that descriptive sion the source of the com- problem by the trial lies the faced court —an necessarily employee. ments was a railroad inherently consequently unknown and unreli- The weakness of this inference is further provided declarant able have critical by majority demonstrated the fact that the descriptive Mr. information to Green. With- requires part as necessary of the elements to knowing anything where that de- out about 803(6) satisfy Rule “that the information re- at of the clarant was the time accident and ported person was transmitted with details which would aid in deter- additional knowledge, acting who in the was course aof mining provided whether the information to regularly activity.” (emphasis sup- conducted trustworthy, Mr. Green was the trial court plied) duty accurately report, Since the properly predicate determined that basis reliability, and hence the inference arises admitting records under the business rec- for prepared from information is “in exception reliability—was missing ords — regularly activity,” course of a conducted it is regard descriptive to the information con- employed analysis critical to the the ma- cerning the location of the eastbound locomo- jority descriptive that the source of infor- tive. Had the trial court determined that the mation relevant to the accident had to have investigative all, report not come in at could employee. a railroad been As McCormick majority properly then the have would had a observes, any process person “[i]f is denouncing foundational basis for the trial acting in regular not course of the busi- personal reliance on court’s lack knowl- ness, then an essential link the trustwor- edge excluding as a basis for the documenta- fails, just thiness chain as it does when the ry evidence. But that not what occurred is person feeding the information does not have in this case. The trial never court made a firsthand knowledge.” McCormick on Evi- ruling that the record in issue was not a ed.1992). (4th And, § yet, dence 290 at 274 record or it could not business come utterly record is devoid evidence proper lack for foundation. The trial supports majority’s assumption recognized investigative court this railroad supplier that the to Mr. information Green report for the business record that it was. employee. proceed To was CSX further, step the trial But court went a as it conclusion, majority, that ade- does do, required and determined that a guarantees quate of trustworthiness were portion of the document not be could deemed present merely suggestion Appel- on the reliable, as it was based on “third-hand hear- expert origin lant’s as to the of the informa- say.” Jennings, Meder v. & See Everest simply appellate prudent tion review. Cir.1981) Inc., (8th (holding 637 F.2d 1182 Especially of whether when the issue police report regarding cause of accident duty accurately declarant under a inadmissible record as business because critical, report the information was as it is source of information was unknown as was here, the admission information concerning information when or under what 803(6). provisions under the of Rule circumstances information was obtained from source). sought majority Just as the to reward the Appellants proverbi- with another bite provided adequate

If the record basis “apple” by finding al error concluding supplier unknown reversible that the mentioning of and several descriptive the crucial was in fact the effect information liability, majority employee turn so too find revers- a railroad who in was under a does the duty accurately grounds routinely report the details of the error on ible differently had that it would have ruled a determination revers

properly prohibit thus, R.R., ignored trial court and Grogg v.. Missouri Pac. been the ible error. See Cir.1988) (8th (upholding evidentiary rulings trial right trial make F.2d 210 court’s stating document subject only of railroad stan- court’s exclusion to an abuse of discretion date of was broken on brake that air hose dard review. grounds that no evidence was accident on I the fact that the am further concerned provided person who informa presented that carelessly majority has this case to used act in railroad document was tion recorded presumption into insert a of trustworthiness business); City regular course of of rule. the records Whereas business Illuminating Elec. v. Cleveland Cleveland previously recognized that busi Court has (N.D.Ohio 1980) (hold Co., F.Supp. 1257 538 generally trustworthy, records are State ness City listing prepared by reports that Fairchild, 137, 171 110 v. 298 S.E.2d and reasons customers who canceled service (1982), quite thing to elevate it is another were admissible as busi for cancellation not presumed records to a level business of not under as customers were ness records especially of con trustworthiness. This hearsay); duty City and comments were you presumption the cern when consider Corp. First Square v. Wisconsin Juneau light majority’s the disinclination towards of (E.D.Wis.1979) Bank, F.Supp. 451 Nat’l 475 excluding hearsay from a obvious evidence ruling in antitrust (upholding trial court’s clearly business record —evidence that would inadmissibility no lawsuit on of handwritten being not admissible if it were offered be 803(6) Rule on tations under based absence Vance, at independently. See 633 S.W.2d testimony concerning the source of the of (discussing police 444 that officer could fact and evidence that such notations notations testimony concerning provide trial hear regularly in course of were made conducted say report sought to be evidence contained business); Vance, 633 S.W.2d 442 State similarly pro admitted as a business record (holding (Mo.Ct.App.1982) trial court hearsay of evidence di scribed introduction correctly police refused admit accident report). very rectly from The concerns that exception report under business records Douglas espoused in Justice Palmer v. Hoff did not accident as

where officer witness man, 109, 477, L.Ed. 645 318 U.S. 63 S.Ct. 87 hearsay); information was inadmissible (1943), ad the seminal case which first Co., Aetna & 51 accord Kuhl v. Cas. Sur. the of a statement dressed issue whether 996, 1002(1982), 476, Md.App. aff'd, 443 A.2d given by engineer following a the train’s (1983); 296 Md. 463 A.2d 822 McCor accident as a railroad could be introduced mick, § (recognizing 324.1 at 368 that with record the Federal Records business under regard police reports investiga of accident Act,3 rejecting have come home to roost. In tions, primary prepared police statement engineer’s the of admission the statement public or officer admissible as business Palmer, expressed Douglas concern Justice record, but of individuals made to 4 statements “[r]egularity preparation of would be officer, they hearsay meet another unless test of 803(6)). come the rather than character exception, Rule not come in under do the records and their earmarks of reliabili Succinctly stated, ruling court’s on trial ty.” Doug Id. at 477. Justice S.Ct. question of the document admission very astutely anticipated las that the founda ordinary evidentiary ruling, was an which is subject only exception tion records could of of business to reversal for abuse discre merely requiring sys Gentry, virtue of tion. See 195 W.Va. at eroded predicate majority simply record-keeping at 177. The decided tematic basis Supreme applied The at 4. Court in 3. federal Act issue in Palmer was The rationale 695; not have § Palmer was the statement could U.S.C. statute in effect is 28 current “regular properly said to have made in the been recognized § U.S.C. Sec As meaning course of business” within the of Lieberman, ond Circuit in United States § as the railroad's business was to U.S.C. (2d Cir.1980), F.2d 95 differences between railroad, employees' run the but not to record its the 803(6) Business Act Federal Records and Rule U.S. 63 S.Ct. versions of accidents. 318 at significant. 637 F.2d at n. 7. are not 477. jury admission business records rather than because the found no as to properly focusing more critical trust of the defendants. Id. at 376 S.E.2d at worthiness 592. element:

Any by installing regular sys- business Just as the error was deemed harmless recording preserving tem for its ver- Valentine, any error that occurred in the potential- sion of accidents for which it was similarly instant case fell into the “harmless ly qualify reports liable could those under category. error” Unlike the fact finders Act. Valentine, The result would be that the Act in this case did return any system recording cover would finding negligence. The verdict it- form provided ‘reg- or self, however, events occurrences it was demonstrates no revers- though it nothing ular’ and had or little ible closing error occurred as a result management operation argument do with or discussion lia- several probability bility. the business as such.... The substance defendant CSX’s they comments trustworthiness records because at trial which presently are day day were routine issue was that if the railroad was found to be reflections of percent operations negligent, a even one forgot- business luould be it could held be responsible ten the basis the for the Signifi- as rule. entire verdict. cantly, the verdict form indicates the that 113-14, (emphasis 318 U.S. S.Ct. jury did fact percent negligence assess one supplied); Kaufman, see also Bowman v. against Thus, the it railroad. is clear that (2nd Cir.1967) (observing F.2d that closing argument by the comments made liberal construction of federal business rec- jury not CSX did dissuade the from assess- any particular ords act “does mean that negligence Thus, ing against CSX. the com- record be business admitted without ment, although erroneous, obviously caused carefully scrutiny reliability of its for the no harm to the plaintiffs. evidence”). purpose for which it is as offered Apparently, day Doug- majority goes the rued astray Justice Where the is to as- regularity prepara- jury las—when of document sume that because the that determined supersede tion would for against concerns trustwor- the it assessed proximate- already accident, thiness —has arrived. not the cause of the this secondary proximate determination of causa- I disagree While do not majority’s with the necessarily tion joint the affected and a jury determination that should not be ad- liability Only by proceed- several comments. joint vised as effect that and several ing analytical path tying down this the liability will I part have on its verdict. must joint liability and several discussion the to ways majority’s with the determination that jury’s proximate causation determination required in reversal is this case based on the majority conceivably the could reach re- its closing argument ap- comments. The better sult-oriented determination that reversible proach, and the one is consistent with But, conclude, error occurred. to as previous rulings concerning this Court’s this does, majority and discussion issue, to applied is follow the rationale we liability impermissibly several an preju- had Co., Wheeling Valentine v. Electric jury’s dicial affect on the determination re- 376 S.E.2d 588 When garding proximate only causation not re- analogous faced with the issue whether quires suspension principles logic, error reversible was committed instruct- but also demonstrates a clear disdain for the ing jury concerning fact jury’s ability to and such hear decide issues. company defendant electric could be held Furthermore, clearly such conclusion is con- responsible if the entire verdict even tradicted the record this case.5 other to tortfeasors were found have been negligent, only majority this Court determined that logic al- Not did the leave out error, though it was such error was approach, addressing harmless but rather than jury completed jury reject plea 5. Since the a verdict form where- chose to railroad's not to find percent liability against grounds in it indicated an assessment of one that it it on would CSX, liability against pay it stands to reason that to entire forced for the verdict. showing for well-estab- liability against this Court is percent finding of one jury’s appellate The principles of review. lished that find- CSX, majority dispensed with to dis- which the Court chooses ease with “meaningless.” as by characterizing it valid legal precedent and pense with both review, jury appellate of sound As a matter disheartening jury both determinations discarded rulings not be should alarming. approach have an can Such far better callous fashion. casual and impact, negative. Both and that is but one jury’s rulings, espe- accept practice is judicial system, profession and the legal here, Appellants failed to cially, when whole, immeasurably from the will suffer as a jury form below object verdict justice that is cur- brand result-oriented presented the issue similarly failed raise being dispensed. rently form determinations as by the verdict to state that Justice I am authorized appeal in their this assignment of error opin- joins dissenting inme MAYNARD Thus, for the patently absurd Court. ion. arising from majority find reversible error appeal no has jury form from which verdict majority simply chose taken.6 The been for the

disregard valid determination finding er- purpose of reversible

predilected

ror. my

Finally, express I must heartfelt con- increasing regard disregard

cern with proximately percent analysis post-verdict have "What could been 6. All of this attorneys you in- injuries, any, if the plaintiffs’ in the first instance if do avoided caused the prepared below[?]”, a verdict form that volved had properly parties then it is to each of the assess nine, put Question as worded. likely quite the fact finders' determination percent any, jury, negligence, if do "What read currently subject liability be the would parties you below[?]” listed to each of assess discussion. question to read been drafted instead Had that Records 20. Notes Fed.R.Evid. 803(6) understanding 803(6), reflect the similar that “the generally are tions admissible under Rule proceeds rule the base that records made in from notwithstanding admissibility public their rec regularly activity will course of a conducted 803(8). ords under R. Evid. W. Va. See United subject authority to exclude admissible but Orozco, (9th Cir.), States v. 590 F.2d

Case Details

Case Name: Lacy v. CSX Transportation, Inc.

Court Name: West Virginia Supreme Court

Date Published: Jul 12, 1999

Citation: 520 S.E.2d 418

Docket Number: 25341

Court Abbreviation: W. Va.