STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Stacy Renee McGhee, individually FILED and as Guardian and Next Friend 

of A.H., a minor, June 17, 2016 

Plaintiff Below, Petitioner RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA vs) No. 15-0765 (Putnam County 12-C-108) 

Jennifer Renee Smith and Dale G. Smith, 

Defendant Below, Respondent 

MEMORANDUM DECISION 

Petitioners Stacy Renee McGhee and A.H.,1 by counsel Troy N. Giatras and Matthew 

Stonestreet, appeal the July 1, 2015, and June 8, 2015, orders of the Circuit Court of Putnam 

County that denied petitioners’ motion for new trial, after a jury verdict in this civil action. 

Respondents Jennifer Renee Smith and Dale G. Smith, by counsel David C. Ray, filed a 

response. Petitioner filed a reply brief. 

This Court has considered the parties’ briefs and the record on appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, the Court finds no substantial question of law and no prejudicial error. For these 

reasons, a memorandum decision affirming the order of the trial court is appropriate under Rule 

21 of the Rules of Appellate Procedure. 

On April 12, 2010, the parties were involved in a car accident on Main Street in 

Hurricane, West Virginia. Respondent Jennifer Smith was driving a vehicle that struck Petitioner 

Stacy McGhee’s (“Petitioner McGhee”) vehicle from behind. Petitioner McGhee asserts that as a 

result of the accident, she suffered injuries to her neck, back, right hip, and right foot.2 As a 

result of her injuries petitioner filed suit on April 10, 2012. Petitioner McGhee also claimed in 

her suit that her minor son, A.H., who is also a party to this suit, suffered a loss of his mother’s 

consortium due to the injuries incurred by the accident. 

1 Consistent with our long-standing practice in cases with sensitive facts, we use initials where 

necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va. 254, 773 

S.E.2d 20 (2015); In re Jeffrey R.L., 190 W.Va. 24, 435 S.E.2d 162 (1993); State v. Edward Charles 

L., 183 W.Va. 641, 398 S.E.2d 123 (1990). 

2 As discussed herein, one disputed issue at trial involved the origins of the injury to 

petitioner’s foot, and the subsequent treatment of that foot injury. 

1
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

During discovery, petitioners filed requests for admission pursuant to Rule 36 of the West 

Virginia Rules of Civil Procedure. With respect to fault for the collision, respondent Jennifer 

Smith denied that she was entirely at fault for the collision, denied that she was not paying 

attention, and denied that Petitioner McGhee did not contribute to the cause of the collision. The 

parties continued discovery in that matter, and in her deposition, Respondent Jennifer Smith 

testified consistently with her responses in the requests for admission, stating that she did not 

believe that she was entirely at fault for the collision. At her deposition, respondent claimed that 

she believed that petitioner lied about the cause of the collision in order to get money, and that 

petitioner was fifty percent responsible for the collision. 

Three days before trial, respondent Jennifer Smith filed a stipulation that stated that, 

“Jennifer Renee Smith’s negligence was the cause of the motor vehicle accident that occurred on 

April 12, 2010 at the intersection of Main Street and U.S. Route 60 in Hurricane, Putnam 

County, West Virginia that is the subject of this civil action.” Respondents admitted this 

evidentiary statement into evidence at trial, but neither respondent testified at trial. Prior to trial, 

with regard to respondent Jennifer Smith’s stipulation, the trial court ruled that petitioner’s 

counsel could cross-examine respondent as to any prior inconsistent statements. However, 

petitioner did not call Respondent Jennifer Smith as a witness at trial, and respondent did not 

testify on her own behalf. 

Petitioner Stacy McGhee testified at trial and presented the testimony of two of her 

treating physicians, Dr. Marinacci, and Dr. Smith, as well as other witnesses who testified to her 

condition. Petitioner’s expert witnesses testified that they believed the car accident to be the 

cause of petitioner’s injuries. In spite of Respondent Jennifer Smith’s admission of negligence, 

respondents still denied that Respondent Jennifer Smith solely caused the accident and 

petitioner’s injuries. Respondents presented the testimony of their own expert, Dr. Mark Younis 

who asserted that he did not believe that petitioner’s foot fracture was the result of the car 

accident. The parties also presented testimony regarding petitioner Stacy McGhee’s past drug 

addiction and rehabilitation. Respondents offered that evidence in order to disprove Petitioner 

A.H.’s loss of consortium claim, and to explain to the jury why a scheduled foot surgery for 

petitioner was re-scheduled. Prior to trial, petitioner filed a motion in limine to exclude that 

evidence. That motion was denied. 

The jury returned a unanimous verdict in favor of petitioner. According to the judgment 

order entered July 23, 2014, the original verdict returned was for the amount of $6,299.00. That 

amount included past medical expenses in the amount of $5,699.00, and $600.00 for annoyance 

and inconvenience. The trial court was of the opinion that the jury’s verdict was insufficient and 

“that the jury must award some amount for past pain and suffering,” and ordered the jury to 

reconsider their verdict. The jury resumed deliberations and returned awarding an additional 

$500.00 to petitioner for pain and suffering. 

Petitioner filed a post-trial motion for a new trial and motion for attorney’s fees and costs. 

Petitioner alleged in her motion for new trial that the trial court erred in admitting testimony 

regarding petitioner’s prior drug rehabilitation, erred by denying petitioner the right to crossexamine Respondent Jennifer Smith, and erred by allowing Dr. Younis to espouse opinions that 

were outside of his area of expertise, and not previously disclosed to petitioner. The trial court 

2
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

found that the issue of petitioner’s prior drug addiction and rehabilitation was relevant to A.H.’s 

loss of parental consortium claim. The trial court also found that it did not prevent petitioner 

from calling respondent as a witness, and that Dr. Younis disclosed in his initial expert report the 

opinion that he provided at trial - that he did not believe petitioner’s injury was the result of the 

car accident. Accordingly, the trial court denied petitioner’s motion for a new trial in an order 

entered on June 8, 2015. 

Petitioners moved for attorney’s fees, arguing that the stipulation entered by respondent 

was entered in bad faith, and that pursuant to Rule 37(c) of the West Virginia Rules of Civil 

Procedure, petitioners were entitled to mandatory attorney’s fees. The trial court denied that 

motion in an order entered on July 1, 2015, and found that respondents had a good faith basis to 

deny the requests for admission, but later stipulate as to liability, as respondent’s mother-in-law, 

who was an eyewitness to the collision, was no longer available to testify at trial. Petitioners now 

appeal the July 1, 2015, and June 8, 2015, orders of the Circuit Court of Putnam County. 

Petitioners assert four assignments of error on appeal. Petitioners argue that the trial court 

abused its discretion (1) when it failed to award mandatory sanctions pursuant to Rule 37(c) of 

the West Virginia Rules of Civil Procedure after petitioner proved respondent’s responses to 

requests for admissions were false; (2) when it permitted the jury to hear irrelevant and unduly 

prejudicial information concerning Petitioner Stacy McGhee’s prior substance abuse treatment; 

(3) when it denied petitioners the opportunity to cross-examine respondent, whose evidentiary 

statements were admitted to the jury in the form of a stipulation; and (4) when it permitted 

respondent’s expert to testify on undisclosed opinions at trial and to offer opinions outside the 

scope of his area of expertise. 

Petitioners first claim that they are entitled to mandatory sanctions pursuant to Rule 37(c) 

of the West Virginia Rules of Civil Procedure because petitioner was able to prove that 

Respondent Jennifer Smith’s responses to requests for admission were false. Because 

Respondent Jennifer Smith did not admit in her responses to interrogatories that her actions were 

the sole cause of the collision, but later in a stipulation admitted negligence, petitioners argue 

that mandatory sanctions are proper. Rule 37(c) of the West Virginia Rules of Civil Procedure 

states, 

If a party fails to admit the genuineness of any document or the truth of 

any matter as requested under Rule 36, and if the party requesting the admissions 

thereafter proves the genuineness of the document or the truth of the matter, the 

requesting party may apply to the court for an order requiring the other party to 

pay the reasonable expenses incurred in making that proof, including reasonable 

attorney’s fees. The court shall make the order unless it finds that (1) the 

request was held objectionable pursuant to Rule 36(a), or (2) the admission 

sought was of no substantial importance, or (3) the party failing to admit had 

reasonable ground to believe that the party might prevail on the matter, or 

(4) there was other good reason for the failure to admit. 

(emphasis added). Respondents counter that they had a good faith basis to deny the original 

requests for admission, in that Respondent Jennifer Smith continuously asserted that she was not 

solely at fault for the accident, and that petitioner contributed to the cause of the collision. 

3
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Respondents add that they learned prior to trial, a key witness would be unable to testify, and 

that as a result, Jennifer Smith chose to stipulate liability, in order to avoid a lengthy trial. 

We have held in regard to the decision to award attorney fees and costs: 

[t]his Court has indicated previously that in reviewing the ruling of a trial court 

with respect to costs and attorney fees in cases such as the one now before this 

Court, the standard is whether such ruling by the trial court constitutes an abuse of 

discretion. Sandusky v. Sandusky, [166] W.Va. [383, 387-388], 271 S.E.2d 434, 

438 (1981); Johnson v. Johnson, 159 W.Va. 434, [436-437,] 223 S.E.2d 195, 197 

(1976); Syl. pt. 3, Bond v. Bond, 144 W.Va. 478, 109 S.E.2d 16 (1959). 

Hopkins v. Yarbrough, 168 W.Va. 480, 489, 284 S.E.2d 907, 912 (1981). 

The record reflects that Respondent Jennifer Smith, initially denied full responsibility for 

the accident, stating that she believed Petitioner McGhee “caused or contributed to” the accident, 

in discovery responses as well as in her deposition. Further, Respondent Jennifer Smith averred 

that a change in circumstances required her to change her trial strategy-Smith’s mother-in-law, 

who was a front-seat passenger in the vehicle, and eye-witness to the accident, experienced 

“heart-related health issues” and was caring for a seriously ill family member. She further 

averred that in an attempt to avoid the possibility of her mother-in-law being called as a witness 

during a particularly difficult time, she chose to stipulate as to liability. We agree that 

Respondent Jennifer Smith had a good faith basis to initially deny the requests for admission, 

and find that there is no evidence that the trial court abused its discretion in refusing to award 

costs and attorney’s fees to petitioner. Accordingly, we decline to overrule the trial court on that 

ground. 

Petitioners’ final three assignments of error relate to the admission, or exclusion of 

evidence. We have held, 

“‘“[t]he action of a trial court in admitting or excluding evidence in the 

exercise of its discretion will not be disturbed by the appellate court unless it 

appears that such action amounts to an abuse of discretion.” Syl. pt. 5, Casto v. 

Martin, 159 W.Va. 761, 230 S.E.2d 722 (1976) citing Syl. pt. 10, State v. 

Huffman, 141 W.Va. 55, 87 S.E.2d 541 (1955).’ Syllabus Point 2, State v. Rector, 

167 W.Va. 748, 280 S.E.2d 597 (1981).” Syllabus Point 3, State v. Oldaker, 172 

W.Va. 258, 304 S.E.2d 843 (1983). 

Syl. Pt. 7, State ex rel. Weirton Med. Ctr. v. Mazzone, 214 W.Va. 146, 587 S.E.2d 122 (2002). 

We will address each issue separately. 

Petitioners first argue as an assignment of error that the trial court erred in admitting 

testimony regarding Petitioner McGhee’s prior substance abuse treatment. Petitioners assert that 

this evidence was impermissible character evidence, introduced in violation of Rule 404(b) of the 

West Virginia Rules of Evidence. Respondents counter, and the trial court found, that this was 

not inadmissible character evidence that required a 404(b) analysis, and that the evidence was 

relevant as it explained why Petitioner McGhee did not have foot surgery, which was 

4
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

recommended due to injuries allegedly sustained by Petitioner McGhee from the motor vehicle 

accident. 

We agree with the trial court that this evidence was not impermissible character evidence, 

submitted under Rule 404(b), and was relevant evidence to facts at issue in this matter. Relevant 

evidence means evidence having any tendency to make the existence of any fact that is of 

consequence to the determination of the action more probable or less probable than it would be 

without the evidence. W.Va.R.Evid. 401. In the instant case, the record reflects that Dr. Smith 

recommended that Petitioner McGhee have surgery on her foot, and that with rehabilitation, 

Petitioner McGhee would successfully recover from her injury. According to the trial court, Dr. 

Smith’s medical records indicate that Petitioner McGhee contacted Dr. Smith and told her that 

she had not taken her methadone prescription for approximately one week, and requested Dr. 

Smith’s approval to take one of her mother’s Klonopin pills.3 The record reflects further that as a 

result of that conversation, Dr. Smith cancelled the surgery, noting in her records, “I have 

recommended we cancel her surgery because she will require pain medication post-op and she is 

too fragile right now. She will likely abuse them in the situation she is now.” 

It is clear that the trial court did not abuse its discretion by admitting this evidence. The 

trial court held, and we agree, that the evidence regarding petitioner’s prior addiction was 

relevant to explain why Dr. Smith cancelled Petitioner McGhee’s foot surgery, which was 

necessary due to alleged injuries sustained during the accident. Further, the issue of Petitioner 

McGhee’s prior addiction and rehabilitation was relevant to petitioner A.H’s loss of parental 

consortium claim, as the alleged loss of consortium claim raised the issue of the nature and care 

that A.H. received from his mother in and around the time of the subject accident. Accordingly, 

we find the trial court did not abuse its discretion by admitting this evidence. 

Petitioners claim as a third assignment of error that the trial court erred by refusing to 

allow petitioners’ counsel to cross-examine Respondent Jennifer Smith on the issue of liability. 

Petitioners argue that under Rule 611 of the West Virginia Rules of Evidence, a party is entitled 

to call an adverse party and interrogate that party by leading questions. In response, respondents 

assert that due to the Respondent Jennifer Smith’s stipulation as to liability, the trial court only 

ruled that petitioners’ counsel could not question Respondent Jennifer Smith as to liability, but 

that petitioner’s counsel was welcome to cross-examine her regarding prior inconsistent 

statements. 

We agree with respondent and find no error. The trial court held, 

3 A copy of the subject medical records is not included in the appendix for review. This 

Court has previously recognized an appealing party’s responsibility to ensure that the record on 

appeal supports his/her request for relief. See Syl. Pt. 5, Morgan v. Price, 151 W.Va. 158, 150 

S.E.2d 897 (1966). (“An appellant must carry the burden of showing error in the judgment of 

which he complains. This Court will not reverse the judgment of a trial court unless error 

affirmatively appears from the record. Error will not be presumed, all presumptions being in 

favor of the correctness of the judgment.”) 

5
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

“All right. Mr. Giatras, I’m not going to allow you to cross-examine her 

on the liability issues if there’s a stipulation as to liability. And if there’s prior 

inconsistent state – I mean, I’ll give you some leeway to cross-examine about 

prior inconsistent statements because, you know, I think credibility is always an 

issue. . . .” 

In spite of petitioners’ allegation, there is simply no evidence to suggest that petitioners were 

prevented by the trial court from calling Respondent Jennifer Smith as a witness in violation of 

Rule 611 of the Rules of Evidence. In fact, the record reflects that petitioners did not attempt to 

call Respondent Jennifer Smith as a witness. Petitioners cannot now complain that they were 

prevented from cross-examining the witness, when the trial court expressly held that petitioners 

counsel could call the witness and cross-examine her as to prior inconsistent statements. We 

have held that “‘[a] litigant may not silently acquiesce to an alleged error, or actively contribute 

to such error, and then raise that error as a reason for reversal on appeal.’ Syllabus Point 1, 

Maples v. West Virginia Dep’t of Commerce, 197 W.Va. 318, 475 S.E.2d 410 (1996).” Syl. Pt. 2, 

Hopkins v. DC Chapman Ventures, Inc., 228 W.Va. 213, 215, 719 S.E.2d 381, 383 (2011). Thus, 

we find this assignment of error lacks merit and decline to reverse on this ground. 

Finally, petitioners allege that the trial court improperly allowed the testimony of Dr. 

Younis. Petitioners claim that Dr. Younis testified to matters outside the scope of his expertise, 

and that the opinion expressed by Dr. Younis was not disclosed to petitioners prior to trial. Dr. 

Younis testified that he performed a medical records review, including various x-rays of 

Petitioner McGhee’s foot, and that based upon his review of the records, as well as his education, 

training, and experience, he did not believe that the fracture was caused by the subject motor 

vehicle accident. This testimony contradicted the testimony of petitioners’ treating physicians, 

Dr. Smith, and Dr. Marinacci, who testified that the subject motor vehicle accident was the 

proximate cause of Petitioner McGhee’s injuries. 

The trial court found that petitioner was not prejudiced as the jury had the benefit of 

hearing from expert witnesses presented by both parties, and that the jury was able to properly 

evaluate the credibility of the testimony of the witnesses. The trial court also reviewed Dr. 

Younis’s initial expert report, and found that Dr. Younis stated in that report that in his opinion, 

the subject motor vehicle accident did not cause petitioner McGhee’s injuries. We agree with the 

trial court. First, petitioners are mistaken in their assertion that Dr. Younis did not provide his 

opinion in his initial report. Our review of Dr. Younis’ initial report reveals that Dr. Younis 

opined that he “completely disagreed” with Dr. Marinacci’s assessment that Petitioner McGhee’s 

injuries were related to the motor vehicle accident; and noted further that these types of injuries 

are often immediately reported due to their painful nature, and the inability of a patient to bear 

weight upon the injured limb immediately following the injury. Dr. Younis noted further that 

Petitioner McGhee made no mention of any foot pain in her first five visits to Dr. Marinacci after 

the accident, a period encompassing six weeks. 

Next, there is no evidence that the trial court abused its discretion in admitting this 

opinion testimony by Dr. Younis. The record reflects that Dr. Younis is an experienced 

radiologist, and in his career has reviewed more than 10,000 radiological examinations of 

individuals’ feet. We have held, that 

6
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

“‘[t]he admissibility of testimony by an expert witness is a matter within 

the sound discretion of the trial court, and the trial court’s decision will not be 

reversed unless it is clearly wrong.’ Syl. pt. 6, Helmick v. Potomac Edison Co., 

185 W.Va. 269, 406 S.E.2d 700, cert denied, 502 U.S. 908, 112 S.Ct. 301, 116 

L.Ed.2d 244 (1991).” 

Syl. Pt. 3, State ex rel. Jones v. Recht, 221 W.Va. 380, 655 S.E.2d 126 (2007). Petitioners fail to 

demonstrate how the trial court abused its discretion in admitting this testimony, particularly in 

light of the evidence presented by petitioners, in which two of petitioners’ physician witnesses 

testified consistently with petitioners’ assertions that her injury was caused by the motor vehicle 

accident. Finally, 

“[t]he testimony of expert witnesses on an issue is not exclusive, and does 

not necessarily destroy the force or credibility of other testimony. The jury has a 

right to weigh the testimony of all witnesses, experts and otherwise; and the same 

rule applies as to the weight and credibility of such testimony.” Syl. pt. 2, Webb v. 

Chesapeake & Ohio Railway Company, 105 W.Va. 555, 144 S.E. 100 (1928). 

Syl. Pt. 2, Papenhaus v. Combs, 170 W.Va. 211, 292 S.E.2d 621 (1982). Accordingly, we find 

that petitioners’ argument lacks merit and decline to reverse the trial court on this ground. 

For the foregoing reasons, we affirm. 

Affirmed. 

ISSUED: June 17, 2016 

CONCURRED IN BY: 

Chief Justice Menis E. Ketchum 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Allen H. Loughry II 

DISSENTING: 

Justice Margaret L. Workman 

7