No. 15-0011–Phillips v. Stear FILED 

March 2, 2016 

LOUGHRY, J., concurring, in part, and dissenting, in part: released at 3:00 p.m. 

RORY L. PERRY, II CLERK
 

SUPREME COURT OF APPEALS
 

OF WEST VIRGINIA
 

Notwithstanding the contortionistic efforts of the majority, there is no existing 

rule of civil procedure that “rewards” a litigant for failing to properly investigate, discover, 

and litigate his or her case by handing them a second opportunity to try their case. While I 

agree that sufficient error exists to warrant a new trial, I vehemently disagree with the 

majority’s conclusion that the facts of this case come within the misrepresentation and 

misconduct ground of Rule 60(b)(3). Accordingly, while I concur in the grant of a new trial, 

I dissent to the analytical approach the majority employed to award that relief. In taking such 

a decidedly misguided route, the majority has created the civil equivalent of a “get out of jail 

free” card to be utilized any time hindsight or post-verdict investigation operates to 

illuminate previously undisclosed or unknown facts pertinent to a case’s outcome. 

When the petitioners’ counsel attempted to impeach Stear, the trial court, in sua 

sponte fashion, abruptly curtailed the line of inquiry and remonstrated counsel for his trial 

tactics. Not only did the trial court’s hasty and improper evidentiary ruling prohibit a 

legitimate line of cross-examination, but it further served to wholly eviscerate counsel’s 

credibility with the jury. As a result, a new trial is not warranted simply because Stear 

purportedly lied in his discovery responses regarding prior traffic citations or because the 

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petitioners obtained evidence after the trial that could have been used to impeach him at trial. 

Instead, the circuit court’s refusal to allow Stear to be impeached by the petitioner after State 

Farm opened the door on the issue of Stear’s driving record is reversible trial error that 

necessitates a new trial pursuant to Rule 59 of the Rules of Civil Procedure. 

Under the rubric of Rule 60(b)(3), the majority based its grant of a new trial 

solely on Stear’s failure to provide accurate and comprehensive information regarding the 

number of prior traffic citations he received, initially in written discovery responses and then 

at trial. The majority relies, in part, on a report showing an additional traffic citation not 

revealed during discovery and an affidavit obtained post-trial from Stear’s ex-wife alleging 

additional incidents of traffic citations and poor driving behavior. Critically, the affidavit 

contains no independent verification of these additional citations and the ex-wife has not 

been subject to cross-examination regarding the content of her affidavit.1 While I do not seek 

to condone perjury or discovery gamesmanship, even the majority concedes that it has no 

idea whether Stear’s recollection of only one prior traffic citation was the result of willful 

fabrication or merely a memory lapse. 

What this case underscores is the significant role that a thorough and skilled 

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There is no indication as to why the ex-wife was not interviewed or deposed before 

trial or called as a witness at trial; neither is there an explanation as to why the additional 

traffic citation referenced in the affidavit was not previously investigated. 

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investigation, discovery, and cross-examination serve–they advance the litigational goal of 

uncovering the truth. Unquestionably, the petitioners were aware of Stear’s inadequate or 

inaccurate discoveryresponses, as demonstrated in their counsel’s readiness to impeach Stear 

during cross-examination with a report revealing contradictoryinformation. It was the circuit 

court’s erroneous failure to allow him to do so–in the time-honored form of questioning that 

is not only permissible but so undisputedly routine as to render the cessation of crossexamination and concomitant admonishment of counsel utterly shocking–which warrants a 

new trial. 

The majority’s application of Rule 60(b)(3) in this case could arguably lead 

to the (incorrect) conclusion that a new trial may be obtained any time a witness makes a 

misrepresentation during trial. While I find it hard to believe that the majority intended for 

Rule 60(b)(3) to have such an undesirable application, the majority’s decision may launch 

the undesired effect of encouraging post-trial investigatory efforts. Given the “gift” of a 

second trial awarded for lately-discovered evidence, the majorityhas circumscribed the rules 

of civil procedure and further undermined the preferred use of cross-examination to ferret 

out the truth. As a result of the majority’s misguided analysis, fairly-obtained verdicts are 

subject to being overturned for counsel’s failure to scrupulously investigate and prosecute 

a case in the first instance. Despite its tortured use in this case, I would caution practitioners 

that Rule 60(b)(3) is not a substitute for diligent investigation and cross-examination. The 

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majority’s contention that Stears’ discovery “misrepresentation” prevented petitioners from 

“fully and fairly preparing or presenting” its claim is simply wrong. It was the trial court’s 

error in halting the petitioners’ attempt to impeach Stears that prevented a fair presentation 

of the petitioners’ case, and nothing more. 

Accordingly, I respectfully concur in the result reached by the majority, but 

dissent as to its analysis. 

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