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STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS 

State of West Virginia ex rel. 

City of Weirton, 

Petitioner 

v.) No. 14-0279 (Brooke County No. 11-C-50) 

The Honorable David J. Sims, 

Judge of the Circuit Court of Brooke County, 

Respondent 

 MEMORANDUM DECISION 

Petitioner, the City of Weirton (AWeirton@), by counsel Thomas E. Buck, 

invokes this Court=s original jurisdiction seeking a writ of prohibition to prevent the 

Circuit Court of Brooke County from allowing respondent, Terry DiBacco, a former 

police officer for Weirton, from taking the deposition of Dean Makricostas, a lawyer who 

was not formally retained by Mr. DiBacco, but who nevertheless assisted Mr. DiBacco 

following his placement on administrative leave by Weirton. Mr. DiBacco seeks to 

depose Mr. Makricostas for the purpose of establishing that Weirton, through its lawyer, 

Mr. Vince Gurrera, had required Mr. DiBacco to present only a general medical release, 

as opposed to a mental health release, in order to be reinstated to his employment as a 

police officer. 

This Court has considered the parties= briefs and the documents attached 

thereto, the pertinent authorities, and oral argument. We find no new or significant 

questions of law, and, upon application of the standards for issuing a writ of prohibition, 

we find no grounds upon which to grant the requested writ. For these reasons, a 

memorandum decision denying the writ of prohibition is appropriate under Rule 21 of the 

Rules of Appellate Procedure. 

Mr. DiBacco had served as a Weirton police officer for more than fifteen 

years when, in April 2009, Weirton placed him on administrative leave based upon his 

mental heath status.1

 It appears that, following his placement on administrative leave,2

 

1Weirton submits to this Court that the administrative leave was based upon the 

recommendations of Mr. DiBacco=s mental health physicians. 

FILED

September 23, 2014 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA
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Mr. DiBacco enlisted the aid of his friend, Mr. Makricostas, to assist him in obtaining 

reinstatement to his former position. Although Mr. Makricostas is a lawyer, documents 

submitted to this Court by the parties indicate that Mr. Makricostas was never retained as 

Mr. DiBacco=s lawyer.3 In fact, Mr. Makricostas later withdrew all assistance and 

informed Mr. DiBacco that he would not be able to provide legal representation in this 

matter.4 The nature of Mr. Makricostas= participation in Mr. DiBacco=s efforts to return 

to work also was mentioned in an email authored by Mr. Gurrera, which stated, in part, 

I understand that Dean [Makricostas] is not technically 

representing Terry [DiBacco] but is trying to facilitate the 

meeting in order to establish and maintain a peaceful 

relationship between the parties and to give Terry [DiBacco] 

some guidance in how he is to proceed. I really appreciate 

Dean=s efforts. . . . 

While Mr. Makricostas was still attempting to assist in this matter, he was 

apparently involved in at least one communication wherein Mr. Gurrera set out the 

requirement for Mr. DiBacco=s reinstatement. Mr. DiBacco asserts that Mr. Gurrera 

advised that only a medical release, as opposed to a mental health release, would be 

required for his reinstatement. 

 

2 Weirton states that Mr. DiBacco received full pay while he was on 

administrative leave. 

3Mr. DiBacco did, however, refer to Mr. Makricostas as his lawyer when giving 

deposition testimony. 

4Weirton had objected to Mr. Makricostas representing Mr. DiBacco because 

Mr. Makricostas had represented other Weirton police officers and, according to Weirton, had 

access to confidential privileged information. Mr. Makricostas therefore declined to provide 

representation to Mr. DiBacco based upon the appearance of a conflict. 
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Sometime later, after the communication, Mr. DiBacco submitted to 

Weirton a release from his family physician stating that he was under no physical 

restrictions. His submission of this release did not result in his reinstatement to his 

position as a Weirton police officer. Mr. DiBacco states that he was advised by Weirton 

that he either had to apply for a disability pension or be terminated.5

Mr. DiBacco filed suit against Weirton and the Board of Trustees of the 

Policeman=s Pension or Relief Fund of the City of Weirton claiming disability 

discrimination under the West Virginia Human Rights Act.6 A primary issue in the case 

is the type of medical release, physical or mental, that was required by Weirton for Mr. 

DiBacco=s reinstatement. Mr. DiBacco asserts that he was never required by Weirton to 

provide a mental health release. To support this assertion, Mr. DiBacco sought to take 

the deposition of Mr. Makricostas. 

After Mr. DiBacco filed a subpoena to take the deposition of Mr. 

Makricostas, Weirton filed a motion for a protective order and a motion to quash the 

subpoena. By order dated March 6, 2014, the Circuit Court of Brooke County denied 

the same. The circuit court expressly stated that it made Ano findings or conclusions as 

to whether the alleged statements made by Mr. Gurrera are admissible under the Rule 

[sic] of Evidence.@ The circuit court explained that, while compromise and offers of 

compromise are generally not admissible under Rule 408 of the West Virginia Rules of 

Evidence, Rule 408 does not address their discoverability or define them as privileged 

communications. Thus, the circuit court reasoned, Awithout some context in which the 

statements regarding a release were made, the Court is unable to rule on the admissibility 

of the statements.@ Moreover, because of the Afactual dispute as to what type of release 

[Weirton] was requiring the Plaintiff to produce,@ the circuit court found that Athere exists 

the likelihood that admissible evidence will be generated by the deposition.@ 

Accordingly, the circuit court concluded that, 

. . . Mr. Makricostas= deposition may to [sic] be taken as part 

of discovery to determine the ultimate issue of whether any of 

the evidence is admissible under the Rules of Evidence. 

10) The Court concludes that the Rules of Evidence do 

 

5Weirton asserts that Mr. DiBacco applied for disability, and his claim was 

granted by the Policeman=s Pension or Relief Fund of the City of Weirton on February 27, 

2011. 

6While the Board of Trustees of the Policeman=s Pension or Relief Fund of the 

City of Weirton is a co-defendant in the proceedings below, that entity was not named in the 

instant petition for writ of prohibition and has not taken a position on the issue herein raised. 
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not preclude the taking of the deposition of Mr. Makricostas. 

11) However, the Court may, upon completion of 

discovery, preclude the admission of the evidence should this 

matter proceed to trial. 

Weirton then filed the instant petition seeking a writ of prohibition to prevent Mr. 

DiBacco from deposing Mr. Makricostas. 

AProhibition lies only to restrain inferior courts from proceeding in causes 

over which they have no jurisdiction, or, in which, having jurisdiction, they are exceeding 

their legitimate powers and may not be used as a substitute for writ of error, appeal or 

certiorari.@ Syl. pt. 1, Crawford v. Taylor, 138 W. Va. 207, 75 S.E.2d 370 (1953). 

Weirton claims that the lower tribunal has exceeded its legitimate powers. Therefore, 

this Court will examine five factors: (1) whether the party 

seeking the writ has no other adequate means, such as direct 

appeal, to obtain the desired relief; (2) whether the petitioner 

will be damaged or prejudiced in a way that is not correctable 

on appeal; (3) whether the lower tribunal=s order is clearly 

erroneous as a matter of law; (4) whether the lower tribunal=s 

order is an oft repeated error or manifests persistent disregard 

for either procedural or substantive law; and (5) whether the 

lower tribunal=s order raises new and important problems or 

issues of law of first impression. These factors are general 

guidelines that serve as a useful starting point for determining 

whether a discretionary writ of prohibition should issue. 

Although all five factors need not be satisfied, it is clear that 

the third factor, the existence of clear error as a matter of law, 

should be given substantial weight. 

Syl. pt. 4, in part, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996). 

Weirton characterizes this case as one in which a plaintiff seeks to take the 

discovery deposition of his own former lawyer regarding the substance of unsuccessful 

pre-suit settlement negotiations between the parties. Based upon this characterization, 

Weirton argues that the deposition would violate West Virginia Rule of Evidence 408 

and West Virginia Rule of Civil Procedure 26(b)(1); would have a chilling effect on 

future settlement negotiations throughout the State of West Virginia; and would 

undermine the public policy of West Virginia favoring settlement negotiations. Weirton 

reasons that Rule 408 precludes the admission of A[e]vidence of conduct or statements 

made in compromised negotiations.@ Thus, Weirton argues, because discovery must be 

reasonably calculated to lead to the discovery of admissible evidence pursuant to Rule 

26(b)(1), and because, under Weirton=s theory, the deposition of Mr. Makricostas would 

be inadmissible as settlement negotiations pursuant to Rule 408, the deposition should be 
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prohibited. 

Respondent, Mr. DiBacco, presents a different characterization of the 

underlying facts. He states that he sought the help of his friend, Mr. Makricostas, to 

learn what would be required by Weirton for him to return to his employment. Mr. 

Makricostas never officially represented Mr. DiBacco and ultimately advised Mr. 

DiBacco that he would be unable to provide representation due to Weirton=s objection 

based upon a conflict of interest. Mr. DiBacco argues that Weirton failed to present 

evidence that the statements about which he seeks to depose Mr. Makricostas were part 

of any compromise, and there is no such evidence. Mr. DiBacco asserts that pre-claim 

communications between employers and employees are routinely allowed into evidence 

in employment cases. 

The circuit court resolved the issue herein raised, in part, by pointing out 

that Rule 408 addresses the admissibility of compromise offers, not whether such offers 

are discoverable. We find this conclusion was unnecessary insofar as Weirton has 

merely asserted, without supporting evidence, that Mr. Makricostas engaged in settlement 

negotiations on behalf of Mr. DiBacco. In this case, there simply was no evidence in 

the record to indicate that Mr. Gurrera and Mr. Makricostas engaged in settlement 

negotiations. 7

 Nevertheless, as the circuit court correctly concluded, the fact that 

evidence obtained from Mr. Makricostas= deposition may ultimately be inadmissible does 

not prohibit its discovery. A[U]nder Rule 26(b)(1) of the West Virginia Rules of Civil 

Procedure, discovery is not limited only to admissible evidence, but applies to 

information reasonably calculated to lead to the discovery of admissible evidence.@ Syl. 

pt. 4, in part, State Farm Mut. Auto. Ins. Co. v. Stephens, 188 W. Va. 622, 425 S.E.2d 577 

(1992). The circuit court expressly found that the deposition of Mr. Makricostas was

likely to lead to admissible evidence given the factual dispute regarding the type of 

release requested by Weirton; however, the circuit court deferred any decision regarding 

admissibility until such time as additional evidence obtained during discovery revealed 

the nature of the communications at issue. We find no error in the circuit court=s 

reasoning. 

AA writ of prohibition is available to correct a clear legal error resulting 

from a trial court=s substantial abuse of its discretion in regard to discovery orders.@ Syl. 

pt. 1, State Farm, 188 W. Va. 622, 425 S.E.2d 577. Because we find no clear legal error 

 

7While Weirton has set out persuasive arguments for prohibiting the taking of 

depositions of lawyers regarding their participation in settlement negotiations, we need not 

address those arguments in this case insofar as we find no evidence that the communications at 

issue were settlement negotiations. 
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resulting from a substantial abuse of discretion on the part of the circuit court, we deny 

the requested writ of prohibition. 

Writ Denied. 

ISSUED: September 24, 2014 

CONCURRED IN BY: 

Chief Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II