West Virginia Supreme Court affirms denial of new trial in Monongalia County wrongful death case


The West Virginia Supreme Court has affirmed an order by Monongalia County Circuit Court denying a new trial in a wrongful death case.

The lawsuit was filed by Gregory Farmerie, individually, and as administrator of the estate of Christie Cathers, who died in 2015 when a Monongalia County sheriff’s deputy shot and killed her after a vehicle pursuit.  A grand jury determined that the shooting was justified, and no deputies were charged with a crime.

According to court documents, Farmerie appealed a March 23, 2018 order entered in the Circuit Court of Monongalia County that denied his motion for a new trial, following a unanimous jury verdict that attributed more than 50 percent of the fault for Cathers’ death to Cathers herself.

The court determined that the facts and legal arguments had been adequately presented, and it declined to hear oral arguments in issuing a memorandum decision affirming the circuit court’s order.  According to the Supreme Court’s website, “While memorandum decisions may be cited as legal authority and are legal precedent, their value as precedent is necessarily more limited; where a conflict exists between a published opinion and a memorandum decision, the published opinion controls.”

According to court documents, on June 5, 2015, Cathers was shot and killed by a Monongalia County
sheriff’s deputy after she was pursued in a car chase.  Farmerie filed a complaint against Monongalia County Commission, among others, in the Circuit Court of Monongalia County, alleging various claims of negligence, gross negligence, wrongful death, negligent hiring, training, retention and supervision and vicarious liability.

During a pre-trial conference on October 20, 2017, the circuit court advised counsel that it has been the court’s practice to allow alternate jurors in civil cases to deliberate and vote with the regular jury panel, and that such practice was permissible, in the court’s discretion, under West Virginia Rule of Civil Procedure 47, according to court documents.

The court specifically advised:

If you—either counsel wishes to challenge that. [sic] And if I’m wrong, just point it out and I’ll change my practice.  I’m not that prideful that just because that’s what I think the law is, or whatever, I’m not willing to change.  But do that in a timely fashion, you know, before the end of the trial.

In response, counsel for Farmerie stated:

“I only have one question.  I understand that the [c]ourt’s intent is to allow two additional jurors to go into the jury room … My question is if no one gets excused, is it the [c]ourt’s intent to require an eight-person verdict?”  The court answered in the affirmative and explained that “[i]t s[t]ill has to be unanimous and all – and the alternates would deliberate and vote along with the regular panel.”  Petitioner’s counsel replied, “I understand.”

The case was tried before six jurors and the two alternate jurors beginning on November 6, 2017.  On November 13, 2017, the eight-member jury found Cathers to be 87 percent at fault, Monongalia County Commission to be 10 percent at fault and a third defendant, the Monongalia County Homeland Security Emergency Management Agency MECCA 911, to be 3 percent at fault, according to court documents.  All eight jurors were individually polled, and each juror stated that the verdict was unanimous.

According to the memorandum decision, Farmerie timely filed a motion for a new trial on the ground that the circuit court did not properly dismiss the two alternate jurors and improperly allowed eight jurors to deliberate and act as regular jurors.  The circuit court denied this motion by an order entered on March 28, 2018, reasoning, as it did previously at the pre-trial conference, that the current version of Rule 47 affords the court “considerable judicial discretion … to determine whether any alternate juror or jurors will formally deliberate and assist in rendering a verdict.”

According to the circuit court, prior to 1998, Rule 47(b) provided that “[a]n alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict.”  However, the court’s order states, the 1998 amendments to the rule deleted this reference to the discharge of alternate jurors after the jury retires to the jury room, and Rule 47(c) now states that “[a]lternate jurors shall be drawn in the same manner, shall have the same qualifications, shall be subject to the same examination and challenges, shall take the same oath, and shall have the same functions, powers, facilities, and privileges as the regular jurors.”   The court also relied on the specific language contained in the present Rule 47(b):  “Unless the court directs that the jury shall consist of a greater number.”  The circuit court found that Rule 47, as amended, no longer requires the dismissal of alternate jurors before deliberations, according to court documents.

In its March 28, 2018 order, the circuit court further determined that Farmerie’s counsel failed to object when the court declared that it intended to allow alternate jurors to participate in deliberation, and that counsel “exhibited a full understanding” of the court’s intention on the matter.  The court concluded that counsel “effectively waived” any objection to the court’s practice of allowing alternate jurors to deliberate by failing to object at the pre-trial conference, during the trial itself or at any time before the final verdict was rendered.  Finally, the circuit court rejected Farmerie’s claim that it was plain error to allow the alternate jurors to deliberate and render the verdict.

On appeal, Farmerie’s sole assignment of error is that the circuit court erred by allowing two alternate jurors to deliberate with the regular jury panel, according to court documents.  He argues that the circuit court violated West Virginia Code § 56-6-11(a), which states that, unless a party waives the right to a trial by jury, “in any civil trial a jury shall consist of six members.”

Additionally, Farmerie argues that the circuit court’s interpretation of Rule 47(b) was inconsistent with the language of West Virginia Code § 56-6-12a, which states:

In any civil case, whenever in the opinion of the court the trial is likely to be a protracted one, the court may direct that not more than four jurors, in addition to the regular jury, be called and impaneled to sit as alternate jurors.  Said alternate jurors shall be chosen from a separate panel of six after the regular jury of six or twelve, as the case may be, has been selected.  Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become unable or disqualified to  perform their duties.  Alternate jurors shall be drawn in the same manner, shall have the same qualifications, shall be subject to the same examination and challenges, shall take the same oath and shall have the same functions, powers, facilities and privileges as the regular jurors.  An alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict.

According to court documents, Farmerie argues that these statutes mandate that a jury in a civil trial shall consist of six jurors only; that alternate jurors are not permitted to deliberate unless a regular juror “become[s] unable or disqualified” to perform his or her duties; and that, unless the alternate juror has
replaced a regular juror, the alternate must be discharged after the jury retires to deliberate.

In the memorandum decision, the Supreme Court states that at the pre-trial conference, when the circuit court advised the parties that it intended to allow the two alternate jurors to deliberate and vote with the regular jury panel, Farmerie’s counsel asked for and received clarification from the court.  Counsel then responded, “I understand.”  The Supreme Court said it is undisputed that Farmerie’s counsel did not then object, nor did he object during jury selection or when the six regular and two alternate jurors were directed to retire to the jury room to consider their verdict.

According to court documents, the Supreme Court states that, ordinarily, “[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.”  It goes on to say that “silence may operate as a waiver of objections to error and irregularities[.]”  This “raise or waive rule” is designed “to prevent a party from obtaining an unfair advantage by failing to give [a] court an opportunity to rule on the objection and thereby correct potential error.”  The “raise or waive rule” also “prevents a party from making a tactical decision to refrain from objecting, and subsequently, should the case turn sour, assigning error (or even worse, planting an error and nurturing the seed as a guarantee against a bad result),” according to the memorandum decision.

The Supreme Court states that is has considered whether, under the plain error doctrine, a lower court
judgment in a civil case should be reversed.  The court states that is has held that “[t]o trigger application of the ‘plain error’ doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity or public reputation of the judicial proceedings.”  In this process:

“[T]he plain error analysis begins with a determination of whether there was in fact an error.  ‘[D]eviation from a rule of law is error unless there is a waiver. Waiver … is the “intentional relinquishment or abandonment of a known right.”  [W]hen there has been such a knowing waiver, there is no error and the inquiry as to the effect of the deviation from a rule of law need not be determined.’”

The Supreme Court cites State v. Crabtree in stating, “When a right is waived, it is not reviewable even for plain error.  By contrast, the simple failure to assert a right by not objecting—forfeiture—is distinct from an intentional relinquishment—waiver.  Only a forfeiture is reviewable under plain error.”  In this case, the court states that Farmerie is arguing that he forfeited, rather than waived, the right to have his case heard before six jurors, and that, under the plain error doctrine, the circuit court’s order denying his motion for a new trial must be reversed.

The Supreme Court’s determination is that any deviation from a rule of law that occurred as a result of the alternate jurors’ participation in the deliberation of the verdict was waived, not forfeited.  It backs up this assertion by stating:

“The circuit court clearly advised all parties, in advance of trial, that the two alternate jurors would ‘deliberate and vote’ with the regular jury panel.  Petitioner’s counsel then asked, ‘[I]f no one gets excused, is it the court’s intent to require an eight-person verdict?’  After further explanation by the court, petitioner replied, ‘I understand,’ and made a tactical decision to acquiesce to the court’s interpretation of Rule 47, and, thus, refrain from making any further objection on the matter.  In so doing, petitioner intentionally relinquished a known right and such waiver is not reviewable for plain error.”

You can read the full memorandum decision here.

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