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Wilt v. Buracker
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA September 1993 Term __________ No. 21708 __________ GLENN M. WILT AND SANDRA B. WILT, Plaintiffs Below, Appellees v. ROBERT BURACKER, SHERIFF AS SUCCESSOR IN INTEREST TO ROY E. THOMPSON, ADMINISTRATOR TO THE ESTATE OF CHARLES W. NICKELSON, JR., Defendant Below, Appellant _______________________________________________________ Appeal from the Circuit Court of Jefferson County Honorable Ronald E. Wilson, Judge Civil Action No. 88-C-186 AFFIRMED, IN PART, REVERSED, IN PART, AND REMANDED ________________________________________________________ Submitted: September 28, 1993 Filed: December 13, 1993 John C. Skinner, Jr. F. Samuel Byrer Deborah L. Barr Nichols & Skinner Charles Town, West Virginia Attorneys for Appellees Walter M. Jones, III E. Kay Fuller Martin & Seibert Martinsburg, West Virginia Attorneys for Appellant JUSTICE MILLER delivered the Opinion of the Court. JUSTICE NEELY concurs and reserves the right to file a concurring opinion. SYLLABUS BY THE COURT

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1. Under Rule 702 of the West Virginia Rules of Evidence, there is a category of expert testimony based on scientific methodology that is so longstanding and generally recognized that it may be judicially noticed and, a trial court need not ascertain the basis for its reliability. 2. In analyzing the admissibility of expert testimony under Rule 702 of the West Virginia Rules of Evidence, the trial court's initial inquiry must consider whether the testimony is based on an assertion or inference derived from the scientific methodology. Moreover, the testimony must be relevant to a fact at issue. Further assessment should then be made in regard to the expert testimony's reliability by considering its underlying scientific methodology and reasoning. This includes an assessment of (a) whether the scientific theory and its conclusion can be and have been tested; (b) whether the scientific theory has been subjected to peer review and publication; (c) whether the scientific theory's actual or potential rate of error is known; and (d) whether the scientific theory is generally accepted within the scientific community. 3. "'"Whether a witness is qualified to state an opinion is a matter which rests within the discretion of the trial court and its ruling on that point will not ordinarily be disturbed unless it clearly appears that its discretion has been abused." Point 5, syllabus, Overton v. Fields, 145 W. Va. 797 [117 S.E.2d 598 (1960)].' Syllabus Point 4, Hall v. Nello Teer Co., 157 W. Va. 582, 203 S.E.2d 145 (1974)." Syllabus Point 12, Board of Education v. Zando, Martin & Milstead, 182 W. Va. 597, 390 S.E.2d 796 (1990). 4. The loss of enjoyment of life resulting from a permanent injury is part of the general measure of damages flowing from the permanent injury and is not subject to an economic calculation. 5. "In an injury case where the manifestations of the permanent injury may be obscure and the extent of the injury itself may be obscure because of its character, positive medical evidence to a degree of reasonable certainty that the injury is permanent is sufficient to take the question to the jury and to support an award of damages for the future effects of such injury." Syllabus Point 13, Jordan v. Bero, 158 W. Va. 28, 210 S.E.2d 618 (1974). 6. "'If there be evidence tending in some appreciable degree to support the theory of proposed instructions, it is not error to give such instructions to the jury, though the evidence be slight, or even insufficient to support a verdict based entirely on such theory.' Syllabus Point 2, Snedecker v. Rulong, 69 W. Va. 223, 71 S.E. 180 (1911)." Syllabus Point 4, Catlett v. MacQueen, 180 W. Va. 6, 375 S.E.2d 184 (1988). 7. "Prejudgment interest, according to West Virginia Code

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