CHARLESTON – The West Virginia Court of Appeals has denied a request by the City of Weirton to prevent one of its former police officers from taking the deposition of a lawyer he did not formally retain.


The city had sought a writ of prohibition to prevent the Brooke Circuit Court from allowing Terry DiBacco from taking Dean Makricostas’ deposition.


Though Makricostas was not formally retained by DiBacco, he assisted the former city officer after he was placed on administrative leave.


DiBacco seeks to depose Makricostas for the purpose of establishing that the city, through its lawyer, Vince Gurrera, had required DiBacco to present a general medical release, not a mental health release, to be reinstated.


DiBacco served as a Weirton police officer for more than 15 years when, in April 2009, the city placed him on administrative leave based on his mental health status.


In an attempt to be reinstated, DiBacco submitted to the city a release from his family doctor stating he was under no physical restrictions. However, the city refused to reinstate him. Instead, he was told by the city that he either had to apply for a disability pension or be terminated.


DiBacco sued the city and the city’s Board of Trustees of the Policeman’s Pension or Relief Fund, claiming disability discrimination under the state’s Human Rights Act.


Weirton, in its petition to the state’s high court, argued that DiBacco’s request to depose Makricostas would: violate West Virginia Rule of Evidence 408 and West Virginia Rule of Civil Procedure 26(b)(1); have a “chilling effect” on future settlement negotiations in the state; and undermine the state’s public policy of favoring settlement negotiations.


The Supreme Court upheld the decision of the Brooke Circuit Court in its Sept. 23 ruling.


“As the circuit court correctly concluded, the fact that evidence obtained from Mr. Makricostas’ deposition may ultimately be inadmissible does not prohibit its discovery,” the justices wrote.


“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.”

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