WEST VIRGINIA RECORD

CHARLESTON – A self-described Grizzly Adams look-a-like got no relief in his personal injury appeal before the state’s high court.

On July 8, the unanimous state Supreme Court affirmed the ruling of the Kanawha County Circuit Court in the case of Joseph McCutcheon v. Larry D. Parsons.

The case stemmed from a minor auto accident that occurred at the intersection of I-64 and Route 35 in Putnam County on February 16, 2007. Plaintiff/Petitioner McCutcheon subsequently sued defendant/respondent Parsons due to injuries that McCutcheon alleged he received in the accident.

In the May 3, 2011, pretrial conference, McCutcheon’s attorney disclosed that he did not intend to present any expert witnesses to testify as to lost income or future medical expenses. Because of these disclosures, the circuit court granted respondent’s motion for partial summary judgment on the issues of lost income and lost earning capacity.

Shortly after the conference, McCutcheon’s attorney filed a motion to withdraw as counsel and a motion to continue the trial. A hearing was held with the petitioner present and the court granted the motion to withdraw and continued the trial, giving McCutcheon 30 days to get another attorney or to notify the court that he would proceed pro se.

In the jury trial of Oct. 25, 2011, Petitioner was his only witness in his case-in-chief. The court summarized his testimony as “you were involved in an accident, you were rear-ended, and you are experiencing some pain as a result of the accident.”

On cross-examination, McCutcheon admitted that he did not get treatment on the day of the accident and that he had offered the respondent $200 to “forget it.”

McCutcheon went on the testify that he sought medical treatment the day after the accident but that the Charleston Area Medical Center did not provide him with pain medication because, according to him, he looked like “Grizzly Adams and they thought I was a drug addict.” He testified that he went to another hospital a few weeks later and they x-rayed his arm and the doctor “wrote me up like a typical drug addict.”

McCutcheon’s testimony at trial reflected a history of narcotic pain medication use and accidents prior to the accident in question, the opinion says. He admitted to being under the influence of narcotic pain medication at trial.

Parsons put on several witnesses in his defense including a doctor who testified that based on his examination of McCutcheon, he had determined there was no relationship between the accident and plaintiff’s arthritic elbow. He noted that the condition pre-existed the accident and testified that it appeared on “x-rays made in 2003.”

Parsons characterized the accident as a “bump” of his vehicle into McCutcheon and testified that his own vehicle had very minimal damage while he did not see any damage to McCutcheon’s vehicle. Parsons testified that McCutcheon appeared to be intoxicated because he was slurring his speech and his eye were bloodshot.

The circuit court granted Parsons' motion for judgment as a matter of law at the close of the trial. After the denial of his motion for a new trial and for appointment of counsel, McCutcheon appealed the denial of the motion and the circuit court’s awarding of judgment as a matter of law.

“Petitioner states that respondent admitted to rear-ending his vehicle. Petitioner asserts that Dr. Scott admitted on cross-examination that petitioner’s back was injured. Petitioner asserts that Deputy Donahoe’s investigation was deficient because his report did not contain anything about petitioner’s knocked-out taillight,” the court wrote.

“Respondent asserts that considering the evidence in the light most favorable to petitioner, there was no jury question with regard to either causation or damages. Petitioner may have an injured back, but Dr. Scott testified that to a reasonable degree of medical certainty, there was no ‘objective evidence’ of any condition being related to the February 16, 2007 accident.

“This is consistent with petitioner’s attorney’s opinion that ‘there is no permanency [of injury] and no lost wages [attributable to the 2007 accident].’ Both respondent and Deputy Donahoe indicated that there was no apparent damage to petitioner’s vehicle. Respondent testified that petitioner told him he was ‘okay,’ and Deputy Donahoe testified that petitioner refused medical transport.

“After careful consideration, this Court finds that even construing the evidence in his favor, petitioner failed to establish a prima facie right to recovery with respect the essential elements of causation and damages. This Court concludes that the circuit court did not err in granting respondent’s motion for a judgment as a matter of law."