Jottings By An Employer's Lawyer

Monday, December 06, 2004

"Me Too" Evidence and the Peculiar West Virginia Single Digit Rule

No, this does not have anything to do with the much appreciated full five finger wave applauded by President Bush on his recent trip to Canada.* Instead it is about an unusual decision emanating from the Supreme Court of Appeals of West Virginia, McKenzie v. Carroll International Corporation, (W.Va. 11/12/04) as described by Brian Peterson in his eponymous log devoted to that state's jurisprudence, Brian Peterson's West Virginia Legal Weblog.

The issue is one of great concern to all management side employment lawyers --- being deluged with evidence of former employees about their particular scrapes with the employer to which they attribute discriminatory motives, in a lawsuit brought by yet another employee. Many courts shy away from such evidence, as did the trial court here, realizing that it quickly turns into a series of mini-trials, which is inherently confusing not to mention the probability of harm to the defendant employer. Here a defendant's jury verdict was undone because the trial court excluded such evidence.

And for future guidance, the Court added what Brian refers to as the "best 9 rule" footnote:
Obviously we do not believe that a plaintiff should be allowed to parade dozens of witnesses to testify about their alleged discrimination experiences with an employer, but a single digit number of witnesses, as in this case, is not too burdensome or repetitious.
Best of luck to those defending West Virginia employers, perhaps in their last case before they move their facility elsewhere!

*President Bush dismissed concerns Tuesday about strained ties between the United States and Canada, thanking those Canadians who turned out to wave "with all five fingers" during his first official visit. CNN. com.

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