James G. Bordas, Jr., Esq.
James B. Stoneking, Esq.
Bordas, Bordas & Jividen
Wheeling, West Virginia
Attorneys for the Appellee
George E. McLaughlin, Esq.
Jeffrey A. Holmstrand, Esq.
Rhonda L. Wade, Esq.
Bachman, Hess, Bachman & Garden
Wheeling, West Virginia
Attorneys for the Appellants
JUSTICE NEELY delivered the Opinion of the Court.
1. The Dead Man's Statute does not preclude the
beneficiaries of the decedent's estate from testifying and if they
testify as to the decedent's transaction, then there is a waiver of
the statutory bar as to the other side.
2. The mere taking of a deposition of a witness who is
incompetent to testify under the Dead Man's Statute by an adverse
party for purposes of discovery is not a waiver of the witness'
incompetency unless the deposition is offered as evidence by the
3. "Not only has the Legislature liberalized the
wrongful death recovery statute through the years, but this Court
has adopted a liberal construction of the statute from our earliest
cases." Syllabus point 1, Bond v. City of Huntington, 166 W.Va.
581, 276 S.E.2d 539 (1981).
4. "In a wrongful death action, a showing of financial dependency upon the decedent is not a prerequisite to recovery of the damages specified in W.Va. Code sec. 55-7-6(c)(1) ." Syllabus point 3, Rice v. Ryder, 184 W.Va. 255, 400 S.E.2d 263 (1990).
In this wrongful death action, David H. Smith, M.D., a
psychiatrist, appeals from a $650,000 judgment entered against him
on 11 September 1991 in the Ohio County Circuit Court. Mrs.
Pauline Martin, mother of David Martin (hereinafter "the decedent")
asserted that Dr. Smith deviated from the accepted standard of care
in his treatment of the decedent, an involuntarily-committed man
and that Dr. Smith's malpractice resulted in the decedent's
suicide. The lower court found for Mrs. Martin and awarded
$200,000 to her individually and $450,000 to the decedent's young
The decedent was twenty years old when he died. He was
raised in Wheeling by his mother Pauline Martin. Ms. Martin is
mentally retarded and receives monthly SSI as her sole source of
income. The decedent attended Wheeling public schools and was
graduated from Wheeling Park High School in 1982.
At the age of fourteen, the decedent fathered a child to
Laura Brown, also fourteen. The child, Monique Michelle Brown, was
born on 7 July 1979. The decedent occasionally visited Monique.
Although never ordered to pay child support, he periodically bought
gifts and necessaries for the child.
In fall 1982, the decedent enrolled at West Virginia
University, pursuing a liberal arts curriculum and earning low to
mediocre grades. After three semesters, in January 1984, the
decedent transferred to West Liberty State College and pursued
general business studies. There, his academic performance steadily
declined, his grade point average eventually slipping to a 1.3.
In February 1985, the decedent began exhibiting a pattern
of aggressive behavior. He was unruly and disruptive in the
classroom. When relieved of his duties as a campus security
officer for spinning "doughnuts" with his car on campus, the
decedent angrily confronted his co-workers for allegedly reporting
him. On 28 February 1985, the decedent yelled at his roommate and
brandished a steak knife menacingly; when taken into custody by
campus security officers, he made threats and babbled incoherently.
On the evening of 28 February 1985, the decedent was admitted to the psychiatric unit at the Ohio Valley Medical Center where his aggressive behavior continued. The decedent was medicated and put into restraints.
Dr. Smith was the decedent's treating physician for the duration of his stay at the psychiatric unit. Upon the decedent's admission, Dr. Smith failed to undertake a mental status exam, the comprehensive report and assessment of a patient's status that serves as a base of knowledge for the physician. Dr. Smith
immediately prescribed heavy doses of mood elevators and
tranquilizers. The decedent's condition improved after he was
medicated but hospital records show he continued to be aggressive
and needed to be physically restrained on a number of occasions.
On 25 April 1985, the decedent, returning late from a two
hour pass, grew uncontrollably angry, boisterous and disruptive.
When put into seclusion, he became violent, hitting a surveillance
camera with his hand and beating incessantly on the door.
On 6 May 1985, Dr. Smith decided to transfer the decedent
to Weston State Hospital for more specialized care. As nurses'
notes contained in the decedent's medical records indicate, the
decedent reacted to the prospect of such a transfer with confusion,
anxiety and depression.
On 7 May 1985, Dr. Smith abruptly discontinued all of the
decedent's medications. The decedent exhibited nonpsychotic
controlled behavior until 11 May 1985 when his behavior once again
became completely uncontrolled.
On 11 May 1985, Dr. Smith released the decedent on an eight hour pass, his first ever from the unit. Dr. Smith did not know that Mrs. Martin was mentally retarded and made no inquiry into Mrs. Martin's competency. Nor did he inquire into the decedent's accessibility to weapons despite his known suicidal and
homicidal tendencies. No specific instructions were given to Mrs.
Martin by Dr. Smith or by the staff nor was mention made of
While at his mother's home that day, the decedent
continued to express concern about the possibility of his transfer
to Weston State Hospital and asked questions about death and hell.
He then went upstairs to his bedroom, took a gun from the gun
cabinet and shot himself. He died instantly.
On 7 May 1987, Mrs. Martin filed an action for wrongful
death in the Ohio County Circuit Court. By agreement both parties
waived a jury trial and opted to try the case to the court alone.
In a memorandum opinion dated 9 September 1991, the court
specifically made findings that Dr. Smith was guilty of negligence
and that his negligence was a proximate cause of the decedent's
suicide. Particular attention was drawn to the following factors:
the decedent's known history of suicidal and homicidal tendencies
and proneness to violence; his fear of hospitalization generally
and of a planned transfer to Weston State Hospital in particular;
the abrupt discontinuation of the decedent's medications
immediately before his release; and Dr. Smith's failure to inquire
into security at the decedent's home and into the decedent's
accessibility to weapons.
Dr. Smith maintains the lower court erroneously applied
the Dead Man's Statute in disregarding his testimony concerning
conversations with the decedent.
The Dead Man's Statute is a rule that prohibits a
survivor in a transaction with a dead person to testify because the
lips of the decedent are sealed and there is too great a danger
that interested survivors will take advantage of the decedent's
estate. F. Cleckley, Handbook on Evidence for West Virginia
Lawyers 40 (1986); Note, "Re-evaluation of the Dead Man's Statute,
69 W.Va.L.Rev. 327, 328 (1967). Where a survivor either makes a
claim against the decedent's estate or is interested in such a
claim and the decedent is unable to confront that survivor, give
his version of the affair and expose the possible omissions,
mistakes or perhaps even outright falsehoods of the survivor, the
Dead Man's Statute precludes the survivor interested in the case
from testifying. Miami Coal Co., Inc., v. Hudson, 175 W.Va. 153,
332 S.E.2d 114 (1985). In the case before us, the statute
appropriately barred Dr. Smith from testifying about his
transactions with the decedent because the decedent was unable to
confirm or deny his allegations.
We have recognized, however, that the Dead Man's Statute
does not preclude the beneficiaries of the decedent's estate from
testifying and if they testify as to the decedent's transaction,
then there is a waiver of the statutory bar as to the other side.
Moore v. Goode, 180 W.Va. 78, 375 S.E.2d 549 (1988). Thus, while
Dr. Smith does not dispute that the Dead Man's Statute is facially
applicable to his testimony, he claims that under this exception to
the Dead Man's Statute Ms. Martin waived her right to object by
offering testimony of conversations between him and the decedent.
We agree with this contention.
However, in view of what is established by the record, we
think the error in not admitting the testimony of Dr. Smith was
harmless. Dr. Smith contends that the testimony barred by the Dead
Man's Statute, to wit, that he had informed the decedent that he
would not be transferred to Weston State Hospital, was vital to the
presentation of his defense. However, three witnesses
independently testified to that same fact: two nurses testified on
Smith's behalf that the decedent was advised that the transfer
would not occur and a staff psychologist testified that he had
personally advised the decedent that the transfer would not occur
at the scheduled time.
Moreover, the whole issue of the transfer is not dispositive of the outcome of the case: Mrs. Martin's experts identified no less than six deviations from the accepted standard of care, any one of which was sufficient to sustain the judge's finding that Dr. Smith was guilty of negligence that proximately
caused the decedent's death. Thus, although the Dead Man's Statute
was waived by Mrs. Martin's testimony, we find the lower court's
error was harmless.
Dr. Smith asserts that Ms. Martin waived any objection
she may have had to the testimony by Dr. Smith when her counsel
inquired into conversations between the decedent and Dr. Smith
during Dr. Smith's deposition.
We have found several circumstances in which the
incompetency of a witness under the Dead Man's Statute may be
waived by the acts of the adverse party. As we stated above, the
incompetency of a witness is considered waived when the protected
party testifies on his own behalf as to the transaction or
communication. See Coleman v. Wallace, 143 W.Va. 669, 104 S.E.2d
349 (1958). Similarly, there is a waiver if the deceased has been
examined in his own behalf. Moore v. Moore, 87 W.Va. 9, 104 S.E.
266 (1920). There is also a waiver if the protected party has
elected to call to the stand the incompetent witness, who then can
explain all matters about which he is examined. Holland v. Joyce,
155 W.Va. 535, 185 S.E.2d 505 (1971). Finally, there is a waiver
if the incompetency of the witness is not timely protested. See
First Nat'l Bank v. Bell, 158 W.Va. 827, 215 S.E.2d 642 (1975).
But the mere taking of a deposition of a witness who is
incompetent under the Dead Man's Statute by an adverse party for
purposes of discovery is not a waiver of the witness' incompetency
unless the deposition is offered as evidence by the adverse party.
Since Ms. Martin did not offer Dr. Smith's deposition into
evidence, Dr. Smith's incompetency under the Dead Man's Statute was
Dr. Smith maintains that the court erred in permitting
the testimony of Robert J. Adams, Ph.D. as a rebuttal witness by
plaintiff's counsel because Ms. Martin failed to disclose Dr. Adams
as an expert witness in a timely manner in violation of Rule 26(e),
West Virginia Rules of Civil Procedure. Rule 26(e), W.V.R.C.P.
provides in pertinent part:
A party is under a duty seasonably to supplement his response with respect to any [discovery request] directly addressed to... the identity of each person expected to be called as an expert witness at trial...
In Prager v. Meckling, 172 W.Va. 785, 790, 310 S.E.2d
852, 856 (1983), we listed four factors a court must consider in
determining whether the failure to supplement discovery requests
under Rule 26(e) should require exclusion of evidence related to
the supplementary material:
1. the prejudice or surprise in fact of the
party against whom the excluded witnesses
would have testified;
2. the ability of that party to cure the prejudice;
3. the extent to which the waiver of the rule would disrupt the orderly and efficient trial of the case or of other cases in the court;
4. bad faith or willfulness in failing to comply with the court's order.
Dr. Smith offered no evidence to support a finding of bad
faith or willfulness on the part of Mrs. Martin in failing to
disclose Dr. Adams at an earlier time. Nor do we find any evidence
in the record that the admission of Dr. Adams' testimony disrupted
the orderly disposition of the trial. Finally, even given that the
admission of Dr. Adams' testimony prejudiced Dr. Smith's case, we
find such prejudice far from incurable. Dr. Smith could have
easily moved for a continuance in order to secure a comparable
expert witness. We therefore find that the court did not abuse its
discretion in admitting Dr. Adams' testimony.
Dr. Smith also asserts that the lower court erred in
awarding damages for the deceased's reasonably expected loss of
income. According to Dr. Smith, Mrs. Martin introduced
insufficient testimony as to the decedent's reasonably expected
Under W.Va. Code sec. 55-7-6(c)(1)(B) , the lower
court has authority to award "compensation for reasonably expected
loss of (i) income of the decedent..." In determining such
compensation, including a deceased's probable earnings, the
deceased's age, earnings, experience and habits during his lifetime
should be considered. Bowman v. Barnes, 168 W.Va. 111, 282 S.E.2d
We find that the lower court made no error in assessing
damages for the loss of income suffered by Mrs. Martin and the
decedent's young daughter. In spite of the difficult circumstances
of his upbringing, the decedent worked odd jobs as a student to
assist his mother with household expenses. He also purchased gifts
and necessaries for his daughter from the modest sums he earned at
odd jobs. The decedent was the first in his family to attend
college where he received financial assistance. There is no reason
that the decedent, if properly treated, could not have provided
services, protection, care and assistance to his mother and child.
In his final assignment of error, Dr. Smith contends that
Mrs. Martin was not a "dependent" within the meaning of the
wrongful death statute because the decedent rendered no financial
assistance and services to his mother and could not be expected to
do so in the future.
West Virginia's wrongful death statute is remedial, and is liberally construed to effect the Legislature's intent. See Baldwin v. Butcher, 155 W.Va. 151, 184 S.E.2d 428 (1971). We have consistently given "more than lip service to this rule of liberal construction." Bond v. City of Huntington, 166 W.Va. 581, 276 S.E.2d 539 (1981). Accordingly, the word "dependent" in our wrongful death statute has been read very broadly: West Virginia does not "require that the surviving dependent be legally dependent on the deceased for the support but only that, in fact, they were receiving some money or services from the deceased." Bond, 166 W.Va. at 589, 276 S.E.2d at 547 (1981).
Mrs. Martin was mentally retarded, unemployed and lived
on a fixed income. The decedent worked odd jobs as a student and
contributed to household expenses. He also purchased his own
clothes and furniture for his mother's home and helped his mother
to the full extent of his capabilities. These facts are sufficient
to support the court's finding that Mrs. Martin was entitled to a
distributive share of the damages assessed in this case.
For the foregoing reasons, the judgment of the Ohio
County Circuit Court is affirmed.