No. 33195 State of West Virginia ex rel. R.E. Hamrick, Jr., M.D., v. the Honorable James
C. Stucky, Judge of the Circuit Court of Kanawha County, et. al.
Benjamin, Justice, concurring, in part, and dissenting, in part:
In its opinion, the majority does something very good. It develops a new
syllabus point which will serve as a valuable procedural guide for circuit courts and litigants
in future discovery-related disputes at the trial level. I cannot, however, agree with the
majority's decision to then disregard this very principle of fair procedure and arbitrarily
remove the circuit court's choice for discovery commissioner without any
the litigants to prove and dispute the allegations against the fairness of the discovery
commissioner and the opportunity of the discovery commissioner to respond to any personal
accusations made against him. I earnestly encourage the majority to reconsider that portion
of its decision which avoids an evidentiary hearing below.
In setting forth Syllabus Point 6, requiring that an evidentiary hearing be held
to determine the legitimacy of an objection to a discovery commissioner appointed by a
circuit court, this Court properly protects both the discretion of trial court judges and the
rights of litigants. Discovery commissioners provide not only the litigants, but also the trial
court, with a valuable resource in complex litigation. It is important that the circuit court
have in a discovery commissioner someone it can trust and rely upon. It is equally important
for the litigants that the discovery commissioner be both fair and knowledgeable in the finer
aspects of discovery. I concur with the majority in the establishment of this mechanism as
necessary and proper where one party has a bona fide objection to the circuit court's
selection of a discovery commissioner.
Had the majority stopped there, it could have rightly patted itself on the back
for resolving the issue raised by this petition seeking extraordinary relief and of stopping
short of exceeding the proper role of an appellate body in reviewing discretionary discovery
decisions on such petitions. Unfortunately, the majority did not restrain itself from short-
circuiting appropriate process and instead usurped a discretionary decision regarding
discovery and trial procedure properly left to the circuit court.
Do what I say. Don't do what I do! is perhaps the best way to describe the
majority's speculative plunge into the discovery management matters of this litigation.
Despite ruling that an evidentiary hearing is the necessary mechanism to properly test the
legitimacy of a litigant's objections to an appointed discovery commissioner, the majority
arbitrarily disregards its own ruling and, in so doing, removes the circuit court's choice of
discovery commissioner without any required evidentiary hearing whatsoever
any proof of Petitioner's allegations
. The Petitioner's allegations of potential and actual
bias by the discovery commissioner may be legitimate. And then again, they may not be.
Instead of permitting the circuit court to make the proper evidentiary findings to determine
whether the Petitioner's allegations of bias may be legitimate, the majority instead simply
accepts as true the unsubstantiated claims and allegations of the Petitioner.
Discovery has increasingly become a tool of opportunity in the strategy
arsenal of many of today's litigators. Purposeful delaying, oppressive requests, unwarranted
fishing expeditions, boiler plate objections, and myriad other tools are too often today
the means by which one side or another to a case seeks an advantage. As a Court, we must
encourage trial judges to manage discovery in cases before them fairly and to sanction those
who would misuse the discovery system. That includes affirming the choices a trial court
makes regarding a discovery commissioner absent an abuse of discretion. The trial court
knows the finer aspects of the parties and the case herein far better than this Court ever
could. This is especially so when the matter is before us on the limited record of a petition
seeking extraordinary relief. It is that trial judge who knows best who should be a discovery
commissioner absent an objective basis for bias by the discovery commissioner or other
I am further concerned that the Court's willingness to factually venture into
trial discovery issues such as this will simply encourage the use by parties of petitions
seeking writs for extraordinary relief during the pendency of pretrial matters to avoid
adverse, or possibly adverse, trial court discovery rulings. Indeed, the inappropriate resort
to petitions seeking extraordinary relief may serve no purpose other than delay. While such
resort to extraordinary relief may be unavoidable in situations involving claims of privilege,
work product, and so on, I do not believe that a trial court's appointing of a discovery
commissioner whose recommendations are subject to trial court review (and, later, appellate
court review) rises to the level of imminent prejudice to a party justifying the extraordinary
power of a writ of prohibition _ particularly where, as here, the only allegations of bias are
Finally, I am concerned about the majority's decision on this discovery
commissioner, a member of the West Virginia Bar. Of course, the majority did not find
bias; but, it may as well have done so. By ruling that a new discovery commissioner must
be appointed, the majority unfairly and improperly brings into question the professionalism
of the current discovery commissioner where the record simply does not objectively support
any such negative inference. We owe the current discovery commissioner much more
consideration than that which I believe he has been shown by the majority in its opinion.
We owe him at least the voice which an evidentiary hearing provides.
One might justly question why the Petitioner herein waited to make allegations
against the discovery commissioner, and then only in vague terms. Petitioner may have
hoped to avoid confrontation or embarrassment. We don't know who is right and who is
wrong. (See footnote 1) Absent a hearing, the discovery commissioner is defenseless to the claims of the
Petitioner. At this point, however, my review of the limited record before us on this petition
provides absolutely no objective basis whatsoever to support the majority's removal of this
discovery commissioner on the basis of alleged bias; no basis in the discovery
recommendations to date to support a finding of bias; and no other basis for an assertion of
impropriety involving this discovery commissioner. In the absence of an evidentiary
hearing, I respectfully dissent from the remainder of the majority's decision.
It goes without saying that someone is wrong. If the allegations are correct, the
discovery commissioner, as a member of the Bar, had a duty to disclose such potential bias.
If not, then a proper question needs to be raised regarding the good faith basis for the
allegations being raised.