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656 S.E.2d 91
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2007 Term
ALLISON J. RIGGS, and
JACK E. RIGGS, M.D.,
Plaintiffs Below, Appellants,
WEST VIRGINIA UNIVERSITY HOSPITALS, INC.,
Defendant Below, Appellee.
Appeal from the Circuit Court of Monongalia County
The Honorable Robert B. Stone, Judge
Civil Action No. 01-C-147
Submitted: October 23, 2007
Filed: November 20, 2007
| Wesley W. Metheney
Wilson, Frame, Benninger
& Metheney, PLLC
Morgantown, West Virginia
Paul T. Farrell, Jr.
Greene, Ketchum, Bailey, Walker
Farrell & Tweel
Huntington, West Virginia
Attorneys for Appellants
| Christina S. Vaglienti
West Virginia University Hospitals, Inc.
Morgantown, West Virginia
Rita Massie Biser
Moore & Biser, PLLC
Charleston, West Virginia
Attorneys for Appellee
Christopher J. Regan
Bordas & Bordas, PLLC
Wheeling, West Virginia
Attorney for Amicus Curiae
West Virginia Association for Justice
Thomas J. Hurney, Jr.
Charleston, West Virginia
Attorney for Amicus Curiae
Virginia Mutual Insurance Company
J. Dustin Dillard
Flaherty, Sensabaugh & Bonasso,
Attorneys for Amici Curiae
Virginia Hospital Association
Virginia State Medical Association
The opinion of the Court was delivered PER CURIAM.
CHIEF JUSTICE DAVIS concurs and reserves the right to file a concurring opinion.
JUSTICES STARCHER AND ALBRIGHT dissent and reserve the right to file
SYLLABUS BY THE COURT
1. The standard of review applicable to an appeal from a motion to alter
or amend a judgment, made pursuant to W. Va. R. Civ. P. 59(e), is the same standard that
would apply to the underlying judgment upon which the motion is based and from which the
appeal to this Court is filed. Syllabus Point 1, Wickland v. American Travelers Life Ins.
, 204 W. Va. 430, 513 S.E.2d 657 (1998).
2. 'When a statute is clear and unambiguous and the legislative intent is
plain, the statute should not be interpreted by the courts, and in such case it is the duty of the
courts not to construe but to apply the statute.' Syllabus Point 5, State v. General Daniel
Morgan Post No. 548, Veterans of Foreign Wars
, 144 W. Va. 137, 107 S.E.2d 353 (1959).
Syllabus Point 4, State v. Inscore
, 219 W. Va. 443, 634 S.E.2d 389 (2006).
3. Judicial estoppel bars a party from re-litigating an issue when: (1) the
party assumed a position on the issue that is clearly inconsistent with a position taken in a
previous case, or with a position taken earlier in the same case; (2) the positions were taken
in proceedings involving the same adverse party; (3) the party taking the inconsistent
positions received some benefit from his/her original position; and (4) the original position
misled the adverse party so that allowing the estopped party to change his/her position would
injuriously affect the adverse party and the integrity of the judicial process. Syllabus Point
2, West Virginia Department of Transportation, Division of Highways v. Robertson
W. Va. 497, 618 S.E.2d 506 (2005).
Appellants Allison J. Riggs and Jack E. Riggs, M.D. argue herein that the
Circuit Court of Monongalia County erred by reducing a jury verdict awarding non-
economic damages in the amount of $10,000,000 to $1,000,000 pursuant to the provisions
of W. Va. Code § 55-7B-8 (1986). (See footnote 1)
According to Appellants, the non-economic damages
cap contained in Section 8 of the Medical Professional Liability Act, W. Va. Code § 55-7B-
1, et seq.
, does not apply to the jury verdict rendered below because their claims against
West Virginia University Hospitals, Inc. (WVUH) do not arise from health care rendered
to Allison Riggs. Instead, Appellants maintain that their claims arise from WVUH's failure
to control an environmental serratia outbreak which resulted in Allison Riggs contracting a
near fatal nosocomial serratia infection during an anterior cruciate ligament (ACL)
surgical reconstruction in 1995. As such, Appellants maintain the claims asserted against
WVUH do not fall within the parameters of the MPLA's non-economic damages cap. Upon
a complete and thorough review of the record presented herein, it is readily apparent that
Appellants pled, prosecuted and tried their claims against WVUH as claims subject to the
provisions of the MPLA. Only after a jury verdict exceeding the MPLA's non-economic
damages cap was rendered did Appellants begin to argue that their claims were not governed
by the MPLA. Finding that Appellants may not change the theory of their case after the
return of jury's verdict so as to avoid application of the MPLA's non-economic damages
cap, we affirm the trial court's application of W. Va. Code § 55-7B-8 to the jury verdict
rendered herein. (See footnote 2)
FACTUAL AND PROCEDURAL BACKGROUND
On April 4, 1995, Appellant Allison J. Riggs (Ms. Riggs), then 14 years of
age, underwent an ACL reconstruction surgery in her right knee at WVUH's Ruby Memorial
Hospital. During the surgery, Ms. Riggs allegedly contracted a serratia bacterial infection
in the femoral tunnel of the ACL reconstruction surgical site. Ms. Riggs experienced a
number of complications after the surgery and underwent a number of subsequent
procedures, including surgeries, during the years 1995 and 1996 allegedly as a result of these
complications. (See footnote 3)
The infection at issue in this litigation, however, was apparently not
discovered nor diagnosed until 1999. (See footnote 4)
Appellants filed their Complaint in the Circuit Court of Monongalia County
in March 2001, against WVUH, University of West Virginia Board of Trustees and West
Virginia University Medical Corporation. (See footnote 5)
In their Complaint, Appellants alleged that at the
time of Ms. Riggs' surgery in April 1995, Ruby Memorial Hospital was experiencing a
serratia bacterial outbreak in certain areas of the hospital, including the operating rooms and
surgical intensive care unit. All allegations in the Complaint were phrased in terms of proof
required under the MPLA. (See footnote 6)
For example, the Complaint alleged that the
Defendants negligently failed to exercise that degree of care,
skill and learning required of or expected of reasonably careful
healthcare providers acting in the same or similar circumstances
in treating Plaintiff, Allison J. Riggs, and such negligence was
the proximate cause of Plaintiff, Allison J. Riggs', exposure to
the serratia bacteria and resulting complications.
More specific acts of negligence specified in the Complaint include: the failure to adequately
and properly obtain informed consent; the failure to inform physicians, employees, agents
and representatives of the serratia bacteria outbreak at Ruby Memorial Hospital; the failure
to conduct proper testing, monitoring and preventive control of the serratia bacterial
outbreak; and the failure to consult with health care providers with knowledge and
experience in the field of bacterial infections, outbreaks, control and containment.
Additionally, the Complaint alleged the Defendants negligently failed to diagnose, detect
and/or discover that the complications suffered by Plaintiff, Allison J. Riggs, were
proximately caused by a serratia bacterial infection in the femoral tunnel of the anterior
cruciate ligament reconstruction surgical site and failed to perform adequate and proper
diagnostic testing to determine the source and/or origins of Ms. Riggs' complications.
Finally, the Complaint asserted that the alleged damages were caused as a direct and
proximate result of the negligent failure of the Defendants to exercise the proper degree of
skill, care and learning required of reasonably prudent healthcare providers
Continuing with the theme that the MPLA applied to their claims, Appellants
summarized their allegations in their pre-trial memorandum stating:
On or about April 4, 1995, the Robert C. Byrd Health Sciences
Center of West Virginia University and Ruby Memorial
Hospital w[ere] experiencing a serratia bacterial outbreak in
certain areas of the health care facility including operating
rooms and surgical intensive care units. The physicians,
employees, agents and representatives of the Defendants
hereinbefore named negligently monitored the serratia outbreak,
negligently disclosed its inherent dangers and committed other
acts of negligence which proximately caused Plaintiffs to suffer
significant personal injuries and damages.
As a direct and proximate result of the negligent failure of the
Defendants to exercise the proper degree of skill, care and
learning required of reasonable prudent healthcare providers
Plaintiff, Allison J. Riggs, was required to incur medical bills
and suffer agonizing physical pain and suffering, mental
anguish and anxiety and permanent physical injury. As a direct
and proximate result of the negligent failure of the defendants
to exercise the proper degree of skill, care and learning
required of reasonable prudent healthcare providers
Jack E. Riggs, incurred expenses and costs which were
unnecessary and burdensome.
(Emphasis added). These allegations were then incorporated verbatim into the Pre-
Trial/Scheduling Order entered by the trial court.
Appellants' acknowledgment that their claims against WVUH were subject to
the provisions of the MPLA continued during the course of discovery as evidenced by their
expert witness disclosures. In supplemental disclosures filed on June 14, 2002, Appellants
disclosed the expert witness opinion of Grant O. Westenfelder, M.D., FACP, (Dr.
Westenfelder) relating to WVUH's Department of Infection Control in this medical
professional negligence case. Therein, Appellants disclosed that Dr. Westenfelder would
testify to a reasonable degree of medical probability that WVUH deviated from the
standard of care by failing to adequately inform and warn physicians, staff and patients
regarding an ongoing endemic/epidemic Serratia problem and by failing to seek assistance
from the West Virginia Department of Health and the Centers for Disease Control.
According to the disclosure, these deviations from the standard of care were a proximate
cause of Plaintiffs' ultimate injuries and damages. On September 3, 2004, Appellants again
supplemented their expert witness disclosures. At that time, Appellants admitted that [t]his
medical malpractice action arises out of an intra-operative infection[.] Each expert
disclosed therein as expected to testify against WVUH was represented to be testifying to
a reasonable degree of medical probability that WVUH deviated from the standard of
care in (1) determining the source of serratia infections; (2) investigating, remediating and
monitoring a serratia epidemic which proximately resulted in Ms. Allison Riggs'
contracting a nosocomial serratia infection; (3) failing to implement appropriate standards
to locate, identify, isolate and remediate a nosocomial serratia epidemic; and/or (4) failing
to take appropriate affirmative actions to locate, identify, isolate and remediate a nosocomial
Appellants' unequivocal position that their claims against WVUH were MPLA
claims continued at the trial which commenced on August 22, 2006. During voir dire,
Appellants' counsel informed the potential jurors that the injuries and damages they were
claiming were a result of the hospital failing to meet the applicable standard of care in
monitoring the infectious disease control procedures within the hospital and perhaps in some
other ways that they were guilty of medical negligence[.] This position was further
evidenced by Appellants' request that the jury be instructed regarding the legislative purpose
behind the MPLA and the elements of a MPLA claim both by their proposed jury
instructions and during arguments regarding the trial court's proposed jury charge. During
discussions with the trial court regarding jury instructions, Appellants' counsel
acknowledged that he tried to state the statutory burden of proof verbatim in his proposed
instructions. Reviewing the trial court's suggestion regarding a proposed instruction,
Appellants' counsel acknowledged I think that's an accurate statement of medical
malpractice or negligence, degree of care, skill and learning. . . I like it. At one point,
Appellants' counsel maintained that he did not want the statement that we are alleging that
the hospital failed to maintain a safe and proper hospital environment with respect to
infection control included in the jury instructions. At no time did Appellants request that
the jury be instructed upon any theory of liability other than medical negligence nor were
any objections raised to the instructions ultimately given by the trial court. The following
portions of the jury charge are particularly relevant to the matters raised in this appeal:
The Court further instructs you that in cases involving
allegations of medical negligence
the law recognizes that the
complexity of the human body and medical science places
questions as to the standard of medical care
knowledge of the average lay person. Therefore, the law
requires that expert medical testimony be presented to establish
the standard of care to be exercised by medical care providers
whether the defendant's conduct amounted to a deviation from
the standard of care was a proximate cause of the injuries and
damages of the plaintiffs.
The jury is instructed that the medical care providers against
whom medical negligence is asserted
, that is, the healthcare
providers at West Virginia University Hospitals
, by virtue of
their education, training and experience, are qualified and
entitled to give opinion testimony concerning the medical issues
in this case as are the medical experts called by either the
plaintiffs or the defendant in this case.
. . .
The Court instructs the jury that the plaintiffs, Allison J. Riggs
and Jack E. Riggs, allege that the defendant, West Virginia
University Hospitals, Inc., was negligent in the care and
treatment of Allison J. Riggs, by failing to maintain a safe and
proper hospital environment with respect to infection control,
and that such negligence proximately caused her injuries.
. . .
For plaintiffs to recover on their claims, they must prove to you
by a preponderance of the evidence that the defendant was
negligent in its care and treatment of Allison J. Riggs
to maintain a safe and proper hospital environment with respect
to infection control, and that its negligence was also a proximate
cause of Allison J. Riggs' injuries and damages.
Healthcare providers owe the patients they treat a duty to
refrain from medical negligence
. Medical malpractice or
negligence is the failure to treat a patient in accordance with
the degree of care, skill and learning required of a reasonably
prudent health care provider in the profession or class to which
the defendant belongs acting in the same or similar
circumstances which proximately causes injury to the patient.
That is, a healthcare provider must have and use the same
knowledge and skill and exercise the same care as that which is
usually had and exercised in the medical profession. A
healthcare provider whose conduct does not meet this standard
of care is negligent.
The Court instructs you that at various times throughout this
trial you have heard the term standard of care. That term
means the level of medical care that should be given by a
healthcare provider in a given class at a given time and which
is reasonably prudent under the circumstances. It is what you
find from the evidence to be what is reasonable for a prudent
and competent healthcare provider engaged in the same or
similar practice to have done under the same set of
The standard of care for medical professionals and healthcare
providers is a national standard of care. West Virginia
University Hospitals is a healthcare provider under the law.
Plaintiffs allege that West Virginia University Hospitals
deviated from the standard of care by negligently failing to
properly conduct surveillance, prevention and control of a
serratia epidemic proximately causing Allison J. Riggs to
become severely ill and suffer injuries and damages.
. . .
Accordingly, if you find from a preponderance of the evidence
that, in treating Allison J. Riggs, the medical provider
employees or agents of West Virginia University Hospitals
failed to fulfill their duty or standard of care, then you may find
that the defendant was negligent.
. . .
The jury is instructed that it must consider the conduct of the
healthcare providers based on the circumstances
at the time of
their treatment of the plaintiff in other words what they knew or
reasonably should have known at that time, and without the
knowledge that Allison J. Riggs would develop any particular
problem, complication, or condition, or would suffer or sustain
. . .
Before you can find the defendant liable to plaintiffs in damages
for malpractice, you must find not only that one or more of the
healthcare providers of West Virginia University Hospitals
deviated from the appropriate standard of care and was
negligent, as to which you have been instructed, but also that
this breach of duty was a proximate cause of or substantially
contributed to Allison J. Riggs' injuries or damages.
(Emphasis added). (See footnote 7)
The clarity of Appellants' theory of the case presented to the jury was
exemplified in rebuttal closing arguments wherein counsel argued:
You go to a hospital with the dependency and the confidence
that what they are going to do to you isn't going to hurt you or
inflict additional harm. And we depend on that. We depend on
that environment. We don't go there to get sick. The hospital
is to do no harm.
. . .
Now in a few minutes I am going to sit down and your job is
going to begin. My job is going to end and you assume this
awesome responsibility. We are going to ask that you return a
verdict in favor of Allison Riggs. We have worked on this case
over five years. Any mention of the investment of time and
resources has been necessary and just on this issue in this town
at this hospital.
A full and fair verdict for Allison Riggs in this case will send a
message that you must provide medical services in this town
responsibly. When this jury returns a verdict, a full and fair
verdict for Allison Riggs, changes will occur.
Serratia marcescens at Ruby Hospital will get the attention it
deserves. Staffing requirements will be met. Health care will
. And yes, lives will be saved.
Holding people accountable creates consequences and change.
And I told you you would become the conscience of the jury. You determine what a reasonably prudent health care provider
should do. You get to say what the community standard on
nosocomial infection, what you are willing to accept serratia
bacteria in this town will be.
You get to say that. I don't have
that power. The hospital doesn't have that power.
(Emphasis added.) After receiving the trial court's instructions and listening to closing
arguments, the jury began deliberations and were presented with a jury verdict form
consisting of two primary questions: 1) whether WVUH was negligent in its care and
treatment of Ms. Riggs by failing to maintain a safe and proper hospital environment with
respect to infection control and 2) whether any such negligence proximately caused or
contributed to plaintiffs' damages. (See footnote 8)
Appellants did not object to the use of this verdict form.
Answering both questions in the affirmative, the jury assessed special damages in the amount
of $84,989.39 and general damages in the amount of $10,000,000 on September 5, 2006.
The trial court entered a judgment order reflecting the jury verdict and
reducing the general/non-economic damage award to $1,000,000 pursuant to the provisions
of W. Va. Code § 55-7B-8 (1986) on September 12, 2006. On September 18, 2006,
Appellants filed a motion pursuant to Rule 59(e) of the West Virginia Rules of Civil
to reinstate the damages awarded in the jury order arguing that the MPLA's non-
economic damages cap did not apply (See footnote 9)
because no allegation has been made that WVUH
negligently rendered care directly to Allison Riggs and that the MPLA's non-economic
damages cap was unconstitutional despite being upheld against constitutional challenges
twice before by this Court. At a September 29, 2006, hearing on post-trial motions,
Appellants began articulating a position that the MPLA applied only if personnel from the
infection control department actually provided hands-on care to Allison Riggs. Specifically,
So if you want to broadly interpret the MPLA to include claims
against infection control, then the non-economic cap applies. If
you want to narrowly interpret the actual words of the statute,
I think it's reasonable to find that in this instance the claims that
we have alleged do not involve health care services which were
actually rendered by infection control to Allison Riggs. This is
an administrative function involving the environmental safety
of the hospital and is no different from negligent credential[ing]
which was specifically carved out of the MPLA in the Boggs
The trial court orally denied Appellants' motion at the hearing finding a definitional analysis
of the MPLA's terms reveals that a showing that anybody in infection control did directly
render care to Allison Riggs was not required for the claims to fall within the MPLA. A
formal written order denying Appellants' Rule 59(e) motion to reinstate the damages
awarded by the jury was entered on October 26, 2006. It is from this order that the instant
appeal arises. (See footnote 10)
STANDARD OF REVIEW
The sole issue on appeal is whether the trial court properly denied Appellants'
Rule 59(e) motion to reinstate the damages awarded by the jury. In syllabus point 1 of Wickland v. American Travelers Life Insurance Company, 204 W. Va. 430, 513 S.E.2d 657
(1998), this Court found that [t]he standard of review applicable to an appeal from a motion
to alter or amend a judgment, made pursuant to W. Va. R. Civ. P. 59(e), is the same standard
that would apply to the underlying judgment upon which the motion is based and from
which the appeal to this Court is filed. As the issue raised directly challenges the trial
court's application of the MPLA's non-economic damages cap to the jury verdict, our review
is de novo. Syl. Pt. 1, Crystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995)
(Where the issue on appeal from the circuit court is clearly a question of law or involving
an interpretation of a statute, we apply a de novo standard of review.). It is also clear that
'[w]hen a statute is clear and unambiguous and the legislative intent is plain, the statute
should not be interpreted by the courts, and in such case it is the duty of the courts not to
construe but to apply the statute.' Syllabus Point 5, State v. General Daniel Morgan Post No.
548, Veterans of Foreign Wars, 144 W. Va. 137, 107 S.E.2d 353 (1959). Syl. Pt. 4, State
v. Inscore, 219 W. Va. 443, 634 S.E.2d 389 (2006). Accordingly, our review is focused
upon whether the trial court properly applied W. Va. Code § 55-7B-8 to reduce the jury's
non-economic damages award from $10,000,000 to $1,000,000 under the facts and
circumstance of this case.
On appeal to this Court, Appellants argue that the MPLA's non-economic
damages cap does not apply to the jury verdict unless WVUH's infection control department
had direct contact and involvement in the care and treatment of Allison Riggs during her
hospitalization. (See footnote 11)
Rather, Appellants maintain that their claims arise out of environmental
conditions at the hospital and thus do not fall within the parameters of the MPLA. The
fundamental problem with this argument, as recognized and argued by WVUH before this
Court, is that Appellants pled, developed, argued and submitted their claims to the jury as
governed by the MPLA. If Appellants are attempting post-verdict to re-define their claims
in terms of a premises liability theory arising from an environmental contamination in order
to avoid application of the MPLA's non-economic damages cap, a fundamental problem
exists - the jury was not instructed on any premises liability theory of recovery, Appellants
did not request such an instruction and the verdict form utilized by the jury did not include
findings on a premise liability theory of recovery.
This Court recently discussed at length the doctrine of judicial estoppel and
its importance in maintaining the integrity of our judicial system. In West Virginia
Department of Transportation, Division of Highways v. Robertson
, 217 W. Va. 497, 618
S.E.2d 506 (2005), we stated:
The doctrine of [j]udicial estoppel is a common law principle
which precludes a party from asserting a position in a legal
proceeding inconsistent with a position taken by that party in
the same or a prior litigation. In re C.Z.B.
, 151 S.W.3d 627,
633 (Tex.Ct.App. 2004). Under the doctrine, a party is
generally prevent[ed] . . . from prevailing in one phase of a
case on an argument and then relying on a contradictory
argument to prevail in another phase. Pegram v. Herdrich
U.S. 211, 227 n. 8, 120 S.Ct. 2143, 2154, n. 8, 147 L.Ed.2d 164,
180 n. 8 (2000). This Court recognized long ago that [t]here
are limits beyond which a party may not shift his position in the
course of litigation[.] Watkins v. Norfolk & Western Ry. Co.
125 W. Va. 159, 163, 23 S.E.2d 621, 623 (1942). Thus,
'[w]here a party assumes a certain position in a legal
proceeding, and succeeds in maintaining that position, he may
not thereafter, simply because his interests have changed,
assume a contrary position, especially if it be to the prejudice of
the party who has acquiesced in the position formerly taken by
him.' Hubbard v. State Farm Indem. Co.
, 213 W. Va. 542,
552 n. 21, 584 S.E.2d 176, 186 n. 21 (2003) (quoting New
Hampshire v. Maine
, 532 U.S. 742, 749, 121 S.Ct. 1808, 1814,
149 L.Ed.2d 968, 977 (2001)). See also
Syl. pt. 2, Dillon v.
Board of Educ. of Mingo County
, 171 W. Va. 631, 301 S.E.2d
588 (1983) (Parties will not be permitted to assume successive
inconsistent positions in the course of a suit or a series of suits
in reference to the same fact or state of facts.); Gelwicks v.
, 124 W. Va. 572, 583, 20 S.E.2d 666, 671 (1942) (One
may not defend a suit upon one ground, and then later defend
the same suit, or one growing out of the same transaction, on
grounds separate and distinct from those formerly asserted[.]).
Judicial estoppel is an extraordinary remedy that should be
invoked only when a party's assertion of a contrary position will
result in a miscarriage of justice and only in those circumstances
where invocation of the doctrine will serve its stated purpose[.] Puder v. Buechel
, 362 N.J.Super. 479, 828 A.2d 957, 965
(2003). See also Cothran v. Brown
, 357 S.C. 210, 592 S.E.2d
629, 632 (2004) (The application of judicial estoppel must be
determined on a case-by-case basis, and must not be applied to
impede the truth-seeking function of the court.). The dual
goals [of the doctrine] are to maintain the integrity of the
judicial system and to protect parties from opponents' unfair
strategies. People ex rel. Sneddon v. Torch Energy Servs., Inc.
102 Cal.App.4th 181, 125 Cal.Rptr.2d 365, 370 (2002). The
doctrine fulfills its goals by bind[ing] a party to his or her
judicial declarations, and precludes [that] party from taking a
position inconsistent with previously made declarations in a
subsequent action or proceeding. Kauffman-Harmon v.
, 307 Mont. 45, 36 P.3d 408, 412 (2001).
, 217 W. Va. at 504-5, 618 S.E.2d 513-14 (footnotes omitted). Upon examination
of the factors utilized in various jurisdictions for the application of judicial estoppel, we held
in syllabus point 2 that:
Judicial estoppel bars a party from re-litigating an issue when:
(1) the party assumed a position on the issue that is clearly
inconsistent with a position taken in a previous case, or with a
position taken earlier in the same case; (2) the positions were
taken in proceedings involving the same adverse party; (3) the
party taking the inconsistent positions received some benefit
from his/her original position; and (4) the original position
misled the adverse party so that allowing the estopped party to
change his/her position would injuriously affect the adverse
party and the integrity of the judicial process.
Applying these factors to the instant matter it is plainly evident that the
doctrine of judicial estoppel applies to preclude Appellants from arguing that their claims
against WVUH are anything other than claims governed by the MPLA, including the
MPLA's non-economic damages cap. The first factor looks to whether the party has
assumed a position clearly inconsistent with one taken earlier in the case. As noted
throughout this opinion, Appellants pled, prosecuted, tried and argued their claims as falling
within the MPLA, including continual references to WVUH as a healthcare provider,
breaches of the applicable standard of care to a reasonable degree of medical probability and
characterizations of the action as a medical professional liability action. Moreover, the
verdict form utilized, without objection from the Appellants
, specifically contradicts the
position taken by the Appellants post trial. The verdict form specifically asked the jury
whether WVUH was negligent in its care and treatment
of Allison J. Riggs. Appellants
did not assume the position that their claims were not governed by the MPLA until after
verdict in excess of the MPLA's non-economic damages cap was rendered and their verdict
was reduced by order of the trial court.
The second factor regarding the identity of the parties is easily satisfied as the
contradictory positions raised by Appellants on appeal are being taken in the same litigation.
Likewise, the third factor involving benefit achieved by assuming an inconsistent position
is easily satisfied. By characterizing their claims as medical negligence claims, the
Appellants' were able to attempt to invoke strong emotional responses and a sense of
authority from the jury in their closing arguments. In their rebuttal closing arguments,
Appellants strongly encouraged the jury to send a message that you must provide medical
services in this town responsibly . . . changes will occur . . . health care will be improved
. . . you decide what a reasonably prudent health care provider should do . . . you say what
the community standard . . . will be. Additionally, if the adverse position is accepted,
Appellants will receive an additional $9,000,000 in non-economic damages. Lastly, the
final factor involving misleading the opposing party and injurious affect on the integrity of
the judicial process is clearly met herein. By not characterizing their claims as premises
liability claims until after
the jury verdict was rendered, Appellants precluded WVUH from
developing a theory of defense on this theory. There was no alternative pleading or
arguments made herein. Appellants proceeded at all times prior to entry of the judgment
order applying the MPLA's non-economic damages cap as if their claims were governed by
the MPLA. This Court will not sanction a change in liability theories post-verdict to avoid
application of clear statutory provisions. The doctrine of judicial estoppel applies to
preclude Appellants' arguments that the MPLA does not apply to the jury verdict rendered
herein. Accordingly, the trial court's application of W. Va. Code § 55-7B-8 to reduce the
jury verdict rendered in this matter from $10,000,000 to $1,000,000 is affirmed.
For the reasons set forth herein, the October 26, 2006, order of the Circuit
Court of Monongalia County is affirmed. The provisions of W. Va. Code § 55-7B-8 apply
to the verdict rendered in this matter and the Circuit Court of Monongalia County did not err
by reducing the jury verdict to $1,000,000 in its September 11, 2006, judgment order.
West Virginia Code § 55-7B-8 (1986), provides that [i]n any medical professional
liability action brought against a health care provider, the maximum amount recoverable as
damages for noneconomic loss shall not exceed one million dollars and the jury may be so
instructed. Although W. Va. Code § 55-7B-8 was substantially amended in 2003, those
amendments are not at issue herein because the instant action was filed in 2001.
Though we are deciding this matter on grounds other than those articulated by the
various amici curiae
, we recognize and thank the entities filing amici curiae
briefs for their
Evidence was presented at trial that during this time period the possibility that Ms.
Riggs was suffering from an infection was explored. However, testing did not reveal the
presence of an infection. Appellants further admitted in pre-trial filings that in 1995 and
1996 there was no evidence of infection, including no culture growth.
The infection at issue herein was discovered after the second of two surgeries Ms.
Riggs underwent in 1999. Appellants asserted in pretrial filings that it was undisputed that
at the time of Ms. Riggs' June 15, 1999 operation, there was no notation of a possible
infection nor cultures, but that during a June 28, 1999, surgery, a tremendous amount of
bloody purulent material was revealed and cultures indicated serratia marcescens
growth. Prior to this discovery of the infection, it was believed that Ms. Riggs was
experiencing an adverse reaction to the hardware inserted during her prior surgeries.
Prior to trial, appellants voluntarily dismissed their claims asserted against West
Virginia Medical Corporation. Additionally, it appears they settled their claims asserted
against the University of West Virginia Board of Trustees for the sum of $75,000.
West Virginia Code § 55-7B-3(a) (2003) provides:
The following are necessary elements of proof that an injury or
death resulted from the failure of a health care provider to
follow the accepted standard of care:
(1) The health care provider failed to exercise that
degree of care, skill and learning required or
expected of a reasonable, prudent health care
provider in the profession or class to which the
health care provider belongs acting in the same or
similar circumstances; and
(2) Such failure was a proximate cause of the
injury or death.
West Virginia Code § 55-7B-3(a) is identical to W. Va. Code § 55-7B-3 (1986) which was
in effect at the time this action was file. The 2003 amendment to W. Va. Code § 55-7B-3 re-
designated the existing statutory text as subsection (a) and added subsection (b), which is not
at issue herein.
Additionally, W. Va. Code § 55-7B-2 (g) (2006) defines health care provider as:
a person, partnership, corporation, professional limited liability
company, health care facility or institution licensed by, or
certified in, this state or another state, to provide health care or
professional health care services, including, but not limited to,
a physician, osteopathic physician, hospital, dentist, registered
or licensed practical nurse, optometrist, podiatrist, chiropractor,
physical therapist, psychologist, emergency medical services
authority or agency, or an officer, employee or agent thereof
acting in the course and scope of such officer's, employee's or
This definition of health care provider is virtually identical to that contained within the
1986 enactment in effect at the time the instant action was filed. The only difference is that
this definition was amended in 2003 to include entities professional limited liability
company and emergency medical services authority or agency within its scope.
During post-trial proceedings and during oral argument before this Court, Appellants
have attempted to argue that the re-typed jury charge signed by the trial court and entered
into the record was not the actual jury charge read to the jury. More specifically, Appellants
argue that the red-lined charge read to the jury did not use the terms in the care and
treatment of Allison J. Riggs but rather relating to the hospitalization of Ms. Riggs.
However, review of the portions of the record cited by Appellants in support of this argument
do not lend the support implied by counsel. During arguments relating to the formulation of
the jury charge there was a discussion regarding this substitution. However, placing the
discussion relied upon by Appellants in context, it appears that the substitution was in
relation to a portion of the jury instructions regarding the actions of the infectious disease
control employees who admittedly did not have direct contact with Allison Riggs. During
post-trial hearings, the trial court rejected Appellants' argument that the jury charge entered
in the record did not reflect the actual charge given by stating that the trial court had
compared the re-typed version entered in the record to the typed copy which included the
hand-written notes utilized at trial and verified that the re-typed version corresponded to the
marked-version read at trial. Responding to an inquiry from Appellants' counsel regarding
the document with hand-written notes utilized at trial, the trial court explained [t]he retyped
jury charge is what I read . . . I did [read from a document that I made writings on] and then
I gave it to Janet and she incorporated it and typed it exactly the way it was and I sort of go
through in kind comparing it.
The verdict form read, in its entirety:
Question No. 1:
Do you find by a preponderance of the
evidence that West Virginia University Hospitals, Inc., was negligent in its care and treatment of plaintiff
, Allison J. Riggs,
by failing to maintain a safe and proper hospital environment
with respect to infection control?
Yes _____ No_____
If you answered No to Question No. 1, STOP HERE
your foreperson sign and date this form and notify the Bailiff
that a verdict has been reached. If you answered Yes to
Question No. 1, go to Question No. 2.
Question No. 2:
Do you find by a preponderance of the
evidence that any such negligence by West Virginia University
Hospitals, Inc., proximately caused or contributed to plaintiffs'
If you answered No to Question NO. 2, STOP HERE
your foreperson sign and date this form and notify the Bailiff
that a verdict has been reached. If you answered Yes to
Question No. 2, go the Damages portion of this form.
We, the jury, find by a preponderance of
the evidence that the total amount of damages to be assessed are
A. Jack E. Riggs _ Special damages (medical expenses to
B. General damages (any permanent injury, past pain and
suffering, mental anguish and past and future loss of
enjoyment of life. $___________
This argument is directly contrary to Appellants' counsel's admissions to the trial
court during discussions relating to jury instructions and Appellants' request to instruct the
jury regarding legislative findings included within the MPLA. After discussing Appellants'
proposed instruction number 1 and legislative findings regarding an insurance crisis in this
State as supporting the MPLA, counsel stated let's say by some chance we win and we have
all these caps that come in to reduce the verdict.
If that happens, this hospital is self-insured
so all those caps for the benefit of an insurance crisis I'm going to argue are inapplicable to
a self-contained limit. (Emphasis added).
When petitioning this Court to review the October 26, 2006, order, Appellants raised
two issues: 1) the trial court's application of the MPLA's non-economic damages cap and
2) the constitutionality of the non-economic damages cap. This Court granted review as to
the first issue only. Additionally, WVUH filed a cross-petition for appeal raising three
issues: 1) improper and prejudicial remarks during closing argument; 2) excessiveness of the
jury verdict; and 3) that the verdict was against the clear weight of the evidence. This Court
denied WVUH's petition for cross appeal.
In support of this argument, Appellants rely heavily upon a stipulation incorporated
into the order approving the partial settlement with the University of West Virginia Board
of Trustees (also referred to in the record as the Board of Governors) which was entered on
October 16, 2006. In that order, the trial court notes that WVUH did not object to the
settlement and stipulated that the Rashida Khahoo, M.D. and Bonny McTaggart, R.N.,
employees of WVUH's infection control department, did not provide medical or nursing care
or treatment to Allison J. Riggs. However, reading the matters stipulated in their entirety
reveals that this stipulation is related to any alleged agency and/or employment relationship
between these individuals, WVUH and the Board of Trustees. The limited nature of this
stipulation is further evidenced by a letter sent by counsel for WVUH to the trial court prior
to the entry of this order. That letter, dated October 11, 2006, stamped received on October
13, 2006, and entered into the record in this matter states, in its entirety:
West Virginia University Hospitals, Inc. does not object to the
proposed Order submitted by Mr. Farrell [Appellants' counsel]
concerning the August 10, 2006 hearing to approve plaintiffs'
settlement with the West Virginia University Board of
WVUH, Inc. will object, however, to any attempt by plaintiffs'
counsel to use the stipulations concerning Dr. Khakoo and
Bonny McTaggart to argue plaintiffs' case against WVUH is or
was anything other than a medical professional liability case
[sic] of action.