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671 S.E.2d 714
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2008 Term
LAURIE ANN MURPHY AND SHAWN M. MURPHY, SR.,
INDIVIDUALLY AND AS PARENTS AND NATURAL GUARDIANS
OF SHAWN M. MURPHY, JR., A MINOR,
Plaintiffs Below, Appellants
LAURA MILLER, D.O., JOHN BATTAGLINO, JR., M.D.,
WHEELING HOSPITAL, INC.,
DENNIS L. BURECH, M.D.,
WEST VIRGINIA UNIVERSITY BOARD OF GOVERNORS,
Defendants Below, Appellees
Appeal from the Circuit Court of Ohio County
The Honorable James P. Mazzone, Judge
Case No. 04-C-444
REVERSED AND REMANDED
Submitted: October 8, 2008
Filed: November 6, 2008
Harry S. Cohen
Douglas L. Price
Harry S. Cohen & Associates
Counsel for the Appellants
D. C. Offutt, Jr.
Charity K. Flynn
Jon D. Hoover
Offutt & Nord
Huntington, West Virginia
Counsel for the Appellee,
Dennis L. Burech, M.D.
Amy M. Smith
Steptoe & Johnson PLLC
Clarksburg, West Virginia
James C. Wright
Heidi A. Kossuth
Steptoe & Johnson PLLC
Wheeling, West Virginia
Steptoe & Johnson PLLC
Morgantown, West Virginia
Counsel for the Appellee,
West Virginia University Board of Governors
The Opinion of the Court was delivered PER CURIAM.
JUSTICE ALBRIGHT not participating.
SENIOR STATUS JUSTICE McHUGH sitting by temporary assignment.
SYLLABUS BY THE COURT
1. Although the ruling of a trial court in granting or denying a motion for a
new trial is entitled to great respect and weight, the trial court's ruling will be reversed on
appeal when it is clear that the trial court has acted under some misapprehension of the law
or the evidence. Syl. Pt. 4, Sanders v. Georgia-Pacific Corp
., 159 W.Va. 621, 225 S.E.2d
2. When considering whether to excuse a prospective juror for cause, a trial
court is required to consider the totality of the circumstances and grounds relating to a
potential request to excuse a prospective juror, to make a full inquiry to examine those
circumstances and to resolve any doubts in favor of excusing the juror.
Syl. Pt. 3, O'Dell
, 211 W.Va. 285, 565 S.E.2d 407 (2002).
3. If a prospective juror makes an inconclusive or vague statement during voir
reflecting or indicating the possibility of a disqualifying bias or prejudice, further
probing into the facts and background related to such bias or prejudice is required. Syl. Pt.
4, O'Dell v. Miller
, 211 W.Va. 285, 565 S.E.2d 407 (2002).
4. Once a prospective juror has made a clear statement during voir dire
reflecting or indicating the presence of a disqualifying prejudice or bias, the prospective juror
is disqualified as a matter of law and cannot be rehabilitated by subsequent questioning, later
retractions, or promises to be fair. Syl. Pt. 5, O'Dell v. Miller
, 211 W.Va. 285, 565 S.E.2d
5. Where a new trial is requested on account of alleged disqualification or
misconduct of a juror, it must appear that the party requesting the new trial called the
attention of the court to the disqualification or misconduct . . . and if the party fails to do so,
he or she will be held to have waived all objections to such juror disqualification or
misconduct, unless it is a matter which could not have been remedied by calling attention
to it at the time it was first discovered. Syl. Pt. 5, in part, McGlone v. Superior Trucking
., 178 W.Va. 659, 363 S.E.2d 736 (1987).
6. In the determination by the trial court of the number of peremptory
challenges to be allowed two or more plaintiffs or two or more defendants pursuant to Rule
47(b) of the West Virginia Rules of Civil Procedure
, plaintiffs or defendants with like
interests are ordinarily to be considered as a single party for the purpose of allocating the
challenges. Where, however, the interests of the plaintiffs or the interests of the defendants
are antagonistic or hostile, the trial court, in its discretion, may allow the plaintiffs or the
defendants separate peremptory challenges, upon motion, and upon a showing that separate
peremptory challenges are necessary for a fair trial. Syl. Pt. 2, Price v. Charleston Area
, 217 W. Va. 663, 619 S.E.2d 176 (2005).
7. In determining whether the interests of two or more plaintiffs or two or
more defendants are antagonistic or hostile for purposes of allowing separate peremptory
challenges under Rule 47(b) of the West Virginia Rules of Civil Procedure
, the allegations
in the complaint, the representation of the plaintiffs or defendants by separate counsel and
the filing of separate answers are not enough. Rather, the trial court should also consider the
stated positions and assertions of counsel and whether the record indicates that the respective
interests are antagonistic or hostile. In the case of two or more defendants, the trial court
should consider a number of additional factors including, but not limited to: (1) whether the
defendants are charged with separate acts of negligence or wrongdoing, (2) whether the
alleged negligence or wrongdoing occurred at different points of time, (3) whether
negligence, if found against the defendants, is subject to apportionment, (4) whether the
defendants share a common theory of defense and (5) whether cross-claims have been filed.
To warrant separate peremptory challenges, the plaintiffs or defendants, as the case may be,
as proponents, bear the burden of showing that their interests are antagonistic or hostile and
that separate peremptory challenges are necessary for a fair trial. Syl. Pt. 3, Price v.
Charleston Area Med. Ctr.
, 217 W. Va. 663, 619 S.E.2d 176 (2005).
8. The appellate standard of review for the granting of a motion for a
[judgment as a matter of law] pursuant to Rule 50 of the West Virginia Rules of Civil
Procedure is de novo. On appeal, this court, after considering the evidence in the light most
favorable to the nonmovant party, will sustain the granting of a [judgment as a matter of law]
when only one reasonable conclusion as to the verdict can be reached. But if reasonable
minds could differ as to the importance and sufficiency of the evidence, a circuit court's
ruling granting a [judgment as a matter of law] will be reversed. Syl. Pt. 3, Brannon v.
Riffle, 197 W.Va. 97, 475 S.E.2d 97 (1996).
Per Curiam: (See footnote 1)
This is an appeal by Laurie Ann Murphy and Shawn M. Murphy, Sr., parents
and natural guardians of Shawn Murphy, Jr., a minor, from a jury verdict in the Circuit Court
of Ohio County in favor of Appellees, Dr. Dennis L. Burech and the West Virginia University
Board of Governors (hereinafter Appellees) in a medical malpractice action in which Mr.
and Mrs. Murphy (hereinafter Appellants) had alleged negligence surrounding the birth of
their son. Upon thorough review of the record, arguments of counsel, and applicable
precedent, this Court reverses this matter and remands to the lower court for a new trial.
I. Factual and Procedural History
On November 26, 2002, Shawn Murphy was born via C-section at Wheeling
Hospital. According to the record, Shawn was immediately in distress, suffering from a low
respiratory rate and a faint heartbeat. He was diagnosed with acidosis, a condition in which
the patient suffers from the effects of insufficient oxygenation. Appellee Dr. Dennis Burech
was on call at Wheeling Hospital on the evening of Shawn's birth and arrived at the hospital
between 9:30 p.m. and 9:45 p.m. to lead resuscitation efforts. Dr. Burech contacted the
Neonatal Intensive Care Unit at West Virginia University Hospital to arrange for Shawn's
transfer to that unit, and he spoke with neonatal nurse practitioner, Melissa Asher during the
telephone conversation. There is a factual dispute regarding the contents of their
conversation, with Nurse Asher contending that she told Dr. Burech to order bicarbonate,
volume, and generous oxygen to be administered to Shawn. Although an order for volume
had apparently existed prior to the telephone call, the volume order was later rescinded by Dr.
Burech. It is undisputed that no volume or bicarbonate was provided to Shawn until Nurse
Asher arrived around midnight to facilitate the transfer. At that time, Nurse Asher realized
that Shawn had not received bicarbonate and volume, and she therefore ordered both. Shawn
responded positively and was stable enough to be transferred to the Neonatal Intensive Care
Unit at West Virginia University Hospital.
A medical malpractice action was initiated against pediatrician Dr. Burech,
obstetrician Dr. Laura Miller, obstetrician Dr. John Battaglino, Wheeling Hospital, and the
West Virginia University Board of Governors. (See footnote 2)
The Appellants claimed that Shawn's
extensive permanent neurological injuries were caused by the negligence of the obstetricians
in their care of Shawn prior to birth (See footnote 3)
and that such injuries were exacerbated by Dr. Burech's
actions subsequent to Shawn's birth, including Dr. Burech's failure to administer increased
volume and perform a blood gas study during the first three hours of Shawn's life.
Subsequent to trial, the jury returned a verdict for the Appellees. The
Appellants filed a motion for a new trial, and the trial court denied that motion by order
entered May 11, 2007. Subsequent to the filing of this appeal, Shawn passed away.
The Appellants have presented several assignments of error to this Court upon
appeal, including the trial court's method of allocating peremptory challenges; failure to strike
biased prospective jurors; errors in the presentation of expert witness testimony; error in
granting a Rule 50 motion in favor of the West Virginia University Board of Governors; and
error in allowing evidence of what the Appellants perceived to be collateral sources.
II. Standard of Review
With specific reference to the question of whether a particular potential juror
should be excused to avoid bias or prejudice, this Court has explained that the decision is
typically within the sound discretion of the trial judge, and this Court reviews for an abuse of
discretion. See West Virginia Dept. of Highways v. Fisher, 170 W.Va. 7, 289 S.E.2d 213
(1982), cert. denied, Fisher v. West Virginia Dept. of Highways, 459 U.S. 944 (1982). This
Court has also explained that we defer to a trial judge's rulings regarding the qualifications
of jurors because the trial judge is able to personally observe the juror's demeanor, assess
his/her credibility, and inquire further to determine the juror's bias and/or prejudice. Black
v. CSX Transp., Inc., 220 W. Va. 623, 627, 648 S.E.2d 610, 614 (2007).
Because this appeal is presented subsequent to the denial of the Appellants'
motion for a new trial, the following standard of review is applicable: Although the ruling
of a trial court in granting or denying a motion for a new trial is entitled to great respect and
weight, the trial court's ruling will be reversed on appeal when it is clear that the trial court
has acted under some misapprehension of the law or the evidence. Syl. Pt. 4, Sanders v.
Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976). This Court also explained
as follows in Tennant v. Marion Health Care Foundation, Inc., 194 W. Va. 97, 459 S.E.2d
We review the rulings of the circuit court concerning a new trial
and its conclusion as to the existence of reversible error under an
abuse of discretion standard, and we review the circuit court's
underlying factual findings under a clearly erroneous standard.
Questions of law are subject to a de novo review.
194 W. Va. at 104, 459 S.E.2d at 381. With these standards of review as guidance in our
assessment of these issues, we proceed to address the substance of the Appellants' allegations.
A. Allegations of Juror Bias
The Appellants contend that the trial court erred in failing to strike certain jurors
for cause. West Virginia Code § 56-6-12 (1923) (Repl. Vol. 2005) entitles parties to a civil
action to impartial jurors, specifically providing as follows:
Either party in any action or suit may, and the court shall
on motion of such party, examine on oath any person who is
called as a juror therein, to know whether he is a qualified juror,
or is related to either party, or has any interest in the cause, or is
sensible of any bias or prejudice therein; and the party objecting
to the juror may introduce any other competent evidence in
support of the objection; and if it shall appear to the court that
such person is not a qualified juror or does not stand indifferent
in the cause, another shall be called and placed in his stead for
the trial of that cause.
The framework in which a determination regarding alleged juror bias must be decided was
explicitly provided by this Court in O'Dell v. Miller
, 211 W.Va. 285, 565 S.E.2d 407 (2002).
In that case, this Court explained that the underlying object of jury selection is to secure
jurors who are not only free from improper prejudice and bias, (See footnote 4)
but who are also free from
the suspicion of improper prejudice or bias. 211 W. Va. at 288, 565 S.E.2d at 410 (footnote
added). The O'Dell
Court further commented upon voir dire as a tool capable of ferret[ing]
out biases and prejudices to create a jury panel, before the exercise of peremptory strikes, free
of the taint of reasonably suspected prejudice or bias. Id
., 565 S.E.2d at 410.
, this Court provided guidance to a trial court in analyzing the
propriety of removal of a juror whose objectivity is questioned, explaining as follows:
It is not enough if a juror believes that he can be
impartial and fair. The court in exercising [its] discretion must
find from all of the facts that the juror will be impartial and fair
and not be biased consciously or subconsciously. A mere
statement by the juror that he will be fair and afford the parties
a fair trial becomes less meaningful in light of other testimony
and facts which at least suggest the probability of bias. The court
in exercising discretion must be convinced that a probability of
bias of the juror does not exist. The test of a juror's
disqualification is the probability of bias or prejudice as
determined by the court. 170 W. Va. at 12-13, 289 S.E.2d at 219
(quoting Lambert v. Sisters of St. Joseph of Peace
560 P.2d 262, 266 (Or. 1977)).
Elaborating upon that guidance, this Court stated as follows in syllabus point
three of O'Dell:
When considering whether to excuse a prospective juror for cause, a trial
court is required to consider the totality of the circumstances and grounds relating to a
potential request to excuse a prospective juror, to make a full inquiry to examine those
circumstances and to resolve any doubts in favor of excusing the juror. The O'Dell
continued: When considering whether a prospective juror is prejudiced or biased, the trial
court must consider all the circumstances surrounding the juror. The trial court must not only
consider the prospective juror's promise to be fair but all of the circumstances at issue. 211
W. Va. at 289, 565 S.E.2d at 411.
The temptation for a trial court or counsel to attempt to seek to rehabilitate (See footnote 5)
a juror who has provided a questionable response has also been acknowledged. In attempting
to restrict that potential, this Court stated as follows in syllabus point four of O'Dell
: If a
prospective juror makes an inconclusive or vague statement during voir dire
indicating the possibility of a disqualifying bias or prejudice, further probing into the facts and
background related to such bias or prejudice is required. The key component of the O'Dell
construct, however, is that a trial court must remove a prospective juror who makes a clear
statement indicating a prejudice or bias. In that vein, syllabus point five of O'Dell
Once a prospective juror has made a clear statement during voir dire reflecting or indicating
the presence of a disqualifying prejudice or bias, the prospective juror is disqualified as a
matter of law and cannot be rehabilitated by subsequent questioning, later retractions, or
promises to be fair.
In Thomas v. Makani,
218 W.Va. 235, 624 S.E.2d 582 (2005), this Court
employed the O'Dell
paradigm in a medical malpractice action. The plaintiff had appealed
a defense verdict, contending that the circuit court abused its discretion by refusing to strike
potential jurors who had previously received successful medical treatment from the defendant
physician. Utilizing the principles of O'Dell,
this Court concluded that the trial court did not
err in failing to strike the juror for cause. (See footnote 6)
The potential juror had initially indicated that he
might possibly lean toward the defendant physician. 218 W.Va. at 238, 624 S.E.2d at 585.
This Court was unable to conclude that Juror Evans made a clear statement of disqualifying
bias toward Dr. Makani sufficient to disqualify him from serving on the jury. Id
., 624 S.E.2d
at 585. Although this Court found that the initial comments required further inquiry by the
court[,] this Court observed that the potential juror had explained that since he had no
medical knowledge, he would more likely believe the doctor who presented the most credible
and convincing evidence. He clearly stated that he would not find in favor of Dr. Makani
simply because he had treated him fourteen years ago. Id
. at 238-39, 624 S.E.2d at 585-86.
This Court concluded as follows in Thomas
After reviewing the record in this case, we conclude that
the trial court took special care to determine that Juror Evans
was free from bias and prejudice. The trial court clearly
considered the totality of the circumstances and conducted a full
inquiry before determining that there was no basis to disqualify
Juror Evans from serving on the jury.
Id. at 239, 624 S.E.2d at 586.
The O'Dell standards were again employed in Black v. CSX Transportation,
Inc., 220 W.Va. 623, 648 S.E.2d 610 (2007), a case in which this Court found that a physician
should have been excused as a potential juror based upon his clearly expressed bias against
personal injury lawyers, asbestos litigation, and awards based on anything other than pure
objective science. 220 W.Va. at 629, 648 S.E.2d at 616. The Black Court explained:
Dr. Polack clearly expressed a bias against Mrs. Black. Despite
his statements that he would render a decision based upon the
scientific evidence presented and the trial court's instructions of
law, Dr. Polack continued to convey a bias against parties
claiming to have been injured by exposure to asbestos and
against personal injury attorneys.
Id., 648 S.E.2d at 616.
The case sub judice is very similar to Black, to the extent that a prospective
juror, Dr. Walter, clearly demonstrated his prejudice and/or bias during voir dire. The voir
dire of Dr. Walter was conducted in two phases. First, Dr. Walter answered a series of
questions presented to all potential jurors in the form of a written juror questionnaire.
Second, based upon Dr. Walter's answers in that questionnaire, he was further questioned in
chambers. The answers provided by Dr. Walter on the initial written juror questionnaire
revealed that Dr. Walter, in his capacity as a dentist, had been the defendant in what he
identified as a frivolous lawsuit settled out of court. . . . In response to a written question
eliciting his opinion on providing compensation for pain and suffering, mental anguish, or
other emotional damage as the result of the negligence of doctors or other health care
professionals, Dr. Walter wrote that [c]ompensation needs to be provided in some cases but
with limits. Dr. Walter also explained in the written juror questionnaire that this state has
some of the highest health care insurance rates because of medical malpractice lawsuits and
their verdicts. Further, Dr. Walter stated in the written questionnaire that frivolous lawsuits
cost everyone except the attorneys involved.
During the subsequent verbal evaluation of Dr. Walter in chambers, he
answered a question regarding pain and suffering damages, stating that [i]t would be hard
to justify an amount for pain and suffering. I don't know that there's any way you can
compensate people for that. Dr. Walter was asked whether he could follow the trial court's
instructions concerning damages, setting aside whatever notions you might have personally
about damages. . . . He replied, I would try. When questioned further about his ability
to disregard your personal views about what you may think the law is or ought to be. . ., Dr.
Walter responded, I can say I would try to follow the instructions of the Court, yes,
With regard to his own personal experience as a defendant in a medical
malpractice action, Dr. Walter admitted, obviously, I'm going to be a little bit prejudiced.
He also expressed specific hesitation in awarding damages for anything less than a deliberate
act, explaining that he would be able to bring a lawsuit seeking to recover damages for a
relative of his [i]f it was a deliberate act, if it was something like that, I guess, deliberate - -
if it was an accident, if it wasn't. I don't know, it would be a tough call, to be honest. Dr.
Walter continued: We're all human. We all make mistakes. We should be accountable for
it, but I don't know. When asked whether he believed medical professionals ought to be less
accountable, he responded, I wouldn't say less accountable, but I think we need to take into
consideration what's going on.
The Appellants' motion to strike Dr. Walter was denied, and they therefore
chose to utilize a peremptory strike to remove Dr. Walter from the jury panel. Upon this
Court's independent examination of the transcript of the voir dire proceedings in this case, we
find that the trial court erred in failing to strike Dr. Walter based upon the extensive elements
of prejudice he specifically demonstrated during questioning. Based upon Dr. Walter's
answers to the written juror questionnaire, as summarized above, the trial court deemed it
preferable to continue investigation of Dr. Walter's opinions, and additional elements of bias
were revealed during attempts at rehabilitation. Dr. Walter expressed prejudice in several
distinct areas, including distaste for medical malpractice actions, adversity toward pain and
suffering damages, prejudice based specifically upon his own experience as a defendant in
a medical malpractice action brought against him in his capacity as a dentist, and a belief that
a medical malpractice action should be based only upon a deliberate act. We find that the trial
court's failure to strike Dr. Walter for cause constitutes reversible error and requires reversal
and a remand for a new trial. (See footnote 7)
The Appellants also contend that two other prospective jurors, Terry Bennet
and Kevin Heilman, should have been stricken for cause. Ms. Bennet worked as an
administrative assistant in the risk management department of Wheeling Hospital. The
hospital had settled prior to jury selection, and Ms. Bennet had no knowledge of such
settlement. Although she indicated that she would find it difficult to be unbiased since she
worked for Wheeling Hospital, the Appellants did not present the trial court with a motion
to strike Ms. Bennet for cause. Consequently, we find that the Appellants have waived their
right to allege error in this appeal with respect to Mrs. Bennet. See Hanlon v. Logan County
Bd. of Educ
., 201 W.Va. 305, 315, 496 S.E.2d 447, 457 (1997) (Long standing case law and
procedural requirements in this State mandate that a party must alert a tribunal as to perceived
defects at the time such defects occur in order to preserve the alleged error for appeal.). In
pertinent part of syllabus point five of McGlone v. Superior Trucking Co., Inc
., 178 W.Va.
659, 363 S.E.2d 736 (1987), this Court explained as follows:
Where a new trial is requested on account of alleged
disqualification or misconduct of a juror, it must appear that the
party requesting the new trial called the attention of the court to
the disqualification or misconduct . . . and if the party fails to do
so, he or she will be held to have waived all objections to such
juror disqualification or misconduct, unless it is a matter which
could not have been remedied by calling attention to it at the
time it was first discovered.
With regard to the Appellants' allegation that prospective juror Kevin Heilman,
a chemist, was biased, our review of the record reveals that Mr. Heilman did initially express
hesitation to find negligence without an intentional act. Mr. Heilman also stated that he could
not award money for mental anguish. When questioned further regarding his beliefs, Mr.
Heilman explained that he would need to have the definition of the standard of care defined
to me. Subsequent to Mr. Heilman's questioning, the trial court found that he should not be
disqualified for cause, reasoning as follows:
After hearing his answers and taking all things into
consideration, I'm going to go ahead and leave him. He does
have his opinions, but what I was impressed by is that he kept
coming back to, it would depend on the circumstances, it would
have to be proven to him. But if it was proven, he said he could
award money and he would not be uncomfortable making a
doctor pay if he deviated.
Upon review of the record, this Court finds no abuse of discretion in the lower court's
determination with regard to Mr. Heilman. (See footnote 8)
His initial confusion was apparently resolved
through additional questioning, and his ability to follow the standard and instructions set forth
by the trial court appeared intact.
The Appellants also assign a myriad of other errors. Based upon this Court's
decision to reverse and remand for a new trial on the issue of juror bias with regard to Dr.
Walter, the remaining assignments of error will be addressed to the extent that they will
potentially affect retrial of this matter.
B. Allocation of Peremptory Challenges
The Appellants contend that the trial court erred in providing each Appellee
with peremptory strikes, presenting a marked disadvantage to the Appellants. Rule 47(b) of
the West Virginia Rules of Civil Procedure addresses peremptory challenges in the selection
of jurors, as follows:
Jury Selection. _ Unless the court directs that a jury shall consist
of a greater number, a jury shall consist of six persons. The
plaintiff and the defendant shall each have two preemptory [sic]
challenges which shall be exercised one at a time, alternately,
beginning with the plaintiff. Several defendants or several
plaintiffs may be considered as a single party for the purpose of
exercising challenges, [or the court] may allow additional
peremptory challenges and permit them to be exercised
separately or jointly. In Price v. Charleston Area Medical Center, 217 W. Va. 663, 629 S.E.2d 176 (2005), this
Court addressed Rule 47(b) and held that the litigant seeking separate peremptory challenges
bears the burden of demonstrating a legitimate, sincere dispute among co-parties. This
examination resulted in syllabus point two of Price, explaining as follows:
In the determination by the trial court of the number of
peremptory challenges to be allowed two or more plaintiffs or
two or more defendants pursuant to Rule 47(b) of the West
Virginia Rules of Civil Procedure
, plaintiffs or defendants with
like interests are ordinarily to be considered as a single party for
the purpose of allocating the challenges. Where, however, the
interests of the plaintiffs or the interests of the defendants are
antagonistic or hostile, the trial court, in its discretion, may allow
the plaintiffs or the defendants separate peremptory challenges,
upon motion, and upon a showing that separate peremptory
challenges are necessary for a fair trial. In syllabus point three, the Price
Court (See footnote 9)
expanded upon the necessity for proof of antagonism
among co-parties, as follows.
In determining whether the interests of two or more
plaintiffs or two or more defendants are antagonistic or hostile
for purposes of allowing separate peremptory challenges under
Rule 47(b) of the West Virginia Rules of Civil Procedure , the
allegations in the complaint, the representation of the plaintiffs
or defendants by separate counsel and the filing of separate
answers are not enough. Rather, the trial court should also
consider the stated positions and assertions of counsel and
whether the record indicates that the respective interests are
antagonistic or hostile. In the case of two or more defendants,
the trial court should consider a number of additional factors
including, but not limited to: (1) whether the defendants are
charged with separate acts of negligence or wrongdoing, (2)
whether the alleged negligence or wrongdoing occurred at
different points of time, (3) whether negligence, if found against
the defendants, is subject to apportionment, (4) whether the
defendants share a common theory of defense and (5) whether
cross-claims have been filed. To warrant separate peremptory
challenges, the plaintiffs or defendants, as the case may be, as
proponents, bear the burden of showing that their interests are
antagonistic or hostile and that separate peremptory challenges
are necessary for a fair trial.
In its discussion of the issue of allocation of peremptory challenges in Price,
this Court cited with approval the methodology employed by the Supreme Court of Kentucky
in Sommerkamp v. Linton, 114 S.W.3d 811 (Ky. 2003). In that medical malpractice case, the
issue of the degree of disparate interests was raised, and the Supreme Court specified that the
rule does not require the defendants to demonstrate a certain degree of antagonism, but only
the existence of antagonism between the various healthcare providers at the time of jury
selection. . . . 114 S.W.3d at 816; see also Bowman v. Perkins, 135 S.W.3d 399 (Ky. 2004).
In Bayless v. Boyer, 180 S.W.3d 439 (Ky. 2005), the Kentucky Supreme Court addressed the
issue of whether the determination of antagonism is to be based upon pre-trial positions or
actual trial proceedings. The Court explained as follows:
Appellants have provided no specific rationale for
reversing the trial court on this issue and rely instead on a
general objection that the Appellees pursued a common defense
strategy throughout the trial. Appellees have each noted several
instances during the trial which demonstrated their antagonistic
interests. That being said, there is no need to recount each of
those instances here. As noted above, a trial court's ruling
[regarding peremptory challenges] . . . is necessarily made prior
to trial and a review of that decision need not focus on what
actually occurred during the proceedings.
180 S.W.3d at 448.
In the present case, the dispute between Dr. Burech and Nurse Asher regarding
Nurse Asher's alleged recommendations during the telephone conversation forms the basis
for the divergence of interest between the Appellees. The Appellees maintain that the lower
court properly acknowledged this issue and provided each Appellee with peremptory strikes,
effectively providing the Appellees with twice the number of peremptory challenges as the
Appellants enjoyed. The Appellants maintain that although the Appellees are separate
parties, there is not sufficient divergence of interest to justify the allocation of peremptory
challenges utilized by the trial court since the Appellees' defenses, experts, and theories were
intertwined and not entirely hostile to one another.
Examining the factors enumerated in Price, this Court observes that the record
reveals that the respective interests of Dr. Burech and Nurse Asher are indeed antagonistic.
Separate claims of negligence were alleged against Dr. Burech and Nurse Asher, the acts
occurred at different points in time, they were represented by separate counsel, and the verdict
form submitted to the jury required it to apportion liability, if found, between Dr. Burech and
the West Virginia University Board of Governors based upon Nurse Asher's actions. The
two did not share a common defense theory, and a specific factual dispute arose regarding the
conversation that occurred during the telephone call on the night Shawn was born. The
Appellants claimed that Nurse Asher was obligated to advise Dr. Burech regarding
treatments, Nurse Asher contended that she did provide such recommendation; and Dr.
Burech disputed that testimony. The provision of bicarbonate, volume, and generous oxygen
was one of the very essential issues at trial.
In examining this issue, the trial court very astutely explained:
There is sufficient adversity between the defendants; there's
separate counsel; there's separate theories set out against each
defendant within plaintiffs' complaint; separate answers were
filed. It's my recollection that the defendants each have their
own experts. The defendants, I believe, are on different sides of
the same issue, which is, at least in my estimation, a rather
critical issue in this case. The Board of Governors and Dr.
Burech, I believe, have a conflict between themselves and their
respective positions, as well as their respective recollections of
the events that lead us here today. And, therefore, I do not
believe that the defendants share a common defense theory
between them, enough to warrant the Court ordering them to
share strikes. This Court concludes that the trial court was keenly aware of the antagonism inherent in the
situation and properly provided peremptory strikes accordingly.
C. Partial Judgment as a Matter of Law
The trial court granted partial judgment as a matter of law, pursuant to Rule
50(a) of the West Virginia Rules of Civil Procedure (See footnote 10)
to the Board of Governors, holding that
the Appellants had failed to prove a violation of duty by Nurse Asher regarding the
administration of volume to Shawn. The trial court specified that Nurse Asher had no duty
to advise Dr. Burech to employ volume in his treatment of Shawn since an order for volume
had already existed in Dr. Burech's own orders prior to the telephone conversation between
Dr. Burech and Nurse Asher. The Board of Governors contends that even if that order had
not already existed in the file, Nurse Asher was under no duty to order Dr. Burech to do any
specific thing during her conversation with him.
In syllabus point three of Brannon v. Riffle, 197 W.Va. 97, 475 S.E.2d 97
(1996), this Court held as follows:
The appellate standard of review for the granting of a
motion for a [judgment as a matter of law] pursuant to Rule 50
of the West Virginia Rules of Civil Procedure is de novo. On
appeal, this court, after considering the evidence in the light most
favorable to the nonmovant party, will sustain the granting of a
[judgment as a matter of law] when only one reasonable
conclusion as to the verdict can be reached. But if reasonable
minds could differ as to the importance and sufficiency of the
evidence, a circuit court's ruling granting a [judgment as a matter
of law] will be reversed. In the present case, the Appellants' expert, Dr. Null, had testified that the volume order was
more likely than not already on Dr. Burech's order sheet at the time of the phone call in
question. Moreover, Dr. Burech also testified that he was certain that the cancellation of
the volume order, a choice Dr. Burech made upon weighing the risks and benefits of
administration of volume, occurred after the telephone conversation with Nurse Asher. When
asked whether at the time you spoke to Melissa Asher, you had in your head, in your mind,
and on that piece of paper, the thought process of providing volume, Dr. Burech answered,
That's correct. Thus, the trial court's conclusions regarding the absence of any duty on the
part of Nurse Asher to order the administration of volume were based upon the Appellants'
own medical expert, as well as the testimony of Dr. Burech. The trial court carefully
reviewed the issue and concluded as follows:
[T]he volume order was on the sheet at the time of the phone
call, and that, therefore, there could not be a deviation from the
standard of care, inasmuch as Nurse Asher had no duty to
recommend, advise, instruct, however you wish to characterize
it, of something that was already being considered or on the
The trial court continued by explaining that there was no credible evidence which exists
from which a reasonable jury could conclude that a deviation by Nurse Asher from the
standard of care was defined by Dr. Null, plaintiffs' expert.
Further, although the Appellants contend that the trial court advised the jury that
it had dismissed part of the claim against the Board of Governors, the trial court actually
stated only the following:
You are instructed that the Court has ruled that Melissa
Asher had no duty to advice (sic) Dr. Burech to give volume to
Shawn Murphy, therefore, you are not to consider whether or not
Melissa Asher advised Dr. Burech to give volume in determining
if she deviated from the standard of care.
Based upon this Court's review of this issue, we find no reversible error in the
trial court's determination that the partial judgment as a matter of law was appropriate. The
evidence was clear that the issue of the administration of volume had already been considered
prior to the telephone conversation between Nurse Asher and Dr. Burech. The trial court
correctly found that Nurse Asher was under no duty to advise Dr. Burech to provide volume
under these circumstances. The issue of Nurse Asher's advice to Dr. Burech with regard to
oxygen and bicarbonate was still permitted to proceed to the jury.
D. Testimony Regarding Availability of Future Benefits
The Appellants presented the testimony of Dr. Ellen Kitts regarding Shawn's
participation in West Virginia's Birth to Three program until he reached three years of age
and his receipt of certain therapies through the public school system. Dr. Al Condelucci, a
life care planner, also testified on behalf of the Appellants with regard to a life-care plan he
had authored for Shawn. During cross-examination of Dr. Condelucci, testimony was
admitted regarding educational or other public benefits or services available to Shawn. The
Appellants' objection to such testimony as collateral source evidence was overruled, and they
now assert error regarding the introduction of such evidence as an assignment of error on
West Virginia Code § 55-7B-9a(a) (2003) (Supp. 2008 ) addresses the potential
reduction in compensatory damages for economic loss based upon payments from collateral
sources and provides that testimony regarding collateral sources (See footnote 11)
is permitted after the trier
of fact has rendered a verdict. Specifically, the statute states:
(a) In any action arising after the effective date of this
section, a defendant who has been found liable to the plaintiff for
damages for medical care, rehabilitation services, lost earnings
or other economic losses may present to the court, after the trier
of fact has rendered a verdict, but before entry of judgment,
evidence of payments the plaintiff has received for the same
injury from collateral sources.
Upon thorough review of this matter, this Court declines to find reversible error
on this issue. In Ratlief v. Yokum,
167 W.Va. 779, 280 S.E.2d 584 (1981), this Court
observed that the admission of collateral source evidence is harmless where the jury did not
reach the damage issue but disposed of the case against the plaintiff on the liability issue. Id
. at 788, 280 S.E.2d at 590. That is precisely the situation in the present case since the jury
found for the Appellees on the issue of liability and never reached the issue of damages. (See footnote 12)
consequently find that any admission of testimony regarding future benefits to which Shawn
would have been entitled was harmless. (See footnote 13)
Based upon the foregoing, this Court reverses the trial court's denial of the
Appellants' motion for a new trial and remands this matter to the trial court for a new trial.
Pursuant to an administrative order entered on September 11, 2008, the
Honorable Thomas E. McHugh, Senior Status Justice, was assigned to sit as a member of
the Supreme Court of Appeals of West Virginia commencing September 12, 2008, and
continuing until the Chief Justice determines that assistance is no longer necessary, in light
of the illness of Justice Joseph P. Albright.
Dr. Miller, Dr. Battaglino, and Wheeling Hospital were dismissed with
prejudice following their settlement with the Appellants.
Although the allegations against Dr. Miller are not before this Court, it
appears that Dr. Miller had scheduled induced labor for Appellant Mrs. Murphy after a near
term amniocentesis was performed confirming fetal lung maturity. The first hospital
admission for inducing labor, November 18, 2002, to November 20, 2002, ended in failure
to progress despite attempts to induce labor.
This Court has explained that [a]ctual bias can be shown either by a juror's
own admission of bias or by proof of specific facts which show the juror has such prejudice
or connection with the parties at trial that bias is presumed. Syl. Pt. 5, State v. Miller, 197
W.Va. 588, 476 S.E.2d 535 (1996).
Bias, in its usual meaning, is an inclination toward one side of
an issue rather than to the other, but to disqualify, it must appear
that the state of mind of the juror leads to the natural inference
that he will not or did not act with impartiality. Prejudice is
more easily defined, for it means prejudgment and consequently
embraces bias; the converse is not true.
Compton v. Henrie
, 364 S.W.2d 179, 182 (Tex. 1963).
Rehabilitation is [the] commonly accepted terminology to describe the
questioning of a juror who has made a statement indicating bias or prejudice. It is an
inaccurate term, suggesting a goal of getting a juror to change the biased attitude. The
questioning should actually be for the purpose of clarification or elaboration. Daniel J.
Sheehan, Jr., and Jill C. Adler, Voir Dire: Knowledge Is Power
, 61 Tex. B.J. 630, 633
The plaintiff in Thomas
did not move to strike two of the jurors for cause.
This Court consequently found that the plaintiff had waived her right to allege error in this
appeal with respect to these two jurors. 218 W.Va. at 239, 624 S.E.2d at 586.
As noted above, the trial court's denial of the Appellants' motion to strike Dr.
Walter required the Appellants to utilize one of their peremptory strikes to remove him from
the jury panel. In finding abuse of discretion in failing to strike Dr. Walter, we further find
that the Appellants were prejudiced by this erroneous ruling to the extent that the jury which
ultimately heard the case returned an adverse verdict. See Black,
220 W.Va. at 630, 648
S.E.2d at 617; Doe v. Wal-Mart Stores, Inc
., 210 W.Va. 664, 670, 558 S.E.2d 663, 669
(2001) (A trial court's determination as to whether to strike a juror for cause will be
'reverse[d] only where actual prejudice is demonstrated.') (quoting Miller
, 197 W.Va. at
605, 476 S.E.2d at 552 (additional citation omitted)).
When the Appellants' motion to strike Mr. Heilman was denied, they utilized
a peremptory strike to remove him from the jury.
See also Kominar v. Health Management Associates of West Virginia, Inc
220 W.Va. 542, 551, 648 S.E.2d 48, 57 (2007) (It is an abuse of discretion for a trial court
to allow separate peremptory challenges absent such showing because of the risk of
affording co-parties a clear tactical advantage of collectively exercising their challenges
against their opponent rather than each other.)
Rule 50(a)(1) of the West Virginia Rules of Civil Procedure provides as
If during a trial by jury a party has been fully heard on an
issue and there is no legally sufficient evidentiary basis for a
reasonable jury to find for that party on that issue, the court may
determine the issue against that party and may grant a motion
for judgment as a matter of law against that party with respect
to a claim or defense that cannot under the controlling law be
maintained or defeated without a favorable finding on that issue.
West Virginia Code § 55-7B-2(b) (1986) (Supp. 2008) defines collateral
source as a source of benefits or advantages for economic loss that the claimant has
received from any of the following:
(1) Any federal or state act, public program or insurance
which provides payments for medical expenses, disability
benefits, including workers' compensation benefits, or other
similar benefits. Benefits payable under the Social Security Act
are not considered payments from collateral sources except for
Social Security disability benefits directly attributable to the
medical injury in question;
(2) Any contract or agreement of any group,
organization, partnership or corporation to provide, pay for or
reimburse the cost of medical, hospital, dental, nursing,
rehabilitation, therapy or other health care services or provide
(3) Any group accident, sickness or income disability
insurance, any casualty or property insurance (including
automobile and homeowners' insurance) which provides
medical benefits, income replacement or disability coverage, or
any other similar insurance benefits, except life insurance, to the
extent that someone other than the insured, including the
insured's employer, has paid all or part of the premium or made
an economic contribution on behalf of the plaintiff; or
(4) Any contractual or voluntary wage continuation plan
provided by an employer or otherwise or any other system
intended to provide wages during a period of disability.
This Court also notes that while the Appellants complain only about
testimony concerning the future benefits which would have been available to Shawn, the
Appellants also introduced testimony through Dr. Kitts regarding Shawn's receipt of public
services such as the Birth to Three program.
The Appellants also assert error with regard to the scope of the testimony of
experts, Dr. Cicco and Dr. Balducci. Based upon this Court's decision to reverse and
remand for a new trial on the issue of juror bias, we do not address the testimonial issues
regarding these experts.