Submitted: January 12, 1994
Filed: May 26, 1994
H. Truman Chafin
Gretchen Lewis Chafin
Williamson, West Virginia
Attorneys for the Appellant
Richard W. Stuhr
William J. Cooper
Jacobson, Maynard, Tuschman & Kalur
Charleston, West Virginia
Attorneys for the Appellee
The Opinion of the Court was delivered PER CURIAM.
1. "In the absence of a written stipulation by the
parties, the better rule is to leave the question of the manner of
handling the offset occasioned by the settlement by a joint
tortfeasor, as well as the manner of informing the jury that such
party has been dismissed from the lawsuit, to the sound discretion
of the trial court." Syllabus point 2, Groves v. Compton, 167
W.Va. 873, 280 S.E.2d 708 (1981).
2. "In determining whether there is sufficient evidence
to support a jury verdict, the court should: (1) consider the
evidence most favorable to the prevailing party; (2) assume that
all conflicts in the evidence were resolved by the jury in favor of
the prevailing party; (3) assume as proved all facts which the
prevailing party's evidence tends to prove; and (4) give to the
prevailing party the benefit of all favorable inferences which
reasonably may be drawn from the facts proved." Syllabus point 5,
Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1983), cert. denied,
469 U.S. 981, 105 S.Ct. 384, 83 L.Ed.2d 319 (1984).
This case involves an appeal by the plaintiff below,
Connie Matney, now appellant, from the May 14, 1992, final order of
the Circuit Court of Cabell County, West Virginia, which refused
the appellant's motion for a new trial.
Troy Matney suffered a back injury in a mine accident in
1987. On September 7, 1988, he underwent a spinal fusion surgery
performed by Dr. Robert Lowe, M.D. Mr. Matney had pre-existing
allergic asthma, which was followed during the initial part of his
hospitalization by a pulmonary specialist, Dr. Hoyt Burdick, until
September 9, 1988. At that point, Dr. Burdick noted that Matney's
lungs were clear and the patient was stable. After a chest x-ray
was determined to be clear, Dr. Burdick signed off the case.
On September 11, 1988, the nursing staff noted that Mr.
Matney had a temperature of 101.4. Dr. Clinton Pace, a hospital
resident, examined Mr. Matney and noted that he complained of some
pleuritic right chest and shoulder pain. Dr. Pace also noted that
the patient had decreased vital capacity in his lungs and had
coughed up mucus. A chest x-ray was scheduled for the following
morning. Dr. Lowe saw Mr. Matney the following morning and ordered
blood gases and a ventilation perfusion scan (VQ scan). The chest
x-ray and VQ scan were examined by Dr. Hans Dransfeld. On September 12, 1988, Dr. Dransfeld reported that the VQ scan had a
"low probability for pulmonary embolus. The chest x-ray showed
vaguely defined areas of infiltration through the lung bases,
suggesting an inflammatory etiology." Thus, pneumonia was
diagnosed, and Mr. Matney was treated with intravenous antibiotics.
On September 14, 1988, a follow-up chest x-ray was
performed which showed "minimal clearing of the haziness at the
right base with residual infiltrate and/or pleural fluid in that
region." On September 16, 1988, Dr. Pace noted that Mr. Matney's
temperature had been 101.4 the previous midnight and his white
count was elevated. Dr. Lowe discharged Mr. Matney on
September 16, 1988. On September 17, 1988, Mr. Matney died at
home. The medical examiner determined that the cause of death was
a massive pulmonary thrombo embolism.
Suit was filed in 1990 against Drs. Lowe, Dransfeld,
Burton, Burdick, Pace, and St. Mary's Hospital. St. Mary's
Hospital and Dr. Burdick were voluntarily dismissed by the
plaintiff prior to trial. On the morning of trial, Drs. Dransfeld
and Burton settled with the plaintiff. Also on the morning of
trial, Dr. Pace was voluntarily dismissed when the John Marshall
School of Medicine was substituted in place of Dr. Pace. Shortly
thereafter, the School of Medicine settled with the plaintiff.
Thus, Dr. Lowe was the only defendant remaining in the trial.
At trial, evidence was adduced by the plaintiff from two
expert witnesses, Dr. David Lincoln and Dr. Roger Maxfield. Dr.
Lincoln, an orthopedic surgeon, testified that Dr. Lowe had fallen
below the standard of care in his treatment of Mr. Matney. Dr.
Maxfield likewise testified that Dr. Lowe had fallen below the
standard of care. However, he also testified that Dr. Dransfeld
had fallen below the standard of care in his interpretation of the
VQ scan. According to Dr. Maxfield, the VQ scan should not have
been interpreted by Dr. Dransfeld as determining a low probability
for pulmonary emboli. He contended that the VQ scan should have
been interpreted as indeterminant, which would probably have
changed Dr. Lowe's response. Dr. Lowe's attorneys pointed to Dr.
Maxfield's statement that the misinterpretation of the scan was
"probably the major point in the problem." Thus, Dr. Lowe's
attorneys argued that Dr. Lowe acted only upon what was told to him
by Dr. Dransfeld, that it was Dr. Dransfeld's duty to interpret the
VQ scan, and that, consequently, Dr. Lowe was not liable for Troy
In December, 1988, the jury ruled that neither Dr. Lowe
nor Dr. Dransfeld were negligent in this case. The plaintiff's
motion for a new trial was denied by the Circuit Court of Cabell
County on May 14, 1992. It is from this final ruling that the
plaintiff below, now appellant, appeals.
The appellant's primary assignment of error is that the
trial court erred in permitting the defendant to mention the
existence of other defendants in this case. Otherwise, the jury
would have had no idea that other defendants had been involved,
because they had all either settled or been dismissed prior to the
trial. Counsel for Dr. Lowe informed the court that, while he had
no intention of referring to any settlement amount, he felt the
jury was entitled to know that Dr. Lowe was one of several
defendants against whom allegations of negligence had been made.
Plaintiff's counsel objected. The court stated that "Well, you are
probably right in that respect. I may let him go that far. We'll
take it up at the time. I may very well let you do that. There is
still a comparative thing here." The trial judge concluded that he
would allow defense counsel to ask Dr. Dransfeld if he had been a
defendant in the case and if there had been allegations made
against him, noting that, as a treating physician, the jury could
well allocate negligence against him under the theory of
comparative negligence. The court told defense counsel that he
could advise the jury that there were defendants who had been
parties to the case at one time, though they were no longer
parties. However, no mention of settlement money was to be made.
The appellant complains that the court erred in allowing
this testimony, claiming it prejudiced the jury into finding no
liability because the jury thought the plaintiff had received sufficient compensation through prior settlements. Specifically,
the appellant points to several incidents. First, the defense
counsel asked Dr. Dransfeld who sued him. Plaintiff's counsel
objected and was overruled because the court stated that the
appellant was trying to transfer the blame from Dr. Dransfeld. The
trial judge then advised defense counsel that he could not go much
further on that issue. Shortly thereafter, in the same line of
questioning, defense counsel asked whether Dr. Lowe had sued Dr.
Dransfeld. Counsel objected, which objection was sustained. The
appellant's primary charge of error relates to defense counsel's
statement that "the only reason that they want you to ignore Dr.
Dransfeld is because he is not a defendant. There is no pot of
gold at the end of that rainbow. Only at the end of Dr. Lowe's.
So now they want you to ignore the fact that their own expert took
the stand and stated that the critical mistake was made by a non-
defendant." The court overruled the appellant's objection to this
statement. The rationale seems to be that since the appellant
tried to push the blame off Dr. Dransfeld and onto Dr. Lowe, the
jury had the right to know that Dr. Dransfeld had been a defendant
prior to trial and the appellant had reason to attempt to shift the
blame away from Dr. Dransfeld.
Appellant's counsel contends that it was highly
prejudicial for the court to allow defense counsel to repeatedly
mention that the other doctors were former defendants and to blatantly state that there is no "pot of gold" at the end of Dr.
Dransfeld's rainbow. Appellant's counsel contends that it became
clear to the jury that some doctors had, in fact, settled: "The
jury was then left to speculate as to how much money the plaintiff
had already received. Certainly, the jury was curious as to why
they were not informed. And even more certainly, the jury felt
that the plaintiff was attempting to deceive them in some way when
the plaintiff was not allowed to answer, in any fashion, defense
counsel's repeated assertions about other doctors being sued and no
longer being in this case."
We disagree with the appellant's argument. There is no
hard and fast rule in West Virginia regarding the use of testimony
concerning settlements and dismissals at trial. In Groves v.
Compton, 167 W.Va. 873, 280 S.E.2d 708 (1981), the Court stated
that "[w]e do not believe that any fixed rule can be set except to
state that neither counsel should be permitted to take unfair
advantage of the settlement and dismissal in presenting and arguing
their case." Id. at 712. "In the absence of a written stipulation
by the parties, the better rule is to leave the question of the
manner of handling the offset occasioned by the settlement by a
joint tortfeasor, as well as the manner of informing the jury that
such party has been dismissed from the lawsuit, to the sound
discretion of the trial court." Id. at syl. pt. 2. In Groves, the
Court contemplated situations such as this and allowed the trial court the choice of whether to permit the testimony. In this case,
the trial court did not abuse its discretion.
The appellant's remaining assignment of error, that the
verdict was against the weight of the evidence, is without merit.
In Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1983), cert.
denied, 469 U.S. 981, 105 S.Ct. 384, 83 L.Ed.2d 319 (1984), the
Court stated that "[i]n determining whether there is sufficient
evidence to support a jury verdict, the court should: (1) consider
the evidence most favorable to the prevailing party; (2) assume
that all conflicts in the evidence were resolved by the jury in
favor of the prevailing party; (3) assume as proved all facts which
the prevailing party's evidence tends to prove; and (4) give to the
prevailing party the benefit of all favorable inferences which
reasonably may be drawn from the facts proved." Id. at syl. pt. 5.
There is more than enough evidence in the record which
would support the jury's finding that Dr. Lowe was not negligent.
The testimony of the appellant's own expert, Dr. Maxfield, pointed
out that Dr. Lowe had relied upon the radiologist's erroneous
interpretation of the VQ scan. Thus, the jury verdict was not
contrary to the weight of the evidence Accordingly, we affirm the
May 14, 1992 order of the Circuit Court of Cabell County.