John R. Mitchell, Sr.
Crystal S. Stump
E. Dixon Ericson Swartz & Stump, L.C.
John R. Mitchell, L.C. Charleston, West Virginia
Charleston, West Virginia Attorney for the Appellee
Attorneys for the Appellant
JUSTICE ALBRIGHT delivered the opinion of the Court.
JUSTICES DAVIS and MAYNARD concur and reserve the right to file concurring opinions.
1. A circuit court's entry of summary judgment is reviewed de novo. Syl.
Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).
2. 'A motion for summary judgment should be granted only when it is clear
that there is no genuine issue of fact to be tried and inquiry concerning the facts is not
desirable to clarify the application of the law. Syllabus Point 3, Aetna Casualty & Surety
Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).'
Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992).
Syl. Pt. 2, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).
3. A trial court is vested with discretion under W.Va. Code § 55-7B-7 (1986)
to require expert testimony in medical professional liability cases, and absent an abuse of that
discretion, a trial court's decision will not be disturbed on appeal. Syl. Pt. 8, McGraw v. St.
Joseph's Hosp., 200 W.Va. 114, 488 S.E.2d 389 (1997).
4. Upon a trial court's determination that an expert witness is required to prove standard of care or proximate cause in an action brought under the West Virginia Medical Professional Liability Act, West Virginia Code §§ 55-7B-1 to -11 (1986) (Repl.Vol.2000), a reasonable period of time must be provided for retention of an expert witness.
Appellant Edward M. Daniel appeals from the April 5, 2000, decision of the
Circuit Court of Kanawha County, granting summary judgment to Appellee Charleston Area
Medical Center, Inc. (CAMC) in a negligence action through which Appellant alleges
injuries resulting from a wheelchair in disrepair. Appellant asserts that the trial court failed
to permit him an opportunity required by the provisions of the West Virginia Medical
Professional Liability Act (hereinafter referred to as the Act or the Medical Liability
Act), West Virginia Code §§ 55-7B-1 to -11 (1986) (Repl.Vol.2000), to locate and identify
an expert witness. We conclude that the circuit court's grant of summary judgment was
premature, given its failure to expressly provide Appellant with a time period for identifying
an expert witness subsequent to the court's determination that an expert witness was required
by the facts of the case. Accordingly, we reverse.
Appellant states in his brief that neither he nor the defendant retained experts
for trial purposes [a]s the case was not complex and the damages claimed were not large.
On January 3, 2000, CAMC moved for summary judgment on the grounds that the Act
required Appellant to use expert testimony to establish that it had deviated from the standard
of care and that this deviation proximately caused Appellant's injuries. Following oral
argument on the issue of summary judgment, the trial court ruled that expert testimony was
not required under the facts of this case to establish a deviation from the standard of care
with regard to the act of negligence--the wheelchair fall--but that an expert would be
necessary to establish that this act of negligence was the proximate cause of Appellant's
physical and emotional injuries. Based on Appellant's admission that he had failed to
secure an expert to demonstrate proximate cause within the time frame allotted by the Court's
scheduling Order combined with its determination that an expert was necessary, the trial
court granted summary judgment to CAMC. Appellant seeks a reversal of this grant of
The Medical Liability Act, in a section dealing with pretrial procedures,
addresses the issue of expert witnesses, stating that:
(a) In each medical professional liability action against a health care provider, not less than nine nor more than twelve months following the filing of answer by all defendants, a mandatory status conference shall be held at which, in addition to any matters otherwise required, the parties shall:
(1) Inform the court as to the status of the action, particularly as to the identification of contested facts and issues and the progress of discovery and the period of time for, and nature of, anticipated discovery; and
(2) On behalf of the plaintiff, certify to the court that either an expert witness has or will be retained to testify on behalf of the plaintiff as to the applicable standard of care or that under the alleged facts of the action, no expert witness will be required. If the court determines that expert testimony will be required, the court shall provide a reasonable period of time for obtaining an expert witness and the action shall not be scheduled for trial, unless the defendant agrees otherwise, until such period has concluded. It shall be the duty of the defendant to schedule such conference with the court upon proper notice to the plaintiff.
W.Va. Code § 55-7B-6(a)(1), (2) (emphasis supplied).
Opposing the suggestion that the intent of the Medical Liability Act requires
additional time for the naming of Appellant's expert, CAMC argues that Appellant had
sufficient time prior to the summary judgment ruling to retain and disclose an expert.
Moreover, CAMC stresses that Appellant has failed to comply with the time constraints
specifically set forth in the circuit court's scheduling order with regard to the naming of
expert witnesses. Based on the fact that Appellant failed to locate and hire an expert witness,
despite being subject to the mandates of the scheduling order, CAMC contends that
Appellant is not entitled to the additional time which it now seeks for expert retention
purposes. In CAMC's opinion, the procedures of the Act with regard to expert retention are
self-evident and do not hinge upon the order of a trial court. Since Appellant had an
obligation from day one to retain an expert for proof of standard of care, CAMC reasons that
no additional time should now be allotted Appellant.
In syllabus point eight of McGraw v. St. Joseph's Hospital, 200 W.Va. 114,
488 S.E.2d 389 (1997), we made clear that the issue of expert witnesses is within the trial
court's discretion under the Medical Liability Act: A trial court is vested with discretion
under W.Va. Code § 55-7B-7 (1986) to require expert testimony in medical professional
liability cases, and absent an abuse of that discretion, a trial court's decision will not be
disturbed on appeal. Pursuant to this statutory grant of discretion, the trial court made a
determination that an expert witness, while not required on the issue of standard of care,See footnote 2
required on the issue of proximate cause. In support of its decision to require an expert on
proximate cause, the trial court cited this Court's ruling in Short v. Appalachian OH-9, Inc.,
203 W.Va. 246, 507 S.E.2d 124 (1998), in which we held that the circuit court has the
discretion to determine whether the plaintiff is required to obtain an expert witness
concerning both the standard of care applicable to the emergency medical service provider
and whether the alleged breach of that standard of care proximately caused the death of the
infant. . . . Id. at 247, 507 S.E.2d at 125, syl. pt. 5, in part.
The Appellant disagrees with the trial court's decision to immediately grant
summary judgment to CAMC without granting him an opportunity to locate an expert
witness on the proximate cause issue.See footnote 3
Because this case has been determined to fall within
the parameters of the Medical Liability Act,See footnote 4
the provisions of the Act necessarily control our
decision in this case. In section six, which governs the issue of expert retention, the Medical
Liability Act contemplates that the issue of experts will be resolved during a mandatory
status conference in requiring the plaintiff to certify to the court that either an expert witness
has or will be retained to testify . . . as to the applicable standard of care or that under the
alleged facts of the action, no expert witness will be required. W.Va. Code § 55-7B-6(a)(2).
The final determination regarding the need for an expert witness, as the Act makes clear, is
a matter for the trial court: If the court determines that expert testimony will be required,
the court shall provide a reasonable period of time for obtaining an expert witness[.] Id.
In its summary judgment ruling, the trial court reasoned:
The plaintiff failed to identify any expert for purposes of establishing proximate cause on or before December 10, 1999, which is the date demanded by the Court's scheduling Order. Moreover, the plaintiff has articulated a strategy that would rely wholly upon lay testimony to establish all elements of the claim. The Court, however, concludes the claim cannot be established without expert testimony. Accordingly, this Court can only conclude the plaintiff failed to make a sufficient showing on the element of proximate cause to support his claim.
Not until this ruling of the trial court was it clear that the action would be resolved pursuant
to the provisions of the Medical Liability Act or that an expert witness was required. While
West Virginia Code § 55-7B-6(a)(2) does not expressly address the use of expert witnesses
for proximate cause purposes, the discretion vested in the trial judge by this provision to
make determinations regarding the need for expert witness testimony coupled with our prior
decision in Short compels the conclusion that upon a trial court's determination that an expert
witness is required to prove standard of care or proximate cause in an action brought under
the Medical Liability Act, a reasonable period of time must be provided for retention of an
expert witness. See Short, 203 W.Va. at 247, 507 S.E.2d at 125, syl. pt. 5.
Through its grant of summary judgment simultaneous with its decision
concerning the need for an expert on the issue of proximate cause, the trial court failed to
comply with the mandatory language of West Virginia Code § 55-7B-6(a)(2), which requires
the provision of a reasonable period of time for expert retention. Logic suggests that this
mandate of requiring a reasonable period of time must follow any determination by a trial
court regarding the need for an expert, and not precede such determination. Because the
lower court failed to accord Appellant any time whatsoever following its decision regarding
the need for an expert witness on proximate cause, we conclude that the lower court erred
in granting summary judgment to CAMC.
Based on the foregoing, the decision of the Circuit Court of Kanawha County
is hereby reversed.
CAMC in this case. W.Va. Code § 55-7B-6(a)(2).