| Marvin W. Masters, Esq.|
Julie N. Langford, Esq.
The Masters Law Firm, LC
Charleston, West Virginia
Attorneys for Appellant Price
| Dina M. Mohler, Esq.
Cheryl A. Eifert, Esq.
Office of the General Counsel
Charleston Area Medical Center, Inc.
Charleston, West Virginia
Attorneys for Appellee
Charleston Area Medical Center, Inc.
Charles R. Bailey, Esq.
Susan M. Harman, Esq.
George J. Joseph, Esq.
Bailey & Wyant, PLLC
Charleston, West Virginia
Attorneys for Appellee
University of West Virginia Board of Trustees
Mark A. Robinson, Esq.
C. Benjamin Salango, Esq.
Flaherty, Sensabaugh & Bonasso, PLLC
Charleston, West Virginia
Attorneys for Appellee
Associated Radiologists, Inc.
In this appeal, the appellant and plaintiff below, Ercelle E. Price, challenges the December 4, 2003, order of the Circuit Court of Kanawha County, West Virginia, denying his motion for a new trial following an adverse jury verdict in his medical malpractice action. The appellees and defendants below are Charleston Area Medical Center, Inc.; University of West Virginia Board of Trustees; and Associated Radiologists, Inc. The appellant's cause of action was based upon the alleged failure of the appellees to timely diagnose and treat his appendicitis and ruptured appendix. The appellant contends that, as a result, he suffered medical complications and permanent injury.
This Court has before it the petition for appeal, all matters of record and the briefs and argument of counsel. One of the appellant's assignments of error concerns the assertion that the Circuit Court erred in granting, sua sponte, each of the appellees 3 peremptory challenges from the panel of 20 potential jurors. According to the appellant, the total of 9 peremptory challenges thus granted the appellees, compared to the 3 peremptory challenges granted him, resulted in the denial of a fair and impartial jury, especially since, as the appellant argues, the appellees presented a united defense against him.
Upon careful review, this Court finds merit in the appellant's assertion concerning the peremptory challenges afforded to the parties. Therefore, for the reasons expressed herein, the December 4, 2003, order of the Circuit Court is reversed, and this action is remanded to that Court for a new trial.
specifically, syllabus point 4 of Sanders v. Georgia-Pacific Corp., 159
W.Va. 621, 225 S.E.2d 218 (1976), holds: 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. 2, Phares v. Brooks, 214 W.Va. 442, 590 S.E.2d 370 (2003); syl. pt.
2, Heitz v. Clovis, 213 W.Va. 197, 578 S.E.2d 391 (2003); syl. pt. 1, Matheny
v. Fairmont General Hospital, 212 W.Va. 740, 575 S.E.2d 350 (2002); syl.
pt. 2, Witt v. Sleeth, 198 W.Va. 398, 481 S.E.2d 189 (1996).
Here, although the Circuit Court conducted a hearing upon the appellant's motion for a new trial, the order of December 4, 2003, does not set forth reasons as to why the motion was denied.
Rule 47(b) of the West Virginia Rules of Civil Procedure, concerning peremptory challenges, provides as follows:
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 peremptory 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.
A fair reading of Rule 47(b) suggests that it provides a circuit court with the degree of flexibility or discretion required in determining the number of additional peremptory challenges to be allowed in a trial involving multiple parties where the interests of co-plaintiffs or co-defendants are antagonistic or hostile. The authority of a circuit court in that regard may be found in two West Virginia cases which predate the adoption of the West Virginia Rules of Civil Procedure: Tawney v. Kirkhart, 130 W.Va. 550, 44 S.E.2d 634 (1947), and Horchler v. Van Zandt, 120 W.Va. 452, 199 S.E. 65 (1938). (See footnote 5) Syllabus point 3 of Horchler holds: It is not prejudicial error against a defendant in a law action for the trial court to place in the jury box twenty-four qualified jurors in order that defendants having antagonistic interests in the case may be afforded opportunity for separate peremptory challenges. (See footnote 6)
In Tawney v. Kirkhart, this Court recognized that defendants whose interests are the same exercise the right to peremptory challenges in common. However, where the interests of defendants are hostile, upon motion and proper showing it is error to decline the statutory number of peremptory challenges to each defendant. 130 W.Va. at 561, 44 S.E.2d at 641. Nevertheless, concluding, in Tawney, that a proper showing for separate peremptory challenges with regard to the defendant railroad company and defendant Kirkhart had not been made, the opinion states:
The testimony at the trial fully justifies the statement of counsel for the railroad company that the interests of Kirkhart and their client were conflicting and hostile. There was, however, no showing of that nature before the Circuit Court at the time of the motion nor was the motion accompanied by an offer of such a showing. In this instance an examination of the pleadings possibly would show hostility, but we do not believe the mere statement that conflicting interests exist, without more, required the judge to take the initiative in inspecting the pleadings. If the pleadings are depended upon as the required showing the movant should direct the attention of the court to the reasons for so regarding them. Otherwise it is not error to disregard them.
130 W.Va. at 561-62, 44 S.E.2d at 641. (See footnote 7) See also, F. Cleckley, R. Davis, L. Palmer, Litigation Handbook on West Virginia Rules of Civil Procedure, p. 841 n. 380 (Juris Publishing 2002).
What the reasoning in Tawney brings to Rule 47(b) is twofold: (1) that the granting of separate peremptory challenges to two or more plaintiffs or two or more defendants must be upon the basis that the interests of the plaintiffs or of the defendants are antagonistic or hostile and (2) that the plaintiffs or the defendants, as the case may be, bear the burden of showing both the existence of such adversity and that the granting of separate peremptory challenges is necessary for a fair trial. As discussed below, those principles are consistent with various cases from other jurisdictions.
v. Kalmbacher, 65 Md.App. 595, 501 A.2d 499 (1985), cert. denied,
305 Md. 621, 505 A.2d 1342 (1986), the plaintiff, Kloetzli, appealed from an
adverse jury verdict in a personal injury action brought against a police officer
and the Mayor and City Council of Baltimore City. Kloetzli asserted that the
trial court committed error in granting each of the defendants separate peremptory
challenges. The applicable procedural rule provided in part: [S]everal
plaintiffs or several defendants shall be considered as a single party unless
the court determines that adverse or hostile interests between plaintiffs or
between defendants justify allowing to each of them separate peremptory challenges
The Court of Special Appeals of Maryland held, in Kloetzli, that the granting of the additional peremptory challenges did not constitute an abuse of discretion because, as a result of the statements and representations of respective counsel placed upon the record during the jury selection process, a basis was established before the trial court showing adversity in the interests of the defendants and that the additional challenges were justified. (See footnote 8) As the Court in Kloetzli said:
We hold that the determination
of whether multiple plaintiffs or multiple defendants are entitled to additional
challenges under Rule 2-512(h) involves a two step process. First, the court
must make a factual finding of adverse or hostile interest, and second, the court,
in its discretion, must determine whether that interest would justify allowing
the added challenges. Furthermore, the burden of establishing the existence of
that adverse or hostile interest is upon the proponent of the request. * * *
The adversity between [the proponents] must be found or not found as of the time
the decision on separate challenges is made.
65 Md.App. at _ , 501 S.E.2d at 501, 503.
Similarly, in Sommerkamp v. Linton, 114 S.W.3d 811 (Ky. 2003), the trial court granted separate peremptory challenges to multiple defendants. In Sommerkamp, the plaintiff brought an action against several health care providers for the alleged failure to appropriately diagnose and treat a soft tissue strain to her left forearm. According to the plaintiff, the negligence of the providers resulted in serious complications and the need for corrective surgeries. The relevant procedural rule provided: In civil cases each opposing side shall have three peremptory challenges, but co-parties having antagonistic interests shall have three peremptory challenges each.
Upholding a jury verdict for the defendants, the Supreme Court of Kentucky in Sommerkamp held that, under the circumstances disclosed in the record, the trial court's granting of the separate peremptory challenges did not constitute an abuse of discretion. In so holding, the Court stated that the primary factors to be considered in determining if co- parties have antagonistic or hostile interests include: (1) whether the co-parties are charged with separate acts of negligence, (2) whether they share a common theory of the case and (3) whether they have filed cross-claims. 114 S.W.3d at 815. Moreover, as the Court indicated: Additional important factors are whether the defendants are represented by separate counsel; whether the alleged acts of negligence occurred at different times; whether the defendants have individual theories of defense; and whether fault will be subject to apportionment. 114 S.W.3d at 815.
Concluding that the trial court properly exercised its discretion, the Court, in Sommerkamp, observed:
Here, the trial judge reached
a well-reasoned decision based on established precedent, and there is no basis
for a finding of an abuse of discretion or any clear error. The trial judge held
a pretrial conference on the issue of peremptory challenges and made a specific
finding that the antagonism existed between the defendants. The trial judge based
his decision on a number of factors that weighed in favor of antagonism. The
defendants were charged with separate acts of negligence, were represented by
separate counsel and had individual theories of the case and apportionment of
fault issues. These reasons were set out in an order issued to all parties.
114 S.W.3d at 811.
In King v. Special Resource Management, 256 Mont. 367, 846 P.2d 1038 (1993), the Supreme Court of Montana held that parties seeking additional peremptory challenges must request them prior to trial and that, to afford a basis for review, the trial court should expressly set forth in the record the reasons for its ruling and the facts on which it relied in making its decision. 256 Mont. at _ , 846 P.2d at 1042. (See footnote 9) See also, Thompson v. Presbyterian Hospital, supra, 652 P.2d at 262, indicating that, to justify additional peremptory challenges, co-parties must affirmatively show the presence of a serious dispute among them.
In Barker v. Benefit Trust Life Insurance Company, 174 W.Va.187, 324 S.E.2d 148 (1984), this Court observed that a litigant's right to peremptory challenges of prospective jurors is considered necessary to secure an impartial and unbiased jury. 174 W.Va. at 190, 324 S.E.2d at 151. To safeguard that proposition, this Court concludes that the principles expressed in Horchler and Tawney concerning the propriety of allowing additional peremptory challenges should be updated to assist circuit courts in this State in the exercise of their discretion under Rule 47(b).
Accordingly, this Court holds that 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. Specifically, 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.
Finally, in ruling upon the request of two or more plaintiffs or two or more defendants for separate peremptory challenges under Rule 47(b) of the West Virginia Rules of Civil Procedure, the trial court shall set forth, on the record, its reasons for so ruling in a manner sufficient to permit meaningful appellate review.
In this action, the Circuit Court, sua sponte, informed counsel for the parties that it was going to grant each of the appellees separate peremptory challenges from the panel of 20 potential jurors, i.e., 9 overall challenges for the appellees and 3 for the appellant. No reason for that ruling was given until it was challenged by the appellant's counsel at which time the Circuit Court briefly indicated that additional challenges were being granted the appellees because the appellant had alleged separate theories against them and because CAMC was not the appellees' superior. No further comment was made by the Circuit Court during the jury selection process; nor did counsel for the appellees move for or set forth any reasons or grounds in support of the ruling. Soon after, final jury selection was completed, and opening statements began.
As indicated in Tawney, supra, the mere statement that conflicting interests exist, without more, is not sufficient to warrant the granting of separate peremptory challenges to one or more defendants in a civil trial. What the above case decisions have in common, inter alia, is that the decision to grant separate peremptory challenges must be based upon a determination, from the factors existing at the time the ruling is made, that antagonistic or hostile interests are shown and that separate peremptory challenges are necessary for a fair trial. With the question of an impartial jury and a fair trial arising in such circumstances, the trial court's ruling and its reasons therefor must be placed upon the record for purposes of appellate review. The ruling of the Circuit Court, in this action, does not withstand scrutiny under those standards.
Here, the question of whether the interests of the appellees were adverse was in need of a more thorough resolution by the Circuit Court. On the one hand, the appellees were not united because they were in conflict over whether Dr. Smith of Associated Radiologists, Inc., should have read the appellant's CT scan as suggesting appendicitis rather than an ileus, i.e., Dr Smith indicated that he was not told by the other practitioners to rule out appendicitis. Moreover, when it was discovered that certain, original laboratory reports concerning the appellant were missing, the responsibility therefore fell upon CAMC rather than the other appellees. Finally, inasmuch as a number of days elapsed between the appellant's arrival at the emergency room and the discovery that his appendix had ruptured, the alleged negligence of the appellees may have been diverse and, therefore, subject to antagonistic or hostile defenses. On the other hand, the above conflicts among the appellees can be interpreted as non-dispositive and that the appellant is reasonable in his suggestion that the appellees were unified in their defense, i.e., that, in view of the difficulty of making a clear diagnosis of his immediate medical problem, a close observation of the appellant over a period of time at CAMC, in conjunction with further examination and tests, did not constitute a deviation from the standard of care and did not proximately cause his injuries. Such adverse considerations, a fortiori, required a more complete development on the record of the ruling of the Circuit Court in granting the separate peremptory challenges.