This proceeding addresses two appeals from a medical malpractice action involving the same parties: Nashala Sydenstricker, plaintiff below, appellant and appellee (hereinafter referred to as Ms. Sydenstricker), and Dr. Petaiah Mohan, defendant below, appellee and appellant (hereinafter referred to as Dr. Mohan). Ms. Sydenstricker appeals from an order of the Circuit Court of Raleigh County denying her motion for a new trial. In Ms. Sydenstricker's appeal, she argues that she should have been granted a new trial, because the circuit court erred during the trial by: (1) allowing evidence of negligence committed by Dr. Carlos Lucero, a dismissed co-defendant; (2) allowing evidence that Dr. Mohan continued to treat her son after she sued Dr. Mohan for malpractice; (3) denying a motion to bifurcate liability and damages; (4) permitting Dr. Mohan to present inconsistent defenses; and (5) denying a new trial when the weight of the evidence justified a new trial. Here, Dr. Mohan contends that the circuit court erred in approving a settlement between Ms. Sydenstricker and Dr. Lucero; and further erred in denying his motion to set aside the settlement agreement. (See footnote 1) We consolidated these two appeals for the purpose of rendering our decision. After a thorough review of the briefs, the designated record, and the oral arguments of the parties, we affirm the circuit court's denial of Ms. Sydenstricker's motion for a new trial. Further, we dismiss Dr. Mohan's appeal as moot.
ruling of a trial court in granting or denying a motion for a new trial is entitled
to great respect and weight, [and] the trial court's ruling will be reversed
on appeal [only] when it is clear that the trial court has acted under some misapprehension
of the law or the evidence. Syl. pt. 4, in part, Sanders v. Georgia-Pacific
Corp., 159 W. Va. 621, 225 S.E.2d 218 (1976).
Moreover, in Tennant v. Marion Health Care Foundation, 194 W. Va. 97, 104, 459 S.E.2d 374, 381 (1995), we explained:
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.
Our cases have made clear that [a]n appellate court will not set aside the verdict of a jury, founded on conflicting testimony and approved by the trial court, unless the verdict is against the plain preponderance of the evidence. Syl. pt. 2, Stephens v. Bartlett, 118 W. Va. 421, 191 S.E. 550 (1937). Accord Yates v. University of West Virginia Bd. of Trustees, 209 W. Va. 487, 494, 549 S.E.2d 681, 688 (2001). Therefore,
determining whether the verdict of a jury is supported by the evidence, every
reasonable and legitimate inference, fairly arising from the evidence in favor
of the party for whom the verdict was returned, must be considered, and those
facts, which the jury might properly find under the evidence, must be assumed
Syl. pt. 3, Walker v. Monongahela Power Co., 147 W. Va. 825, 131 S.E.2d 736 (1963). Accord In re Tobacco Litigation, 215 W. Va. 476, ___, 600 S.E.2d 188, 192 (2004).
respect to the appeal by Dr. Mohan, we are called upon to review the trial court's
determination that the settlement agreement between Dr. Lucero and Ms. Sydenstricker
was made in good faith. We have held that when this Court undertakes the
appellate review of a circuit court's order [involving] a settlement agreement,
an abuse of discretion standard of review is employed. DeVane v. Kennedy,
205 W. Va. 519, 527, 519 S.E.2d 622, 630 (1999).
With these standards in mind, we proceed to review the issues presented by the particular circumstances before us. Additional standards that are specific to certain issues addressed in this opinion will be discussed in connection with our analysis of those issues.
that's the screwy thing we have. We have the defendant and the primary treating
physician all in one person, which is something that I've never encountered in
the dozens and dozens of medical malpractice cases I have been associated with.
I don't think we can find any case law anywhere on this situation, because its
such a curious circumstance.
And I appreciate the gravity of this motion. This is the case breaker. And I don't know whether the attorneys are aware of the circumstance, but this will determine the outcome of this trial, and that's why I couldn't sleep last night, because I appreciated the gravity of this matter, because if the doctor is allowed to testify as not only the defendant, but as the continuing treating physician of the child, the jury will wonder how in the world this woman is suing the doctor for millions of dollars, and yet bringing him regularly _ the child _ for treatment.
. . . .
Well, there's no question that it will prejudice the jury. Unfortunately, every bit of evidence that comes into court usually has some prejudicial value. It is my job, as the gatekeeper, to make sure that the probative value outweighs the prejudicial value.
. . . .
Here we have a most curious circumstance that I have already identified. The treating physician and the defendant are all rolled up into one person. Dr. Mohan is the one person on the planet that knows the most about the medical condition of this child. I think it would be improper to exclude him. I'm rapidly trying to think of ways to try to limit the extreme prejudice that will result, and I would be happy to try to work out a limiting instruction. I'll consider anything that is submitted, but I don't think I can keep this testimony out by any stretch of the imagination.
The circuit court's comments indicate that the evidence concerning Dr. Mohan's treatment of the child, after the action was filed against him, was highly prejudicial. However, the circuit court determined that, in spite of such prejudice, the probative value of Dr. Mohan's testimony demanded that he be allowed to provide evidence of his continued care for Michael. (See footnote 14) The circuit court's implicit Rule 403 analysis is consistent with observations made by Professor Franklin D. Cleckley:
very common error for novice counsel is to object to evidence as prejudicial
to my client. A party is always prejudiced by relevant, damaging evidence
admitted by the opponent, and the law will not exclude evidence on the basis
of prejudice. Counsel must use unfair prejudice, cite
Rule 403, and apply the balancing test. The fact that evidence is prejudicial
is not grounds for its exclusion. It is safe to say that almost all evidence
introduced is prejudicial in one degree or another; indeed, that is usually why
it is introduced. If the prejudice caused by the evidence outweighs its probative
value, it should be excluded. . . . The fact that a piece of evidence hurts
a party's chances does not mean it should be automatically excluded. If that
were true, there would be precious little left in the way of probative evidence
in any case. The question is not one of prejudice, but unfair prejudice under
Therefore, Rule 403 was never intended to exclude relevant evidence simply because it is detrimental to one party's case. . . .
1 Cleckley, Handbook on Evidence § 4-3(B)(1), at 4-38. See also Turner v. Northwest Arkansas Neurosurgery Clinic, P.A., 133 S.W.3d 417, 422 (Ark. Ct. App.) ([T]he mere fact that evidence is prejudicial to a party does not make it inadmissible; it is only excludable if the danger of unfair prejudice substantially outweighs its probative value.); Doe v. Christoforo, 865 A.2d 444, 449 (Conn. App. Ct. 2005) ([A]ll adverse evidence is damaging to one's case, but it is inadmissible only if it creates undue prejudice so that it threatens an injustice were it to be admitted.); Waknin v. Chamberlain, 653 N.W.2d 176, 179 (Mich. 2002) (Evidence is not inadmissible simply because it is prejudicial. Clearly, in every case, each party attempts to introduce evidence that causes prejudice to the other party.).
In view of the foregoing, we hold that a defendant who continues to be the treating physician for a plaintiff after the plaintiff files a medical malpractice complaint against him/her, may testify regarding his/her post-complaint treatment of the plaintiff, so long as the probative value of the testimony is not substantially outweighed by the danger of unfair prejudice pursuant to Rule 403 of the West Virginia Rules of Evidence.
In the instant proceeding, Dr. Mohan's testimony, from which the jury could conclude that he was the treating physician for Michael after the lawsuit was filed against him, was highly prejudicial. (See footnote 15) However, the probative value of Dr. Mohan's testimony was critical for assessing issues pertaining to liability and damages. Specifically, this evidence would aid the jury in assessing when the irreparable harm from the herpes virus actually occurred, the harm caused by the virus prior to trial, as well as the post-trial long-term effects of the virus. Consequently, on this record we cannot say that the prejudice flowing from such testimony outweighed its probative value. Thus, the circuit court did not abuse its discretion in allowing Dr. Mohan to testify regarding his post-lawsuit treatment of Michael.
3. Denying motion to bifurcate liability and damages. When the trial court ruled that Dr. Mohan could testify that he continued as the treating physician for Michael after the lawsuit was filed, Ms. Sydenstricker moved the court to bifurcate the liability and damages phases of the trial. (See footnote 16) It was Ms. Sydenstricker's position that testimony regarding Dr. Mohan's continued treatment of Michael would be relevant only for the damages phase of the trial. We have held that this Court 'will not interfere with a bifurcation decision in the absence of an abuse of . . . discretion.' Rohrbaugh v. Wal-Mart Stores, Inc., 212 W. Va. 358, 368, 572 S.E.2d 881, 891 (2002) (quoting Bennett v. Warner, 179 W. Va. 742, 748, 372 S.E.2d 920, 926 (1988)). Further, because the trial court has such broad discretion in this arena, rarely will we find that its ruling on a bifurcation motion constitutes reversible error. Barlow v. Hester Indus., Inc., 198 W. Va. 118, 127, 479 S.E.2d 628, 637 (1996). The decision in Barlow also noted that,
[t]o demonstrate that the trial court abused its discretion, a showing of compelling prejudice is required. Compelling prejudice exists where a [party] can demonstrate that without bifurcation he or she was unable to receive a fair trial . . . and that the trial court could afford no protection from the prejudice suffered. In short, this Court will grant relief only if the appellant can show prejudice amounting to fundamental unfairness.
Barlow, 198 W. Va. at 127, 479 S.E.2d at 637 (quoting State v. LaRock,
196 W. Va. 294, 315, 470 S.E.2d 613, 634 (1996)).
The trial court provided two reasons for denying the motion to bifurcate. First, the court found that the motion came on the day of trial and, therefore, was not timely. (See footnote 17) Second, the court reasoned that Dr. Mohan's testimony regarding his treatment of Michael would be relevant at both the liability phase and damages phase. Consequently, bifurcation would serve no purpose and would be a waste of judicial resources. The issue of bifurcation in light of evidence with a potential for impacting both phases of a trial has been commented upon as follows:
In determining whether to bifurcate a trial, circuit courts should be mindful of the danger that evidence relevant to both issues may be offered at only one-half of the trial. This hazard necessitates the determination that the issues of liability and damages be totally independent of each other prior to permitting bifurcation. . . . Piecemeal litigation is not to be encouraged. Particularly is this so in the field of personal injury litigation, where the issues of liability and damages are generally interwoven and the evidence bearing upon the respective issues is commingled and overlapping.
Franklin D. Cleckley, Robin Jean Davis & Louis J. Palmer, Jr., Litigation
Handbook on West Virginia Rules of Civil Procedure § 42(c), at 797
(2000). We believe that the trial court's reasons for denying bifurcation were
sound. Therefore, we find no abuse of discretion in the trial court's decision.
4. Allowing Dr. Mohan's presentation of inconsistent defenses. Ms. Sydenstricker contends that the trial court erred in denying her motion to preclude Dr. Mohan from presenting inconsistent defenses to the jury and to reflect the same in the verdict form. The inconsistent defenses raised by Dr. Mohan were: lack of negligence, contribution, and intervening cause. Ms. Sydenstricker's position is flawed.
Rule 8(e)(2) [of the West Virginia Rules of Civil Procedure] permits alternative, inconsistent and mixed pleadings. Cleckley, Davis & Palmer, Litigation Handbook § 8(e)(2), at 201. (See footnote 18) Consequently, [n]othing prevents a party from asserting inconsistent defenses[.] Granus v. North American Philips Lighting Corp., 821 F.2d 1253, 1256 (6th Cir. 1987). Ms. Sydenstricker has attempted to circumvent Rule 8(e)(2) by arguing that the doctrine of judicial estoppel prevented Dr. Mohan from taking inconsistent positions.
This Court recently addressed the application of judicial estoppel in West Virginia Dept. of Transp. v. Robertson, ___ W. Va. ___, ___ S.E.2d ___ (No. 31770, May 10, 2005). In syllabus point 2 of Robertson we held that:
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.
Ms. Sydenstricker contends that judicial estoppel applies because Dr. Mohan
invoked the intervening cause defense to persuade the Circuit Court to let him make Dr. Lucero's negligence an issue at trial. Consequently, Dr. Mohan could not also put on a defense alleging that he was not negligent. This contention is without merit. The doctrine of judicial estoppel does not preclude inconsistent defenses. (See footnote 19) It has been recognized that an argument offered at pretrial in support of one defense [does not] bar the defendant from asserting a possibly inconsistent defense that the trial court had given the defendant permission to raise after the pretrial. Granus v. North American Philips Lighting Corp., 821 F.2d 1253, 1256 (6th Cir. 1987). Consequently, we reject the issue raised by Ms. Sydenstricker in this assignment of error.
5. Denying a new trial. Ms. Sydenstricker contends that she was entitled to a new trial because the weight of the evidence indicated Dr. Mohan was liable. Specifically, Ms. Syndenstricker argued that the evidence established that Dr. Mohan's treatment of Michael fell below the standard of care when he failed to order both bacterial and viral cultures on March 12, 1998. This Court has held that,
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.
Syl. pt. 15, Foster v. Sakhai, 210 W. Va. 716, 559 S.E.2d 53 (2001)
(quoting Syl. pt. 5, Orr v. Crowder, 173 W. Va. 335, 315 S.E.2d 593
Ms. Syndenstricker's argument is flawed. All of the experts who testified at trial agreed that no injury occurred to Michael between the time he was seen by Dr. Mohan and when he was taken to Dr. Lucero on March 16th. All of the experts further agreed that, had Dr. Lucero properly treated Michael on March 16th, the encephalitis would not have developed. Consequently, the clear weight of the evidence established that Dr. Mohan's arguably negligent treatment was not the proximate cause of the injury. See Perry v. Melton, 171 W. Va. 397, 399, 299 S.E.2d 8, 10 (1982) (Under our law the intervening act of a third person may constitute a new and effective cause, which operating independently of one party's negligence, is the proximate cause of the injury or death. We therefore reject the sufficiency of the evidence contention.
Dr. Mohan filed a separate appeal arguing, in essence, that should this Court grant Ms. Sydenstricker a new trial, then we should reverse the trial court's ruling approving the settlement between Ms. Sydenstricker and Dr. Lucero. Insofar as we are denying Ms. Sydenstricker's request for a new trial, the issue raised in Dr. Mohan's appeal is now moot. '[M]oot questions or abstract propositions, the decision of which would avail nothing in the determination of controverted rights of persons or property are not properly cognizable by a court.' Velogol v. City of Weirton, 212 W. Va. 687, 688-689, 575 S.E.2d 297, 299 (2002) (per curiam) (quoting Syl. pt. 1, State ex rel. Lilly v. Carter, 63 W. Va. 684, 60 S.E. 873 (1908)).