IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2005 Term
STATE OF WEST VIRGINIA EX REL. BELINDA BILLUPS,
AS GUARDIAN AND NEXT FRIEND OF JACOB BILLUPS, AN INFANT,
BELINDA BILLUPS, AND RANDY BILLUPS, INDIVIDUALLY,
THE HONORABLE RUSSELL M. CLAWGES, JR., JUDGE
OF THE CIRCUIT COURT OF MONONGALIA COUNTY, WEST VIRGINIA;
WEST VIRGINIA UNIVERSITY HOSPITAL, INC.,
A WEST VIRGINIA CORPORATION, DBA WEST VIRGINIA UNIVERSITY
HOSPITALS, DBA WEST VIRGINIA UNIVERSITY CHILDREN'S HOSPITAL;
RALEIGH GENERAL HOSPITAL, A WEST VIRGINIA CORPORATION,
DBA COLUMBIA RALEIGH HOSPITAL;
SARASWATHI MOHAN, M.D.; AND PETAIAH MOHAN, M.D.,
PETITION FOR A WRIT OF PROHIBITION
Submitted: April 6, 2005
Filed: May 26, 2005
Marvin W. Masters
Charles M. Love, IV
The Masters Law Firm, LC
Charleston, West Virginia
Attorneys for the Petitioners
William F. Foster, II
The Foster Law Firm, PLLC
Charleston, West Virginia
Attorney for the Respondent,
WVU Hospital, Inc.
Paul T. Farrell
Farrell, Farrell & Farrell, LC
Huntington, West Virginia
Attorney for the Respondent,
Raleigh General Hospital
D. C. Offutt, Jr.
Perry W. Oxley
David E. Rich
L. R. Sammons, III
Offutt, Fisher & Nord
Huntington, West Virginia
Attorneys for the Respondents,
Sarawathi Mohan, M.D., and
Petaiah Mohan, M.D.
CHIEF JUSTICE ALBRIGHT delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. Prohibition lies only to restrain
inferior courts from proceeding in causes over which they have no jurisdiction,
or, in which, having jurisdiction, they are exceeding their legitimate powers
and may not be used as a substitute for writ of error, appeal or certiorari. Syl.
Pt. 1, Crawford v. Taylor
, 138 W.Va. 207, 75 S.E.2d 370 (1953).
2. In determining whether to entertain
and issue the writ of prohibition for cases not involving an absence of jurisdiction
but only where it is claimed that the lower tribunal exceeded its legitimate
powers, this Court will examine five factors: (1) whether the party seeking the
writ has no other adequate means, such as direct appeal, to obtain the desired
relief; (2) whether the petitioner will be damaged or prejudiced in a way that
is not correctable on appeal; (3) whether the lower tribunal's order is clearly
erroneous as a matter of law; (4) whether the lower tribunal's order is an oft
repeated error or manifests persistent disregard for either procedural or substantive
law; and (5) whether the lower tribunal's order raises new and important problems
or issues of law of first impression. These factors are general guidelines that
serve as a useful starting point for determining whether a discretionary writ
of prohibition should issue. Although all five factors need not be satisfied,
it is clear that the third factor, the existence of clear error as a matter of
be given substantial weight. Syl. Pt. 4, State ex rel. Hoover v. Berger
199 W.Va. 12, 483 S.E.2d 12 (1996).
3. In cases where disqualification of an
expert witness is sought, the party moving for disqualification bears the burden
of proving that at the time the moving party consulted with the expert: (1) it
was objectively reasonable for the moving party to have concluded that a confidential
relationship existed with the expert; and (2) confidential or privileged information
was disclosed to the expert by the moving party. Disqualification is warranted
only when the evidence satisfactorily demonstrates the presence of both of these
Albright, Chief Justice:
Plaintiffs below, Belinda Billups, individually
and as guardian and best friend of Jacob Billups, and Randy Billups (hereinafter
referred to collectively as Petitioners), seek a writ prohibiting
the Circuit Court of Monongalia County from enforcing an order which would permit
the defendants below to retain as an expert witness a doctor whom Petitioners
previously had engaged in the same action. Raleigh General Hospital (hereinafter
referred to individually as Raleigh General), Saraswathi Mohan, M.D.
and Petaiah Mohan, M.D., (See
footnote 1) being three of the defendants below, argue against issuance
of the writ. Upon completion of our review of the law, arguments of the parties
and relevant record, we decline to provide the relief requested for the reasons
I. Factual and Procedural Background
Investigating the possibility of filing a
malpractice lawsuit, Petitioners' counsel contacted Dr. Stanford Schulman, an
expert in the field of Kawasaki Disease, (See
on May 7, 2003, to request that the doctor review the
medical records of Jacob Billups. According to
Petitioners' counsel, a summary of the medical treatment received by Jacob
Billups was sent to Dr. Schulman after he agreed to conduct the review, and
phone conversations were held on May 9 and May 12, 2003, with Petitioners'
counsel and a nurse paralegal employed by the same law firm. Petitioners contend
that the exchanges of information between the doctor and their legal advisors
involved privileged communications. On May 12, 2003, Dr. Shulman informed Petitioners'
counsel that his review did not support the issuance of a medical screening
certificate of merit pursuant to the provisions of West Virginia Code § 55-7B-6
(2003) (Supp. 2004). (See
This certificate was later procured by Petitioners
from a Dr.
Leonard Steinfeld on May 20, 2003. The certificate of merit along with the
statutorily required notice of claim were mailed on May 27, 2003, to the health
care providers named in the suit and the case was first filed on June 25, 2003.
We are advised that the initial suit was dismissed upon defense motion, but
virtually the same action was refiled on January 8, 2004, accompanied by the
same notice of claim and certificate of merit used in the first instance.
Raleigh General Hospital, one of the health
care providers named as a defendant in this suit, independently located Dr. Shulman
as a Kawasaki Disease expert and retained the doctor in February 2004 to review
the medical records in the case. Shortly after receiving the records, Dr. Shulman
telephoned Raleigh General's counsel to inform counsel that he had previously
reviewed the same medical records for a plaintiff's law firm in West Virginia
and that the doctor had given them a negative review. Raleigh General's counsel
terminated the consultation with Dr. Shulman and has had no further contact with
the doctor except to advise the doctor that the matter of his continued participation
was a court determination.
Concurrently, counsel for Raleigh General
notified Petitioners' counsel about the contact with Dr. Shulman and of Raleigh
General's desire to retain the doctor as an expert. Petitioners objected and
Raleigh General filed a motion with the lower court in order to determine whether
it would be proper under the circumstances for Raleigh General to retain Dr.
Shulman as its expert.
A hearing on the motion was held before the
lower court on May 20, 2004. On June 7, 2004, Petitioners disclosed under Rule
26(b)(4)(B) of the West Virginia Rules of Civil Procedure (See
footnote 4) that Dr. Steinfeld would be their trial expert and Dr.
Shulman was their non-testifying expert. (See
footnote 5) The disclosure was followed by the filing on June 11,
2004, of Petitioners' Motion to Prohibit Defendant's Retention of Dr. Stanford
Shulman as an Expert Witness. In support of their motion, Petitioners argued
that their counsel and a nurse paralegal working for the same law firm had disclosed
to Dr. Shulman a confidential
summary of the medical treatment at issue and discussed the theory of the case
in great detail. Affidavits, created by petitioners' counsel and paralegal
a year after the consultation with Dr. Shulman, were submitted to the court
below with Petitioners' motion and placed under seal for in camera review.
The lower court issued an order on August
20, 2004. Observing that the issue before it was a new question of law, the court
below first adopted the test proposed by the parties which other jurisdictions
have used to decide similar disqualification questions. After applying the test,
the court below concluded in its August 20, 2004, order that although the court
had the inherent power to disqualify Dr. Schulman, the Plaintiffs have
not met the high standard of proof necessary to overcome the Court's reluctance
to disqualify Dr. Schulman. Accordingly, the motion to prohibit the retention
by the defense of Dr. Schulman as an expert witness was denied. In an effort
to bar implementation of the adverse order, the plaintiffs below filed a writ
of prohibition with this Court on December 16, 2004, from which we issued a rule
to show cause on January 19, 2005.
II. Standard of Review
We approach the issues presented in this
case mindful that [p]rohibition lies only to restrain inferior courts from
proceeding in causes over which they have no jurisdiction, or, in which, having
jurisdiction, they are exceeding their legitimate powers and
may not be used as a substitute for writ of error, appeal or certiorari. Syl.
Pt. 1, Crawford v. Taylor
, 138 W.Va. 207, 75 S.E.2d 370 (1953). Elaborating
on this standard of review in syllabus point four of State ex rel. Hoover
, 199 W.Va. 12, 483 S.E.2d 12 (1996), we said:
determining whether to entertain and issue the writ of prohibition for cases
not involving an absence of jurisdiction but only where it is claimed that the
lower tribunal exceeded its legitimate powers, this Court will examine five factors:
(1) whether the party seeking the writ has no other adequate means, such as direct
appeal, to obtain the desired relief; (2) whether the petitioner will be damaged
or prejudiced in a way that is not correctable on appeal; (3) whether the lower
tribunal's order is clearly erroneous as a matter of law; (4) whether the lower
tribunal's order is an oft repeated error or manifests persistent disregard for
either procedural or substantive law; and (5) whether the lower tribunal's order
raises new and important problems or issues of law of first impression. These
factors are general guidelines that serve as a useful starting point for determining
whether a discretionary writ of prohibition should issue. Although all five factors
need not be satisfied, it is clear that the third factor, the existence of clear
error as a matter of law, should be given substantial weight.
Typically, the decision regarding disqualification
of an expert witness rests within the sound discretion of the trial court. State
, 196 W.Va. 294, 306, 470 S.E.2d 613, 625 (1996). Thus our review
in most instances is restrained and the lower court's decision will stand unless
there is an abuse of discretion. Id.
However, as the lower court observed,
this Court through its opinions, the West Virginia Rules of Evidence or
Rules of Civil Procedure has not directly addressed the issue of under what
circumstances disqualification of an expert witness is warranted where the
parties disagree about whether confidential information was communicated when
that expert previously conferred with an opposing party in the same or related
suit. As such, we proceed initially with a de novo review of the question of
law raised in the petition. Syl. Pt. 1, Chrystal R.M. v. Charlie A.L.
194 W. Va. 138, 459 S.E.2d 415 (1995).
The parties mutually urge us to uphold the
lower court's adoption of the two- part test employed by the majority of courts
who have examined the issue of expert witness disqualification in this context.
These courts have rejected a rigid solution to the expert disqualification problem
and instead have opted to apply a two-prong test which balances the interests
at stake. (See footnote 6)
that the principal aim of trial courts in reviewing expert witness disqualification
motions is the protection and preservation of the integrity and
fairness of judicial proceedings, the court in Great Lakes Dredge & Dock
Co. v. Harnischfeger Corporation
, 734 F.Supp. 334 (N.D.Ill. 1990), summarized
the interests that the courts must weigh:
On the one side is the party's
interest in protection of confidential communications or other privileged matter.
On the other side is the opposing party's right to retain those persons it feels
are needed to prosecute its case. Also, at issue is the interest of experts to
Id. at 336-37. The Great Lakes court thereafter adopted the balancing-of-interests
approach set forth in Paul v. Rawlings Sporting Goods Co., 123 F.R.D.
271 (S.D. Ohio 1988), and later framed by the court in Wang Laboratories,
Inc. v. Toshiba Corporation, 762 F.Supp. 1246 (E.D. Va. 1991), as the following
was it objectively reasonable for the first party who claims to have retained
the consultant [previously] . . . to conclude that a confidential relationship
was any confidential or privileged information disclosed by the first party to
Id. at 1248 (citations omitted).
Courts adopting the balancing-of-interests
approach have placed the burden of proving the test elements on the party seeking
disqualification. Additionally, the majority
of courts hold that disqualification of an expert witness is indicated only
when both questions are answered in the affirmative. (See
footnote 7) As explained by the court in Wang:
[D]isqualification is likely
inappropriate if either inquiry yields a negative response. Thus, even if counsel
reasonably assumed the existence of a confidential relationship, disqualification
does not seem warranted where no privileged or confidential information passed.
Were this not so, lawyers could then disable potentially troublesome experts
merely by retaining them, without intending to use them as consultants. Lawyers
using this ploy are not seeking expert help with their case; instead, they are
attempting only to prevent opposing lawyers from obtaining an expert. This is
not a legitimate use of experts, and courts should not countenance it by employing
the disqualification sanction in aid of it.
disqualification should not occur in the absence of a confidential relationship
even though some confidential information may be disclosed. In this event, the
disclosure is essentially a waiver of any
existing privilege. Lawyers bear a burden to make clear to consultants that
retention and a confidential relationship are desired and intended.
Wang, 762 F.Supp. at 1248 (internal citations and footnotes omitted).
We find this reasoning persuasive and accordingly hold that in cases where
disqualification of an expert witness is sought, the party moving for disqualification
bears the burden of proving that at the time the moving party consulted with
the expert: (1) it was objectively reasonable for the moving party to have
concluded that a confidential relationship existed with the expert; and (2)
confidential or privileged information was disclosed to the expert by the moving
party. Disqualification is warranted only when the evidence satisfactorily
demonstrates the presence of both of these conditions.
Finding no error in the law employed by the
lower court, we next examine the lower court's application of the law to the
facts in this case to determine if there was an abuse of discretion. As to the
first inquiry, we observe that Petitioners' counsel reached agreement with Dr.
Shulman to evaluate the medical records of Petitioners' son for the purpose of
assisting with a medical malpractice claim against Respondents and other health
care providers. Dr. Shulman reviewed the medical records forwarded to him by
Petitioners' counsel. Dr. Shulman spoke with both a lawyer and paralegal from
the law firm representing Petitioners before he finally concluded that the record
showed that the proper standard of care was provided. We agree with the lower court's findings that these facts and
actions demonstrate that it was objectively reasonable for Petitioners to conclude
that a confidential relationship had existed with the doctor during the consultation
We turn now to consider whether the lower
court correctly reviewed the evidence involving the second prong of the test.
Petitioners claim that the lower court was incorrect in finding that no confidential
information was disclosed to Dr. Shulman because sealed documents in the record
reveal that Dr. Schulman was privy to such details as Petitioners' theory of
the case, the weaknesses of each side's case and other mental impressions of
their legal advisors. While we obviously are not at liberty to reveal the contents
of the sealed documents, upon completion of our review of the documents we are
in agreement with the lower court's conclusion that [m]ost, if not all,
of the information contained in those submissions, is contained in the medical
records of the infant Plaintiff, the notice of claim, the screening certificate
of merit, Plaintiffs' Complaint and other pleadings . . . or would be discoverable
under the Rules of Civil Procedure. (See
footnote 8) This being the case, the second condition of the test
herein announced is not satisfied. Consequently, we find no abuse of discretion
by the lower court in applying the law to the facts of this case,
as well as no basis to issue a writ of prohibition in order to force the disqualification
of Dr. Shulman as an expert witness for Respondents. (See
Finding that the Circuit Court of Monongalia
County did not exceed its legitimate powers in this matter, we deny the relief
in prohibition requested.
to hereinafter as Respondents.
is a rare condition in children that involves inflammation of the blood vessels
. . . [and] is usually accompanied by a fever . . . . U. S. National
Library of Medicine and the National Institutes of Health, MedlinePlus
Medical Encyclopedia http://www.nlm.nih.gov/medlineplus/ency/article/000989.htm>
The relevant portion
of West Virginia Code § 55-7B-6 reads as follows:
At least thirty days prior to the filing of a medical professional liability
action against a health care provider, the claimant shall serve by certified
mail, return receipt requested, a notice of claim on each health care provider
the claimant will join in litigation. The notice of claim shall include a statement
of the theory or theories of liability upon which a cause of action may be based,
and a list of all health care providers and health care facilities to whom notices
of claim are being sent, together with a screening certificate of merit. The
screening certificate of merit shall be executed under oath by a health care
provider qualified as an expert under the West Virginia rules of evidence and
shall state with particularity: (1) The expert's familiarity with the applicable
standard of care in issue; (2) the expert's qualifications; (3) the expert's
opinion as to how the applicable standard of care was breached; and (4) the expert's
opinion as to how the breach of the applicable standard of care resulted in injury
or death. A separate screening certificate of merit must be provided for each
health care provider against whom a claim is asserted. The person signing the
screening certificate of merit shall have no financial interest in the
underlying claim, but may participate as an expert witness in any judicial
proceeding. Nothing in this subsection may be construed to limit the application
of rule 15 of the rules of civil procedure.
We pause briefly to express
concern with the prejudicial effect which may result when experts not disqualified
from serving as witnesses under circumstances similar to those presented in
this case are asked to reveal or are questioned at trial about the prior consultation
with the adverse party. Trial courts in these circumstances would be well served
to expressly caution against making inappropriate reference to the prior consultation.