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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2010 Term
JERRY GOLDIZEN and BILL GOLDIZEN, CO-ADMINISTRATORS
of the ESTATE OF ELVA LEE GOLDIZEN,
Plaintiffs Below, Appellants,
GRANT COUNTY NURSING HOME,
Defendant Below, Appellee.
Appeal from the Circuit Court of Grant County, West Virginia
Hon. Philip B. Jordan, Judge.
Civil Action No. 07-C-36
REVERSED AND REMANDED
Submitted: March 30, 2010
Filed: April 21, 2010
J. David Cecil, Esq.
Rita Massie Biser, Esq.
Barth & Thompson Moore & Biser PLLC
Charleston, West Virginia South Charleston, West Virginia
Attorney for Appellants Attorney for Appellee
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. A circuit court's entry of summary judgment is reviewed de novo.
Syllabus Point 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
Company v. Federal Insurance Company of New York, 148 W.Va. 160, 133 S.E.2d 770
Jerry Goldizen and Bill Goldizen, co-administrators of the Estate of Elva Lee
Goldizen (Plaintiffs), appeal an order of the Circuit Court of Grant County, denying their
Motion to Alter and Amend Judgment Order. In that order, the circuit court affirmed its
prior order granting summary judgment to the Appellee, Grant County Nursing Home
(Defendant or nursing home). Having fully considered the record, arguments and briefs
of the parties, we reverse the circuit court.
I. Factual Background
On October 31, 2003, Elva Goldizen, a resident of the defendant nursing home,
suffered a medical emergency while being fed lunch by staff of the Defendant. An
ambulance was called, and Ms. Goldizen was transported to a hospital where her condition
continued to deteriorate and she subsequently died. Hospital and emergency medical service
(EMS) records, as well as records of the Defendant, indicate that Ms. Goldizen aspirated
solid fish particles, causing an airway blockage.
The records at issue include those prepared by the Defendant, which relate that
Ms. Goldizen, following her medical event in the Defendant's dining area, was returned to
her room where nursing staff noted fish particles in her mouth. After swabbing out the
particles, the Heimlich maneuver was performed which produced more food particles. The
records also include those prepared by the ambulance service called to the nursing home and
the hospital where Ms. Goldizen was taken. The hospital records note Ms. Goldizen's
condition upon arrival as follows: EMS reports possible aspiration of fish. Unable to clear
airway with Heimlich maneuver. At the hospital, suction was used to try and clear Ms.
Goldizen's airway, producing even more fish particles.
Dr. Dewey Bensenhaver, Medical Director for the Defendant nursing home,
completed the cause of death section of Ms. Goldizen's death certificate. Dr. Bensenhaver
certified the immediate cause of death as being due to Acute Aspiration. Dr. Bensenhaver
further listed Parlunson's severe in the section of the death certificate reserved for other
significant conditions contributing to death but not resulting in the underlying cause of
The Plaintiffs, alleging that the Defendant nursing home had knowledge of Ms.
Goldizen's difficulty eating solid foods, and that she had been prescribed a diet of ground
meats and other soft, non-solid foods, filed a wrongful death action against the nursing home.
The nursing home defended the wrongful death claim, noting that Ms.
Goldizen had the following medical conditions: Alzheimer's disease; Parkinson's disease;
Type II diabetes; paralysis agitans; other disorders of neurohypophysis; hypertension;
congestive heart failure, hyposmololity and/or hyponatremia; unspecified arthropathy;
hypopotassemia; edema; and depressive disorder. She required 16 various medications. The
Defendant's records further noted that at the onset of her medical emergency Ms. Goldizen
stiffened up and put her hands to her chest and, when asked by nursing staff if she were
having chest pains, Ms. Goldizen verbally responded 'yes' she was having chest pain.
Following the filing of the wrongful death action, the circuit court entered a
scheduling order listing the dates by which all discovery and disclosures were to be made.
In the Plaintiffs' response to the Defendant's discovery requests, the Plaintiffs listed Dr.
Dewey Bensenhaver as their expert witness on causation. The Plaintiffs also listed as
witnesses several people who attended to Ms. Goldizen following her medical emergency,
including nursing home staff and hospital staff, the latter including the physician who
attended to Ms. Goldizen at the hospital emergency room, Dr. Robert Gaudet.
Dr. Bensenhaver was deposed, during which he opined that the cause of death
he certified on Ms. Goldizen's death certificate was in error. Dr. Bensenhaver testified that
after reviewing all of the medical records associated with Ms. Goldizen's medical
emergency, he no longer believed that the immediate cause of death was acute aspiration
because emergency room records noted that Ms. Goldizen had agonal respirations. Dr.
Bensenhaver explained that the reported incidence of Ms. Goldizen experiencing any
respirations was contrary to a conclusion that she had an obstructed airway _ she would not
have been able to breathe at all if her airway was obstructed.
The record shows that notwithstanding Dr. Bensenhaver's changed position,
the Plaintiffs were dilatory in obtaining the deposition of Dr. Gaudet as an additional witness
on causation. As the trial date neared, the Plaintiffs filed motions to vacate the scheduling
order and sought a continuance of the trial to allow the deposition of Dr. Gaudet. Listed as
one of the grounds in support of the motion was the Plaintiffs' assertion that they had been
unable to locate Dr. Gaudet, and therefore could not depose him. The Plaintiffs' motions
were opposed by the Defendant. The Defendant, in turn, moved to exclude Dr. Gaudet's
testimony and also moved for summary judgment on the basis that the Plaintiffs did not have
an expert witness on causation.
In addressing the motion to continue and to exclude Dr. Gaudet's testimony or
deposition, the circuit court held that the Plaintiffs had not made good efforts to find [Dr.
Gaudet] and noted that the case was way past the discovery deadlines and, therefore, the
court was not going to allow Dr. Gaudet to testify in this matter or his deposition to be
taken. After excluding Dr. Gaudet's testimony, the circuit court granted the Defendant's
motion for summary judgment. In granting summary judgment, the circuit court concluded
that the Plaintiffs could not prove causation. The Plaintiffs' Motion to Alter or Amend the
Judgment was subsequently denied, and this Appeal followed.
II. Standard of Review
A circuit court's entry of summary judgment is reviewed de novo. Syllabus
Point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).
We have consistently held that [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 Company v. Federal Insurance Company of New York, 148 W.Va.
160, 133 S.E.2d 770 (1963). Having reviewed the record, we find that a genuine issue of fact
exists on the issue of causation and that the circuit court therefore erred in granting summary
Pursuant to W.Va. Code
, 16-5-19(a) , a death certificate is required to
be completed and filed with the State Registrar of Vital Statistics for all persons who die
within the State. (See footnote 1)
Subsection (c) of W.Va. Code
, 16-5-19 requires a medical certification as
to the cause of death. Subsection (c)(2) requires that the person completing the cause of
death shall attest to its accuracy . . .. (See footnote 2)
In the case before us, this certification was completed
by Dr. Bensenhaver (See footnote 3)
and the immediate cause of Ms. Goldizen's death is certified
to - by Dr. Bensenhaver as having been caused by acute aspiration. While it may be that
Dr. Bensenhaver has changed his opinion as to the cause of death, the fact remains that under
our law, a certified copy of a vital record issued in accordance with this section . . . shall be prima facie
evidence of the facts stated in the record. W.Va. Code
, 16-5-28(d) . (See footnote 4)
This is not to say, however, that prima facie
status exists for all purposes and
in all instances. In
Syllabus Point 1, Dorsey v. The Prudential Insurance Company of
, 124 W.Va. 100, 19 S.E.2d 152 (1942), where we examined the predecessor statute
to W.Va. Code
, 16-5-28(d) , we held that [u]nder the provisions of Chapter 32, Acts
1939, a properly certified copy of a death certificate is prima facie
evidence only of such
facts as are stated therein without contradiction or equivocation. In Dorsey
, the decedent's
death certificate was not a sufficient statement to be accorded prima facie
status as evidence
where the certification provided that death was caused by a ruptured duodenal ulcer Said
to have ruptured while lifting and included on the certification the uncertain query Lifting
immediate cause? Dorsey
, 124 W.Va. at 101-102, 19 S.E.2d at 154. (See footnote 5)
There is no equivocation as to the facts stated in Ms. Goldizen's death
certificate and it is entitled to be accorded the probative value of prima facie
Dr. Bensenhaver attempts to do through his deposition testimony is to constructively amend
Ms. Goldizen's death certificate which _ if permitted _ would undermine the integrity and
accuracy of our vital statistics records. (See footnote 6)
The Legislature recognized the importance of
properly amending or correcting a vital statistics record:
In order to protect the integrity and accuracy of
vital records, a certificate or report registered under this
article may be amended only in accordance with the
provisions of this article or legislative rule.
W.Va. Code, 16-5-25(a) . (Emphasis added).
There is no indication in the record before us that Ms. Goldizen's death
certificate has been amended as required by W.Va. Code, 16-5-25(a) . Accordingly,
the Plaintiffs have prima facie evidence that Ms. Goldizen died as a result of acute
aspiration. Records of the Defendant corroborate this certified cause of death, with nursing
home staff finding fish particles in Ms. Goldizen's mouth, and finding even more fish
particles after performing the Heimlich Maneuver. Hospital records also corroborate that
Ms. Goldizen aspirated fish. These latter records show that suction was used in the effort to
clear Ms. Goldizen's airway, which produced even more fish particles. One of the hospital
nurses who attended to Ms. Goldizen was deposed and in that deposition described Ms.
Goldizen's condition, and the treatment provided, as follows:
Q: You have down for respiratory, you have, "Partially
obstructed." You made that assessment?
"Agonal respiration noted, suction attempted per RT
to obtain food particles."
Q: What does that mean?
A: That they were trying to clear her airway to see if that would,
help breathing, and when they did so, they sucked up some
A: "Suction continues per R.T. with fish particles obtained."
Q: And with fish particles obtained, did you observe the fish
Q: Did you make any observation of how much material was
extracted from her throat?
A: We didn't measure it, if that's what you're asking. It seemed
like a lot because it was pretty much a continuous process.
In granting summary judgment, the circuit court failed to consider all of the
evidence, and to consider that under our law a certified cause of death listed on a death
certificate is accorded prima facie weight as to the facts stated therein. It is clear to us that
a genuine issue of material fact exists as to causation. While it is the case that Dr.
Bensenhaver has given inconsistent statements on causation, such inconsistencies go to the
weight to be afforded his testimony. It is for a jury to decide what weight to give that
The final issue we address is the circuit court's exclusion of Dr. Gaudet from
being deposed or giving any testimony at trial. Having reviewed the record, while it does
appear that the Plaintiffs were dilatory in their efforts to locate Dr. Gaudet and secure his
deposition, we do not find the Plaintiffs' conduct to have been so egregious or prejudicial to
the Defendant that the exclusion of Dr. Gaudet's testimony, as a sanction, was warranted.
The present issue is not dissimilar to the issue we addressed in Anderson v. Kunduru, 215
W.Va. 484, 600 S.E.2d. 196 (2004) (per curiam).
, we reversed the circuit court finding that the circuit court
essentially imposed a sanction upon a party . . . for the admittedly sole misconduct of the
party's attorney. Id
., at 488, 600 S.E.2d at 200. In the present case, the conduct leading to
the circuit court's sanction was that the Plaintiffs' trial counsel (See footnote 7)
had been dilatory in locating
a missing witness even though it had been apparent for some time that the Plaintiffs'
causation expert would be giving testimony inconsistent with the expert's former attested
certification of Ms. Goldizen's cause of death.
In Syllabus Point 2 of Bartles v. Hinkle, 196 W.Va. 381, 472 S.E.2d 827
(1996), we set forth the following standard for formulating sanctions:
In formulating the appropriate sanction, a court
shall be guided by equitable principles. Initially, the
court must identify the alleged wrongful conduct and
determine if it warrants a sanction. The court must
explain its reasons clearly on the record if it decides a
sanction is appropriate. To determine what will constitute
an appropriate sanction, the court may consider the
seriousness of the conduct, the impact the conduct had in
the case and in the administration of justice, any
mitigating circumstances, and whether the conduct was
an isolated occurrence or was a pattern of wrongdoing
throughout the case.
While we accord the circuit court considerable deference, and rightfully so, no
sanctions were warranted in the case below beyond that of verbally reprimanding Plaintiffs'
trial counsel for being dilatory. Trial courts should be extremely guarded against imposing
sanctions that tend to eviscerate a party's case on a critical issue. Upon remand, the circuit
court shall enter a new scheduling order which shall include the Plaintiffs' right to take the
deposition of Dr. Gaudet, as well as allow the parties to identify and depose expert witnesses.
For the reasons set forth herein, the judgment of the circuit court is reversed
and this matter remanded for further proceedings.
Reversed and Remanded.
, 16-5-19(a)  provides as follows:
A certificate of death for each death which occurs in this state shall be
filed with the section of vital statistics, or as otherwise directed by the
State Registrar, within five days after death, and prior to final
disposition, and shall be registered if it has been completed and filed in
accordance with this section.
, 16-5-19(c)  provides as follows:
The medical certification shall be completed and signed within
twenty-four hours after receipt of the certificate of death by the
physician in charge of the patient's care for the illness or condition
which resulted in death except when inquiry is required pursuant to
chapter sixty-one, article twelve [61-12-1 et seq.] or other applicable
provisions of this code.
(1) In the absence of the physician or with his or her approval, the
certificate may be completed by his or her associate physician, any
physician who has been placed in a position of responsibility for any
medical coverage of the decedent, the chief medical officer of the
institution in which death occurred, or the physician who performed an
autopsy upon the decedent, provided inquiry is not required pursuant to
chapter sixty-one, article twelve [61-12-1 et seq.] of this code.
(2) The person completing the cause of death shall attest to its accuracy
either by signature or by an approved electronic process.
Dr. Gaudet also signed the death certificate in the section marked for the Pronouncing
, 16-5-28(d)  provides as follows:
A certified copy of a vital record issued in accordance with this section
shall be considered for all purposes the same as the original, and shall
be prima facie evidence of the facts stated in the record: Provided, That
the evidentiary value of a certificate or record filed more than one year
after the event, or a record which has been amended, or a certificate of
foreign birth, shall be determined by the judicial or administrative body
or official before whom the certificate is offered as evidence.
In Bailey v. C. V. Hunter, Inc
., 207 Va. 123, 125, 148 S.E.2d 826, 828 (1966) (citations
omitted), the Virginia Supreme Court explained a similar provision as follows:
Unquestionably the statute makes a certified copy of a death
certificate issued by the State registrar of the Bureau of Vital Statistics prima facie evidence of the facts stated therein. However, the language
of the statute means that only facts contained in the certificate are
accorded the dignity of prima facie evidence. The statute does not
provide that a mere opinion or conclusion, expressed by a person
signing the certificate who has no personal knowledge of the facts, shall
be prima facie proof of the facts to be determined.
The issue of whether Dr. Bensenhaver should be permitted to testify in a manner that would
constructively amend Ms. Goldizen's death certificate is not before us and we, therefore, will
not address that issue except to say that it is an issue that should be addressed upon remand.
We note that counsel of record for the Appellants in this appeal was not trial counsel below.