Graham v. Wallace

538 S.E.2d 730, 208 W. Va. 139
CourtWest Virginia Supreme Court
DecidedJuly 20, 2000
Docket27380
StatusPublished
Cited by5 cases

This text of 538 S.E.2d 730 (Graham v. Wallace) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Graham v. Wallace, 538 S.E.2d 730, 208 W. Va. 139 (W. Va. 2000).

Opinions

PER CURIAM:

I.

This is a medical malpractice case where a jury rendered a verdict for the plaintiff/ap-pellee, Jessie L. Graham, against the defendant/appellant, Dr. David A. Wallace, an oral surgeon. The gravamen of the plaintiffs claim was that Dr. Wallace had been negligent in installing an implant in the plaintiffs jaw — specifically in his temporomandibular joint (“TMJ”) — to attempt to alleviate the plaintiffs severe head pain.

A detailed discussion of the underlying facts is unnecessary to this opinion, as we need only address two fairly narrow issues. The first issue is whether the plaintiffs evidence of malpractice was deficient as a matter of law on the issue of the standard of care. The second issue is whether the circuit court committed reversible error in denying Dr. Wallace’s request to call two rebuttal witnesses, after the plaintiff was allowed to reopen his case to recall Dr. Wallace to the stand for additional cross-examination.

II,

A.

On the first issue — the asserted insufficiency of the plaintiffs evidence that would permit a jury to conclude that there was a breach of the standard of care by the appellant — we have carefully reviewed the testimony of the appellee’s expert witness, Dr. Captline, an oral surgeon. Dr. Captline testified extensively on direct examination to the effect that the appellant had failed to obtain and properly evaluate a full history of the appellee’s longstanding psychiatric and neurological headache problems (problems that were in Dr. Captline’s opinion largely if not entirely unrelated to the plaintiffs alleged TMJ problems) — and that this failure had substantially contributed to an inappropriate decision by the appellant to perform [141]*141TMJ implant surgery on the appellee. (There were also issues of whether the appel-lee had properly consented to the surgery.) Taken together, Dr. Captline’s testimony on direct examination told the jury what Dr. Captline believed a practitioner exercising ordinary skill and care should have done with regard to the appellee’s case, and how Dr. Captline believed that the appellant had deviated from that standard.

However, on cross-examination, the appellant’s trial counsel was able to elicit from Dr. Captline a number of contradictory and confused statements regarding his opinions. Based on this cross-examination, the jury could have discounted — but were not required to discount — much of Dr. Captline’s direct testimony.

We have stated 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.

Syllabus Point 2, Tanner v. Rite Aid, 194 W.Va. 643, 461 S.E.2d 149 (1996) (citations omitted).

We have also stated that “... once an expert witness is permitted to testify, it is within the province of the jury to evaluate his or her testimony, credentials, background and qualifications.” Wilkinson v. Bowser, 199 W.Va. 92, 96 n. 5, 483 S.E.2d 92, 96 n. 6.

In 81 Am.Jur.2d Witnesses § 1032 at 844 (1992) (footnotes omitted) it is stated: ‘When a witness, during the course of his testimony, makes two contradictory statements, it is within the province of the jury to accept and rely on either version and to disregard the other, in part or in toto. If a witness’s testimony on direct examination conflicts with that given by him on cross-examination, it is for the jury to decide when, if at all, he testified truthfully.” It is the province of the jury to weigh evidence and resolve inconsistencies in testimony. See State v. Houston, 197 W.Va. 215, 230, 475 S.E.2d 307, 322 (1996). On appeal of a plaintiffs verdict, we are required to assume that a (properly instructed) jury credited the evidence that was favorable to the plaintiffs case and discredited the evidence that was unfavorable to that case. See Syllabus Point 3, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

As both a matter of law and as a practical matter, a trial court viewing the evidentiary sufficiency of a party’s prima facie ease — or an appellate court assessing the sufficiency of evidence where a jury has returned a verdict for a party (as we are doing in the instant case) — simply cannot be required to dissect, analyze, or weigh a party’s evidence through the lens of what occurred in cross-examination of a party’s witnesses, or of what evidence the opposing party put on in rebuttal — to determine whether a litigant made a sufficient evidentiary ease to go to a jury. Such dissection, analysis and weighing would invade the province of the jury. If in the instant case — as the trial court found and we agree — the plaintiffs case-in-chief through his witnesses’ direct testimony and other evidence established a prima facie violation of the standard of care, then the plaintiff met his burden so as to permit submitting that issue to the jury — without regard to how the plaintiffs case-in-chief might have been weakened by the defense through cross-examination or rebuttal.

We therefore conclude that the appellant’s contention on appeal that the plaintiffs case should not have been submitted to the jury for lack of sufficient evidence establishing a violation of the standard of care is not meritorious.

B.

We next turn to the issue of the circuit court’s reopening of the case after both parties had rested — for additional cross-examination of Dr. Wallace — and to the issue of the court’s refusal to allow Dr. Wallace to [142]*142call two rebuttal witnesses, once the case had been reopened.

The presentation of evidence by both sides concluded on Thursday, March 11,1999, after 4 days of testimony. On the morning of Friday, March 12, 1999, Mr. Graham’s counsel asked the trial court to reopen the ease for additional cross-examination of Dr. Wallace. Graham’s counsel asserted that because Dr. Wallace had referred in his testimony to certain notes in Graham’s medical records that allegedly had not been produced in discovery, “the notes that were contained in the record of this case were put in at least 6 years after the[y] allegedly were supposed to have been placed.”

The jury was recalled to the courtroom and Graham was permitted to cross-examine Dr. Wallace regarding these notes. Mr. Graham’s counsel attempted to impeach Dr. Wallace by, inter alia, suggesting that the notations had not been produced in discovery.

Dr. Wallace, when questioned by his counsel, denied any suggestion of misconduct with respect to the records. Dr. Wallace testified that the notations could not have been made in anticipation of trial because they appeared on a photocopy that had been made in 1987, apparently in connection with requests from Graham’s insurance companies.

Following Dr.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Graham v. Wallace
588 S.E.2d 167 (West Virginia Supreme Court, 2003)
Drevenak v. Abendschein
773 A.2d 396 (District of Columbia Court of Appeals, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
538 S.E.2d 730, 208 W. Va. 139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/graham-v-wallace-wva-2000.