John R. Orphanos, M.D. v. Michael Rodgers

• Court: Intermediate Court of Appeals of West Virginia
• Decided: June 13, 2024
• Docket: 23-ica-58
• Status: Published

Opinion

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA FILED Spring 2024 Term June 13, 2024 _____________________ released at 3:00 p.m. ASHLEY N. DEEM, DEPUTY CLERK INTERMEDIATE COURT OF APPEALS No. 23-ICA-58 OF WEST VIRGINIA _____________________

JOHN R. ORPHANOS, M.D., Defendant Below, Petitioner,

v.

MICHAEL RODGERS, Plaintiff Below, Respondent.

___________________________________________________________

Appeal from the Circuit Court of Kanawha County Honorable Tera Salango, Judge No. 19-C-561

AFFIRMED IN PART AND REVERSED AND REMANDED IN PART _________________________________________________________

Submitted: January 9, 2024 Filed: June 13, 2024

Thomas J. Hurney, Esq. John W. Barrett, Esq. Blair E. Wessels, Esq. P. Gregory Haddad, Esq. Jackson Kelly PLLC Kerrie W. Boyle, Esq. Charleston, West Virginia Sharon F. Iskra, Esq. Bailey Glasser, LLP Richard D. Jones, Esq. Charleston, West Virginia J. Dustin Dillard, Esq. Counsel for Respondent Flaherty Sensabaugh Bonasso, PLLC Charleston, West Virginia Counsel for Petitioner Stephen M. Fowler, Esq. Geoffrey Cullop, Esq. Pullin, Fowler, Flanagan, Brown & Poe PLLC Charleston, West Virginia Counsel for Board of Risk and Insurance Management of the State of West Virginia, Amicus Curae

Chelsea V. Brown, Esq. Bowles Rice LLP Morgantown, West Virginia Counsel for Amici Curiae, West Virginia University Board of Governors, West Virginia Health Care Association, American Medical Association, and West Virginia State Medical Association

Ancil G. Ramey, Esq. Steptoe & Johnson PLLC Huntington, West Virginia

Christine S. Vaglienti, Esq. West Virginia University Health System Legal Services Morgantown, West Virginia Counsel for Amici Curiae, West Virginia Health System, Inc. d/b/a West Virginia University Health System

CHIEF JUDGE SCARR delivered the Opinion of the Court. SCARR, CHIEF JUDGE:

Petitioner, John R. Orphanos, M.D., appeals the Circuit Court of Kanawha

County’s September 12, 2022, judgment order following a jury trial, and January 20, 2023,

order denying his renewed motion for judgment as a matter of law on the issue of

recklessness and a separate motion for new trial. This case involves a medical malpractice

lawsuit filed by Michael Rodgers against Dr. Orphanos in relation to spinal surgery

performed after Mr. Rodgers was injured in a motorcycle accident in 2017. This appeal

arises out of a medical malpractice jury trial, in which the jury returned a verdict for Mr.

Rodgers with a final, reduced award of $9,862,384.58.1

Upon extensive review of the briefs, the appendix record, arguments

presented by counsel, and the applicable legal authority, this Court affirms the January 20,

2023, order denying Dr. Orphanos’ renewed judgment as a matter of law. However, we

reverse and remand in part the January 19, 2023, denial of Dr. Orphanos’ motion for a new

trial, and reverse in part the September 12, 2022, judgment order, for a new trial solely on

damages consistent with this opinion.2

1 This Court acknowledges and appreciates the amicus briefs filed by the respective organizations listed above in support of Dr. Orphanos’ position on recklessness in this case. 2 The circuit court below only needs to hold a new trial on damages. For the reasons mentioned below, this court concludes that the circuit court abused its discretion in denying Dr. Orphanos’ supplemental expert disclosure of Jodi A. Gehrig’s, M.D., testimony on Mr. Rodgers’ life expectancy which is relevant to the overall damages. 1 I. FACTUAL AND PROCEDURAL BACKGROUND

On June 4, 2017, Michael Rodgers, then 49 years old, was injured in a

motorcycle crash. He was life-flighted to CAMC General in Charleston, a Level 1 Trauma

Center. In the emergency department, physicians performed a chest computed tomography

(“CT”) scan which revealed a T5 Chance fracture (a transverse fracture through a vertebral

body and neural arch). Mr. Rodgers was admitted to the Surgical Trauma Intensive Care

Unit for further treatment and Dr. Orphanos, a neurosurgeon, was contacted for a

neurosurgical consultation.

A nurse practitioner from Dr. Orphanos’ practice first saw Mr. Rodgers at

11:30 a.m. on June 5, 2017. That nurse practitioner performed an initial assessment, placed

him on spinal precautions, and ordered a thoracic lumbar sacral orthosis brace to be worn

for a period of 6-8 weeks. Dr. Orphanos saw Mr. Rodgers later that afternoon and

recommended a spinal surgical procedure as an alternative to the conservative treatment

approach of the back brace. Mr. Rodgers agreed to the surgery and Dr. Orphanos performed

a fusion of levels T2 through T6 the next day, on June 6, 2017, which involved placing

orthopedic screws into the vertebrae to stabilize the fracture.

2 Postoperatively, Mr. Rodgers had no motor function or sensation below his

nipple line.3 A repeat thoracic CT scan showed trace bilateral pleural effusions surrounding

the pedicle screws within the T2 and T3 levels, skipping T4, with screws in T5 and T6.

The CT scan did not show anything that explained the paralysis, such as spinal cord

compression, misalignment of the orthopedic screws, or evidence of a forming epidural

hematoma. Dr. Orphanos recommended that Mr. Rodgers be returned to surgery for a T5

laminectomy. During that second surgery, Dr. Orphanos found no evidence of compression

or other interference with the spinal cord.

On June 20, 2017, Mr. Rodgers was transferred to a subacute rehabilitation

center for further care and was discharged home on July 20, 2017. Mr. Rodgers’ paraplegia

persisted and was ultimately determined to be permanent. According to Dr. Orphanos’

experts, the paralysis was caused by a spinal cord infarct, that occurred during the surgery,

which was neither predictable nor preventable. One of Mr. Rodgers’ treating neurologists,

Joby Joseph, M.D., apparently told Mr. Rodgers’ mother that he believed the paralysis was

caused by a spinal cord infarct. Another of Dr. Orphanos’ experts, Dennis Whaley, M.D.,

opined that the paraplegia was caused by a vascular injury sustained at the time of the

motorcycle accident itself.

3 Preoperatively, Mr. Rodgers was fully intact neurologically. His muscle resistance tests showed that he had intact muscle strength, and intact sensation with full strength in his legs and hip muscles. 3 Mr. Rodgers filed a complaint against Dr. Orphanos on May 30, 2019,

alleging three breaches of the standard of care: (1) prior to the first surgery, Dr. Orphanos

should have ordered a magnetic resonance imaging (“MRI”) of the thoracic spine instead

of relying solely on the CT; (2) during the surgery, Dr. Orphanos should have used

intraoperative neurophysiological monitoring (“IONM”) to monitor the spinal cord while

placing the surgical screws; and (3) after learning about the paralysis after the first surgery,

Dr. Orphanos should have ordered a CT myelogram to locate and repair the cord injury

before it became irreversible. Mr. Rodgers further claimed that Dr. Orphanos’ treatment

amounted to gross negligence and recklessness and sought punitive damages.4

During discovery, on July 9, 2020, Mr. Rodgers was diagnosed with a right-

sided, middle cerebral artery embolic stroke, which left him with left-sided hemiparesis

(weakness or paralysis on one side of the body). He did not amend his complaint to allege

that Dr. Orphanos’ 2017 care caused or contributed to his July 2020 stroke.

On January 25, 2021, Mr. Rodgers filed a motion for partial summary

judgment, arguing that the Trauma Cap of the Medical Professional Liability Act

(“MPLA”), West Virginia Code § 55-7B-9c, did not apply because two statutory

exceptions were implicated: (1) the surgery did not qualify as an “emergency” under West

4 Mr. Rodgers later dropped his punitive damages claim, stating that he has “never alleged punitive damages in this case.” See App. P. 746. 4 Virginia Code § 55-7B-9c(h)(1); and (2) Dr. Orphanos’ treatment and conduct were

“reckless” under West Virginia Code § 55-7B-9c(h)(1). The circuit court denied the

motion, concluding that the jury would determine whether the surgery was an emergency

and whether Dr. Orphanos acted recklessly.

On January 5, 2022, about two months before the March 14, 2022, trial date,

Mr. Rodgers served a second amended expert witness disclosure that included a new life

care plan and economic report effectively claiming a connection between Mr. Rodgers’

2020 stroke and Dr. Orphanos’ 2017 care. Dr. Orphanos moved to exclude these reports

because they were untimely produced, and no expert was identified to causally link the

2017 care to the 2020 stroke. In a separate motion, Dr. Orphanos moved to continue the

trial date, arguing that Mr. Rodgers added a new claim to the case without providing an

opportunity to conduct discovery. During a hearing on the motions, Mr. Rodgers’ counsel

offered to provide Dr. Orphanos “great latitude” in responding to the new disclosures. On

February 24, 2022, the circuit court denied both of Dr. Orphanos’ motions.

On March 7, 2022, Dr. Orphanos served his second supplemental expert

disclosure, including rebuttal opinions to Mr. Rodgers’ new expert opinions. Despite the

earlier assurance of “great latitude,” Mr. Rodgers moved to strike the experts, arguing that

the supplemental disclosure was untimely and prejudicial. During the circuit court’s March

14, 2022, pre-trial hearing, held the day before jury selection, the circuit court granted in

part and denied in part Mr. Rodgers’ motion to strike. The court precluded Dr. Orphanos

5 from offering expert testimony from Dr. Gehrig discussing the effect the 2020 stroke had

on Mr. Rodgers’ life expectancy.

Also heard at the pre-trial hearing were Dr. Orphanos’ two motions regarding

Mr. Rodgers’ claim that Dr. Orphanos acted with a “reckless disregard of a risk of harm to

the patient” under West Virginia Code § 55-7B-9c(h)(1), his motion for partial summary

judgment on claims other than medical negligence, and his motion in limine to preclude

Mr. Rodgers from asserting or arguing that he was “reckless.” In both motions, Dr.

Orphanos argued that none of Mr. Rodgers’ experts opined that he was “reckless,” and that

he had disclosed experts who testified that his treatment met the standard of care. As such,

Dr. Oprhanos contended that there was no expert evidence that his care amounted to

anything beyond simple negligence, thus Mr. Rodgers should have been barred from

arguing “recklessness” at trial. The circuit court denied both motions, holding that the

determination of whether Dr. Orphanos was reckless would be based on the totality of the

evidence presented at trial and not on any one expert’s opinion.

Dr. Orphanos also presented three other motions in limine at the pretrial

hearing: (1) his motion in limine to exclude medical expenses not supported by expert

testimony, relating to the testimony of Nurse Taniguchi; (2) his motion in limine to exclude

the testimony of Mr. Rodgers’ expert, David Feinberg, M.D., regarding the applicable

standard of care; and (3) his motion in limine to exclude evidence or testimony regarding

6 miscounting of vertebral bodies during surgery. The circuit court denied all three motions

at the pretrial conference.

The seven-day trial began on March 15, 2022. At trial, Mr. Rodgers called

his mother, Bonnie Rodgers as a witness. Mrs. Rodgers testified about personal notes she

made while talking to her son’s treating physicians; Dr. Orphanos moved to introduce those

notes into evidence. Without objection, the court admitted the notes. Dr. Orphanos’ counsel

then sought to question Mrs. Rodgers on her notes about a conversation she had with Joby

Joseph, M.D., who told her that he believed her son’s paralysis was caused by an ‘infarction

just above T3/T4” that “would have happened at the time of the accident” resulting in a

“possible spinal stroke.” Mr. Rodgers’ counsel objected, arguing the admission of the notes

would violate the court’s ruling on Dr. Orphanos’ motion in limine precluding standard of

care or causation opinions not previously disclosed. The circuit court sustained the

objection and disallowed the previously admitted notes, meaning that Dr. Orphanos was

precluded from inquiring about the conversation.

On March 16, 2022, Mr. Rodgers called Mark Weidenbaum, M.D., his

standard of care expert, and moved to qualify him as an expert in spine surgery. Dr.

Orphanos objected as to an insufficient foundation regarding whether Dr. Weidenbaum had

experience in treating Chance fractures. The circuit court overruled the objection.

7 After the close of evidence, Dr. Orphanos moved for partial judgment as a

matter of law under Rule 50(a) of the West Virginia Rules of Civil Procedure, arguing that

the evidence was insufficient to allow the issue of recklessness to be presented to the jury,

as there was no expert testimony of recklessness, and the evidence otherwise failed to

establish recklessness. Mr. Rodgers countered that the MPLA does not require expert

testimony on the issue of recklessness and the jury could determine it based on the totality

of evidence. The circuit court denied Dr. Orphanos’ motion.

Before the court instructed the jury, it directed counsel to submit a proposed

jury charge that explained the parties’ respective objections to ensure that all objections

were preserved. Dr. Orphanos objected to any instruction referencing recklessness and to

the instruction defining recklessness misstating the law based on West Virginia Code § 55-

7B-9c(h)(1) and West Virginia case law. Dr. Orphanos also objected to the inclusion of an

instruction on “emergency surgery” because whether the surgery constituted an

“emergency” was irrelevant to the application of the Trauma Cap. The circuit court

overruled Dr. Orphanos’ objections. Dr. Orphanos also objected to the proposed verdict

form because the first question it asked the jury to determine was whether the first surgery

was an emergency surgery, rather than a question on the standard of care.

During Mr. Rodgers’ closing argument, Dr. Orphanos objected to the use of

a pie chart that showed pieces of the “pie” relating to claimed damages. The largest slice

was labeled as non-economic damages. Dr. Orphanos argued that this was an inappropriate

8 suggestion to the jury that a larger amount should be awarded for non-economic damages.

The circuit court overruled that objection.

On March 24, 2022, after deliberations, the jury returned a verdict for Mr.

Rodgers, finding that: (1) the first surgery was not an “emergency surgery”; (2) Dr.

Orphanos was negligent; (3) Dr. Orphanos’ breach of the standard of care caused or

contributed to the paraplegia; (4) Dr. Orphanos was reckless in his care and treatment; (5)

Dr. Orphanos’ negligence caused or contributed to the 2020 stroke; and (6) Mr. Rodgers

was not negligent in failing to present to the ER prior to his 2020 stroke. Based on these

findings, the jury returned the following verdict as to the paraplegia and the 2017 surgery:

Past expenses for care and treatment $1,374,079.00 Lost earning capacity $591,166.00 Future care, treatment, renovation $6,511,940.00 Past pain, suffering, loss of enjoyment $1,000,000.00 Future pain, suffering, loss of enjoyment $1,500,000.00

For the 2020 stroke, the jury awarded additional damages:

Additional future care and treatment $1,793,690.00 Future pain, suffering, loss of enjoyment $5,000,000.00

TOTAL $17,770,875.00

On April 13, 2022, Dr. Orphanos filed a motion to reduce the verdict

consistent with the MPLA Trauma Cap, which Mr. Rodgers opposed. The circuit court

heard argument on April 29, 2022, and entered an order (1) deferring ruling (by agreement

of Mr. Rodgers’ counsel) on the motion to reduce the entire verdict under the MPLA’s

9 Trauma Cap; (2) applying West Virginia Code § 55-7B-8 to reduce the verdict for non-

economic damages to $750,000.00; and (3) taking under advisement Dr. Orphanos’ motion

to reduce the award of medical expenses. The circuit court also instructed the parties to

exchange additional information on the medical bills, which they did, and then filed

supplemental briefing. The circuit court held another hearing on June 30, 2022.

The circuit court entered its judgment order on September 12, 2022,

concluding that based on the jury’s verdict and mandatory reductions required by the

MPLA, the judgment against Dr. Orphanos included: (1) past and future pain, suffering,

and loss of enjoyment of life totaling $750,000.00; (2) lost earning capacity totaling

$591,166.00; (3) past expenses for care and treatment totaling $215,588.58; and (4) future

care, treatment, and renovation expenses totaling $8,305,630.00. The judgment totaled

$9,862,384.58.

After the judgment order was entered, Dr. Orphanos filed a renewed motion

for judgment as a matter of law on the issue of recklessness and a separate motion for new

trial. Also, Mr. Rodgers filed a motion to alter or amend the judgment. The circuit court

heard these motions and denied them by orders dated January 20, 2023.5

5 Mr. Rodgers’ appealed the circuit court’s judgment to this Court in case No. 23- ICA-64; however, it was stricken from this Court’s docket by an agreed voluntary dismissal order pursuant to West Virginia Rules of Appellate Procedure 27(a) entered January 4, 2024. 10 II. STANDARD OF REVIEW

On appeal, Dr. Orphanos asserts sixteen assignments of error ranging from

errors of law to evidentiary rulings made by the circuit court.6 Based on the numerous

assignments of error, and precedent by the Supreme Court of Appeals of West Virginia

(“SCAWV”):

[w]e will set out the standard of review for each issue as it is addressed below. See State v. Boyd, 238 W. Va. 420, 428, 796 S.E.2d 207, 215 (2017) (“We will dispense with our usual standard of review section because each of the assignments of error has its own review criteria.”); State v. Dunn, 237 W. Va. 155, 158, 786 S.E.2d 174, 177 (2016) (‘Therefore, we dispense with setting out a general standard of review. Specific standards of review will be discussed separately as we address each assignment of error.”).

McClure Mgmt., LLC v. Taylor, 243 W. Va. 604, 611-12, 849 S.E.2d 604, 611-12 (2020).

III. DISCUSSION

A. Renewed Judgment as a Matter of Law

We first will address Dr. Orphanos’ arguments regarding his renewed

judgment as a matter of law.

“The appellate standard of review for an order granting or denying a

renewed motion for a judgment as a matter of law after trial pursuant to Rule 50(b) of the

6 We have reordered Dr. Orphanos’ assignments of error to accord with our analysis. See, e.g., Harlow v. E. Elec., LLC, 245 W. Va. 188, 195 n.25, 858 S.E.2d 445, 452 n.25 (2021). 11 West Virginia Rules of Civil Procedure [1998] is de novo.” Syl. Pt. 1, Fredeking v. Tyler,

224 W. Va. 1, 680 S.E.2d 16 (2009). Further, the SCAWV has consistently held:

[w]hen this Court reviews a trial court’s order granting or denying a renewed motion for judgment as a matter of law after trial under Rule 50(b), it is not the task of this Court to review the facts to determine how it would have ruled on the evidence presented. Instead, its task is to determine whether the evidence was such that a reasonable trier of fact might have reached the decision below. Thus, when considering a ruling on a renewed motion for judgment as a matter of law after trial, the evidence must be viewed in the light most favorable to the nonmoving party. See, Syllabus Point 2, Alkire v. First Nat. Bank of Parsons, 197 W. Va. 122, 475 S.E.2d 122 (1996).

Id. at 5, 680 S.E.2d at 20.

Notably, under the MPLA a plaintiff is required to prove:

an injury or death resulted from the failure of a health care provider to follow the accepted standard of care:

(1) The health care provider failed to exercise that degree of care, skill and learning required or expected of a reasonable, prudent health care provider in the profession or class to which the health care provider belongs acting in the same or similar circumstances; and

(2) Such failure was a proximate cause of the injury or death.

W. Va. Code § 55-7B-3(a) (2003). Further, “[t]he applicable standard of care and a

defendant’s failure to meet the standard of care, if at issue, shall be established in medical

professional liability cases by the plaintiff by testimony of one or more knowledgeable,

competent expert witnesses if required by the court.” W. Va. Code § 55-7B-7(a) (emphasis

added).

12 The MPLA Trauma Cap statute, codified as West Virginia Code § 55-7B-9c

(2016) is the primary contention in this case. The Trauma Cap provides, in part as follows:

(a) In any action brought under this article for injury to or death of a patient as a result of health care services or assistance rendered in good faith and necessitated by an emergency condition for which the patient enters a health care facility designated by the Office of Emergency Medical Services as a trauma center, including health care services or assistance rendered in good faith by a licensed emergency medical services authority or agency, certified emergency medical service personnel or an employee of a licensed emergency medical services authority or agency, the total amount of civil damages recoverable may not exceed $500,000, for each occurrence, exclusive of interest computed from the date of judgment, and regardless of the number of plaintiffs or the number of defendants or, in the case of wrongful death, regardless of the number of distributees.

(b) On January 1, 2016, and in each year thereafter, the limitation on the total amount of civil damages contained in subsection (a) of this section shall increase to account for inflation as determined by the Consumer Price Index published by the United States Department of Labor: Provided, That increases on the limitation of damages shall not exceed one hundred fifty percent of the amounts specified in said subsection.

(c) Beginning July 1, 2016, a plaintiff who, as a result of an injury suffered prior to or after said date, suffers or has suffered economic damages, as determined by the trier of fact or the agreement of the parties, in excess of the limitation of liability in section (a) of this section and for whom recovery from the Patient Injury Compensation Fund is precluded pursuant to section one, article twelve-d, chapter twenty-nine of this code may recover additional economic damages of up to $1 million. This amount is not subject to the adjustment for inflation set forth in subsection (b) of this section.

13 (d) The limitation of liability in subsection (a) of this section also applies to any act or omission of a health care provider in rendering continued care or assistance in the event that surgery is required as a result of the emergency condition within a reasonable time after the patient’s condition is stabilized.

(e) The limitation on liability provided under subsection (a) of this section does not apply to any act or omission in rendering care or assistance which:

(1) Occurs after the patient’s condition is stabilized and the patient is capable of receiving medical treatment as a nonemergency patient; or (2) Is unrelated to the original emergency condition.

…

(h) The limitation on liability provided under subsection (a) of this section does not apply where health care or assistance for the emergency condition is rendered

(1) In willful and wanton or reckless disregard of a risk of harm to the patient….

W. Va. Code § 55-7B-9c (2016) (emphasis added) (amended in 2024).

First, Dr. Orphanos argues that the circuit court erred in finding that the

MPLA does not require expert testimony on the issue of recklessness. He asserts that the

MPLA expressly requires that a defendant’s failure to meet the standard of care shall be

established by expert testimony. See W. Va. Code § 55-7B-7(a) (2015) (“The applicable

standard of care and a defendant’s failure to meet the standard of care, if at issue, shall be

established in medical professional liability cases by the plaintiff by testimony of one or

more knowledgeable, competent expert witnesses if required by the court.”). Next, Dr.

14 Orphanos argues that assuming the MPLA requires expert testimony to establish

recklessness, the circuit court erred in denying his motion for judgment as a matter of law,

as there was legally insufficient evidence to support Mr. Rodgers’ claim.

We are tasked with deciding whether under the MPLA Trauma Cap, an

expert witness is required to testify that not only did the doctor breach the applicable

standard of care, but the doctor went so far as to being reckless in his care. However, this

Court concludes it is not necessary to decide the issue of recklessness in the context of the

MPLA Trauma Cap because it is not the sole avenue for a claim to avoid its limitation.7

The Trauma Cap provides that the “limitation on liability provided under subsection (a) of

this section does not apply where health care or assistance for the emergency condition is

rendered: (1) in willful and wanton or reckless disregard of a risk of harm to the patient….”

W. Va. Code § 55-7B-9c(h)(1). Notably, the act provides another exception, in that the act

“does not apply to any act or omission in rendering care or assistance which: (1) [o]ccurs

after the patient’s condition is stabilized and the patient is capable of receiving medical

treatment as a nonemergency patient; or (2) is unrelated to the original emergency

condition.” Id. at § 55-7B-9c(e). Thus, if a surgery is done so recklessly or as a

7 While this Court concludes that it is unnecessary to determine if Dr. Orphanos performed the surgery recklessly, we note that under the MPLA there is no mandatory language requiring expert testimony on recklessness. The MPLA states that such expert testimony is left to the discretion of the lower court as guided by the rules of evidence. See W. Va. Code 55-7B-7(a) (stating that expert testimony shall be necessary “if required by the court”). 15 nonemergency, and any resulting damage is found to be the result of a breach of the

standard of care, the Trauma Cap will not apply.

On appeal, Dr. Orphanos does not directly argue in his brief about the

emergency surgery applicability aspect under the MPLA Trauma Cap, but below, he

countered Mr. Rodgers’ motion for a directed verdict on this issue. Below, Dr. Orphanos

argued that the emergency surgery portion of the MPLA Trauma Cap is inapplicable

because it has nothing to do with the Trauma Cap. He asserts that the Trauma Cap provides

if a surgery is required even after the patient is stabilized, and that surgery is being done

because of the original emergency condition, which everyone agrees that Mr. Rodgers

came into a designated trauma center with an emergency condition, then the Trauma Cap

applies.8 Specifically, Dr. Orphanos is relying on section 55-9B-9c(d), which states:

[t]he limitation of liability in subsection (a) of this section also applies to any act or omission of a health care provider in rendering continued care or assistance in the event that surgery is required as a result of the emergency condition within a reasonable time after the patient’s condition is stabilized.

The circuit court denied Mr. Rodgers’ motion for a directed verdict on this issue 8

and permitted the issue of whether the surgery was an “emergency surgery” to go to the jury. 16 Here, the jury found that Mr. Rodgers’ surgery was not an emergency surgery

under the MPLA.9 Emergency surgery itself is not defined by the act, however, “emergency

condition” is. The MPLA defines “Emergency Condition” as

any acute traumatic injury or acute medical condition which, according to standardized criteria for triage, involves a significant risk of death or the precipitation of significant complications or disabilities, impairment of bodily functions or, with respect to a pregnant woman, a significant risk to the health of the unborn child.

W. Va. Code § 55-7B-2(d) (2022).

On appeal, following a renewed judgment as a matter of law after a jury

verdict, our “task is to determine whether the evidence was such that a reasonable trier of

fact might have reached the decision below.” Syl. Pt. 2, Fredeking v. Tyler, 224 W. Va. 1,

680 S.E.2d 16 (2009). We conclude there was sufficient evidence to reach such a

conclusion. Dr. Orphanos and every physician who provided testimony on the issue

concurred that the procedure was not deemed an emergency surgery. This conclusion was

supported by several factors, including Mr. Rodgers’ admission on June 4, the neurology

evaluation not occurring until roughly twelve hours post-admission, and the surgery not

taking place until June 6, all while displaying normal neurological findings during the pre-

operative phase.10 Further, it is undisputed that Mr. Rodgers had two choices for

9 Dr. Orphanos also asserts that the jury instruction presented to the jury on emergency surgery was incorrect. This portion of his argument is laid out below. 10 See App. 2763, 2847 (Dr. Weidenbaum) (“[T]he definition of emergency surgery is when there is an acute threat to either life or limb. So[,] at the time, [Mr. Rodgers] was 17 treatment—a conservative, nonsurgical back brace or the rods-and-screws surgery he

elected to have performed.

Therefore, we conclude it is clear from the record, and the concessions made

by Dr. Orphanos himself, that a reasonable jury could find that Mr. Rodgers’ first surgery

after the accident was not an emergency surgery. Thus, having concluded that a reasonable

jury could find that Mr. Rodgers’ surgery was not an emergency surgery, his resulting

damages from Dr. Orphanos’ negligence are outside of the Trauma Cap.

B. Motion for New Trial

Now, we turn to Dr. Orphanos’ denied motion for a new trial and his

assignments of error associated therewith.11

clinically stable so it was not an emergent issue.”); App. 2896 (Dr. Orphanos) (agreeing that “this was not an emergent surgery based upon the records you see from the operating room[.]); App. 2850–2852 (Dr. Orphanos) (agreeing that when he evaluated Mr. Rodgers more than 24 hours before the surgery “he was not a patient that was an emergency that required you to rush him to the emergency department to save his life and limb[.]”); App. 2856 (Dr. Orphanos) (agreed that “there was no emergency situation that required [him] to rush him to the operating room because of fear of deterioration that might prejudice or jeopardize his life or limb[.]”); App. 3546 (defense expert Dr. Berkman) (“Q. You agree that this was not an emergency surgery. A. Yeah, I agree.”) 11 We note that Dr. Orphanos’ first two assignments of error in this respect pertain to the issue of recklessness. First, he asserts that the circuit court abused its discretion when it denied his pre-trial motions for partial summary judgment and in limine regarding recklessness. Second, Dr. Orphanos asserts that the circuit court abused its discretion by reading to the jury Mr. Rodgers’ proposed jury instructions defining recklessness as “an act of unreasonable character in disregard for a risk known to him or so obvious that it must be taken that he was aware of it.” However, for the above-mentioned reasons, regarding the issue of recklessness in this case, this Court declines to address these arguments. The 18 “[O]ur standard of review for a trial court’s decision regarding a motion for

a new trial is abuse of discretion.” MacDonald v. City Hosp., Inc., 227 W. Va. 707, 715,

715 S.E.2d 405, 413 (2011) (quoting Marsch v. American Elec. Power Co., 207 W. Va.

174, 180, 530 S.E.2d 173, 179 (1999)). The SCAWV has stated,

[t]he 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. 2, Grimmett v. Smith, 238 W. Va. 54, 55, 792 S.E.2d 65, 66-67 (2016) (internal

quotation marks and citations omitted). Further, the SCAWV has held:

‘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 5, Orr v. Crowder, 173 W. Va. 335, 315 S.E.2d 593 (1983).]

Id. at 60, 792 S.E.2d at 71.

1. Jury Instruction on “Emergency Surgery”

First, Dr. Orphanos asserts that the circuit court abused its discretion by

reading to the jury Mr. Rodgers’ instruction regarding emergency surgery, and further for

jury in this case found that the surgery performed was not an emergency surgery, and thus finding a separate reason to eliminate the Trauma Cap, this court concludes the issue of recklessness is not dispositive and we will not further address it. 19 allowing a question to be posed regarding emergency surgery on the verdict form. Dr.

Orphanos argues that the circuit court’s instruction on emergency surgery prejudiced him

because the instruction did not explain to the jury the requirement of finding that Mr.

Rodgers’ condition was stabilized, nor did the instruction require the jury to find whether

Mr. Rodgers was a “nonemergency patient.”12 We disagree.

Jury instructions are reviewed under a two-part test. “As a general rule, the

refusal to give a requested jury instruction is reviewed for an abuse of discretion. By

contrast, the question of whether a jury was properly instructed is a question of law, and

the review is de novo.” State v. Hoard, 248 W. Va. 428, 437, 889 S.E.2d 1, 10 (2023)

(citation omitted). Further, “[w]hether facts are sufficient to justify the delivery of a

particular instruction is reviewed by [the] Court under an abuse of discretion standard.” Id.

(citation omitted). “[A] jury instruction is erroneous if it has a reasonable potential to

mislead the jury as to the legal principle or does not adequately inform the jury on the law.

An erroneous instruction requires a new trial unless the error is harmless.” Tracy v. Cottrell

ex rel. Cottrell, 206 W. Va. 363, 376, 524 S.E.2d 879, 892 (1999).13 However, “[a] verdict

12 Dr. Orphanos argues that the circuit court abused its discretion by using the phrase “emergency surgery”, as opposed to the language in the MPLA Trauma Cap statute which states, “nonemergency patient.” However, this is a distinction without a difference, and this Court concludes that using “emergency surgery” in place of “nonemergency patient” did not mislead the jury. 13 See id. at 370, 524 S.E.2d at 886. 20 should not be disturbed based on the formulation of the language of the jury instructions

so long as the instructions given as a whole are accurate and fair to both parties.” Syl. Pt.

7, in part, Foster v. Sakhai, 210 W. Va. 716, 559 S.E.2d 53 (2001).

In this case, the circuit court instructed the jury as follows on emergency

surgery:

The court instructs the jury that Michael Rodgers has asserted that the surgery carried out two days after his admission to the hospital was not an emergency surgery.

If you find that the surgery carried out by the Defendant was not an emergency surgery, then you should answer the special interrogatory on the verdict form accordingly.

The verdict form’s first question posed was “[d]o you find that the first surgery performed

on Michael Rodgers was an emergency surgery?” The jury concluded that “No” it was not

an emergency surgery.

To challenge jury instructions successfully, a challenger must first demonstrate the charge as a whole created a substantial and ineradicable doubt about whether the jury was properly guided in its deliberations. Second, even if the jury instructions were erroneous, we will not reverse if we determine, based upon the entire record, that the challenged instruction could not have affected the outcome of the case. 21 Further, Dr. Orphanos argues that the jury instruction given failed to

correctly interpret the interplay between West Virginia Code § 55-7B-9c(e)(1) and § 55-

7B-9c(d). West Virginia Code § 55-7B-9c(d) specifically states:

The limitation of liability in subsection (a) of this section also applies to any act or omission of a health care provider in rendering continued care or assistance in the event that surgery is required as a result of the emergency condition within a reasonable time after the patient’s condition is stabilized.

Dr. Orphanos asserts that Mr. Rodgers’ surgery occurred within two days after he was

admitted to the hospital’s Surgical Trauma Intensive Care Unit as a trauma patient, and the

surgery was performed as a result of the emergency condition, thus the jury instruction

given prejudiced him by not outlining West Virginia Code § 55-7B-9c(d).

This Court is cognizant of the fact that “reasonable time” is not defined by

West Virginia case law, nor the MPLA. However, this is not an issue. “Deference is given

to a trial court’s discretion concerning the specific wording of the instruction, and the

precise extent and character of any specific instruction will be reviewed only for an abuse

of discretion.” Keesee v. Gen. Refuse Serv., Inc., 216 W. Va. 199, 209, 604 S.E.2d 449,

459 (2004). Given this deferential review, we conclude that the jury instruction given was

sufficient enough for the jury to determine whether or not the surgery performed was an

emergency surgery.14 For the same reasons mentioned above in section III A, there was

14 Although the instruction given can be argued to be incomplete, it was not inaccurate. Here, the circuit court gave an accurate jury instruction on emergency surgery. This Court notes that it is the opposing party’s burden to an instruction to propose one they 22 sufficient evidence the jury heard to determine whether or not Mr. Rodgers’ surgery was

an emergency surgery. Thus, the circuit court did not abuse its discretion in permitting the

instruction on emergency surgery to be read to the jury.

2. Supplemental Expert Disclosures

Second, Dr. Orphanos asserts that the circuit court abused its discretion by

failing to either exclude a supplemental expert disclosure filed by Mr. Rodgers over two

months before trial and after discovery was already closed, or, in the alternative, grant a

continuance to allow Dr. Orphanos adequate time to rebut the new evidence.15 Dr.

Orphanos argues that despite the great latitude promised in allowing him to respond to Mr.

Rodgers’ late disclosed experts, the circuit court abused its discretion in striking Dr.

Gehrig’s opinion that the 2020 stroke significantly reduced Mr. Rodgers’ life expectancy.

Not allowing Dr. Gehrig’s testimony resulted in the jury awarding the full value of the new

life care plan adopted by Mr. Rodgers’ life care planner expert. Here, we agree, solely as

it relates to striking Dr. Gehrig’s life expectancy testimony.

believe is more in accordance with the law, and here, Dr. Orphanos only objected to such an instruction without proposing an instruction he deemed proper. Dr. Orphanos could have proposed a more complete instruction detailing West Virginia Code § 55-7B-9c(d), however, he did not. What’s good for the goose is good for the gander. 15 While Dr. Orphanos argues that the circuit court abused its discretion in allowing Mr. Rodgers to supplement his expert witness disclosures, just two months before trial, this court concludes that this was not error. Because we conclude the circuit court did not abuse its discretion in allowing Mr. Rodgers to supplement his expert witness disclosures, this argument will not be addressed any further. However, the circuit court did abuse its discretion in not allowing Dr. Orphanos to supplement his expert witness disclosures, specifically Dr. Gehrig’s testimony on life expectancy, for the reasons to be mentioned. 23 The SCAWV has held that under Rule 26(e)(1) of the West Virginia Rules

of Civil Procedure (amended 2024),

a party responding to a discovery request is under a continuing duty to make a seasonable supplementation to its original answers to any question asking for the identity of an expert witness expected to be called at trial, the subject matter on which the expert will testify, and the substance of his testimony.

Syl. Pt. 1, in part, State ex rel. Tallman v. Tucker, 234 W. Va. 713, 769 S.E.2d 502 (2015).

[F]actors that may assist a court in deciding whether to permit late supplemental expert witness disclosure include: (1) the explanation for making the supplemental disclosure at the time it was made; (2) the importance of the supplemental information to the proposed testimony of the expert, and the expert’s importance to the litigation; (3) potential prejudice to an opposing party; and (4) the availability of a continuance to mitigate any prejudice.

Id. at 717, 769 S.E.2d at 506.

Notably, in July 2020, during the pendency of this case, Mr. Rodgers suffered

an embolic stroke, leading to additional impairments. Approximately two months before

the trial, on January 5, 2020, Mr. Rodgers filed a second amended expert witness

disclosure, presenting a new life care plan and economic report that addressed the

additional medical needs arising from the stroke, which he claimed were related to the care

provided by Dr. Orphanos in 2017. On February 4, 2022, approximately five weeks before

trial, Dr. Orphanos filed a motion to exclude Mr. Rodgers’ updated damages report and

related testimony, along with a motion to continue. Dr. Orphanos argued that these

amended disclosures exceeded the discovery deadline and were submitted too close to the

24 trial, and also questioned the adequacy of medical expert support for the opinions of the

life care planner. However, the circuit court denied both motions in an order dated February

24, 2022.

Subsequent to the denial of Dr. Orphanos' motions, on March 7, 2022, Dr.

Orphanos further supplemented his expert disclosures, introducing an infectious disease

specialist, William Petri, M.D., and providing updated reports from his own life care

planner. Additionally, he expanded the opinions of his vascular neurology expert, Dr.

Gehrig, to discuss the impact of the 2017 paraplegia and the 2020 stroke on Mr. Rodgers’

life expectancy. On March 9, 2020, Mr. Rodgers filed a motion to strike, followed by a

supplemental motion to strike dated March 14, 2022, citing prejudice due to the late

disclosures. During the pre-trial conference on March 14, 2022, the circuit court partially

granted Mr. Rodgers’ motions to strike. While it allowed Dr. Orphanos to present evidence

from Dr. Petri, it barred Dr. Gehrig from offering an opinion on life expectancy.

Here, we conclude that the circuit court abused its discretion in striking Dr.

Gehrig’s testimony as to Mr. Rodgers’ life expectancy. Applying the Tallman factors to

Dr. Orphanos’ supplemental expert disclosures clearly shows that the circuit court abused

its discretion. As noted above, Mr. Rodgers supplemented his expert disclosures merely

two months before trial, and guaranteed Dr. Orphanos great latitude in responding with

rebuttal experts. However, immediately upon receiving Dr. Orphanos’ supplemental

rebuttal experts, Mr. Rodgers filed a motion to strike these for being untimely.

25 In applying the Tallman factors, we are left with no other conclusion than the

trial court abused its discretion in denying Dr. Orphanos’ supplemental expert witness

disclosure and not allowing Dr. Gehrig to testify to Mr. Rodgers’ life expectancy. Under

the first factor, the explanation for the late disclosure is essential, however, arguably here

life expectancy was always an issue.16 But, because the remaining three factors weigh in

favor of Dr. Orphanos, we conclude the circuit court abused its discretion.

The second Tallman factor focuses on the importance of the supplemental

expert. Here, Dr. Gehrig was going to testify to the life expectancy of Mr. Rodgers post

2020 stroke. In Dr. Gehrig’s opinion, post 2020 stroke, Mr. Rodgers’ life expectancy was

between five to seven years. Dr. Gehrig’s opinion was essential to the total value of

damages recoverable by Mr. Rodgers.17 Not allowing the jury to hear rebuttal expert

testimony on conflicting life expectancy left the jury with only Mr. Rodgers’ life care

planner’s opinion of how long he would live.18

16 Prior to Mr. Rodgers’ 2020 stroke, his life expectancy according to Nurse Taniguchi, Mr. Rodgers’ life care planner expert, was twenty-eight years. After Mr. Rodgers’ 2020 stroke, his life expectancy, according to Nurse Taniguchi, dropped to 27.3 years. Regardless of whether the 2017 paraplegia caused Mr. Rodgers’ 2020 stroke, life expectancy evidence is relevant to determine the appropriate amount of damages. 17 “In an action for damages for personal injuries a physician who is familiar with life expectancies may testify to the life expectancy of the plaintiff….” Syl. Pt. 1, Crum v. Ward, 146 W. Va. 421, 122 S.E.2d 18 (1961). 18 Notably, this was Dr. Orphanos’ only rebuttal expert testimony on life expectancy. Dr. Orphanos’ life care planner in her updated report noted specifically that 26 Third, the potential prejudice that arose from striking Dr. Gehrig from

testifying to life expectancy is abundantly clear. Without Dr. Gehrig’s testimony that Mr.

Rodgers likely only has between five to seven years of life left, the jury was left with only

Mr. Rodgers’ life care planner’s testimony of twenty-seven years. While the amount of

prejudice is unclear, it is irrefutable that prejudice occurred. Allowing only one number,

twenty years higher than another expert’s opinion, certainly had an impact on the jury

reaching the amount of damages it did in this case.

Lastly, the fourth Tallman factor looks at the availability for a continuance

to mitigate any prejudice. Here, Dr. Orphanos asked the court for a continuance in order to

allow him more time to rebut Mr. Rodgers’ supplemental expert disclosures. However,

unclear based on the record why the court did not grant a continuance, the court denied this

request and entered the result mentioned above, by striking Dr. Gehrig’s testimony. While

there is not an abundance of discussion of why a continuance was not proper, the lack of

such discussion leads this court to conclude that a continuance would have allowed more

time for Dr. Orphanos to rebut Mr. Rodgers’ expert testimony. Although the main

contention here is the exclusion of Dr. Gehrig’s testimony, based on the record, there would

have been no harm if the court had granted a continuance.

she understood another expert would be opining to life expectancy, so she did not give any opinion on Mr. Rodgers’ life expectancy. 27 Therefore, the record in this case shows that the circuit court abused its

discretion in precluding Dr. Gehrig from giving his expert opinion on Mr. Rodgers’ life

expectancy. Based on this conclusion, this case is remanded for a new trial solely on

damages, and the circuit court must allow rebuttal expert life expectancy opinions on behalf

of Dr. Orphanos.

3. Expert Opinion Testimony

Third, Dr. Orphanos argues that the circuit court abused its discretion by

permitting Mr. Rodgers’ expert witnesses to render opinions on topics for which they were

not qualified. Dr. Orphanos asserts that three of Mr. Rodgers’ expert witnesses were

unqualified, namely, Nurse Taniguchi, Dr. Feinberg, and Dr. Weidenbaum.

“Whether a witness is qualified to state an opinion is a matter which rests

within the discretion of the trial court and its rulings on that point will not ordinarily be

disturbed unless it clearly appears that its discretion has been abused.” Syl. Pt. 5, Mayhorn

v. Logan Med. Found., 193 W. Va. 42, 44, 454 S.E.2d 87, 89 (1994).19 Under the MPLA,

the following is required for expert witnesses on the standard of care:

A proposed expert witness may only be found competent to testify if the foundation of his or her testimony is first laid establishing that: (1) The opinion is actually held by the expert

19 “[T]o qualify a witness as an expert on the standard of care, the party offering the witness must establish that the witness has more than a casual familiarity with the standard of care and treatment commonly practiced by physicians engaged in the defendant’s specialty.” Mayhorn, 193 W. Va. at 50, 454 S.E.2d at 95. 28 witness; (2) the opinion can be testified to with reasonable medical probability; (3) the expert witness possesses professional knowledge and expertise coupled with knowledge of the applicable standard of care to which his or her expert opinion testimony is addressed; (4) the expert witness’s opinion is grounded on scientifically valid peer-reviewed studies if available; (5) the expert witness maintains a current license to practice medicine with the appropriate licensing authority of any state of the United States…and (6) the expert witness is engaged or qualified in a medical field in which the practitioner has experience and/or training in diagnosis or treating injuries or conditions similar to those of the patient. If the witness meets all of these qualifications and devoted, at the time of the medical injury, sixty percent of his or her professional time annually to the active clinical practice in his or her medical field or specialty, or to teaching in his or her medical field or specialty in an accredited university, there shall be a rebuttable presumption that the witness is qualified as an expert. The parties shall have the opportunity to impeach any witness’s qualifications as an expert.

W. Va. Code § 55-7B-7(a) (2015); see also W. Va. R. Evid. 702(a) ([i]f scientific,

technical, or other specialized knowledge will assist the trier of fact to understand the

evidence or to determine a fact in issue, a witness qualified as an expert by knowledge,

skill, experience, training, or education may testify thereto in the form of an opinion or

otherwise.”) Further, the SCAWV has held that “where the proposed expert may be

unfamiliar with a specific procedure that is the subject of the action, but otherwise satisfies

the MPLA’s statutory requirements, the expert is qualified to render an opinion, leaving it

to the trier of fact to weigh the expert’s credibility.” Tanner v. Raybuck, 246 W. Va. 361,

372 n.1, 873 S.E.2d 892, 903 n.1 (2022) (Justice Hutchison, concurring) (citations

omitted).

29 i. Nurse Taniguchi

Dr. Orphanos argues that the circuit court abused its discretion in allowing

Nurse Taniguchi, an expert life care planner, to render opinions about causation, as she is

only a nurse and nurses cannot give causation opinions. He asserts that Nurse Taniguchi

was permitted to testify to causation of the 2020 stroke because the court permitted her to

read certain portions of Mr. Rodgers’ medical records into the record and state that his

paraplegia caused or contributed to the 2020 stroke. Again, we disagree.

Notably, Nurse Taniguchi was qualified as an expert in the field of nurse life

care planning. During the pre-trial conference Dr. Orphanos filed a motion in limine to

exclude medical expenses not supported by medical testimony.20 The circuit court denied

20 Upon review of this case, this Court acknowledges that there is an issue tying causation of Dr. Orphanos’ 2017 surgery to Mr. Rodgers’ 2020 stroke. During the above referenced motion in limine Dr. Orphanos argues that the motion “really had to do more with the 2020 stroke and the medical records associated with it and the future care Nurse Taniguchi is going to be arguing that is related to the 2020 stroke.” “An objection to an adverse ruling on a motion in limine to bar evidence at trial will preserve the point, even though no objection was made at the time the evidence was offered, unless there has been a significant change in the basis for admitting the evidence.” Syl. Pt. 6, Bennet v. 3 C. Coal, 180 W. Va. 665, 379 S.E.2d 388 (1989). However, while Dr. Orphanos did file a motion in limine arguing there was no causation for the 2020 stroke, here, before this Court, he did not properly preserve that argument. On appeal, Dr. Orphanos fails to argue that there is no causation testimony tying the 2017 surgery to the 2020 stroke. While he does make reference to this argument based on Nurse Taniguchi’s assignment of error, he did not brief or argue this point. Here, Dr. Orphanos argues that Nurse Taniguchi should not have been allowed to testify to causation, however, as noted she did the exact opposite, and she stated she could render so such opinion. Thus, because Dr. Orphanos did not properly preserve the issue of no causation opinion testimony for appeal, this court declines to address it. Further, on appeal, based on the failure to properly preserve this issue, causation is no longer an issue for the circuit court below. 30 this motion, and explicitly stated on the record, “[Nurse Taniguchi] can’t give causation

testimony.”

Nurse Taniguchi updated her life care plan after Mr. Rodgers’ stroke in

January 2022. However, contrary to Dr. Orphanos’ argument, Nurse Taniguchi did not

render a medical opinion as to the cause of Mr. Rodgers’ stroke.21 Rather, as a fully

qualified nurse and life care planner, she reviewed the diagnosis and condition as reflected

in Mr. Rodgers’ medical records and used those findings as a basis for calculating her cost

estimates. In her report, she outlines the medical records that she used and based her report

on.22 During her testimony, she never gave a causation opinion. Notably, it was explicitly

mentioned that she was not a medical expert and could not give any causation opinions.

Nurse Taniguchi simply drew pertinent information from Mr. Rodgers’ medical records,

which she then used to determine the goods and services that would be necessary for Mr.

Rodgers’ future care.23

21 Nurse Taniguchi admitted that as a nurse, she lacks the requisite skill, experience, training, or education needed to opine as to a causal relationship between the 2017 surgery and Mr. Rodgers’ 2020 stroke. 22 Importantly, the medical records themselves were admitted without objection. 23 At one point during Nurse Taniguchi’s testimony, she was asked to explain the meaning of a specific line and comment in Mr. Rodgers’ medical records, specifically a statement by Dr. Bansil she relied on. However, she never gave a causation opinion, she simply explained, for clarity, what was meant by Dr. Bansil’s record. 31 Thus, because Nurse Taniguchi did not give any causation opinions, rather

just stated what she based her life care plan report on, the circuit court did not abuse its

discretion.

ii. Dr. Feinberg

Dr. Orphanos argues that Dr. Feinberg, Mr. Rodgers’ neurology expert, was

not qualified to render opinions on the standard of care for neurosurgeons or spine

surgeons. Dr. Orphanos asserts that circuit court abused its discretion in permitting Dr.

Feinberg to testify because he was not qualified under Rule 702 of the West Virginia Rules

of Evidence to opine on the standard of care. Once again, we disagree.

Notably, Dr. Feinberg was called to testify to the necessity of using

intraoperative monitoring in the type of spinal injuries in this case. He is a board-certified

neurologist employed at Pennsylvania Hospital in Pennsylvania. Dr. Feinberg testified that

as many as 4,000 spine surgeries are performed every year at the hospital he oversees. The

SCAWV expressly held in Mayhorn that an expert “is not barred from testifying merely

because he or she is not engaged in practice as a specialist in the field about which his or

her testimony is offered.” Mayhorn, 193 W. Va. at 49, 454 S.E.2d at 94. Rather, all that is

required “is more than a casual familiarity with the standard of care and treatment

commonly practiced by physicians engaged in the defendant’s specialty.” Id. at 50, 454

S.E.2d at 95. Thus, based on the record the circuit court did not abuse its discretion in

32 permitting Dr. Feinberg to testify about the importance of the IONM and the standard of

care associated therewith.

iii. Dr. Weidenbaum

Dr. Orphanos also argues that Dr. Weidenbaum was not qualified to be

recognized as an expert in spine surgery. Specifically, Dr. Orphanos asserts that the circuit

court abused its discretion in permitting Dr. Weidenbaum to testify because he could not

recall when he first performed a surgery involving a Chance fracture, how many surgeries

he had performed with Chance fractures, or the last time he performed a Chance fracture

surgery. Thus, Dr. Orphanos asserts that the circuit court abused its discretion in permitting

Dr. Weidenbaum to be qualified as an expert in spine surgery and testify about Chance

fractures. Again, we disagree.

Here, Dr. Weidenbaum possessed extensive qualifications to assess the

standard of care for spinal surgeries, including the one in this instance. Following medical

school, he underwent a comprehensive training regimen, consisting of a two-year residency

in general surgery, followed by a three-year residency in orthopedic surgery, and

culminating in a one-year fellowship dedicated to spine surgeries. His expertise is

underscored by board certification in this specialized field. Since the completion of his

spine surgery fellowship in 1987, he has focused his medical practice solely on spine

surgery, contributing his skills and knowledge at Columbia-affiliated hospitals in New

York. Based on the record, Mr. Rodgers established that Dr. Weidenbaum has “more than

33 a casual familiarity with the standard of care and treatment commonly practiced by

physicians engaged in the defendant’s specialty.” Mayhorn, 193 W. Va. at 50, 454 S.E.2d

at 95. Thus, the circuit court did not abuse its discretion in allowing Dr. Weidenbaum to be

qualified as an expert and testify on spinal surgery.

4. Mr. Rodgers’ Mother’s Notes

Fourth, Dr. Orphanos argues that the circuit court abused its discretion in

precluding him from cross-examining Mr. Rodgers’ mother regarding notes that she made

while consulting with Mr. Rodgers’ treating physician, Dr. Joseph. Dr. Orphanos asserts

that because Ms. Rodgers was allowed to refresh her recollection with the notes on direct

examination, the notes were admissible under Rule 612 of the West Virginia Rules of

Evidence. We disagree.

Under Rule 612(b) of the West Virginia Rules of Evidence,

An adverse party is entitled to have the writing or object produced at the trial, hearing, or deposition to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness’s testimony. If the producing party claims that the writing or object includes unrelated matter, the court must examine the writing or object in camera, delete any unrelated portion, and order that the rest be delivered to the adverse party. Any portion deleted over objection must be preserved for the record.

34 At trial, Mr. Rodgers called his mother, Bonnie Rodgers, to testify. On direct

examination, Ms. Rodgers testified that she had written some personal notes while Mr.

Rodgers was in the hospital. Ms. Rodgers was then asked, “And would it help you in

recalling these events if you were able to look at your notes?” To which she replied,

“Probably so.” Followed by a second question by counsel, “Just to refresh your

recollection?” Mr. Rodgers’ counsel then gave those notes to Ms. Rodgers to rely on while

testifying.

At the beginning of cross examination, Dr. Orphanos moved her notes into

evidence, and they were admitted after a brief side bar, without objection. Then Dr.

Orphanos moved to have those notes published to the jury; however, Mr. Rodgers objected,

arguing that certain portions were hearsay and permitting testimony about Dr. Joseph’s

statements violated the court’s previous motions in limine. The court sustained Mr.

Rodgers’ objection to the publication of Ms. Rodgers’ notes to the jury.24 Specifically, Dr.

Orphanos asserts that he sought to question Ms. Rodgers about a July 19, 2017,

conversation she describes in the notes between herself and Dr. Joseph, in which Dr. Joseph

explained that he believed Mr. Rodgers’ paraplegia was caused by a spinal cord infarct.

24 Based on the court’s ruling, the notes were admitted to the jury, however, the exact portion Dr. Orphanos sought to question Ms. Rodgers about was redacted because it went against the court’s previous rulings on motions in limine. 35 Importantly, prior to trial, Dr. Orphanos filed a motion in limine to prohibit

Mr. Rodgers or Mr. Rodgers’ family friends from testifying concerning the standard of

care or causation, which the court granted with no objection. Even further, the court granted

Dr. Orphanos’ motion in limine to preclude expert opinions not previously disclosed during

discovery.

Here, Ms. Rodgers was using her notes to recollect her memory during her

testimony. Based on the previous motions in limine entered by the Court it was not an abuse

of discretion to preclude Dr. Orphanos from cross-examining Ms. Rodgers about a

conversation she had with a treating physician, about what he thought was the cause of the

paraplegia. Given the rules of evidence, the usage of the notes was appropriate.25

5. Miscounting of Vertebrae

Fifth, Dr. Orphanos argues that the circuit court abused its discretion by

denying his motion in limine to preclude evidence that he miscounted vertebral bodies

25 See Syl. Pt. 8, Stephens v. Rakes, 235 W. Va. 555, 775 S.E.2d 107 (2015)

“‘Once a trial judge rules on a motion in limine, that ruling becomes the law of the case unless modified by a subsequent ruling of the court. A trial court is vested with the exclusive authority to determine when and to what extent an in limine order is to be modified.’ Syl. Pt. 4, Tennant v. Marion Health Care Foundation, 194 W. Va. 97, 459 S.E.2d 374 (1995).” Syl. Pt. 2, Adams v. Consol. Rail Corp., 214 W. Va. 711, 591 S.E.2d 269 (2003). 36 during the surgery. Dr. Orphanos asserts that none of Mr. Rodgers’ expert witnesses

testified in deposition or claimed in their expert opinions that the miscounting of vertebrae

was a breach of the standard of care. The circuit court denied Dr. Orphanos’ motion after

Mr. Rodgers agreed that his experts would not testify that the miscounting of vertebral

bodies was “in and of itself a violation of the standard of care.” However, Dr. Orphanos

argues that based on this denial, at trial Mr. Rodgers during opening and closing was able

to improperly persuade the jury by stating that the miscounting of vertebrae was indicative

of Dr. Orphanos’ negligence and recklessness in this case. Thus, he argues that the jury

was misled based on these statements and a new trial is warranted.26 We disagree; while it

is questionable that this testimony should have been excluded, any such error is harmless.

Error is harmless when it is trivial, formal, or merely academic, and not prejudicial to the substantial rights of the party assigning it, and where it in no ways affects the outcome of the trial. Stated conversely, error is prejudicial and ground for reversal only when it affects the final outcome and works adversely to a substantial right of the party assigning it. Obviously, in order for the rule of harmless error to be called into play in support of a judgment, the judgment must be otherwise supportable and will be reversed when there is no evidence to support it. Instances in civil cases in which Rule 103(a) may be applied fall generally into two categories: (1) where the error is so slight that no one could have been mislead

26 See Syl. Pt. 9, Stephens v. Rakes, 235 W. Va. 555, 775 S.E.2d 107 (2015)

“Great latitude is allowed [to] counsel in argument of cases, but counsel must keep within the evidence, not make statements calculated to inflame, prejudice or mislead the jury, nor permit or encourage witnesses to make remarks which would have a tendency to inflame, prejudice or mislead the jury.” Syl. Pt. 2, State v. Kennedy, 162 W. Va. 244, 249 S.E.2d 188 (1978). 37 thereby even if the evidence is in substantial conflict; and (2) where the error is substantial, but from the record it is apparent that no impartial jury could have reached any other verdict.

Reed v. Wimmer, 195 W. Va. 199, 209, 465 S.E.2d 199, 209 (1995).

At trial, Dr. Weidenbaum was asked by Mr. Rodgers’ counsel, “[I]s

miscounting the vertebrae a failure or deviation from the standard of care?” And he replied,

“No.” This testimony was elicited in regard to the IONM, which Mr. Rodgers was asserting

that had Dr. Orphanos been using such a device, he would not have placed a screw in the

wrong vertebrae. Specifically, Dr. Weidenbaum’s testimony was called to show that Dr.

Orphanos’ failure to use IONM deprived him of real time monitoring and the chance to

take immediate corrective action.

Given the significant record in this case, this Court concludes that any such

error in regard to this testimony was harmless. Dr. Orphanos was allowed to cross examine

Dr. Weidenbaum, and there were numerous other experts who testified to the standard of

care. Given the complexity of this case, the amount of testimony on the standard of care in

this case, and counsel’s ability to cross examine each expert, any such error would be

harmless. See Syl. Pt. 4, Grimmett v. Smith, 238 W. Va. 54, 792 S.E.2d 65 (2016) (“Where,

in the trial of an action at trial before a jury, the evidence is conflicting, it is the province

of the jury to resolve the conflict, and its verdict thereon will not be disturbed unless

believed to be plainly wrong.”) (Citation omitted).

38 6. Pie Chart

Sixth, Dr. Orphanos argues that the circuit court abused its discretion by

failing to instruct the jury to disregard Mr. Rodgers’ demonstrative pie chart during closing

arguments. He asserts that at the pre-trial hearing the circuit court granted his motion in

limine which precluded the parties from making suggestions as to a specific dollar amount

that should or should not be awarded relating to non-economic damages.27 However,

during closing arguments, Mr. Rodgers’ counsel used a demonstrative pie chart that

showed a larger pie slice for non-economic loss than the pie slice for economic loss, but

did not include specific dollar amounts for non-economic losses.28 Therefore, Dr. Orphanos

asserts that the circuit court abused its discretion because Mr. Rodgers’ emphasis on the

size of economic and non-economic loss prejudiced Dr. Orphanos. Again, we disagree.

The SCAWV has stated that making suggestions on non-economic verdict

amounts to the jury can result in reversible error. See Syl. Pt. 7, in part, Bennet v. 3 C Coal

Co., 180 W. Va. 665, 667, 379 S.E.2d 388, 390 (1989) (suggesting a non-economic verdict

amount to a jury for non-economic damages “may result in reversible error where the

27 The exact motion was titled “Motion in Limine to preclude the suggestion or comparison of the worth of a valuable chattel,” which the court granted. However, it was noted in the transcript on the motion that counsel was still allowed to suggest a dollar figure or dollar ranges in closing arguments as permitted by West Virginia law. 28 Dr. Orphanos objected to the use of the pie chart and requested that the jury be given an instruction to disregard the chart, but the circuit court overruled the objection, explaining that the jury had already been instructed on damages. 39 verdict is obviously influenced by such statement”); see also Foster v. Sakhai, 210 W. Va.

716, 733, 559 S.E.2d 53, 70 (2001) (Davis, J., concurring in part and dissenting in part)

(“[s]tating a target amount for a jury to return for noneconomic damages is ‘reversible error

where the verdict is obviously influenced by such statement.’”) (Citation omitted).

While one could argue that presenting a pie chart illustrating damages,

particularly slices representing omitted portions, might introduce prejudice, it needs to be

shown that this influenced the jury’s verdict. In this instance, such a showing is lacking.

Dr. Orphanos has not effectively demonstrated how the jury’s decision was swayed by this

pie chart, particularly considering all of the other evidence presented at trial in regard to

non-economic damages.29 Additionally, the jury instructions provided were sufficient in

outlining the criteria and expectations for the jury regarding the determination of non-

economic damages. 30

29 The pie chart contained only those damages which were already produced into evidence.

30 Notably, the jury instructions provided,

[a]s it relates to non-economic damages—that is pain and suffering—there is no rule or set method for deciding the amount of these damages. The amount of these damages is left to the discretion of the jury to decide what is fair and just. You must use your judgment to decide a reasonable amount based on the evidence and your common sense. Any such award must be fair and just in the light of the evidence.

40 Moreover, this argument may be considered moot since the original

$7,500,000 awarded by the jury for non-economic damages was later reduced to $750,000

by the circuit court’s judgment order. Therefore, the circuit court did not abuse its

discretion by not instructing to the jury to disregard the pie chart.

7. Cumulative Impact Doctrine

Lastly, Dr. Orphanos argues that the cumulative impact of the

aforementioned errors justifies the need for a new trial, as he believes his essential rights

to a fair and unbiased trial were violated. He maintains that the combination of these errors

rendered the jury’s verdict in this case questionable and unreliable. We disagree.

“[T]he cumulative error doctrine may be applied in a civil case when it is

apparent that justice requires a reversal of a judgment because the presence of several

seemingly inconsequential errors has made any resulting judgment inherently unreliable.”

Tennant v. Marion Health Care Foundation, Inc., 194 W. Va. 97, 118, 459 S.E.2d 374,

395 (1995). However, in this case we have concluded that there was only one single error

made below, therefore, the cumulative error doctrine is inapplicable.

IV. CONCLUSION

For the foregoing reasons, this Court affirms the January 20, 2023, order

denying Dr. Orphanos’ renewed judgment as a matter of law. However, we reverse and

remand in part the January 20, 2023, denial of Dr. Orphanos’ motion for a new trial, and

41 reverse in part the September 12, 2022, judgment order, for a new trial solely on damages.31

On remand the circuit court is required to allow Dr. Gehrig, or a similar defense expert

properly noticed, to testify as to the life expectancy of Mr. Rodgers. The only issue on

remand is the damages, which shall be adjusted in accordance with Mr. Rodgers’ post

stroke life expectancy.

Affirmed, in Part, and Reversed and Remanded, in Part.

31 Since the damages will be considered and determined at a later point in time with a new trial, the applicable pre- and post-judgment interest rate, and the calculation of such interest under West Virginia law will need to be adjusted accordingly. 42