No. 17-1086 - Robert Smith v. Carolyn Clark, M.D. and Cabell Huntington Hospital, Inc. FILED June 10, 2019 released at 3:00 p.m. HUTCHISON, Justice, dissenting, joined by WORKMAN, Justice: EDYTHE NASH GAISER, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA
The majority has concluded that “this case was fairly tried” and “fair
evidentiary rulings were made thoughtfully by the court.” Maj. Op. at 45. However, the
trial court excluded the testimony of a critical expert for the plaintiff and allowed a potential
juror who had a longstanding and ongoing business relationship with defense counsel to
remain on the jury panel. Because it is clear to me that prejudicial error occurred and
substantial justice was not done, I would have granted the plaintiff a new trial.1
Accordingly, I dissent to the majority’s decision upholding the jury’s verdict.
With respect to the exclusion of the expert testimony, the record in this case
shows that there was considerable dispute between the parties prior to trial with regard to
the number of experts that would be called to testify. After several hearings, the trial court
ruled that each side would be limited to one obstetrical standard of care expert and one
nursing standard of care expert. The plaintiff elected to use Dr. Roberts and Patricia Spier,
R.N. As trial got underway, the plaintiff called Dr. Roberts to testify as his first witness.
At the outset of his testimony, plaintiff’s counsel asked Dr. Roberts what conclusion he
1 See McInarnay v. Hall, 241 W.Va. 93, --, 818 S.E.2d 919, 924 (2018) (explaining new trials are granted when “prejudicial error has occurred and substantial justice has not been done”). 1 had reached after reviewing the medical records with respect to the standard of care as it
related to “the practicing doctor,” i.e., Dr. Clark, in the case. In response, Dr. Roberts
testified, “Well, my opinion is that the care that she received on the day of her delivery did
not adhere to an acceptable level of care expected both as an obstetrician as well as the
nursing staff of Cabell Huntington Hospital.” The defense immediately objected “based
on the many agreements and discussions . . . had on this matter between counsel. . . .[stating
Dr. Roberts] was to offer no opinions as it relates to the nurses in this case.” Plaintiff’s
counsel responded that Dr. Roberts was, in fact, only intended to be a standard of care
expert as to the defendant doctor, that Dr. Roberts’s comment was not an intentional
violation of the court’s pretrial ruling, and that a curative instruction would be appropriate.
The hospital maintained, however, that it would be unfair to allow Nurse Spier to testify in
light of Dr. Roberts’s testimony because the jury would hear two different experts for the
plaintiff say that the nurses fell below the standard of care whereas the defense would only
have one expert on the issue in accordance with the pretrial ruling. The circuit court hastily
agreed that Dr. Roberts had “potentially poisoned the jury with this information.” The trial
court then refused to give a curative instruction, ruled that Nurse Spier would not be
allowed to testify, and ordered the plaintiff to proceed with Dr. Roberts as his standard of
care expert with respect to both Dr. Clark and the nursing staff.
Given the circumstances, a curative instruction would have easily remedied
Dr. Roberts’s offhand comment regarding the nursing staff. At that point in his testimony,
Dr. Roberts had not been questioned regarding specific events that had occurred during the
2 delivery of the child that caused him to form his opinion, nor had any other witness
testified. Therefore, an instruction telling the jury to disregard Dr. Roberts’s statement
about the nursing staff because another witness would be addressing the matter would have
been appropriate and just. Instead, the trial court overreacted and employed the drastic
remedy of completely excluding Nurse Spier’s testimony, significantly prejudicing the
plaintiff’s case. Unsurprisingly, the defense immediately seized the opportunity on cross
examination to attack Dr. Roberts’s qualifications to testify about nursing care, eliciting
admissions from him that he had not researched or written anything with respect to chain
of command policies and how nurses take care of patients. This exchange undoubtedly left
the jury with the impression that the plaintiff could not find a nursing expert to support his
theory that the nurses were liable for failing to initiate the hospital’s chain of command
policy when Dr. Clark ignored their inquiries about going to the operating room to perform
a cesarean section.
Presumably, the trial court’s goal in excluding Nurse Spier’s testimony was
to prevent prejudice to the defendants. However, the exact opposite occurred as the
plaintiff was outnumbered four-to-one on expert testimony with respect to the standard of
care. In that regard, not only did the defense have their designated obstetric and nursing
experts, they also had the testimony of Dr. Clark and the nursing staff. As this Court has
recognized, “[a] medical malpractice case presents a unique situation where the testimony
of a defendant . . . often qualifies as expert testimony even when he or she only intends to
testify as a fact witness . . . [because the defendant] cannot usually explain his or her
3 conduct without giving some testimony that is expert in nature.” State ex rel. Weirton Med.
Ctr. v. Mazzone, 214 W.Va 146, 155, 587 S.E.2d 122, 131 (2002).
Here, one of the hospital nurses, Mary Meadows, testified that she had
absolutely no concern about Dr. Clark’s attempt to deliver the baby using forceps.
Elaborating, she testified, “Truthfully, I was glad [Dr. Clark] pulled them out because the
quickest way to get that baby out would be to put forceps on and deliver it.” Plaintiff’s
counsel immediately objected to this opinion testimony and requested that the trial court
allow him to call a nursing expert since “[n]ow they have two people, you know, saying
the exact same thing. It’s the exact same situation. It’s highly prejudicial.” The trial court
refused and instead gave a simple curative instruction telling the jury to disregard Mary
Meadows’s last answer and not consider it as evidence. Thus, while the trial court felt that
a curative instruction would not remedy Dr. Roberts’s off-hand comment about the nursing
staff, it concluded otherwise when the defense violated the one-expert ruling and solicited
opinion testimony from Mary Meadows regarding whether it was appropriate for Dr. Clark
to attempt to deliver the baby with forceps. Certainly, the defendants were entitled to
present testimony from their independently-retained experts in addition to their own
testimony,2 but limiting the plaintiff’s expert testimony to that of Dr. Roberts alone under
these circumstances was simply unfair.
2 In Mazzone, this Court concluded the trial court abused its discretion when it refused to allow the defendant doctor to provide testimony of an independently-retained 4 Rather than recognizing the obvious prejudice caused by the exclusion of
Nurse Spier’s testimony, the majority has chosen to blame the victim and find that no error
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No. 17-1086 - Robert Smith v. Carolyn Clark, M.D. and Cabell Huntington Hospital, Inc. FILED June 10, 2019 released at 3:00 p.m. HUTCHISON, Justice, dissenting, joined by WORKMAN, Justice: EDYTHE NASH GAISER, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA
The majority has concluded that “this case was fairly tried” and “fair
evidentiary rulings were made thoughtfully by the court.” Maj. Op. at 45. However, the
trial court excluded the testimony of a critical expert for the plaintiff and allowed a potential
juror who had a longstanding and ongoing business relationship with defense counsel to
remain on the jury panel. Because it is clear to me that prejudicial error occurred and
substantial justice was not done, I would have granted the plaintiff a new trial.1
Accordingly, I dissent to the majority’s decision upholding the jury’s verdict.
With respect to the exclusion of the expert testimony, the record in this case
shows that there was considerable dispute between the parties prior to trial with regard to
the number of experts that would be called to testify. After several hearings, the trial court
ruled that each side would be limited to one obstetrical standard of care expert and one
nursing standard of care expert. The plaintiff elected to use Dr. Roberts and Patricia Spier,
R.N. As trial got underway, the plaintiff called Dr. Roberts to testify as his first witness.
At the outset of his testimony, plaintiff’s counsel asked Dr. Roberts what conclusion he
1 See McInarnay v. Hall, 241 W.Va. 93, --, 818 S.E.2d 919, 924 (2018) (explaining new trials are granted when “prejudicial error has occurred and substantial justice has not been done”). 1 had reached after reviewing the medical records with respect to the standard of care as it
related to “the practicing doctor,” i.e., Dr. Clark, in the case. In response, Dr. Roberts
testified, “Well, my opinion is that the care that she received on the day of her delivery did
not adhere to an acceptable level of care expected both as an obstetrician as well as the
nursing staff of Cabell Huntington Hospital.” The defense immediately objected “based
on the many agreements and discussions . . . had on this matter between counsel. . . .[stating
Dr. Roberts] was to offer no opinions as it relates to the nurses in this case.” Plaintiff’s
counsel responded that Dr. Roberts was, in fact, only intended to be a standard of care
expert as to the defendant doctor, that Dr. Roberts’s comment was not an intentional
violation of the court’s pretrial ruling, and that a curative instruction would be appropriate.
The hospital maintained, however, that it would be unfair to allow Nurse Spier to testify in
light of Dr. Roberts’s testimony because the jury would hear two different experts for the
plaintiff say that the nurses fell below the standard of care whereas the defense would only
have one expert on the issue in accordance with the pretrial ruling. The circuit court hastily
agreed that Dr. Roberts had “potentially poisoned the jury with this information.” The trial
court then refused to give a curative instruction, ruled that Nurse Spier would not be
allowed to testify, and ordered the plaintiff to proceed with Dr. Roberts as his standard of
care expert with respect to both Dr. Clark and the nursing staff.
Given the circumstances, a curative instruction would have easily remedied
Dr. Roberts’s offhand comment regarding the nursing staff. At that point in his testimony,
Dr. Roberts had not been questioned regarding specific events that had occurred during the
2 delivery of the child that caused him to form his opinion, nor had any other witness
testified. Therefore, an instruction telling the jury to disregard Dr. Roberts’s statement
about the nursing staff because another witness would be addressing the matter would have
been appropriate and just. Instead, the trial court overreacted and employed the drastic
remedy of completely excluding Nurse Spier’s testimony, significantly prejudicing the
plaintiff’s case. Unsurprisingly, the defense immediately seized the opportunity on cross
examination to attack Dr. Roberts’s qualifications to testify about nursing care, eliciting
admissions from him that he had not researched or written anything with respect to chain
of command policies and how nurses take care of patients. This exchange undoubtedly left
the jury with the impression that the plaintiff could not find a nursing expert to support his
theory that the nurses were liable for failing to initiate the hospital’s chain of command
policy when Dr. Clark ignored their inquiries about going to the operating room to perform
a cesarean section.
Presumably, the trial court’s goal in excluding Nurse Spier’s testimony was
to prevent prejudice to the defendants. However, the exact opposite occurred as the
plaintiff was outnumbered four-to-one on expert testimony with respect to the standard of
care. In that regard, not only did the defense have their designated obstetric and nursing
experts, they also had the testimony of Dr. Clark and the nursing staff. As this Court has
recognized, “[a] medical malpractice case presents a unique situation where the testimony
of a defendant . . . often qualifies as expert testimony even when he or she only intends to
testify as a fact witness . . . [because the defendant] cannot usually explain his or her
3 conduct without giving some testimony that is expert in nature.” State ex rel. Weirton Med.
Ctr. v. Mazzone, 214 W.Va 146, 155, 587 S.E.2d 122, 131 (2002).
Here, one of the hospital nurses, Mary Meadows, testified that she had
absolutely no concern about Dr. Clark’s attempt to deliver the baby using forceps.
Elaborating, she testified, “Truthfully, I was glad [Dr. Clark] pulled them out because the
quickest way to get that baby out would be to put forceps on and deliver it.” Plaintiff’s
counsel immediately objected to this opinion testimony and requested that the trial court
allow him to call a nursing expert since “[n]ow they have two people, you know, saying
the exact same thing. It’s the exact same situation. It’s highly prejudicial.” The trial court
refused and instead gave a simple curative instruction telling the jury to disregard Mary
Meadows’s last answer and not consider it as evidence. Thus, while the trial court felt that
a curative instruction would not remedy Dr. Roberts’s off-hand comment about the nursing
staff, it concluded otherwise when the defense violated the one-expert ruling and solicited
opinion testimony from Mary Meadows regarding whether it was appropriate for Dr. Clark
to attempt to deliver the baby with forceps. Certainly, the defendants were entitled to
present testimony from their independently-retained experts in addition to their own
testimony,2 but limiting the plaintiff’s expert testimony to that of Dr. Roberts alone under
these circumstances was simply unfair.
2 In Mazzone, this Court concluded the trial court abused its discretion when it refused to allow the defendant doctor to provide testimony of an independently-retained 4 Rather than recognizing the obvious prejudice caused by the exclusion of
Nurse Spier’s testimony, the majority has chosen to blame the victim and find that no error
occurred because plaintiff’s counsel used Dr. Roberts as his standard of care expert with
respect to the nursing staff. Obviously, when it became apparent that the trial court was
going to exclude Nurse Spier’s testimony, plaintiff’s counsel had no choice but to have Dr.
Roberts try to explain to the jury how the nurses violated the applicable standard of care.
Had he not done so, the plaintiff would have had no nursing expert at all. It is patently
unfair for the majority to have concluded that plaintiff counsel’s attempt to make the best
of bad situation by agreeing to use Dr. Roberts as his nursing expert constituted an
“acquiescence” thereby precluding him from asserting error with respect to the trial court’s
ruling.
While trial courts are afforded broad discretion with regard to the admission
of expert testimony,3 in this instance, the trial court clearly abused that discretion when it
excluded Nurse Spier’s testimony. The trial court deprived the plaintiff of the ability to
expert because the doctor testified as an expert on his own behalf. 214 W.Va. at 155, 587 S.E.2d at 131.
“‘“The action of a trial court in admitting or excluding evidence in the exercise of 3
its discretion will not be disturbed by the appellate court unless it appears that such action amounts to an abuse of discretion.” Syl. pt. 5, Casto v. Martin, 159 W.Va. 761, 230 S.E.2d 722 (1976) citing Syl. pt. 10, State v. Huffman, 141 W.Va. 55, 87 S.E.2d 541 (1955).’ Syllabus Point 2, State v. Rector, 167 W.Va. 748, 280 S.E.2d 597 (1981).” Syl. Pt. 3, State v. Oldaker, 172 W.Va. 258, 304 S.E.2d 843 (1983).
5 present his nursing expert testimony evidence merely because another witness misspoke.
A simple curative instruction would have remedied the situation with little or no risk of
unfair prejudice to the defendants. As this Court has long held, any “[e]rror in the
admission of improper testimony, subject to cure by action of the court, is cured . . . , since
the jury is presumed to follow the instructions of the court.” State v. Corey, 233 W.Va.
297, 310 n.22, 758 S.E.2d 117, 130 n.22 (2014) quoting syl. pt. 2, in part, Rice v.
Henderson, 140 W.Va. 284, 83 S.E.2d 762 (1954).
I also believe that the trial court abused its discretion when it refused to
remove Juror No. 82 for cause from the jury panel.4 Unfortunately, in rejecting this
assigned error, the majority focused its analysis on the fact that Juror No. 82 previously
employed Dr. Clark’s daughter and completely ignored the long-term, on-going business
relationship between Juror No. 82 and the hospital’s defense counsel. This Court has made
clear that not only do personal relationships require close scrutiny, trial courts are obligated
to exclude potential jurors who have significant past or current relationships with a party
or law firm. In that regard, this Court has recognized that
[i]n many West Virginia communities, prospective jurors will often know the parties and their attorneys. Nevertheless, this familiarity does not remove the trial court’s obligation to empanel a fair and impartial jury as required by West Virginia’s Constitution, Article 3, § 10. This obligation
4 “The determination of whether a prospective juror should be excused to avoid bias or prejudice in the jury panel is a matter within the sound discretion of the trial judge.” O’Dell v. Miller, 211 W.Va. 285, 288, 565 S.E.2d 407, 410 (2002), citing West Virginia Department of Highways v. Fisher, 170 W.Va. 7, 289 S.E.2d 213 (1982). 6 includes striking prospective jurors who have a significant past or current relationship with a party or a law firm.
O’Dell, 211 W.Va. at 291, 565 S.E.2d at 413.
With regard to the hospital’s attorneys, Juror No. 82 explained, “They’ve
been customers for a very long time. We do pickup and delivery with that particular law
firm, so we deliver their clothes and pickup clothes from there.” She further stated that the
hospital’s attorneys were good customers and that she had interacted with them for years.
Moreover, when questioned about whether she would have difficulty deciding a case
against a client represented by these attorneys, Juror No. 82 responded, “I would have to
hope not. You know, I could try to be, you know, as impartial as I could be.” When
questioned further about whether she might have “some predisposition towards favoring a
client that they represent,” she responded, “I don’t think I would.”
When determining whether a prospective juror should be removed from the
jury panel, the trial court must consider “the totality of the circumstances . . . and where
there is a probability of bias the prospective juror must be removed from the panel by the
trial court for cause.” Syl. Pt. 8, in part, State v. Newcomb, 223 W.Va. 843, 679 S.E.2d 675
(2009). Moreover, trial courts must resolve any doubt of possible bias or prejudice in favor
of the party seeking to strike for cause. O’Dell, 211 W.Va. at 289, 565 S.E.2d at 411.
Critically, “actual bias can be shown either by a juror’s own admission of bias or by proof
of specific facts which show the juror has such prejudice or connection with the parties at
7 trial that bias is presumed.” Syl. Pt. 5, State v. Miller, 197 W.Va. 588, 476 S.E.2d 535
(1996) (emphasis added).
Given the long-standing and ongoing business relationship between Juror
No. 82 and the attorneys for the hospital, and the equivocal nature of Juror No. 82’s
responses during voir dire, I believe the trial court abused its discretion by not removing
Juror No. 82 from the jury panel for cause. By refusing to do so, the trial court forced the
plaintiff to use one of his peremptory strikes to remove Juror No. 82 from the panel. As a
result, the plaintiff suffered significant prejudice as he was forced to keep another juror
upon whom he would have exercised that strike.
For the reasons set forth above, it is clear to me that the circuit court
committed reversible error by excluding the testimony of the plaintiff’s nursing standard
of care expert and refusing to strike for cause the potential juror who had a business
relationship with defense counsel. Together, these errors caused substantial prejudice to
the plaintiff and warranted a new trial. Accordingly, I dissent. I am authorized to state that
Justice Workman joins in this dissent.