State Ex Rel. Wiseman v. Henning

569 S.E.2d 204, 212 W. Va. 128, 2002 W. Va. LEXIS 149
CourtWest Virginia Supreme Court
DecidedJuly 2, 2002
Docket30313
StatusPublished
Cited by6 cases

This text of 569 S.E.2d 204 (State Ex Rel. Wiseman v. Henning) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State Ex Rel. Wiseman v. Henning, 569 S.E.2d 204, 212 W. Va. 128, 2002 W. Va. LEXIS 149 (W. Va. 2002).

Opinions

PER CURIAM.

In the instant case, the petitioner seeks a writ of prohibition to halt the enforcement of an order of the Circuit Court of Randolph County granting a motion in limine that prevented the petitioner’s main expert witness on causation and damages from testifying. The circuit court concluded that the proffered scientific opinion of the petitioner’s main witness was unreliable.

As set forth below, we grant the requested writ of prohibition.

I.

On September 13, 1996, petitioner Dorsey Wiseman suffered injuries to his left rib cage when his car was struck by a tractor trailer driven by the respondent, Charles E. Stanley, and owned by respondent Atha Tracking. Mr. Wiseman sought treatment at a local hospital for the severe pain in his ribs caused by the impact. Subsequent diagnos-[131]*131tie tests, including a biopsy performed on October 30, 1996, were negative for a cause of the recurrent pain.

A second biopsy was performed on December 5, 1996, and revealed the existence of “plasmacytoma” at the exact site of the initial trauma to Mr. Wiseman’s rib cage. Plasma-cytoma refers to abnormal plasma cells, and is a diagnostic indicator for myeloma, a cancer of the bone marrow.

Mr. Wiseman sought treatment at the Cleveland Clinic where he came under the care of Dr. Mohamad Hussein. Dr. Hussein was director of the Cleveland Clinic Foundation Myeloma Program, and was a member of several national cancer research societies. The Myeloma Program is apparently the third largest in the country, and has treated approximately 477 patients with myeloma and other similar conditions.

Mr. Wiseman was subsequently diagnosed with multiple myeloma, and was informed that his life expectancy was significantly diminished. The life expectancy of a person diagnosed with multiple myeloma is three to five years.

Of the many individuals treated by the Cleveland Clinic for myeloma, at least five of those individuals suffered “trauma-induced myeloma.” Other hospitals, such as the Mayo Clinic, had similarly found myelomas and plasmacytomas at the site of traumas. Apparently, there is medical evidence to the effect that trauma to individual cells of the body can cause localized plasmacytomas, and those plasmacytomas can develop into multiple myeloma in a short period of time.

After treating Mi'. Wiseman’s condition, Dr. Hussein concluded that Mr. Wiseman’s myeloma was a result of the rib cage injury suffered in the collision with respondent Mi'. Stanley. Dr. Hussein’s affidavit states:

It is my opinion to a reasonable degree of medical probability that Dorsey Wise-man suffers multiple myeloma as a result of the September 13, 1996 accident. This conclusion is based upon research [with many groups] ..., my treatment of a substantial number of patients, the history and treatment of Dorsey Wiseman, various laboratory results for Mr. Wiseman, articles published by other specialists and my collaboration with physicians concentrating solely upon the research and treatment of multiple myeloma.

The petitioners, Mr. Wiseman and his wife Harriet, subsequently filed a lawsuit against respondents Mr. Stanley and Atha Trucking, alleging that the respondents’ negligence was a proximate cause of Mr. Wiseman’s myelo-ma. Prior to trial, scheduled for May 30, 2000, the respondents filed a motion in li-mine seeking to exclude Dr. Hussein’s testimony that Mr. Wiseman’s myeloma occurred as a result of the injuries sustained in the collision.

On May 25, 2000, the circuit court entered an order granting the respondents’ motion in limine to exclude Dr. Hussein’s testimony. The circuit court concluded that “there is no evidence to support that the proposed testimony by Dr. Hussein is anything more than a possible or potential causal link.” The circuit court believed that Dr. Hussein’s opinion could “show no basis in established scientific knowledge because it has not been subjected to testing, peer review or publication, an established error rate, controlling standards, or a general acceptance in the scientific eommunity[.]”

After several procedural delays,1 the petitioners filed the instant petition for a writ of prohibition ■with this Court, contending that by excluding Dr. Hussein’s testimony, the circuit court had exceeded its legitimate au[132]*132thority and eliminated the petitioners’ ability to prove damages and causation.

II.

We must first determine whether prohibition is appropriate in the instant case. “[W]rits of prohibition ... provide a drastic remedy to be invoked only in extraordinary situations.” State ex rel. Allen v. Bedell, 193 W.Va. 32, 37, 454 S.E.2d 77, 82 (1994) (Cleckley, J., concurring). More specifically,

... this Court will use prohibition ... to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts and only in cases where there is a high probability that the trial will be completely reversed if the error is not corrected in advance.

Syllabus Point 1, in part, Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979).

There are five factors that this Court will consider in determining whether to issue a writ of prohibition:

In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of 'jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal’s order is clearly erroneous as a matter of law; (4) whether the lower tribunal’s order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal’s order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.

Syllabus Point 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996).

Applying these factors, we find that the petitioner has no plain, speedy, and adequate remedy in the ordinary course of law. The petitioners contend that the trial court’s ruling is clearly erroneous as a matter of law. As a result of the trial court’s ruling, both parties would be compelled to go through an expensive, complex trial and appeal from a final judgment, and we determine there is a high likelihood of reversal on appeal. The unreasonableness of the delay and expense is apparent. The remedy of appeal is usually deemed inadequate in these situations, and prohibition is therefore allowed.

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Bluebook (online)
569 S.E.2d 204, 212 W. Va. 128, 2002 W. Va. LEXIS 149, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-wiseman-v-henning-wva-2002.