Court: West Virginia Supreme Court; November 6, 2008; West Virginia; State Supreme Court
Laurie Ann Murphy and Shawn M. Murphy, Sr., the parents of minor Shawn Murphy, Jr., appealed a jury verdict from the Circuit Court of Ohio County favoring Dr. Dennis L. Burech and the West Virginia University Board of Governors in a medical malpractice case. The Appellants alleged negligence related to their son’s birth on November 26, 2002, when Shawn was born via C-section at Wheeling Hospital and immediately exhibited distress, including a low respiratory rate and faint heartbeat, diagnosed as acidosis. Dr. Burech, who was on call, arrived shortly after the birth to lead resuscitation efforts and contacted the Neonatal Intensive Care Unit for Shawn's transfer. Disputes arose regarding a conversation with neonatal nurse practitioner Melissa Asher, who claimed she instructed Dr. Burech to administer bicarbonate and volume, which he failed to do until her arrival around midnight. Shawn's condition improved after receiving the necessary treatment from Nurse Asher. The Appellants contended that the negligence of the obstetricians and Dr. Burech's post-birth actions led to Shawn's permanent neurological injuries. The Supreme Court of Appeals of West Virginia reviewed the case and reversed the lower court's decision, ordering a new trial.
The jury ruled in favor of the Appellees after trial, leading the Appellants to file a motion for a new trial, which the trial court denied on May 11, 2007. Following the appeal, Shawn, one of the Appellants, passed away. The Appellants raised several errors on appeal, including issues with the trial court's allocation of peremptory challenges, failure to remove biased jurors, errors in expert witness testimony, a Rule 50 motion in favor of the West Virginia University Board of Governors, and the admission of evidence related to collateral sources.
The standard of review for juror bias is that the trial judge has discretion in excusing jurors, which is reviewed for abuse of discretion. The court affirms that it defers to the trial judge's assessments of juror qualifications based on their personal observations. In appealing the denial of a new trial, the trial court's decisions are respected unless there is a clear misapprehension of law or evidence. The court applies an abuse of discretion standard for new trial rulings, factoring in clearly erroneous factual findings and de novo review for questions of law.
The Appellants argue that the trial court improperly retained certain jurors. West Virginia Code § 56-6-12 mandates impartial jurors and allows for examination of jurors to ensure they are qualified and free from bias. The court highlights that the goal of jury selection is to ensure jurors are free from any improper prejudice or suspicion of bias, emphasizing the importance of voir dire in identifying such biases before peremptory strikes are exercised.
The Court in Fisher outlined the standard for removing a juror whose impartiality is in question, asserting that it is insufficient for a juror to merely claim they can be fair. The court must assess all relevant facts to determine whether the juror can be impartial and free from bias, consciously or subconsciously. The determination of a juror's disqualification hinges on the probability of bias or prejudice as evaluated by the court.
In O'Dell, the Court emphasized that a trial court must consider the totality of circumstances concerning a juror's potential bias and conduct thorough inquiries, favoring juror excusal when doubts arise. The trial court should evaluate not only the juror's assurances of fairness but also all surrounding circumstances.
Moreover, if a juror provides vague or inconclusive responses suggesting potential bias, further investigation into those circumstances is necessary. However, if a juror makes a definitive statement indicating bias, they must be disqualified as a matter of law, and attempts to rehabilitate them through subsequent questioning are not permitted.
In the case of Thomas v. Makani, the Court applied the O'Dell framework in a medical malpractice case, where it upheld the trial court's decision not to strike a juror who had previously received treatment from the defendant physician. The juror's indication of a potential lean towards the defendant was deemed insufficient to establish disqualifying bias.
The Court noted that while initial comments from a potential juror necessitated further inquiry, the juror, who lacked medical expertise, expressed a willingness to accept the most credible medical evidence rather than favoring Dr. Makani due to past treatment. The Court affirmed that the trial court had adequately assessed Juror Evans for bias and prejudice, conducting a thorough inquiry without grounds for disqualification.
In contrast, the case of Black v. CSX Transportation, Inc. illustrated the disqualification of a physician juror based on expressed bias against personal injury claims and attorneys, despite his claims of impartiality.
The current case parallels Black, as prospective juror Dr. Walter exhibited evident bias during voir dire. His questionnaire responses indicated a negative view of lawsuits, specifically referencing a "frivolous lawsuit" he faced as a defendant. He suggested that while compensation for emotional damages should be limited, he believed medical malpractice lawsuits contributed to high healthcare insurance costs and were largely beneficial only to attorneys. Dr. Walter's comments during both the written questionnaire and subsequent in-chamber questioning revealed a predisposition against claims resulting from medical negligence.
Dr. Walter, during a verbal evaluation in chambers, expressed difficulty in justifying pain and suffering damages, stating, "I don't know that there's any way you can compensate people for that." When asked about his ability to adhere to court instructions regarding damages, he indicated willingness to try but admitted to potential bias due to his personal experience as a defendant in a medical malpractice case, acknowledging, "obviously, I'm going to be a little bit prejudiced." He showed hesitation in awarding damages unless the act was deliberate, remarking that distinguishing between deliberate acts and accidents would be a "tough call." Dr. Walter emphasized the need for accountability in errors but suggested that context should be considered when assessing accountability for medical professionals.
The trial court denied the Appellants' motion to strike Dr. Walter, leading them to use a peremptory strike instead. However, upon reviewing the voir dire transcript, the court found the trial court erred in not striking Dr. Walter for cause due to his demonstrated prejudice regarding medical malpractice, pain and suffering damages, and his personal bias from prior litigation experience. This error was deemed reversible, necessitating a new trial.
Additionally, the Appellants argued that two other jurors, Terry Bennet and Kevin Heilman, should have been struck for cause. Although Ms. Bennet, an administrative assistant in the risk management department of Wheeling Hospital, expressed difficulty in being unbiased due to her employment, the Appellants had not moved to strike her for cause, leading to a waiver of their right to raise this issue on appeal.
A party is required to notify the court of any perceived defects during trial to preserve the issue for appeal, as established in McGlone v. Superior Trucking Co., Inc. The court clarified that if a party does not raise concerns about juror disqualification or misconduct at the appropriate time, they waive the right to object later, unless the issue was not remediable at that time. In reviewing the Appellants' claim about juror Kevin Heilman's bias, the court found no abuse of discretion in allowing him to serve. Although Heilman initially hesitated on questions of negligence and mental anguish, his confusion was addressed, and he demonstrated an understanding of the court’s standards. The Appellants raised additional errors but the court chose to reverse and remand for a new trial specifically regarding juror bias related to Dr. Walter, while also considering other issues that may affect the retrial.
The Appellants argued that the trial court erred by allowing each Appellee to have peremptory strikes, which they claimed disadvantaged them. Under Rule 47(b) of the West Virginia Rules of Civil Procedure, a jury typically consists of six members, with each side having two peremptory challenges. The court can treat multiple plaintiffs or defendants as a single party for challenges unless there is a legitimate dispute among them. The court's discretion allows for separate challenges if it determines that such a division is necessary for a fair trial, as outlined in Price v. Charleston Area Medical Center.
Syllabus point three from the Price Court outlines the criteria for establishing antagonism among co-parties to justify separate peremptory challenges under Rule 47(b) of the West Virginia Rules of Civil Procedure. The court emphasizes that mere allegations, separate representation by counsel, and distinct answers are insufficient to demonstrate antagonism. Key factors for the trial court to consider include the positions of counsel, the nature of the defendants' alleged negligence or wrongdoing, the timing of such acts, the potential for apportionment of negligence, shared defense strategies, and the existence of cross-claims. The burden lies with the plaintiffs or defendants seeking separate challenges to prove their interests are indeed antagonistic.
The court references the methodology of the Kentucky Supreme Court in Sommerkamp v. Linton, which clarified that the existence—not the degree—of antagonism among healthcare providers is crucial during jury selection. In Bayless v. Boyer, the Kentucky Supreme Court stated that the determination of antagonism should be based on pre-trial positions rather than trial proceedings. In the current case, a conflict between Dr. Burech and Nurse Asher regarding recommendations during a phone call illustrates the divergence of interests among the Appellees. The lower court recognized this divergence and allocated peremptory strikes accordingly. However, the Appellants argue that the Appellees' defenses and strategies were closely aligned, questioning the necessity for the separate challenges granted by the trial court.
The court found the interests of Dr. Burech and Nurse Asher to be antagonistic, as evidenced by separate claims of negligence against each, their representation by different counsel, and the requirement for the jury to apportion liability based on Nurse Asher's actions. There was a significant factual dispute regarding a conversation on the night of Shawn's birth, with the Appellants asserting Nurse Asher's duty to advise Dr. Burech on treatments, which she denied, while Dr. Burech disputed her account. The trial court noted the clear division in defense strategies and the presence of independent experts for each defendant, indicating a critical issue of conflict between their positions.
The trial court also granted partial judgment as a matter of law to the Board of Governors, determining that the Appellants did not demonstrate a violation of duty by Nurse Asher regarding the administration of volume to Shawn, as an order for volume was already present in Dr. Burech's orders prior to their call. The Board contended that Nurse Asher had no obligation to direct Dr. Burech during their conversation. The appellate standard for reviewing a motion for judgment as a matter of law is de novo, allowing for affirmation if only one reasonable verdict is possible, but reversal if reasonable minds could differ on the evidence's significance.
Dr. Null, the Appellants' expert, indicated that the volume order was likely already included on Dr. Burech's order sheet during a relevant phone call. Dr. Burech confirmed that he decided to cancel the volume order after this conversation. He acknowledged that he was considering administering volume at the time of his discussion with Nurse Asher. The trial court found that Nurse Asher had no duty to suggest the administration of volume, as it was already a consideration, and thus concluded there was no deviation from the standard of care. The court determined that the evidence did not support any claim of negligence against Nurse Asher regarding the volume order.
The Appellants argued that the trial court misinformed the jury about a dismissal of part of their claim against the Board of Governors, but the court merely instructed the jury that Nurse Asher had no duty to advise on the volume issue. The trial court's finding of no reversible error regarding the judgment was affirmed, noting that the volume administration had been considered prior to the phone call. The jury was still allowed to consider Nurse Asher's advice related to oxygen and bicarbonate.
Regarding future benefits, the Appellants presented testimony from Dr. Ellen Kitts about Shawn’s participation in the "Birth to Three" program and therapies received through public schooling. Dr. Al Condelucci, a life care planner, also testified about a life-care plan for Shawn. During cross-examination, testimony about available public benefits was admitted despite the Appellants' objections, which were overruled. They claimed this was erroneous on appeal. West Virginia Code § 55-7B-9a(a) allows defendants to present evidence of collateral source payments after a verdict has been rendered, specifically concerning damages for medical care and related economic losses.
The Court determined that there was no reversible error regarding the admission of collateral source evidence in this case. Citing Ratlief v. Yokum, the Court noted that such evidence is considered harmless when the jury does not address damages but resolves the case on liability, which occurred here as the jury ruled in favor of the Appellees on liability without considering damages. Consequently, the Court found any testimony regarding future benefits harmless. The Court reversed the trial court's denial of the Appellants' motion for a new trial and remanded the case for a new trial. Justice Albright did not participate, and Justice McHugh served temporarily due to Justice Albright's illness. Additional notes clarify the status of certain parties involved in the case, the definition and implications of juror bias, and the procedural nuances regarding juror challenges, emphasizing the potential prejudice resulting from the trial court's decisions on juror strikes.
Allowing separate peremptory challenges for co-parties without a clear justification is deemed an abuse of discretion, as it creates a tactical advantage in jury selection. Under Rule 50(a)(1) of the West Virginia Rules of Civil Procedure, a court can grant a judgment as a matter of law against a party if that party has been fully heard and no sufficient evidence exists for a jury to reasonably rule in their favor. West Virginia Code § 55-7B-2(b) defines "collateral source" as benefits for economic loss received from various sources, including government programs, insurance contracts, and employer wage continuation plans, with specific exclusions. Although the Appellants challenged future benefits testimony concerning Shawn, they also introduced evidence of his receipt of public services. Additionally, the Appellants contested the scope of expert testimonies from Dr. Cicco and Dr. Balducci. However, the court's decision to reverse and remand for a new trial on juror bias precludes addressing these expert testimony issues.
