CHARLESTON -- The state Supreme Court of Appeals will hear arguments in the following cases Tuesday at the West Virginia University College of Law in Morgantown.
1. Estate of Alexia Sheree Fout-Iser et al. v. John L. Hahn, M.D. et al. - 33189
Appellants (the plaintiffs below) appeal the August 30, 2005, order of Mineral County Circuit Judge Andrew N. Frye, Jr., granting summary judgment in favor of a defendant in this medical malpractice case. The appellants argue that Alexia Sheree Fout-Iser, a 31-week fetus, died as a result of actions and inactions of doctors in July 1999, especially on July 30, 1999, when Miranda L. Fout-Iser went to Potomac Valley Hospital's emergency room. She was transferred to Grant Memorial Hospital, where she delivered Alexia, who was dead at birth. One defendant doctor, Dr. Russell Rhee, died in an auto accident before the lawsuit was filed. His estate filed the motion for summary judgment that argued the plaintiffs lacked the necessary expert testimony to proceed. Judge Frye granted that motion. The main issue before the Supreme Court is whether the judge should have granted the motion for summary judgement or allowed the case to continue to a jury verdict.
2. Michael Worley, et al. v. Beckley Mechanical, Inc., et al. - 33190
Appellant (plaintiff below) Michael Worley appeals after a bench trial before Raleigh County Circuit Judge Robert A. Burnside. The issue is whether Worley was under a disability that either suspended or tolled the running of the statute of limitations of his personal injury action. Worley, a pipefitter, was injured May 28, 2000, when an exploding pressurized valve made him fall off of a scissor lift. He landed on a concrete floor thirty feet below. He filed a lawsuit on July 10, 2002. Judge Burnside concluded that Worley was not "insane" within the meaning of West Virginia law, so the lawsuit was not timely filed within the applicable statute of limitations.
3. State of West Virginia v. Wade C. Davis - 33191
Appellant Wade C. Davis appeals his December 10, 2004, conviction in Kanawha County Circuit Court for second-degree murder. He was sentenced to ten years in prison for the death of Michael Lattea on March 17, 2003. Appellant Davis alleges that Kanawha County Circuit Judge James C. Stucky's jury instructions about "intent to kill" were faulty. He wants the Supreme Court to reverse his conviction and order a new trial. The Attorney General's Office, representing the State, says the instructions were adequate. The Attorney General says the proper time to object to the instructions was at the trial and since no objections were made then, there cannot be an appeal on that issue now.
4. August Eugene Phillips, et al. v. Larry's Drive-In Pharmacy, Inc. -33194
Recently retired Boone County Circuit Court Judge E. Lee Schlaegel, Jr., certified a question asking whether a pharmacy is a "health care provider" as defined by the West Virginia Medical Professional Liability Act. Judge Schlaegel answered the certified question in the affirmative.
The question arose in a civil lawsuit a couple filed against a pharmacy they alleged negligently dispensed medication. August Eugene Phillips alleges he was injured in February 2002 after taking too much Colchicine, a gout medicine, because of instructions he alleges were incomplete. He and his wife have settled a claim against the doctor who wrote the prescription. The couple says the pharmacy is not a "health care provider" under the West Virginia Medical Professional Liability Act and so does not apply. The pharmacy and Amicus Curiae, or "Friend of the Court," briefs filed by the West Virginia Pharmacists Association, National Association of Chain Drug Stores and Rite Aid of West Virginia, Inc., say the pharmacy is a "health care provider" subject to the Medical Professional Liability Act.