Supreme Court says Cabell judge abused his discretion

CHARLESTON – If one lawyer gives another a break on a deadline, the West Virginia Supreme Court of Appeals has ruled, courtesy requires a break in return.

All five Justices agreed that Cabell County Circuit Judge David Pancake abused his discretion when he threw out a suit against two doctors due to a missed deadline.

Pancake must prepare for trial on a claim that podiatrist Jeffrey Shook and assistant Kirt Miller botched a cyst removal on Linda Farley's right foot in 2000.

"In lay terms," the court wrote, "Mrs. Farley was suffering from gas gangrene, which can occur after surgery or trauma."

The court wrote, "This condition is rare and life threatening and resulted in an emergent, above the knee amputation of her leg."

Farley and husband Clinton Farley sued Shook and Miller in 2002. They also sued St. Mary's Hospital of Huntington, where Shook operated on Linda Farley. They also sued St. Mary's emergency room physician Gabriel Fornari, who on the day after the operation sent Linda Farley home with pain pills.

Pancake set a deadline for the Farleys to disclose their expert witness. As soon as they missed the deadline the defendants moved to compel disclosure.

The Farleys, a week late, disclosed Albert Weihl, doctor of emergency medicine, as their expert.

The defendants could not meet their disclosure deadline either. Twice in 2003 they asked the Farleys for extensions by stipulation. Twice the Farleys gave it.

Weihl, testifying in a deposition, flopped. He could not testify that St. Mary's and Fornari caused harm, nor that Shook and Miller deviated from standard care.

The Farleys needed a new expert. They moved for an extension of time to find one, arguing that they needed first to depose experts of Shook and Miller.

Shook and Miller opposed the extension. Pancake denied it.

With no expert on record for the Farleys, St. Mary's and Fornari moved for summary judgment. Pancake granted it.

Shook and Miller asked Pancake for summary judgment.

The Farleys asked Pancake to reconsider his order on Fornari and St. Mary's.

Pancake ruled against the Farleys twice in one order in 2004. He denied reconsideration on St. Mary's and Fornari. He granted summary judgment to Shook and Miller.

He wrote that there were no genuine issues of material fact as to deviations from the standard of care by Shook and Miller.

The Farleys appealed. Attorney Frank Armada of Hurricane represented them before the Supreme Court of Appeals.

Richard Bolen, Scott Sheets, Melissa Dodd Veltri and Erin Rich of Huntington represented Shook and Miller.

Tamela White and Anne O' Hare of Huntington represented Fornari.

D. C. Offutt Jr., Steven Burchett and Robert Sellards of Huntington represented St. Mary's.

On March 16 the Supreme Court of Appeals affirmed Pancake in granting summary judgment to St. Mary's and Fornari but reversed him on Shook and Miller.

"The Farleys sought additional time to find and disclose expert witnesses because they had not yet been able to depose the defendant doctors," the court wrote.

"Even more compelling than the timing of depositions and the rendering of expert opinions," the court wrote, "we place great significance on an agreement that was reached between the parties."

On two occasions, the court wrote, the doctors asked the Farleys for extensions of the disclosure deadline.

"Counsel for the Farleys agreed to the request, without hesitation, as a matter of professional courtesy," the court wrote. "However, he was not treated with the same civility as he had demonstrated."

The court wrote that, "… because of the impediments to the Farleys' ability to identify a podiatric expert, the trial court abused its discretion in denying their motion …"