CHARLESTON – Attorneys Wesley Metheney and Paul Farrell Jr. of Huntington coaxed a $10 million verdict out of a Monongalia County jury when state law allowed no more than $1 million, the West Virginia Supreme Court of Appeals has decided.

On Nov. 20, Chief Justice Robin Davis and Justices Brent Benjamin and Spike Maynard affirmed Circuit Judge Robert Stone, who shrank a verdict for Allison Riggs to $1 million.

At trial, Metheney and Ferrell prevailed on a Medical Professional Liability Act claim, but in pursuit of damages they switched theories to escape a $1 million cap in the law.

"This Court will not sanction a change in liability theories post-verdict to avoid application of clear statutory provisions," the majority wrote.

Riggs sustained an infection in her right knee during ligament reconstruction at West Virginia University's Ruby Memorial Hospital in 1995 at age 14.

Surgeons, mystified by the poor result of the surgery, performed more surgeries.

In a 1999 operation, they discovered an infection from bacteria that had spread through the hospital at the time of her first surgery.

Her father, Jack Riggs, sued WVU Hospitals, the university trustees and the university medical corporation.

Prior to trial, Riggs voluntarily dismissed the medical corporation and settled with the trustees for $75,000.

Stone held trial on the claim against the hospital last August and September. At the end, he presented jurors with a verdict form asking two primary questions.

He asked if the hospital was negligent by failing to maintain a safe and proper hospital environment with respect to infection control.

He asked if such negligence proximately caused or contributed to Riggs's damages.

The jury found against the hospital. They awarded special damages of $84,989.39 and general damages of $10 million.

Stone entered judgment reflecting the verdict but reducing general damages to $1 million.

Metheney, a past president of the West Virginia Trial Lawyers Association (now known as the West Virginia Association for Justice), and Farrell moved to reinstate the $10 million.

"No allegation has been made that WVUH negligently rendered care directly to Allison Riggs," they wrote, also challenging the constitutionality of the $1 million cap.

At a hearing, they argued that the Medical Professional Liability Act applied only if infection control workers provided direct care to Allison Riggs.

That didn't impress Stone. He stuck to the cap.

Metheney and Farrell petitioned the Supreme Court of Appeals to review the judgment. They argued that their claim didn't fall under the Medical Professional Liability Act because it arose out of environmental conditions.

They also renewed their constitutional challenge to the Act.

The hospital cross-petitioned for cross appeal, to reduce or reverse the verdict.

The Justices granted Riggs's petition and denied the hospital's petition.

Christina Vaglienti of Morgantown and Rita Massie Biser of Charleston represented the hospital.

The prospect of a constitutional struggle brought "amicus curiae" briefs from the West Virginia Association for Justice and West Virginia Mutual Insurance, plus a joint brief from the state hospital and medical associations.

The majority reached a decision without touching the constitutional question. They focused on the sudden switch of theories.

"Only after a jury verdict exceeding the MPLA's non-economic damages cap was rendered did appellants begin to argue that their claims were not governed by the MPLA," they wrote. "Appellants pled, developed, argued and submitted their claims to the jury as governed by the MPLA.

"If appellants are attempting post-verdict to re-define their claims in terms of a premises liability theory arising from an environmental contamination in order to avoid application of the MPLA's non-economic damages cap, a fundamental problem exists -– the jury was not instructed on any premises liability theory of recovery ..."

"Appellants may not change the theory of their case after the return of jury's verdict.

The majority noted that the verdict form specifically asked the jury whether WVU Hospitals was "negligent in its care and treatment of Allison J. Riggs."

"By characterizing their claims as medical negligence claims, the appellants were able to attempt to invoke strong emotional responses and a sense of authority from the jury in their closing arguments," they wrote. "By not characterizing their claims as premises liability claims until after the jury verdict was rendered, appellants precluded WVUH from developing a theory of defense of this theory."

They invoked the doctrine of estoppel, which precludes an attorney from prevailing in one case with an argument and then relying on a contradictory argument to prevail in another case, or from switching arguments for different phases of a single case.

They wrote that among four elements of estoppel, the fourth requires that the original position misled the adverse party so that allowing a reversal would injuriously affect the adverse party and the integrity of the judicial process.

"Lastly, the final factor involving misleading the opposing party and injurious affect on the integrity of the judicial process is clearly met herein," they wrote.

Justices Larry Starcher and Joseph Albright dissented and reserved the right to file dissenting opinions.

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