Albright speaks to W.Va. Association of Justice

By The West Virginia Record | Feb 13, 2008


CHARLESTON -- State Supreme Court Justice Joseph P. Albright spoke Feb. 8 to the West Virginia Association for Justice, a group of attorneys holding its mid-winter meeting at the Charleston Marriott.

Albright talked about some of the significant cases among the 58 opinions the Supreme Court issued in the September 2007 term of the Court. The opinions involved personal injury, criminal and attorney conduct issues.

Here is the prepared text of Albright's speech:

Thank you for the opportunity to talk with you today about some of the significant cases decided by the Court in the September 2007 term of the Court.

I have selected a few of the 58 cases we decided which I hope will be the more interesting from your perspective.

You will recall that the Court has from time to time struggled with the question of when an insurance policy covering a particular vehicle may be held to apply to an injury that occurred outside of, but somewhere near, the insured vehicle. In KEEFER v. FERRELL, (see page 12 of the handout), the Court, in a per curiam opinion, found that insurance coverage on a truck onto which a farm implement was about to be loaded onto a trailer attached to the truck covered a collision with the farm implement that occurred while preparations were being made to load the farm implement onto the trailer. The Court said sufficient "use" of the insured vehicle had been established for coverage purposes.

The Court has also spoken rather liberally in recent court terms about the doctrine of "continuing torts." This term, the Court clarified its thinking regarding the doctrine. In ROBERTS v. WEST VIRGINIA AMERICAN WATER CO., (see page 16 of the handout), the Court, in an opinion I wrote, held that "The distinguishing aspect of a continuing tort with respect to negligence actions is continuing tortious conduct, that is, a continuing violation of a duty owed the person alleging injury, rather than continuing damages emanating from a discrete tortious act."

That syllabus point flowed from the reality that some of our prior language on the doctrine of continuing torts suggested that the mere continuance of injury from a single discrete tortious wrong might be sufficient to invoke the doctrine and avoid the statute of limitations. In this case the plaintiff's property had continuing damages arising out of the single, discrete act of constructing and installing a waterline along the front of his property. However, the evidence did not show any continuing malfunction of the waterline or other continuing misconduct by the defendants. Hence, our ruling. You may wish to read Justice Starcher's dissent when undertaking to use or challenge this case.

In another case, we again dealt with the problem of avoiding unduly harsh application of the medical malpractice law after rejecting a claim that the case was in fact a products liability claim exempt from the MPLA. In BLANKENSHIP v. ETHICON, (see page 16 of the handout), then Chief Justice Davis rejected the argument that contaminated sutures used in a medical procedure took the case out from under the MPLA under the Boggs and Mena cases, holding that: "The failure to plead a claim as governed by the Medical Professional Liability Act, W. Va. Code 55-7B-1, et seq., does not preclude application of the Act. Where the alleged tortious acts or omissions are committed by a health care provider within the context of the rendering of 'health care' as defined by W. Va. Code 55-7B-2(e) . . ., the Act applies regardless of how the claims have been pled."

However, the Court then proceeded to conclude that dismissal of the action in the circumstances of this case – in light of genuine doubt regarding the application of the MPLA – was too harsh a sanction. The Court remanded the case to allow amendment of the complaint and substantial compliance with the pre-suit requirements of the MPLA.

The plaintiff in RIGGS v. WEST VIRGINIA UNIVERSITY HOSPITAL, (see page 20 of the handout), was not so lucky. This case was filed as an MPLA case and when the jury returned a $10 million non-economic damages verdict, Judge Stone reduced it to $1 million under the former MPLA. Plaintiff contended the reduction was not proper because the claims arose from the hospital's failure to control an infectious outbreak, not from health care rendered to a patient. In a per curiam opinion in which Justices Benjamin, Maynard and Davis joined, the Court rejected appellant's assertion that the MPLA cap should not apply because the case was pled and tried as an MPLA case. The opinion applied judicial estoppel to conclude that the appellant may not change the theory of the case after the return of the jury's verdict. Justice Starcher and I dissented. I concluded that it appeared that by agreement, the case was not actually tried as an MPLA case, as confirmed by the verdict form and several pre-trial motions. I asserted that the plaintiff had a right to amend the complaint, under Rule 15, even after verdict to restate the cause of action upon which relief could be granted outside the MPLA. In a 25 page plus concurring opinion, the Chief Justice Davis undertook to make mince-meat of this argument, but never really attacked the underlying theory of plaintiff's appeal, that the failure to maintain a safe hospital did not involve a failure of the standard of care under the MPLA. Stay tuned!

In another medical case, not an MPLA case, the Court, in HIGHMARK WEST VIRGINIA v. JAMIE, (see page 17 of the handout), upheld the 12(b)(6) dismissal of several counts of a counterclaim in a dispute between an insurer and a physician but held that the circuit court erred in dismissing three counts in the nature of breach of contract claims, and a fraud count, and remanded the case for further proceedings.
The Court dealt expansively with several evidence issues.

In SAN FRANCISCO v. WENDY'S INTERNATIONAL, INC., (see p. 17 of the handout), Justice Starcher, writing for the Court, reversed the Circuit Court of Kanawha County grant of summary judgment for a defendant in a case alleging food poisoning, holding that the circuit court improperly excluded the testimony of two experts. "Because the summary judgment process does not conform well to the discipline and analysis that Daubert v. Merrell Dow Pharmaceuticals, Inc., (citations omitted) and Wilt v. Buracker, (citations omitted) impose, the Daubert/Wilt regime should be employed only with great care and circumspection at the summary judgment stage. Courts must be cautious – except when defects are obvious on the face of a proffered expert opinion – not to exclude debatable scientific evidence without affording the proponent of the evidence adequate opportunity to defend its admissibility. Given the plain language of the West Virginia Rules of Evidence, the side trying to defend the admission of expert evidence must be given an adequate chance to do so." The Court also held that a medical opinion based upon a properly performed differential diagnosis may satisfy the reliability prong of Rule 702, and that such opinions should be analyzed on a case-by-case basis.

In STATE EX REL. JONES, et al. v. RECHT, (see p. 17 of the handout), the Court granted a moulded writ to prevent enforcement of an order of the Circuit Court of Ohio County that excluded certain medical expert testimony in a personal injury action. The circuit court held that a neurosurgeon's testimony regarding the biomechanical elements of the accident were enmeshed to the point where the expert must be excluded. This Court directed that the expert's testimony could have been strictly limited to medical testimony, and the issues regarding force of impact should be redirected to experts qualified in biomechanics or accident reconstruction.
On the other hand, the Court reiterated its requirements for the application of the doctrine of res ipsa loquitur in GIBSON v. LITTLE GENERAL STORES, INC., (see p. 18 of the handout), in finding that the circuit court properly granted summary judgment where the plaintiff failed to produce expert testimony regarding the cause of a gasoline pump malfunction sufficient to demonstrate the probability that the malfunction could not have happened absent the negligence of the defendant in the action.

In another case involving expert testimony – in this case medical testimony – the Court reversed an order of the Circuit Court of Cabell County in WALKER v. SHARMA, (see p. 18 of the handout), that granted judgment as a matter of law to the defendant after the trial court determined that the plaintiff's expert could not testify as to the national standard of care because he was unfamiliar with the specific method to dilate urethral strictures at hospitals not located in Columbus, Ohio, where he practices. We said that the trial court erred in determining that an experienced, board-certified urologist could not testify as to the applicable standard of care and spelled out some law on the subject:

"Following a trial court's decision that a physician is qualified to offer expert testimony in a given field, issues that arise as to the physician's personal use of a specific technique or procedure to which he or she seeks to offer expert testimony go only to the weight to be attached to that testimony and not to its admissibility." Syl. Pt. 3.

"Where there are several approved methods of performing a particular medical procedure, the fact that a physician who is qualified to offer an expert opinion based on [a] field of practice and expertise utilizes a different method than the doctor whose actions are at issue does not prevent the physician from offering testimony on the applicable standard of care in a medical malpractice case." Syl. Pt. 4.

I wrote that opinion, but I invite you to read then Chief Justice Davis's concurring opinion, because I believe that the series of cases I have just reviewed with you and her concurring opinion strongly suggest that our law tracks the original intent of Daubert and Wilt, that the trial court is a gate-keeper against junk science, but that the trial court is not a stone wall against which none but the most widely-held scientific opinions will prevail and, perhaps even more importantly, that when the expert is clearly qualified within his or her field, Daubert and Wilt are not really relevant and attacks on the testimony of such a witness goes to its weight, not its admissibility. I believe it is fair to say that the federal courts and many state courts have departed from the original intent of Daubert and Wilt and are using them to exclude, rather than qualify, sound but more novel or less widely held expert opinions.

I want to mention what is perhaps a landmark case, dealing with whether the medical expenses of a minor incurred during minority may be recovered by that minor when he or she attains majority and brings suit for injuries sustained giving rise to those medical expenses. As you recall, the age-old rule is that that recovery belongs only to the parent responsible for them. That rule has now been modified. In STATE EX REL. PACKARD v. PERRY, (see p. 20 of the handout), a moulded writ of prohibition issued to prevent enforcement of orders based on the old law. The Court held that the circuit court erred in determining that only the parent, through an independent action, may seek recovery for pre-majority medical expenses incurred in the treatment of her son during alleged malpractice. "The right to maintain an action to recover pre-majority medical expenses incurred as a result of a minor's personal injuries belongs to both the minor and the minor's parents, but under no circumstances will double recovery be allowed. Thus, a procedural bar that prevents the parents from maintaining an action will not affect their minor child's right to recover. To the extent that McCallum v. Hope National Gas (citations omitted); Barker v. Saunders, (citations omitted); Glover v. Narick, (citations omitted) and other cases are inconsistent with this holding, they are overruled."

Finally, in the field of torts, I call your attention to STATE EX REL. CHEMTALL, INC., et al. v. MADDEN,(see p. 21 of the handout), where the Court denied a writ of prohibition sought by defendants in a mass torts case to prevent enforcement of an order permitting a water treatment worker to intervene in a toxic exposure action involving coal treatment plant workers. The Court held that intervention was not precluded by the Court's prior opinion in this matter, and that the challenge is also premature.

The Court also rejected a constitutional challenge to a bifurcated trial plan, stating that "a decision on the constitutionality of punitive damages at this point would amount to nothing more than an exercise in speculation."

The Court also declined to address the claim that punitive damages are not available in cases in which only medical monitoring damages are sought because appellate review is better left to a review of the verdict after complete development of all the facts and testimony.


I think it appropriate, as time permits, to mention a few other cases not necessarily in the field of torts.

In STATE EX REL. JEFFERSON COUNTY BOARD OF ZONING APPEALS v. WILKES, (see p. 1 of the handout), the Court found that former counsel for a Board of Zoning Appeals was disqualified from representing a developer whose application had been under review while he was counsel for the BZA. The Court held that it was improper for the circuit court to place the burden on the BZA to recall and divulge particular confidences and instances of advice and counsel by its former attorney, because this is to be presumed where the former client establishes, as the BZA did in this instance, that the attorney is representing a client in a substantially related matter. Lastly, the Court disapproved of parsing the proceeding to find in which parts counsel could continue and in which parts counsel could not. Counsel was out, period, under Rule 1.11(a) of the Rules of Professional Conduct.

For those of you who do building contracts, mechanics lien work and public construction contracts, look at PREUSSAG INTERNATION STEEL CORP. v. MARCH-WESTIN CO., (see page 1 of the handout), for some very clear law in this complex field.

For those of you who do some criminal law, see STATE EX REL. SHANE SHELTON v. PAINTER, Warden, (See p.5 of the handout), for another case in which we ordered a new trial in a murder case solely on the issue of mercy or no mercy. See STATE ex rel. NELSON, Prosecuting Attorney v. FRYE, (see page 3 of the handout), for a second case applying our standard for negligent homicide being something more than mere negligence. Those of you who do substantial criminal work will want to review the other cases in the handout.

There are several family law cases you will want to review. I will mention only one because of the frequency with which courts have to deal with incarcerated persons in the context of child support. In ADKINS v. ADKINS, (see p. 10 of the handout), the Court set out significant guidance for determining the support obligation of an incarcerated person, including a determination that this obligation should be set in light of that person's actual earnings while incarcerated and other assets practically available to provide support.

The Court also dealt one more time with nolo pleas in DUI cases, though I suspect this is not the end of the discussion. See STATE EX REL. BAKER v. BOLYARD, Dir. Div. Motor Vehicles, (see page 13 of the handout).

Thank you for the opportunity to visit with you. There follows in the handout a complete list of the 58 cases decided in the September term, with summaries of them prepared by Rory Perry, the Clerk of the Court, to whom I am deeply indebted in the preparation of this talk.

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