CHARLESTON – The state Supreme Court has refused a request for a writ of mandamus by the Diocese in the case in which two 78-year-old men who say they were switched at birth by staff at a Catholic hospital.
The court issued its order June 14 after the Diocese of Wheeling-Charleston had petitioned the court. The vote was 3-2. Chief Justice Evan Jenkins and Justice Tim Armstead voted in the minority, saying they would issue a rule to show cause.
Following the Supreme Court order, Monongalia Circuit Judge Phillip Gaujot issued a scheduling order July 20 that lists deadlines for attorneys, including a pretrial conference scheduled for April 12, 2022.
Crooks
John William Carr III and Jackie Lee Spencer originally filed their lawsuit last June against the Catholic Diocese of Wheeling-Charleston in Monongalia Circuit Court. Joining them as plaintiffs are wives Bonnie Lynn Carr and Phyllis Ann Spencer as well as adopted son Zackery Stealth Carr.
On March 1, Monongalia Circuit Judge Phillip Gaujot issued his order denying the Motion to Dismiss filed last July. The Diocese alleged, among other things, the statute of limitations had expired in the case.
“Plaintiffs’ action was timely filed as this suit was initiated less than one year after the date of accrual,” the order states. “As plaintiffs allege, they were without knowledge of the switch until 2019; therefore, their cause of action accrued at that time.”
Gaujot’s order also said the West Virginia Medical Professional Liability Act does not govern the claims because the injuries occurred before the WVMPLA was enacted in 1986.
“Plaintiffs’ claims did not accrue until 2019, but their injuries occurred in 1942 shortly after their respective births,” Gaujot’s order states. “The court further finds that in light of West Virginia’s liberal pleading requirements, plaintiffs’ Amended Complaint provides fair notice to defendant of their claims. While this court declines to reach a conclusion as to the merits of plaintiffs’ claims, it does however believe that, at a minimum, plaintiffs are entitled to engage in discovery.”
The plaintiffs filed an amended complaint in September making it clear they think the church was responsible.
“These men and their families are caused to wonder and speculate as to how all their lives would have been different had the hospital error not interceded,” the complaint states. “The questions are many, the feelings extraordinarily strong and very often conflicting.
“These people have been traumatized by the discovery of this error from so long ago, at the very beginning of their lives. It challenges their sense of identity and the loss of a lifetime of belonging is a grievous loss to bear. They need and deserve professional help to process the emotional toll of what happened and to help them reconcile themselves.”
Morgantown attorney Charles J. Crooks is representing the men and their families.
“They’re aware of the status of the litigation,” Crooks previously told The West Virginia Record of his clients. “They know there are no guarantees. … They’re living in hope that they’ll be some justice for what was done to them. Time and the judicial system will tell us something.”
The Diocese, in response, filed a motion to dismiss last summer. The motion challenged the sufficiency of the allegations in the complaint, arguing they did not make out a legally permissible claim. The Diocese also contends it held title to the hospital in trust for the Sisters of the Pallottine Missionary Society and for that reason should not be responsible for any wrongful conduct, and it said the claims were barred by the statute of limitations and repose provisions contained in West Virginia statutory law.
In the amended complaint filed September 11, the plaintiffs specifically address those issues. It says the church operating as a community hospital and any arrangements between the bishop and the Sisters were undisclosed to the public. Also, they say the truth wasn’t uncovered until 2019, so the June filing was well within the two years of discovering what happened.
“Our position is that our claims didn’t accrue until my clients find out the birth certificates were misrepresentations,” Crooks told The Record. “That’s when you start the statute of limitations.”
Crooks said he knows the case and the story behind it are fascinating. He said the technology that made it possible is key.
“It’s a remarkable case inasmuch as the advent of genetic analysis,” Crooks said. “This is something that revolutionized our society in a number of directions. Just in terms of justice, people on death row have been cleared of crimes based on this type of evidence.
“These are good people. What is this case worth? What do you even consider if they approach us with a settlement offer? Where do you start to put a value on what has happened to these people?”
According to the complaint, the men both were born August 29, 1942, at St. Joseph’s Hospital in Buckhannon.
They say the obstetrical and or nursing staff negligently “switched the aforesaid male newborn infants and sent them home with each other’s families; there is no other plausible explanation.”
The men say they weren’t fully aware of the switch until July 2019. DNA sequence analysis revealed the men were genetic matches with each other’s families but not the families that raised them. They used 23andMe, AncestryDNA and Quest Diagnostics to confirm the results.
The men say their families had no interactions and were strangers to each other, and they say neither family “ever suggested to them they might have been switched at the hospital shortly after birth.”
Jack Spencer, who lives in Spotsylvania, Virginia, was the first to have genetic analysis. He and his wife had been trying to locate Shirley Lee Spencer, the man identified on his birth certificate as his father. Shirley Lee Spencer abandoned the family before the boy was born. The woman listed on his birth certificate as his mother, Virginia Hamrick, took Jack to her parent’s farm in Webster County to raise him while she went to work.
At the grandparents’ farm, Jack joined five of his supposed aunts and uncles who still were minors at the farm. He didn’t see his supposed birth mother much. When he was five years old, she told Jack she was getting married. But Jack remained on the farm.
Jack says he often asked his supposed mother about his supposed father, but she didn’t tell him much until he was 11. Then, she gave Jack a photo of Shirley Lee Spencer and told him he was from the Beckley area. Jack says he asked others about Shirley Lee Spencer, but no one offered useful information.
Jack and Phyllis Spencer married in 1968. They tried to track down information about Shirley Lee Spencer, but they were not successful. So, they focused on their new family. His supposed birth mother moved in with them in 1986, and she lived with them until she died in 2003. That same year, Jack and Phyllis Spencer’s daughter Marci began her own search for information about Shirley Lee Spencer.
“She had waited until that time out of respect to her grandmother,” the complaint states. “Marci thought it would make a wonderful Christmas gift if she could present her dad with details on his dad."
She asked all of Jack’s supposed aunts and uncles for information. She also placed an ad in the Beckley Register-Herald with the photo of Shirley Lee Spencer asking “Does anyone know this man?” A hobbyist private investigator responded, and they worked together to try to track down information. Marci made phone contact with some of Shirley Spencer’s children and gave Jack a packet for Christmas.
Jack then contacted Shirley’s daughter Reba, who put him in touch with her brother Billy. Jack and Billy had a DNA test done to confirm the connection, but the analysis said they did not share the same biological father.
“Jack and Phyllis were stunned,” the complaint states. “Jack decided that was leading nowhere and frustrated, he and Phyllis once again put it all aside.”
In late 2017, Jack and Phyllis both decided to learn more about their ethnicity through Ancestry DNA kits. One of Jack’s presumed first cousins had done a test, so they figured they would see her on Jack’s report. When the results didn’t show the cousin, they again were surprised.
Then, in 2019, Jack’s last supposed uncle died. As cousins visited for the services, they began discussing DNA and tests that were available. Some had 23andMe testing done and said they felt it was superior to Ancestry DNA. Phyllis then ordered a 23andMe kid for Jack. When the results came back, none of the cousins were listed in the database.
Phyllis looked at the Ancestry DNA report again, which listed a full sibling for Jack named Betty May Carr. They dismissed it as a mistake again.
But, one of the people Phyllis had contacted through 23andMe’s email replied saying he was confidentially looking for his father and thought Jack might share some ancestors with him.
The next day, Phyllis spoke to the man on the phone. He asked her questions about people on the family tree of Betty May Carr, and he wanted to know Jack’s mother’s name as well as when and where Jack was born. The next day, the man called again.
“Did you tell me Jack was switched at the hospital?” the man asked her, to which she replied, “No, we don’t know that, but we wonder if it was possible.”
“Well, you don’t have to wonder anymore,” he replied. He said he spent hours going through records at the Upshur County Courthouse in Buckhannon and learned the two boys were born the same day at St. Joseph’s. He gave Phyllis names, addresses and phone numbers of Carr family members, including John Carr.
Phyllis called John and explained how Betty had shown up on Jack’s report as a full sibling and how she suspected Jack and John had been switched at the hospital. She explained their decades-long search for answers about Jack’s family.
“Well, I never felt like I fit in here because my mother and dad had brown hair and brown eyes and so do my brother and sister,” John Carr told her. Phyllis told him Jack’s mother and all 12 of her siblings had blue eyes, but Jack had brown hair and brown eyes.
John Carr ordered a 23andMe test. On August 18, 2019, the results came back. John Carr’s test confirmed he and Jack Spencer had been sent home with each other’s families. And all of Jack Spencer’s supposed first cousins shows up on John Carr’s report as his first cousins.
John Carr’s supposed father was a farmer in Upshur County. He often told the boy “he must be a bastard and would accuse John’s (supposed) mother of infidelity.”
Carr, who lives in Tallmansville in Upshur County, said his alleged father was cruel to him, causing him to live in constant fear of physical, verbal and emotional abuse. In the complaint, he also details childhood stories when he thinks his supposed father tried to kill him, once by trying to run over him with a tractor.
“John W. Carr. Jr. never just whipped John,” the complaint states. “He beat him. He used his fists, feet, razor strap, hickory limbs, a belt. More than once, John had blood running from his legs, back and head. He actually cut holes in John’s clothes with a limb.”
He also recalled a beating he suffered after a dairy cattle show that his sister had won the year before. When John finished second, he returned to the stall to tie up the cow.
“His father came out of nowhere and hit him in the head with his fist, knocking John down under his cow and started kicking him,” the complaint states. “The cow became excited and joined in on the kicking. John was beaten so bad he could not breathe right for a few months.”
On his 18th birthday, John Carr left home and joined the United States Marines. He and Bonnie married in 1964. She suffers health problems, which have returned following the revelation of her husband being switched at birth. They also have an adopted 31-year-old son who relies on them for care because of health issues.
“A mystery was solved at least,” the complaint states. “Still, the resolution brought mixed emotions. Jack is grateful to finally know the truth but devastated to learn that his life of more than 77 years was so dramatically altered from what it should have been.
“Many of the people Jack should have known his entire life are gone. He feels as though most of his family died all at once. He grieves for the loss of the life he was supposed to have while reconciling those feelings with the love and gratitude he feels for the family he has known his whole life. …
“John cannot help but feel that if the staff at St. Joseph Hospital in Buckhannon had not switched Jackie Lee Spencer and John, both of their lives would have been much better. Maybe not a bed of roses but a better life with the right families. …
“The plaintiffs have all suffered a lifetime of consequences from the negligence that sent Jack and John home with the wrong parents. … This should not and did not have to happen. A lapse of reasonable care … altered the life courses of both men and their families.”
The plaintiffs seek compensatory damages. The Diocese is being represented by James Gardill, Edward M. George III and Richard Beaver of Phillips, Gardill, Kaiser & Altmeyer in Wheeling.
West Virginia Supreme Court of Appeals case number 21-0259 and Monongalia Circuit Court case number 20-C-159