Kominar v. Health Mgmt. Associates of Wv

• Decision Date: 07 June 2007
• Docket Number: No. 33215.,33215.
• Citation: 648 S.E.2d 48
• Parties: Mary Ann KOMINAR, as Administratrix of the Estate of Jason Kominar, Deceased, Plaintiff Below, Appellant v. HEALTH MANAGEMENT ASSOCIATES OF WEST VIRGINIA, INC., d/b/a Williamson Memorial Hospital, Inc., Pelagio P. Zamora and Pelagio P. Zamora, Inc.; Mingo County Emergency Medical Services Authority, a West Virginia Statutory Organization; Mingo County Ambulance Service, Inc., a Corporation; and Critical Link Ambulance Service, Defendants Below, Appellees.
• Court: West Virginia Supreme Court

648 S.E.2d 48

Mary Ann KOMINAR, as Administratrix of the Estate of Jason Kominar, Deceased, Plaintiff Below, Appellant v. HEALTH MANAGEMENT ASSOCIATES OF WEST VIRGINIA, INC., d/b/a Williamson Memorial Hospital, Inc., Pelagio P. Zamora and Pelagio P. Zamora, Inc.; Mingo County Emergency Medical Services Authority, a West Virginia Statutory Organization; Mingo County Ambulance Service, Inc., a Corporation; and Critical Link Ambulance Service, Defendants Below, Appellees.

No. 33215.

Supreme Court of Appeals of West Virginia.

Submitted: March 14, 2007.

Decided: June 7, 2007.

Concurring Opinion of Justice Starcher June 28, 2007.

Syllabus by the Court

1. "[T]he ruling of a trial court in granting or denying a motion for a new trial is entitled to great respect and weight, [and] the trial court's ruling will be reversed on appeal when it is clear that the trial court has acted under some misapprehension of the law or the evidence." Syl. pt. 4, in part, Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976).

2. "In the determination by the trial court of the number of peremptory challenges to be allowed two or more plaintiffs or two or more defendants pursuant to Rule 47(b) of the West Virginia Rules of Civil Procedure, plaintiffs or defendants with like interests are ordinarily to be considered as a single party for the purpose of allocating the challenges. Where, however, the interests of the plaintiffs or the interests of the defendants are antagonistic or hostile, the trial court, in its discretion, may allow the plaintiffs or the defendants separate peremptory challenges, upon motion, and upon a showing that separate peremptory challenges are necessary for a fair trial." Syl. Pt. 2, Price v. Charleston Area Medical Center, 217 W.Va. 663, 619 S.E.2d 176 (2005).

3. "In determining whether the interests of two or more plaintiffs or two or more defendants are antagonistic or hostile for purposes of allowing separate peremptory challenges, . . . [consideration of] the allegations in the complaint, the representation of the plaintiffs or defendants by separate counsel and the filing of separate answers are not enough. Rather, the trial court should also consider the stated positions and assertions of counsel and whether the record indicates that the respective interests are antagonistic or hostile. In the case of two or more defendants, the trial court should consider a number of additional factors including, but not limited to: (1) whether the defendants are charged with separate acts of negligence or wrongdoing, (2) whether the alleged negligence or wrongdoing occurred at different points of time, (3) whether negligence, if found against the defendants, is subject to apportionment, (4) whether the defendants share a common theory of defense and (5) whether cross-claims have been filed. To warrant separate peremptory challenges, the plaintiffs or defendants, as the case may be, as proponents, bear the burden of showing that their interests are antagonistic or hostile and that separate peremptory challenges are necessary for a fair trial." Syl. Pt 3, in part, Price v. Charleston Area Medical Center, 217 W.Va. 663, 619 S.E.2d 176 (2005).

4. "In ruling upon the request of two or more plaintiffs or two or more defendants for separate peremptory challenges, . . . the trial court shall set forth, on the record, its reasons for so ruling in a manner sufficient to permit meaningful appellate review." Syl. Pt. 4, in part, Price v. Charleston Area Medical Center, 217 W.Va. 663, 619 S.E.2d 176 (2005).

5. "Where a trial by jury has been secured by a party to litigation . . . [that] party . . . has a right to an impartial and unbiased jury; and, in order to insure that right, the party is entitled, in the absence of a waiver upon the record, to meaningful . . . peremptory challenges of the prospective jurors. W.Va. R.Civ.P. 47; W.Va.Code, 56-6-12 [1931]." Syllabus, in part, Barker v. Benefit Trust Life Ins. Co., 174 W.Va. 187, 324 S.E.2d 148 (1984).

6. Once an error in the allocation of peremptory challenges is found on appeal because the record below prior to the swearing of the jury does not show a serious dispute constituting hostile or antagonistic positions among co-parties, reversal and a new trial will be granted the adversely affected litigant.

7. "As a general rule, the refusal to give a requested jury instruction is reviewed for an abuse of discretion. By contrast, the question of whether a jury was properly instructed is a question of law, and the review is de novo." Syl. Pt. 1, State v. Hinkle, 200 W.Va. 280, 489 S.E.2d 257 (1996).

8. "Before a trial court may give an adverse inference jury instruction or impose other sanctions against a party for spoliation of evidence, the following factors must be considered:(1) the party's degree of control, ownership, possession or authority over the destroyed evidence; (2) the amount of prejudice suffered by the opposing party as a result of the missing or destroyed evidence and whether such prejudice was substantial; (3) the reasonableness of anticipating that the evidence would be needed for litigation; and (4) if the party controlled, owned, possessed or had authority over the evidence, the party's degree of fault in causing the destruction of the evidence." Syl. Pt. 2, in part, Tracy v. Cottrell, 206 W.Va. 363, 524 S.E.2d 879 (1999).

9. In responding to a motion to restrict or limit cross-examination, to determine what will be fair to all parties a trial court should weigh and balance such factors as the importance of the evidence to the party's case, the relevance of the evidence, and the danger of prejudice, confusion, or delay that admission of the evidence may cause.

10. Trial courts should carefully examine whether an adversarial relationship exists between co-parties at the time a motion to limit cross-examination is raised in order to avoid the danger of prejudice, confusion, or delay.

Marvin W. Masters, Julie N. Garvin, The Masters Law Firm, LLC, Charleston, for the Appellant.

William L. Mundy, Debra A. Nelson, James A. Spenia, Mundy & Nelson, Huntington, for the Appellee, Health Management Associates of West Virginia d/b/a Williamson Memorial Hospital.

Jeffrey M. Wakefield, Elizabeth S. Cimino, Jaclyn A. Bryk, Flaherty, Sensabaugh & Bonasso, PLLC, Charleston, for the Appellee, Pelagio P. Zamora and Pelagio P. Zamora, Inc.

J. Victor Flanagan, Molly K. Underwood, Pullin, Fowler & Flanagan, PLLC, Charleston, for the Appellee, Mingo County Ambulance Service, Inc.

ALBRIGHT, Justice:

This matter is before us as an appeal of the February 2, 2006, order of the Circuit Court of Mingo County by Mary Ann Kominar (hereinafter referred to as "Appellant") in her capacity of administratrix of the estate of her deceased son, Jason Kominar. A six-member jury panel returned a verdict for the defense in the medical malpractice action brought by Appellant. By way of the February 2006 order, the lower court denied Appellant's motion to set aside the verdict or for a new trial. The appellees who were defendants below (hereinafter referred to collectively as "Appellees") are Williamson Memorial Hospital (hereinafter referred to individually as "WMH"),¹ Pelagio P. Zamora, M.D. (hereinafter referred to individually as "Dr. Zamora") and the Mingo County Ambulance Service (hereinafter referred to individually as "MCAS"). Appellant maintains a new trial is warranted because of seven trial court errors. Having completed our review of the extensive record, the various arguments raised and the corresponding law, we find that reversible error was committed for the reasons herein stated, and remand the case for a new trial.

I. Factual and Procedural Background

Given the lengthy trial in this case and the number of errors assigned, we initially provide a general overview of the facts and proceedings in this case. We will supplement these preliminary remarks with additional facts during the course of our discussion of each issue.

After the death of her twenty-two-year-old son on July 12, 1997, following a tragic single vehicle accident, Appellant filed the underlying wrongful death action for negligence in the medical care provided to her son by Appellees. It is undisputed that on this date Mr. Kominar was traveling south on Route 119 in Mingo County, West Virginia when he lost control of his vehicle. The uncontrolled vehicle crossed the median and came to a sudden halt after colliding head on with a rock embankment. There is no dispute that the resulting wreck was the product of a formidable collision. All parties agree to the following time line of events surrounding the accident:

8:40 a.m. Collision occurred.

8:53 a.m. City of Williamson police officer arrived at the accident scene.

8:58 a.m. Ambulance arrived at the scene.

9:11 a.m. Ambulance departed scene for Williamson Memorial Hospital.

9:19 a.m. Ambulance arrived at the hospital.

9:30 a.m. Jason Kominar pronounced dead.

After obtaining medical records and other accident reports, Appellant filed a civil suit on July 12, 1999, in her capacity of administratrix of Jason Kominar's estate. Appellant alleged in the complaint that her son's death was due in part to the negligence of the ambulance paramedics for failing to follow the standard of care and treatment required under the circumstances. Specifically, Appellant claimed that the paramedics caused her son's death by negligently inserting an endotracheal tube² into his esophagus rather than into his windpipe. Moreover, WMH, WMH staff and Dr. Zamora were also charged with negligence for not detecting and correcting the improper tube placement. Appellant further maintained in the complaint that all defendants failed to perform their alleged duty of making and preserving medical records as evidence of the events which transpired regarding her son's condition and treatment on the day of the accident. A separate negligent retention claim was charged...