Mayhorn v. Logan Medical Foundation, 21933

• Citation: 454 S.E.2d 87,193 W.Va. 42
• Decision Date: 12 December 1994
• Docket Number: No. 21933,21933
• Court: Supreme Court of West Virginia
• Parties: Roberta MAYHORN, as Executrix of the Estate of Homer Mayhorn, Plaintiff Below, Appellant, v. LOGAN MEDICAL FOUNDATION, a corporation, dba Logan General Hospital; and Dr. Jim Gosien, M.D., Defendants Below, Appellees.

Page 87

454 S.E.2d 87

193 W.Va. 42

Roberta MAYHORN, as Executrix of the Estate of Homer

Mayhorn, Plaintiff Below, Appellant, v. LOGAN MEDICAL FOUNDATION, a corporation, dba Logan General

Hospital; and Dr. Jim Gosien, M.D., Defendants

Below, Appellees.

No. 21933.

Supreme Court of Appeals of

West Virginia.

Submitted Sept. 20, 1994.

Decided Dec. 9, 1994.

Dissenting Opinion of Justice Neely

Dec. 12, 1994.

Syllabus by the Court

1. "The admissibility of testimony by an expert witness is a matter within the sound discretion of the trial court, and the trial court's decision will not be reversed unless it is clearly wrong." Syl. pt. 6, Helmick v. Potomac Edison Co., 185 W.Va. 269, 406 S.E.2d 700 (1991).

2. Rule 703 of the West Virginia Rules of Evidence allows an expert to base his opinion on (1) personal observations; (2) facts or data, admissible in evidence, and presented to the expert at or before trial; and (3) information otherwise inadmissible in evidence, if this type of information is reasonably relied upon by experts in the witness' field.

3. "In analyzing the admissibility of expert testimony under Rule 702 of the West Virginia Rules of Evidence, the trial court's initial inquiry must consider whether the testimony is based on an assertion or inference derived from the scientific methodology. Moreover, the testimony must be relevant to a fact at issue. Further assessment should then be made in regard to the expert testimony's reliability by considering its underlying scientific methodology and reasoning. This includes an assessment of (a) whether the scientific theory and its conclusion can be and have been tested; (b) whether the scientific theory has been subjected to peer review and publication; (c) whether the scientific theory's actual or potential rate of error is known; and (d) whether the scientific theory is generally accepted within the scientific community." Syl. pt. 2, Wilt v. Buracker, 191 W.Va. 39, 443 S.E.2d 196 (1993).

4. Pursuant to West Virginia Rules of Evidence 702 an expert's opinion is admissible if the basic methodology employed by the expert in arriving at his opinion is scientifically or technically valid and properly applied. The jury, and not the trial judge, determines the weight to be given to the expert's opinion.

5. " ' " 'Whether a witness is qualified to state an opinion is a matter which rests within the discretion of the trial court and its ruling on that point will not ordinarily be disturbed unless it clearly appears that its discretion has been abused.' Point 5, syllabus, Overton v. Fields, 145 W.Va. 797 [117 S.E.2d 598 (1960) ]." Syllabus Point 4, Hall v. Nello Teer Co., 157 W.Va. 582, 203 S.E.2d 145 (1974).' Syllabus Point 12, Board of Education v. Zando, Martin & Milstead, 182 W.Va. 597, 390 S.E.2d 796 (1990)." Syl. pt. 3, Wilt v. Buracker, 191 W.Va. 39, 443 S.E.2d 196 (1993).

6. Rule 702 of the West Virginia Rules of Evidence is the paramount authority for determining whether or not an expert is qualified to give an opinion. Therefore, to the extent that Gilman v. Choi, 185 W.Va. 177, 406 S.E.2d 200 (1990) indicates that the legislature may by statute determine when an expert is qualified to state an opinion, it is overruled.

Thomas A. Zamow, Logan, for appellant.

George L. Partain, Logan, for appellee Logan Medical Foundation.

William L. Mundy, Mundy & Adkins, Huntington, for appellee Dr. Jim Gosien, M.D.

McHUGH, Justice:

The appellant, Roberta Mayhorn, filed a medical malpractice wrongful death action pursuant to W.Va.Code, 55-7-5 [1931] and 55-7B-1, et seq. against the appellees, Logan Medical Foundation, d/b/a Logan General Hospital (hereinafter "the hospital") and Jim Gosien, M.D. The appellant filed this appeal after the Circuit Court of Logan County granted the appellees' motion for a directed verdict on the ground that the appellant's expert, Gordon Bendersky, M.D., relied on a certain fact not in evidence when rendering his opinion which the trial judge found was later shown to be incorrect during the testimony of C.F. DeLara, M.D. For reasons stated below, we reverse the circuit court.

I

This action arose after the appellant's husband, who was sixty-eight years old, went to the emergency room at approximately 11:55 p.m. on June 19, 1990, with complaints of sharp pains between his shoulder blades which traveled down his left arm. Mr. Mayhorn also complained of belching, but denied being short of breath or having excessive perspiration.

The emergency room physician, Dr. Gosien, ordered an electrocardiogram (EKG) and other cardiac work-up tests which allegedly revealed no abnormalities. At approximately 1:10 a.m., on June 20, 1990, Dr. Gosien discharged Mr. Mayhorn after diagnosing him with non-cardiogenic pain which was possibly indigestion. Dr. Gosien gave Mr. Mayhorn a "GI cocktail" (Maalox and Donnatol) to treat his symptoms. At approximately 8:55 a.m. on the same day, while in his home, Mr. Mayhorn suffered a cardiac arrest and was sent, by ambulance, to the hospital where he died at approximately 10:15 a.m.

Dr. Carlos DeLara, a pathologist who worked for the appellee hospital, performed an autopsy which was limited to the heart and lungs at the appellant's request. Dr. DeLara concluded the following: "This elderly white male died suddenly of cardiac arrhythmias brought about by severe arteriosclerosis of the coronary arteries. No evidence of recent myocardial infarction is noted." ¹

On August 5, 1991, the appellant filed a wrongful death action against the appellees. At trial the appellant used Gordon Bendersky, M.D., a board certified internist, as her expert witness on Mr. Mayhorn's cause of death and on the standard of care which Dr. Gosien should have used. The trial court allowed Dr. Bendersky to testify as to the cause of Mr. Mayhorn's death before Dr. DeLara testified even though Dr. Bendersky relied on Dr. DeLara's autopsy report. Dr. Bendersky also relied on the emergency room report and test results and a past EKG performed by Mr. Mayhorn's treating physician in forming his opinion. Dr. Bendersky did not examine the body. Dr. Bendersky testified that "[t]he cause of death was preventable arrhythmia caused by acute myocardial ischemia."

Dr. DeLara testified that in his report he did mention that Mr. Mayhorn had evidence of ischemia; however, it was not recent ischemia. Furthermore, Dr. DeLara testified that he could not state the cause of death with a reasonable degree of medical certainty. He stated that he could only make an educated guess as to the cause of death.

The trial court granted the appellee's motion for a directed verdict after hearing Dr. DeLara's testimony that there was no evidence of any recent ischemia. It is from this ruling that the appellant appeals.

II

The issue raised by the appellant involves the admissibility of the testimony of a medical doctor who bases his opinion on the cause of death on a pathology report which has been admitted into evidence. The trial judge ruled that the medical doctor's testimony was not admissible pursuant to West Virginia Rules of Evidence 703 since the author of the pathology report disagreed with the findings the medical expert made from that report. The dispute centers on whether Dr. DeLara's autopsy report noted recent ischemia and on whether there are other factors on which Dr. Bendersky based his opinion other than a finding of recent ischemia.

At the outset, we point out that this Court has stated in Belcher v. Norfolk and Western Ry. Co., 140 W.Va. 848, 853, 87 S.E.2d 616, 620 (1955), overruled on other grounds, Bradley v. Appalachian Power Co., 163 W.Va. 332, 256 S.E.2d 879 (1979), that when a verdict is directed in favor of the defendants, then the evidence introduced by the plaintiffs must be taken as true along with all facts which are favorable to the plaintiff which may be inferred from the evidence. Therefore, when analyzing the issues in the case before us, we will interpret the facts in the light most favorable to the appellant. Additionally, we are mindful that "[t]he admissibility of testimony by an expert witness is a matter within the sound discretion of the trial court, and the trial court's decision will not be reversed unless it is clearly wrong." Syl. pt. 6, Helmick v. Potomac Edison Co., 185 W.Va. 269, 406 S.E.2d 700 (1991), cert. denied, 502 U.S. 908, 112 S.Ct. 301, 116 L.Ed.2d 244. (1991)

The Supreme Court of the United States has explained how a trial judge should analyze the admissibility of an expert's opinion:

Throughout, a judge assessing a proffer of expert scientific testimony under Rule 702 should also be mindful of other applicable rules. Rule 703 provides that expert opinions based on otherwise inadmissible hearsay are to be admitted only if the facts or data are 'of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.' Rule 706 allows the court at its discretion to procure the assistance of an expert of its own choosing. Finally, Rule 403 permits the exclusion of relevant evidence 'if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury....'

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, ----, 113 S.Ct. 2786, 2797-98, 125 L.Ed.2d 469, 484 (1993). Therefore, when analyzing the first issue, we must first determine whether Dr. Bendersky relied on facts and data which are "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject" pursuant to W.Va.R.Evid. 703. Second, we must determine whether that expert's testimony is admissible pursuant to W.Va.R.Evid. 702, and third, we must determine whether the testimony was more prejudicial than relevant pursuant to W.Va.R.Evid. 403. We will, therefore, begin our discussion with an analysis of the applicable rules of evidence.

W.Va.R.Evid. 703 simply outlines the...