Morris v. Boppana

• Decision Date: 16 November 1989
• Docket Number: No. 18693,18693
• Citation: 387 S.E.2d 302,182 W.Va. 248
• Parties: David J. MORRIS and M. Hannah Morris v. Prasada Rao BOPPANA, M.D.
• Court: West Virginia Supreme Court

Page 302

387 S.E.2d 302

182 W.Va. 248

David J. MORRIS and M. Hannah Morris v. Prasada Rao BOPPANA, M.D.

No. 18693.

Supreme Court of Appeals of West Virginia.

Nov. 16, 1989.

Syllabus by the Court

1. "In the absence of a written stipulation by the parties, the better rule is to leave the question of the manner of handling the offset occasioned by the settlement by a joint tortfeasor, as well as the manner of informing the jury that such party has been dismissed from the lawsuit, to the sound discretion of the trial court." Syllabus point 2, Groves v. Compton, 167 W.Va. 873, 280 S.E.2d 708 (1981).

2. "Under W.Va.R.Evid. 702, a trial judge has broad discretion to decide whether expert testimony should be admitted, and where the evidence is unnecessary, cumulative, confusing or misleading the trial judge may properly refuse to admit it." Syllabus point 4, Rozas v. Rozas, 176 W.Va. 235, 342 S.E.2d 201 (1986).

3. When a plaintiff does not prevail as to liability, any errors he claims as to the issue of damages are harmless because, without a verdict on the liability issue, the plaintiff is not entitled to any damages.

H. Truman Chafin and Gretchen O. Lewis, Williamson, for David J. Morris and M. Hannah Morris.

Michael J. Farrell, Huntington, for Prasada Rao Boppana, M.D.

BROTHERTON, Chief Justice:

David J. Morris broke his left leg while playing touch football on February 13, 1984. On the following day, Morris was admitted to Logan General Hospital, where he was treated by R. J. Khanna, M.D. Dr. Prasada Rao Boppana was first consulted on a specific matter relating to Morris' treatment on February 22, 1984. Dr. Khanna performed three surgeries on Morris, the final surgery resulting in the amputation of Morris' left leg on March 3, 1984.

On December 7, 1984, Morris and his wife filed suit against Dr. Khanna and Logan Medical Foundation, claiming they sustained damages as a proximate and direct result of the negligence and medical malpractice of both defendants. The plaintiffs filed an amended complaint on February 20, 1986, which added Dr. Rao Boppana as a party to the action.

Dr. Khanna and Logan Medical Foundation settled with Morris for $225,000 prior to trial and were dismissed with prejudice to the plaintiffs in an order entered on January 12, 1987. The trial began on July 27, 1987, and was completed on July 31, 1987, when a verdict was rendered in favor of the remaining defendant, Dr. Rao Boppana.

On November 19, 1987, the Circuit Court of Logan County entered an order denying the plaintiffs' motion for judgment notwithstanding the verdict or for a new trial. The plaintiffs now appeal from this ruling and seek a reversal of the judgment below and a new trial. However, we find no reversible error and, consequently, affirm the judgment of the circuit court below.

The plaintiffs' first assignment of error involves the trial judge's disclosure to the jury of the amount of the settlement that the plaintiffs reached with Dr. Khanna and Logan Medical Foundation prior to trial. Specifically, the plaintiffs object to the fact that the defendant's counsel referred to the settlement amount in his opening statement and claimed that the plaintiffs' expert, Dr. Williams, changed his testimony because of the settlement.

In response, the defendants argue that because of the potential for jury confusion over the realignment of the parties that resulted from the settlement agreement, disclosure of the settlement amount was essential to insure Dr. Rao Boppana a fair trial. The defendants state that the settlement agreement entered by and between the plaintiffs and defendants was a variation on the classic "Mary Carter" settlement agreement, as it provided for a $225,000 direct payment to the plaintiff, plus an additional $100,000 escrow payment. The escrow payment would be paid to the plaintiffs in such a fashion as would guarantee them an additional recovery of $100,000, first from any judgment entered against Dr. Rao Boppana, then from the escrow account from the settling defendants. This agreement capped the settling defendants' liability at between $225,000 and $325,000, while permitting them to reduce the amount they would pay by helping to increase the amount Dr. Rao Boppana would pay.

The four elements of the classic "Mary Carter" agreement are as follows:

1. The agreeing defendants must remain in the action in the posture of defendants.

2. The agreement must be kept secret.

3. The agreeing defendants guarantee to the plaintiff a certain monetary recovery regardless of the outcome of the lawsuit.

4. The agreeing defendants' liability is decreased in direct proportion to the increase in the nonagreeing defendants' liability.

State ex rel. Vapor Corp. v. Narick, 173 W.Va. 770, 320 S.E.2d 345, 347-48 (1984).

Clearly, all four elements are not present in this case. The two settling defendants did not remain in the action in the posture of defendants so that a judgment could be rendered against them, nor was the agreement kept secret. However, on this point the defendants contend that it is more important to note that the complete nature of the agreement was kept secret from the jury, as the trial court prohibited the defendants from either introducing the settlement agreement as an exhibit or discussing the contingent nature of the $100,000 escrow account. As a result, the jury did not have an opportunity to consider what effect the $100,000 sliding scale payment might have on the testimony of any of the settling parties or on the plaintiffs' other witnesses. The defendants point out that the third and fourth criteria of the classic "Mary Carter" agreement are met, as the agreeing defendants guaranteed the plaintiffs a certain monetary recovery, regardless of the outcome of the lawsuit against Dr. Rao Boppana, and the agreeing defendants' liability would be decreased in direct proportion to the increase in the nonagreeing defendant's liability. Nevertheless, we cannot conclude that the settlement agreement in this case was, in fact, a "Mary Carter" agreement.

The defendants suggest that this case presents the classic problem of a change of testimony based on party realignment resulting from an innovative settlement agreement. It is the defendant's position that the evidence presented at trial clearly showed that the plaintiffs' expert, Dr. Williams, significantly changed his testimony after being instructed to change his focus following the settlement agreement.

Citing State ex rel. Vapor Corp. v. Narick, 173 W.Va. 770, 320 S.E.2d 345 (1984), the defendants note this Court's discussion of the effect that innovative settlement agreements can have on a jury.

Disclosure [of innovative agreements] is required because such settlements frequently tend to realign the loyalties of the parties and change their trial tactics from what normally would be expected. It is critical to the fair conduct of the trial to disclose the settlement terms so that the court, with the assistance of counsel, may decide whether the agreement is valid, and if so, what measures should be taken to ensure that the nonsettling party or parties will not be prejudiced.

Id. 173 W.Va. 773, 320 S.E.2d at 348. Although the settlement agreement reached in this case was not the classic "Mary Carter" agreement discussed in Vapor Corp., we have previously recognized that the trial court is vested with the discretion to ascertain whether a jury should be informed about any type of settlement. In syllabus point 2 of Groves v. Compton, 167 W.Va. 873, 280 S.E.2d 708 (1981), we stated:

In the absence of a written stipulation by the parties, the better rule is to leave the question of the manner of handling the offset occasioned by the settlement by a joint tortfeasor, as well as the manner of informing the jury that such party has been dismissed from the lawsuit, to the sound discretion of the trial court. (Emphasis added.)

We conclude that in this case the trial court did not err in informing the jury of the plaintiffs' $225,000 settlement with Dr. Khanna and Logan Medical Foundation prior to trial. Furthermore, we find no evidence to support the plaintiffs' rather broad assertion that the trial court erred when it "allow[ed] defense counsel to take unfair advantage of the settlement beginning with opening argument and throughout the trial."

The plaintiffs next argue that the court erred in sustaining an objection to the testimony of Dr. Richard T. Williams, the plaintiffs' medical expert, with respect to the duty of a consultant doctor. At trial, the evidentiary deposition of Dr. Williams was read to the jury, with the exception of a question and answer which was objected to and sustained. The question which was objected to was, in part: "... [d]oes he have a duty to treat the patient for whatever he sees at the time?" Defense attorneys objected on grounds that this question called for a legal conclusion. According to the defendants' brief, there was an extensive discussion in chambers regarding the propriety of...