Murphy v. Miller

• Decision Date: 06 November 2008
• Docket Number: No. 33904.,33904.
• Citation: 671 S.E.2d 714
• Court: West Virginia Supreme Court
• Parties: Laurie Ann MURPHY and Shawn M. Murphy, Sr., Individually and as Parents and Natural Guardians of Shawn M. Murphy, Jr., a Minor, Plaintiffs Below, Appellants v. Laura MILLER, D.O., John Battaglino, Jr., M.D., Wheeling Hospital, Inc., Defendants Below, Dennis L. Burech, M.D., West Virginia University Board of Governors, Defendants Below, Appellees.

671 S.E.2d 714

Laurie Ann MURPHY and Shawn M. Murphy, Sr., Individually and as Parents and Natural Guardians of Shawn M. Murphy, Jr., a Minor, Plaintiffs Below, Appellants v. Laura MILLER, D.O., John Battaglino, Jr., M.D., Wheeling Hospital, Inc., Defendants Below Dennis L. Burech, M.D., West Virginia University Board of Governors, Defendants Below, Appellees.

No. 33904.

Supreme Court of Appeals of West Virginia.

Submitted October 8, 2008.

Decided November 6, 2008.

Syllabus by the Court

1. "Although the ruling of a trial court in granting or denying a motion for a new trial is entitled to great respect and weight, 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, Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976).

2. "When considering whether to excuse a prospective juror for cause, a trial court is required to consider the totality of the circumstances and grounds relating to a potential request to excuse a prospective juror, to make a full inquiry to examine those circumstances and to resolve any doubts in favor of excusing the juror." Syl. Pt. 3 O'Dell v. Miller, 211 W.Va. 285, 565 S.E.2d 407 (2002).

3. "If a prospective juror makes an inconclusive or vague statement during voir dire reflecting or indicating the possibility of a disqualifying bias or prejudice, further probing into the facts and background related to such bias or prejudice is required." Syl. Pt. 4, O'Dell v. Miller, 211 W.Va. 285, 565 S.E.2d 407 (2002).

4. "Once a prospective juror has made a clear statement during voir dire reflecting or indicating the presence of a disqualifying prejudice or bias, the prospective juror is disqualified as a matter of law and cannot be rehabilitated by subsequent questioning, later retractions, or promises to be fair." Syl. Pt. 5, O'Dell v. Miller, 211 W.Va. 285, 565 S.E.2d 407 (2002).

5. "Where a new trial is requested on account of alleged disqualification or misconduct of a juror, it must appear that the party requesting the new trial called the attention of the court to the disqualification or misconduct ... and if the party fails to do so, he or she will be held to have waived all objections to such juror disqualification or misconduct, unless it is a matter which could not have been remedied by calling attention to it at the time it was first discovered." Syl. Pt. 5, in part, McGlone v. Superior Trucking Co., Inc., 178 W.Va. 659, 363 S.E.2d 736 (1987).

6. "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 Med. Ctr., 217 W.Va. 663, 619 S.E.2d 176 (2005).

7. "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 under Rule 47(b) of the West Virginia Rules of Civil Procedure, 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, Price v. Charleston Area Med. Ctr., 217 W.Va. 663, 619 S.E.2d 176 (2005).

8. "The appellate standard of review for the granting of a motion for a [judgment as a matter of law] pursuant to Rule 50 of the West Virginia Rules of Civil Procedure is de novo. On appeal, this court, after considering the evidence in the light most favorable to the nonmovant party, will sustain the granting of a [judgment as a matter of law] when only one reasonable conclusion as to the verdict can be reached. But if reasonable minds could differ as to the importance and sufficiency of the evidence, a circuit court's ruling granting a [judgment as a matter of law] will be reversed." Syl. Pt. 3, Brannon v. Riffle, 197 W.Va. 97, 475 S.E.2d 97 (1996).

Harry S. Cohen, Douglas L. Price, Harry S. Cohen & Associates, Pittsburgh, PA, Counsel for the Appellants.

D.C. Offutt, Jr., Charity K. Flynn, Jon D. Hoover, Offutt & Nord, Huntington, Counsel for the Appellee, Dennis L. Burech, M.D.

Amy M. Smith, Steptoe & Johnson PLLC, Clarksburg.

James C. Wright, Heidi A. Kossuth, Steptoe & Johnson PLLC, Wheeling.

Nancy DeFeo, Steptoe & Johnson PLLC, Morgantown, Counsel for the Appellee, West Virginia University Board of Governors.

PER CURIAM:¹

This is an appeal by Laurie Ann Murphy and Shawn M. Murphy, Sr., parents and natural guardians of Shawn Murphy, Jr., a minor, from a jury verdict in the Circuit Court of Ohio County in favor of Appellees, Dr. Dennis L. Burech and the West Virginia University Board of Governors (hereinafter "Appellees") in a medical malpractice action in which Mr. and Mrs. Murphy (hereinafter "Appellants") had alleged negligence surrounding the birth of their son. Upon thorough review of the record, arguments of counsel, and applicable precedent, this Court reverses this matter and remands to the lower court for a new trial.

I. Factual and Procedural History

On November 26, 2002, Shawn Murphy was born via C-section at Wheeling Hospital. According to the record, Shawn was immediately in distress, suffering from a low respiratory rate and a faint heartbeat. He was diagnosed with acidosis, a condition in which the patient suffers from the effects of insufficient oxygenation. Appellee Dr. Dennis Burech was on call at Wheeling Hospital on the evening of Shawn's birth and arrived at the hospital between 9:30 p.m. and 9:45 p.m. to lead resuscitation efforts. Dr. Burech contacted the Neonatal Intensive Care Unit at West Virginia University Hospital to arrange for Shawn's transfer to that unit, and he spoke with neonatal nurse practitioner, Melissa Asher during the telephone conversation. There is a factual dispute regarding the contents of their conversation, with Nurse Asher contending that she told Dr. Burech to order bicarbonate, volume, and generous oxygen to be administered to Shawn. Although an order for volume had apparently existed prior to the telephone call, the volume order was later rescinded by Dr. Burech. It is undisputed that no volume or bicarbonate was provided to Shawn until Nurse Asher arrived around midnight to facilitate the transfer. At that time, Nurse Asher realized that Shawn had not received bicarbonate and volume, and she therefore ordered both. Shawn responded positively and was stable enough to be transferred to the Neonatal Intensive Care Unit at West Virginia University Hospital.

A medical malpractice action was initiated against pediatrician Dr. Burech, obstetrician Dr. Laura Miller, obstetrician Dr. John Battaglino, Wheeling Hospital, and the West Virginia University Board of Governors.² The Appellants claimed that Shawn's extensive permanent neurological injuries were caused by the negligence of the obstetricians in their care of Shawn prior to birth³ and that such injuries were exacerbated by Dr. Burech's actions subsequent to Shawn's birth, including Dr. Burech's failure to administer increased volume and perform a blood gas study during the first three hours of Shawn's life.

Subsequent to trial, the jury returned a verdict for the Appellees. The Appellants filed a motion for a new trial, and the trial court denied that motion by order entered May 11, 2007. Subsequent to the filing of this appeal, Shawn passed away.

The Appellants have presented several assignments of error to this Court upon appeal, including the trial court's method of allocating peremptory challenges; failure to strike biased prospective jurors; errors in the presentation of expert witness testimony; error in granting a Rule 50 motion in favor of the West Virginia University Board of Governors; and error in allowing evidence of what the Appellants perceived to be collateral sources.

II. Standard of Review

With specific reference to the question of whether a particular potential juror should be excused to avoid bias or prejudice, this Court has explained that the decision is typically within the sound discretion of the trial judge, and this Court reviews for an abuse of discretion. See West Virginia Dept. of Highways v. Fisher, 170 W.Va. 7, 289 S.E.2d 213 (1982), cert. denied, Fisher v. West Virginia Dept. of Highways, 459 U.S. 944, 103 S.Ct. 257, 74 L.Ed.2d 201 (1982). This Court has also explained that we "defer to a trial judge's rulings regarding the qualifications of jurors because the trial judge is able to personally observe the...