Pleasants v. Alliance Corp.

Decision Date12 December 2000
Docket NumberNo. 27663.,27663.
Citation209 W.Va. 39,543 S.E.2d 320
PartiesPamela S. PLEASANTS as Administratrix of the Estate of Jennifer Lynn Pleasants, deceased, Plaintiff Below, Appellant, v. ALLIANCE CORPORATION, a West Virginia corporation, Defendant Below, Appellee.
CourtWest Virginia Supreme Court
Concurring and Dissenting Opinion of Justice Starcher January 10, 2001.

Robert V. Berthold, Jr. Esquire, Tony L. O'Dell, Esquire, Berthold, Tiano & O'Dell, Charleston, for Appellant.

Stephen D. Annand, Esquire, Roberta F. Green, Esquire, Shuman, McCuskey & Slicer, Charleston, for Appellee.

SCOTT, Justice:

The estate of Jennifer Pleasants, a fifteen-year-old who died within ten hours of leaving the emergency room of Women and Children's Hospital in Charleston, West Virginia, after presenting herself for treatment with gastritis-type symptoms, appeals from a defense verdict. The assignments of error upon which Appellant relies include: (1) the trial court's failure to permit a hearing on whether a juror gave false answers during voir dire; (2) an equal protection violation resulting from allegations that Appellees1 purposefully eliminated females from the jury panel; (3) an improper verdict form and various instructional errors; and (4) Appellees' presentation of cumulative and unfairly prejudicial expert testimony on the standard of care issue. After carefully examining these issues in conjunction with the record submitted, we find no prejudicial error and accordingly, affirm.

I. Factual and Procedural Background

On December 15, 1995, Jennifer Pleasants sought treatment at Women and Children's Hospital for severe stomach pain. She was treated by Dr. Daniel Prudich, an employee of Appellee Alliance Corporation, and discharged within two hours of her arrival after being diagnosed with gastroenteritis.2 Within a matter of hours of her return home, Jennifer died. Following her death, it was discovered that Jennifer had a rare disease called phlegmonous gastritis. This disease, which is caused by a colonization of bacteria that ultimately causes a hole in the stomach, requires treatment of antibiotics and surgical resectioning of the infected areas of the stomach.

At trial, Appellees argued that given the rarity of this type of infection, Dr. Prudich could not have been expected to make a correct diagnosis. According to Appellant,3 she did not base her theory of malpractice on the failure to promptly and accurately diagnose the rare disease, but instead on Appellees' failure to keep Jennifer at the hospital for further observation and administration of intravenous fluids. After deliberating for three days, the jury returned a defense verdict. Appellant seeks a reversal of the lower court's denial of her motion for a new trial based upon the above-delineated assignments of error.

II. Discussion
A. Voir Dire

Appellant contends that the lower court committed reversible error by failing to hold a hearing on the issue of whether the jury foreman, Leon Clements, falsely responded to certain voir dire inquiries. During the course of voir dire, the following questions were asked concerning the jurors' involvement in the insurance business or in claims adjustment:

Q. Anybody else work for an insurance industry, insurance company as an agent, adjuster, claims person? There are several of you already said you did.
Anybody else work for a company that's in the business of adjusting or claims? Yes, ma'am?
JUROR: I work for State Farm Insurance.
....
Q. Anybody else work for a company in sales, adjusting, claims, work for any insurance company?
JUROR: Is that past or present?
Q. Present.
Any complaints, anybody in the business of claims, Workers' Compensation or unemployment compensation or work for the government or work for a private industry or agency that resolves or works or investigates claims or adjusts claims or works in claims in any way? ....
With the exception of the juror who indicated that she worked for State Farm, no other jurors responded to these questions.

On the second day of the jury's deliberations,4 Appellant sought a hearing for the purpose of resolving whether juror Clements had truthfully responded to the above-delineated voir dire. After hearing arguments of counsel on this issue, the lower court denied Appellant's request for a hearing.5 Citing this Court's ruling in West Virginia Human Rights Commission v. Tenpin Lounge, Inc., 158 W.Va. 349, 211 S.E.2d 349 (1975), Appellant maintains that the lower court erred in not holding a hearing on this issue of voir dire truthfulness.6

In syllabus point two of Tenpin Lounge, we held that: "Upon an allegation before a trial court that a juror falsely answered a material question on voir dire, and where a request is made for a hearing to determine the truth or falsity of such allegation it is reversible error for the trial court to refuse such hearing." Id. at 349-50, 211 S.E.2d at 350. Our holding in Tenpin Lounge requires reversal upon a denial of the requested hearing only when there is an allegation that a juror falsely answered a material question.7 Careful examination of the questions put to juror Clements during voir dire does not reveal that he testified falsely to any material question. Because the query concerning employment "for a company in sales, adjusting, claims" was expressly limited to present employment, Mr. Clements, a retired UPS employee, cannot be said to have answered the question untruthfully. Giving Appellant the benefit of the doubt on the issue of whether Mr. Clements' prior employment in the safety department of UPS8 even comes within the scope of the question, we still see no evidence of untruthful testimony given the express limitation to present employment.9 Since the factual predicate of a falsely answered material question was never established, we conclude that it was not reversible error for the trial court to have refused to hold a hearing on this issue. See id. at 349-50, 211 S.E.2d at 350, syl. pt. 2.

B. Gender-Based Juror Exclusion

Both federal and state law preclude exclusion of potential jurors based on gender discrimination. See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994); Syl. Pt. 3, Parham v. Horace Mann Ins. Co., 200 W.Va. 609, 490 S.E.2d 696 (1997). We held in syllabus point four of Payne v. Gundy, 196 W.Va. 82, 468 S.E.2d 335 (1996), that

It is a violation of the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States and article III, section 10, of the Constitution of West Virginia for a party in a civil action to purposefully eliminate potential jurors from a jury through the use of peremptory strikes solely upon the basis of gender.

Appellant maintains that Appellees wrongly excluded all of the females who were included in the jury panel. Of the fifteen jurors who comprised the final jury group, seven of these individuals were women. One of these seven females was struck for cause and of the remaining six women, Appellees struck five of these individuals. Appellant struck the remaining female from the panel.

In the seminal decision of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the United States Supreme Court established the framework for determining whether a peremptory strike was used for a discriminatory purpose. 476 U.S. at 80, 106 S.Ct. 1712. We adopted this three-step process in syllabus point one of Parham:

To prove a violation of equal protection, the analytical framework established in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), involves three steps. First, there must be a prima facie case of improper discrimination. Second, if a prima facie case is shown, the striking party must offer a neutral explanation for making the strike. Third, if a neutral explanation is given, the trial court must determine whether the opponent of the strike has proved purposeful discrimination. So long as the reasons given in step two are facially valid, the explanation for the strike need not be persuasive or plausible. The persuasiveness of the explanation does not become relevant until the third step when the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination.

200 W.Va. at 611, 490 S.E.2d at 698.

Unlike the voir dire issue where the trial court did not hold the hearing requested by counsel, a hearing in conformity with the precepts of both Batson and Parham was held. Although the lower court engaged in the required three-step process, Appellant urges this Court to find that the lower court abused its discretion in ruling that "gender was not a factor in jury selection and that all persons were give[n] a full opportunity to participate in the system regardless of their gender."10 Acknowledging that Appellees complied with step two of the Batson/Parham test by offering seemingly nondiscriminatory reasons for their strikes, Appellant maintains that these reasons are both "fishy" and "pretext[ual]." Appellant suggests that, notwithstanding the facially neutral explanations offered, Appellees engaged in purposeful elimination of jurors based on their gender.

The reasons offered by Appellees in explanation of the challenged strikes included prior litigation history; prior juror duty;11 follower-type personality;12 socioeconomic reasons;13 uncomfortable eye contact;14 and a pending malpractice suit.15 This Court made clear in Parham that the striking party's explanation of the challenged strikes "need not be persuasive or plausible." 200 W.Va. at 614,490 S.E.2d at 701. The only requirement in step two of the process is that the reasons given must be "facially valid."16Id. Even Appellant concedes that Appellees complied with this requirement of demonstrating facial validity. It is step three of the Batson/Parham process to which Appellant assigns error: the trial court's...

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    • United States
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