Smith v. Andreini, 34271.

CourtSupreme Court of West Virginia
Writing for the CourtMcHugh
Citation678 S.E.2d 858
PartiesCatherine I. SMITH and John Smith, Plaintiffs Below, Appellees v. Derek ANDREINI, M.D. and Orthopaedic Surgery, Inc., A Corporation, Defendants Below, Appellants.
Docket NumberNo. 34271.,34271.
Decision Date05 June 2009
678 S.E.2d 858
Catherine I. SMITH and John Smith, Plaintiffs Below, Appellees
Derek ANDREINI, M.D. and Orthopaedic Surgery, Inc., A Corporation, Defendants Below, Appellants.
No. 34271.
Supreme Court of Appeals of West Virginia.
Submitted April 7, 2009.
Decided June 5, 2009.
Concurring and Dissenting Opinion of Justice Workman June 9, 2009.

[678 S.E.2d 859]

Syllabus by the Court

1. "Prior to the entry of the verdict by a jury, a mistrial is procedurally possible; however, declaring a mistrial after the jury verdict is rendered is improper." Syllabus,

[678 S.E.2d 860]

Vilar v. Fenton, 181 W.Va. 299, 382 S.E.2d 352 (1989).

2. "A court of limited appellate jurisdiction is obliged to examine its own power to hear a particular case. This Court's jurisdictional authority is either endowed by the West Virginia Constitution or conferred by the West Virginia Legislature. Therefore, this Court has a responsibility sua sponte to examine the basis of its own jurisdiction." Syl. Pt. 1, James M.B. v. Carolyn M., 193 W.Va. 289, 456 S.E.2d 16 (1995).

3. "Where neither party to an appeal raises, briefs, or argues a jurisdictional question presented, this Court has the inherent power and duty to determine unilaterally its authority to hear a particular case. Parties cannot confer jurisdiction on this Court directly or indirectly where it is otherwise lacking." Syl. Pt. 2, James M.B. v. Carolyn M., 193 W.Va. 289, 456 S.E.2d 16 (1995).

4. "One may appeal to this Court a circuit court's order granting a new trial and one may appeal such an order without waiting for the new trial to be had." Syl. Pt. 6, in part, Foster v. Sakhai, 210 W.Va. 716, 559 S.E.2d 53 (2001).

5. An order declaring a mistrial is not an appealable order; however, an order granting a motion for new trial is an appealable order. When a court improperly grants an order declaring a mistrial after the conclusion of a trial and after a verdict has been rendered, this Court may consider such an order to be an order granting a new trial, which is appealable to this Court.

6. "`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)." Syl. Pt. 1, Foster v. Sakhai, 210 W.Va. 716, 559 S.E.2d 53 (2001).

7. "`The discretion of the trial court in ruling on the propriety of argument by counsel before the jury will not be interfered with by the appellate court, unless it appears that the rights of the complaining party have been prejudiced, or that manifest injustice resulted therefrom.' Syl. pt. 3, State v. Boggs, 103 W.Va. 641, 138 S.E. 321 (1927)." Syl. Pt. 9, Foster v. Sakhai, 210 W.Va. 716, 559 S.E.2d 53 (2001).

Brent P. Copenhaver, Colombo & Stuhr, PLLC, Morgantown, for the Appellants.

Geoffrey C. Brown, Scott S. Blass, Bordas & Bordas, PLLC Wheeling, for the Appellees.

McHUGH, Justice:

Appellants Derek Andreini, M.D., and Orthopaedic Surgery Inc., defendants below,1 appeal an order entered July 25, 2005, in the Circuit Court of Ohio County, West Virginia, which declared a mistrial upon a motion made by Appellees Catherine I. Smith and John Smith, her husband, plaintiffs below.2 The ground for Mrs. Smith's oral motion for mistrial, made just after the jury retired for deliberations, was based upon remarks made by defense counsel during closing argument. At Mrs. Smith's request, the trial judge reserved its ruling on the motion until after the jury returned its verdict. The jury returned a verdict in favor of Dr. Andreini. Thereafter, the trial court scheduled a post-trial hearing on the motion for mistrial and, approximately twenty months after the verdict was rendered, declared a mistrial.

Upon careful review of the briefs, record, arguments of counsel, and applicable precedent, this Court holds that the July 25, 2005, order, is reversed.

I. Factual and Procedural Background

On February 25, 2000, Dr. Andreini, an orthopedic surgeon, performed rotator cuff repair surgery on Mrs. Smith's right shoulder.3 On March 30, 2000, Dr. Andreini performed

678 S.E.2d 861

a second procedure known as "manipulation under anesthesia" (hereinafter "manipulation procedure") the purpose of which was to break up adhesions that had developed on Mrs. Smith's shoulder following the first surgery.

Within hours after Mrs. Smith was released from the hospital following the manipulation procedure, Mrs. Smith's friend4 telephoned Dr. Andreini to advise him that Mrs. Smith was experiencing numbness in her shoulder and was unable to move it. It is undisputed that Dr. Andreini advised Mrs. Smith to proceed immediately to the emergency department and that he would meet her there. What transpired once Mrs. Smith arrived at the emergency department was much disputed at trial.

Dr. Andreini contends that he met Mrs. Smith at the emergency department on March 30, 2000, and that he, along with Dr. Jeffrey Ruben, an emergency medicine specialist, and Dr. Srini Govindin, a neurologist, examined her there. According to hospital emergency department records he completed following his examination of Mrs. Smith, Dr. Andreini noted, inter alia, that Mrs. Smith "has a discomfort within the shoulder. It is mildly swollen, not red or hot. Placing the shoulder through a gentle range of motion showed a normal glenohumeral articulation and relationships." Dr. Andreini's notes further indicated that Mrs. Smith had "a wrist drop" and was unable to extend her fingers, but that "she was able to flex and extend her elbow, and initiate abduction and adduction of the humerus." Dr. Andreini also indicated that Mrs. Smith complained of "numbness in the entire humerus, forearm, and hand over the palmar and dorsal surfaces" and that Dr. Andreini reevaluated her after she underwent lab studies. Dr. Andreini concluded the report with the following notation: "I placed her in a cock-up wrist splint in order to hold the wrist in extension. The patient was also placed in a sling. She is to be seen by Dr. Govindan, a neurologist, tomorrow as well as reevaluation by myself."

It is Mrs. Smith's contention, however, that although Dr. Andreini advised her by telephone that he would meet her at the emergency department, he never arrived. Mrs. Smith testified that, consequently, Dr. Andreini must have falsified the above-described hospital records in which he personally recounted his examination and treatment of Mrs. Smith during her emergency department visit. Additionally, when confronted at trial with Dr. Andreini's contention that it was he who placed Mrs. Smith's wrist in a splint during her visit to the emergency department, Mrs. Smith stated that although she did not recall who placed the splint on her wrist, it was not Dr. Andreini.5

The contrasting testimony regarding whether Dr. Andreini examined Mrs. Smith at the emergency department hours after the manipulation procedure was critical to Mrs. Smith's medical malpractice claim against Dr. Andreini. Dr. Andreini diagnosed Mrs. Smith with a dislocated shoulder on April 3, 2000, during her second post-procedure office visit (four days after the manipulation procedure). It is Mrs. Smith's contention that Dr. Andreini caused the shoulder dislocation during the manipulation procedure and then failed to timely diagnose it. Mrs. Smith argued that the dislocation of her shoulder caused traction, or stretching, on the brachial plexus nerve, which continued for the four days following the manipulation procedure until it was finally diagnosed and treated by Dr. Andreini in his office on April 3, 2000. Indeed, it is undisputed that Mrs. Smith suffered a severe loss of shoulder function following the manipulation procedure as a result of brachial plexus neuropathy. However, at trial, Dr. Andreini contended that when he and Drs. Ruben and Govindan examined Mrs. Smith in the emergency department

678 S.E.2d 862

on March 30, 2000, the shoulder was not dislocated. Rather, according to Dr. Andreini, the dislocation causing the brachial plexus neuropathy occurred not during the manipulation procedure, but following it— that is, between Mrs. Smith's first post-procedure office visit with Dr. Andreini on March 31, 2000 (the day after the manipulation procedure), and April 3, 2000, Mrs. Smith's second post-procedure office visit with Dr. Andreini (when the dislocation was diagnosed).6

The parties agree that following the presentation of the evidence, it became apparent that the credibility of the witnesses would play a significant role in the jury's determination of liability. Among other things, the parties presented very different versions of Mrs. Smith's emergency department visit on March 30, 2000, and argued different theories as to when Mrs. Smith's shoulder became dislocated and, consequently, when a timely diagnosis should have occurred. During closing arguments, Dr. Andreini's counsel attempted to emphasize these differences and, in so doing, elicited an objection by Mrs. Smith. According to Dr. Andreini's brief, Mrs. Smith's counsel implied during the initial portion of his closing argument that Dr. Andreini's defense expert, orthopedic surgeon Dr. Mark Rodosky, had not been truthful at trial because he had been impeached with the transcript of his pretrial deposition. In response, Dr. Andreini argues that his counsel made the following remark during his own closing argument, to which Mrs. Smith's counsel objected:

Dr. Andreini's counsel: So I think, Ladies and Gentlemen, all of these things speak to the qualifications of the experts that the parties on both sides brought before you, to tell you about shoulder surgery and shoulder manipulations and how you do them.

On the other hand, if you had a shoulder injury, and you were concerned about your ability...

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