State ex rel. Billups v. Clawges

• Decision Date: 26 May 2005
• Docket Number: No. 32513.,32513.
• Citation: 620 S.E.2d 162
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. Belinda Billups, as Guardian and Next Friend of Jacob Billups, an Infant, Belinda Billups, and Randy Billups, Individually, Petitioners, v. The Honorable Russell M. CLAWGES, Jr., Judge of the Circuit Court of Monongalia County, West Virginia; West Virginia University Hospital, Inc., a West Virginia Corporation, DBA West Virginia University Hospitals, DBA West Virginia University Children's Hospital; Raleigh General Hospital, a West Virginia Corporation, DBA Columbia Raleigh Hospital; Saraswathi Mohan, M.D.; and Petaiah Mohan, M.D., Respondents.

620 S.E.2d 162

STATE of West Virginia ex rel. Belinda Billups, as Guardian and Next Friend of Jacob Billups, an Infant, Belinda Billups, and Randy Billups, Individually, Petitioners, v. The Honorable Russell M. CLAWGES, Jr., Judge of the Circuit Court of Monongalia County, West Virginia; West Virginia University Hospital, Inc., a West Virginia Corporation, DBA West Virginia University Hospitals, DBA West Virginia University Children's Hospital; Raleigh General Hospital, a West Virginia Corporation, DBA Columbia Raleigh Hospital; Saraswathi Mohan, M.D.; and Petaiah Mohan, M.D., Respondents.

No. 32513.

Supreme Court of Appeals of West Virginia.

Submitted April 6, 2005.

Decided May 26, 2005.

COPYRIGHT MATERIAL OMITTED

Marvin W. Masters, Charles M. Love, IV, The Masters Law Firm, LC, Charleston, for the Petitioners.

William F. Foster, II, The Foster Law Firm, PLLC, Charleston, for the Respondent, WVU Hospital, Inc.

Paul T. Farrell, Farrell, Farrell & Farrell, LC, Huntington, for the Respondent, Raleigh General Hospital.

D.C. Offutt, Jr., Perry W. Oxley, David E. Rich, L.R. Sammons, III, Offutt, Fisher & Nord, Huntington, for the Respondents, Saraswathi Mohan, M.D., and Petaiah Mohan, M.D.

PETITION FOR A WRIT OF PROHIBITION

ALBRIGHT, Chief Justice.

Plaintiffs below, Belinda Billups, individually and as guardian and best friend of Jacob Billups, and Randy Billups (hereinafter referred to collectively as "Petitioners"), seek a writ prohibiting the Circuit Court of Monongalia County from enforcing an order which would permit the defendants below to retain as an expert witness a doctor whom Petitioners previously had engaged in the same action. Raleigh General Hospital (hereinafter referred to individually as "Raleigh General"), Saraswathi Mohan, M.D. and Petaiah Mohan, M.D.,¹ being three of the defendants below, argue against issuance of the writ. Upon completion of our review of the law, arguments of the parties and relevant record we decline to provide the relief requested for the reasons explained herein.

I. Factual and Procedural Background

Investigating the possibility of filing a malpractice lawsuit, Petitioners' counsel contacted Dr. Stanford Schulman, an expert in the field of Kawasaki Disease,² on May 7, 2003, to request that the doctor review the medical records of Jacob Billups. According to Petitioners' counsel, a summary of the medical treatment received by Jacob Billups was sent to Dr. Schulman after he agreed to conduct the review, and phone conversations were held on May 9 and May 12, 2003, with Petitioners' counsel and a nurse paralegal employed by the same law firm. Petitioners contend that the exchanges of information between the doctor and their legal advisors involved privileged communications. On May 12, 2003, Dr. Schulman informed Petitioners' counsel that his review did not support the issuance of a medical screening certificate of merit pursuant to the provisions of West Virginia Code § 55-7B-6 (2003) (Supp.2004).³ This certificate was later procured by Petitioners from a Dr. Leonard Steinfeld on May 20, 2003. The certificate of merit along with the statutorily required notice of claim were mailed on May 27, 2003, to the health care providers named in the suit and the case was first filed on June 25, 2003. We are advised that the initial suit was dismissed upon defense motion, but virtually the same action was refiled on January 8, 2004, accompanied by the same notice of claim and certificate of merit used in the first instance.

Raleigh General Hospital, one of the health care providers named as a defendant in this suit, independently located Dr. Schulman as a Kawasaki Disease expert and retained the doctor in February 2004 to review the medical records in the case. Shortly after receiving the records, Dr. Schulman telephoned Raleigh General's counsel to inform counsel that he had previously reviewed the same medical records for a plaintiff's law firm in West Virginia and that the doctor had given them a negative review. Raleigh General's counsel terminated the consultation with Dr. Schulman and has had no further contact with the doctor except to advise the doctor that the matter of his continued participation was a court determination.

Concurrently, counsel for Raleigh General notified Petitioners' counsel about the contact with Dr. Schulman and of Raleigh General's desire to retain the doctor as an expert. Petitioners objected and Raleigh General filed a motion with the lower court in order to determine whether it would be proper under the circumstances for Raleigh General to retain Dr. Schulman as its expert.

A hearing on the motion was held before the lower court on May 20, 2004. On June 7, 2004, Petitioners disclosed under Rule 26(b)(4)(B) of the West Virginia Rules of Civil Procedure⁴ that Dr. Steinfeld would be their trial expert and Dr. Schulman was their "non-testifying expert."⁵ The disclosure was followed by the filing on June 11, 2004, of Petitioners' "Motion to Prohibit Defendant's Retention of Dr. Stanford Schulman as an Expert Witness." In support of their motion, Petitioners argued that their counsel and a nurse paralegal working for the same law firm had disclosed to Dr. Schulman a confidential summary of the medical treatment at issue and discussed the theory of the case in great detail. Affidavits, created by petitioners' counsel and paralegal a year after the consultation with Dr. Schulman, were submitted to the court below with Petitioners' motion and placed under seal for in camera review.

The lower court issued an order on August 20, 2004. Observing that the issue before it was a new question of law, the court below first adopted the test proposed by the parties which other jurisdictions have used to decide similar disqualification questions. After applying the test, the court below concluded in its August 20, 2004, order that although the court had "the inherent power to disqualify Dr. Schulman, the Plaintiffs have not met the high standard of proof necessary to overcome the Court's reluctance to disqualify Dr. Schulman." Accordingly, the motion to prohibit the retention by the defense of Dr. Schulman as an expert witness was denied. In an effort to bar implementation of the adverse order, the plaintiffs below filed a writ of prohibition with this Court on December 16, 2004, from which we issued a rule to show cause on January 19, 2005.

II. Standard of Review

We approach the issues presented in this case mindful that "[p]rohibition lies only to restrain inferior courts from proceeding in causes over which they have no jurisdiction, or, in which, having jurisdiction, they are exceeding their legitimate powers and may not be used as a substitute for writ of error, appeal or certiorari." Syl. Pt. 1, Crawford v. Taylor, 138 W.Va. 207, 75 S.E.2d 370 (1953). Elaborating on this standard of review in syllabus point four of State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996), we said:

In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.

III. Discussion

Typically, the decision regarding disqualification of an expert witness rests within the sound discretion of the trial court. State v. LaRock, 196 W.Va. 294, 306, 470 S.E.2d 613, 625 (1996). Thus our review in most instances is restrained and the lower court's decision will stand unless there is an abuse of discretion. Id. However, as the lower court observed, this Court through its opinions, the West Virginia Rules of Evidence or Rules of Civil Procedure has not directly addressed the issue of under what circumstances disqualification of an expert witness is warranted where the parties disagree about whether confidential information was communicated when that expert previously conferred with an opposing party in the same or related suit. As such, we proceed initially with a de novo review of the question of law raised in the petition. Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).

The parties mutually urge us to uphold the lower court's adoption of the two-part test employed by the majority of courts who have examined the issue of expert witness disqualification in this context. These courts have rejected a rigid solution to the expert disqualification problem and instead have opted to apply a two-prong test which balances the interests at stake.⁶ Observing that the principal aim of trial courts in reviewing expert witness disqualification motions is the protection and preservation of the integrity and fairness of judicial proceedings, the court in Great Lakes Dredge & Dock Co. v. Harnischfeger Corporation, 734 F.Supp. 334 (N.D.Ill.1990), summarized the interests that the courts must weigh:

On the one side is the party's interest in protection of confidential communications or other privileged matter. On the other side is the opposing party's right to retain those persons it feels are needed to prosecute its...