State ex rel. Ward v. Hill

• Decision Date: 02 July 1997
• Docket Number: No. 23989,23989
• Citation: 489 S.E.2d 24,200 W.Va. 270
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. Linda WARD, as Executrix of the Estate of L. David Ward, and Linda Ward, Individually and as Mother and Next Friend of Isaac Willard Ward, Benjamin David Ward, Tiffany Sheree Ward and Kenneth Ryan Ward, Petitioners, v. Honorable George W. HILL, Jr., Judge of the Circuit Court of Wood County; F.G. Powderly, M.D.; Bruce Pierson, Jr., M.D.; and Jorge E. Prieto, M.D., Respondents.

Page 24

489 S.E.2d 24

200 W.Va. 270

STATE of West Virginia ex rel. Linda WARD, as Executrix of

the Estate of L. David Ward, and Linda Ward, Individually and as Mother and Next Friend of Isaac Willard Ward, Benjamin David Ward, Tiffany Sheree Ward and Kenneth Ryan Ward, Petitioners, v. Honorable George W. HILL, Jr., Judge of the Circuit Court of

Wood County; F.G. Powderly, M.D.; Bruce Pierson,

Jr., M.D.; and Jorge E. Prieto, M.D.,

Respondents.

No. 23989.

Supreme Court of Appeals of West Virginia.

Submitted June 3, 1997.

Decided July 2, 1997.

Syllabus by the Court

1. " 'In determining whether to grant a rule to show cause in prohibition when a court is not acting in excess of its jurisdiction, this Court will look to the adequacy of other available remedies such as appeal and to the over-all economy of effort and money among litigants, lawyers and courts; however, this Court will use prohibition in this discretionary way to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts and only in cases where there is a high probability that the trial will be completely reversed if the error is not corrected in advance.' Syllabus Point 1, Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979)." Syllabus Point 1, State ex rel. U.S. Fidelity and Guar. Co. v. Canady, 194 W.Va. 431, 460 S.E.2d 677 (1995).

2. " 'A writ of prohibition is available to correct a clear legal error resulting from a trial court's substantial abuse of its discretion in regard to discovery orders.' Syllabus Point 1, State Farm Mutual Automobile Insurance Co. v. Stephens, 188 W.Va. 622, 425 S.E.2d 577 (1992). Syllabus Point 3, State ex rel. McCormick v. Zakaib, 189 W.Va. 258, 430 S.E.2d 316 (1993)." Syllabus Point 2, State ex rel. U.S. Fidelity and Guar. Co. v. Canady, 194 W.Va. 431, 460 S.E.2d 677 (1995).

3. "While the language of Rule 6(d) of the Rules of Civil Procedure clearly permits a reduction of the time requirements for notice of hearing, where a trial court, in so acting, reduces time requirements to the extent that the party entitled to notice is deprived of all opportunity to prepare for hearing, such action constitutes a denial of due process of law and is in excess of jurisdiction." Syllabus, Cremeans v. Goad, 158 W.Va. 192, 210 S.E.2d 169 (1974).

4. " 'The law favors and encourages the resolution of controversies by contracts of compromise and settlement rather than by litigation; and it is the policy of the law to uphold and enforce such contracts if they are fairly made and are not in contravention of some law or public policy.' Syllabus Point 1, Sanders v. Roselawn Memorial Gardens, [Inc.] 152 W.Va. 91, 159 S.E.2d 784 (1968). Syllabus Point 2, State ex rel. Vapor Corp. v. Narick, W.Va. 320 S.E.2d 345 (1984)." Syllabus Point 1, Riggle v. Allied Chemical Corp., 180 W.Va. 561, 378 S.E.2d 282 (1989).

5. " 'Rulings on the admissibility of evidence are largely within a trial court's sound discretion and should not be disturbed unless there has been an abuse of discretion.' State v. Louk, 171 W.Va. 639, 301 S.E.2d 596, 599 (1983)[, overruled on other grounds, State v. Bradshaw, 193 W.Va. 519, 457 S.E.2d 456 (1995) ]. Syllabus Point 2, State v. Peyatt, W.Va. 315 S.E.2d 574 (1983). Syllabus Point 7, State v. Miller, W.Va. 336 S.E.2d 910 (1985)." Syllabus Point 10 of Board of Ed. of McDowell County v. Zando, Martin & Milstead, Inc., 182 W.Va. 597, 390 S.E.2d 796 (1990).

6. Absent a formal agreement among defendants in a litigation involving multiple defendants, the circuit court should not generally permit a settling defendant's expert witnesses to testify for the remaining defendants. When a settlement agreement between the settling defendant and the plaintiffs prohibits the continued use of the settling defendant's expert witnesses by the remaining defendants, the circuit court, subject to Rule 26(b)(4)(B) [1988] of the West Virginia Rules of Civil Procedure, should honor that agreement by not permitting the remaining defendants to use or present such information in the preparation for or conduct of the trial.

J. Robert Rogers, William deForest Thompson, Hurricane, for Petitioners.

George W. Hill, Jr., pro se, Parkersburg.

William F. Foster, II, Jacobson, Maynard, Tuschman & Kalur, Charleston, for Respondent F.G. Powderly, M.D.

Stephen M. Fowler, Benjamin T. Hughes, Pullin, Knopf, Fowler & Flanagan, for Respondent Bruce Pierson, Jr., M.D.

STARCHER, Justice.

This original proceeding for a writ of prohibition asks this Court to vacate a January 24, 1997 ruling of the Circuit Court of Wood County allowing the defendants who remain in the underlying case to use the expert witnesses designated by the defendant who settled his portion of the case. The relators raise two questions in their petition: first, did the circuit court violate Rule 6(d) [1978] of the West Virginia Rules of Civil Procedure by holding a hearing on a substantive issue when the relators, plaintiffs in the underlying medical malpractice suit, were provided less than twenty-four hours notice of the hearing? Second, did the circuit court err in allowing the remaining defendants to use the expert witnesses of the settling defendant even through the settlement agreement between the settling defendant and the relators prohibited such use of the settling defendant's experts? Because the circuit court erred, we grant the requested writ.

I. Facts and Background

The underlying case is a medical malpractice action brought by the Estate of David Ward, filed by his executrix and widow, Linda Ward, and the children of the decedent (the plaintiffs). The defendants were the decedent's three (3) treating physicians, Jorge E. Prieto, M.D., F.G. Powderly, M.D., and Bruce Pierson, M.D. Trial in the case was scheduled for April 21, 1997 in the Wood County Circuit Court. ¹

A discovery order entered on March 20, 1996 required the plaintiffs to identify their expert witnesses sixty (60) days after taking the defendants' depositions. The defendants were required to identify their expert witnesses sixty (60) days from the disclosure of the plaintiffs' expert witnesses, provided plaintiffs' experts were "available for taking of their discovery depositions within the designated 60 day [sic] period."

Plaintiffs identified their experts on June 17, 1996 with a supplement filed on June 21, 1996. On August 20, 1996, defendant Powderly filed his identification of expert witnesses naming one physician, and he included the following reservation:

This Defendant reserves the right to designate additional experts if it becomes necessary based on the testimony of Plaintiff's [sic] experts.

On August 16, 1996, defendant Pierson filed his identification of expert witnesses naming two physicians, and he included the following reservations:

Defendant reserves the right to call any witness identified by any other party to this litigation.

Defendant reserves the right to call any expert witness needed to impeach the credibility of plaintiff's [sic] expert witnesses.

Defendant reserves the right to supplement this expert witness list following further discovery.

Defendant Prieto, after requesting and receiving an extension, filed his identification of expert witnesses on December 17, 1996. Defendant Prieto identified by name ten physicians, including the three defendants, and generally any other physician associated with the decedent's care.

Depositions of the plaintiffs' experts were taken in the fall of 1996 through January 1997, and settlement negotiations between defendant Prieto and the plaintiffs were undertaken.

On January 17, 1997, the defendant Prieto and the plaintiffs appeared to reach a settlement. According to a letter dated January 22, 1997 from plaintiffs' counsel to counsel for defendant Prieto, the settlement was accepted based on the following pertinent conditions (2) The withdrawal of all experts listed by you on behalf of Dr. Prieto as experts to be called to testify on behalf of Dr. Prieto on ANY issue, including causation as well as negligence. (These experts are to have no contact with any party or that party's representative without court order authorizing and approving the same.)

(3) The immediate cancellation of any depositions scheduled by you on behalf of Dr. Prieto of any witness, including any expert retained by and on behalf of Mrs. Ward. (emphasis in original).

There was no formal agreement among the defendants concerning the use of the expert witnesses. Counsel for remaining defendant Pierson attended a meeting during which the settling defendant's expert had discussed his potential testimony. However, none of the remaining defendants ever paid or, according to the plaintiffs, ever offered to pay for the services of the settling defendant's experts. There was no communication regarding shared usage, and no information was furnished by the remaining defendants to the settling defendant.

On January 22, 1997, the date of the settlement acceptance letter, counsel for remaining defendant Pierson communicated, via facsimile, to counsel for the plaintiffs that he wished to depose several of the experts identified by the settling defendant. According to counsel for remaining defendant Pierson, he telephoned plaintiffs' counsel on January 22, 1997, indicating his intention to use the settling defendant's witnesses and to seek a hearing on the expert witness issue on January 24, 1997. On January 23, 1997, plaintiffs' counsel, via facsimile, objected to any contact with the settling defendant's expert witnesses.

On January 23, 1997, plaintiffs' counsel received a notice of a hearing set at the request of counsel for remaining defendant Pierson for the next day (January 24, 1997) at 4:00 p.m. The notice arrived at approximately 5:00 p.m. at the offices of plaintiffs' lawyers. One of the plaintiffs' lawyers did not personally...