Tennant v. Marion Health Care Foundation, Inc., No. 22642

• Court: Supreme Court of West Virginia
• Writing for the Court: CLECKLEY; In the present case, Judge Fox was represented in his official capacity by one of defense counsel. Although defense counsel's representation of Judge Fox coincided with the representation of the defendants, both Judge Fox and defense counse
• Citation: 459 S.E.2d 374,194 W.Va. 97
• Parties: Janet M. TENNANT and Larry B. Tennant, Plaintiffs Below, Appellees v. MARION HEALTH CARE FOUNDATION, INC., AKA Marion Health Care Hospital; Candace Chidester, M.D.; and Patricia K. Endress, D.O., Defendants Below, Appellants.
• Docket Number: No. 22642
• Decision Date: 15 June 1995

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459 S.E.2d 374 194 W.Va. 97 Janet M. TENNANT and Larry B. Tennant, Plaintiffs Below, Appellees
v.
MARION HEALTH CARE FOUNDATION, INC., AKA Marion Health Care
Hospital; Candace Chidester, M.D.; and Patricia
K. Endress, D.O., Defendants Below, Appellants. No. 22642. Supreme Court of Appeals of
West Virginia. Submitted May 9, 1995.
Decided June 15, 1995.

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[194 W.Va. 101] Syllabus by the Court

1. Once a successor judge is properly assigned pursuant to Rule 63 of the West Virginia Rules of Civil Procedure and Rule XVII of the West Virginia Trial Court Rules for Trial Courts of Record, his or her decision or judgment is to be reviewed on appeal under the same standard that would have been applied to the decision of the original trial judge. To do otherwise would disrupt the administration of justice. To the extent that our prior cases are inconsistent with this decision, they are expressly overruled.

2. "When a trial judge vacates a jury verdict and awards a new trial pursuant to Rule 59 of the West Virginia Rules of Civil Procedure, the trial judge has the authority to weigh the evidence and consider the credibility of the witnesses. If the trial judge

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[194 W.Va. 102] finds the verdict is against the clear weight of the evidence, is based on false evidence or will result in a miscarriage of justice, the trial judge may set aside the verdict, even if supported by substantial evidence, and grant a new trial. A trial judge's decision to award a new trial is not subject to appellate review unless the trial judge abuses his or her discretion." Syllabus Point 3, in part, In re State Public Building Asbestos Litigation, 193 W.Va. 119, 454 S.E.2d 413 (1994).

3. A claim of an appearance of impropriety does not rise to the level of a fundamental defect in due process requiring a new trial. Absent a showing of bias or prejudice, a new trial is unwarranted when (1) there has been a full trial on the merits, (2) there is no obvious error during the original proceedings, (3) the record shows it is extremely unlikely the prejudice could have affected the trial, and (4) the failure to disclose facts leading to a disqualification motion was inadvertent.

4. Once a trial judge rules on a motion in limine, that ruling becomes the law of the case unless modified by a subsequent ruling of the court. A trial court is vested with the exclusive authority to determine when and to what extent an in limine order is to be modified.

5. " ' " 'Failure to make timely and proper objection to remarks of counsel made in the presence of the jury, during the trial of a case, constitutes a ... [forfeiture] of the right to raise the question thereafter in the trial court or in the appellate court.' Point 6, Syllabus, Yuncke v. Welker, 128 W.Va. 299 [36 S.E.2d 410 (1945) ]." Syllabus point 7, State v. Cirullo, 142 W.Va. 56, 93 S.E.2d 526 (1956).' Syl.Pt. 5, State v. Davis, 180 W.Va. 357, 376 S.E.2d 563 (1988)." Syllabus Point 1, Daniel B. by Richard B. v. Ackerman, 190 W.Va. 1, 435 S.E.2d 1 (1993).

6. The formulation of jury instructions is within the broad discretion of a circuit court, and a circuit court's giving of an instruction is reviewed under an abuse of discretion standard. A verdict should not be disturbed based on the formulation of the language of the jury instructions so long as the instructions given as a whole are accurate and fair to both parties.

7. " ' " 'Instructions must be read as a whole, and if, when so read, it is apparent they could not have misled the jury, the verdict will not be disturbed, through [sic] one of said instructions which is not a binding instruction may have been susceptible of a doubtful construction while standing alone.' Syl. Pt. 3, Lambert v. Great Atlantic & Pacific Tea Company, 155 W.Va. 397, 184 S.E.2d 118 (1971)." Syllabus Point 2, Roberts v. Stevens Clinic Hospital, Inc., 176 W.Va. 492, 345 S.E.2d 791 (1986).' Syllabus Point 3, Lenox v. McCauley, 188 W.Va. 203, 423 S.E.2d 606 (1992)." Syllabus Point 6, Michael v. Sabado, 192 W.Va. 585, 453 S.E.2d 419 (1994).

8. The cumulative error doctrine may be applied in a civil case when it is apparent that justice requires a reversal of a judgment because the presence of several seemingly inconsequential errors has made any resulting judgment inherently unreliable.

William E. Galloway and Daniel P. Taylor, Galloway & Taylor, Weirton, for appellees.

Herbert G. Underwood, Steptoe & Johnson, Clarksburg and Karen Kahle, Steptoe & Johnson, Wheeling, for appellants.

CLECKLEY, Justice:

The appellants and defendants below, the Marion Health Care Foundation, Inc., aka Marion Health Care Hospital; Candace Chidester, M.D.; and Patricia K. Endress, D.O., appeal from an order of the Circuit Court of Marion County granting a new trial. The defendants assert the circuit court should not have granted the plaintiffs below and appellees herein, Janet M. Tennant and Larry B. Tennant, a new trial because there were insufficient grounds to justify setting the verdict aside. The defendants assert the plaintiffs were not prejudiced by the post-verdict revelation of the original trial judge's relationship with opposing counsel and, even if recusal was proper, a jury verdict should not be overturned solely on the appearance of impropriety without evidence proving bias or prejudice on the part of the original trial judge. It is also argued that the reviewing court erred in finding the defendants violated

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[194 W.Va. 103] a prior in limine order and in finding error in one of the defendants' jury instructions.

I.

FACTS AND BACKGROUND INFORMATION

During March and April of 1989, Janet M. Tennant visited Marion Health Care Hospital (the Hospital) approximately four times for treatment. Lab work performed on March 23, 1989, indicated Mrs. Tennant suffered from severe iron deficiency anemia. Dr. Chidester, a physician and employee of the Hospital, treated Mrs. Tennant's anemia without further investigating the possible underlying cause. Medical records do not reflect any other visits by Mrs. Tennant until August 17, 1989.

On August 17, 1989, Mrs. Tennant returned to the Hospital with rectal complaints and was treated by Dr. Endress. Dr. Endress treated Mrs. Tennant on several occasions at the Hospital through the fall of 1989. Throughout this period, Mrs. Tennant continued to have rectal complaints. On November 17, 1989, Dr. Endress discovered a perirectal abscess. Dr. Endress referred Mrs. Tenant to a surgeon on November 27, 1989, because of the persistence of the abscess.

The surgeon, David McLellan, M.D., further referred Mrs. Tennant to Mohammed Roidad, M.D., a gastroenterologist. Dr. Roidad diagnosed squamous cell carcinoma of the anus on January 9, 1990. Mrs. Tennant was then referred by Dr. Roidad to Ronald Gaskin, M.D., a gastroenterologist at West Virginia University. Dr. Gaskin, in turn, referred Mrs. Tennant to the Cleveland Clinic.

In January, 1990, Mrs. Tennant was examined by Victor Fazio, M.D., and Jeffrey Milsom, M.D., both colorectal surgeons. Because of the advanced stage of the cancer and the size of the lesion, Dr. Fazio and Dr. Milsom agreed surgery was the proper course of treatment for Mrs. Tennant. Mrs. Tennant was not offered a less invasive method of treatment like chemoradiation because the surgeons thought chemoradiation did not offer a good prospect for recovery. An abdominoperineal resection with partial posterior vaginectomy with permanent colostomy was performed on Mrs. Tennant on January 18, 1990, at the Cleveland Clinic. The surgery was successful, with the exception of a nick on her ureter, which required some treatment. Mrs. Tennant has had no recurrence of the cancer nor experienced any long term effects from the nick of her ureter.

Following the surgery at the Cleveland Clinic, Mrs. Tennant continued to seek medical treatment at the Hospital. Dr. Endress continued to provide most of Mrs. Tennant's treatment through June of 1991. Between 1991 and 1992, Mr. and Mrs. Tennant initiated a suit against the Cleveland Clinic for damaging Mrs. Tennant's ureter. The Cleveland Clinic agreed to a settlement that included a waiver of fees and expenses owed to the Clinic.

On August 16, 1991, Mr. and Mrs. Tennant filed an action against the defendants alleging negligent care and treatment by the Hospital and its physicians/employees. The Tennants asserted in their complaint that Mrs. Tennant was deprived of the opportunity to avoid the surgery because of the defendants' negligent failure to diagnose her cancer earlier. Prior to trial, the Tennants filed motions in limine requesting the circuit court to restrict the defendants from mentioning anything about the settlement with the Cleveland Clinic. The circuit court entered an order stating "the settlement of the Cleveland Clinic lawsuit will not come in as evidence in this case pending in Marion County, West Virginia[.]" The order also granted the defendants an offset for any sum received by the plaintiffs in the Cleveland Clinic lawsuit against any damages the defendants might pay in this case. Trial commenced on January 26, 1994, before the Honorable Fred Fox II. After five days of trial, the jury returned a verdict in favor of the defendants.

During March, 1993, defense counsel's firm was retained by the liability carrier for the State to defend Judge Fox and others in a civil rights claim by a pro se litigant in federal court. One of the defense attorneys in the present case represented Judge Fox. On March 9, 1993, defense counsel made a motion to dismiss the federal case on behalf of Judge Fox. The motion to dismiss was

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[194 W.Va. 104] converted to a motion for summary judgment and was granted on January 31, 1994. It was not until after he received a copy of the federal court order on February 2, 1994, that Judge Fox realized he had any relationship with defense counsel. ¹ On February 10, 1994, Judge Fox notified plaintiffs' counsel of...