Thornton v. CAMC, Etc.

• Decision Date: 08 July 1983
• Docket Number: No. 15329,15329
• Parties: Richard Harold THORNTON, Jr. v. CAMC, ETC., and Jack Pushkin, M.D.
• Court: West Virginia Supreme Court

Page 316

305 S.E.2d 316

172 W.Va. 360

Richard Harold THORNTON, Jr. v. CAMC, ETC., and Jack Pushkin, M.D.

No. 15329.

Supreme Court of Appeals of West Virginia.

July 8, 1983.

Syllabus by the Court

1. Voir dire examination is designed to allow litigants to be informed of all relevant and material matters that might bear on possible disqualification of a juror and is essential to a fair and intelligent exercise of the right to challenge either for cause or peremptorily. Such examination must be meaningful so that the parties may be enabled to select a jury competent to judge and determine the facts in issue without bias, prejudice or partiality.

2. Most courts have sanctioned the use of authoritative learned treatises in the cross-examination of expert witnesses to some degree.

3. Where a treatise is recognized by a medical expert witness as authoritative, then he can be asked about its statements for purposes of impeachment during cross-examination.

4. If a medical expert witness refuses to recognize a medical treatise as authoritative, the cross-examining party may prove the authoritativeness of the medical treatise, either through judicial notice or through the testimony of another medical expert witness. Once the trial court has concluded that the authoritativeness of the medical treatise has been established, then the expert may be cross-examined on it.

5. Where a plaintiff in a malpractice case has demonstrated that a defendant's acts or omissions have increased the risk of harm to the plaintiff and that such increased risk of harm was a substantial factor in bringing about the ultimate injury to the plaintiff, then the defendant is liable for such ultimate injury.

Guy R. Bucci, Charleston, for appellant.

Wilson Anderson, Steptoe & Johnson, Charleston, for appellee.

MILLER, Justice:

This is the second appeal filed by Richard Thornton, Jr., the plaintiff, in this medical malpractice action against Jack Pushkin, M.D., the defendant. In the original appeal we considered the validity of the plaintiff's release and remanded the case for further fact-finding. Thornton v. Charleston Area Medical Center, 158 W.Va. 504, 213 S.E.2d 102 (1975).

On remand to the Circuit Court of Kanawha County, a bifurcated trial was held. The first proceeding was to determine whether the plaintiff intended to release Dr. Pushkin and the Charleston Area Medical Center when he released the original tort-feasors. The jury found for the plaintiff on this issue. Subsequently, the Charleston Area Medical Center settled with the plaintiff out of court. The second proceeding involved determining the liability of the defendant doctor on the malpractice issue.

The jury found in Dr. Pushkin's favor on the issue of liability. After the court denied plaintiff's motion to set aside the verdict and award a new trial, this appeal was filed. The plaintiff makes several assignments of error: the limitation of voir dire, the use of medical treatises, the denial of an instruction relative to the "value of a chance," and the locality rule for expert medical testimony. Finding no error, we affirm.

The record indicates that the plaintiff sustained a compound comminuted fracture of his right leg in a motorcycle accident which occurred on June 24, 1969. He was hospitalized at the Charleston General Hospital (now Charleston Area Medical Center) under Dr. Pushkin's care for approximately two months. For the next four years he underwent further medical treatment and additional hospitalizations for treatment of his leg. Mr. Thornton continued to have problems and finally, on May 14, 1973, his right leg was amputated below the knee by Dr. Harold Kuhn.

I.

The plaintiff's first contention is that the court erred in unduly restricting the scope of voir dire and in denying his counsel the right personally to conduct the voir dire examination of potential jurors. The scope of voir dire is generally a matter within the discretion of the trial court but is subject to review for abuse of discretion. State v. Peacher, 167 W.Va. 540, 280 S.E.2d 559 (1981); Thornsbury v. Thornsbury, 147 W.Va. 771, 131 S.E.2d 713 (1963). A fair and impartial trial, however, requires a fair and impartial jury, and, as we said in W.Va. Human Rights Commission v. Tenpin Lounge, Inc., 158 W.Va. 349, 211 S.E.2d 349, 353 (1975):

"Voir dire examination is designed to allow litigants to be informed of all relevant and material matters that might bear on possible disqualification of a juror and is essential to a fair and intelligent exercise of the right to challenge either for cause or peremptorily. Such examination must be meaningful so that the parties may be enabled to select a jury competent to judge and determine the facts in issue without bias, prejudice or partiality."

See also State v. Payne, 167 W.Va. 252, 280 S.E.2d 72 (1981); State v. Pendry, 159 W.Va. 738, 227 S.E.2d 210 (1976); Henthorn v. Long, 146 W.Va. 636, 122 S.E.2d 186 (1961). We have held that where a trial court's restriction of the scope of voir dire "undermines the rights sought to be protected by the voir dire process," State v. Peacher, supra, 167 W.Va. at 540, 280 S.E.2d at 570, then an abuse of discretion occurs.

We have reviewed the voir dire examination itself and the plaintiff's motion for supplemental voir dire along with the court's reasons for refusing to ask some of the questions included in that motion. We conclude that the voir dire was fair and adequate and that plaintiff's rejected questions did not relate to substantial issues that were relevant to determining whether the jury was biased. Consequently, we find that the trial court did not abuse its discretion.

The plaintiff contends that under W.Va.Code, 56-6-12, ¹ his counsel had the right personally to conduct the voir dire examination. However, the language of this statute does not grant such a right; rather, it is couched in terms of the permissive "[e]ither party ... may ... examine ... any person ... called as a juror." We find no previous cases in which we have held that an attorney has an absolute right to conduct a voir dire. The scope of voir dire is within the trial court's discretion under Rule 47(a) of the West Virginia Rules of Civil Procedure:

"Rule 47. Jurors. (a) Examination of jurors.--The court may permit the parties or their attorneys to conduct the examination of prospective jurors or may itself conduct the examination. In the latter event, the court shall permit the parties or their attorneys to supplement the examination by such further inquiry as it deems proper or shall itself submit to the prospective jurors such additional questions of the parties or their attorneys as it deems proper."

Under this rule, the fact that the court itself conducted the voir dire examination is not error. See State v. Pendry, supra.

II.

A.

The second issue raised by the plaintiff contains two parts. The first is that the circuit court erred in denying his request to allow his expert medical witness to rely on medical treatises in his direct examination. The second relates to restricting the use of medical treatises in the cross-examination of the defendant's expert medical witnesses. Plaintiff urges us to adopt Rule 803(18) of the Federal Rules of Evidence, which provides:

"The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

* * *

* * *

"(18) Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by him in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits."

A review of the designated record in this appeal does not specifically reveal how the plaintiff intended to use medical treatises in the direct examination of Dr. Byron Genner, who apparently was his only expert medical witness. The record is incomplete in this area, apparently because the plaintiff's attorney utilized the provisions of Rule 4A of our Rules of Appellate Procedure, which permits an appeal without the necessity of an evidentiary transcript. ² Once a Rule 4A petition is accepted, it is clear under Rule 7(c) ³ of our Rules of Appellate Procedure that the parties must still furnish a record which actually encompasses all of the facts and testimony relevant to the issues raised in the petition. We have commented on the need to have an adequate record for appeal, especially when the appellant is proceeding under Rule 4A, in Bowman v. Barnes, 168 W.Va. 111, 282 S.E.2d 613, 622 n. 15 (1981):

"In his initial petition for appeal, the plaintiff utilized the procedure set forth in Rule 4A of the Rules of Appellate Procedure ... which permits statement of facts in the petition to serve in place of the transcript of testimony. Rule 4A requires the petition to be served on the other parties who can then file a reply petition. However, once an appeal is granted, Rule 8 of the Rules of Appellate Procedure ... requires the development of an adequate appeal record by both parties. This also accords with the requirement of W.Va.Code, 58-5-6. In the present case, we do not have a transcript of the testimony taken at trial. All parties to the appeal have proceeded to present the key facts surrounding the accident by narrative statements in their briefs. Where their respective statements do not appear to be in dispute, we have addressed the points of error raised. In so doing, counsel should not assume that we will in the future sanction this practice." (Emphasis added; Citations omitted).

See also State v. Cox, 171 W.Va. 50, 297 S.E.2d 825, 828 (1982).

This Court "is limited in its authority to resolve assignments of nonjurisdictional...