STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED John Myers IV, 

June 24, 2013 Defendant Below, Petitioner RORY L. PERRY II, CLERK
 

SUPREME COURT OF APPEALS
 

OF WEST VIRGINIA
 vs) No. 12-0718 (Kanawha County 09-C-1913) 

John Lawrence Pauley III, 

Plaintiff Below, Respondent 

MEMORANDUM DECISION 

Petitioner John Myers IV, by counsel Corey L. Palumbo and Evan R. Kime, appeals the 

Circuit Court of Kanawha County’s order entered on April 27, 2012, denying petitioner’s 

renewed motion for judgment as a matter of law or, in the alternative, motion for new trial. 

Respondent John Lawrence Pauley III, by counsel Brent Kesner, Daniel Greear, Sara Jones, and 

Charles M. Johnson II, filed a response. Petitioner filed a reply. 

This Court has considered the parties= briefs and the record on appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, the Court finds no substantial question of law and no prejudicial error. For these 

reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate 

Procedure. 

This case arises from a motor vehicle accident which occurred in Ohio in August of 2008. 

Respondent testified that after an evening of consuming alcohol and drugs, petitioner drove a 

vehicle in which respondent was a passenger and crashed said vehicle into a pole. At 

approximately three o’clock in the morning, respondent presented to the emergency room in 

Ohio complaining of a hip injury. Respondent’s medical history form noted that the injury 

occurred when he tried to keep a friend from falling down a flight of stairs. Respondent would 

later testify that he went along with this false accounting of the events of the evening because his 

then-girlfriend, who was a cousin of petitioner, asked him to do so in order to protect petitioner. 

Further, respondent stated that the girlfriend was the one who gave the account to the medical 

care providers. An x-ray of the hip at the time was read as showing no evidence of bone lesion or 

fracture of the hip or femur. Respondent was discharged and returned to West Virginia. 

Thereafter, he continued to have hip pain and sought chiropractic treatment. After this treatment 

was unsuccessful, he sought further care and was diagnosed with a hip fracture at Charleston 

Area Medical Center on September 15, 2009. Respondent later had to have a complete hip 

replacement. 

Although neither petitioner nor respondent reported the accident, petitioner’s damaged 

vehicle was towed and the accident was investigated by local police. Moreover, a witness to the 

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accident reported it and police confirmed that petitioner owned the car. The witness reported 

someone of petitioner’s description left the scene in a different car. Approximately fifteen hours 

after the incident, petitioner’s wife called to report petitioner’s vehicle stolen. The theft report 

was later withdrawn after the wife admitted to her insurance carrier and to the police that her 

husband had told her he lied about the theft. Petitioner maintained even through trial that he was 

not driving the subject vehicle at the time the accident occurred. On October 21, 2011, petitioner 

filed a Motion for Summary Judgment, or in the alternative, a Motion in Limine to exclude all 

medical testimony, evidence and arguments. Petitioner argued that respondent did not have 

sufficient medical evidence to show that respondent’s injury and damages were caused by the 

alleged automobile accident and thus could not satisfy proximate cause. Respondent argued that 

he had created a reasonable inference that his injuries were caused by an automobile accident, 

relying on Dr. Phillip Surface’s testimony that it could be possible that a fracture might have 

been missed on the August x-ray. The motion was denied at the pretrial conference. 

The case proceeded to trial on November 14, 2011. At trial, respondent offered the 

testimony of three treating physicians in support of his claims, which was taken by video prior to 

trial. Dr. Surface testified that the total hip replacement he performed was related to an 

acetabular (hip) fracture, but he could not testify to a reasonable degree of medical probability 

whether the hip fracture was caused by the automobile accident or by something else. Dr. 

Surface was not informed that an x-ray on August 8 showed no fracture. However, he testified 

that the type of fracture suffered by respondent is usually associated with an automobile 

accident, and that fractures are sometimes missed on regular x-rays. Dr. Umesh Bhagia also 

testified via video deposition but could not testify as to what caused the initial acetabular 

fracture. Dr. Aaron Sop also testified via video deposition and stated that he could not testify as 

to the cause of the hip injury without speculating. However, Dr. Sop did testify that the injury 

was caused by a trauma. No medical evidence was presented regarding the original x-ray 

findings that showed no fracture. 

At the close of respondent’s evidence, petitioner moved for judgment as a matter of law 

pursuant to Rule 50 of the West Virginia Rules of Civil Procedure, based on respondent’s failure 

to present any qualified medical evidence sufficient to show, to a reasonable degree of medical 

probability, that the claimed damages were caused by the alleged automobile accident. The 

circuit court found that respondent’s testimony was enough to link the damages to the accident, 

and denied the motion. The jury returned a verdict in favor of respondent, granting $576,286.69 

in damages, including $120,000 in punitive damages. Petitioner renewed his motion for 

judgment as a matter of law, or in the alternative, motion for new trial, which was denied by 

order entered on April 27, 2012. The circuit court found that petitioner’s argument ignored the 

testimony of respondent that the initial emergency room history was provided by the girlfriend, 

who was petitioner’s cousin, and who did not want to get petitioner into trouble for operating a 

vehicle under the influence. Respondent testified that he simply went along with the girlfriend’s 

story. Moreover, respondent presented evidence that the injury he sustained is most often 

sustained in a motor vehicle accident. Further, the circuit court found that the physicians did 

testify that the injuries were consistent with the reported history of respondent. 

On appeal, petitioner argues first that the circuit court erred in denying both petitioner’s 

motion for summary judgment and his motion for judgment as a matter of law because 

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respondent failed to produce sufficient evidence that respondent’s injuries were proximately 

caused by petitioner’s negligence. Petitioner makes the same legal argument in both motions. 

Petitioner also argues that the circuit court erred in denying petitioner’s motion in limine to 

exclude all medical evidence or arguments related to alleged injuries or medical damages, where 

respondent offered no medical causation testimony. Respondent argues that he offered extensive 

evidence as to the accident and how petitioner caused it, and offered evidence from medical care 

providers that the cause of his injury is consistent with a motor vehicle accident as described by 

respondent. 

“A circuit court’s entry of summary judgment is reviewed de novo.” Syl. Pt. 1, Painter v. 

Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). Summary judgment should be granted when it is 

clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not 

desirable to clarify the application of the law. Syl. Pt. 2, Id.; Syl. Pt. 3, Aetna Casualty & Surety 

Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963). This Court 

reviews appeals of circuit court orders made under Rule 50 of the West Virginia Rules of Civil 

Procedure under the following standard: 

“The appellate standard of review for the granting of a motion for a [judgment as 

a matter of law] pursuant to Rule 50 of the West Virginia Rules of Civil 

Procedure is de novo. On appeal, this court, after considering the evidence in the 

light most favorable to the nonmovant party, will sustain the granting of a 

[judgment as a matter of law] when only one reasonable conclusion as to the 

verdict can be reached. But if reasonable minds could differ as to the importance 

and sufficiency of the evidence, a circuit court’s ruling granting a directed verdict 

will be reversed.” Syllabus Point 3, Brannon v. Riffle, 197 W.Va. 97, 475 S.E.2d 

97 (1996). 

Syl. Pt. 5, Smith v. First Cmty. Bancshares, Inc., 212 W.Va. 809, 575 S.E.2d 419 (2002). Rule 

50(a)(1) of the West Virginia Rules of Civil Procedure states as follows: 

If during a trial by jury a party has been fully heard on an issue and there is no 

legally sufficient evidentiary basis for a reasonable jury to find for that party on 

that issue, the court may determine the issue against that party and may grant a 

motion for judgment as a matter of law against that party with respect to a claim 

or defense that cannot under the controlling law be maintained or defeated 

without a favorable finding on that issue. 

This Court finds no error in the denial of summary judgment and the denial of petitioner’s 

motion for judgment as a matter of law. Respondent presented sufficient evidence to show 

petitioner’s negligence, including evidence of the accident investigation. Petitioner’s account of 

the accident was, at best, not credible and changed several times. Upon a review of the record, 

this Court finds that there was certainly a legally sufficient evidentiary basis to find in favor of 

respondent. Moreover, the medical testimony was sufficient to relate respondent’s injuries to 

petitioner’s negligence. 

As to the denial of petitioner’s motion to exclude the medical evidence, this Court has 

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found that “‘[a] trial court’s evidentiary rulings, as well as its application of the Rules of 

Evidence, are subject to review under an abuse of discretion standard.’ Syllabus point 4, State v. 

Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998).” Syl. Pt. 11, State v. White, 228 W.Va. 530, 

722 S.E.2d 566 (2011). Further, “‘[t]he action of a trial court in admitting or excluding evidence 

in the exercise of its discretion will not be disturbed by the appellate court unless it appears that 

such action amounts to an abuse of discretion.’ Syllabus point 10, State v. Huffman, 141 W.Va. 

55, 87 S.E.2d 541 (1955), overruled on other grounds by State ex rel. R.L. v. Bedell, 192 W.Va. 

435, 452 S.E.2d 893 (1994).” Syl. Pt. 2, State v. Doonan, 220 W.Va. 8, 640 S.E.2d 71 (2006). 

In this case, respondent had to present evidence sufficient to relate his medical damages 

to the alleged accident to “a reasonable degree of medical probability.” Syl. Pt. 3, Hovermale v. 

Berkeley Springs Moose Lodge No. 1483, 165 W.Va. 689, 271 S.E.2d 335 (1980). Hovermale 

further notes as follows: 

In Syllabus Point 1 of Pygman v. Helton, 148 W.Va. 281, 134 S.E.2d 717 (1964), 

we made it clear that where a physician is testifying as to the causal relation 

between a given physical condition and the defendant’s negligent act, he need 

only state the matter in terms of a reasonable probability. 

Medical testimony to be admissible and sufficient to warrant a finding by 

the jury of the proximate cause of an injury is not required to be based upon 

a reasonable certainty that the injury resulted from the negligence of the 

defendant. All that is required to render such testimony admissible and 

sufficient to carry it to the jury is that it should be of such character as 

would warrant a reasonable inference by the jury that the injury in question 

was caused by the negligent act or conduct of the defendant. 

Pygman specifically rejected the requirement that the physician tie the injury to 

the negligence by way of a reasonable degree of medical certainty and eschewed 

any rigid incantation or formula. 

Hovermale, 165 W.Va. at 695-696, 271 S.E.2d at 340. Thus, the circuit court’s denial of 

petitioner’s motion to exclude the medical evidence was proper. The medical care providers in 

this action testified that the injuries were consistent with respondent’s description of how the 

accident occurred, and that the hip injury was one commonly found in motor vehicle accidents. 

This Court finds that the evidence presented was consistent with Hovermale in that the testimony 

was sufficient to warrant a reasonable inference by the jury that the injury in question was caused 

by petitioner’s negligence. 

For the foregoing reasons, we affirm. 

Affirmed. 

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ISSUED: June 24, 2013 

CONCURRED IN BY: 

Chief Justice Brent D. Benjamin 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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