IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2019 Term 

No. 17-1086

ROBERT SMITH, 

AS ADMINISTRATOR AND PERSONAL REPRESENTATIVE 

OF THE ESTATE OF A. S., DECEASED, 

Plaintiff Below, Petitioner

V.

CAROLYN CLARK, M.D. AND 

CABELL HUNTINGTON HOSPITAL, INC., 

Defendants Below, Respondents

________________________________________________________

Appeal from the Circuit Court of Cabell County

The Honorable Gregory L. Howard, Judge

Civil Action No. 15-C-312

AFFIRMED

_________________________________________________________

Submitted: April 9, 2019

Filed: June10, 2019

Christopher J. Regan

Zachary J. Zatezalo

Bordas & Bordas, PLLC

Wheeling, West Virginia

Attorney for Petitioner

D.C. Offutt, Jr.

Ryan Q. Ashworth

Offutt Nord Ashworth, PLLC

Huntington, West Virginia

Attorneys for Carolyn Clark, M.D.

Thomas L. Craig

Rebecca C. Brown

Ralph J. Hagy

FILED

June 10, 2019

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
Bailes, Craig & Yon, PLLC

Huntington, West Virginia 

Attorneys for Cabell Huntington 

Hospital Inc.

JUSTICE JENKINS delivered the Opinion of the Court. 

JUSTICE WORKMAN and JUSTICE HUTCHISON dissent and reserve the right 

to file dissenting opinions. 
i

SYLLABUS BY THE COURT

1. “In determining whether there is sufficient evidence to support a jury 

verdict the court should: (1) consider the evidence most favorable to the prevailing party; 

(2) assume that all conflicts in the evidence were resolved by the jury in favor of the 

prevailing party; (3) assume as proved all facts which the prevailing party’s evidence tends 

to prove; and (4) give to the prevailing party the benefit of all favorable inferences which 

reasonably may be drawn from the facts proved.” Syllabus point 5, Orr v. Crowder, 173 

W. Va. 335, 315 S.E.2d 593 (1983).

2. “In medical malpractice cases, the ‘multiple methods of treatment’

jury instruction (which states that a health care provider is not negligent if he or she selects 

and utilizes in a non-negligent manner one of two or more generally recognized methods 

of diagnosis or treatment within the standard of care) is appropriate where the evidence 

shows that the challenged method of diagnosis or treatment enjoys such substantial support 

within the medical community that it is, in fact, widely and generally recognized. The 

necessity of presenting evidence sufficient to support a multiple methods of [treatment] 

jury instruction rests with the defendant.” Syllabus point 5, Yates v. University of West 

Virginia Board of Trustees, 209 W. Va. 487, 549 S.E.2d 681 (2001).

3. “‘A judgment will not be reversed because of the admission of 

improper or irrelevant evidence, when it is clear that the verdict of the jury could not have 
ii

been affected thereby.’ Syllabus Point 7, Starcher v. South Penn Oil Co., 81 W. Va. 587, 

96 S.E. 28 (1918).” Syllabus point 3, Graham v. Wallace, 214 W. Va. 178, 588 S.E.2d 167 

(2003).

4. “The 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 7, State ex rel. Weirton 

Medical Center v. Mazzone, 214 W. Va. 146, 587 S.E.2d 122 (2002) (internal quotations 

and citations omitted).

5. “The West Virginia Rules of Evidence and the West Virginia Rules 

of Civil Procedure allocate significant discretion to the trial court in making evidentiary 

and procedural rulings. Thus, rulings on the admissibility of evidence . . . are committed 

to the discretion of the trial court. Absent a few exceptions, this Court will review 

evidentiary and procedural rulings of the circuit court under an abuse of discretion 

standard.” Syllabus point 1, in part, McDougal v. McCammon, 193 W. Va. 229, 455 S.E.2d 

788 (1995).

6. “When a case involving conflicting testimony and circumstances has 

been fairly tried, under proper instructions, the verdict of the jury will not be set aside 

unless plainly contrary to the evidence or without sufficient evidence to support it.” 

Syllabus point 9, Neely v. Belk Inc., 222 W. Va. 560, 668 S.E.2d 189 (2008).
iii

7. “In determining whether there is sufficient evidence to support a jury 

verdict the court should: (1) consider the evidence most favorable to the prevailing party; 

(2) assume that all conflicts in the evidence were resolved by the jury in favor of the 

prevailing party; (3) assume as proved all facts which the prevailing party’s evidence tends 

to prove; and (4) give to the prevailing party the benefit of all favorable inferences which 

reasonably may be drawn from the facts proved.” Syllabus point 10, Neely v. Belk Inc., 

222 W. Va. 560, 668 S.E.2d 189 (2008).

8. “In determining whether the verdict of a jury is supported by the 

evidence, every reasonable and legitimate inference, fairly arising from the evidence in 

favor of the party for whom the verdict was returned, must be considered, and those facts, 

which the jury might properly find under the evidence, must be assumed as true.” Syllabus 

point 12, Neely v. Belk Inc., 222 W. Va. 560, 668 S.E.2d 189 (2008).
1

Jenkins, Justice:

Petitioner Robert Smith (“Mr. Smith”) herein appeals the November 17, 

2017 order of the Circuit Court of Cabell County denying his motion for a new trial and 

renewed motion for judgment as a matter of law.

1

 Mr. Smith alleges that the evidence at 

trial constituted a clear case of medical negligence and that certain trial errors circumvented 

the evidentiary process and forced a verdict against the weight of the evidence. Respondent 

Carolyn Clark, M.D. sets forth a cross-assignment of error,2arguing that the circuit court 

erred in denying her motion for judgment as a matter of law3 because Mr. Smith’s expert 

improperly invoked the “Locality Rule.” Having considered the briefs submitted on 

appeal, the appendix record, the parties’ oral arguments, and the applicable legal authority, 

we find no error. Accordingly, we affirm the order of the circuit court. 

 

1

In 1998, Rule 50 of the West Virginia Rules of Civil Procedure was revised. 

The changes abandoned the phrases “directed verdict” and “judgment notwithstanding the 

verdict.” Rule 50 now refers to these as “judgment as a matter of law.” Petitioner 

incorrectly referred to his motions below as “Motion for Judgment Notwithstanding the 

Verdict” and “Renewed Motion for Judgment Notwithstanding the Verdict.” Because the 

correct phrase is “judgment as a matter of law,” we will refer to the motions as such. 

2 See W. Va. R. App. P. 10(c)(10)(f) (providing for cross assignments of error 

by respondents). 

3 See supra note 1. Respondent Dr. Clark incorrectly referred to her motion 

below as “Motion for a Directed Verdict.” Because the correct phrase is “judgment as a 

matter of law,” we will refer to the motion as such. 
2

I.

FACTUAL AND PROCEDURAL HISTORY

This matter appears before this Court upon the appeal of the plaintiff below

and petitioner herein, Mr. Smith, as the Administrator and Personal Representative of the 

Estate of A. S. (“infant”). The Circuit Court of Cabell County denied Mr. Smith’s posttrial motions—a motion for a new trial and a motion for judgment as a matter of law, based 

on his claims of trial error4—following a jury verdict for the defendants below. 

On the morning of June 23, 2014, Carolyn Clark, M.D. (“Dr. Clark”) induced 

Chasity Smith’s (“Mrs. Smith”) labor at Cabell Huntington Hospital, Inc. (“Cabell 

Huntington”) in Huntington, West Virginia. According to the medical records, Mrs. 

Smith’s labor was unremarkable, and the infant’s fetal heart rate tracing remained in the 

normal range for much of the labor. At approximately 5:17 p.m., Dr. Clark inserted an 

intrauterine pressure catheter to check Mrs. Smith’s contraction strength. Upon removal, 

the catheter returned blood. Dr. Clark then told the nursing staff to flush the blood from 

the catheter. At trial, it was not disputed that Mrs. Smith had suffered a placental abruption; 

however, Mr. Smith took the position that Dr. Clark caused the placental abruption by 

incorrectly inserting the catheter. To the contrary, Respondents used the testimony of 

expert pathologist, Dr. Carolyn Salafia, to explain how concealed placental abruptions can 

 

4 Each alleged trial error will be addressed separately in Section III 

Discussion. See Section III Discussion, infra.
3

occur spontaneously in the face of thrombophilia (a blood clotting abnormality), which 

Mrs. Smith experienced, and how abruptions relate to faster dilation. 

Around 5:20 p.m., the infant’s heartbeat showed an abnormal reading on the 

monitor. At trial, Mr. Smith argued that the infant’s fetal heart tracing was lost. 

Conversely, Dr. Clark and Cabell Huntington (collectively “Respondents”) countered that 

the movements were audible on the monitor. A few minutes later, a lower heartbeat was 

traced on the monitor and the nursing staff paged Dr. Clark for assistance. Around 

5:33 p.m., Dr. Clark reviewed the infant’s heartbeat. The nursing staff asked Dr. Clark if 

they were going to the operating room for a caesarean section—Dr. Clark did not respond. 

At 5:37 p.m., Dr. Clark applied forceps in an attempt to deliver the baby 

vaginally. Although the medical chart is silent as to Mrs. Smith’s labor progression at the 

exact time Dr. Clark began her attempt at vaginal delivery, the most progressed recorded 

dilation states that her cervix was dilated to 8-9 centimeters prior to any vaginal attempts 

at delivery. Mr. Smith argued at trial, that the silence in the medical record on dilation 

completeness meant that Mrs. Smith was never fully dilated and therefore was unable to 

deliver vaginally. Respondents disputed this contention. According to Dr. Clark and her 

expert, Dr. Frank Manning, dilation is progressive and exponential. In the words of Dr. 

Manning, dilation is “hard to get started and then it suddenly goes.” The medical records 

in this case reveal that Mrs. Smith progressed in dilation quickly from six centimeters to 

nine centimeters. Therefore, Respondents maintained throughout the trial, that Mrs. Smith 
4

was fully dilated and that Dr. Clark knew the position of the baby’s head at all times during 

her attempt at a vaginal delivery. The nursing staff inquired once again about going to the 

operating room for a caesarean section. Instead, Dr. Clark prepared Mrs. Smith’s bed, and 

put her in stirrups to prepare for a vaginal birth. After attempting a vaginal delivery with 

the assistance of forceps, Dr. Clark called for a caesarean section at approximately 

5:54 p.m. At 6:04 p.m., the infant was born asphyxiated with Apgar scores of 0/05and was 

immediately transferred to the newborn intensive care unit. The next day, life support was 

withdrawn and the infant was pronounced dead. 

In November of 2015, Mr. Smith filed a medical professional liability action 

against Respondents. In his complaint, Mr. Smith alleged that Dr. Clark and Cabell 

Huntington were negligent and breached the applicable standards of care by failing to 

timely deliver the infant, thereby resulting in the infant’s death. More specifically, Mr. 

Smith contended that fetal bradycardia6 was documented in the medical record and the fetal 

 

5

“The Apgar score provides an accepted and convenient method for 

reporting the status of the newborn infant immediately after birth and the response to 

resuscitation if needed. The Apgar score alone cannot be considered to be evidence of or 

a consequence of asphyxia, does not predict individual neonatal mortality or neurologic 

outcome, and should not be used for that purpose. . . . This scoring system provided a 

standardized assessment for infants after delivery. The Apgar score comprises five 

components: 1) color, 2) heart rate, 3) reflexes, 4) muscle tone, and 5) respiration, each of 

which is given a score of 0, 1, or 2.” The Apgar Score, Committee Opinion No. 644, 

American College of Obstetricians and Gynecology (Oct. 2015) (Reaffirmed 2019), 

available at THE AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS, 

http://www.acog.org/ (last visited May 9, 2019). 

6 According to ACOG, a fetus is considered to be experiencing bradycardia 

when the fetal heart rate baseline is less than 110 beats per minute. See Intrapartum Fetal 
5

heart rate readings were classifiable as a Category 3 under the American College of 

Obstetricians and Gynecologists’ (“ACOG”) Fetal Heart Rate Monitoring protocol, which 

required immediate delivery by either operative vaginal delivery or caesarean section. Mr. 

Smith further alleged that Cabell Huntington’s nurses breached the standard of care by 

failing to invoke the hospital’s chain of command policy.7

The trial in this matter commenced on May 16, 2017, and lasted for eight 

days. While Mr. Smith furthered his theory that Dr. Clark breached the applicable standard 

of care by failing to more quickly deliver the infant in the face of fetal bradycardia, Dr. 

Clark presented rebuttal evidence—including her own testimony—to propound her 

position that Mrs. Smith was fully dilated at the time she attempted a forceps-assisted 

vaginal delivery, and therefore met the standard of care. Additionally, Cabell Huntington 

asserted that its nursing staff followed all hospital policies and procedures during the course 

of the infant’s delivery, and, therefore, met the standard of care. 

 

Heart Rate Monitoring: Nomenclature, Interpretation, and General Management 

Principles, Practice Bulletin No. 106, American College of Obstetricians and Gynecology

(July 2009) (Reaffirmed 2017), available at THE AMERICAN COLLEGE OF OBSTETRICIANS 

AND GYNECOLOGISTS, http://www.acog.org/ (last visited May 22, 2019).

7

In general, the Chain of Command policy is an organizational policy in 

place at hospitals that delineates a line of authority for nurses to contact when concerns 

with a patient’s well-being arise. The Chain of Command policy exists to provide a 

resource for nurses to report their concerns up the chain of command until their concerns 

are alleviated. See Continuity of Care: NCLEX-RN, available at 

https://www.registerednursing.org/nclex/continuity-care/ (last visited May 23, 2019). 
6

After the trial, the jury returned a verdict in favor of Dr. Clark and Cabell 

Huntington, finding that neither party breached their applicable standard of care. Because 

the jury determined that the applicable standard of care had not been breached, it rendered 

a defense verdict without the need to make a determination as to causation or damages. 

The circuit court entered its Final Judgment Order on June 6, 2017. On June 16, 2017, Mr. 

Smith renewed his previously filed motion for judgment as a matter of law under Rule 

50(b)8 of the West Virginia Rules of Civil Procedure, and also moved for a new trial under 

Rule 59.9 Both of Mr. Smith’s post-trial motions were denied in an order of the Circuit 

 

8 Rule 50 (b) of the West Virginia Rules of Civil Procedure states that 

If, for any reason, the court does not grant a motion for 

judgment as a matter of law made at the close of all the 

evidence, the court is considered to have submitted the action 

to the jury subject to the court’s later deciding the legal 

questions raised by the motion. The movant may renew the 

request for judgment as a matter of law by filing a motion no 

later than 10 days after entry of judgment and may alternatively 

request a new trial or join a motion for a new trial under Rule 

59. In ruling on a renewed motion, the court may: 

(1) If a verdict was returned:

A. allow the judgment to stand,

B. order a new trial, or

C. direct entry of judgment as a matter of law; or

(2) if no verdict was returned:

A. order a new trial, or

B. direct entry of judgment as a matter of law.

9 Rule 59 of the West Virginia Rules of Civil Procedure states that 

“[a] new trial may be granted to all or any of the parties and on 

all or part of the issues (1) in an action in which there has been 

a trial by jury, for any of the reasons for which new trials have 

heretofore been granted in actions at law; and (2) in an action 
7

Court of Cabell County dated November 12, 2017. It is from this Order that Mr. Smith 

now appeals. 

II.

STANDARD OF REVIEW

This case comes to the Court after the circuit court denied Mr. Smith’s posttrial motion for a new trial and his renewed motion for judgment as a matter of law. With 

regard to our standard for reviewing a circuit court’s ruling on a motion for a new trial, we 

have explained that

[a]s a general proposition, we review a circuit court’s rulings 

on a motion for a new trial under an abuse of discretion 

standard. In re State Public Building Asbestos Litigation, 193 

W. Va. 119, 454 S.E.2d 413 (1994) (Asbestos Litigation). 

Thus, in reviewing challenges to findings and rulings made by 

a circuit court, we apply a two-pronged deferential standard of 

review. We review the rulings of the circuit court concerning 

a new trial and its conclusion as to the existence of reversible 

error under an abuse of discretion standard, and we review the 

circuit court’s underlying factual findings under a clearly 

erroneous standard. Questions of law are subject to a de novo 

review.

 

tried without a jury, for any of the reasons for which rehearings 

have heretofore been granted in suits in equity. On a motion 

for a new trial in an action tried without a jury, the court may 

open the judgment if one has been entered, take additional 

testimony, amend findings of fact and conclusions of law or 

make new findings and conclusions, and direct the entry of a 

new judgment.”
8

Tennant v. Marion Health Care Found., Inc., 194 W. Va. 97, 104, 459 S.E.2d 374, 381 

(1995). It has also been noted that, “a new trial should not be granted unless it is reasonably 

clear that prejudicial error has crept into the record or that substantial justice has not been 

done.” McInarnay v. Hall, 241 W. Va. 93, ___, 818 S.E.2d 919, 924 (2018) (internal 

quotation marks and citations omitted). 

Further, “[t]he appellate standard of review for an order granting or denying 

a renewed motion for a judgment as a matter of law after trial pursuant to Rule 50(b) of the 

West Virginia Rules of Civil Procedure [1998] is de novo.” Syl. pt. 1, Fredeking v. Tyler, 

224 W. Va. 1, 680 S.E.2d 16 (2009). This Court has also stated that it

reviews a trial court’s order granting or denying a renewed 

motion for judgment as a matter of law after trial under Rule 

50(b) of the West Virginia Rules of Civil Procedure [1998], it 

is not the task of this Court to review the facts to determine 

how it would have ruled on the evidence presented. Instead, 

its task is to determine whether the evidence was such that a 

reasonable trier of fact might have reached the decision below. 

Thus, when considering a ruling on a renewed motion for 

judgment as a matter of law after trial, the evidence must be 

viewed in the light most favorable to the nonmoving party.

Syl. pt. 2, id.

Each of the issues herein raised are addressed by this Court under slightly 

different standards of review. Specifically, the assignments of error analyzed in Discussion 

Sections “A” through “E” are reviewed for an abuse of discretion. Further, relating to the 

assignment of error examined in Discussion Section “F,” 
9

[i]n determining whether there is sufficient evidence to support 

a jury verdict the court should: (1) consider the evidence most 

favorable to the prevailing party; (2) assume that all conflicts 

in the evidence were resolved by the jury in favor of the 

prevailing party; (3) assume as proved all facts which the 

prevailing party’s evidence tends to prove; and (4) give to the 

prevailing party the benefit of all favorable inferences which 

reasonably may be drawn from the facts proved.

Syl. pt. 5, Orr v. Crowder, 173 W. Va. 335, 315 S.E.2d 593 (1983). Accordingly, we now 

proceed to consider the parties’ arguments. 

III.

DISCUSSION

In his brief, Mr. Smith raises nine separate assignments of error. Each issue 

will be addressed in turn. 

A. Jury Instructions

Mr. Smith argues that certain jury instructions should not have been given 

by the circuit court, and, likewise, that other instructions should have been given to the 

jury. First, he states that the circuit court erred by giving the “multiple methods of 

treatment” instruction. Second, he asserts that the circuit court erred when it refused to 

instruct the jury on the “eggshell plaintiff” instruction. After identifying the appropriate 

standards of review for these particular issues, we will address each of these assignments 

of error separately. 
10

This Court has observed that 

[t]he 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.

Syl. pt. 6, Tennant v. Marion Health Care Found., Inc., 194 W. Va. 97, 459 S.E.2d 374 

(1995).

Further, “[i]t will be presumed that a trial court acted correctly in giving or 

in refusing to give instructions to the jury, unless it appears from the record in the case that 

the instructions were prejudicially erroneous or that the instructions refused were correct 

and should have been given.” Syl. pt. 1, State v. Turner, 137 W. Va. 122, 70 S.E.2d 249 

(1952). Moreover, we observed in Syllabus point 4 of State v. Guthrie, 194 W. Va. 657, 

461 S.E.2d 163 (1995):

A trial court’s instructions to the jury must be a correct 

statement of the law and supported by the evidence. Jury 

instructions are reviewed by determining whether the charge, 

reviewed as a whole, sufficiently instructed the jury so they 

understood the issues involved and were not misle[d] by the 

law. A jury instruction cannot be dissected on appeal; instead, 

the entire instruction is looked at when determining its 

accuracy. A trial court, therefore, has broad discretion in 

formulating its charge to the jury, so long as the charge 

accurately reflects the law. Deference is given to a trial court’s 

discretion concerning the specific wording of the instruction, 

and the precise extent and character of any specific instruction 

will be reviewed only for an abuse of discretion.
11

1. “Multiple Methods of Treatment” Instruction. Mr. Smith first 

contends that the jury was misled by the circuit court’s inclusion of the “multiple methods

of treatment” instruction. Specifically, Mr. Smith contends that the circuit court acted 

under a misapprehension of the law and erred by giving a “multiple methods of treatment” 

instruction where the only liability issue for determination involved the timing of the 

infant’s delivery. The instruction, as read to the jury, stated:

Sometimes the standard of care for treating a patient 

involves consideration of different methods of diagnosis or 

treatment that are widely and generally recognized within the 

medical community.

A healthcare provider must use its professional 

judgment in choosing what it believes to be the most effective 

treatment option in a given situation. Just because a healthcare 

provider chooses one recognized method of treatment instead 

of another does not mean it breached the standard of care. A 

healthcare provider is not negligent if it selects and utilizes, in 

a non[-]negligent manner, one of two or more generally 

recognized methods of treatment within the standard of care. 

However, a healthcare provider that uses a widely and 

generally recognized method of treatment or diagnosis must 

utilize the method with the degree of care, skill, and learning 

that would be provided by a reasonable and prudent healthcare 

provider in the same or similar circumstances. 

This Court has previously had the occasion to discuss the propriety of the 

“multiple methods of treatment” instruction in Yates v. University of West Virginia Board

of Trustees, 209 W. Va. 487, 549 S.E.2d 681 (2001). In Yates, we held that

[i]n medical malpractice cases, the “multiple methods of 

treatment” jury instruction (which states that a health care 
12

provider is not negligent if he or she selects and utilizes in a 

non-negligent manner one of two or more generally recognized 

methods of diagnosis or treatment within the standard of care) 

is appropriate where the evidence shows that the challenged 

method of diagnosis or treatment enjoys such substantial 

support within the medical community that it is, in fact, widely 

and generally recognized. The necessity of presenting 

evidence sufficient to support a multiple methods of 

[treatment] jury instruction rests with the defendant. 

Syl. pt. 5, id. When offering this instruction to a jury, 

[i]t is insufficient to show that there exists only a small 

minority of physicians who agree with the defendant’s 

challenged treatment. On the other hand, it is not necessary 

for the defendant to show that the challenged treatment is 

utilized by the majority of physicians. Rather, the defendant 

must show that the challenged treatment enjoys such 

substantial support within the medical community that it truly 

is generally recognized. In order to make this showing, the 

defendant’s expert must opine that the challenged method of 

diagnosis or treatment has substantial support and is generally 

recognized within the medical community. This testimony 

should usually be supported by sufficient extrinsic evidence 

such as medical textbooks, treatises, journal articles, or other 

similar evidence. Upon a proper showing by the defendant, a 

multiple methods of treatment instruction may properly be 

given. Once the trial court makes this determination, it is 

ultimately a question for the jury to determine whether it 

believes that the challenged method of diagnosis or treatment 

is generally recognized, and the burden of persuasion on that 

issue remains with the plaintiff.

Id. at 495-96, 549 S.E.2d at 689-90.

It is Mr. Smith’s contention that this instruction ignored the issue of “timing” 

and essentially informed the jury that a physician is not negligent when he or she performs 

one or more approved methods of treatment within the standard of care. Mr. Smith 

maintains that the issue for jury determination had nothing to do with Dr. Clark’s choice 
13

of delivery method, but instead, the issue had everything to do with the timing of the 

infant’s delivery, and therefore the instruction does nothing but provide confusion for the 

jury. Additionally, Mr. Smith cites to Yates for the proposition that Respondents failed to 

submit extrinsic evidence supportive of a “multiple methods” instruction. 

In their respective briefs, Dr. Clark and Cabell Huntington reject this notion 

and emphasize that the “timing of delivery” theory is simply inaccurate. According to the 

Respondents, this case has never been about “timing,” and has always been about Dr. Clark 

and her choice to attempt a vaginal delivery versus a caesarean section once Mrs. Smith 

was fully dilated. Moreover, in its order denying all post-trial motions, the circuit court 

explained, “that sufficient evidence was presented to support a finding that Mrs. Smith was 

completely dilated at the time Dr. Clark attempted vaginal delivery. Therefore, the 

evidence submitted at trial also warranted the ‘multiple method instruction.’”

Respondents rebut that not only was the “multiple methods of treatment” 

instruction appropriate, but also necessary. They argue, that although Mr. Smith 

characterizes his argument as a “timing” issue, Mr. Smith’s real argument boils down to 

the method of delivery: vaginal versus caesarean. In the case at hand, this Court must 

recognize that it was Mr. Smith who first triggered the issue of the “multiple methods of 

treatment” when his Complaint and expert witness both asserted that delivery of the infant 
14

was necessary by either vaginal delivery or caesarean section.10 In particular, Mr. Smith’s 

expert stated that vaginal delivery is an accepted method of childbirth, and that if a patient 

is fully dilated, it is often faster than performing caesarean sections. Specifically, Mr. 

Smith’s expert testified:

Now, [the American College of Obstetricians and 

Gynecologists] doesn’t say whether you do a vaginal delivery 

or whether you do a C-section. But, obviously, it depends upon 

where you are in your labor. If someone is completely dilated 

and the head is low down and right there, it’s sometimes faster 

to do a vaginal delivery than a C-section. 

. . .

But again, if you are expecting me to assume that she’s 

complete [fully dilated], you’re also saying if it’s going to be 

quickly, you’re assuming that [the baby is] well down, which 

means it’s already rotated, otherwise it wouldn’t be well down, 

and if all of those happen in that situation, and I check her and, 

you know, she’s 3/4 - plus 3/4 no, I would have no problem 

with that. But that I don’t think is what happened. It’s going 

to be left to them [referring to the jury].

As explained above in the expert’s testimony, Mr. Smith’s “timing” 

argument assumes that Mrs. Smith was incomplete (not fully dilated) when Dr. Clark 

attempted a vaginal delivery. However, Respondents put forth their own expert witnesses 

and testimony from Dr. Clark herself to prove that Mrs. Smith was complete at the time 

vaginal delivery was attempted. In fact, the circuit court found that Respondents put forth 

 

10 See Complaint, at ¶ 16 (“By 5:35, fetal bradycardia was documented and 

the fetal heart rate readings were classifiable as a Category 3 under the ACOG Fetal Heart 

Rate Monitoring protocol, which required immediate delivery by either operative vaginal 

delivery or caesarean section.”).
15

the following evidence to support their theory that Mrs. Smith was fully dilated and ready 

for a vaginal childbirth: (1) experts testified that that process of dilation is progressive and 

exponential; (2) experts testified that placental abruptions cause faster dilation; (3) Dr. 

Clark knew the position of the infant’s head; (4) Dr. Clark was able to place forceps through 

the cervix which would have been difficult if the cervix was not fully dilated; and (5) Dr. 

Clark, an obstetrician and gynecologist with forty years of experience, testified that Mrs. 

Smith was fully dilated. In addition to the substantial evidence put forth to support the 

giving of the instruction, the circuit court also found that “the jury instructions as a whole 

were ‘accurate and fair to both parties.’” We agree. 

Because we find that the jury instructions were fair and accurate to all parties, 

we must disagree with Mr. Smith’s contention that the “multiple methods of treatment” 

instruction misled the jury and caused them to find in Dr. Clark’s favor simply because she 

chose a vaginal delivery (which is an accepted and recognized method of delivering 

children). It was undisputed that Mrs. Smith had suffered a placental abruption that 

compromised the infant; however, the difficulty of Mrs. Smith’s labor does not change the 

fact that sufficient evidence was put forth to show that she was fully dilated, and that Dr. 

Clark had a choice between delivery methods. Here, we find that ample evidence—offered 

by all parties at trial—warranted the “multiple methods of treatment” instruction. As the 

circuit court noted in its Order: “The evidence submitted by Plaintiff [Mr. Smith] and 

Defendants [Dr. Clark and Cabell Huntington] confirmed that two methods of childbirth
16

enjoy substantial support within the medical community, those being vaginal delivery or 

caesarean delivery.” 

Here, the “multiple methods of treatment” instruction advised the jury that 

there is not just one recognized method of delivery of a child, and as such, the circuit court 

did not abuse its discretion by giving this instruction. While Mr. Smith may not agree 

because, in his view, the instruction ignored his “timing” theory of the case, we are not 

persuaded that the instruction was unfair. The circuit court found that Mrs. Smith was fully 

dilated at the time a vaginal delivery was attempted, which enabled Dr. Clark to choose the 

method of delivery. In light of this, and all of the evidence presented at trial, we find that 

the circuit court’s factual finding is not clearly erroneous.11 Additionally, Mr. Smith 

alleged in his own complaint, that both vaginal and caesarean sections were available 

means to deliver the infant.12 As such, we find no error as the evidence before the jury 

supported such an instruction.

2. “Eggshell Plaintiff” Instruction. Mr. Smith contends that the circuit 

court committed reversible error by refusing to give an “eggshell plaintiff” instruction. 

Specifically, Mr. Smith requested that the following instruction be submitted to the jury:

 

11 See Tennant v. Marion Health Care Found., Inc., 194 W. Va. 97, 104, 459 

S.E.2d 374, 381 (1995) (on review of a motion for new trial, factual findings underlying 

rulings of the circuit court are reviewed for clear error).

12 See supra note 10.
17

If you find that [the infant] was more susceptible to injury than 

a normal person, you may still award damages to Robert Smith 

for the injuries caused by the Defendants even if a normal 

healthy person would not have suffered similar injury.13

(Footnote added). The circuit court found that the “jury was fully instructed on all 

principles that applied to the case and the refusal of this instruction did not impede 

Plaintiff’s closing argument or foreclose the jury’s passing on the Plaintiff’s basic theory 

of the case as developed through the evidence.” Mr. Smith argues that the jury should have 

been instructed that Mrs. Smith had prior bleeding and possible genetic conditions that 

made the infant less likely to survive the acute placental abruption, and that the 

Respondents could be held liable for injuries in spite of the infant’s weakened condition. 

According to Mr. Smith, the absence of the “eggshell plaintiff” instruction further confused 

and misled the jury and significantly prejudiced his right to a fair trial. Respondents rebut 

Mr. Smith’s assertion and argues that the failure to give the “eggshell plaintiff” instruction 

did not affect the outcome of the case since the jury never reached a determination as to 

causation or damages. We agree with Respondents.

The decision of the circuit court to forego giving an “eggshell plaintiff” 

instruction did not affect the outcome of the trial. The “eggshell plaintiff” instruction 

necessarily relates to the issue of causation. In both Shia v. Chvasta, 180 W. Va. 510, 377 

 

13 This instruction, as written above, is only part of the West Virginia Pattern 

Jury Instructions for Civil Cases colloquially known as the “eggshell plaintiff” or “thin 

skull” instruction. See Menis E. Ketchum, West Virginia Pattern Jury Instructions for 

Civil Cases §802 Personal Injury, Wrongful Death & Property Damage (2016).
18

S.E.2d 644 (1988) and Howe v. Thompson, 186 W. Va. 214, 412 S.E.2d 212 (1991), we 

discussed the proffered “eggshell instruction” in the context of proximate cause, and found 

that the circuit courts did not err by rejecting the instruction.14 Here, the jury rendered a 

verdict on liability and found that neither Dr. Clark nor Cabell Huntington breached the 

standard of care. The jury’s deliberations ended there, and the jury did not reach the issue 

of proximate cause. Thus, this question of causation would only be relevant if Mr. Smith 

had prevailed on the issue of liability. As such, we find that the refusal to give the “eggshell 

plaintiff” instruction had no effect on the outcome of this case because the jury found that 

the Respondents were not liable for the infant’s injuries.15

After reviewing the jury instructions as a whole, we do not find error in 

excluding the proposed jury instruction. As the circuit court correctly found, the jury was 

fully instructed on all principles applicable to this matter, and the omission of the “eggshell 

plaintiff” instruction did not impede the jury’s ultimate determination. Most importantly,

the “eggshell plaintiff” instruction directly relates to the issue of causation and damages, 

and once again, the jury in this case never reached a determination as to causation or 

 

14 Accord Primm v. U.S. Fidelity & Guar. Ins. Corp., 324 Ark. 409, 922 

S.W.2d 319 (1996); Benn v. Thomas, 512 N.W.2d 537 (Iowa 1994).

15 Although West Virginia cases discuss the “eggshell plaintiff” instruction 

in the context of proximate cause, the “eggshell plaintiff” instruction is often included in 

the “Damages” section of pattern jury instructions. Therefore, because the jury also did 

not reach the issue of damages, the circuit court’s refusal to give the “eggshell plaintiff” 

instruction was equally proper on this basis.
19

damages as this was a defense verdict on standard of care. Therefore, we do not find an 

abuse of discretion in refusing to give this instruction to the jury.

B. Expert Witnesses

Next, Mr. Smith argues that the circuit court erred in allowing certain expert 

witnesses to testify, and also by excluding other expert witnesses. First, Mr. Smith 

contends that the circuit court erred by allowing the testimony of Respondents’ placental 

expert, Carolyn Salafia, M.D. Then, he asserts that the circuit erred when it struck his 

nursing expert, Patricia Spier, R.N. Finally, he argues that the circuit court erred in limiting 

the number of expert witnesses, by excluding the testimony of his expert, Dr. Bruce Ratliff. 

After setting out the appropriate standard of review for these particular issues, we will 

address each of these assignments of error in turn. 

When addressing a circuit court’s decision whether to allow expert witness 

testimony during a trial, this Court has held: “The admissibility of testimony by an expert 

witness is a matter within the sound discretion of the trial court, and the trial court’s 

decision will not be reversed unless it is clearly wrong.” Syl. pt. 6, Helmick v. Potomac 

Edison Co., 185 W. Va. 269, 406 S.E.2d 700 (1991), cert. denied, 502 U.S. 908, 112 S. Ct. 

301, 116 L. Ed. 2d 244 (1991). 

1. Testimony of Placental Pathologist Carolyn Salafia, M.D. Carolyn 

Salafia, M.D. (“Dr. Salafia”) was disclosed by Respondents as an expert in placental 
20

pathology. At trial, she was called to offer testimony on placental abruptions, her 

examination of the pathology specimens in the present case, and the effect the placental 

abruption and Mrs. Smith’s prior health issues had on delivering a viable baby in distress. 

The circuit court found that Dr. Salafia’s testimony was highly relevant, not unduly 

prejudicial, and was properly admitted at trial. Specifically, the circuit court noted, “Dr. 

Salafia’s testimony was necessary to explain the evidence in this case, including the cause 

of Mrs. Smith’s placental abruption and the laboratory findings of an anemic hematocrit 

and an elevated red blood cell count.” The circuit court also permitted Mr. Smith to call a 

rebuttal placental pathologist—he did not. 

On appeal, Mr. Smith alleges that the circuit court erred in failing to exclude 

the testimony of Dr. Salafia where it failed to offer any causal nexus between her 

interpretation of the placental pathology findings and the timing of the infant’s delivery. 

In particular, Mr. Smith states that Dr. Salafia’s testimony about Mrs. Smith’s placental 

abruption unfairly caused speculation that the infant was going to die regardless of when 

or how Dr. Clark performed the delivery. He further contends that Dr. Salafia’s testimony 

regarding placental abruptions was irrelevant and should not have been permitted at trial. 

He then argues that Dr. Salafia’s lengthy testimony concerning the fatal “acute placental 

abruption” had no connection to the issues in the case, and simply did not make it any more 

or less likely that the infant would have survived had she been delivered sooner. 

Respondents counter this assertion and note that, without Dr. Salafia’s testimony, the jury

would have inferred that Dr. Clark caused the placental abruption when she inserted the 
21

intrauterine catheter. Respondents contend that Dr. Salafia—a board-certified and 

fellowship-trained placental pathologist—offered highly relevant, informative testimony 

that was not duplicative or cumulative. 

We find that the circuit court was correct in allowing the testimony of Dr. 

Salafia. Rule 702 (a) of the West Virginia Rules of Evidence states that “[i]f scientific, 

technical, or other specialized knowledge will assist the trier of fact to understand the 

evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, 

skill, experience, training, or education may testify thereto in the form of an opinion or 

otherwise.” See, e.g., Cargill v. Balloon Works, Inc., 185 W. Va. 142, 405 S.E.2d 642

(1991); Jones v. Garnes, 183 W. Va. 304, 395 S.E.2d 548 (1990); Bd. of Educ. of 

McDowell County v. Zando, Martin & Milstead, Inc., 182 W. Va. 597, 390 S.E.2d 796

(1990);   W. Va. Dept. of Highways v. Thompson, 180 W. Va. 114, 375 S.E.2d 585 (1988).

Here, the circuit court determined that Dr. Salafia’s opinions would assist the jury in 

determining a fact at issue, namely, whether Dr. Clark caused the placental abruption when 

she inserted the intrauterine catheter. Because the circuit court found Dr. Salafia’s 

testimony would help the jury understand the evidence, it was well within its discretion to 

admit her testimony. 

Alternatively, it is important to note that the jury never reached a 

determination on causation since a defense verdict was returned on the issue of standard of 

care. Dr. Salafia was offered by the Respondents for the limited purpose of giving opinions 
22

related to causation. Dr. Salafia was not Respondents’ standard of care expert witness. 

Here, the jury had to resolve the issue of whether Dr. Clark and Cabell Huntington breached 

the standard of care, and if they did, whether their negligence caused the injuries suffered 

by Mr. Smith and his family. In this case, the jury’s verdict did not turn on the evidence 

presented by Dr. Salafia, because the jury found that Respondents did not breach the 

standard of care. As this Court has held, “[a] judgment will not be reversed because of the 

admission of improper or irrelevant evidence, when it is clear that the verdict of the jury 

could not have been affected thereby.” Syl. pt. 3, Graham v. Wallace, 214 W. Va. 178, 

588 S.E.2d 167 (2003) (quoting Syl. pt. 7, Starcher v. South Penn Oil Co., 81 W. Va. 587, 

95 S.E. 28 (1918)). Because Dr. Salafia’s testimony related to issues of causation, it did 

not affect the jury because the jury never reached the element of causation.

In the present case, it is undisputed that Mrs. Smith suffered a concealed

placental abruption contemporaneous with labor, and Dr. Salafia’s testimony was needed 

to explain the evidence in this case. Mr. Smith took the position that Dr. Clark caused the 

placental abruption by incorrectly inserting an intrauterine pressure catheter during Mrs. 

Smith’s labor and delivery. For that reason, we find that Dr. Salafia’s testimony was

necessary for rebuttal, and to explain how the placenta functions and how a concealed 

abruption can occur in the face of thrombophilia (a blood clotting abnormality) or some 

other natural cause. Because of this, it is clear that Dr. Salafia’s testimony was vitally 

important to rebut Mr. Smith’s contention that Dr. Clark caused the placental abruption 
23

with a medical device. For these reasons, we do not find error with the circuit court 

allowing Dr. Salafia’s testimony at trial. 

2. Striking Nursing Expert Patricia Spier, R.N. Mr. Smith next 

contends that the circuit court erred by striking his nursing expert, Patricia Spier, R.N. 

(“Nurse Spier”). Before the trial, the circuit court ruled that each party be permitted only 

one expert on standard of care for each specialty (i.e. one expert to testify on the standard 

of care for physicians, and one expert to testify on the standard of care for nurses). At trial, 

Mr. Smith’s physician expert, Dr. Richard Roberts, testified during his direct examination 

that the labor and delivery nurses at Cabell Huntington breached the standard of care when 

caring for Mrs. Smith. 

MR. REGAN: Based on your review of the medical record in 

this case, Doctor, what conclusions have you formed?

DR. ROBERTS: Well, my opinion is that the care she received 

on the day of her delivery did not adhere to an acceptable level 

of care expected both as an obstetrician as well as the nursing 

staff at Cabell Huntington. 

Cabell Huntington’s attorneys objected, and argued that because Dr. Roberts offered an 

opinion with regard to the nursing staff, Nurse Spier’s testimony would likely be 

duplicative. After this objection, the matter went to sidebar where Cabell Huntington’s 

counsel moved to strike Mr. Smith’s nursing expert, Nurse Spier—as said testimony would 

be duplicative of Dr. Roberts’ testimony. 
24

The jury was dismissed and counsel approached the bench where an in-depth 

discussion with the judge was had. During this discussion, Mr. Smith’s counsel was asked 

whether a limiting instruction should be given or whether striking the expert would be more 

appropriate. After asking the court to give a limiting instruction, counsel agreed that Dr. 

Roberts was qualified and capable of offering an opinion with regard to the nursing staff.

16

MR. REGAN: Your Honor, the plaintiff would intend to offer 

Dr. Roberts only on the medical standard of care as to the 

defendant doctor, and would suggest that the jury be instructed 

to disregard the statement about the hospital because that’s for 

another witness. And the [sic] Dr. Roberts will only be 

speaking about the doctor going forward. 

If that’s not acceptable to the defendants, then Dr. Roberts is 

qualified and capable of covering both, and he could do that. 

Mr. Smith’s counsel also acknowledged that, although counsel preferred a limiting 

instruction, it recognized that it was ultimately in the discretion of the court to decide. 

MR. REGAN: I mean, again, that was not our plan. We have 

a Nurse Spier on the way to cover those matters. So, I mean, 

we would strongly prefer that a curative instruction be given, 

the plaintiffs be allowed to proceed with one expert on the issue 

of medicine, one on the issue of nursing. But, you know, that 

is in the discretion of the Court. 

Ordinarily, “[a] litigant may not silently acquiesce to an alleged error, or 

actively contribute to such error, and then raise that error as a reason for reversal on 

appeal.” Syl. pt. 1, Maples v. W. Va. Dep’t of Comm., 197 W. Va. 318, 475 S.E.2d 410 

 

16 It should be noted that after the circuit court decided to strike Nurse Spier, 

Dr. Roberts was direct examined by Mr. Smith’s counsel, where he was given an 

opportunity to offer his standard of care opinions on the nursing staff at Cabell Huntington

and was cross-examined by counsel for Cabell Huntington.
25

(1996). See also Hopkins v. DC Chapman Ventures, Inc., 228 W. Va. 213, 719 S.E.2d 381 

(2011) (same); State v. Carey, 210 W. Va. 651, 558 S.E.2d 650 (2001) (same); State v. 

McIntosh, 207 W. Va. 561, 534 S.E.2d 757 (2000) (same). We find that when Mr. Smith’s 

counsel deferred to the court’s discretion on how to handle Nurse Spier, counsel essentially 

yielded their position and allowed the court to deal with the issue as necessary. 

Specifically, during sidebar, Mr. Smith’s counsel conceded that Dr. Roberts was more than 

qualified to offer an opinion regarding the nursing staff. As such, we find no abuse of 

discretion.

Moreover, it is well established that “once an expert witness is permitted to 

testify, it is within the province of the jury to evaluate his or her testimony, credentials, 

background and qualifications.” Graham v. Wallace, 208 W. Va. 139, 141, 538 S.E.2d 

730, 732 (2000) (citing Wilkinson v. Bowser, 199 W. Va. 92, 96 n. 5, 483 S.E.2d 92, 96 

n. 5 (1996)). “A party challenging a circuit court’s evidentiary rulings has an onerous 

burden because a reviewing court gives special deference to the evidentiary rulings of a 

circuit court.” Gentry v. Mangum, 195 W. Va. 512, 518, 466 S.E.2d 171, 177 (1995). Here, 

the circuit court ultimately determined that allowing Nurse Spier to testify would be 

cumulative and prejudicial to the other parties who were only allowed one standard of care 

expert. Mr. Smith now complains on appeal that Respondents honed in on Dr. Roberts’ 

lack of nursing qualifications on cross-examination and thereby prejudiced his client. 
26

This Court has previously held that “[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.” Syl. pt. 7, State 

ex rel. Weirton Med. Ctr. v. Mazzone, 214 W. Va. 146, 587 S.E.2d 122 (2002) (internal 

quotations and citations omitted). Here, the circuit court was adamant that each party be 

limited to one standard of care expert. Once Dr. Roberts—a qualified physician—opined 

about the nursing staff and their standard of care, the opinion could not be taken back, but 

a limiting instruction could have been given. The circuit court rationalized that if the court 

had allowed Nurse Spier to testify, Mr. Smith would have unfairly benefitted from having 

two qualified experts opining as to the nursing staff at Cabell Huntington. Rather than 

allow duplicative testimony, the court—within its discretion—decided to strike Nurse 

Spier as an expert. As the circuit court noted, like a bell that has been rung, the jury heard 

Dr. Roberts’ criticism of the nursing staff, and no curative instruction could change the 

effect on the jurors. Therefore, we find no error in the circuit court’s decision to strike 

Nurse Spier.

3. Excluding Dr. Bruce Ratcliff as an Expert Witness. Mr. Smith 

next asserts error in the circuit court’s decision to prohibit him from offering Dr. Bruce 

Ratcliff as a second standard of care expert witness at trial where the trial court permitted 

both Dr. Clark and the expert retained by the Respondents to opine about the standard of 

care. In other words, Mr. Smith contends that the court committed reversible error because 
27

he was limited to one expert on the standard of care whereas Respondents essentially had 

two experts: Dr. Clark, herself, and Dr. Manning, their standard of care expert witness. 

In October of 2015, Mr. Smith timely disclosed his experts: Dr. Roberts, as 

a standard of care and causation expert; and Nurse Patricia Spier, as a nursing standard of 

care expert. Fourteen months after the expert disclosure deadline, Mr. Smith disclosed Dr. 

Bruce Ratcliff, the chief of obstetrics at Cabell Huntington, and a long-time colleague of 

Dr. Clark. Respondents moved to strike and exclude Dr. Ratcliff as untimely, cumulative, 

and unfairly prejudicial. By agreed order, the circuit court ruled that Mr. Smith needed to 

choose one expert to testify as to the standard of care with regard to Dr. Clark, and one 

expert with regard to Cabell Huntington’s nursing staff. Ultimately, Mr. Smith chose Dr. 

Roberts and Nurse Spier, respectively, as his standard of care experts. 

With regard to limiting the number of experts, this Court has repeatedly held 

that courts have wide authority to do so.

This Court has held that “‘“[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.”

Syl. pt. 5, Casto v. Martin, 159 W. Va. 761, 230 S.E.2d 722 

(1976) citing Syl. pt. 10, State v. Huffman, 141 W. Va. 55, 87 

S.E.2d 541 (1955).’ Syllabus Point 2, State v. Rector, 167 

W. Va. 748, 280 S.E.2d 597 (1981).” Syllabus Point 3, State 

v. Oldaker, 172 W.Va. 258, 304 S.E.2d 843 (1983). 

Mazzone, 214 W. Va. at 154, 587 S.E.2d at 130. Even more, in Mazzone this Court noted:

It is apparent that the circuit court felt that a ruling limiting the 

number of experts that would be permitted to testify at trial was 

needed because of the excessive number of witnesses 
28

identified by the petitioners. The court obviously sought to 

prevent duplicative and cumulative testimony. Such a ruling 

is certainly permitted and appropriate under the circumstances.

Id. at 154-55, 587 S.E.2d at 130-31. However, in addition to recognizing the authority of 

a circuit court to limit the number of expert witnesses, the Court also emphasized the 

difference between a defendant/physician and a retained expert/physician. Although some 

aspects of a defendant/physician and a retained expert/physician’s testimony is 

inexplicably intertwined, a defendant/physician is essentially testifying on his or her own 

behalf, and the testimony is often seen as self-serving. As such, if a defendant/physician 

chooses to testify, he or she opens himself or herself up to cross-examination by opposing 

counsel. This Court addressed the issue, and specifically noted that

[w]hile a defendant physician can certainly give 

testimony as an expert witness on his own behalf, see 32 C.J.S. 

Evidence § 637 (1996), we believe that it would be unduly 

harsh and restrictive to prohibit that same defendant physician 

from presenting the testimony of an independently-retained 

expert on the basis that the testimony would be cumulative. A 

medical malpractice case presents a unique situation wherein 

the testimony of a defendant physician often qualifies as expert

testimony even when he or she only intends to testify as a fact 

witness. In that regard, a defendant physician cannot usually 

explain his or her conduct without giving some testimony that 

is expert in nature.

Id. at 155, 587 S.E.2d at 131. 

Here, all parties had an opportunity to disclose their experts in accordance 

with the Scheduling Order. Early on in the litigation, the circuit court deemed that having 

too many expert witnesses would have caused the focus of the case to be upon the quantity, 
29

and not the quality of the expert testimony.17 As such, the court took a stance early to limit 

experts in this matter to prevent duplicative and cumulative testimony. Once asked by the 

court to choose one standard of care expert as to Dr. Clark, Mr. Smith chose Dr. Roberts, 

not Dr. Ratcliff. Therefore, the circuit court did not strike or preclude Dr. Ratcliff. Rather, 

the circuit court properly exercised its authority to instruct the parties to limit the number 

of standard of care experts who would be called to testify. We find there was no error 

committed when the trial court limited the number of experts in this matter.

C. Dr. Clark’s Prior Testimony 

Mr. Smith next contends that the circuit court erred in excluding Dr. Clark’s 

testimony from a prior lawsuit by way of a pretrial ruling on a Rule 404(b) motion in limine. 

This excluded evidence pertained to Dr. Clark’s prior testimony in which she discounted

the value of certain American College of Obstetricians and Gynecologists (“ACOG”) 

standards while testifying in a previous lawsuit. Mr. Smith complains that in the current 

lawsuit, Dr. Clark was permitted to testify in which she vouched for the authority of ACOG 

standards in the instant matter. In his brief, Mr. Smith asserts that the testimony was 

relevant as a tool of impeachment and as a way of illustrating her contradictory statements. 

Respondents contend that the excluded ACOG testimony dealt with breech births—which 

is not at issue in this case—and therefore would not be contradictory, but rather would be 

 

17 In his brief, Mr. Smith did not object to the circuit court’s authority to limit 

the number of experts; rather, Mr. Smith’s argument focused on the fact that both Dr. Clark 

and her retained expert were allowed to opine that Dr. Clark met the standard of care. 
30

irrelevant, prejudicial, and would potentially be used to bring out information regarding 

Dr. Clark’s litigation history. 

Prior to trial, Respondents timely moved, in limine and pursuant to West 

Virginia Rules of Evidence 401, 402, 403, and 404, to exclude any evidence, testimony or 

reference at trial to any prior lawsuits involving Dr. Clark. In response, Mr. Smith filed a 

notice of intent to use 404(b) evidence at trial, but the court denied Mr. Smith’s request. 

We agree with the ruling of the circuit court to exclude this evidence. 

This court has held that “[a] trial court’s evidentiary rulings, as well as its 

application of the Rules of Evidence, are subject to a review under an abuse of discretion 

standard.” Syl. pt. 4, State v. Rodoussakis, 204 W. Va. 58, 511 S.E.2d 469 (1998). “Our 

function . . . is limited to the inquiry as to whether the trial court acted in a way that was so 

arbitrary and irrational that it can be said to have abused its discretion.” State v. McGinnis, 

193 W. Va. 147, 159, 455 S.E.2d 516, 528 (1994). 

In Syllabus point 8 of TXO Production Corp. v. Alliances Resources Corp., 

187 W. Va. 457, 419 S.E.2d 870 (1992), this Court held:

Protection against unfair prejudice from evidence 

admitted under Rule 404(b) of the West Virginia Rules of 

Evidence [1985] is provided by: (1) the requirement of Rule 

404(b) that the evidence be offered for a proper purpose; (2) 

the relevancy requirement of Rule 402—as enforced through 

Rule 104(b); (3) the assessment the trial court must make under 

Rule 403 to determine whether the probative value of the 
31

similar acts evidence is substantially outweighed by its 

potential for unfair prejudice; and, (4) Rule 105, which 

provides that the trial court shall, upon request, instruct the jury 

that the similar acts evidence is to be considered only for the 

proper purpose for which it was admitted.

Here, Mr. Smith argues that he should have been allowed to use Dr. Clark’s 

prior testimony regarding an ACOG bulletin as a way of impeaching her testimony and 

attacking her credibility as a witness. We disagree. The first inquiry is whether this 

evidence can be admitted under Rule 403 of the West Virginia Rules of Evidence. Rule 

403 states that “[t]he court may exclude relevant evidence if its probative value is 

substantially outweighed by a danger of one or more of the following: unfair prejudice, 

confusing the issues, misleading the jury, undue delay, wasting time, or needlessly 

presenting cumulative evidence.” Under this rule, relevancy needs to be determined first. 

Then, if the evidence is determined to be relevant, the second inquiry is whether the

probative value is substantially outweighed by its prejudice.

“Evidence which is irrelevant and immaterial and has no probative value in 

determining any material issue is inadmissible and should be excluded.” Smith v. Edward 

M. Rude Carrier Corp., 151 W. Va. 322, 331, 151 S.E.2d 738, 743 (1966). First, we find 

that this testimony could not be used to impeach Dr. Clark, because the ACOG bulletins 

were based on different topics and therefore Dr. Clark did not contradict herself. The briefs 

explain that, in a prior and unrelated case, Dr. Clark testified about an ACOG bulletin that 

addressed breech births. However, breech births were not at issue in this case and the 
32

ACOG bulletin at issue in the prior case was not the ACOG bulletin at issue in this case. 

Because of the lack of contradiction, we do not see how Mr. Smith could have used this 

testimony to impeach Dr. Clark. Because the testimony regarding breech births is wholly 

unrelated to any issues in the present case, the testimony is clearly irrelevant and fails to 

meet the first prong of a Rule 403 analysis. 

Next, we examine whether the testimony could be admitted under Rule 

404(b) of the West Virginia Rules of Evidence. Rule 404(b) provides that “[e]vidence of 

a crime, wrong, or other act is not admissible to prove a person’s character in order to show 

that on a particular occasion the person acted in accordance with the character.” However, 

it allows for the admission of such evidence to show “motive, opportunity, intent, 

preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Id. 

Here, the prior ACOG testimony that Mr. Smith wishes to admit, came from 

previous lawsuits involving Dr. Clark. Mr. Smith contends that he wanted to use the prior 

testimony as an impeachment method; however, the testimony could be used to shed light 

on Dr. Clark’s litigation history. The purpose of Rule 404(b) is to prevent the finding of 

liability or guilt in the present litigation based upon evidence alleging that a person has 

previously committed a crime or bad act. Evidence of the commission of other “offenses” 

or “acts of misconduct” is inadmissible to prove the party acted consistent with such prior 

behavior in the case at hand. See Louis J. Palmer, Jr., Robin Jean Davis, and Franklin D. 

Cleckley, Handbook on Evidence for West Virginia Lawyers, § 404.04[1][a] at 368-69 (6th
33

ed. 2015). See, e.g., State v. McDaniel, 211 W. Va. 9, 560 S.E.2d 484 (2001) (evidence 

of defendant’s prior crimes and bad acts was not admissible to prove that he acted in a 

similar manner in the current trial). Here, allowing Dr. Clark’s prior testimony would do 

just that—it would inform the jury of Dr. Clark’s prior litigation history. The jury, in turn, 

may equate her prior medical professional liability lawsuits with guilt in the current case. 

The issues were fully briefed below, and the court held a 404(b) in-camera 

hearing after which it concluded that Mr. Smith “failed to adequately establish the 

relevance of this evidence in this particular case and how the probative value of the 

evidence would outweigh its prejudicial effect.” Thus, after reviewing all of the evidence, 

we find that the precluded testimony was irrelevant and unduly prejudicial, and the circuit 

court committed no error by excluding this testimony. 

D. Testimony on ACOG’s “Thirty-Minute Rule”

Mr. Smith argues that the circuit court erred when it admitted Dr. Frank 

Manning’s (Dr. Clark’s expert witness) allegedly undisclosed opinions on ACOG’s “thirtyminute rule” because that standard was completely irrelevant to the timing of the infant’s

delivery. According to Mr. Smith, Dr. Manning introduced his opinions on the “thirtyminute rule” for the first time at trial, and therefore, the opinions constituted surprise and 

trial by ambush. Respondents rebut this, and note that the circuit court properly allowed 

Dr. Manning to offer testimony on ACOG’s “thirty-minute rule” because the first 

testimonial evidence pertaining to the rule offered at trial occurred in Mr. Smith’s case-in-
34

chief during the direct examination of his expert, Dr. Roberts.18 Therefore, Dr. Manning 

had the right to rebut Dr. Roberts’ testimony. 

Here, Mr. Smith attempts to characterize the admission of Dr. Manning’s 

ACOG testimony as trial by ambush and unfair surprise— but this could not be further 

from the truth. Rather, it was Mr. Smith’s expert, Dr. Roberts, who offered the first 

testimonial evidence at trial regarding ACOG’s “thirty-minute rule.” Per the trial 

transcript, Mr. Smith’s counsel objected to the “thirty-minute rule” line of questioning 

during the direct examination of Dr. Manning. The judge sustained the objection, and the 

examination of Dr. Manning continued. After Mr. Smith’s counsel conducted crossexamination, the jury was released for lunch. At this time, counsel for Dr. Clark requested 

to make a very brief voucher for the record with regard to the ACOG “thirty-minute rule” 

to preserve for appeal. The judge allowed Dr. Manning to testify outside the presence of 

the jury for appellate purposes, and noted that he would take this issue under advisement 

during the lunch break.

According to the transcript, the judge noted that when Mr. Smith’s counsel 

first objected to the ACOG “thirty-minute rule,” counsel indicated that the issue was first 

introduced with Dr. Roberts on cross-examination. After reviewing the trial testimony 

 

18 ACOG’s “thirty-minute rule” was mentioned in opening statements. Then, 

it was first offered as testimonial evidence during the direct examination of Dr. Roberts. 

Mr. Smith’s counsel questioned Dr. Roberts on the “thirty-minute rule,” and Dr. Roberts 

offered his opinions. 
35

during a lunch break, the judge realized that the ACOG “thirty-minute rule” was actually 

first presented with Dr. Roberts on direct examination. 

THE COURT: With regard to the – Dr. Manning’s testimony 

on the ACOG rule, it was my understanding when counsel 

approached the bench initially at the objection, and I believe 

Mr. Regan indicated that this issue was injected with Dr. 

Roberts on cross-examination for the first time, thereby 

injecting it into the trial, and I don’t think that was – at least 

that was my understanding. Is that correct, sir?

MR REGAN: Well, the way it went is, I said, “Look. Dr. 

Manning isn’t disclosed to talk about this, and it hasn’t been 

part of his pretrial disclosed opinions and it was in his 

deposition.” And they said, “Oh. Well, Roberts talked about 

it, so now we want to respond to that.” And I said, “Well, you 

brought it up with Roberts, and that that is not a permissible 

technique to get an undisclosed opinion in.” In other words, I 

didn’t have my expert talk about it pretrial. Now I want to get 

it in with him, so let me just shoot something at the other expert 

to say, “Well, now it’s been brought up.” I mean, if you could 

do that, it would be like an open door for all kinds of 

undisclosed opinions. 

THE COURT: Okay. That was my understanding, but – so I 

went back and pulled Dr. Roberts’ testimony to see exactly 

how it played out with this 30-minute rule from ACOG. And 

it was actually brought up on his direct examination. And he 

was questioned pretty extensively about it in direct, and then 

he was cross-examined on it afterwards. So – and I have that 

transcript here. So, with that having been said, I don’t think it’s 

an overly complicated issue. I think the jury – obviously, we 

took the testimony outside the presence of the jury, and all 

counsel seems to be very familiar with it. I think there weren’t 

any big surprises here with what’s going to be said. I am going 

to allow him to testify in front of the jury on this issue, but 

we’re going to keep it very limited, very restricted, just to 

basically what we did.

Because Dr. Roberts was “questioned pretty extensively” on this rule during direct 

examination, “and then was cross-examined on it afterwards,” the judge decided to allow 
36

Respondents’ expert, Dr. Manning, to testify on the ACOG “thirty-minute rule” in the 

presence of the jury. However, the judge did note that he was going to keep the testimony 

“very limited” and “very restricted” to what was done earlier outside of the jury’s presence. 

In Syllabus point 1 of McDougal v. McCammon, 193 W. Va. 229, 455 S.E.2d 

788 (1995), this Court held:

The West Virginia Rules of Evidence and the West 

Virginia Rules of Civil Procedure allocate significant 

discretion to the trial court in making evidentiary and 

procedural rulings. Thus, rulings on the admissibility of 

evidence . . . are committed to the discretion of the trial court. 

Absent a few exceptions, this Court will review evidentiary 

and procedural rulings of the circuit court under an abuse of 

discretion standard.

Syl. pt. 1, in part, McDougal. 

Mr. Smith analogizes this situation to the factual scenario in Graham v. 

Wallace, 214 W. Va. 178, 588 S.E.2d 167 (2003), where the court found trial by ambush 

and unfair surprise. As such, we find it significant that Mr. Smith’s counsel failed to 

exercise options available to prevent or lessen any unfair surprise resulting from this 

testimony. In fact, this Court “explicitly [held] that in order to preserve the claim of unfair 

surprise for appeal, the aggrieved party must at the very least move for a continuance or 

recess.” McDougal, 193 W. Va. at 239-40, 455 S.E.2d at 798-99. Furthermore, as we 

suggested in State ex rel. Rusen v. Hill, 193 W. Va. 133, 141, 454 S.E.2d 427, 435 (1994): 

Our cases and the West Virginia Rules of Evidence have 

declared an implicit preference for a continuance when there 
37

has been a discovery violation. See W. Va. R. Evid. 403 

(“unfair surprise” is not listed as a ground for exclusion). See 

State v. Barker, 169 W. Va. 620, 623, 289 S.E.2d 207, 210 

(1982) (“[e]ven if this were a ‘proper’ case in which to claim 

surprise, the appellant failed to move for a continuance, and, 

therefore, waived his right to one”); Martin v. Smith, 190 

W. Va. 286, 291, 438 S.E.2d 318, 323 (1993) (“even given that 

the admission of Dr. Adams’ testimony prejudiced Dr. Smith’s 

case, we find such prejudice far from incurable. Dr. Smith 

could have easily moved for a continuance in order to secure a 

comparable expert witness”).

Here, although counsel for Mr. Smith orally objected to the testimony at trial, 

a recess or continuance was never requested. Even assuming, for the sake of argument, 

that this was a situation where claiming trial by ambush or unfair surprise was proper, 

counsel never took the appropriate action. Counsel for Mr. Smith could have easily moved 

for a continuance or a recess, but failed to do so. As such, we find no error in allowing Dr.

Manning to offer testimony of ACOG’s “thirty-minute rule.”

As noted by Mr. Smith in his brief, “one of the purposes of the discovery 

process under our Rules of Civil Procedure is to eliminate surprise. Trial by ambush is not 

contemplated by the Rules of Civil Procedure. Nevertheless, a new trial will not be granted 

unless the moving party was prejudiced.” Id. at 236-37, 455 S.E.2d at 795-96. Once the 

record is closely examined, it is clear that Dr. Manning only testified on the ACOG “thirtyminute rule” after it had been brought up on the direct examination of Dr. Roberts. This 

was not an undisclosed opinion that surprised Mr. Smith’s counsel or that prejudiced them 

in any way. The judge took this issue under advisement, examined the trial record, and 
38

limited the testimony in time and scope. Therefore, we do not find that the circuit court 

committed reversible error by allowing testimony regarding ACOG’s “thirty-minute rule.” 

Taking this, along with our conclusion that the circuit court acted within its authority and 

discretion in allowing the testimony, we conclude that no abuse of discretion occurred.

E. Failure to Strike Juror No. 82

Mr. Smith next asserts reversible error for failure to strike, for cause, Juror 

No. 82, who commented that Dr. Clark’s daughter was a former employee at Juror No. 82’s 

dry cleaning business and also that Cabell Huntington’s lawyers had been long-standing 

customers of her dry cleaning business. Because the circuit court refused to strike Juror 

No. 82 for cause, Mr. Smith was required to use a peremptory strike to remove the juror 

from the jury pool. Mr. Smith contends that, because he was compelled to use a peremptory 

strike on Juror No. 82, he was also forced to keep another juror upon whom he may have 

exercised the strike and this amounts to reversible error. We disagree. 

Upon our review of Juror No. 82’s voir dire and the circuit court’s 

conclusions regarding the same, we find no error. “The determination of whether a 

prospective juror should be excused to avoid bias or prejudice in the jury panel is a matter 

within the sound discretion of the trial judge.” O’Dell v. Miller, 211 W. Va. 285, 288, 565 

S.E.2d 407, 410 (2002) (internal citation omitted).

Often, trial judges are faced with the task of deciding 

whether to keep a juror who may have biases or prejudices.

“[T]he process of identifying bias or prejudice, except in clear 
39

cases, can be a delicate one where the conclusion is finally 

drawn from the totality of the responses.” See Daniel J. 

Sheehan, Jr. and Jill C. Adler, supra, at 634. Therefore, when 

considering whether to excuse a prospective juror for cause, a 

trial court is required to consider the totality of the 

circumstances and grounds relating to a potential request to 

excuse a prospective juror, to make a full inquiry to examine 

those circumstances and to resolve any doubts in favor of 

excusing the juror. When considering whether a prospective 

juror is prejudiced or biased, the trial court must consider all 

the circumstances surrounding the juror. The trial court must 

not only consider the prospective juror's promise to be fair but 

all of the circumstances at issue.

Id. at 289, 565 S.E.2d at 411. This Court has noted that 

[t]he challenging party bears the burden of persuading 

the trial court that the juror is partial and subject to being 

excused for cause. An appellate court only should interfere 

with a trial court’s discretionary ruling on a juror’s 

qualification to serve because of bias only when it is left with 

a clear and definite impression that a prospective juror would 

be unable faithfully and impartially to apply the law.

Syl. pt. 6, State v. Miller, 197 W. Va. 588, 476 S.E.2d 535 (1996). In particular, it has been 

recognized that “[b]ias, in its usual meaning, is an inclination toward one side of an issue 

rather than to the other, but to disqualify, it must appear that the state of mind of the juror 

leads to the natural inference that he will not or did not act with impartiality.” Id. at 288, 

565 S.E.2d at 410 (Emphasis added). 

In State v. White, 228 W. Va. 530, 722 S.E.2d 566 (2011), it was determined 

that a prospective juror occasionally worked for the lead detective’s mother. Because of 

this connection, the defendant moved to strike. Id. at 538, 722 S.E.2d at 574. The 

prospective juror stated that although she sometimes cleaned the mother’s house, she only
40

knew the detective by his name. Id. Moreover, when questioned whether her relationship 

with the detective’s mother would affect the way she viewed the evidence, she answered 

no. Id. The circuit court overruled the defendant’s objection, and decided that the potential 

juror’s voir dire did not “really establish a personal relationship” between her and the 

detective. Id. “And even if it did, her answer to the question was that it would not influence 

her decision making in the case.” Id. On appeal, this Court found no error in the circuit 

court’s decision to not disqualify the prospective juror. Id. The Court stated that the juror 

had no relationship with the detective, and found “nothing in her responses to indicate that 

she had a ‘fixed opinion’ of this case or that she could not ‘judge impartially the guilt of 

the defendant.’” Id. (quoting Syl. pt. 4, in part, State v. Miller, 197 W. Va. 588, 476 S.E.2d 

535 (1996)).

We find no error in the circuit court’s decision to overrule Mr. Smith’s 

objection to Juror No. 82. Just as the prospective juror in State v. White, Juror No. 82 had 

a working relationship with a relative of an individual closely involved in the case—in 

White, a lead detective; here, a defendant. The basis for Mr. Smith’s argument is two-fold: 

(1) Dr. Clark’s daughter previously worked at Juror No. 82’s dry-cleaning business; and 

(2) Juror No. 82’s dry-cleaning business provided services to Cabell Huntington’s 

attorneys and their law firm. During her individual voir dire, Juror No. 82 was questioned 

extensively by Mr. Smith’s counsel, in part, as follows:

Q. Not every juror is right for every single lawsuit that comes 

along. And, I guess, my first question would be, do you have 

any concerns about being able to sit on this jury such that, 
41

because of your experience with Dr. Clark’s daughter and her 

family, you may tend to favor Dr. Clark’s side of the case as 

we begin? You know, not deliberately but just because you 

have that experience and because it’s sort of, you know, there. 

A. Right. Right. I don’t believe that I would. I would try to 

be as fair as I could. 

Q. Do you know Dr.Clark?

A. I do not know her. 

Q. Okay. Have you ever had occasion to interact with her at 

all?

A. You know, I don’t even believe I ever met her the whole 

time Katie [Dr. Clark’s daughter] worked for me. 

. . .

Q. [T]he question becomes, you know, again, you have this 

experience and do you think that, try as you might, to put all 

that aside, do you have concerns that even with all the effort 

you still may have some predisposition towards favoring a 

client that they [Cabell Huntington’s attorneys] represent?

A. I don’t think I would. 

After finishing the individual voir dire for Juror No. 82, Mr. Smith’s counsel 

moved to strike Juror No. 82 for cause due to her acquaintance with Dr. Clark’s daughter, 

and because certain lawyers from the firm representing Cabell Huntington were customers 

of her dry cleaning business. The circuit court overruled the objection and explained that 

Juror No. 82 did not indicate any bias or prejudice, and upon questioning, she noted that 

she would be impartial and fair. Based on this information, the circuit court refused to 

strike Juror No. 82 for cause, and Mr. Smith’s counsel then used a preemptory strike to 

keep Juror No. 82 from sitting on the jury. 
42

The record in the instant case shows that Juror No. 82 never met Dr. Clark 

and there was no evidence that the juror was partial to Dr. Clark or Cabell Huntington. 

Although Mr. Smith attempted to elicit biases from Juror No. 82 during voir dire, the juror 

never indicated any evidence of bias or prejudice. In fact, Juror No. 82 asserted that she 

would examine the evidence and be “as fair as [she] could.” Upon our review of the voir 

dire testimony, and the evidence before us, we can establish neither a bias toward Dr. 

Clark’s daughter, nor a bias toward Cabell Huntington’s attorneys. Furthermore, just as 

prospective juror’s testimony in State v. White, Juror No. 82’s testimony clearly shows that 

she would not be influenced in this case, and would not be partial toward any party. 

Therefore, when examining the totality of the evidence, we find no error.

F. Verdict Not Against the Clear Weight of the Evidence

The last issue raised by Mr. Smith is that the verdict was against the clear 

weight of the evidence. More specifically, Mr. Smith argues that the case was tried under 

improper instruction, and that the evidence at trial did not match with the conclusion that 

the jury reached. Respondents disagree, and maintain that the jury carefully considered the 

evidence presented to it at trial, found that Mrs. Smith was fully dilated at the time of 

attempted delivery, and concluded that there was no breach of the standard of care. 

This Court held, in Syllabus point 9 of Neely v. Belk Inc., 222 W. Va. 560, 

668 S.E.2d 189 (2008): “When a case involving conflicting testimony and circumstances 

has been fairly tried, under proper instructions, the verdict of the jury will not be set aside 
43

unless plainly contrary to the weight of the evidence or without sufficient evidence to 

support it.” Further, 

in determining whether there is sufficient evidence to 

support a jury verdict the court should: (1) consider the evidence 

most favorable to the prevailing party; (2) assume that all 

conflicts in the evidence were resolved by the jury in favor of 

the prevailing party; (3) assume as proved all facts which the 

prevailing party’s evidence tends to prove; and (4) give to the 

prevailing party the benefit of all favorable inferences which 

reasonably may be drawn from the facts proved.

Syl. pt. 10, id.

In a medical professional liability case, where the Court reinstated a defense 

verdict rendered by a jury, this Court stated:

An essential element of our judicial system is the right of a 

party, in most cases, to request a jury of his or her peers to 

render a verdict based upon the evidence and testimony 

presented. Because of the jury’s unique ability to see the 

evidence and judge the demeanor of the witnesses on an 

impartial basis, a jury verdict is accorded great deference. It is 

the province of the jury to weigh the testimony and to resolve 

questions of fact when the testimony conflicts[.]

McNeely v. Frich, 187 W. Va. 26, 29, 415 S.E.2d 267, 270 (1992). 

Although subjecting the trial court’s decision to review for an abuse of 

discretion, we also noted in In re State Public Building Asbestos Litigation that a new trial 

should rarely be granted and then granted only where it is “‘reasonably clear that prejudicial 

error has crept into the record or that substantial justice has not been done.’” In re State 
44

Pub. Bldg. Asbestos Litig., 193 W. Va. at 124, 454 S.E.2d at 418 (quoting 11 Charles Alan 

Wright and Arthur R. Miller, Federal Practice and Procedure § 2803 at 32–33). Accord

Morrison v. Sharma, 200 W. Va. 192, 194, 488 S.E.2d 467, 470 (1997) (same). 

In Shiel v. Ryu, 203 W. Va. 40, 506 S.E.2d 77 (1998), this Court addressed, 

in detail, the province of a jury and the importance a jury plays when evaluating evidence 

during a trial.

While syllabus point three of Asbestos Litigation

authorizes a trial court to weigh the evidence in the context of 

granting a new trial, such authorization does not obviate the 

essential role of the jury in resolving conflicting evidence. We 

have consistently maintained: “‘It is the peculiar and exclusive 

province of a jury to weigh the evidence and to resolve 

questions of fact when the testimony of witnesses regarding 

them is conflicting and the finding of the jury upon such facts 

will not ordinarily be disturbed.’ Syllabus Point 2, Skeen v. C 

and G Corporation, 155 W.Va. 547, 185 S.E.2d 493 (1971).” 

Syl. Pt. 4, Young v. Ross, 157 W. Va. 548, 202 S.E.2d 622 

(1974). Syllabus point two of French v. Sinkford, 132 W. Va. 

66, 54 S.E.2d 38 (1948) explains: “Where, in the trial of an 

action at law before a jury, the evidence is conflicting, it is the 

province of the jury to resolve the conflict, and its verdict 

thereon will not be disturbed unless believed to be plainly 

wrong.”

Here, we find that Mr. Smith has failed to put forth anything in the record 

that would warrant overturning the verdict rendered by the jury. When analyzing whether 

a verdict is against the clear weight of the evidence, “every reasonable and legitimate 

inference, fairly arising from the evidence in favor of the party for whom the verdict was 

returned, must be considered, and those facts, which the jury might properly find under the 
45

evidence, must be assumed as true.” Syl. pt. 12, Neely v. Belk Inc., 222 W. Va. 560, 668 

S.E.2d 189 (2008). The record presented to us reveals that this case was fairly tried. While

conflicting evidence was presented below—specifically with regard to Mrs. Smith’s 

dilation—all parties presented competent experts, credible witnesses, and sufficient 

evidence over the course of an eight-day trial. Both experts and lay witnesses were crossexamined, and fair evidentiary rulings were made thoughtfully by the court. Viewing the 

evidence in a light most favorable to the Respondents, the record illustrates that the jury 

heard testimony by Mr. Smith’s experts and lay witnesses regarding his theory of “timing” 

as it pertains to the labor and delivery, and ultimately, the jury credited and accepted Dr. 

Clark’s testimony that a vaginal delivery was attempted because she was the physician in 

the room who physically examined Mrs. Smith and noted that she was fully dilated; that 

she used forceps to assist in the delivery and she would not have been able to do so if Mrs. 

Smith was not fully dilated; and that in her medical judgment, she first tried a vaginal 

delivery in an attempt to deliver the infant faster. 

After reviewing all reasonable and legitimate inferences in the Respondents’ 

favor, we conclude that the verdict rendered in this case in Respondent’s favor was not 

“against the clear weight of the evidence,” and the verdict shall stand. It has been wellestablished in this Court’s case law that “[i]t is the peculiar and exclusive province of a 

jury to weigh the evidence and to resolve questions of fact when the testimony of witnesses 

regarding them is conflicting and the finding of the jury upon such facts will not ordinarily 

be disturbed.” Syl. pt. 5, Grimmett v. Smith, 238 W. Va. 54, 792 S.E.2d 65 (2016) (quoting
46

Syl. pt. 2, Skeen v. C and G Corp., 155 W. Va. 547, 185 S.E.2d 493 (1971)). It is not the 

province of this Court to invade the jury’s determination when it is clear that the verdict

was based on a reasonable interpretation of the evidence presented. As such, we find that 

the verdict in this case should be upheld.19

IV.

CONCLUSION

For the reasons set forth above, we affirm the November 12, 2017 order of 

the Circuit Court of Cabell County denying Mr. Smith’s motion for a new trial and renewed 

motion for judgment as a matter of law. 

Affirmed.

 

19 In light of our holding—that the verdict in favor of the Respondents should 

be upheld—we need not address Dr. Clark’s cross-assignment of error regarding the denial 

of her motion for judgment as a matter of law.