IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2023 Term

_______________

No. 21-0830

_______________

ROBERT D. TOLER,

Plaintiff Below, Petitioner,

V.

CORNERSTONE HOSPITAL OF HUNTINGTON, LLC,

Defendant Below, Respondent.

_____________________________________________

Appeal from the Circuit Court of Cabell County

The Honorable Gregory L. Howard, Judge

Civil Action No. 19-C-196

AFFIRMED

_____________________________________________

Submitted: March 21, 2023

Filed: June 15, 2023

Steven S. Wolfe, Esq. Richard D. Jones, Esq.

Wolfe, White & Associates Amy Humphreys, Esq.

Logan, West Virginia Jason A. Proctor, Esq.

Attorney for Petitioner Flaherty Sensabaugh Bonasso PLLC

Charleston, West Virginia

Attorneys for Respondent

JUSTICE BUNN delivered the Opinion of the Court.

CHIEF JUSTICE WALKER AND JUSTICE WOOTON dissent and reserve the right to 

file dissenting opinions.

FILED

June 15, 2023

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
i

SYLLABUS BY THE COURT

1. “The party seeking the protections of the peer review privilege bears 

the burden of establishing its applicability by more than a mere assertion of privilege.” 

Syllabus point 3, State ex rel. Wheeling Hospital, Inc. v. Wilson, 236 W. Va. 560, 782 

S.E.2d 622 (2016).

2. “To determine whether a particular document is protected by the peer 

review privilege codified at W. Va. Code § 30-3C-3 (1980) (Repl. Vol. 2015), a reviewing 

court must ascertain both the exact origin and the specific use of the document in question. 

Documents that have been created exclusively by or for a review organization, or that 

originate therein, and that are used solely by that entity in the peer review process are 

privileged. However, documents that either (1) are not created exclusively by or for a 

review organization, (2) originate outside the peer review process, or (3) are used outside 

the peer review process are not privileged.” Syllabus point 1, State ex rel. Wheeling 

Hospital, Inc. v. Wilson, 236 W. Va. 560, 782 S.E.2d 622 (2016).

3. “The curative admissibility rule allows a party to present otherwise 

inadmissible evidence on an evidentiary point where an opponent has ‘opened the door’ by 

introducing similarly inadmissible evidence on the same point. Under this rule, in order to 

be entitled as a matter of right to present rebutting evidence on an evidentiary fact: (a) The 

original evidence must be inadmissible and prejudicial, (b) the rebuttal evidence must be 
ii

similarly inadmissible, and (c) the rebuttal evidence must be limited to the same 

evidentiary fact as the original inadmissible evidence.” Syllabus point 10, State v. Guthrie, 

194 W. Va. 657, 461 S.E.2d 163 (1995).
1

BUNN, Justice:

Petitioner Robert D. Toler appeals from orders entered September 15, 2021,

and March 20, 2020, by the Circuit Court of Cabell County. In the 2021 order, the circuit 

court entered judgment on a jury verdict in favor of the Respondent, Cornerstone Hospital 

of Huntington, LLC (“Cornerstone”). The verdict was rendered in Mr. Toler’s lawsuit 

seeking damages for injuries he sustained while visiting a patient at Cornerstone. The 

circuit court’s 2020 order protected from discovery an incident report in which a 

Cornerstone employee allegedly described the condition of the patient’s room immediately 

following Mr. Toler’s injury. In that order, the circuit court applied the protections afforded 

by the peer review privilege to the incident report. This ruling also precluded the parties 

from disclosing the incident report during the trial of this case.

On appeal to this Court, Mr. Toler argues that the circuit court erred by 

finding that Cornerstone’s incident report is protected by the peer review privilege set forth 

in West Virginia Code §§ 30-3C-1 to -5. Cornerstone contends that its incident report is 

protected by the peer review privilege because its employee prepared the report exclusively 

for its own use in its internal quality assurance and facility maintenance review process.

We conclude that the circuit court did not err in ruling that the peer review 

privilege protects Cornerstone’s incident report from discovery. Further, the circuit court 

did not err by entering judgment on the jury’s verdict in favor of Cornerstone because Mr. 
2

Toler failed to rebut Cornerstone’s assertion of the peer review privilege. Therefore, we 

affirm the circuit court’s March 20, 2020 and September 15, 2021 orders.

I.

FACTUAL AND PROCEDURAL HISTORY

On January 7, 2019, Mr. Toler was visiting his girlfriend, who was a patient 

at Cornerstone. Mr. Toler spent the night in a recliner chair in her room to help take care 

of her. While getting up from the chair in her room, Mr. Toler fell and broke his femur.

1

When various medical personnel, both at Cornerstone and the emergency room at St. 

Mary’s Medical Center where Mr. Toler was transported for treatment, asked him what 

had caused the fall, Mr. Toler claimed that his leg gave way and that he thought it was a 

charley horse. Two Cornerstone nurses heard Mr. Toler fall and, after checking on him, 

one of the nurses reported the incident to the house supervisor, Nurse Jeff Hall.

Nurse Hall went to the patient’s room to check on Mr. Toler and then 

prepared an incident report documenting his fall. Mr. Toler seems to believe that the 

incident report supports his later description of the circumstances of his fall as being caused 

by a roll of tape left on the floor of the patient’s room and that Nurse Hall may have reported 

1 Although Mr. Toler appears to have broken his femur, which is a leg bone,

the record also indicates that Mr. Toler broke his hip, which, it appears, could refer to a 

break of the top of his femur. See Femur, Mosby’s Medical Dictionary (9th ed. 2013) 

(defining “femur” as “the thigh bone, which extends from the pelvis to the knee”).
3

finding a roll of tape on the floor while investigating Mr. Toler’s fall.

2 While Mr. Toler 

subsequently testified at trial that he stepped on a roll of tape and that the roll of tape had 

caused him to fall and break his femur, none of the medical professionals who treated Mr. 

Toler immediately following his fall reported in their notes of Mr. Toler’s examinations 

anything about a roll of tape. Rather, the contemporaneous medical records all indicate that 

Mr. Toler reported that his leg had given out and caused him to fall. The Cornerstone nurses 

who responded to the patient’s room immediately after Mr. Toler’s fall also stated that Mr. 

Toler claimed that his leg had given out, that he thought he had a charley horse, and that 

he did not mention a roll of tape in describing the circumstances of his fall.

Mr. Toler then sued Cornerstone3and sought discovery of the incident report, 

which Cornerstone claimed is protected by the peer review privilege. See generally W. Va. 

Code §§ 30-3C-1 to -5. Mr. Toler filed a motion to compel disclosure of the incident report, 

and the circuit court held a hearing on the motion. By order entered March 20, 2020, the 

circuit court agreed with Cornerstone’s claim of peer review privilege and precluded 

disclosure of the document to Mr. Toler.

2 The record is unclear as to how Mr. Toler deduced the alleged contents of 

Cornerstone’s incident report because Cornerstone claims that this document is privileged, 

was prepared exclusively for its own internal use, and has not been disclosed to anyone 

outside of its peer review process. While Cornerstone provided a copy of its incident report 

under seal for our consideration on appeal, and the circuit court reviewed this document in 

camera, it does not appear that Mr. Toler has been permitted to view the incident report.

3 Mr. Toler’s complaint is not part of the Appendix Record in this case.
4

During the trial of Mr. Toler’s case against Cornerstone, the court permitted 

Nurse Hall, who had prepared the incident report, to testify about his personal knowledge 

of the circumstances surrounding Mr. Toler’s fall, as the original source of the contents of 

the incident report. Nurse Hall’s trial testimony did not reference a roll of tape on the floor. 

Mr. Toler testified that he fell when his leg went out from under him, and he stepped “on 

a piece of tape.” However, no other testimony or evidence adduced at trial mentioned the 

roll of tape that Mr. Toler alleges caused him to fall and break his femur in the course of 

treatment for his injuries. The jury, on its verdict form, answered the first question as 

follows:

1. Do you find by a preponderance of the evidence 

that Robert Toler stepped on a roll of tape causing him to fall 

on the morning of January 7, 2019?

Yes _____ No __X__

The circuit court entered a final order of judgment on the jury’s verdict in favor of 

Cornerstone on September 15, 2021. Mr. Toler then appealed to this Court.

II.

STANDARD OF REVIEW

The issue before the Court is whether the circuit court properly excluded 

Cornerstone’s incident report based on its rulings that the report is protected by the peer 

review privilege and that the report was not subject to disclosure at trial. In assessing the 

circuit court’s rulings, we must consider both of the circuit court’s orders from which Mr. 
5

Toler has appealed. We first review the circuit court’s March 20, 2020 order that denied 

Mr. Toler’s motion to compel discovery responses by Cornerstone and found that the peer 

review privilege applies to Cornerstone’s incident report. Our prior cases recognize that a 

circuit court’s rulings regarding the application of the peer review privilege involve 

multiple standards of review. We review the circuit court’s interpretation and application 

of the peer review privilege statutes de novo as that determination requires the resolution 

of a question of law:

[A]t issue in the case sub judice is the correctness of the circuit 

court’s interpretation and application of the applicable 

statutory law concerning privileges relating to health care peer 

review proceedings. As this contention involves a question of 

law, we apply a plenary review to the circuit court’s decision 

in this regard. “Interpreting a statute or an administrative rule 

or regulation presents a purely legal question subject to de novo

review.” Syl. pt. 1, Appalachian Power Co. v. State Tax Dep’t 

of West Virginia, 195 W. Va. 573, 466 S.E.2d 424 (1995).

State ex rel. Charles Town Gen. Hosp. v. Sanders, 210 W. Va. 118, 123, 556 S.E.2d 85, 90

(2001). We then consider whether the circuit court abused its discretion when determining 

if the privilege applies to a particular document because that ruling involves a question of 

fact: “The determination of which materials are privileged under W. Va. Code, 30-3C-1 . . . 

et seq. is essentially a factual question and the party asserting the privilege has the burden 

of demonstrating that the privilege applies.” Syl. pt. 2, in part, State ex rel. Shroades v. 

Henry, 187 W. Va. 723, 421 S.E.2d 264 (1992).

Next, we review the circuit court’s September 15, 2021 order that entered

judgment on the jury’s verdict in favor of Cornerstone, which includes the court’s pre-trial 
6

rulings on Cornerstone’s motions in limine to exclude reference to and testimony about its 

incident report at trial as well as the court’s rulings on the admissibility of evidence during 

trial. As to a circuit court’s evidentiary rulings, we have held that

[t]he 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 v. McCammon, 193 W. Va. 229, 455 S.E.2d 788 (1995). 

Accord State v. Marple, 197 W. Va. 47, 51, 475 S.E.2d 47, 51 (1996) (“The evidentiary 

rulings of a circuit court . . . are reviewed under an abuse of discretion standard.”). We will 

consider Mr. Toler’s assignments of error in accordance with these standards. 

III.

DISCUSSION

On appeal, Mr. Toler asserts two assignments of error: the circuit court erred

(1) by ruling that Cornerstone’s incident report is protected by the peer review privilege 

and (2) by continuing to exclude the report when, according to Mr. Toler, Cornerstone 

opened the door to the document’s disclosure during the trial of this case. We consider both 

assigned errors in turn.
7

A. Peer Review Privilege

To determine whether the peer review privilege applies, it is necessary to 

consider the scope of the privilege. We previously have recognized that, “[t]hrough the 

enactment of West Virginia Code § 30-3C-3 in 1980,[4]the Legislature imposed 

confidentiality on all information, documents, and records subjected to review by a medical 

peer review organization.” Young v. Saldanha, 189 W. Va. 330, 332, 431 S.E.2d 669, 671 

(1993). The Legislature’s enactment of this statutory privilege also “clearly evinces a 

public policy encouraging health care professionals to monitor the competency and 

professional conduct of their peers in order to safeguard and improve the quality of patient 

care.” Syl. pt. 2, in part, id.

In establishing the parameters of the privilege, the Legislature has defined 

the terms “peer review” and “review organization.”

“Peer review” means the procedure for evaluation by 

health care professionals of the quality and efficiency of 

services ordered or performed by other health care 

professionals, including practice analysis, inpatient hospital 

and extended care facility utilization review, medical audit, 

4 We note that, during the course of the events giving rise to this appeal, the 

Legislature amended the peer review privilege statutes, which revised some previously 

enacted provisions and adopted other new provisions. See generally W. Va. Code § 30-3C1 (eff. Apr. 29, 2019) (revising existing section); W. Va. Code § 30-3C-3 (eff. Apr. 29, 

2019) (revising existing section); W. Va. Code § 30-3C-5 (eff. Apr. 29, 2019) (adopting 

new provision establishing criteria for waiver of peer review privilege). Our consideration 

of this case is guided by the version of the peer review privilege that was in effect at the 

time of Mr. Toler’s fall in January 2019, and we will refer to those statutory provisions that 

were effective at that time throughout this opinion.
8

ambulatory care review, claims review and patient safety 

review.

W. Va. Code § 30-3C-1 (eff. 2004). “Review organization” is defined, in pertinent part, as

any committee or organization engaging in peer review, 

including a hospital utilization review committee, . . . a 

medical audit committee, . . . a physicians’ advisory 

committee, . . . any entity established pursuant to state or 

federal law for peer review purposes, and any committee 

established by one or more state or local professional societies 

or institutes, to gather and review information relating to the 

care and treatment of patients for the purposes of: 

(i) Evaluating and improving the quality of health care 

rendered; (ii) reducing morbidity or mortality; or 

(iii) establishing and enforcing guidelines designed to keep 

within reasonable bounds the cost of health care. It shall also 

mean any hospital board committee or organization reviewing 

the professional qualifications or activities of its medical staff 

. . ., and any professional standards review organizations 

established or required under state or federal statutes or 

regulations.

Id.

The peer review privilege itself is set forth in West Virginia Code § 30-3C3 (eff. 1980):

W. Va. Code, 30-3C-3 [1980] provides that “[t]he 

proceedings and records of a review organization shall be 

confidential . . . Provided, That information, documents or 

records otherwise available from original sources are not to be 

construed as immune from discovery or use in any civil action 

merely because they were presented during proceedings of 

such [a review] organization. . . .” The language of the statute 

grants a privilege to all the records and proceedings of a review 

organization, but no privilege attaches to information, 

documents or records considered by a review organization if 

the material is “otherwise available from original sources.”
9

Syl. pt. 3, Shroades, 187 W. Va. 723, 421 S.E.2d 264. See generally W. Va. Code § 30-

3C-3 (eff. 1980). Furthermore,

[p]ursuant to the plain language of W. Va. Code § 30-

3C-3 (1980) (Repl. Vol. 1998), information, documents, and 

records ordinarily protected by the peer review privilege lose 

their specter of confidentiality and may be accessed by third 

parties when (1) said materials are “otherwise available from 

original sources” or (2) “an individual [has] execute[d] a valid 

waiver authorizing the release of the contents of his file 

pertaining to his own acts or omissions.”

Syl. pt. 4, State ex rel. Brooks v. Zakaib, 214 W. Va. 253, 588 S.E.2d 418 (2003).5

To protect a document from disclosure based upon the protections afforded 

by the peer review privilege, the party seeking the privilege’s protections must request 

recognition of the privilege and demonstrate its applicability to the document for which 

protection is sought. “The party seeking the protections of the peer review privilege bears 

the burden of establishing its applicability by more than a mere assertion of privilege.” Syl. 

pt. 3, State ex rel. Wheeling Hosp., Inc. v. Wilson, 236 W. Va. 560, 782 S.E.2d 622 (2016).

A party wishing to establish the applicability of the peer 

review privilege, set forth at W. Va. Code § 30-3C-3 (1980) 

5 Accord Syl. pt. 2, State ex rel. Wheeling Hosp., Inc. v. Wilson, 236 W. Va. 

560, 782 S.E.2d 622 (2016) (“Where documents sought to be discovered are used in the 

peer review process but either the document, itself, or the information contained therein, is 

available from an original source extraneous to the peer review process, such material is 

discoverable from the original source, itself, but not from the review organization that has 

used it in its deliberations.” (emphasis added)); Syl. pt. 3, Young v. Saldanha, 189 W. Va. 

330, 431 S.E.2d 669 (1993) (“To effect a waiver of the privilege of confidentiality which 

attends information and records properly the subject of health care peer review under West 

Virginia Code §§ 30-3C-1 to -3 (1993), the Legislature has required that an individual must 

formally indicate his intent to waive this confidentiality by executing a valid waiver.”

(emphasis added)).
10

(Repl. Vol. 2015), should submit a privilege log which 

identifies each document for which the privilege is claimed by 

name, date, and custodian. The privilege log also should 

contain specific information regarding (1) the origin of each 

document, and whether it was created solely for or by a review 

committee, and (2) the use of each document, with disclosures 

as to whether or not the document was used exclusively by 

such committee. Finally, the privilege log should provide a 

description of each document and a recitation of the law 

supporting the claim of privilege.

Syl. pt. 4, Wheeling Hosp., 236 W. Va. 560, 782 S.E.2d 622.

Once the party seeking the protections of the peer review privilege has 

requested its application and submitted the requisite privilege log, the circuit court is then 

tasked with determining whether the privilege should be applied to preclude disclosure of 

the document at issue.

To determine whether a particular document is 

protected by the peer review privilege codified at W. Va. Code 

§ 30-3C-3 (1980) (Repl. Vol. 2015), a reviewing court must 

ascertain both the exact origin and the specific use of the 

document in question. Documents that have been created 

exclusively by or for a review organization, or that originate 

therein, and that are used solely by that entity in the peer review 

process are privileged. However, documents that either (1) are 

not created exclusively by or for a review organization, 

(2) originate outside the peer review process, or (3) are used 

outside the peer review process are not privileged.

Syl. pt. 1, Wheeling Hosp., 236 W. Va. 560, 782 S.E.2d 622.

Mr. Toler contends on appeal that the circuit court erred by ruling that the 

peer review privilege applies to shield Cornerstone’s incident report from disclosure. He 
11

does not contend that Cornerstone failed to properly request the peer review privilege 

protection or that Cornerstone’s privilege log listing the incident report and describing why 

it should be protected was inadequate. Neither does Mr. Toler claim, under his first 

assignment of error, that Cornerstone waived the privilege. Rather, Mr. Toler contends that 

the circuit court erred in applying the peer review privilege to the facts of this case, which 

he contends is in the nature of a premises liability case to which the privilege should not 

apply.

We disagree with Mr. Toler’s assertion that the peer review privilege should 

not apply to this case because of the nature of his claims against Cornerstone, i.e., premises 

liability claims by a non-patient.

6 The statutes setting forth the peer review privilege do not 

limit its application to any particular type of case. Neither do the statutes limit the 

application of the privilege based upon the identity of the person seeking a purportedly 

protected document’s discovery. Rather, the limits of the peer review privilege pertain to 

the document sought to be protected by its provisions, the manner in which that document 

has been prepared, and the way in which that document has been used. “Documents that 

have been created exclusively by or for a review organization, or that originate therein, and 

that are used solely by that entity in the peer review process are privileged.” Syl. pt. 1, in 

part, Wheeling Hosp., 236 W. Va. 560, 782 S.E.2d 622.

6 Again, Mr. Toler’s complaint is not included in the appellate record. See

supra note 3. However, the nature of Mr. Toler’s claims do not appear to be in dispute.
12

Upon Cornerstone’s invocation of the peer review privilege and submission 

of a privilege log detailing why the privilege should apply to its incident report, the circuit 

court was charged with considering the applicability of the peer review privilege statutes 

and vested with the discretion to determine whether the privilege should apply to the 

incident report at issue in this case. See Charles Town Gen. Hosp., 210 W. Va. at 123, 556 

S.E.2d at 90; Syl. pt. 2, in part, Shroades, 187 W. Va. 723, 421 S.E.2d 264. In its order 

denying Mr. Toler’s motion to compel disclosure of Cornerstone’s incident report, the 

circuit court reached the following conclusions of law in support of its ruling:

In the instant case, the [c]ourt agrees with the 

Defendant’s [Cornerstone’s] assertion that the 

Occurrence/Incident Report which was prepared by a nurse 

and reviewed by the Director of Quality Management falls 

squarely within the statutory requirements [of the peer review

privilege statutes] enumerated above.

The [c]ourt finds that the Occurrence/Incident Report at 

issue was prepared to report a non-routine event that had some 

potential for injury to a patient or visitor and was intended to 

help ensure that quality health care is rendered at the hospital 

by identifying and correcting any problems related to nonroutine occurrences.

The [c]ourt also finds that the Plaintiff’s [Mr. Toler’s] 

status of a non-patient is irrelevant with regard to the 

applicability of the peer review privilege in this instance. 

Therefore, based upon the evidence presented in this matter, 

and applying the above [peer review privilege] statutes, the 

[c]ourt finds that the Occurrence/Incident Report in question is 

not subject to subpoena or discovery proceedings and is 

precluded from admissibility in evidence pursuant to the Peer 

Review [Privilege] Statute.
13

All of these findings are consistent with the Legislature’s recognition of a 

peer review privilege in West Virginia Code § 30-3C-3 and this Court’s further 

clarification of the scope of that privilege. See, e.g., Syl. pt. 1, Wheeling Hosp., 236 W. Va. 

560, 782 S.E.2d 622; Syl. pt. 3, Shroades, 187 W. Va. 723, 421 S.E.2d 264. We do not find 

that the circuit court erred or abused its discretion in finding that the peer review privilege 

applies to protect Cornerstone’s incident report from disclosure. The circuit court properly 

ruled that the peer review privilege does not except certain types of cases from its 

application. The court further found that the incident report had been prepared exclusively 

for Cornerstone’s internal review process and that the report had been used solely in that 

review process and not disclosed or disseminated outside of Cornerstone’s internal review. 

Therefore, we affirm the circuit court’s March 20, 2020 order ruling that the peer review 

privilege precludes the disclosure of Cornerstone’s incident report.7

7 This result is also consistent with the amendments to West Virginia Code 

§ 30-3C-3 that were enacted shortly after the incident at issue in this case. In West Virginia 

Code § 30-3C-3(a)(1) (eff. 2019), the Legislature adopted a narrow exception to allow the 

disclosure of “[n]ursing home . . . incident or event reports . . . pertaining to the plaintiff of 

that civil action, or reports of same or similar incidents within a reasonable time frame of 

the events at issue in the civil action[.]” Nursing home incident reports, in general, remain 

subject to the peer review privilege except as directed by § 30-3C-3(a)(1), and there is no 

other exception to permit the disclosure of other types of incident reports that otherwise 

would be protected by the peer review privilege. If we were to adopt Mr. Toler’s position 

regarding the peer review privilege’s inapplicability to Cornerstone’s incident report in this 

case because he is a non-patient asserting a premises liability claim, we would effectively 

be allowing the disclosure of an incident report that otherwise would be protected by the 

peer review privilege without a statutory exception that permits its disclosure. This result 

would essentially require that we read into the peer review privilege legislation additional 

terms that the Legislature did not include. We cannot rewrite legislation to include 

provisions that the Legislature chose not to adopt. See Syl. pt. 11, Brooke B. v. Ray C., 230 

W. Va. 355, 738 S.E.2d 21 (2013) (“It is not for this Court arbitrarily to read into a statute 
14

B. Effect of Cornerstone Witness Testimony on

Continued Assertion of Peer Review Privilege

In hissecond assignment of error, Mr. Toler argues that the circuit court erred 

by allowing two Cornerstone employees to testify at trial and that, by virtue of their 

testimony, the incident report should have been disclosed to Mr. Toler for his use during 

the trial. Cornerstone denies that the witnesses it called defeated its assertion of the peer 

review privilege protection for the incident report.

After the circuit court entered its order in 2020 ruling that Cornerstone’s 

incident report is protected by the peer review privilege, the court considered Cornerstone’s 

motions in limine prior to the jury trial. By order entered August 24, 2021, the circuit court 

ruled that privileged material, which would include Cornerstone’s incident report, could 

not be referenced during the trial, and Mr. Toler did not object to this ruling:

MOTION IN LIMINE TO EXCLUDE TESTIMONY 

AND REFERENCES TO PRIVILEGED MATERIAL

As to Defendant’s [Cornerstone’s] “Motion In Limine to 

Exclude Testimony And References To Privileged Material,” 

Plaintiff [Mr. Toler] did not object to this Motion. This [c]ourt 

FINDS the motion well taken, and, for the reasons set forth in 

the Motion, it is hereby GRANTED.

that which it does not say. Just as courts are not to eliminate through judicial interpretation 

words that were purposely included, we are obliged not to add to statutes something the 

Legislature purposely omitted.”).
15

By virtue of Mr. Toler’s failure to object to the exclusion of testimony about and references 

to privileged material, including Cornerstone’s incident report, from the trial, Mr. Toler 

has waived his objection to the circuit court’s exclusion of testimony about and references 

to the incident report at trial. See Syl. pt. 2, State ex rel. Cooper v. Caperton, 196 W. Va. 

208, 470 S.E.2d 162 (1996) (“To preserve an issue for appellate review, a party must 

articulate it with such sufficient distinctiveness to alert a circuit court to the nature of the 

claimed defect.”).

Mr. Toler further contends that, because Nurse Hall was permitted to testify 

at trial, the contents of Cornerstone’s incident report should have been disclosed at trial as 

Nurse Hall’s contemporaneous notes of his conversation with Mr. Toler. However, the peer 

review privilege permits the disclosure of original source information without defeating 

the assertion of the privilege. See generally W. Va. Code § 30-3C-3; Syl. pt. 2, Wheeling 

Hosp., 236 W. Va. 560, 782 S.E.2d 622; Syl. pt. 4, Brooks, 214 W. Va. 253, 588 S.E.2d 

418; Syl. pt. 3, Shroades, 187 W. Va. 723, 421 S.E.2d 264. Here, Nurse Hall testified 

regarding the original source of the incident report he prepared: his conversation with Mr. 

Toler about the circumstances of the fall and his observations about the patient’s room in 

which Mr. Toler’s fall occurred. During his testimony, Nurse Hall did not reference the 

incident report he prepared for Cornerstone. Nurse Hall’s testimony was consistent with 

the original source exception to the peer review privilege and the circuit court’s rulings 

finding that the incident report is protected by the peer review privilege and excluding any 
16

references to or testimony about privileged materials at trial. Therefore, Mr. Toler is not 

entitled to relief on this basis.

Mr. Toler additionally contends that the testimony of Cornerstone’s 

corporate representative, Nurse Brandon Gagnon, chief nursing officer, “opened the door”

to the incident report’s admissibility at trial. Nurse Gagnon testified as a witness called by 

Mr. Toler. During Nurse Gagnon’s direct testimony, counsel for Mr. Toler proposed a 

hypothetical situation of water causing a fall and asked the following question, which 

Nurse Gagnon answered:

Q. [by Mr. Toler’s counsel]: . . . Where would you 

document that the fall had occurred due to water or some other 

obstruction on the floor?

A. [by Nurse Gagnon]: It would be documented through 

an incident reporting process.

(Emphasis omitted). When Mr. Toler’s counsel then asked, “And was that done in this 

case?,” Cornerstone’s counsel immediately objected based on the court’s earlier rulings 

excluding references to or testimony about materials the court had ruled were privileged 

and, thus, not subject to disclosure. The court sustained Cornerstone’s objection, and Nurse

Gagnon continued his testimony without referencing Cornerstone’s incident report that 

Nurse Hall prepared after Mr. Toler’s fall. On appeal, Mr. Toler contends that the circuit 

court’s continued exclusion of the incident report after Nurse Gagnon had alluded to 

Cornerstone’s incident reporting process constituted error because, Mr. Toler avers, Nurse 

Gagnon’s testimony “opened the door” to the incident report’s disclosure. This argument 
17

misconstrues the concept of “opening the door” to the admission of otherwise inadmissible 

evidence.

In support of his argument, Mr. Toler cites State v. Baker, 230 W. Va. 407,

738 S.E.2d 909 (2013), which discusses the “opening the door” doctrine in the context of 

criminal cases. See id., 230 W. Va. at 412, 738 S.E.2d at 914 (“The opening the door 

‘doctrine operates to prevent a defendant from successfully excluding from the 

prosecution’s case-in-chief inadmissible evidence and then selectively introducing pieces 

of this evidence for the defendant’s own advantage, without allowing the prosecution to 

place the evidence in its proper context.’ State v. James, 144 N.J. 538[, 554], 677 A.2d 734, 

742 (1996).”). We have also discussed this principle in the civil law context, and explained 

its operation as follows:

First, we note that the phrase “‘[o]pening the door’ is also 

referred to as the doctrine of ‘curative admissibility.’” United 

States v. Rucker, 188 Fed. Appx. 772, 778 (10th Cir. 2006). See 

also 1 Louis J. Palmer, Jr., Robin Jean Davis, and Franklin D. 

Cleckley, Handbook on Evidence for West Virginia Lawyers

§ 106.04 at 158 (6th ed. 2015) (“The phrase ‘opening the door’ 

is used by most courts to refer to the curative admissibility 

rule.”).

Miller v. Allman, 240 W. Va. 438, 450, 813 S.E.2d 91, 103 (2018). We further have 

explained how a party may invoke the curative admissibility rule:

The curative admissibility rule allows a party to present 

otherwise inadmissible evidence on an evidentiary point where 

an opponent has “opened the door” by introducing similarly 

inadmissible evidence on the same point. Under this rule, in 

order to be entitled as a matter of right to present rebutting 

evidence on an evidentiary fact: (a) The original evidence must 
18

be inadmissible and prejudicial, (b) the rebuttal evidence must 

be similarly inadmissible, and (c) the rebuttal evidence must be 

limited to the same evidentiary fact as the original inadmissible 

evidence.

Syl. pt. 10, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995). In other words, “[t]he 

doctrine of opening the door allows a party to elicit otherwise inadmissible evidence when 

the opposing party has made unfair prejudicial use of related evidence.” James, 677 A.2d 

at 742.

This explanation of “opening the door” makes clear that when a party’s 

opponent introduces inadmissible, prejudicial evidence, the party aggrieved by the 

admission of that evidence is permitted to introduce otherwise inadmissible evidence to 

rebut the opponent’s improper evidence. Here, Mr. Toler’s opponent, Cornerstone, did not 

elicit the reference to Cornerstone’s incident reporting process from Nurse Gagnon. Mr. 

Toler elicited that information during his counsel’s direct examination of Nurse Gagnon.

As the party who prompted Nurse Gagnon’s disclosure of the incident reporting process, 

Mr. Toler is not entitled to benefit from the purportedly improper reference to the incident 
19

report he occasioned.8 Therefore, we find that Mr. Toler is not entitled to relief on this 

basis.9

8 Rather, this scenario is more reminiscent of the “invited error” doctrine than 

the “opening the door” doctrine upon which Mr. Toler relies. See State v. Crabtree, 198 

W. Va. 620, 627, 482 S.E.2d 605, 612 (1996) (“‘Invited error’ is a cardinal rule of appellate 

review applied to a wide range of conduct. It is a branch of the doctrine of waiver which 

prevents a party from inducing an inappropriate or erroneous response and then later 

seeking to profit from that error. The idea of invited error is not to make the evidence 

admissible but to protect principles underlying notions of judicial economy and integrity 

by allocating appropriate responsibility for the inducement of error. Having induced an 

error, a party in a normal case may not at a later stage of the trial use the error to set aside 

its immediate and adverse consequences.”). See also Syl. pt. 2, State v. Bowman, 155 

W. Va. 562, 184 S.E.2d 314 (1971) (“An appellant or plaintiff in error will not be permitted 

to complain of error in the admission of evidence which he offered or elicited, and this is 

true even of a defendant in a criminal case.”).

9 Though not assigned as error by Mr. Toler, we would be remiss if we did 

not acknowledge that Nurse Hall, during his direct testimony by Cornerstone’s counsel, 

also briefly referenced the incident reporting process.

Q. [by Cornerstone’s counsel]: Had Mr. Toler told you 

on the morning of January 7th that when he stood up that he 

stepped on a roll of tape and it caused him to fall, what would 

you have done?

A. [by Nurse Hall]: For one thing, I would have looked 

for a roll of tape. Right? I would obtain that object or whatever 

the tape – in this instance, I would have got that and I would 

have used it for a foundation to do a report and find out what 

ways we could better this process and prevent this from going 

on any further and happening to the next patient.

(Emphasis omitted). This inquiry posed a hypothetical question to Nurse Hall, much like 

the hypothetical water question Mr. Toler’s counsel asked Nurse Gagnon, because Nurse 

Hall had earlier testified that Mr. Toler had not mentioned a roll of tape as causing or 

contributing to his fall when Nurse Hall spoke with Mr. Toler shortly after he fell. 

Immediately after the quoted exchange, Cornerstone’s counsel concluded her direct 

examination of Nurse Hall. Mr. Toler’s counsel replied, “No cross, your Honor”; then 

asked Nurse Hall four questions, none of which pertained to the reporting process Nurse 

Hall had mentioned in his testimony; and allowed Nurse Hall to be excused as a witness. 
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Finally, Mr. Toler suggests that the jury’s questions to the court during its 

deliberations necessitated the disclosure of Cornerstone’s incident report. During the jury’s 

deliberations, it sent the following questions to the circuit court: “Is there an initial incident 

report? Was it filed? Who filed it? Can we have a copy of said incident report?” After 

meeting with counsel in chambers, determining that the peer review privilege continued to 

protect the incident report from disclosure, and that the granted motion in limine precluded 

reference to the incident report, the circuit court gave this answer to the jury:

I can simply tell you that everything that was admissible 

evidence in this case has been discussed prior to the jury ever 

being here. We’ve had legal arguments on things, and there are 

things that are allowed to be in front of the jury and things that 

are not. Everything that you-all have to deliberate on and 

consider has been entered into evidence, and so you’re not to 

speculate as to what other pieces of evidence might be out there 

or might not be out there. You’re only to consider things that 

have been put in front of you . . . . And we’ve made sure that 

you have all of the evidence that you’re supposed to have 

legally to make this decision and reach your verdict; so don’t 

speculate on any other things that may be missing at this point. 

You just work with what you have and reach your verdict based 

on that information.

We find that these questions from the jury clearly indicate that it was not aware that an 

incident report had been prepared in this case given that the first question was whether the 

For the same reason we find that Mr. Toler has waived any objection to the exclusion of 

testimony about or reference to Cornerstone’s incident report because he failed to object to 

the circuit court’s decision to grant Cornerstone’s motion in limine, we similarly find that 

Mr. Toler has waived any objection he may have had to Nurse Hall’s hypothetical reference 

to the incident reporting process because he failed to object to Nurse Hall’s reference to 

Cornerstone’s reporting process or elicit further testimony regarding this procedure on 

cross-examination of this witness. See Syl. pt. 2, State ex rel. Cooper v. Caperton, 196 

W. Va. 208, 470 S.E.2d 162 (1996).
21

incident report existed. The circuit court’s answers to the jury’s questions were consistent 

with its prior rulings finding that the peer review privilege shielded Cornerstone’s incident 

report from disclosure and that the parties were not permitted to reference or elicit 

testimony about the incident report at trial, which we have found were proper. We likewise 

find that the circuit court did not abuse its discretion in answering the jury’s questions in 

this manner and continuing to apply the peer review privilege to protect Cornerstone’s 

incident report. Accordingly, we affirm the circuit court’s September 15, 2021 order 

entering judgment in favor of Cornerstone on the jury’s verdict.

IV.

CONCLUSION

We conclude that the circuit court did not err by ruling that the peer review 

privilege applies to preclude the disclosure of Cornerstone’s incident report. Therefore, we 

affirm the circuit court’s March 20, 2020 order that ruled that the incident report is 

protected by the peer review privilege and the court’s September 15, 2021 order entering 

judgment on the jury’s verdict in favor of Cornerstone.

Affirmed.