### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Wayne L. Evans, as Executor and 

### FILED personal representative of the Estate of Douglas E. Evans, deceased, 

### November 16, 2018
Plaintiff Below, Petitioner EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA vs) No. 17-1090 (Mercer County 14-C-394-05)

Bluefield Hospital Company, LLC, d/b/a Bluefield Region al Medical Center, and Stephen DeGray, M.D., Defendants Below, Respondents



### MEMORANDUM DECISION

Petitioner Wayne L. Evans, as Executor and personal representative of the Estate of Douglas E. Evans, deceased, by counsel Mark R. Staun and Eric J. Buckner, appeals the Circuit Court of Mercer County’s November 14, 2017, order denying his motion for a new trial. Respondent Bluefield Hospital Company, LLC, d/b/a Bluefield Regi onal Medical Center (“BHC”), by counsel W.E. Sam Fox, II, Mitche ll B. Tuggle, and Jason Holliday, filed its response in support of the circ uit court’s order. Respondent Stephen DeGray, M.D. (“Dr. DeGray”), by counsel D.C. Offutt, Jr. and Jody O. Simmons, also submitted a response.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial question of law. For these reasons, a memorandum decision affirming the circuit court’s order is a ppropriate under Rule 21 of the Rules of Appellate

Procedure.

On March 20, 2012, ninety-one-year-old Douglas Evans (“the decedent”) presented to Dr. DeGray’s office with numerous symptoms , including cough, shortness of breath, fatigue, dehydration, difficulty swallowing, tachycardi a, and low blood pressure. The decedent was accompanied by his son, Lloyd Evans, who requeste d that Dr. DeGray adm it the decedent to the hospital due to a concern that the decedent had pneumonia. 1 Dr. DeGray ordered blood work, an x-ray, and prescribed an antibiotic before sending the decedent home. The next day, the decedent was transported to BHC where he was evaluated in the emergency department at approximately

2:30 p.m. Dr. DeGray did not personally examine the decedent at that time, but he admitted him

1 Dr. DeGray testified that while it was possi ble that the decedent had pneumonia at that time, Dr. DeGray did not believe that the condition was then diagnosable.

1via telephone at approximately 4:35 p.m. At that time, Dr. DeGray ordered that the decedent be administered IV fluids – normal saline and antibiotics. Dr. DeGray saw the decedent at the hospital at approximately 6:30 p.m., at which time he ordered addi tional tests. At 2:30 a.m. the following day, the decedent was intubated, shortly after which the decedent became asystolic, with pulseless electrical activity. A code was ca lled at 2:38 a.m., and at 2:40 a.m. BHC staff notified Dr. DeGray of the code blue. Dr. DeGray advised that he would come to BHC; however, at 3:02 a.m., all resuscitative efforts ceased and the decedent was pronounced dead. According to the death certificate, the decedent died of acute metabolic acidosis due to sepsis.

Petitioner Wayne L. Evans, the decedent’s ot her son, filed the underl ying suit on June 9, 2014, alleging that the care provided to the decede nt during his hos pitalization deviated from the standard of care and that such deviation prox imately caused the decedent’s death. He also alleged that Dr. DeGray’s car e and treatment of the deceden t on March 20, 2012, and during the decedent’s hospitalization from March 21 to Marc h 22, 2012, deviated from the standard of care, proximately causing the decedent’s death. Followi ng discovery, the case proceeded to trial on January 31, 2017. During voir dire, th e clerk of court asked whethe r any member of the panel was sensible of any bias or prejudice either for or against either party in this case, and Judge Swope instructed the jury panel that they were trying to get the fairest group of people they could

to rule on the issues in this ca se. The attorneys then proceeded with voir dire, and counsel for petitioner listed several names of individuals who may be men tioned or called to testify, requesting that the members of the jury panel indi cate if they knew any of the individuals. One of

the witnesses identified at that time was Debra Truitt, a charge nurse for BHC involved with the

decedent’s medical care. Even af ter that portion of voir dire ended, the circuit court gave the potential jurors another opportunity to raise a hand if they knew of any reason they should not be seated on the jury. At no point during that process did Jurors Wy rick or Markell raise a hand.

On February 1, 2017, Tonya Mills, the day shif t charge nurse at BHC during the events at issue, was called by petitioner as a witness. During her testimony, she mentioned Nurse Debra “Niki” Truitt on more than one occasion. On February 3, 2017, one of the jurors became ill and was excused from the jury, so the alternate juror moved into that juror’s place. Both Dr. DeGray and another doctor, Dr. Parker, were called to testify before petitioner rested his case. On February 7, 2017, counsel for BHC called its only f act/lay witness, Nurse Truitt. Nurse Truitt testified about things she did for the decedent th at were not included on his medical chart, in addition to things she did that were reflected on his chart. Shortly after her testimony, one of the jurors, Amber Ealy, advised the circuit court that she knew Nurse Truitt but that she did not recognize her name when it was disclosed during ju ry voir dire. By the agreement of all counsel,

the circuit court made a discreet inquiry of Juror Ealy concerning whether the fact that she went to high school with Nurse Truitt would affect or influence her decision in the case. The circuit

court advised counsel that Juror Ea ly had reported that that woul d not affect her decision in any way, and counsel agreed to con tinue the trial with Juror Ealy on the jury. Court reconvened on February 8, 2017, at which time the circuit cour t instructed the jury and counsel presented closing arguments. The jury retired to the ju ry room at approximately 1:40 p.m., and they notified the court that they had reached a unanim ous verdict less than one hour later. The jury found that neither respondent deviated from th e standard of care in treating the decedent.

Petitioner then filed a mo tion for a new trial on March 10, 2017, and the circuit court

2heard argument on that motion on May 5, 2017. That motion was based on petitioner’s arguments that one member of the jury, Betty Wyri ck, failed to disclose either at voir dire or during trial that she was acquainted with Nurse Trui tt and the jury’s verdict was contrary to the weight of the evidence. In support of that motion, on May 3, 2017, petitioner filed a supplemental motion for a new trial, including an affidavit citing a th ird basis for granting petitioner a new trial. That affidavit was from one of petitioner’s attorneys, Eric J. Buckner, who represented therein that he lear ned after the trial from another juror, Benjamin Markell, that Jurors Markell and Wyrick had worked with Nurse Truitt at Wal-Mart at some prior point. In its thirteen-page order, the circu it court found that petitioner’s mo tion for a new trial based on the failure of Jurors Wyrick and Markell to reveal th eir connection to Nurse Trui tt, either in voir dire or at trial, was denied because petitioner had not produced or attempted to produce any evidence of potential or actual bias or pr ejudice, either against petitioner or in favor of respondents, on the part of either juror. It also found that the jury’s ve rdict was supported by the clear weight of the

evidence and should not be distur bed by the circuit cour t. In so doing, the circuit court cited the testimony of multiple witnesses regarding whether the standard of care was breached, with some testifying that it was while others testified that it was not. It went on to state that the jury was presented with all of the eviden ce and had an opportunity to asse ss each witness’ s credibility, bias, knowledge, and qualifications, so the jury was in the position to make the determination. Therefore, it would not set asid e their verdict. Pe titioner appeals from the November 14, 2017, order denying his motion for a new trial.

In terms of our standa rd of review of the grant or deni al of a new trial, we have held:

This Court reviews 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 ci rcuit court’s underly ing factual findings under a clearly erroneous standard. Qu estions of law are subject to a de

novo review.

Syl. Pt. 1, The Burke–Parsons–Bowlby Corp. v. Rice, 230 W. Va. 105, 736 S.E.2d 338 (2012).

On appeal, petitioner sets fort h two assignments of error. Firs t, he argues that the circuit court erred in denying his motion fo r a new trial when two of the six jurors, Jurors Wyrick and Markell, failed to accurately re present their relationship with one of BHC’s key witnesses, Nurse Truitt, by failing to disclose that they knew Nurse Truitt at any poi nt during voir dire or the trial itself. He asserts that because neither juror came forward to disclose thei r association with Nurse Truitt, he and the circuit court were deprived of the opportunity to determine the extent of the relationship and the jurors’ partiality. He equates the jurors’ silence to false answers, which he contends leads to the suspicion of bias. Petitione r further argues that the jurors’ reticence during voir dire foreclosed any challenge for cause or us e of a peremptory challenge so bias must be presumed.

This Court has long held that “[t]he true test as to whether a ju ror is qualified to serve on the panel is whether without bias or prejudice he can render a verdict solely on the evidence

under the instructions of the court.” Syl. Pt.1, State v. Wilson , 157 W. Va. 1036, 207 S.E.2d 174 (1974). In addition,

3[t]he right to a trial by an impartial, objective jury in a criminal case is a fundamental right guaranteed by the Sixth and Fourt eenth Amendments of the

United States Constitution and Article II I, Section 14, of the West Virginia Constitution. A meaningful and effective voir dire of the jury panel is necessary to effectuate that fundamental right.

Syl. Pt. 4, State v. Peacher, 167 W. Va. 540, 280 S.E.2d 559 (1981). Thus, this Court has long recognized the process of voir dire, meaning “to speak the truth,” Michael v. Sabado, 192 W. Va. 585, 592, 453 S.E.2d 419, 426 (1994) as the parties’ “opportunity to discover[ ] whether there are any ‘relevant and material matters that might bear on possible disqualification of a juror.’” Id. (quoting Human Rights Comm. v. Tenpin Lounge, 158 W. Va. 349, 355, 211 S.E.2d 349, 353 (1975)).

We have also noted that

[v]oir dire must be probing enough to reveal jurors’ prejudices regarding issues that may arise at trial so that counsel ma y exercise their challe nges in an informed manner. . . . Moreover, it is difficu lt to perceive how the right to an adequate voir dire can be denied when, given the opportunity, a defendant fails to request additional or supplementary vo ir dire questions. We believe it is incumbent on a defendant to bring to the tr ial court’s attention any deficiency in the voir dire that might impair the prosp ects of a fair trial. Indeed, there was nothing that prevented the defendant from asking these very questions on her own behalf during voir dire if she perceive d a problem with one of the potential jurors. In State v. Beckett, 172 W.Va. 817, 823, 310 S.E.2d 883, 889 (1983), we suggested that where a defendant does not seek additional voir di re to demonstrate possible bias, prejudice, or disqualification, there can be no error for the failure to strike prospective jurors for cause. See also State v. Ward, 188 W.Va. 380, 393, 424 S.E.2d 725, 738 (1991).

State v. Miller , 197 W. Va. 588, 603, 476 S.E.2d 535, 550 (1996).

In the instant matter, the juror who came forward after Nurse Truitt testified told the

circuit court that she did not r ealize that she knew Nurse Truitt until that point because Nurse Truitt had previously been identified by her married name when the juror knew her only by her maiden name. In the circuit court’s order denying petitioner’s motion for a new trial, it specifically found that Juror Wyrick’s F acebook “friendship,” which was discovered by petitioner’s counsel subsequent to the trial, could have been di scovered prior to the trial. The circuit court also pointed out that one of petit ioner’s attorneys, Mr. Buckner, attended high school with Nurse Truitt, was soci al friends with her, and attende d the same church. It further pointed out that Mr. Buckner sent a text message to Nurse Truitt prior to the trial indicating that she would be called to testify on behalf of petitioner. Based on th is information, it is reasonable

to assume that Mr. Buckner knew both Nurse Truitt ’s maiden name and the fact that she went by “Niki” rather than “Debra.” However, during voir dire petitioner’s counsel chose not to identify Nurse Truitt by these other names.

4In addition, there is no evidence that these tw o jurors recognized Nu rse Truitt during the trial, as the affidavit from Mr. Buckner simply provides that “Mr. Mark ell confirmed that he knew Ms. Truitt and informed [Mr. Buckner] that he knew Ms. Truitt fro m when they formerly worked together at the Wal-Mart store located in Princeton[.]” Juror Markell relayed this information to Mr. Buckner only after speaking to Nurse Truitt subsequent to the trial. Reportedly, Nurse Truitt last work ed at Wal-Mart more than ten years prior to the trial. Further, the only Facebook interaction betwee n Juror Wyrick and Nurse Truitt appeared to be a birthday wish and “liking” a single photograph well before the trial. For these reasons, we find that the circuit court did not err in denying petitione r’s motion for a new trial on this basis.

Petitioner’s second assignment of error is that th e verdict should be set aside and a new trial ordered, as the verdict was clearly contrary to the weight of the evidence in finding that neither respondent violated the standard of care. He contends that there was ample testimony that

established that one or both res pondents violated the standard of care so the verdict was against the weight of the evidence.

In addition to the standard of review for th e denial of a motion for a new trial set forth above, this Court has held that

“[i]n determining whether there is sufficien t evidence to support a jury verdict the court should: (1) consider th e 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. 15, Foster v. Sakhai, 210 W.Va. 716, 559 S.E.2d 53 (2001) (quoting Syl. pt. 5, Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1983)).

Sydenstricker v. Mohan , 217 W. Va. 552, 563, 618 S.E.2d 561, 572 (2005). In addition, this Court has long held as follows:

‘“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 ev idence or without sufficient evidence to support it.” Point 4, Syllabus, Laslo v. Griffith, 143 W.Va. 469, 102 S.E.2d 894.’ Syllabus Point 2, Walker v. Monongahela Power Co. , 147 W.Va. 825, 131 S.E.2d 736 (1963).” Syllabus point 5, Toler v. Hager , 205 W.Va. 468, 519 S.E.2d 166 (1999).

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

While some experts and witnesses agreed with petitioner that there was a deviation from the standard of care, respondent s presented evidence and testim ony that established the opposite

– that they complied with the standard of care. De fense experts, Drs. Park er, Petri, and Lamberti, all testified that respondents me t the standard of care and did not cause or contribute to the decedent’s death. For instance, Dr. Lamberti tes tified that it was his opinion to a reasonable degree of medical probability that “the nurses met the standard of care in caring for [the decedent

5and that] nothing that the nurses did or didn’t do cau sed [the decedent] to die.” Dr. Lamberti also testified to the increased mortality rate of a ninety-one-year-old diagnosed with sepsis versus a twenty-year-old diagnosed with the same cond ition. He disagreed with petitioner’s expert regarding the effectiveness of a non-invasive treatment called bipap, stating that “in [his] opinion, there was nothing that could have been done that would have saved [the decedent’s] life.” Further, Dr. Parker testif ied that there were no actions that Dr. DeGray should have taken on March 20, 2012, that he did not take. Dr. Parker also testified that it was his opinion to a reasonable degree of medical certainty that Dr. De Gray met the standard of care in treating the

decedent in his office on March 20 a nd at BHC on March 21 and 22, 2017.

We have repeatedly recognized that

“‘[t]he testimony of expert witnesses on an issue is not exclusive, and does not necessarily destroy the force or credibility of other testimony. The jury has a right to weigh the testimony of all witnesses, experts and otherwise; and the same rule applies as to the weight and credibility of such testimony.’ Syllabus Point 2, Webb

v. Chesapeake & Ohio Ry. Co. , 105 W.Va. 555, 144 S.E. 100 (1928).” Syllabus Point 2, Papenhaus v. Combs , 170 W.Va. 211, 292 S.E.2d 621 (1982).

Syl. Pt. 6, Tri-State Petroleum Corp. v. Coyne , 240 W. Va. 542, 814 S.E.2d 205 (2018). As we

set forth in Coyne , “[t]his is a classic ‘battle of the experts,’ and we decline [petitioner’s] invitation to substitute our own determination as to these experts’ credibility and persuasiveness for the jury’s.” Id. at --, 814 S.E.2d at 222. For these reasons , we cannot find that the circuit court abused its discretion in denying petitione r’s motion for a new trial on this ground.

For the foregoing reasons, we affirm.

Affirmed.

ISSUED: November 16, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice Evan H. Jenkins

Justice Paul T. Farrell sit ting by temporary assignment

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