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 Regional 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 Regional Medical Center 

(“BHC”), by counsel W.E. Sam Fox, II, Mitchell B. Tuggle, and Jason Holliday, filed its 

response in support of the circuit 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 decisional process would not be significantly aided 

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

presented, the Court finds no substantial question of law. For these reasons, a memorandum 

decision affirming the circuit court’s order is appropriate 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, tachycardia, and low blood pressure. The decedent was 

accompanied by his son, Lloyd Evans, who requested that Dr. DeGray admit 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 

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 Dr. DeGray testified that while it was possible that the decedent had pneumonia at that 

time, Dr. DeGray did not believe that the condition was then diagnosable. 

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via 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 additional 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 called 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 other son, filed the underlying suit on June 9, 

2014, alleging that the care provided to the decedent during his hospitalization deviated from the 

standard of care and that such deviation proximately caused the decedent’s death. He also 

alleged that Dr. DeGray’s care and treatment of the decedent on March 20, 2012, and during the 

decedent’s hospitalization from March 21 to March 22, 2012, deviated from the standard of care, 

proximately causing the decedent’s death. Following discovery, the case proceeded to trial on 

January 31, 2017. During voir dire, the clerk of court asked whether 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 case. The attorneys then proceeded with voir dire, and counsel for 

petitioner listed several names of individuals who may be mentioned or called to testify, 

requesting that the members of the jury panel indicate 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 after 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 Wyrick or Markell raise a hand. 

On February 1, 2017, Tonya Mills, the day shift 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 fact/lay witness, Nurse Truitt. Nurse Truitt 

testified about things she did for the decedent that 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 jury 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 Ealy had reported that that would not affect her decision in any 

way, and counsel agreed to continue the trial with Juror Ealy on the jury. Court reconvened on 

February 8, 2017, at which time the circuit court instructed the jury and counsel presented 

closing arguments. The jury retired to the jury room at approximately 1:40 p.m., and they 

notified the court that they had reached a unanimous verdict less than one hour later. The jury 

found that neither respondent deviated from the standard of care in treating the decedent. 

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

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heard argument on that motion on May 5, 2017. That motion was based on petitioner’s 

arguments that one member of the jury, Betty Wyrick, failed to disclose either at voir dire or 

during trial that she was acquainted with Nurse Truitt 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 third basis for granting 

petitioner a new trial. That affidavit was from one of petitioner’s attorneys, Eric J. Buckner, who 

represented therein that he learned 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 circuit court found that petitioner’s motion for a new trial based on the 

failure of Jurors Wyrick and Markell to reveal their connection to Nurse Truitt, 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 prejudice, either against petitioner or in favor of respondents, on the 

part of either juror. It also found that the jury’s verdict was supported by the clear weight of the 

evidence and should not be disturbed by the circuit court. 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 evidence and had an opportunity to assess each witness’s credibility, 

bias, knowledge, and qualifications, so the jury was in the position to make the determination. 

Therefore, it would not set aside their verdict. Petitioner appeals from the November 14, 2017, 

order denying his motion for a new trial. 

In terms of our standard of review of the grant or denial 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 circuit court’s underlying factual findings 

under a clearly erroneous standard. Questions 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 forth two assignments of error. First, he argues that the circuit 

court erred in denying his motion for a new trial when two of the six jurors, Jurors Wyrick and 

Markell, failed to accurately represent their relationship with one of BHC’s key witnesses, Nurse 

Truitt, by failing to disclose that they knew Nurse Truitt at any point during voir dire or the trial 

itself. He asserts that because neither juror came forward to disclose their 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. Petitioner further argues that the jurors’ reticence during 

voir dire foreclosed any challenge for cause or use of a peremptory challenge so bias must be 

presumed. 

This Court has long held that “[t]he true test as to whether a juror 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, 

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[t]he right to a trial by an impartial, objective jury in a criminal case is a 

fundamental right guaranteed by the Sixth and Fourteenth Amendments of the 

United States Constitution and Article III, 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 may exercise their challenges in an informed 

manner. . . . Moreover, it is difficult 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 voir dire questions. We believe it is 

incumbent on a defendant to bring to the trial court’s attention any deficiency in 

the voir dire that might impair the prospects 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 perceived 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 dire 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 realize 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 Facebook “friendship,” which was discovered by 

petitioner’s counsel subsequent to the trial, could have been discovered prior to the trial. The 

circuit court also pointed out that one of petitioner’s attorneys, Mr. Buckner, attended high 

school with Nurse Truitt, was social friends with her, and attended 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 this 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. 

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In addition, there is no evidence that these two jurors recognized Nurse Truitt during the 

trial, as the affidavit from Mr. Buckner simply provides that “Mr. Markell confirmed that he 

knew Ms. Truitt and informed [Mr. Buckner] that he knew Ms. Truitt from 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 worked at Wal-Mart more than ten years prior to the trial. Further, 

the only Facebook interaction between 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 petitioner’s motion for a new trial on this basis. 

Petitioner’s second assignment of error is that the 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 respondents violated the standard of care so the verdict was against 

the weight of the evidence. 

In addition to the standard of review for the denial of a motion for a new trial set forth 

above, this Court has held that 

“[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. 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 evidence 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, respondents presented evidence and testimony that established the opposite 

– that they complied with the standard of care. Defense experts, Drs. Parker, Petri, and Lamberti, 

all testified that respondents met the standard of care and did not cause or contribute to the 

decedent’s death. For instance, Dr. Lamberti testified 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 

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and that] nothing that the nurses did or didn’t do caused [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 condition. 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 testified 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. DeGray met the standard of care in treating the 

decedent in his office on March 20 and 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 petitioner’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 sitting by temporary assignment 

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