Robert V. Berthold, Jr. Esquire                            Stephen D. Annand, Esquire
Tony L. O'Dell, Esquire                                        Roberta F. Green, Esquire
Berthold, Tiano & O'Dell                                      Shuman, McCuskey & Slicer
Charleston, West Virginia                                     Charleston, West Virginia
Attorneys for Appellant                                        Attorneys for Appellee

JUSTICE SCOTT delivered the Opinion of the Court.

JUSTICE STARCHER concurs in part and dissents in part and reserves the right to file a concurring/dissenting Opinion.

        1. “Upon an allegation before a trial court that a juror falsely answered a material question on voir dire, and where a request is made for a hearing to determine the truth or falsity of such allegation it is reversible error for the trial court to refuse such hearing.” Syl. Pt. 2, West Virginia Human Rights Comm'n v. Tenpin Lounge, Inc., 158 W.Va. 349, 211 S.E.2d 349 (1975).     

        2. “It is a violation of the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States and article III, section 10, of the Constitution of West Virginia for a party in a civil action to purposefully eliminate potential jurors from a jury through the use of peremptory strikes solely upon the basis of gender.” Syl. Pt. 4, Payne v. Gundy, 196 W.Va. 82, 468 S.E.2d 335 (1996).

        3. “To prove a violation of equal protection, the analytical framework established in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), involves three steps. First, there must be a prima facie case of improper discrimination. Second, if a prima facie case is shown, the striking party must offer a neutral explanation for making the strike. Third, if a neutral explanation is given, the trial court must determine whether the opponent of the strike has proved purposeful discrimination. So long as the reasons given in step two are facially valid, the explanation for the strike need not be persuasive or plausible. The persuasiveness of the explanation does not become relevant until the third step when the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination.” Syl. Pt. 1, Parham v. Horace Mann Ins. Co., 200 W.Va. 609, 490 S.E.2d 696 (1997).

        4. “Upon review, this Court will afford great weight to a trial court's findings as to whether a peremptory strike was used to advance racial or sexual discrimination.” Syl. Pt. 4, Parham v. Horace Mann Ins. Co., 200 W.Va. 609, 490 S.E.2d 696 (1997).

        5. The “mistake of judgment” jury instruction, which this Court first approved in Dye v. Corbin, 59 W.Va. 266, 53 S.E. 147 (1906), wrongly injects subjectivity into an objective standard of care, is argumentative and misleading, and should no longer be used to instruct the jury concerning the relevant standard of care in a medical malpractice action. Accordingly, we hereby overrule Dye v. Corbin, 59 W.Va. 266, 53 S.E 147 (1906), and its progeny, insofar as those cases approve the giving of a “mistake of judgment” instruction.

Scott, Justice:

    The estate of Jennifer Pleasants, a fifteen-year-old who died within ten hours of leaving the emergency room of Women and Children's Hospital in Charleston, West Virginia, after presenting herself for treatment with gastritis-type symptoms, appeals from a defense verdict. The assignments of error upon which Appellant relies include: (1) the trial court's failure to permit a hearing on whether a juror gave false answers during voir dire; (2) an equal protection violation resulting from allegations that AppelleesSee footnote 1 ¹ purposefully eliminated females from the jury panel; (3) an improper verdict form and various instructional errors; and (4) Appellees' presentation of cumulative and unfairly prejudicial expert testimony on the standard of care issue. After carefully examining these issues in conjunction with the record submitted, we find no prejudicial error and accordingly, affirm.

        At trial, Appellees argued that given the rarity of this type of infection, Dr. Prudich could not have been expected to make a correct diagnosis. According to Appellant,See footnote 3 ³ she did not base her theory of malpractice on the failure to promptly and accurately diagnose the rare disease, but instead on Appellees' failure to keep Jennifer at the hospital for further observation and administration of intravenous fluids. After deliberating for three days, the jury returned a defense verdict. Appellant seeks a reversal of the lower court's denial of her motion for a new trial based upon the above-delineated assignments of error.

        On the second day of the jury's deliberations,See footnote 4 ⁴ Appellant sought a hearing for the purpose of resolving whether juror Clements had truthfully responded to the above- delineated voir dire. After hearing arguments of counsel on this issue, the lower court denied Appellant's request for a hearing.See footnote 5 ⁵ Citing this Court's ruling in West Virginia Human Rights Commission v. Tenpin Lounge, Inc., 158 W.Va. 349, 211 S.E.2d 349 (1975) , Appellant maintains that the lower court erred in not holding a hearing on this issue of voir dire truthfulness.See footnote 6 ⁶

        In syllabus point two of Tenpin Lounge, we held that: “Upon an allegation before a trial court that a juror falsely answered a material question on voir dire, and where a request is made for a hearing to determine the truth or falsity of such allegation it is reversible error for the trial court to refuse such hearing.” Id. at 349-50, 211 S.E.2d at 350.

Our holding in Tenpin Lounge requires reversal upon a denial of the requested hearing only when there is an allegation that a juror falsely answered a material question.See footnote 7 ⁷ Careful examination of the questions put to juror Clements during voir dire does not reveal that he testified falsely to any material question. Because the query concerning employment “for a company in sales, adjusting, claims” was expressly limited to present employment, Mr. Clements, a retired UPS employee, cannot be said to have answered the question untruthfully. Giving Appellant the benefit of the doubt on the issue of whether Mr. Clements prior employment in the safety department of UPSSee footnote 8 ⁸ even comes within the scope of the question, we still see no evidence of untruthful testimony given the express limitation to present employment.See footnote 9 ⁹ Since the factual predicate of a falsely answered material question was never established, we conclude that it was not reversible error for the trial court to have refused to hold a hearing on this issue. See id. at 349-50, 211 S.E.2d at 350, syl. pt. 2.

        In the seminal decision of Batson v. Kentucky, 476 U.S. 79 (1986), the United States Supreme Court established the framework for determining whether a peremptory strike was used for a discriminatory purpose. Id. at 80. We adopted this three-step process in syllabus point one of Parham:

            To prove a violation of equal protection, the analytical framework established in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), involves three steps. First, there must be a prima facie case of improper discrimination. Second, if a prima facie case is shown, the striking party must offer a neutral explanation for making the strike. Third, if a neutral explanation is given, the trial court must determine whether the opponent of the strike has proved purposeful discrimination. So long as the reasons given in step two are facially valid, the explanation for the strike need not be persuasive or plausible. The persuasiveness of the explanation does not become relevant until the third step when the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination.

200 W.Va. at 611, 490 S.E.2d at 698.

        Unlike the voir dire issue where the trial court did not hold the hearing requested by counsel, a hearing in conformity with the precepts of both Batson and Parham was held. Although the lower court engaged in the required three-step process, Appellant urges this Court to find that the lower court abused its discretion in ruling that “gender was not a factor in jury selection and that all persons were give[n] a full opportunity to participate in the system regardless of their gender.”See footnote 10 ¹⁰ Acknowledging that Appellees complied with step two of the Batson/Parham test by offering seemingly nondiscriminatory reasons for its strikes, Appellant maintains that these reasons are both “fishy” and “pretext[ual].” Appellant suggests that, notwithstanding the facially neutral explanations offered, Appellees engaged in purposeful elimination of jurors based on their gender.

        The reasons offered by Appellees in explanation of the challenged strikes included prior litigation history; prior juror duty;See footnote 11 ¹¹ follower-type personality;See footnote 12 ¹² socioeconomic reasons;See footnote 13 ¹³ uncomfortable eye contact;See footnote 14 ¹⁴ and a pending malpractice suit.See footnote 15 ¹⁵ This Court made clear in Parham that the striking party's explanation of the challenged strikes “need not be persuasive or plausible.” 200 W.Va. at 614, 490 S.E.2d at 701. The only requirement in step two of the process is that the reasons given must be “facially valid.”See footnote 16 ¹⁶ Id. Even Appellant concedes that Appellees complied with this requirement of demonstrating facial validity. It is step three of the Batson/Parham process to which Appellant assigns error: the trial court's ultimate decision that Appellees had not engaged in purposeful gender discrimination.

        In syllabus point four of Parham we ruled that “[u]pon review, this Court will afford great weight to a trial court's findings as to whether a peremptory strike was used to advance racial or sexual discrimination.” 200 W.Va. at 611, 490 S.E.2d at 698. The reason for treating “the trial court's decision on the ultimate question of discriminatory intent” as “a finding of fact of the sort accorded great deference on appeal,” is “because . . . the finding 'largely will turn on evaluation of credibility.'” Hernandez v. New York, 500 U.S. 352, 364- 65 (1991) (quoting, in part, Batson, 476 U.S. at 98 n.21). Explaining further, the United States Supreme Court stated,

        In the typical peremptory challenge inquiry, the decisive question will be whether counsel's race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge. As with the state of mind of a juror, evaluation of the

. . . [attorney's] state of mind based on demeanor and credibility lies “peculiarly within a trial judge's province.”

Hernandez, 500 U.S. at 365 (quoting Wainwright v. Witt, 469 U.S. 412, 428 (1985)). Since the issue of intentional discrimination, as acknowledged by the high court in Batson,See footnote 17 ¹⁷ is essentially a credibility issue, we afford trial courts “substantial discretion in determining whether the reasons articulated by the striking party are merely pretextual. Parham, 200 W.Va. at 615, 490 S.E.2d at 702 (citing State v. Rahman, 199 W.Va. 144, 159, 483 S.E.2d 273, 288 (1996) (Cleckley, J., concurring)).See footnote 18 ¹⁸

         We reject Appellant's suggestion that the rights sought to be protected by Batson and its progeny “become illusory” when a striking party is permitted to offer “fishy pretexts” in response to a challenged strike. Applying its Batson decision, the United States Supreme Court resolved this issue in Purkett v. Elem, 514 U.S. 765 (1995) (per curiam), by reversing the United States Court of Appeals for the Eighth Circuit based on its improper merging of steps two and three of the Batson process. Faulting the appellate court for “requiring that the justification tendered at the second step be not just neutral but also at least minimally persuasive,” Purkett, 514 U.S. at 768, the Supreme Court clarified what it meant by requiring the striking party to offer a “'legitimate reason'” in explanation of the challenged strike. Id. (quoting Batson, 476 U.S. at 98 n.20, quoting Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 258 (1981)). “What it means by a 'legitimate reason' is not a reason that makes sense, but a reason that does not deny equal protection.” 514 U.S. at 769. Applying this standard to the justification offered in Purkett, the Court found the prosecutor's proffered explanation--long, unkempt hair, a mustache, and a beard-- to be “race neutral” and to satisfy the “step two burden of articulating a nondiscriminatory reason for the strike.” Id. at 769. Critically, as the Supreme Court recognized in Purkett: “It is not until the third step that the persuasiveness of the justification becomes relevant--. . . At that stage, implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.” Id. at 768; see also Rahman, 199 W.Va. at 159, 483 S.E.2d at 288 (Cleckley, J., concurring) (stating that “I do not believe that Purkett's acceptance of a facially neutral explanation, even if implausible or fantastic, sounds the death knell for Batson in all but the most flagrant cases”).

        Peremptory challenges have been recognized as “'one of the most important of the rights'” in our judicial system. Batson, 476 U.S. at 120 (Burger, J., dissenting)

(quoting Swain v. Alabama, 380 U.S. 202, 219 (1965)). As discussed by Justice Burger in his dissent to Batson, “peremptory challenges are often lodged, of necessity, for reasons 'normally thought irrelevant to legal proceedings or official action, namely, . . . religion, nationality, occupation or affiliations of people summoned for jury duty.'” 476 U.S. at 123 (quoting Swain, 380 U.S. at 220). Like it or not, the peremptory challenge system inherently involves the elimination of jurors based on perceived biases and, given the limited biographical information available to counsel, it is necessarily founded on assumptions, hunches, and intuition. See 476 U.S. at 123. Recognizing that peremptory challenges serve to strengthen our jury system, the dissentersSee footnote 19 ¹⁹ to Batson observed:

        “The peremptory, made without giving any reason, avoids trafficking in the core of truth in most common stereotypes . . . .Common human experience, common sense, psychosociological studies, and public opinion polls tell us that it is likely that certain classes of people statistically have predispositions that would make them inappropriate jurors for particular kinds of cases. . . . [W]e have evolved in the peremptory challenge a system that allows the covert expression of what we dare not say but know is true more often than not.”

476 U.S. at 121 (Burger, J., dissenting) (quoting Babcock, Voir Dire: Preserving “Its Wonderful Power,” 27 Stan.L.Rev. 545, 553-54 (1975)). As the Supreme Court observed in Swain,

            The function of the [peremptory] challenge is not only to eliminate extremes of partiality on both sides, but to assure the parties that the jurors before whom they try the case will decide on the basis of the evidence placed before them, and not otherwise. In this way the peremptory satisfies the rule that “to perform its high function in the best way 'justice must satisfy the appearance of justice.'” In re Murchison, 349 U.S. 133, 136 [1955]. Indeed the very availability of peremptories allows counsel to ascertain the possibility of bias through probing questions on voir dire and facilitates the exercise of challenges for cause by removing the fear of incurring a juror's hostility through examination and challenge for cause.

380 U.S. at 219-20.

        Provided the strike has not been made on a discriminatory basis , the underlying reason for a peremptory challenge is not subject to further inquiry . See Purkett, 514 U.S. at 769. And, while we are loathe to condone, even indirectly, any purposeful exclusion of jurors based on gender, we have no evidence before us from which we can make a determination that the strikes at issue were made on a discriminatory basis. Accordingly, we conclude that the lower court did not abuse its discretion in ruling that “gender was not a factor in jury selection .”

         Appellant's theory of liability was based upon Appellees ' failure to keep Jennifer at the hospital for further observation , rather than the inability to properly diagnose her condition .See footnote 23 ²³ Had Jennifer been at the hospital, Appellant argues that the unmistakable signs of peritonitis would have been observed and surgery would have resulted which would have saved her life. Appellees argued to the jury that Dr. Prudich gave Jennifer's mother the option of taking her daughter home after the conclusion of the examination or permitting her to remain in the emergency room for additional observation . The decision was made to return home and Jennifer left the hospital with instructions that she was to be watched closely for the next two to four hours and to return to the hospital as indicated by the abdominal pain sheet.

        At trial, the jury heard expert testimony confirming that the symptoms Jennifer presented with at the emergency room were consistent with garden variety gastritis. The jury also heard testimony that there are different tests and different drugs that might be ordered for a patient presenting with abdominal symptoms such as Jennifer.See footnote 24 ²⁴ We disagree with Appellant's suggestion that the jury may have been misled, based on the giving of the “multiple methods of treatment” instruction , into believing that Dr. Prudich utilized a recognized treatment for phlegmonous gastritis. From the evidence presented at trial, the jury was clearly informed that the correct diagnosis was not made until after Jennifer's death. What the “multiple methods of treatment” instruction did was to advise the jury that there is not just one recognized method of treating a patient who presents with the gastritis symptoms that Jennifer had. We find no error in the giving of this instruction as the evidence before the jury supported such an instruction.See footnote 25 ²⁵
      

            Where a physician exercises ordinary skill and diligence, keeping within recognized and approved methods, he is not liable for the result of a mere mistake of judgment. A physician is liable for the result of error of judgment, where such error is so gross as to be inconsistent with the degree of skill which it is the duty of a physician to possess.

Id. at 266, 53 S.E. at 148, syl. pts 6 and 7.

        This Court upheld the use of Corbin-type instructions in Davis v. Wang, 184 W.Va. 222, 400 S.E.2d 230 (1990). In Davis, we found that the giving of such an instruction was proper as to one of two treating physicians and reversible error as to the second physician. As to the physician who could not even remember if he actually examined the patient and whether he examined the patient's entire medical chart, we disapproved the giving of the Corbin instruction . Id. at 227, 400 S.E.2d at 235. What this Court did in Wang was to determine that, because the medical treatment given by the second doctor was grossly inadequate under established standard of care levels, the “mistake of judgment” was inapplicable to the issue of such doctor's commission of negligence.

        More recently, in Dupuy v. Allara, 193 W.Va. 557, 457 S.E.2d 494 (1995), this Court again examined, and approved, the giving of a “mistake of judgment” instruction where the plaintiffs asserted that a correct and timely diagnosis would have prevented cardiac failure and its consequences. In Allara, we pointed out that in Wang this Court sanctioned the use of such an instruction for the resident doctor who examined the child, treated him, and failed to diagnose Kawaski's disease. Id. at 561, 457 S.E.2d at 498. In upholding the giving of the “mistake of judgment” instruction in Allara, this Court focused on the fact that evidence was admitted at trial that “'many physicians in this particular situation would not have diagnosed the illness under these circumstances,' and that 'endocarditis can be difficult to diagnose.'” Id.

        In examining case law from other jurisdictions, it is clear that a movement has begun towards eradication of certain language typically contained in “mistake of judgment” or “error of judgment” instructions or elimination of those instructions in their entirety. Those courts that have rejected use of a “mistake of judgment” instruction have done so based on the inclusion of adjectival terms such as “honest,” “bona fide,” “good faith,” or “best” in reference to the issue of a physician's exercise of judgment.See footnote 27 ²⁷ The theory underlying the disapproval of such terms is that they wrongly inject subjectivity into what is otherwise viewed as an objective standard of care issue. See generally Joseph H. King, Jr., Reconciling the Exercise of Judgment and the Objective Standard of Care in Medical Malpractice, 52 Okla. L. Rev. 49 (1999). Courts and commentators have been troubled by the potential for jury confusion through the suggestion that, if the doctor in his own mind was making the “best” judgment regarding a method of treatment, the jury might be wrongly persuaded to find in the doctor's favor even though that subjective “best” judgment was in fact below accepted standard of care levels. Put another way, some courts view such instructions as problematic because they “erroneously imply[] that only dishonest or bad-faith deviations from the applicable standard of care constitute actionable negligence. “ DiFranco v. Klein, 657 A.2d 145, 148 (R.I. 1995).See footnote 28 ²⁸

        While the “mistake of judgment” instruction is still recognized as valid by various states,See footnote 29 ²⁹ we find that courts increasingly are veering away from the use of these instructions based on the potential for jury confusion. Upon a reexamination of this issue, we are convinced that the instruction has little use in the face of legislative enactments such as West Virginia Code § 55-7B-3 (2000), which define the necessary elements for proving a medical malpractice cause of action. Given the possibility for juror confusion arising from the use of subjective terms such as “honest,”and “gross,” we hold that the “mistake of judgment” jury instruction, which this Court first approved in Corbin, wrongly injects subjectivity into an objective standard of care; is argumentative and misleading; and should no longer be used to instruct the jury concerning the relevant standard of care in a medical malpractice action. Accordingly, we hereby overrule Dye v. Corbin, and its progeny, insofar as those cases approve the giving of a “mistake of judgment” instruction.See footnote 30 ³⁰ 59 W.Va. 266, 53 S.E. 147.

        Despite our decision to overrule Corbin, we do not find reversible error on the basis of the giving of the “mistake of judgment” instruction in this case. Since the remaining instructions properly advised the jury regarding the elements necessary to prove a case of medical malpractice, we find the giving of the instruction to be harmless error. Other appellate courts have similarly concluded that a new trial is not required following the giving of a “mistake of judgment” instruction, which the court subsequently finds to be in error, provided the remainder of the charge correctly stated the standard for proving negligence. See Baker v. Werner, 654 P.2d 263, 268 (Alaska 1982) (holding that any error in giving “mistake of judgment” instruction was harmless since remaining instructions correctly informed jury regarding standard against which to evaluate physician's conduct); Morlino v. Medical Ctr., 706 A.2d 721, 734 (N.J. 1998) (affirming judgment notwithstanding use of “mistake of judgment” instruction based on fact that “charge as a whole . . . clarifies that a deviation from the standard of care is negligence”).

        Appellant argues that the trial court erred in permitting Dr. Seidler to testify as to the standard of care since his disclosure was not made until seven months after the agreed-upon deadline. In addition, Appellant contends that the jury was wrongly permitted to hear cumulative evidence on standard of care since the jury heard the testimony of both Dr. Seidler and Dr. Braen on this issue.

        With regard to the late disclosure of Dr. Seidler as a standard of care expert,See footnote 31 ³¹ Appellee Alliance disputes that prejudice resulted through the late disclosure due to the fact that Appellant deposed Dr. Seidler twice in the intervening six month period before the trial date. While this Court does not condone noncompliance by any party with discovery deadlines, we agree with the trial court's decision that scheduling orders were not meant to be used in a punitive fashion to prevent one party from adapting their case strategy to fit a plaintiff's altered theory of the case.See footnote 32 ³² Since Appellant clearly was not surprised by the testimony of Dr. Seidler, we find no prejudice based on the late disclosure. Concerning Appellant's contention that she was prejudiced by the cumulative effect of two experts testifying as to standard of care , we are without a proper factual basis from which to assess this assignment because a trial transcript relevant to this issue has not been provided to this Court.See footnote 33 ³³ Accordingly, we find no error regarding the testimony of Dr. Seidler.

        Based on the foregoing, the decision of the Circuit Court of Kanawha County is hereby affirmed.

                                            Affirmed.
        

long as it utilizes that method of treatment in a non-negligent manner as otherwise instructed by the Court.

normal, pulse normal, respirations normal, . . . blood pressure normal [,and] . . . that the BUN, which easily goes up and down with dehydration, was normal.”

equally acceptable medically”); Roach v. Hockey, 634 P.2d 249, 252 (Or. Ct. App. 1981) (approving “mistake of judgment” instruction and stating that “it is clear that a physician is not liable for an error of judgment where there is a reasonable doubt or a difference of opinion as to the nature of the patient's condition or the proper course of treatment and the physician acts with reasonable care and skill in exercising that judgment”); Havasy v. Resnick, 609 A.2d 1326, 1335-36 (Pa. Super. Ct. 1992) (upholding “mistake of judgment” instruction and explaining that “instruction was appropriate because of expert testimony that compartment syndrome is often difficult to diagnose early”); Fitzgerald v. Vincent, 1997 WL 199055 at *9 (Wash. Ct. App. 1997) (finding that “error of judgment instruction may be used to supplement the standard of care instruction and should be given with caution and 'be limited to situations where the doctor is confronted with a choice among competing therapeutic techniques or among medical diagnoses'”) (quoting Watson, 727 P.2d at 674).