B.F. Speciality Company, a corporation, and Martin Shaffer v. Charles M. Sledd Company, a corporation, No. 23072 (W. Va. July 19, 1996) (Recht, J.):
Refusing to reverse a defense verdict where the chief assignments of error were regarded the failure of the trial court to order complete discovery, the Court held (1) a trial court has broad discretion in controlling the discovery process, and (2) an abuse of discretion with respect to discovery management occurs when the trial court acts so arbitrarily and unreasonably as to indicate a lack of careful consideration and to shock the appellate court's sense of justice.
State of West Virginia ex rel. James H. Paige, III, Secretary/Tax Commissioner of the West Virginia Department of Tax and Revenue v. Honorable Herman G. Canady, Jr., Judge of the Circuit Court of Kanawha County, James M. Sturgeon, Jr., and Carolyn S. Sturgeon, No. 23273 (W. Va. July 17, 1996) (Albright, J.):
Prohibiting enforcement of a subpoena against the state tax commissioner in a FOIA action, the Court held (1) highly-placed public officials are not subject to deposition absent a showing that their testimony is necessary to avoid undue prejudice; (2) in determining whether to permit the deposition of a highly-placed official, the court should consider (i) the nature of the underlying case, (ii) the degree to which the official has first-hand knowledge about or had direct involvement in the matter in dispute, (iii) the probable length of the deposition and the effect of the official's absence on the conduct of his or her office, and (iv) whether other discovery alternatives are available that would provide the information sought by deposition; and (3) the burden is upon the party requesting the deposition of a highly-placed public official to demonstrate its necessity.
State of West Virginia ex rel. United States Fidelity and Guaranty Company and Tim Linsky v. Honorable Herman G. Canady, Jr., Judge of the Circuit Court of Kanawha County, and Robert M. Lovell, No. 22867 (W. Va. July 11, 1995) (Cleckley, J.): 194 W.Va. 431, 460 S.E.2d 677:
Issuing a writ of prohibition against compelled disclosure of documents determined to be protected by the attorney-client privilege and work product exception in the context of an insurance bad faith suit, the Court held (1) where a discovery order involves compelled disclosure of confidential materials that are exempted by R. Civ. P. 26(b)(1) and (3), the exercise of the Court's prohibition jurisdiction is appropriate; (2) the person asserting it has the burden of establishing existence of the elements of attorney-client privilege or work product exception; (3) compelled disclosure of documents prepared by attorneys for their clients' information and future action is presumptively erroneous; (4) a party may waive the attorney-client privilege by asserting claims or defenses that put his or her attorney's advice in issue; and (5) requested disclosure of attorney work product should be carefully evaluated.
Shelley S. McDougal and David L. McDougal v. Julie K. McCammon, M.D., No. 22215 (W. Va. February 17, 1995) (Cleckley, J.): 193 W.Va. 229, 455 S.E.2d 788:
Affirming a defense verdict in a medical malpractice case where the plaintiff was surprised at trial by the introduction of a surveillance videotape which was not disclosed despite a discovery request, the Court held (1) rulings on the admissibility of evidence and the appropriateness of a particular sanction for discovery violations are within the discretion of the trial court; (2) evidentiary and procedural rulings by a trial court are subject to an abuse of discretion standard of review; (3) subject to certain exceptions, impeachment by contradiction may properly attack all kinds of testimony, whether given on direct or on cross-examination, as well as inferences suggested by evidence or arguments of counsel interpreting the evidence; and (4) in order to preserve the claim of unfair surprise as the basis for exclusion of evidence, the aggrieved party must move for a continuance or recess.
State of West Virginia ex rel. Ethel G. Erickson v. Honorable George Hill, Judge of the Circuit Court of Wood County, and Charles F. Erickson, Executor of the Estate of Charlie O. Erickson, No. 22197 (W. Va. May 26, 1994) (Neely, J.): 191 W.Va. 320, 445 S.E.2d 503:
Modifying a circuit court's order requiring a wife to disclose all of her assets having a value of $50 or more to require the wife to disclose all of her assets having a value of $500 or more, the Court held that the financial disclosure procedure in domestic relations cases should be as follows: (1) both parties should provide the asset, liability, and other relevant information required by Rule 11 of the Rules of Practice and Procedure for Family Law on the standard forms promulgated by the Court and (2) if this disclosure is deemed insufficient, the party seeking additional discovery should ask the family law master for discovery under Rule 81(a)(2) of the Rules of Civil Procedure.
State of West Virginia ex rel. Maurillo Chaparro and Susan Chaparro, husband and wife v. Honorable Christopher C. Wilkes, Judge of the Circuit Court of Berkeley County; Grove's Furniture Store; Dennis Grove, individually; and Southland Corporation, No. 21903 (W. Va. December 9, 1993) (Neely, J.): 190 W.Va. 395, 438 S.E.2d 575:
In prohibition proceeding challenging a discovery order granting a request by defendants for access to witness statements, witness names and addresses of witnesses, and a diary kept by plaintiffs at direction of counsel, the Court held that (1) although statements taken from witnesses during an investigation in anticipation of litigation are protected in the absence of a R. Civ. P. 26(b)(3) showing, the names and addresses of the witnesses are not protected, and (2) because the defendants failed to demonstrate a "substantial need" for the diary or that they would suffer "undue hardship," the diary was protected, and the trial court abused its discretion by ordering its disclosure.
State of West Virginia ex rel. Joan B. Kitzmiller, Executrix of the Estate of Eugene O. Kitzmiller v. Honorable John L. Henning, Jr., Judge of the Circuit Court of Randolph County; Paul Eugene Nefflen, M.D.; and Davis Memorial Hospital, a West Virginia corporation, No. 21841 (W. Va. November 2, 1993) (Neely, J.): 190 W.Va. 142, 437 S.E.2d 452:
Prohibiting a circuit court order which directed the plaintiff in a medical malpractice action to execute an authorization to the defendants to conduct ex parte interviews with the deceased's treating physicians, the Court held (1) a fiduciary relationship exists between a physician and a patient; (2) although a patient impliedly consents to the release of medical information regarding conditions which are the subject of a malpractice action, such consent does not extend to ex parte contacts outside court-authorized discovery methods; and (3) the formal discovery methods provided in the Rules of Civil Procedure provide the exclusive means by which an adverse party may obtain pretrial discovery of medical testimony relating to a patient's medical condition.
State of West Virginia ex rel. John David Letts, an infant under the age of 18 years who sues by his parents and next friends, et al. v. Honorable Paul Zakaib, Judge of the Circuit Court of Kanawha County; Charleston Area Medical Center, Inc., a West Virginia corporation; and Ellen Szego, M.D., No. 21599 (W. Va. July 16, 1993) (Workman, C.J.): 189 W. Va. 616, 433 S.E.2d 554:
Where trial judge had ordered infant plaintiff to submit to an MRI examination despite concerns of his parents that such exam could result in serious harm, the Court awarded a writ of prohibition, holding that (1) a trial court must find that the movant has shown good cause prior to compelling an independent medical examination pursuant to R. Civ. P. 35; (2) the good cause requirement of R. Civ. P. 35 mandates an affirmative showing that the subject of the examination is genuinely in controversy; (3) once good cause is demonstrated, the opposing party must demonstrate that the proposed examination poses more than a minimal level of risk; and (4) once the opposing party demonstrates that the proposed examination poses more than a minimal level of risk, the movant must demonstrate that the examination is "safe."
Catherine Young v. Joseph Saldanha, No. 21274 (W. Va. April 23, 1993) (Workman, C.J.): 189 W.Va. 330, 431 S.E.2d 669:
Rejecting a malpractice plaintiff's argument that the defendant physician waived the statutory peer review privilege by virtue of his suit to obtain peer review material following revocation of his staff privileges, the Court held that to effect a waiver of the privilege of confidentiality which attends information and records properly the subject of health care peer review pursuant to W. Va. Code §§ 30-3C-1 to -3, an individual must formally indicate his intent to waive confidentiality by executing a valid waiver.
State of West Virginia ex rel. Donald C. McCormick v. Honorable Paul Zakaib, Judge of the Circuit Court of Kanawha County; Allstate Insurance Company, an Illinois corporation; and David Dailey, No. 21458 (W. Va. February 25, 1993) (Miller, J.): 189 W.Va. 258, 430 S.E.2d 316:
Reversing an order barring admission of allegedly confidential attorney-client and attorney work-product material, the Court held that if a party discloses material in the discovery process and makes no claim of privilege, such privilege is waived for purposes of the admissibility of such material.
State Farm Mutual Automobile Insurance Company v. Honorable Booker T. Stephens, Judge of the Circuit Court of McDowell County, Donald Ray Perkins, and Sheila D. Perkins, No. 21368 (W. Va. December 16, 1992) (Miller, J.): 188 W.Va. 622, 425 S.E.2d 577:
Where defendant claimed that compliance with the trial court's discovery order would cost $40 million, the Court reversed and directed more restrictive discovery, holding that (1) a writ of prohibition may issue to control a trial court's substantial abuse of discretion relating to discovery; (2) a trial court may limit discovery under R. Civ. P. 26(B)(1)(iii) if it is unduly burdensome or expensive, taking into consideration the amount in controversy, the parties' resources, and the importance of the issues at stake; (2) where a request is made to limit discovery under R. Civ. P. 26(B)(1)(iii), the trial court should (a) weigh the requesting party's need for the information against the burden on the opposing party; (b) require the opposing party to demonstrate the burdensomeness of the request unless it is oppressive on its face; and (c) consider the relevancy and materiality of the information sought; and (3) discovery is not limited to only admissible evidence, but to information reasonably calculated to lead to the discovery of admissible evidence. On issues of the propriety of discovery sanctions, the Court held (1) contempt is a permissible sanction for failure to obey a discovery order under R. Civ. P. 37(b)(2)(D), except an order to submit to a physical or mental examination; (2) a per diem penalty is a permissible discovery sanction where it is set prospectively from the date of the contempt order as a means of insuring compliance with the discovery order; and (3) in addition to other discovery sanctions, a trial court may require, pursuant to R. Civ. P. 37(b)(2)(D), either the offending party or the party's attorney or both to pay the moving party's reasonable expenses, including attorney fees, unless the violation was substantially justified or such award would be unjust.
State ex rel. Teresa Fearnow Shroades v. Honorable Patrick G. Henry, Judge of the Circuit Court of Berkeley County, No. 21167 (W. Va. July 22, 1992) (Neely, J.): 187 W.Va. 723, 421 S.E.2d 264:
Reversing an order which denied a discovery request for certain hospital records in a medical malpractice case, the Court held that (1) under W. Va. Code § 30-3C-1, et seq., governing medical peer review organizations, the determination of what materials are privileged is a factual question with the party asserting the privilege having the burden of proof; (2) W. Va. Code § 30-3C-3, which protects "records and proceedings of a review organization," does not extend to anything considered by a review organization which is "otherwise available from original sources;" and (3) trial courts should conduct an in camera inspection of documents sought to be protected under the medical peer review organization statute.
Dorothy Dent v. Honorable Tod J. Kaufman, Judge of the Circuit Court of Kanawha County, Jack Fruth, and Fruth Pharmacy, Inc, a corporation, No. 20086 (W. Va. June 6, 1991) (Neely, J.): 185 W.Va. 171, 406 S.E.2d 68:
Overturning a protective order which prohibited plaintiff's counsel from speaking with defendants' non-managerial employees, the Court held that a corporate "party" for purposes of Rule 4.2 of the Rules of Professional Conduct, which prohibits communication with a "party" represented by counsel, includes only those officials (1) who have the legal power to bind the corporation in the matter, (2) who are responsible for implementing the advice of the corporation's attorney, or (3) whose interests are directly at stake in the litigation.
Delbert Nutter, Dana Nutter, and Edna Nutter, Committee and next friend of Linda Mullins, and Thomas Mullins v. Honorable Elliott E. Maynard, Judge of the Circuit Court of Mingo County; Wyeth Laboratories, and Wyeth Laboratories, Inc.; Nicholas County Health Department; Nicholas County Family Planning Clinic; William Lester, M.D.; and Robert E. Fleer, M.D., No. 19460 (W. Va. June 21, 1990) (Workman, J.): 183 W.Va. 247, 395 S.E.2d 491:
In reversing an order that plaintiffs provide defendants with written reports from each expert witness expected to testify at trial, the Court held that although a trial court does have discretion to compel "discovery by other means" under R. Civ. P. 26(b) (4) (A) (1) when a party complains regarding the answers to interrogatories, the proper procedure is for such party to first file a motion to compel more complete answers under R. Civ. P. 37(a) (2).
Ronald Luster and Sharon Luster v. James E. Brown, No. CC994 (W. Va. October 30, 1989) (Brotherton, C.J.): 182 W.Va. 122, 386 S.E.2d 489:
Where a report of defendant's medical expert was ironically more favorable than that of plaintiffs' expert and plaintiffs sought to subpoena such expert as their witness, the Court held that where a physical examination is conducted pursuant to Rule 35(b) of the Rules of Civil Procedure, there is an exception under Rule 26(b) (4) (B) of the Rules of Civil Procedure to the general rule limiting discovery of expert opinions prepared in anticipation of litigation, which permits opposing parties to discover and use the reports of such physical examinations at trial.