Benjamin, J., dissenting.
I dissent from the majority opinion. Based upon my review of the record, I
conclude that the circuit court's findings were not supported by the credible evidence of
record and that such findings were clearly erroneous when the record is viewed as a whole.
It is not often that I do not defer to the trial court in such matters and these certainly are
difficult cases, but here I believe the conclusion that this young child scalded herself is
inconsistent with the facts of the record and the opinions of Sophia S.'s treating physicians.
Sophia S. received second-degree scalding-type burns to her feet and legs. Her mother
contended that these burns were the result of an accidental immersion, as opposed to an
intentional act on the part of her mother. (See footnote 1) On appeal, I believe my colleagues fail to give
sufficient weight to the medical opinions of the two treating emergency room physicians as
well as that from the medical personnel treating the child at a specialized out-of-state burn
clinic which supported the conclusion that Sophia S.'s burns were the result of the mother's
intentional act.
The circuit court's findings of fact on this issue were based upon the opinion
testimony of Greg Porter, a physician's assistant, who was hired by the mother to review
medical records and to provide expert testimony. Mr. Porter was not involved in the
treatment of this child. The State and the guardian ad litem relied upon the expert medical
testimony of two treating physicians at the Cabell Huntington Hospital Burn Center, Eduardo
Pino, M.D., and David Henchman, M.D. The State and the guardian ad litem also relied
upon the medical opinion, by way of statement, of Gail E. Besner, M.D., Sophia S.'s treating
physician at Nationwide Children's Hospital, a nationally-recognized children's medical
facility in Columbus, Ohio. The combined expert opinions of Drs. Pino, Henchman and
Besner concluded that Sophia S.'s immersion burns were the result of an intentional act by
the mother. The opinions of these medical doctors was based upon years of experience with
the treatment of burns on an emergency basis and upon their actual examination of Sophia S.
We have held that “[i]n determining who is an expert, a circuit court should
conduct a two-step inquiry. First, a circuit court must determine whether the proposed expert
(a) meets the minimal educational or experiential qualifications, (b) in a field that is relevant
to the subject under investigation, and (c) which will assist the trier of fact. Second, a circuit
court must determine that the expert's area of expertise covers the particular opinion as to
which the expert seeks to testify. Gentry v. Mangum, 195 W.Va. 512, 466 S.E.2d 171
(1995). If one accepts for the moment that the physician's assistant was competent herein
to give medical opinion testimony regarding causation, (See footnote 2) the role of the circuit court as the
fact-finder in this abuse and neglect proceeding was to assess and weigh the differences
between the treating medical doctors' evidence and that of the retained physician's assistant.
Based not only upon the overwhelming difference in expertise and experience of these
witnesses, but also on the manner in which Sophie S. was burned, I believe that the circuit
court failed to give sufficient weight to the opinions of the treating medical doctors. As the
majority correctly notes, our standard of review of the findings and conclusions of the circuit
court is deferential. Moreover, these are admittedly difficult cases for all involved. Here,
however, when the record is reviewed as a whole, I believe the findings of the circuit court
on the accidental nature of the child's burns to be clearly erroneous.