| Marvin W. Masters, Esq. Julie N. Langford, Esq. The Masters Law Firm, LC Charleston, West Virginia Attorneys for Appellant Price | Dina M. Mohler, Esq. Cheryl A. Eifert, Esq. Office of the General Counsel Charleston Area Medical Center, Inc. Charleston, West Virginia Attorneys for Appellee Charleston Area Medical Center, Inc. Charles R. Bailey, Esq. Susan M. Harman, Esq. George J. Joseph, Esq. Bailey & Wyant, PLLC Charleston, West Virginia Attorneys for Appellee University of West Virginia Board of Trustees Mark A. Robinson, Esq. C. Benjamin Salango, Esq. Flaherty, Sensabaugh & Bonasso, PLLC Charleston, West Virginia Attorneys for Appellee Associated Radiologists, Inc. |
BENJAMIN,
Justice:
In this
appeal, the appellant and plaintiff below, Ercelle E. Price, challenges the December
4, 2003, order of the Circuit Court of Kanawha County, West Virginia, denying
his motion for a new trial following an adverse jury verdict in his medical malpractice
action. The appellees and defendants below are Charleston Area Medical Center,
Inc.; University of West Virginia Board of Trustees; and Associated Radiologists,
Inc. The appellant's cause of action was based upon the alleged failure of the
appellees to timely diagnose and treat his appendicitis and ruptured appendix.
The appellant contends that, as a result, he suffered medical complications and
permanent injury.
This
Court has before it the petition for appeal, all matters of record and the briefs
and argument of counsel. One of the appellant's assignments of error concerns
the assertion that the Circuit Court erred in granting, sua sponte, each
of the appellees 3 peremptory challenges from the panel of 20 potential jurors.
According to the appellant, the total of 9 peremptory challenges thus granted
the appellees, compared to the 3 peremptory challenges granted him, resulted
in the denial of a fair and impartial jury, especially since, as the appellant
argues, the appellees presented a united defense against him.
Upon
careful review, this Court finds merit in the appellant's assertion concerning
the peremptory challenges afforded to the parties. Therefore, for the reasons
expressed herein, the December 4, 2003, order of the Circuit Court is reversed,
and this action is remanded to that Court for a new trial.
More
specifically, syllabus point 4 of Sanders v. Georgia-Pacific Corp., 159
W.Va. 621, 225 S.E.2d 218 (1976), holds: “Although the ruling of a trial
court in granting or denying a motion for a new trial is entitled to great respect
and weight, the trial court's ruling will be reversed on appeal when it is clear
that the trial court has acted under some misapprehension of the law or the evidence.” Syl.
pt. 2, Phares v. Brooks, 214 W.Va. 442, 590 S.E.2d 370 (2003); syl. pt.
2, Heitz v. Clovis, 213 W.Va. 197, 578 S.E.2d 391 (2003); syl. pt. 1, Matheny
v. Fairmont General Hospital, 212 W.Va. 740, 575 S.E.2d 350 (2002); syl.
pt. 2, Witt v. Sleeth, 198 W.Va. 398, 481 S.E.2d 189 (1996).
Here,
although the Circuit Court conducted a hearing upon the appellant's motion for
a new trial, the order of December 4, 2003, does not set forth reasons as to
why the motion was denied.
Rule
47(b) of the West Virginia Rules of Civil Procedure, concerning peremptory
challenges, provides as follows:
Unless the court directs that
a jury shall consist of a greater number, a jury shall consist of six persons.
The plaintiff and the defendant shall each have two peremptory challenges which
shall be exercised one at a time, alternately, beginning with the plaintiff.
Several defendants or several plaintiffs may be considered as a single party
for the purpose of exercising challenges, [or the court] may allow additional
peremptory challenges and permit them to be exercised separately or jointly.
A fair
reading of Rule 47(b) suggests that it provides a circuit court with the degree
of flexibility or discretion required in determining the number of additional
peremptory challenges to be allowed in a trial involving multiple parties where
the interests of co-plaintiffs or co-defendants are antagonistic or hostile.
The authority of a circuit court in that regard may be found in two West Virginia
cases which predate the adoption of the West Virginia Rules of Civil Procedure: Tawney
v. Kirkhart, 130 W.Va. 550, 44 S.E.2d 634 (1947), and Horchler v. Van
Zandt, 120 W.Va. 452, 199 S.E. 65 (1938). (See
footnote 5) Syllabus point 3 of Horchler holds: “It is
not prejudicial error against a defendant in a law action for the trial court
to place in the jury box twenty-four qualified jurors in order that defendants
having
antagonistic interests in the case may be afforded opportunity for separate
peremptory challenges.” (See
footnote 6)
In Tawney
v. Kirkhart, this Court recognized that defendants whose interests are the
same exercise the right to peremptory challenges “in common.” However,
where the interests of defendants are hostile, “upon motion and proper showing
it is error to decline the statutory number of peremptory challenges to each
defendant.” 130 W.Va. at 561, 44 S.E.2d at 641. Nevertheless, concluding,
in Tawney, that a proper showing for separate peremptory challenges with
regard to the defendant railroad company and defendant Kirkhart had not been
made, the opinion states:
The testimony at the trial fully
justifies the statement of counsel for the railroad company that the interests
of Kirkhart and their client were conflicting and hostile. There was, however,
no showing of that nature before the Circuit
Court at the time of the motion nor was the motion accompanied by an offer
of such a showing. In this instance an examination of the pleadings possibly
would show hostility, but we do not believe the mere statement that conflicting
interests exist, without more, required the judge to take the initiative in
inspecting the pleadings. If the pleadings are depended upon as the required
showing the movant should direct the attention of the court to the reasons
for so regarding them. Otherwise it is not error to disregard them.
130 W.Va. at 561-62, 44 S.E.2d at 641. (See
footnote 7) See also, F. Cleckley, R. Davis, L. Palmer, Litigation
Handbook on West Virginia Rules of Civil Procedure, p. 841 n. 380 (Juris
Publishing 2002).
What
the reasoning in Tawney brings to Rule 47(b) is twofold: (1) that the
granting of separate peremptory challenges to two or more plaintiffs or two or
more defendants must be upon the basis that the interests of the plaintiffs or
of the defendants are antagonistic or hostile and (2) that the plaintiffs or
the defendants, as the case may be, bear the burden of showing both the existence
of such adversity and that the granting of separate peremptory challenges is
necessary for a fair trial. As discussed below, those principles are consistent
with various cases from other jurisdictions.
In Kloetzli
v. Kalmbacher, 65 Md.App. 595, 501 A.2d 499 (1985), cert. denied,
305 Md. 621, 505 A.2d 1342 (1986), the plaintiff, Kloetzli, appealed from an
adverse jury verdict in a personal injury action brought against a police officer
and the Mayor and City Council of Baltimore City. Kloetzli asserted that the
trial court committed error in granting each of the defendants separate peremptory
challenges. The applicable procedural rule provided in part: “[S]everal
plaintiffs or several defendants shall be considered as a single party unless
the court determines that adverse or hostile interests between plaintiffs or
between defendants justify allowing to each of them separate peremptory challenges
[.]”
The Court
of Special Appeals of Maryland held, in Kloetzli, that the granting of
the additional peremptory challenges did not constitute an abuse of discretion
because, as a result of the statements and representations of respective counsel
placed upon the record during the jury selection process, a basis was established
before the trial court showing adversity in the interests of the defendants and
that the additional challenges were justified. (See
footnote 8) As the Court in Kloetzli said:
We hold that the determination
of whether multiple plaintiffs or multiple defendants are entitled to additional
challenges under Rule 2-512(h) involves a two step process. First, the court
must make a factual finding of adverse or hostile interest, and second, the court,
in its discretion, must determine whether that interest would justify allowing
the added challenges. Furthermore, the burden of establishing the existence of
that adverse or hostile interest is upon the proponent of the request. * * *
The adversity between [the proponents] must be found or not found as of the time
the decision on separate challenges is made.
65 Md.App. at _ , 501 S.E.2d at 501, 503.
Similarly,
in Sommerkamp v. Linton, 114 S.W.3d 811 (Ky. 2003), the trial court granted
separate peremptory challenges to multiple defendants. In Sommerkamp,
the plaintiff brought an action against several health care providers for the
alleged failure to appropriately diagnose and treat a soft tissue strain to her
left forearm. According to the plaintiff, the
negligence of the providers resulted in serious complications and the need
for corrective surgeries. The relevant procedural rule provided: “In civil
cases each opposing side shall have three peremptory challenges, but co-parties
having antagonistic interests shall have three peremptory challenges each.”
Upholding
a jury verdict for the defendants, the Supreme Court of Kentucky in Sommerkamp held
that, under the circumstances disclosed in the record, the trial court's granting
of the separate peremptory challenges did not constitute an abuse of discretion.
In so holding, the Court stated that the primary factors to be considered in
determining if co- parties have antagonistic or hostile interests include: (1)
whether the co-parties are charged with separate acts of negligence, (2) whether
they share a common theory of the case and (3) whether they have filed cross-claims.
114 S.W.3d at 815. Moreover, as the Court indicated: “Additional important
factors are whether the defendants are represented by separate counsel; whether
the alleged acts of negligence occurred at different times; whether the defendants
have individual theories of defense; and whether fault will be subject to apportionment.” 114
S.W.3d at 815.
Concluding
that the trial court properly exercised its discretion, the Court, in Sommerkamp,
observed:
Here, the trial judge reached
a well-reasoned decision based on established precedent, and there is no basis
for a finding of an abuse of discretion or any clear error. The trial judge held
a pretrial conference on the issue of peremptory challenges and made a specific
finding that the antagonism existed between the defendants. The trial judge based
his decision on a number of factors that weighed in favor of antagonism. The
defendants were charged with separate acts of negligence, were represented by
separate counsel and had individual theories of the case and apportionment of
fault issues. These reasons were set out in an order issued to all parties.
114 S.W.3d at 811.
In King
v. Special Resource Management, 256 Mont. 367, 846 P.2d 1038 (1993), the
Supreme Court of Montana held that parties seeking additional peremptory challenges
must request them prior to trial and that, to afford a basis for review, “the
trial court should expressly set forth in the record the reasons for its ruling
and the facts on which it relied in making its decision.” 256 Mont. at _
, 846 P.2d at 1042. (See
footnote 9) See also, Thompson v.
Presbyterian Hospital, supra, 652 P.2d at 262, indicating that,
to justify additional peremptory challenges, co-parties must “affirmatively
show” the presence of a serious dispute among them.
In Barker
v. Benefit Trust Life Insurance Company, 174 W.Va.187, 324 S.E.2d
148 (1984), this Court observed that “a litigant's right to peremptory challenges
of prospective jurors is considered necessary to secure an impartial and unbiased
jury.” 174 W.Va. at 190, 324 S.E.2d at 151. To safeguard that proposition,
this Court concludes that the principles expressed in Horchler and Tawney concerning
the propriety of allowing additional peremptory challenges should be updated
to assist circuit courts in this State in the exercise of their discretion under
Rule 47(b).
Accordingly,
this Court holds that in the determination by the trial court of the number of
peremptory challenges to be allowed two or more plaintiffs or two or more defendants
pursuant to Rule 47(b) of the West Virginia Rules of Civil Procedure,
plaintiffs or defendants with like interests are ordinarily to be considered
as a single party for the purpose of allocating the challenges. Where, however,
the interests of the plaintiffs or the interests of the defendants are antagonistic
or hostile, the trial court, in its discretion, may
allow the plaintiffs or the defendants separate peremptory challenges, upon
motion, and upon a showing that separate peremptory challenges are necessary
for a fair trial. Specifically, in determining whether the interests of two
or more plaintiffs or two or more defendants are antagonistic or hostile for
purposes of allowing separate peremptory challenges under Rule 47(b) of the West
Virginia Rules of Civil Procedure, the allegations in the complaint, the
representation of the plaintiffs or defendants by separate counsel and the
filing of separate answers are not enough. Rather, the trial court should also
consider the stated positions and assertions of counsel and whether the record
indicates that the respective interests are antagonistic or hostile. In the
case of two or more defendants, the trial court should consider a number of
additional factors including, but not limited to: (1) whether the defendants
are charged with separate acts of negligence or wrongdoing, (2) whether the
alleged negligence or wrongdoing occurred at different points of time, (3)
whether negligence, if found against the defendants, is subject to apportionment,
(4) whether the defendants share a common theory of defense and (5) whether
cross-claims have been filed. To warrant separate peremptory challenges, the
plaintiffs or defendants, as the case may be, as proponents, bear the burden
of showing that their interests are antagonistic or hostile and that separate
peremptory challenges are necessary for a fair trial.
Finally,
in ruling upon the request of two or more plaintiffs or two or more defendants
for separate peremptory challenges under Rule 47(b) of the West Virginia Rules
of Civil Procedure, the trial court shall set forth, on the record, its
reasons for so ruling in a manner sufficient to permit meaningful appellate
review.
In this
action, the Circuit Court, sua sponte, informed counsel for the parties
that it was going to grant each of the appellees separate peremptory challenges
from the panel of 20 potential jurors, i.e., 9 overall challenges for the appellees
and 3 for the appellant. No reason for that ruling was given until it was challenged
by the appellant's counsel at which time the Circuit Court briefly indicated
that additional challenges were being granted the appellees because the appellant
had alleged separate theories against them and because CAMC was not the appellees' “superior.” No
further comment was made by the Circuit Court during the jury selection process;
nor did counsel for the appellees move for or set forth any reasons or grounds
in support of the ruling. Soon after, final jury selection was completed, and
opening statements began.
As indicated
in Tawney, supra, the mere statement that conflicting interests
exist, without more, is not sufficient to warrant the granting of separate peremptory
challenges to one or more defendants in a civil trial. What the above case decisions
have in common, inter alia, is that the decision to grant separate peremptory
challenges must be based upon a determination, from the factors existing at the
time the ruling is made, that antagonistic or hostile interests are shown and
that separate peremptory challenges are
necessary for a fair trial. With the question of an impartial jury and a fair
trial arising in such circumstances, the trial court's ruling and its reasons
therefor must be placed upon the record for purposes of appellate review. The
ruling of the Circuit Court, in this action, does not withstand scrutiny under
those standards.
Here,
the question of whether the interests of the appellees were adverse was in need
of a more thorough resolution by the Circuit Court. On the one hand, the appellees
were not united because they were in conflict over whether Dr. Smith of Associated
Radiologists, Inc., should have read the appellant's CT scan as suggesting appendicitis
rather than an ileus, i.e., Dr Smith indicated that he was not told by the other
practitioners to rule out appendicitis. Moreover, when it was discovered that
certain, original laboratory reports concerning the appellant were missing, the
responsibility therefore fell upon CAMC rather than the other appellees. Finally,
inasmuch as a number of days elapsed between the appellant's arrival at the emergency
room and the discovery that his appendix had ruptured, the alleged negligence
of the appellees may have been diverse and, therefore, subject to antagonistic
or hostile defenses. On the other hand, the above conflicts among the appellees
can be interpreted as non-dispositive and that the appellant is reasonable in
his suggestion that the appellees were unified in their defense, i.e., that,
in view of the difficulty of making a clear diagnosis of his immediate medical
problem, a close observation of the appellant over a period of time at CAMC,
in conjunction with further examination and tests, did not
constitute a deviation from the standard of care and did not proximately cause
his injuries. Such adverse considerations, a fortiori, required a more
complete development on the record of the ruling of the Circuit Court in granting
the separate peremptory challenges.