Lisa Brown, Individually and as the Administrator of the Estate of Ronald Brown, Plaintiff Below, Petitioner
Berkeley Family Medicine Associates, Inc., and Heather Jewell, PA-C., Defendant Below, Petitioner
Lisa Brown, Individually, and as the Administrator of the
Estate of Ronald Brown, by counsel Christopher T. Nace,
appeals the Circuit Court of Berkley County's May 12,
2016, order denying her motion for new trial. Respondent
Berkeley Family Medicine Associates, Inc. ("BFMA")
and Heather Jewell, PA-C, by counsel Curtis G. Power, III,
filed a response in support of the circuit court's order.
Petitioner filed a reply. Petitioner contends that the
circuit court erred in denying her motion for new trial and
in admitting and excluding certain evidence at trial.
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 and no
prejudicial error. For these reasons, a memorandum decision
affirming the circuit court's order is appropriate under
Rule 21 of the Rules of Appellate Procedure.
August 12, 2011, petitioner's decedent presented at BFMA
with complaints of coughing, shortness of breath, and chest
pain, and was seen by Respondent Jewell. During her treatment
of the decedent, Respondent Jewell obtained a medical history
from him, noting his use of Enbrel, a potentially
immunosuppressive drug. Following her initial clinical
examination of the decedent, Respondent Jewell noted that he
did not physically appear ill; exhibited no confusion, kidney
dysfunction, or blood pressure abnormalities; and had a
temperature of only 99.5 degrees. Upon listening to the
decedent's breathing, Respondent Jewell detected a
crackling sound consistent with inflammation or infection in
the lungs and ordered a chest x-ray. Based upon the results
of the x-ray, Respondent Jewell sent the decedent directly to
Berkeley Medical Center for a CT scan of his chest. The CT
scan results were read by a radiologist and noted to be
consistent with pneumonitis of uncertain etiology.
his x-ray, CT scan, and clinical examination, the decedent
was prescribed an antibiotic, Levaquin, and a follow-up
appointment was made for his return to BFMA on August 17,
2011. The decedent was directed to return to BFMA earlier if
his condition deteriorated or persisted.
August 16, 2017, the decedent's condition had
deteriorated such that he was unable to climb stairs at his
home. When he returned to BFMA for his follow-up appointment
on August 17, 2011, he complained of shortness of breath and
decreased appetite. The decedent was transported directly
from BFMA to City Hospital, by ambulance, where, on August
21, 2011, he died.
29, 2013, petitioner initiated the underlying action by
sending a notice of claim to respondents, pursuant to West
Virginia Code § 55-7B-6. On November 21, 2013,
petitioner filed the underlying complaint against respondents
in the Circuit Court of Berkeley County. In addition to
Respondents Jewell and BFMA, petitioner named Dr. Harvey
Reisenweber of BFMA as a defendant. Petitioner alleged that
Respondents BFMA and Heather Jewell deviated from the
accepted standard of care in their treatment of the decedent,
proximately causing or contributing to his death. Petitioner
further alleged that BFMA and Dr. Reisenweber negligently
supervised Respondent Jewell. Ultimately, prior to trial, Dr.
Reisenweber was dismissed as a party defendant.
pre-trial proceedings, on February 26, 2016, respondents
filed motions in limine. In these motions, respondents sought
to exclude or limit petitioner from presenting certain
evidence and making certain inferences at trial. Among these
motions was a motion to prohibit petitioner from arguing that
jurors had the power to improve the personal and community
safety of jury members by reaching a verdict that would
reduce or eliminate allegedly dangerous or unsafe conduct.
Respondents contend that such an argument encourages jurors
to depart from impartiality. The circuit court held a hearing
on respondents' motions on March 21, 2016, following
which, the circuit court denied, in part, respondents'
motions, but granted respondents leave to renew the same by
timely objection at trial.
began on March 22, 2016. During his opening statement,
petitioner's counsel likened the standard of care to be
adhered by medical professionals as a "rule". In
response to an objection made by respondents' counsel,
the circuit court ruled that the standard of care must be
described to the jury, by both parties, simply as a standard
of care, not a rule. Additionally, in response to another
objection made by respondents, petitioner's counsel was
cautioned by the court to refrain from using the term
"danger" or "dangerous" to describe the
decedent's medical condition.
conclusion of the four-day trial, the jury returned a verdict
determining that Respondent Jewell deviated from the accepted
standard of care in her treatment of petitioner's
decedent, but that such deviation did not proximately cause
or contribute to the decedent's death. Further, the jury
determined that BFMA did not deviate from the accepted
standard of care in its treatment of petitioner's
decedent. Thereafter, petitioner filed a motion for new
trial, to which respondents replied. By order dated May 12,
2016, the circuit court denied petitioner's motion. It is
from this order that petitioner now appeals.
respect to our review of an order denying a motion for new
trial, we have held that
"the ruling of a trial court in granting or denying a
motion for a new trial is entitled to great respect and
weight, [and] the trial court's ruling will be reversed
on appeal [only] when it is clear that the trial court has
acted under some misapprehension of the law or the
evidence." Syl. pt. 4, in part, Sanders v.
Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218
Sydenstricker v. Mohan, 217 W.Va. 552, 556-57, 618
S.E.2d 561, 565-66 (2005). We have further explained that,
[a]s a general proposition, we review a circuit court's
ruling on a motion for a new trial under an abuse of
discretion standard. In re State Public Building Asbestos
Litigation, 193 W.Va. 119, 454 S.E.2d 413 (1994)
(Asbestos Litigation). Thus, in reviewing challenges to
findings and rulings made by a circuit court, we apply a
two-pronged deferential standard of review. We review the
rulings of the circuit court concerning a new trial and its
conclusions as to the existence of reversible error under an
abuse of discretion standard, and we review the ...