Full Opinion

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA September 2026 Term FILED November 12, 2026 _____________________ released at 3:00 p.m. C. CASEY FORBES, CLERK No. 24-438 SUPREME COURT OF APPEALS OF WEST VIRGINIA _____________________ John R. Orphanos, M.D., Defendant Below, Petitioner, v. Michael Rodgers, Plaintiff Below, Respondent. ___________________________________________________________ Appeal from the Intermediate Court of Appeals No. 23-ICA-58 (Circuit Court of Kanawha County Civil Action No. 19-C-561) AFFIRMED, IN PART; REVERSED, IN PART _________________________________________________________ Submitted: September 9, 2026 Filed: November 12, 2026 Thomas J. Hurney, Jr. Esq. John W. Barrett, Esq. Blair E. Wessels, Esq. Benjamin L. Bailey, Esq. Jackson Kelly PLLC P. Gregory Haddad, Esq. Charleston, West Virginia Kerrie L. Haddad, Esq. Bailey Glasser, LLP Richard D. Jones, Esq. Charleston, West Virginia J. Dustin Dillard, Esq. Attorneys for Respondent Flaherty Sensabaugh Bonasso, PLLC Charleston, West Virginia Attorneys for Petitioner JUSTICE TRUMP delivered the Opinion of the Court. SYLLABUS OF THE COURT 1. “Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.” Syllabus Point 1, Chrystal R.M. v. Charlie A. L., 194 W.Va. 138, 459 S.E.2d 415 (1995). 2. “‘[T]he 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. [P]t. 4, in part, Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976).” Syllabus Point 1, in part, Andrews v. Reynolds Memorial Hospital, Inc., 201 W. Va. 624, 499 S.E.2d 846 (1997). 3. “If a party fails to offer an instruction regarding a particular point of law upon which he relies, he cannot later complain of the absence of such an instruction, there being no duty upon the court to so instruct the jury except when the error is so plain and the result so outrageous that the trial court must intervene to do substantial justice.” Syllabus Point 2, Berkeley Homes, Inc. v. Radosh, 172 W. Va. 683, 310 S.E.2d 201 (1983). 4. The party seeking application of the statutory cap on damages in West Virginia Code §55-7B-9c (known as the West Virginia Medical Professional Liability Act’s “Trauma Cap”) bears the burden of invoking the cap and proving all predicate facts required for the cap’s application to limit the other party’s proven damages. i 5. “This Court may, on appeal, affirm the judgment of the lower court when it appears that such judgment is correct on any legal ground disclosed by the record, regardless of the ground, reason or theory assigned by the lower court as the basis for its judgment.” Syllabus Point 3, Barnett v. Wolfolk, 149 W. Va. 246, 140 S.E.2d 466 (1965). 6. “[T]he West Virginia Rules of Civil Procedure allocate significant discretion to the trial court in making evidentiary and procedural rulings. Thus, rulings on the admissibility of evidence and the appropriateness of a particular sanction for discovery violations are committed to the discretion of the trial court.” Syllabus Point 1, in part, McDougal v. McCammon, 193 W. Va. 229, 455 S.E.2d 788 (1995). 7. “A trial court is permitted broad discretion in the control and management of discovery, and it is only for an abuse of discretion amounting to an injustice that we will interfere with the exercise of that discretion. A trial court abuses its discretion when its rulings on discovery motions are clearly against the logic of the circumstances then before the court and so arbitrary and unreasonable as to shock our sense of justice and to indicate a lack of careful consideration.” Syllabus Point 1, B.F. Specialty Co. v. Charles M. Sledd Co., 197 W. Va. 463, 475 S.E.2d 555 (1996). ii TRUMP, Justice: The petitioner, John R. Orphanos, M.D., appeals the June 13, 2024, decision of the West Virginia Intermediate Court of Appeals (“ICA”) that: 1) affirmed the Circuit Court of Kanawha County’s January 20, 2023, order denying his motion for renewed judgment as a matter of law, after finding that the Trauma Cap in West Virginia’s Medical Professional Liability Act (“MPLA”)1 did not apply to limit the damages awarded in the case; 2) affirmed, in part, and reversed, in part, the circuit court’s January 20, 2023, order denying Dr. Orphanos’s motion for a new trial; 3) remanded the case to the circuit court with instructions to conduct a new trial on the issue of damages; and 4) reversed, in part, the circuit court’s September 12, 2022, judgment order. Dr. Orphanos contends that the ICA erred in concluding that the Trauma Cap was inapplicable based on the nature of the medical care at issue in the case and in finding that a new trial was warranted based upon only one of the numerous errors he alleged to have occurred in the circuit court’s proceedings below. In a cross-assignment of error, the respondent, Michael Rodgers, challenges the ICA’s decision to grant Dr. Orphanos a new trial on the issue of damages 1 The “Trauma Cap” refers to the statutory limit that West Virginia Code § 55-7B-9c places on the amount of damages a plaintiff may recover in an MPLA case for “injury to or death of a patient as a result of health care services or assistance rendered in good faith and necessitated by an emergency condition for which the patient enters a health care facility designated by the Office of Emergency Medical Services as a trauma center.” We note that the Legislature amended West Virginia Code § 55-7B-9c in 2024 and that it was the 2016 version of the statute that was in effect when the circuit court entered its final judgment order below. However, the 2024 amendments to West Virginia Code § 55-7B-9c did not alter the language of the statute that governs the Trauma Cap’s application in this case. We describe the Trauma Cap in greater detail in our discussion below. 1 after finding that the circuit court abused its discretion by striking one of Dr. Orphanos’s late-disclosed expert opinions. Upon our review of the parties’ arguments, the record before us, and the applicable law, we affirm the ICA’s opinion insofar as the ICA concluded that the circuit court did not err in declining to apply the MPLA’s Trauma Cap to the damages awarded in this case. We also affirm the ICA’s opinion insofar as the ICA partially affirmed the circuit court’s denial of Dr. Orphanos’s motion for a new trial. However, we reverse that portion of the ICA opinion that reversed the circuit court’s order denying Dr. Orphanos’s motion for a new trial and remanded the case for a new trial on the issue of damages. Accordingly, we reinstate the circuit court’s September 12, 2022, judgment order. I. FACTUAL AND PROCEDURAL BACKGROUND This appeal arises from a medical malpractice lawsuit that Mr. Rodgers filed against Dr. Orphanos claiming injuries from a spinal surgery Dr. Orphanos performed on him in 2017. On June 4, 2017, Mr. Rodgers was life-flighted to Charleston Area Medical Center General Hospital (“CAMC”), a West Virginia designated Level I Trauma Center, for treatment following his motorcycle accident. A Computed Tomography (“CT”) scan revealed that Mr. Rodgers had suffered a transverse fracture through the vertebral body and neural arch of his fifth thoracic vertebra. Mr. Rodgers was transferred from CAMC’s Emergency Department to its Surgical Trauma Intensive Care Unit (“ICU”) for further evaluation and treatment. The next morning, on June 5, 2017, a nurse practitioner under 2 Dr. Orphanos’s supervision initially evaluated Mr. Rodgers’s spinal fracture and recommended, as treatment, that Mr. Rodgers wear a lumbar sacral orthosis brace for six to eight weeks and observe spinal precautions. Later that day, after conducting his own evaluation of Mr. Rodgers’s injury, Dr. Orphanos presented two treatment options—1) to wear a brace for a period of time, as the nurse practitioner had recommended, or 2) to undergo a spinal surgery during which Dr. Orphanos would place orthopedic hardware into Mr. Rodgers’s spine to stabilize the fracture. Dr. Orphanos obtained consent for the latter treatment option and performed surgery on Mr. Rodgers the following day. Prior to the surgery, Mr. Rodgers had full sensation, motor function, and strength in all of his extremities; however, upon waking from the surgery, Mr. Rodgers had no movement or sensation below his nipple line. In an attempt to discover the cause of Mr. Rodgers’s sudden-onset paraplegia, Dr. Orphanos ordered a CT scan and performed a second, exploratory surgery2 on him, but reportedly found no evidence of interference with his spinal cord. On June 20, 2017, Mr. Rodgers was discharged from the CAMC ICU to a rehabilitation center and on July 20, 2017, he was discharged home. Mr. Rodgers’s paraplegia persisted and was ultimately determined to be permanent. Mr. Rodgers filed a civil action against Dr. Orphanos on May 30, 2019, claiming that Dr. Orphanos had misplaced an orthopedic screw during surgery, causing 2 All references to the “surgery” or “2017 surgery” in the remainder of this opinion refer to Mr. Rodgers’s first June 6, 2017, surgery as opposed to the second, exploratory surgery, unless otherwise indicated. 3 Mr. Rodgers’s paraplegia. In his complaint, Mr. Rodgers alleged that Dr. Orphanos had breached the standard of care in three ways: 1) by failing to order a dedicated preoperative MRI prior to the surgery to evaluate Mr. Rodgers’s spinal cord and determine whether there was any cord compression, edema, abnormality, condition, or injury to be taken into account during the surgery; 2) by failing to use intraoperative neurophysiological monitoring during the surgery to monitor Mr. Rodgers’s spinal cord while placing orthopedic hardware; and 3) by failing to order a CT myelogram following the surgery and prior to the second, exploratory surgery to determine the cause of Mr. Rodgers’s sudden-onset paraplegia. Based on those allegations, Mr. Rodgers sought to recover both compensatory and punitive damages from Dr Orphanos.3 While discovery was underway in July 2020, Mr. Rodgers suffered a stroke which left him with left-sided hemiparesis. Mr. Rodgers did not seek to amend his complaint to add a claim that his 2017 surgery had caused or contributed to his 2020 stroke. However, on January 5, 2022, well-past the close of discovery and just over two months before the trial date, Mr. Rodgers filed an amended expert witness disclosure that included a new life care plan from his previously disclosed life care expert witness, Nurse Nadene R. Taniguchi, R.N., and an updated economic evaluation (collectively, the “new life care plan”). The new life care plan reflected increased lifetime care costs compared to Mr. 3 We note that Mr. Rodgers appears to have abandoned his claim for punitive damages at some point during the litigation and that the jury did not award him punitive damages. 4 Rodgers’s previously disclosed plan due to the additional limitations he suffered following his 2020 stroke. The new life care plan also referenced Mr. Rodgers’s medical records related to the 2020 stroke, in which a physician (who was not an expert witness in the case) noted that Mr. Rodgers’s post-surgery paraplegia likely caused bed sores that, in turn, caused his 2020 stroke. Dr. Orphanos filed a motion to exclude the new life care plan and evaluation, arguing that the disclosures were untimely and prejudicial. More specifically, Dr. Orphanos argued that by attributing the 2020 stroke to the 2017 surgery, the new life care plan effectively added an entirely new claim to Mr. Rodgers’s cause of action without identifying a qualified medical expert to “draw a causal link between the stroke in 2020 and the care rendered by Dr. Orphanos three years earlier.” Dr. Orphanos also filed a contemporaneous motion asking the circuit court, in the alternative, to continue the trial, positing that the court could “cure” the prejudicial effect of the new life care plan by postponing the trial, reopening discovery, and requiring Mr. Rodgers to identify a qualified medical expert to establish causation between the surgery and the stroke. On February 24, 2022, the circuit court denied both of Dr. Orphanos’s motions. On March 7, 2022, one week before trial, Dr. Orphanos served his own set of late supplemental expert witness disclosures. The disclosures included new opinions from two of his previously disclosed experts (hereinafter, “infectious disease experts”), rebutting any claim that the 2017 surgery caused Mr. Rodgers’s 2020 stroke. The 5 disclosures also included an opinion from another of Dr. Orphanos’s previously disclosed experts, Dr. Jodi A. Gehring, M.D., concerning Mr. Rodgers’s post-stroke life expectancy. Dr. Gehring estimated Mr. Rodgers’s life expectancy to be 5-7 years, rebutting the 27.3 year life expectancy figure that Nurse Taniguchi had used to calculate Mr. Rodgers’s new life care plan costs. Mr. Rodgers moved to strike Dr. Orphanos’s late disclosures, arguing that they were untimely and prejudicial. The circuit court heard arguments on the motion to strike at a pretrial conference on March 14, 2022, the day before jury selection was set to begin. During the pretrial hearing, the circuit court presented Mr. Rodgers with three options in response to his motion to strike Dr. Orphanos’s late supplemental expert disclosures: 1) to “abandon” his late-disclosed new life care plan, in which case the court would strike all of Dr. Orphanos’s late-disclosed expert opinions offered to rebut the plan; 2) to “keep” his new life care plan, in which case the court would allow all of Dr. Orphanos’s late-disclosed experts to testify at trial; or 3) to “reconsider” his opposition to Dr. Orphanos’s motion to continue the trial. In response, Mr. Rodgers’s counsel offered that he was amenable to Dr. Orphanos offering the two late-disclosed rebuttal opinions from his infectious disease experts concerning the cause of Mr. Rodgers’s 2020 stroke, so long as Dr. Gehring’s life expectancy opinion (which he characterized as “absolutely unrelated” to Mr. Rodgers’s own late disclosures) would not be permitted. He further argued that, unlike the causation issues implicated in his recently disclosed new life care plan, Mr. Rodgers’s life expectancy had always been at issue in the case with respect to his 6 damages related to future care costs. If the stroke had significantly reduced Mr. Rodgers’s life expectancy, his counsel argued, Dr. Orphanos would have been aware of that issue and the resultant need for expert testimony when the stroke was disclosed in 2020. In response, Dr. Orphanos’s counsel argued that one of his experts had flagged Nurse Taniguchi’s life expectancy figure as an issue only after reviewing Mr. Rodgers’s new life care plan. The circuit court, noting that it “tend[ed] to agree” with Mr. Rodgers’s arguments, allowed Dr. Orphanos’s infectious disease experts to offer their late-disclosed opinions rebutting that the 2017 surgery caused the 2020 stroke, but precluded Dr. Gehring from offering her expert opinion on Mr. Rodgers’s life expectancy.  During the March 14, 2022, pretrial conference, the circuit court also considered Dr. Orphanos’s “Motion for Partial Summary Judgment on Claims Other than Medical Negligence,” in which he moved for summary judgment “on any claim above and beyond simple medical negligence.”4 In support of his motion, Dr. Orphanos argued that expert testimony is required to establish liability for recklessness under the MPLA and that none of Mr. Rodgers’s medical experts had opined that Dr. Orphanos had either: 1) acted in “willful and wanton or reckless disregard of a risk of harm to the patient,” which is the standard for the “recklessness exception”5 to the MPLA’s Trauma Cap to apply; or 2) acted 4 In the same motion, Dr. Orphanos also moved the court, in the alternative, for a bifurcated trial on punitive damages. Because Mr. Rodgers abandoned his claim for punitive damages, this aspect of the motion is not at issue on appeal. 5 West Virginia Code § 55-7B-9c(h) provides that the Trauma Cap on damages is inapplicable “where [the] health care or assistance for the emergency condition 7 with “actual malice toward the plaintiff . . . or a conscious, reckless and outrageous indifference to the health, safety, and welfare of others,” which is required for an award of punitive damages in a civil case. W. Va. Code § 55-7-29. The circuit court also considered Dr. Orphanos’s related “Motion in Limine to Preclude Mr. Rodgers from Asserting that Dr. Orphanos was Reckless,” in which Dr. Orphanos reiterated his arguments in support of his partial summary judgment motion. The circuit court denied both motions, finding that whether Dr. Orphanos was reckless in providing the medical care at issue was a question for the jury to decide, based upon the totality of the evidence presented at trial.6 The trial commenced on March 15, 2022, and lasted for seven days. Following the close of evidence on the sixth day of trial, Dr. Orphanos verbally moved for partial judgment as a matter of law pursuant to West Virginia Rule of Civil Procedure 50(a) (hereinafter, his “Rule 50(a) motion”), arguing that there was insufficient evidence for the jury to find that Dr. Orphanos’s alleged breaches of the standard of care had amounted to recklessness in the absence of expert testimony to that effect. The circuit court denied the is rendered . . . [i]n willful and wanton or reckless disregard of a risk of harm to the patient[.]” (emphasis added). We refer to this statutory provision as the Trauma Cap’s “recklessness exception” and discuss it in further detail below. 6 The circuit court ruled on a significant number of other motions by both parties during the pretrial conference; however, in the interest of judicial economy, we omit any reference to the parties’ various motions during the pretrial conference (and at other points during the litigation below) that are not relevant to our discussion. 8 motion, finding that there had been sufficient evidence presented for the jury to find that Dr. Orphanos was reckless. Dr. Orphanos also filed objections to a number of Mr. Rodgers’s proposed jury instructions and their corresponding verdict form interrogatories, arguing that the instructions misstated the statutory standards for whether the MPLA’s Trauma Cap would apply to limit any damages the jury ultimately awarded. First, Dr. Orphanos objected to the proposed jury instruction on “recklessness,” arguing that the instruction did not accurately reflect the language of the statutory “recklessness exception” to the Trauma Cap. Dr. Orphanos also objected to Mr. Rodgers’s proposed instruction directing the jury to decide whether Mr. Rodgers’s surgery was “an emergency surgery.” Dr. Orphanos argued that, although the Trauma Cap expressly does not apply to claims where the alleged acts or omissions occurred “after the patient’s condition [was] stabilized and the patient [was] capable of receiving medical treatment as a nonemergency patient,” whether the surgery was an “emergency surgery” is irrelevant to the cap’s application. See W. Va. Code §55- 7B-9c(e). The circuit court overruled Dr. Orphanos’s objections and allowed all of Mr. Rodgers’s proposed instructions related to the Trauma Cap to be read to the jury.7 7 Dr. Orphanos also objected to the circuit court providing any instruction at all to the jury concerning recklessness, based on the same arguments he made in support of his Rule 50(a) motion. The circuit court overruled that objection along with Dr. Orphanos’s other objections to the proposed jury instructions. 9 Following deliberations, the jury returned a verdict for Mr. Rodgers on March 24, 2022, finding, with respect to the medical care Dr. Orphanos provided him in 2017: 1) that Mr. Rodgers’s surgery was not an “emergency surgery;” 2) that Dr. Orphanos was negligent in his care and treatment related to Mr. Rodgers’s post-surgery paraplegia; 3) that Dr. Orphanos breached the standard of care and that his negligence caused or contributed to Mr. Rodgers’s paraplegia; and 4) that Dr. Orphanos was reckless in his care and treatment of Mr. Rodgers and that his recklessness caused or contributed to Mr. Rodgers’s paraplegia. As a result, the jury awarded Mr. Rodgers the following damages for the injuries attributed directly to the 2017 surgery: Past expenses for care and treatment: $1,374,079.00 Lost earning capacity: $ 591,166.00 Future care, treatment, renovation: $6,511,940.00 Past pain, suffering, loss of enjoyment: $1,000,000.00 Future pain, suffering, loss of enjoyment: $1,500,000.00 With respect to Mr. Rodgers’s 2020 stroke, the jury found: 1) that Dr. Orphanos’s negligence related to the 2017 surgery caused or contributed to the stroke; 2) that Mr. Rodgers was not contributorily negligent in failing to present to an emergency department prior to the stroke; and 3) that Dr. Orphanos was 100% at fault for the stroke. The jury awarded Mr. Rodgers additional damages for his future care and treatment costs resulting from the 2020 stroke in the amount of $1,793,690.00, as well as damages for his lost earning capacity due to the stroke in the amount of $5,000,000.00. Altogether, the jury awarded Mr. Rodgers $17,770,875.00 in damages. 10  On April 13, 2022, Dr. Orphanos filed a “Motion to Reduce the Verdict Consistent with the West Virginia Medical Professional Liability Act,” asking the circuit court to apply the Trauma Cap and other statutory reductions to the jury’s verdict in calculating the final judgment amount. With respect to the Trauma Cap, Dr. Orphanos argued that the surgery “was required as a result of the emergency condition that brought Mr. Rodgers to CAMC” and thus, the cap should be applied to reduce the final judgment amount. In response, Mr. Rodgers argued that the jury’s finding that Mr. Rodgers “was a nonemergency patient”8 placed his claims outside of the Trauma Cap’s application. The circuit court heard arguments on the parties’ motions related to the final judgment calculation in two separate hearings prior to entering its September 12, 2022, judgment order. In its order, the circuit court did not apply the Trauma Cap to reduce the final judgment amount, reciting the jury’s findings that Mr. Rodgers’s surgery was not “an emergency surgery” and that Dr. Orphanos was “reckless in his care and treatment of Mr. Rodgers.” However, the circuit court noted in its order that it “deferred” ruling upon Dr. Orphanos’s motion to apply the Trauma Cap by agreement of the parties, as those issues were “more appropriately addressed by post-trial motion practice.” The final judgment order awarded Mr. Rodgers a total judgment amount of $9,862,384.58,9 including damages for: 8 We acknowledge that the jury found that the surgery was not “an emergency surgery,” not that Mr. Rodgers was a “nonemergency patient.” 9 Dr. Orphanos also requested other verdict reductions unrelated to the Trauma Cap in his “Motion to Reduce the Verdict Consistent with the West Virginia Medical Professional Liability Act,” including that the circuit court apply the limit in West 11 Past expenses for care and treatment: $ 215,588.58 Lost earning capacity: $ 591,166.00 Future care, treatment, renovation: $ 8,305,630.00 Past and future pain, suffering, loss of enjoyment: $ 750,000.00 On September 21, 2022, Dr. Orphanos filed a motion for a new trial pursuant to Rule 59(a), alleging that the court had committed various errors in its pretrial and trial proceedings, and a renewed motion for judgment as a matter of law on the issue of recklessness pursuant to Rule 50(b) (hereinafter, his “Rule 50(b) motion”), renewing the Rule 50(a) motion he made during trial. In support of his motion, Dr. Orphanos once again argued that there had been insufficient evidence to support the jury’s finding that he was reckless in providing medical care to Mr. Rodgers in 2017 and, therefore, he was “statutorily entitled” to application of the Trauma Cap to reduce the final judgment amount.10 After conducting a hearing on Dr. Orphanos’s motions, the circuit court denied each motion by separate written orders, both entered on January 20, 2023. On May 22, 2023, Dr. Orphanos appealed the orders to the ICA, setting forth assignments of error and supporting arguments that are substantially the same as those presented on appeal to this Court. Virginia Code §55-7B-8 on the amount of noneconomic damages that may be recovered in an MPLA case. The circuit court applied that limit and other reductions to calculate the final judgment amount. 10 Notably, nothing in the record indicates that Dr. Orphanos filed a post-judgment motion pursuant to Rule 59(e) or otherwise moved the circuit court to amend or alter its judgment based on his previous argument that, contrary to the jury’s finding that Mr. Rodgers’s surgery was not an “emergency surgery,” the surgery was “necessitated by an emergency condition” for the purposes of the Trauma Cap’s application. 12 In affirming the circuit court’s order denying Dr. Orphanos’s Rule 50(b) motion, the ICA concluded that the jury’s finding that Mr. Rodgers’s surgery was not “an emergency surgery” precluded the Trauma Cap’s application regardless of whether the recklessness exception applied. Therefore, the ICA declined to reach Dr. Orphanos’s assignments of error on the issue of recklessness. The ICA then affirmed, in part, and reversed, in part, the circuit court’s January 20, 2023, order denying Dr. Orphanos’s motion for a new trial, finding that the circuit court had abused its discretion in only one of the rulings challenged on appeal—the decision to strike Dr. Gehring’s late-disclosed expert opinion on Mr. Rodgers’s life expectancy. Based on that finding of reversible error, the ICA remanded the case to the circuit court for a new trial “solely on damages” in which Dr. Orphanos would be permitted to offer expert rebuttal testimony on Mr. Rodgers’s life expectancy. Consequently, the ICA also reversed, in part, the circuit court’s September 12, 2022, judgment order. We elaborate further on the ICA’s reasoning, where relevant, in the course of our discussion below. II. STANDARD OF REVIEW Dr. Orphanos’s first assignment of error challenges the ICA’s conclusion, based on the jury’s finding that Mr. Rodgers’s surgery was not an “emergency surgery,” that the MPLA’s Trauma Cap did not apply to the damages awarded in this case. His second assignment of error challenges the ICA’s resultant refusal to decide whether the recklessness exception to the Trauma Cap also applied. In considering those assignments of error, “[w]here the issue on an appeal from the circuit court is clearly a question of law 13 or involving an interpretation of a statute, we apply a de novo standard of review.” Syl. Pt. 1, Chrystal R.M. v. Charlie A. L., 194 W.Va. 138, 459 S.E.2d 415 (1995). Dr. Orphanos’s remaining assignments of error challenge the ICA’s partial affirmance of the circuit court’s denial of his motion for a new trial pursuant to Rule 59(a), and Mr. Rodgers’s cross-assignment of error challenges the ICA’s decision to partially reverse the circuit court’s denial of that motion. “[W]e review a circuit court’s rulings on a motion for a new trial under an abuse of discretion standard.” Tennant v. Marion Health Care Found., Inc., 194 W. Va. 97, 104, 459 S.E.2d 374, 381 (1995) (internal citation omitted). To clarify how this deferential standard applies in practice, 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. [P]t. 4, in part, Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976).” Syl. Pt. 1, in part, Andrews v. Reynolds Mem’l Hosp., Inc., 201 W. Va. 624, 499 S.E.2d 846 (1997). With these standards in mind, we consider the parties’ arguments. III. DISCUSSION For the purposes of our discussion, we divide Dr. Orphanos’s numerous assignments of error into three categories and address them accordingly.11 First, we address 11 We have reordered Dr. Orphanos’s assignments of error, where necessary, to comport with our analysis. 14 Dr. Orphanos’s first assignment of error challenging the ICA’s determination that the MPLA’s Trauma Cap did not apply to the damages awarded in this case. Second, we address Dr. Orphanos’s contention that the ICA should have reached his assignments of error on the issue of recklessness and his reassertion of those assignments of error on appeal to this Court. And third, we address Dr. Orphanos’s assignments of error challenging the ICA’s decision to partially affirm the circuit court’s denial of his motion for a new trial, thereby declining to grant him a new trial based on all but one of his allegations of reversible error in the proceedings below. Finally, we address Mr. Rodgers’s single cross-assignment of error, asserting that the ICA erred in partially reversing the circuit court’s denial of Dr. Orphanos’s motion for a new trial and in remanding the case to the circuit court for a new trial on the issue of damages. A. The MPLA’s Trauma Cap Dr. Orphanos challenges the ICA’s conclusion that the MPLA’s Trauma Cap did not apply to the damages awarded in this case due to the jury’s finding that Mr. Rodgers’s surgery was not an “emergency surgery.” Once again, since this assignment of error centers on questions of law and statutory interpretation, we review the ICA’s opinion and the circuit court’s underlying decision not to apply the Trauma Cap in its judgment order de novo. See Chrystal R.M., 194 W.Va. 138, 459 S.E.2d 415, Syl. Pt. 1. While we agree with the ICA’s ultimate conclusion that the circuit court did not err by declining to apply the Trauma Cap in rendering its final judgment order, we express our own reasoning for reaching that conclusion in the discussion below. 15 West Virginia Code § 55-7B-9c, the “Trauma Cap statute,” limits the amount of damages the plaintiff in an MPLA suit may recover to “$500,000, for each occurrence” of “injury to or death of a patient as a result of health care services or assistance rendered in good faith and necessitated by an emergency condition for which the patient enters a health care facility designated by the Office of Emergency Medical Services as a trauma center[.]”12 W. Va. Code § 55-7B-9c(a) (emphasis added). An “emergency condition” is defined, in relevant part, as “any acute traumatic injury or acute medical condition which, according to standardized criteria for triage, involves a significant risk of death or the precipitation of significant complications or disabilities, [or] impairment of bodily functions[.]” W. Va. Code § 55-7B-2(d). If the alleged acts or omissions giving rise to an MPLA claim occurred after the patient’s condition was stabilized, the statute specifies that the cap still applies “in the event that surgery [was] required as a result of the emergency condition within a reasonable time after the patient’s condition [was] stabilized.” W. Va. Code § 55-7B-9c(d) (emphasis added). However, the Trauma Cap expressly “does not apply to any act or omission in rendering care or assistance which . . . [o]ccurs after the patient’s condition is stabilized and the patient is capable of receiving medical treatment as a nonemergency patient[.]” W. Va. Code § 55-7B-9c(e) (emphasis added). In a provision referred to as the Trauma Cap’s “recklessness exception,” the statute also provides that the cap does not apply “where [the] health care or assistance for the 12 The parties do not dispute that CAMC is a “trauma center” for purposes of the MPLA or that Mr. Rodgers was initially admitted to CAMC due to an emergency condition. 16 emergency condition is rendered . . . [i]n willful and wanton or reckless disregard of a risk of harm to the patient[.]” W. Va. Code § 55-7B-9c(h) (emphasis added). The ICA examined the applicability of the Trauma Cap in considering Dr. Orphanos’s assignment of error challenging the circuit court’s denial of his post-judgment Rule 50(b) motion on the issue of recklessness. Recognizing that the circuit court’s ruling on that motion could only be at issue on appeal with respect to whether the recklessness exception to the Trauma Cap applied,13 the ICA considered whether the nature of Mr. Rodgers’s surgery triggered the Trauma Cap’s application in the first instance. Pointing to the jury’s finding that Mr. Rodgers’s surgery was not an “emergency surgery,” the ICA concluded that it did not. Then, having decided that the nonemergency nature of Mr. Rodgers’s surgery placed his claim “outside of the Trauma Cap” regardless of whether the recklessness exception applied, the ICA declined to reach Dr. Orphanos’s assignments of error on the issue of recklessness. On appeal to this Court, Dr. Orphanos asserts that the ICA erred in that regard, arguing that whether Mr. Rodgers’s surgery was an “emergency surgery” is not relevant to the Trauma Cap statute’s application. We decline to adopt the ICA’s reasoning that the jury’s “emergency surgery” finding, by itself, necessarily precluded the Trauma Cap’s application in this case; however, we find that Dr. Orphanos’s failure to meet his burden of proving certain predicate facts did. 13 See notes 21 and 22, infra. 17 Dr. Orphanos is correct that the phrase “emergency surgery” does not appear anywhere in the MPLA, and there is no statutory requirement that a surgery underlying an MPLA claim be found to be an “emergency surgery” to trigger the Trauma Cap’s application. However, we reject the suggestion that the absence of more specific jury findings relevant to the Trauma Cap’s application in this case is due to any error on the part of the circuit court. It is well-settled law that [i]f a party fails to offer an instruction regarding a particular point of law upon which he relies, he cannot later complain of the absence of such an instruction, there being no duty upon the court to so instruct the jury except when the error is so plain and the result so outrageous that the trial court must intervene to do substantial justice.  Syl. Pt. 2, Berkeley Homes, Inc., v. Radosh, 172 W.Va. 683, 310 S.E.2d 201 (1983). That is because it is a party’s responsibility (and not the trial court’s) to prove the party’s theory of the case. We have remarked that it is the parties’ lawyers, and not the courts, who “are responsible for trying law suits—it is the lawyers who must present a theory of the case, present the evidence necessary to prove that theory, and then offer appropriate [jury] instructions.” Id. at 686, 310 S.E.2d at 203. Similar to a party’s responsibility to prove his theory of the case or the well-settled burden of a defendant to prove his own affirmative defense to liability,14 the Trauma Cap’s application turns on questions of fact that 14 See, e.g., Syl. Pt. 1, Bluefield Supply Co. v. Frankel’s Appliances, Inc., 149 W. Va. 622, 142 S.E.2d 898 (1965) (explaining with respect to affirmative defense of payment that “the burden of proof to establish it rests upon the party who relies upon such defense”); Syl. Pt. 3, Skaggs v. Elk Run Coal Co., 198 W. Va. 51, 479 S.E.2d 561 (1996) (explaining with respect to claim for reasonable disability accommodation under the Human Rights Act that “[u]ndue hardship is an affirmative defense, upon which the employer bears the burden of persuasion”); Voorhees v. Guyan Machinery Co., 191 W.Va. 18 necessitate placing the burden of invoking the cap and proving its application upon the party seeking its benefit. Unlike the MPLA’s statu