John R. Orphanos, M.D. v. Michael Rodgers
CourtWest Virginia Supreme Court
Date FiledNovember 12, 2026
Docket24-438
StatusPublished
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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