Beyond The Bench, April 2016

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  • SMS Firm News

  • Legal Developments

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SMS Attorneys Obtain Voluntary Dismissal

Attorneys Tim Linkous and Jennifer Tampoya obtained two voluntary dismissals in medical malpractice cases. The two cases involved plaintiffs who alleged that SMS clients, health care provider entities, were vicariously liable for the alleged medical professional negligence of the treating physician, in one case an emergency medicine physician and in the other case a surgeon.  In both cases, plaintiffs' counsel eventually conceded that our clients were not vicariously liable for the alleged malpractice and voluntarily dismissed both of our clients. 
SMS Obtains Dismissal

SMS Owner Dwayne E. Cyrus and Associate Dominick Pellegrin obtained dismissal on behalf of the West Virginia Consolidated Public Retirement Board in a lawsuit alleging the improper calculation of a retirement estimate. The dismissal of the Consolidated Public Retirement Board was based upon the Board's qualified immunity.

SMS Welcomes Baby Butler!

SMS attorney Dave Butler and his wife, Molly, had their first child this week.  Jack David Butler made his grand entrance while dad was preparing for trial!  

Welcome, Baby Butler!

SMS Authors Article for WV Health Care Association
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SMS authored an article for the West Virginia Healthcare Association regarding the recent case SER Wheeling Hospital Inc. et al. v. Wilson.  The Supreme Court of Appeals of West Virginia addressed the peer review privilege in a medical malpractice case. The Court clarified the peer review privilege:

To determine whether a particular document is protected by the peer review privilege codified at W. Va. Code § 30-3C-3 (1980) (Repl. Vol. 2015), a reviewing court must ascertain both the exact origin and the specific use of the document in question.  Documents that have been created exclusively by or for a review organization, or that originate therein, and that are used solely by that entity in the peer review process are privileged. However, documents that either (1) are not created exclusively by or for a review organization, (2) originate outside the peer review process, or (3) are used outside the peer review process are not privileged.  

A party wishing to establish the applicability of the peer review privilege, set forth at W. Va. Code § 30-3C-3 (1980) (Repl. Vol. 2015), should submit a privilege log which identifies each document for which the privilege is claimed by name, date, and custodian. The privilege log also should contain specific information regarding (1) the origin of each document, and whether it was created solely for or by a review committee, and (2) the use of each document, with disclosures as to whether or not the document was used exclusively by such committee. Finally, the privilege log should provide a description of each document and a recitation of the law supporting the claim of privilege.

SMS Managing Member William R. Slicer Becomes Member of Virginia Bar
William R. Slicer, an experienced AV rated trial lawyer, has been defending national and local companies since 1989. He has defended cases involving catastrophic accidents, injuries, discrimination, harassment, business interruption, product defects, property damage, excessive force, municipal liability, construction disputes, and exposure to asbestos, silica, radon, and chemicals.

Mr. Slicer has also successfully defended commercial construction companies, trucking companies, engineering firms, manufacturers, national retailers, satellite television companies, oil and gas companies, and insurance companies.

As a managing member and co-founder of Shuman, McCuskey & Slicer, PLLC, he strives to continue offering superior representation to the firm’s clients through keen analysis, effective strategy, organization, proper training of assistants, and use of the latest technology.

SMS Attorney Caleb David Becomes Member of Kentucky Bar
SMS congratulates SMS Associate Attorney Caleb David for passing the State of Kentucky Bar Examination and becoming a member of the Bar.  

Mr. David joined the firm in 2015 as an Associate in the Charleston office. Mr. David’s practice at Shuman, McCuskey & Slicer focuses primarily on insurance-related defense matters.

Mr. David attended law school at Washington and Lee University. Mr. David participated in the John W. Davis Appellate Advocacy Competition and in the Client Counseling Competition, in which he mentored younger law students. 

 Parsons v. Halliburton.  Parsons is another arbitration case affirming the circuit court’s order compelling arbitration. Parsons sued Halliburton and seven months after Parsons filed his complaint, Halliburton filed a motion to compel arbitration. The plaintiff argued Halliburton “waived its contractual right to arbitration by failing to timely raise arbitration, and by acting inconsistently with its contractual right to arbitration in the previous seven months.” Parsons relied on a communication in which plaintiffs granted defense counsel extensions to answer, and argued “the defendant actively participated in the underlying litigation by volunteering to produce class-wide discovery and by repeatedly seeking extensions of time to file a responsive pleading.”  Rejecting the argument that the agreed extensions were enough to show waiver by participation in the litigation, the Court said “[t]he defendant made no formal, substantive response to any of the plaintiff’s requests.” New syllabus points:

 2.  The common-law doctrine of waiver focuses on the conduct of the party against whom waiver is sought, and requires that party to have intentionally relinquished a known right. A waiver may be express or may be inferred from actions or conduct, but all of the attendant facts, taken together, must amount to an intentional relinquishment of a known right. There is no requirement of prejudice or detrimental reliance by the party asserting waiver.

6.  The right to arbitration, like any other contract right, can be waived. To establish waiver of a contractual right to arbitrate, the party asserting waiver must show that the waiving party knew of the right to arbitrate and either expressly waived the right, or, based on the totality of the circumstances, acted inconsistently with the right to arbitrate through acts or language. There is no requirement that the party asserting waiver show prejudice or detrimental reliance.
Nationstar Mortgage v. West.  The Court reversed a denial of a motion to compel arbitration. The Court found that the contract was neither procedurally nor substantively unconscionable. The Court found that pre-printed documents in real estate deals are common and the arbitration language was in a rider in all capital letters. The Court stated that parties have a duty to read what they sign.  “The fact that the [plaintiffs] may have signed a document without reading it first does not excuse them from the binding effect of the agreements contained in the executed document.” The absence of an opt out provision is not fatal as shown by new Syllabus Point 2:

2.  The omission of an “opt out” provision in an agreement that permits the signatories to reject arbitration is just one of multiple factors to consider in evaluating a claim of procedural unconscionability. As a result, the omission of an “opt out” provision is not in itself sufficient evidence that an arbitration agreement is grossly unfair and thus unenforceable on grounds of procedural unconscionability.
Berkley v. Weirton Medical Center.  This case is a Memorandum Decision which affirmed summary judgment for the hospital in a medical malpractice action because plaintiff failed to name an expert witness. The Court stated, “the circuit court’s grant of summary judgment was based on petitioners’ inexplicable failure to provide testimony of an expert witness regarding the standard of care, pursuant to West Virginia Code §55-7B-7.” Turning to the “the single assignment of error that accurately recounts the circuit court’s order…,” the Court found the treating physician’s deposition testimony fell “woefully short of the evidence contemplated by West Virginia Code § 55-7B-7 to establish ‘the applicable standard of care and a defendant’s failure to meet the standard of care.’”  Also, the nurse admitted she was not qualified.  “We agree with the circuit court that petitioners offered no expert testimony to satisfy the statutory standard.”  

Knotts v. Grafton City Hospital.  Knotts was an age discrimination case in which the 65 year-old plaintiff was fired for violating the hospital’s patient confidentiality policy.  The plaintiff sued, claiming she was fired because of her age. Adopting the “substantially younger” rule articulated by the United States Supreme Court in O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 116 S.Ct. 1307 (1996), the Court reversed the old "over 40/under 40” rule.   The Court explained that pursuant to the “substantially younger” rule, a plaintiff may satisfy the third prong of the prima facie age discrimination test by presenting evidence that he/she was replaced by a “substantially younger” employee who engaged in similar conduct, yet received favorable treatment, for which the plaintiff faced an adverse employment decision.

Doe v. Pak.  The West Virginia Supreme Court recently held that prejudgment interest was not recoverable pursuant to West Virginia Code § 56-6-31 unless an injured party actually incurs “out-of-pocket” damages to pay for household services. The Pak Court held that failure to credit the advance would allow the plaintiff a windfall and "double recovery" which violates public policy:

we hold that when an insurer makes an advance payment to a tort-claimant upon condition that the advance payment will be credited against a future judgment or determination of damages, the damages recovered by the claimant on a subsequent judgment shall be reduced by the amount of the advance payment.

The Court reminded litigants that only special damages are subject to prejudgment interest.  Therefore, since Pak did not pay for lost household services, the Court found such services to be general damages, and thus not subject to prejudgment interest: "a circuit court must deduct all proper credits, payments, and set-offs before calculating prejudgment interest."
"Accept the challenges so that you can feel the exhilaration of victory."--George S. Patton
 (Natalie C. Schaefer is responsible for this publication.  This publication is an advertisement for Shuman, McCuskey & Slicer, PLLC). Visit SMS on the web at
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