Davis ex rel. Davis v. Wallace

565 S.E.2d 386

211 W.Va. 264

Marybeth DAVIS, an incarcerated person by her next friend and her power of attorney, Gary DAVIS, Plaintiff Below, Appellant, Paul S. Detch, Attorney, Appellant, v. Gregory WALLACE; Irvin Sopher; Elizabeth Scharman; Anne Hooper; Basil Zitelli; and Dorothy Becker, Defendants Below, Appellees, State of West Virginia, Intervenor Below, Appellee.

No. 29966.

Supreme Court of Appeals of West Virginia.

Submitted January 9, 2002.

Decided April 26, 2002.

Dissenting Opinion by Chief Justice Davis May 8, 2002.

Concurring Opinion of Justice Starcher July 3, 2002.

Paul S. Detch, Esq., Lewisburg, for Appellants.

Eric A. Collins, Esq., Pullin, Knopf, Fowler & Flanagan, Beckley, for Irwin Sopher and Anne Hooper.

Stephen M. Houghton, Esq., Dickie, McCamey & Chilcote, Wheeling, for Basi Zitelli and Dorothy Becker.

Charles R. Bailey, Esq., John T. Molleur, Esq., Bailey & Wyant, Charleston, for Gregory Wallace.

George A. Daugherty, Esq., Elkview, for Elizabeth Scharman.

Robert Kevin Hanson, Prosecuting Attorney, Greenbrier County, Lewisburg, for Appellee State of West Virginia.

PER CURIAM.

The appellant, Marybeth Davis, who is currently incarcerated, appeals from an order of the Circuit Court of Greenbrier County awarding sanctions in the amount of $8,500.00 against the appellant Marybeth Davis, her next friend Gary Davis, and their attorney, Paul S. Detch.

I.

On September 15, 1999, the appellant by her next friend, Gary Davis, sued the appellees, Drs. Gregory Wallace, Irvin Sopher, Elizabeth Scharman, Anne Hooper, Basi Zitelli, and Dorothy Becker, for their conduct in connection with the appellant's criminal trial.¹ Specifically, she alleged that the doctors, as expert witnesses for the State, had negligently performed tests, negligently prepared for testimony, negligently testified, and otherwise failed to meet the "standards of science and medicine as it existed at that time."

In response to the lawsuit, the appellees filed motions to dismiss for failure to state a claim upon which relief could be granted pursuant to West Virginia Rules of Civil Procedure, Rule 12(b)(6) [1998]. The Circuit Court of Greenbrier County granted the appellees' motions to dismiss, finding that none of the causes of action stated against the appellees were viable under existing state law.

The appellees thereafter filed motions for sanctions against the appellants and their counsel. The circuit court granted the appellees' motions for sanctions, finding as a matter of law that the claims and other legal contentions made by the appellants were not warranted by existing law, nor did they constitute a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law pursuant to Rule 11(b) of the West Virginia Rules of Civil Procedure [1998].

The circuit court further held that the claims and other legal contentions made in the appellant's complaint were frivolous in nature, and that the allegations and other factual contentions made in the complaint did not have any evidentiary support, nor were they likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.

Finally, the circuit court found that the appellants filed the lawsuit with a vexatious, wanton, or oppressive intent to intimidate the appellees regarding their testimony at any post-trial hearing in the criminal case, or to seek to punish them for their testimony at the criminal trial.

The circuit court awarded attorneys' fees and related expenses against the appellants, Marybeth Davis and Gary Davis, and their attorney, Paul S. Detch, jointly and severally, in the amount of $8,500.00 as sanctions for their conduct. The trial court had previously dismissed the appellants' lawsuit against the appellees.

The appellants and their attorney now appeal the circuit court's order.

II.

This Court reviews a trial court's assessment of sanctions under an abuse of discretion standard. "The West Virginia Rules of Evidence and the 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. Absent a few exceptions, this Court will review evidentiary and procedural rulings of the circuit court under an abuse of discretion standard." Syllabus Point 1, McDougal v. McCammon, 193 W.Va. 229, 455 S.E.2d 788 (1995). "A trial court abuses its discretion if its ruling is based on an erroneous assessment of the evidence or the law." Bartles v. Hinkle, 196 W.Va. 381, 389, 472 S.E.2d 827, 835 (1996) (discussing the trial court's imposing a $10,000.00 sanction against a party who repeatedly failed to comply with the trial court's discovery orders).

Rule 11(b) of the West Virginia Rules of Civil Procedure provides that:

By presenting to the court ... a pleading, written motion, or other paper, an attorney... is certifying that to the best of the person's knowledge, information, and belief formed after an inquiry reasonable under the circumstances,

(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;

(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;

(3) the allegations and other factual contentions have evidentiary support or, [if] specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery[.]

West Virginia Rules of Civil Procedure, Rule 11(b) [1998].

An important purpose of Rule 11 of the West Virginia Rules of Civil Procedure is to prevent frivolous lawsuits or lawsuits filed for an improper purpose. "The purpose of Rule 11 and Rule 37 of the West Virginia Rules of Civil Procedure is to allow trial courts to sanction parties who do not meet minimum standards of conduct in a variety of circumstances." Bartles v. Hinkle, 196 W.Va. at 389, 472 S.E.2d at 835. Rule 11 with its possible sanctions "deters much frivolous litigation (thereby conserving judicial resources), compensates the victims of vexatious litigation, and educates the bar about appropriate standards of conduct." Alan E. Untereiner, Note, A Uniform Approach to Rule 11 Sanctions, 97 Yale Law Journal 901, 902 (1988) (footnotes omitted).

West Virginia trial courts have the authority to sanction parties that file frivolous lawsuits. "A court may order payment by an attorney to a prevailing party reasonable attorney fees and costs incurred as the result of his or her vexatious, wanton, or oppressive assertion of a claim or defense that cannot be supported by a good faith argument for the application, extension, modification, or reversal of existing law." Syllabus, Daily Gazette Co., Inc. v. Canady, 175 W.Va. 249, 332 S.E.2d 262 (1985). However, there are some limitations on a trial court's ability to levy sanctions:

In formulating the appropriate sanction, a court shall be guided by equitable principles. Initially, the court must identify the alleged wrongful conduct and determine if it warrants a sanction. The court must explain its reasons clearly on the record if it decides a sanction is appropriate. To determine what will constitute an appropriate sanction, the court may consider the seriousness of the conduct, the impact the conduct had in the case and in the administration of justice, any mitigating circumstances, and whether the conduct was an isolated occurrence or was a pattern of wrongdoing throughout the case.

Syllabus Point 2, Bartles v. Hinkle, supra.

At the heart of this case is the issue of whether the appellants filed a "frivolous" lawsuit that was neither grounded in existing state law nor was "a good faith argument for the application, extension, modification, or reversal of existing law."

The appellants took the novel approach of suing the opposing party's expert witnesses for negligence and malpractice. The appellants claimed that the expert witnesses (among other alleged acts of misconduct) mishandled tissue samples, mislabeled and misread tissue samples, and concealed evidence that would have been useful in the defense of appellant Marybeth Davis in the underlying criminal action. The appellants argued that expert witnesses who commit negligence in pre-trial preparation of reports and on the witness stand should be held liable for their mistakes.

The law regarding witness immunity is sparse in West Virginia, and the issue of expert witness immunity has not been addressed by this Court. Historically, in West Virginia and in other jurisdictions, witnesses have been regarded as having an absolute immunity regarding their testimony given during a trial. This immunity encourages witnesses "to speak freely without the specter of subsequent retaliatory litigation for their good faith testimony. The immunity was created at common law to shield the percipient [fact] witness who was called into court to testify as to what he saw, heard, or did that was relevant to an issue in the case." Christopher M. McDowell, Note, Authorizing the Expert Witness to Assassinate Character for Profit: A Reexamination of the Testimonial Immunity of the Expert Witness, 28 U. Mem L.Rev. 239, 275 (1997). However, an emerging body of case law² and scholarly work³ questions the granting of absolute immunity to expert witnesses for in-court testimony or out-of-court preparations for trial including compiling data and generating reports.

Courts that have contemplated allowing expert witnesses to be held liable for their negligent behavior find that the typical policy concerns that promote absolute immunity for fact witnesses do not apply to expert...