                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS



Theresa Coleman, Administratrix of the                                           FILED
                                                                                 June 24, 2013
Estate of Sara Bryanne Coleman,                                             RORY L. PERRY II, CLERK
Plaintiff Below, Petitioner                                               SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA

vs) No. 12-0665 (Cabell County 06-C-589)

Patricia Hackney, CNM, RN, and
Mitchell Nutt, M.D.,
Defendants Below, Respondents


                             MEMORANDUM DECISION
        Petitioner Theresa Coleman, Administratrix of the Estate of Sara Bryanne Coleman, by
counsel J. Franklin Long, Dwight J. Staples, and Gail Henderson-Staples, appeals the Circuit
Court of Cabell County’s order entered on April 20, 2012, denying the motion for a new trial
after a jury verdict in favor of respondents. Respondents Patricia Hackney, CNM, RN and
Mitchell Nutt, M.D., by counsel Michael J. Farrell, Tamela J. White, and Allison Carroll
Anderson, have filed a responsive brief. Petitioner has filed a reply.

       This Court has considered the parties= briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        This case arises from the death of eighteen-year-old Sara Bryanne Coleman. Coleman
had a known personal history of obesity and smoking, and had a family history of blood clots,
pulmonary embolism, and deep vein thrombosis. She was prescribed oral contraceptives
(LoOvral) by respondents on April 8, 2004, to control symptoms of irregular menses and
dysmenorrhea. LoOvral contained 30 mg of estrogen. Coleman was also prescribed Ovcon 50,
containing 50 mg of estrogen, on June 29, 2004. On August 16, 2004, Coleman died from a
blood clot. Petitioner contends that the blood clot was caused by the oral contraceptives.
Respondents contend that the decedent fell on a trampoline two to three days before her death
and that this fall led to the fatal blood clot. Respondents state that on August 13, 2004,
approximately four weeks after ingesting the last active oral contraceptive pill, the decedent was
using a small trampoline meant for a small child when she fell. The decedent complained of
injury for two days and requested that her parents take her for medical care, but they refused.
Instead, petitioner gave her daughter Neurontin, which was prescribed to petitioner, not the
decedent, to treat her pain. The decedent called off work for the two days following the
trampoline accident, complaining of severe back pain. The morning of her death, decedent woke

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her father by telling him she had passed out in the bathroom and had severe shortness of breath,
but he did not seek medical care for her at that time. Hours later she was found unresponsive in
her bed.

        Petitioner filed the instant action alleging medical malpractice on August 15, 2006,
against Allan Chamberlain, M.D., and Patricia Hackney, CNM, RN. Both respondents moved to
dismiss the action. Petitioner moved to amend the complaint after determining that Mitchell
Nutt, M.D., also provided care to the decedent, and an amended complaint adding Dr. Nutt as a
party defendant was filed on June 7, 2007. Discovery progressed but numerous delays occurred
and the trial was reset multiple times. At a pretrial hearing on July 1, 2010, Dr. Chamberlain’s
motion for summary judgment was granted in his favor and he was dismissed from the action
prior to trial. The case was continued again, and finally went to trial on October 25, 2011. On
November 15, 2011, the jury returned a defense verdict. Petitioner moved for a new trial. After a
hearing on March 30, 2012, the motion was denied. An order denying the motion was entered on
April 20, 2012.

       This Court has stated that:

       This Court reviews the rulings of the circuit court concerning a new trial and its
       conclusion as to the existence of reversible error under an abuse of discretion
       standard, and we review the circuit court's underlying factual findings under a
       clearly erroneous standard. Questions of law are subject to a de novo review.

Syl. Pt. 1, Burke-Parsons-Bowlby Corp. v. Rice, 230 W.Va. 105, 736 S.E.2d 338 (2012).

        Petitioner argues that the circuit court erroneously applied West Virginia Code § 55-7-23
retroactively to this case and erroneously instructed the jury regarding this statute. West Virginia
Code § 55-7-23 went into effect on July 5, 2005, after respondents prescribed the oral
contraceptives to the decedent. This statute limits a health care provider’s liability to a patient as
a result of the ingestion of prescription drugs approved by the United States Food and Drug
Administration. Respondents argue that this code provision should be applied retroactively based
on the fact that West Virginia Code § 55-7B-3 is retroactive. The circuit court found that the
code provision was indeed retroactive and gave a jury instruction on this statutory provision.
However, this Court finds that because the jury found that the defendants did not deviate from
the medical standard of care, the jury never reached this issue. Therefore, we decline to address
the retroactivity of this code provision as it is unnecessary in this action.

       Petitioner alleges several other assignments of error, including that the circuit court erred
in granting summary judgment to Allan Chamberlain, M.D. and erred in granting respondents’
request for a spoliation instruction, as the instruction offered was not a correct statement of law.
Further, petitioner argues that the lower court erred in ruling that petitioner could not introduce
testimony concerning a missing medical history form. Petitioner argues that the lower court
erroneously granted a directed verdict on informed consent, and that the lower court erroneously
denied petitioner the right to present evidence regarding respondents’ services provided to the
decedent pursuant to their billing records. Additionally, petitioner argues that the circuit court
erred in denying petitioner an opportunity to impeach the expert credentials of Respondent

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Hackney. Finally, petitioner argues that the circuit court erred in allowing respondents to
impermissibly strike an African-American juror. As to these assignments of error, our review of
the record reflects no clear error or abuse of discretion by the circuit court. The circuit court
reviewed each of petitioner’s contentions at length. For example, with regard to the issue of
informed consent, while the trial court initially ruled this issue would be presented to the jury, it
later directed a verdict in respondent’s favor on this issue. However, the circuit court explained
in detail the reasons for its change of decision as well as the reasons for the timing of the same.
With regard to the question of the opportunity to impeach the credentials of Respondent
Hackney, the lower court did not limit petitioner’s ability to conduct voir dire relating to her
status as an expert or her credentials, but it excluded information as to previous claims or
lawsuits as irrelevant. Similarly, the circuit court set out its extensive analysis of its rulings on
any alleged billing irregularities, the striking of the African-American juror from the jury panel,
the claim of spoliation of evidence, and each of the additional issues.

       Having reviewed the circuit court’s “Order” entered on April 20, 2012, we hereby adopt
and incorporate the circuit court’s well-reasoned findings and conclusions as to these
assignments of error. The Clerk is directed to attach a copy of the circuit court’s order to this
memorandum decision.

       For the foregoing reasons, we affirm.

                                                                                          Affirmed.

ISSUED: June 24, 2013

CONCURRED IN BY:

Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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