                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS


Donna Hamilton,
Plaintiff Below, Petitioner                                                         FILED
                                                                                October 20, 2017
vs) No. 16-0856 (Monongalia County 14-C-691)                                       RORY L. PERRY II, CLERK
                                                                                 SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA
Jaiyoung Ryu, M.D.,
Defendant Below, Respondent

                               MEMORANDUM DECISION
       Petitioner Donna Hamilton (“petitioner”), by counsel Stephen P. New, Amanda Taylor,
Mark R. Staun, and David B. Lunsford, appeals the Circuit Court of Monongalia County’s order
denying her motion for a new trial following a defense verdict in the trial of her medical
malpractice action. Respondent Jaiyoung Ryu, M.D. (“Dr. Ryu”), by counsel William E.
Galeota, Rodney L. Bean, and Crystal Bombard-Cutright, filed a response.

        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 affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

                              Factual and Procedural Background

         In this appeal, petitioner challenges multiple evidentiary rulings made by the circuit court
in the trial of her medical malpractice suit against Dr. Ryu.1 In her suit, petitioner alleged that she
experienced permanent ulnar nerve injury in her left arm following a total elbow arthroplasty
(total elbow replacement) performed by Dr. Ryu. At the conclusion of six days of trial, the jury
returned a verdict finding that petitioner failed to prove that Dr. Ryu breached the standard of
care in his treatment of petitioner’s elbow. The circuit court denied petitioner’s motion for a new
trial, and this appeal followed.

      The evidence at trial revealed that petitioner injured her elbow in September of 2011
when she fell while working as a cook in a school kitchen. She reported to the Appalachian

       1
          In addition to Dr. Ryu, petitioner originally named West Virginia University Board of
Governors and the West Virginia Medical Corporation d/b/a University Health Associates as
defendants. Against these defendants, she alleged claims of vicarious liability, negligence, gross
negligence, negligent retention, negligent supervision, and loss of consortium. Prior to trial,
petitioner voluntarily dismissed all of her claims with the exception of the negligence claim
against Dr. Ryu.
                                                  1

Regional Hospital emergency room, which referred her to Dr. Nathan Doctry, an orthopedic
surgeon in Beckley, West Virginia. After her visit with Dr. Doctry, petitioner sought treatment
from a second orthopedist. However, she returned to Dr. Doctry in October of 2011.2 Dr. Doctry
ordered a CT scan of petitioner’s left arm and discussed with petitioner the possibility of
performing either a radial head replacement or radial head excision on petitioner’s elbow. Dr.
Doctry then referred petitioner to Dr. Ryu at the West Virginia University Orthopedic Clinic.

        Petitioner presented to Dr. Ryu for evaluation in December of 2011. Petitioner reported
to Dr. Ryu that she lacked motion in her left upper extremity, experienced pain in the elbow
when lifting, and that she was unable to perform any task at face level. Dr. Ryu performed a
physical examination of petitioner and reviewed her prior x-rays and CT scan. The imaging
showed a posterior subluxation of the radial head, coronoid fracture, capitellum fracture,
moderate arthritis at the ulnotrochlear joint, and post-traumatic deformity at the radial capitellum
joint. Based on his evaluation, Dr. Ryu recommended a total elbow arthroplasty, and petitioner
agreed.3

        Petitioner returned to Dr. Ryu’s office in January of 2012 for a history and physical to
ensure that she was medically fit to undergo surgery. Physician Assistant Jon Kline saw
petitioner during this visit. Mr. Kline obtained petitioner’s signature on the informed consent
form, which listed possible risks of surgery to include “infection, pain, stiffness, damage to
nerve, artery, vein or soft tissue.” The informed consent form also stated that petitioner
“acknowleg[ed] that residents, fellows, physician assistants and/or other nonphysician health
care professionals, under the supervision and direction of the above-named physician, may
perform portions of this procedure.”

         Petitioner underwent the total elbow arthroplasty on February 12, 2012, after which she
experienced numbness in her arm and hand. The surgery was performed by Dr. Ryu and a
medical resident. Post-operative testing showed damage to the sensory portion of the ulnar nerve.
Dr. Ryu opined that petitioner’s ulnar nerve neuropathy was caused by the performance of the
total arthroplasty and it was a common complication of the surgery. Petitioner’s expert witness,
Dr. Scott Desman, testified that petitioner should not have undergone a full-elbow replacement
because it was unnecessary and inappropriate. Dr. Desman testified that, instead, petitioner
should have undergone a radial head resection or excision because these procedures do not
expose the ulnar nerve to potential damage.
         On April 6, 2016, the jury returned a verdict finding that petitioner failed to prove by a
preponderance of the evidence that Dr. Ryu was negligent in his treatment. Petitioner filed a

       2
         Dr. Ryu states that petitioner returned to Dr. Doctry after the second orthopedist
concluded that her injury did not prevent her from returning to work.
       3
         Dr. Doctry testified at trial that he was not surprised that Dr. Ryu recommended a total
elbow arthroplasty instead of a radial head replacement or radial head recession; that he trusted
Dr. Ryu’s judgment and clinical acumen; and that, if he disagreed with Dr. Ryu’s
recommendation, he would have advised petitioner to seek another opinion. Additionally, Dr.
Doctry testified that petitioner asked him for his thoughts on Dr. Ryu’s recommendation, and he
advised her to go through with the procedure.
                                                 2

motion for a new trial in which she argued, in relevant part, that the circuit court erred by (1)
permitting Dr. Ryu to testify to expert opinions that had not been disclosed to her; (2) prohibiting
petitioner from questioning Dr. Ryu about the “special care” that he exercised regarding
petitioner’s ulnar nerve during the surgery; and (3) permitting Dr. Ryu to elicit undisclosed
opinions from his expert witness, Dr. David Glaser. Following a hearing, the circuit court denied
petitioner’s motion for a new trial by order entered on August 10, 2016. This appeal followed.

                                            Discussion

        On appeal, petitioner raises three assignments of error. First, she argues that the circuit
court erred in allowing Dr. Ryu to present testimony and argument regarding the ulnar nerve and
performance of the surgery, while prohibiting her from introducing any evidence or argument
regarding the same. Second, petitioner argues that the circuit court erred when it permitted Dr.
Ryu to offer his own undisclosed expert opinions at trial. Third, petitioner argues that the circuit
court erred in allowing Dr. Ryu’s expert witness, Dr. David Glaser, to offer undisclosed
opinions. Petitioner contends that these alleged errors entitle her to a new trial.

        Rule 59(a) of the West Virginia Rules of Civil Procedure provides, in relevant part, that
“[a] new trial may be granted to all or any of the parties and on all or part of the issues (1) in an
action in which there has been a trial by jury, for any of the reasons for which new trials have
heretofore been granted in actions at law[.]” This Court has held as follows:

       When a trial judge vacates a jury verdict and awards a new trial pursuant to Rule
       59 of the West Virginia Rules of Civil Procedure, the trial judge has the authority
       to weigh the evidence and consider the credibility of the witnesses. If the trial
       judge finds the verdict is against the clear weight of the evidence, is based on
       false evidence or will result in a miscarriage of justice, the trial judge may set
       aside the verdict, even if supported by substantial evidence, and grant a new trial.
       A trial judge’s decision to award a new trial is not subject to appellate review
       unless the trial judge abuses his or her discretion. Syl. Pt. 3, In re: State Public
       Bldg. Asbestos Litigation, 193 W.Va. 119, 454 S.E.2d 413 (1994), cert. denied
       sub nom. W.R. Grace & Co. v. West Virginia, 515 U.S. 1160, 115 S.Ct. 2614, 132
       L.Ed.2d 857 (1995).

Syl. Pt. 3, in part, Rodriguez v. Consolidation Coal Co., 206 W.Va. 317, 524 S.E.2d 672 (1999).
With respect to the circuit court’s review of the evidence when considering a motion for a new
trial, this Court has long held that

       [i]n determining whether the verdict of a jury is supported by the evidence, every
       reasonable and legitimate inference, fairly arising from the evidence in favor of
       the party for whom the verdict was returned, must be considered, and those facts,
       which the jury might properly find under the evidence, must be assumed as true.

Syl. Pt. 3, Walker v. Monongahela Power Co., 147 W.Va. 825, 131 S.E.2d 736 (1963).
Additionally, we have held that “[t]he action of a trial court in admitting or excluding evidence
in the exercise of its discretion will not be disturbed by the appellate court unless it appears that

                                                 3

such action amounts to an abuse of discretion.” Syl. Pt. 1, Cecil v. D & M Inc., 205 W.Va. 162,
517 S.E.2d 27 (1999) (quoting Syl. Pt. 6, State v. Kopa, 173 W.Va. 43, 311 S.E.2d 412 (1983)).
With these standards in mind, we turn to petitioner’s arguments.

        Petitioner’s first assignment of error is that the circuit court allowed Dr. Ryu to present
evidence regarding the performance of the surgery, but prohibited her from doing the same.
During opening statements, Dr. Ryu’s counsel stated that the jury would hear evidence of how
Dr. Ryu took “special care” not to damage the ulnar nerve, and during his direct examination, Dr.
Ryu testified to the same. Petitioner complains that the circuit court allowed this testimony to be
admitted, even though she was not challenging how Dr. Ryu performed the surgery. However,
petitioner argues that the circuit court prevented her from admitting evidence in the form of the
surgery schedule which showed that a medical resident was the one who transposed the ulnar
nerve back into place after the elbow replacement; that Dr. Ryu had left the procedure by this
point, so he could not have given “special care” to the nerve. Petitioner contends that the circuit
court permitted Dr. Ryu to “confuse the issue” by focusing on how he took care of the nerve
when the issue was whether the surgery was necessary.

       Petitioner also complains that the circuit court excluded the video deposition of Dr. Bruce
Guberman, who had opined that the surgery was the cause of petitioner’s injury. The circuit
court excluded the deposition because Dr. Guberman was not an orthopedist, and admitted that
he had never performed an elbow replacement.

         Upon our review, we find no merit in petitioner’s first assignment of error. Initially, the
record demonstrates that petitioner’s theory of the case at trial was a bit of a moving target. At
one point, petitioner appears to have alleged that Dr. Ryu was negligent because he was not
present to supervise the medical resident who participated and/or because the surgery was
unnecessary. However, at other times, she appeared to concede that there was no negligence in
the performance of the surgery, and that her claim focused solely on lack of informed consent,
that is, that she was not properly informed that numbness was a complication of the surgery or a
that medical resident would participate in the procedure. As Dr. Ryu points out, many of the
circuit court’s evidentiary rulings favored petitioner and allowed her to advance her differing
theories of the case, even over Dr. Ryu’s objections.

        Importantly, petitioner did not present expert testimony that Dr. Ryu breached the
standard of care during the surgery. The record reflects that petitioner attempted to imply to the
jury that Dr. Ryu breached the standard of care because he was absent when the ulner nerve was
transposed. Petitioner argues that she wanted to introduce the surgery schedule to challenge Dr.
Ryu’s assertion that “special care” was taken to protect the nerve. However, there was no expert
testimony to support a claim that the standard of care was breached at all during the surgery,
which would include transposition of the nerve. Thus, the circuit court’s ruling to preclude
petitioner from introducing Dr. Ryu’s surgery schedule was not only entirely within the court’s
discretion, but also consistent with the West Virginia Medical Professional Liability Act, which
requires that “a defendant’s failure to meet the standard of care, if at issue, shall be established . .
. by testimony of one or more knowledgeable, competent expert witnesses.” W.Va. Code § 55­
7B-7, in relevant part. As Dr. Ryu correctly argues, it was of no consequence whether he or a



                                                   4

medical resident took “special care” of the nerve during the surgery because the standard of care
during the surgery was not an issue in the case.

        Additionally, the record shows that the circuit court permitted petitioner great leeway to
advance her theory that she had not given informed consent to the surgery. Over Dr. Ryu’s
objection, petitioner questioned Mr. Kline extensively on his visit with petitioner during which
petitioner signed the informed consent form. The court permitted petitioner to elicit testimony (1)
that Mr. Kline did not specifically review the portion of the form that addressed medical
residents performing parts of the surgery, and (2) that, in fact, a medical resident did perform
part of her surgery. Additionally, even though petitioner testified that she did not recall the
informed consent process, she testified that she would not have agreed to the surgery had she
been advised that a medical resident might perform part of it. Contrary to her protestations on
appeal, the jury heard petitioner’s evidence that she did not consent to the surgery, and rejected
it. Given that Dr. Ryu is entitled to “every reasonable and legitimate inference” drawn from the
evidence, we see no basis to disturb the verdict in his favor. See, Syl. Pt. 3, Walker, supra.

         Lastly, as part of her first assignment of error, petitioner challenges the exclusion of Dr.
Bruce Guberman’s expert causation opinion. During Mr. Guberman’s deposition, he testified,
over Dr. Ryu’s objection, that the total elbow arthroplasty was the cause of petitioner’s ulnar
nerve injury. At trial, petitioner relied upon two expert witnesses, Dr. Scott Desman and Dr.
Bruce Guberman. Dr. Ryu objected to the admission of Dr. Guberman’s causation opinion on the
grounds that he is board-certified in internal medicine and cardiology, had never performed a
total elbow arthroplasty, and, therefore, was not qualified to render a causation opinion.
“Whether a witness is qualified to state an opinion is a matter which rests within the discretion of
the trial court and its ruling on that point will not ordinarily be disturbed unless it clearly appears
that its discretion has been abused.” Syl. Pt. 5, Mayhorn v. Logan Med. Found., 193 W.Va. 42,
454 S.E.2d 87 (1994) (citations omitted). Given Dr. Guberman’s qualifications in unrelated
fields, we find no abuse of discretion by the circuit court preventing the jury from hearing his
causation opinion. Importantly, we find that petitioner suffered no prejudice because the circuit
court allowed her other expert, Dr. Desman, to offer a causation opinion that petitioner’s ulnar
nerve injury was caused by the surgery.

        Petitioner’s second assignment of error is that the circuit court allowed Dr. Ryu to offer
undisclosed expert opinions on two issues: (1) that he exercised “special care” toward the ulnar
nerve during surgery, and (2) that radial head resection was contraindicated due to instability of
petitioner’s wrist. Petitioner concedes that she failed to object to the admission of this testimony,
but asserts that the admission of the evidence constitutes “plain error.” “To trigger application of
the ‘plain error’ doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial
rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial
proceedings.” Syl. Pt. 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

       In the present case, there was no error, let alone plain error. Dr. Ryu was disclosed both
as a witness on his own behalf and as an expert witness on the issue of whether his care and
treatment of petitioner caused or contributed to the alleged injuries. Dr. Ryu’s testimony that he
took “special care” of the ulnar nerve is hardly expert testimony; rather, he merely described how
the surgery was performed. He was deposed; was questioned as an adverse witness in

                                                  5

petitioner’s case-in-chief; and was cross-examined by petitioner’s counsel during the defense’s
case-in-chief. This Court cannot find that the circuit court erred by allowing him to testify
regarding petitioner’s ulnar nerve or that petitioner was in any way unfairly prejudiced by that
testimony. Next, the record demonstrates that petitioner was aware well before trial of Dr. Ryu’s
opinion that a radial resection was contraindicated because he testified to as much in his May of
2015, deposition. The record simply does not support petitioner’s assertion of plain error; thus,
petitioner’s second assignment of error is rejected.

         In her final assignment of error, petitioner challenges the admission of the video
deposition of Dr. David Glaser, Dr. Ryu’s expert witness. The deposition at issue was taken by
petitioner more than a month before the trial, yet she appears to complain that she was ambushed
at trial by Dr. Glaser’s previously undisclosed opinions. As Dr. Ryu correctly points out, Dr.
Glaser’s expert disclosure covered the opinions to which he testified in his deposition; petitioner
knew exactly what Dr. Glaser’s testimony would be at trial.

        Petitioner also appears to complain that the circuit court allowed the unedited video
deposition, which included counsels’ objections, to be played for the jury. Petitioner fails to
explain how this prejudiced her in any way. Nevertheless, the record reveals that, prior to trial,
defense counsel wrote to petitioner’s counsel and attempted to designate a portion of Dr.
Glaser’s deposition to be played at trial. However, petitioner’s counsel did not respond. Thus,
she has waived any objection inasmuch as she now complains that the circuit court allowed the
entire deposition to be played. See, in part, W.Va. R. Evid. 103(a)(1) (“A party may claim error
in a ruling to admit . . . evidence only if the error affects a substantial right of the party and . . if
the ruling admits evidence, a party, on the record . . . (A) timely objects or moves to strike; and
(B) states the specific ground, unless it was apparent from the context[.]”). Upon our review, we
reject petitioner’s final assignment of error.

                                              Conclusion

      For the foregoing reasons, we affirm the Circuit Court of Monongalia County’s “Order
Denying Plaintiff’s Motion for New Trial,” entered on August 10, 2016.

                                                                                              Affirmed.

ISSUED: October 20, 2017

CONCURRED IN BY:

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

DISQUALIFIED:

Justice Elizabeth D. Walker

                                                   6

