State ex rel. Krivchenia v. Karl
In State ex rel. Krivchenia v. Karl, W.Va. , 215 W. Va. 603, 600 S.E.2d 315 (2004), the circuit court entered an order limiting the testimony of the defendant's expert because the expert indicated in his deposition that he was not going to render an opinion concerning the applicable standard of care.
The defendant filed a motion for reconsideration and attached an affidavit from his expert indicating that he would, in fact, render an opinion that the defendant did not deviate from the standard of care.
The circuit court denied the motion for reconsideration, and thus, the defendant sought a writ of prohibition from this Court to prohibit enforcement of the order.
The Court issued the writ in Krivchenia stating that "based upon the expert's affidavit . . . the circuit court should have granted the motion for reconsideration and permitted the expert to render an opinion on the standard of care."
The expert had testified during his deposition that he did not understand the legal definition of the standard of care and therefore, could not render such an opinion.
In his affidavit, the expert indicated that he had been advised of the legal definition of the standard of care as it applied to the defendant and would render an opinion that the defendant did not deviate from that standard with regard to his treatment of the plaintiff.
Thus, the Court concluded that the expert was qualified to testify and therefore, should be permitted to give his opinion.
The Court found that the circuit court had erred in granting, in part, a motion in limine to prevent a defense expert from testifying regarding the applicable standard of care.
The Court's finding was based on an affidavit in which the expert expressed a view he had previously declined to express.
The affidavit was attached to the plaintiff's motion asking the circuit court to reconsider its ruling on the motion in limine.
With respect to the affidavit, the Court explained that the expert stated during his deposition that he did not understand the legal definition of standard of care and, therefore, that he would not render an opinion on the standard of care.
However, during the motion for reconsideration, the expert submitted an affidavit indicating that:
"I have been advised that standard of care in West Virginia for a physician is 'what a reasonably prudent physician in the same or similar circumstances would do.'"
The affidavit stated further that:
"having been informed of the legal definition of standard of care as it applies to the defendant doctor, I am of the opinion, as I always have been, that the defendant did not deviate from the standard of care in regards to his care and treatment of Jamison Piatt." (Id. at 608, 600 S.E.2d at 319-20.)