Education:

• JURIS DOCTORATE, West Virginia University College of Law, 1978
• Editor in Chief, West Virginia Law Review, Volume 80
• Order of the Coif
• Winner, College of Law Trial Competition Award, 1977
• Winner, Lugar Cup Trial Competition, West Virginia College of Law, 1978
• Winner, Gourley Cup Trial Competition, Allegheny County Trial Lawyers Association, 1978
• M.P.A., PUBLIC ADMINISTRATION, West Virginia University, 1972
• B.A., POLITICAL SCIENCE, West Virginia University, 1971

Honors, Awards, Services:

• President, West Virginia State Bar, 1997-98
• President-Elect, West Virginia State Bar, 1996-97
• Vice President, West Virginia State Bar, 1995-96
• Board of Governors, West Virginia State Bar, 1992-1998
• Board of Governors, Defense Trial Counsel of West Virginia, 1990-93
• President, Cabell County Bar Association, 1986
• Member, Commission on the Future of the West Virginia Judicial System, 1997-98
• Chairman, Subcommittee on Access to Justice, Commission on the Future of the West Virginia Judicial System, 1998
• Member, Supreme Court Pattern Jury Instructions Committee, West Virginia Supreme Court of Appeals, 2000
• State Bar Delegate to the American Bar Association’s House of Delegates, 1998-99
• Recognized in The Best Lawyers^® in America, 2005-Present
• Outstanding Lawyers of America, 2003-Present
• The Bar Register of Preeminent Lawyers, 2001-Present
• Who’s Who in American Law, 1979-Present
• West Virginia Super Lawyers, Medical Malpractice – 2007-Present
• West Virginia’s Top Lawyers, 2008-Present
• Lawyer of the Year, Best Lawyers – Personal Injury Litigation Defendants, Charleston, WV – 2013
• Lawyer of the Year, Best Lawyers – Medical Malpractice Law, Defendants, Charleston, WV – 2014
• Lawyer of the Year, Best Lawyers – Medical Malpractice Law, Defendants, Charleston, WV – 2017
• Fellow, West Virginia Bar Foundation, 2004
• Senior Fellow, Litigation Counsel of America, 2008-Present
• West Virginia State Bar TechNet Committee, 1989-Present
• West Virginia State Bar Law and Medicine Committee, 1991-Present
• Distinguished Faculty, West Virginia Defense Trial Counsel, 1992,1994
• Chairman, West Virginia State Bar TechNet Committee, 1997-98
• Visiting Committee, West Virginia University College of Law, 2002-2006
• Martindale-Hubbell Rating (AV)

Licenses:

• West Virginia, 1978
• Kentucky, 1989

Court Admissions:

• The Supreme Court of the United States of America
• United States Court of Appeals, Fourth Circuit
• United States Court of Appeals, Sixth Circuit
• West Virginia Supreme Court of Appeals
• United States District Court, Southern District of West Virginia
• United States District Court, Northern District of West Virginia
• United States District Court, Eastern District of Kentucky
• All West Virginia Circuit and Magistrate Courts
• Kentucky Supreme Court
• Kentucky Court of Appeals
• All Kentucky Circuit and District Courts

Professional Affiliations:

• West Virginia State Bar
• West Virginia Bar Association
• Kentucky Bar Association
• National Conference of Bar Presidents
• Southern Conference of Bar Presidents
• International Association of Defense Counsel
• American Bar Association
• Defense Trial Counsel of West Virginia
• Defense Research Institute
• Cabell County, West Virginia Bar Association
• Litigation Counsel of America
• Boyd County, Kentucky Bar Association

Community Service:

• Member, WV Board of Physical Therapy, 2010-2020
• Vestry Member, St. John’s Episcopal Church, Huntington, WV 2000-2007
• Member, Board of Directors, Goodwill Industries of KYOWVA, Inc., 1978-1994
• President, Board of Directors, Goodwill Industries of KYOWVA, Inc., 1987
• Member, Huntington Chamber of Commerce 1993-Present
• Member, Board of Directors, Huntington Centers for Independent Living, 1981-1984

Successes:

• Experienced litigator having tried in excess of 125 cases.
• Successfully tried 23 birth injury cases with a success rate of nearly 80%.
• Obtained a wide breadth of trial experience having tried cases involving medical malpractice, insurance bad faith, automobile liability, commercial liability, product liability, premises liability, blasting and nuisance, trespassing, breach of contract, physical assault, sexual harassment, ERISA and arson.

Reported Appellate Cases:

Supreme Court of the United States

• Caperton v. A. T. Massey Coal Co., 556 U.S. 868, 129 S. Ct. 2252 (2009) Appeals judge candidate who received $3 million in campaign contributions from a party whose case would come before the judge should have recused himself when the case came up on appeal; the inquiry should have been objective and it was apparent that absent recusal, he would review a judgment that cost his biggest donor’s company $ 50 million.

United States Court of Appeals for the Fourth Circuit

• Camden-Clark Mem’l Hosp. Corp. v. St. Paul Fire & Marine Ins. Co., 468 F. App’x 364 (4th 2012) Camden-Clark Memorial Hospital Corporation (Camden-Clark) appeals the district court’s order granting summary judgment to St. Paul Fire and Marine Insurance Company (St. Paul) in Camden-Clark’s action for a declaratory judgment of insurance coverage.

• Adams v. Harron, No. 97-2547, 1999 U.S. App. LEXIS 21937 (4th September13, 1999) The court affirmed dismissal of malpractice and negligence suit for non-diagnosis of cancer, as doctors had no physician-patient relationship with decedent, but merely reviewed the x-rays for possible asbestos in the decedent.

• Kinney Shoe Corp. v. Polan, 939 F.2d 209 (4thCir. 1991) District court erred applying Laya test’s permissive third prong since even if applicable to appellant, it did not prevent piercing corporate veil where appellee ignored corporate formalities and invested nothing in company.

• Poynter v. Ratcliff, 874 F.2d 219 (4th Cir. 1989) There was no abuse of district court’s discretion in its decision not to excuse jurors for cause, in its decision to submit issue of negligence to jury, or in its decision to deny motion for new trial.

• Fugate v. Borg Textile Corp., No. 88-3827, 1989 U.S. App. LEXIS 21943 (4th July 27, 1989) Plaintiff appeals the district court’s order dismissing his products liability action against Borg Textile Corporation , which allegedly manufactured the component parts of a child’s coat that burned while being worn by Plaintiff  in 1969.

United States Court of Appeals for the Sixth Circuit

• Estate of Taylor v. Paul B. Hall Reg’l Med. Ctr., No. 98-5052, 1999 U.S. App. LEXIS 16761 (6th Cir. July 15, 1999) Complaint containing bare legal conclusions failed to state a claim on which relief could be granted because it failed to meet notice pleading requirements as to the elements of appellant executor’s EMTALA claim against appellee medical providers.

West Virginia Supreme Court of Appeals

• Adkins v. Clark, Case No. 21-0300, 875 S.E.2d 266 (W. Va. 2022) Dismissing plaintiff’s medical malpractice case on grounds it was untimely was proper because the failure of defendant healthcare provider to unequivocally decline pre-suit mediation in response to plaintiff’s notice of claim did not toll the statute of limitations beyond the statutorily prescribed time periods in W. Va. Code § 55-7B-6(i).

• Smith v. Clark, 241 W. Va. 838, 828 S.E.2d 900 (2019) Verdict in favor of a doctor and a hospital in a medical malpractice action was appropriate because the court properly instructed the jury, the court did not err in its evidentiary rulings regarding expert testimony, the court did not err in failing to strike a juror for cause, and the verdict was not against the clear weight of the evidence.

• Va. Mut. Ins. Co. v. Adkins, 234 W. Va. 226, 764 S.E.2d 757 (2014) A circuit court’s ruling that there was an additional $6 million in policy limits available for claims against the insured was reversed where the policy language referred only to the policy period for which the insurance policy was issued, and the medical corporation did not share in the surgeon’s separate limits under his tail coverage.

• Va. Employers’ Mut. Ins. Co. v. Bunch Co., 231 W. Va. 321, 745 S.E.2d 212 (2013) The Insurance Commissioner did not err in allowing an insurer to charge for agent commissions when no expense therefor had been incurred, because under W. Va. Code §§ 23-2C-18 and 33-20-4, insurance rate setting was prospective, based on cost projections derived from past experience and the reasonable expectation of future losses and expenses.

• State ex rel. State Farm Mut. Auto. Ins. Co. v. Marks, 230 W. Va. 517, 741 S.E.2d 75 (2012) Insurers’ challenged to medical protective orders failed, as state insurance commissioner’s privacy rules did not serve as substitute for court-issued orders regulating the manner in which discovery was conducted, since this would invade the province of judiciary in violation of separation of powers doctrine contained in W. Va. Const. art. V, § 1.

• State ex rel. State Farm Mut. Auto. Ins. Co. v. Bedell, 228 W. Va. 252, 719 S.E.2d 722 (2011) Protective order that restricted manner in which insurer could use medical records was proper as claimant showed good cause for order under W. Va. R. Civ. P. 26(c), it was not overly extensive, and requirement that counsel certify confidential material was destroyed when retention period under W. Va. Code. R. § 114-15-4.2(b) expired was proper.

• State ex rel. State Farm Mut. Auto. Ins. Co. v. Bedell, 226 W. Va. 138, 697 S.E.2d 730 (2010) An insurer’s writ of prohibition was granted as no court could enter a protective order that directed an insurer to return or destroy a claimant’s medical records prior to the time period set forth in W. Va. Code R. §§ 114-15-4.2(b) and 114-15-4.4(a). Further, claimant did not show good cause for a protective order under W. Va. R. Civ. P. 26(c).

• Zaleski v. W. Va. Mut. Ins. Co., 224 W. Va. 544, 687 S.E.2d 123 (2009) Notwithstanding court’s clear mandate directing circuit court to remand question of non-renewal to malpractice insurer for further hearing and to resolve disputes that might arise in course of insurer’s hearing on non-renewal, circuit court exceeded its jurisdiction by requiring parties to submit proposed hearing procedures and amending procedures.

• Caperton v. A.T. Massey Coal Co., 225 W. Va. 128, 690 S.E.2d 322 (2009) Judgment of more than $ 50 million in favor of appellees was reversed because appellants’ motion to dismiss tort claims against them had been improperly denied; the mandatory forum-selection clause of a coal supply agreement between certain of the parties should have been enforced.

• Camden-Clark Mem’l Hosp. Ass’n v. St. Paul Fire & Marine Ins. Co., 224 W. Va. 228, 682 S.E.2d 566 (2009) Question certified under W. Va. Code § 51-1A-3 was answered by holding that where insurance policy did not impose duty to defend upon insurer and insured controlled defense of underlying claims, insured had burden of proof to establish proper allocation of jury verdict between covered and non-covered claims under policy.

• Jones v. Setser, 224 W. Va. 483, 686 S.E.2d 623 (2009) Trial court abused its discretion in not granting a new trial based on the cumulative prejudicial effects on the jury that arose through the viewing of the cartoon, being subjected to disparaging remarks about plaintiff’s counsel and expert witness, and from the wrongful appeal to the local passions and concerns of the jurors.

• Murphy v. Miller, 222 W. Va. 709, 671 S.E.2d 714 (2008) Judgment was reversed as a dentist should have been stricken as a juror for cause under W. Va. Code § 56-6-12 since the dentist expressed a distaste for medical malpractice actions, adversity toward pain and suffering damages, and prejudice based on a medical malpractice suit filed against him.

• Caperton v. A.T. Massey Coal Co., 223 W. Va. 624, 679 S.E.2d 223 (2008) A judgment in favor of appellees on claims of tortious interference, fraudulent misrepresentation, and fraudulent concealment was reversed. The case should have been dismissed pursuant to a forum-selection clause in a coal supply agreement, requiring that any action related to that agreement be brought in a Virginia court.

• Caperton v. A.T. Massey Coal Co., No. 33350, 2007 W. Va. LEXIS 119 (Nov. 21, 2007) In tort suit arising in connection with mining contract, trial court abused its discretion in denying motion to dismiss because contract contained valid forum selection clause mandating that suits brought in connection therewith be filed in Virginia; the clause was adequately communicated to the relevant parties and encompassed the tort claims.

• Zaleski v. W. Va. Physicians’ Mut. Ins. Co., 220 W. Va. 311, 647 S.E.2d 747 (2007) The West Virginia Physicians’ Mutual Insurance Company had to provide a physician due process before it did not renew his malpractice insurance because the Company was a state actor created by W. Va. Code § 33-20F-1 et seq., but procedures for reviewing an Insurance Commissioner’s decision were not required because due process did not require them.

• State ex rel. Johnson & Johnson Corp. v. Karl, 220 W. Va. 463, 647 S.E.2d 899 (2007) Prescription drug manufacturer was denied a writ of prohibition under W. Va. Code § 53-1-1 against the enforcement of an order, which denied motion in limine to exclude evidence of its duty to warn patient personally of risks in an estate’s products liability action, because circuit court properly refused to apply the learned intermediary doctrine.

• Farley v. Shook, 218 W. Va. 680, 629 S.E.2d 739 (2006) Plaintiffs’ suit under Medical Professional Liability Act was improperly dismissed on summary judgment for lack of expert testimony because plaintiffs’ motion for extension of time to identify experts should have been granted in light of fact that plaintiffs twice agreed to podiatrists’ requests for extension of their expert disclosure deadline.

• Hinchman v. Gillette, 217 W. Va. 378, 618 S.E.2d 387 (2005) The trial court erred in dismissing a medical malpractice case because of alleged defects in a widow’s W. Va. Code § 55-7B-6 (2003) pre-suit notice of claim and screening certificate of merit as the healthcare providers did not give the widow specific pre-suit notice of the alleged insufficiencies or an opportunity to correct them.

• Sexton v. Grieco, 216 W. Va. 714, 613 S.E.2d 81 (2005) Trial court erred in granting judgment as a matter of law pursuant to W. Va. R. Civ. P. 50 to defendants in a medical malpractice action; a statute did not prohibit the jury from inferring proximate cause by defendant from declarations short of a plain and unambiguous statement by the expert presented by the parents of an injured child.

• Sydenstricker v. Mohan, 217 W. Va. 552, 618 S.E.2d 561 (2005) Trial court’s ruling to deny a mother’s motion for new trial after a jury returned a verdict for the treating physician in a medical malpractice case was affirmed because the trial court did not err by allowing evidence under W. Va. R. Evid. 105 of negligence committed by another doctor or evidence under W. Va. R. Evid. 403 of continued treatment.

• Clark v. Druckman, 218 W. Va. 427, 624 S.E.2d 864 (2005) The Supreme Court of Appeals of West Virginia determined that an attorney did not owe an opposing party a duty of care, the breach of which would subject the attorney to negligence liability. Further, the litigation privilege generally operated to preclude actions for civil damages arising from an attorney’s conduct in the litigation process.

• Va. ex rel. Billups v. Clawges, 218 W. Va. 22, 620 S.E.2d 162 (2005) Where disqualification of expert was sought, petitioners had to prove it was objectively reasonable for them to have concluded confidential relationship existed, and confidential or privileged information was disclosed; as alleged privileged information was in medical records and pleadings, or was discoverable, disqualification was not warranted.

• Elam v. Med. Assurance of W. Va., Inc., 216 W. Va. 459, 607 S.E.2d 788 (2004) Bad faith claim against malpractice defendant’s insurer was filed after effective date of statute barring such claims, and amended complaint did not relate back to date of original malpractice suit as the two claims were based on different conduct.

• Stewart v. George, 216 W. Va. 288, 607 S.E.2d 394 (2004) Judgment granted in favor of physician and hospital was reversed because patient had shown a factual issue concerning whether or not the failure to monitor and control the patient’s hyperglycemia was a proximate cause of subsequent injuries.

• Story v. Worden, 210 W. Va. 218, 557 S.E.2d 272 (2001) Minor’s guardian presented sufficient evidence to suggest it was reasonable for bank which managed house in which minor was present to be aware of need to repair storm door which injured minor, thereby avoiding summary judgment.

• Bradshaw v. Soulsby, 210 W. Va. 682, 558 S.E.2d 681 (2001) Trial court erred in holding the discovery rule did not apply to toll the two-year statute of limitation for wrongful death actions, thus the decedent’s estate’s lawsuit was timely filed.

• Banfi v. Am. Hosp. for Rehab., 207 W. Va. 135, 529 S.E.2d 600 (2000) Summary judgment for defendants in medical malpractice action was affirmed and reversed in part. Expert testimony was required as to restraint, treatment, and diagnosis of patient, but not as to failure to prevent her fall.

• State ex rel. Vernatter v. Warden, 207 W. Va. 11, 528 S.E.2d 207 (1999) The denial of appellant’s petition for habeas relief was affirmed; the court concluded his trial counsel conducted an objectively reasonable investigation into his mental history and provided competent assistance.

• State ex rel. Consolidation Coal Co. v. Clawges, 206 W. Va. 222, 523 S.E.2d 282 (1999) Petition for writ of mandamus/prohibition was properly denied because the circuit court had authority to vacate previously entered order for good reason even if it were a final order, and the court did not err as a matter of law.

• Consolidation Coal Co. v. Bos. Old Colony Ins. Co., 203 W. Va. 385, 508 S.E.2d 102 (1998) In declaratory judgment action regarding benefits, insurer and insureds were not entitled to summary judgment as insurer’s policy was ambiguous regarding payment of separately computed premiums for each insured and limitation of liability clause.

• Grove v. Maheswaran, 201 W. Va. 502, 498 S.E.2d 485 (1997) The nonresident doctors and hospital lacked sufficient minimum contacts with the state to warrant the exercise of personal jurisdiction over them with respect to a physician’s third-party complaint against them in a medical malpractice action.

• Dawson v. Norfolk & W. Ry., 197 W. Va. 10, 475 S.E.2d 10 (1996) Summary judgment was inappropriate in a railroad’s third-party suit seeking indemnification from a coal company for an engineer’s accident where there were theories of liability under which indemnity would be appropriate.

• Dunn v. Kanawha Cty. Bd. of Educ., 194 W. Va. 40, 459 S.E.2d 151 (1995) Allowing implied indemnity was proper because good faith settlement between plaintiffs and manufacturer did not extinguish right of non-settling defendants to seek implied indemnification when their liability was based on theory of strict liability.

• Hickman v. Epstein, 192 W. Va. 42, 450 S.E.2d 406 (1994) In a dispute between a lessee and sublessee of city-owned property, where the lessee was not a city official, the sublessee could not obtain a writ of mandamus requiring removal of a building that encroached on the subleased area of the property.

• Bias v. Nationwide Mut. Ins. Co., 179 W. Va. 125, 365 S.E.2d 789 (1987) Plaintiff was covered by underinsured motorist provision by operation of state law where insurer failed to offer such coverage to her; insurer was not bound by damages assessment made pursuant to settlement agreement.

Kentucky Court of Appeals

• Darwin Select Ins. Co. v. Ashland Hosp. Corp., Nos. 2016-CA-000372-MR, 2016-CA-000396-MR, 2017-CA-001167-MR, 2017-CA-001168-MR, 2017-CA-001756-MR, 2020 Ky. App. Unpub. LEXIS 104 (Ct. App. Feb. 14, 2020) These five consolidated appeals address the same overarching issue: namely, two insurers’ contested liability for providing defense coverage relating to 127 lawsuits asserted.

• Shy v. Walker, No. 2012-CA-000891-MR, 2013 Ky. App. Unpub. LEXIS 607 (Ct. App. July 19, 2013)   Shy contends he was prejudiced when the Estate’s counsel urged the jury to send a message to the medical community and make their community safe and entitled to a mistrial or new trial. The Estate counters that the issue was not properly preserved for review and, if it was, there was no reversible error. After review of the record, we agree that even if improper, counsel’s comments were not so prejudicial that the trial court erred when it denied Dr. Shy’s motions.

Court of Appeals of Maryland

• McQuitty v. Spangler, No. 2375, 2015 Md. App. LEXIS 173 (App. Aug. 7, 2015) Judgment parents obtained in favor of their son in personal injury action did not bar their subsequent wrongful death action against physician based on same negligent acts that caused son’s death, as res judicata applied only to actions between same parties and the parents filed wrongful death suit in their own right and for their own injuries.

• Spangler v. McQuitty, 424 Md. 527, 36 A.3d 928 (2012) After death of child, doctor was not entitled to reduction in award of future medical expenses to compensate for only that which was actually expended. Post judgment interest was due from date of original verdict, as judge so instructed and there was, in effect based on post judgment motion rulings, a finding that original judgment always existed.