Smith v. Clark, Jr.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

COLLEEN MICHELLE SMITH, as

Administratrix of the

Estate of David M. Smith,

Plaintiff,

v. CIVIL NO. 2:20-CV-47

(KLEEH)

EDWARD W. CLARK, JR. et al.,

Defendants.

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF’S MOTION FOR

PARTIAL SUMMARY JUDGMENT [ECF NO. 111]

Pending before the Court is Plaintiff’s motion for partial

summary judgment [ECF No. 111]. For the reasons discussed herein,

the motion is DENIED.

I. BACKGROUND AND PROCEDURAL HISTORY

Plaintiff Colleen Michelle Smith (“Plaintiff”) is the

Administratrix of the Estate of David M. Smith (“Smith”). In her

Amended Complaint, which was filed on December 14, 2020, she

brought suit against Defendants Edward Clark, Jr. (“Clark”), Bo D.

Hendershot (“Hendershot”), Jason Carey (“Carey”), the Lewis County

Sheriff’s Department (the “Sheriff’s Department”), the Lewis

County Commission (the “County Commission”), the Weston Lewis

County Emergency Ambulance Authority (the “Ambulance Authority”),

Rocky Shackleford (“Shackleford”), and Nancy Ryder (“Ryder”).

On October 22, 2021, Plaintiff voluntarily dismissed the

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF’S MOTION FOR

PARTIAL SUMMARY JUDGMENT [ECF NO. 111]

claims against the Sheriff’s Department. On May 2, 2022, the Court

was notified that Plaintiff settled with the Ambulance Authority,

Shackleford, and Ryder (together, the “EMS Defendants”). The Court

held a hearing on July 28, 2022, and approved the settlement. The

EMS Defendants have now been dismissed from the case.

The remaining defendants — Clark, Hendershot, Carey, and the

County Commission (together, the “Law Enforcement

Defendants”) — have informed Plaintiff that they intend to add the

EMS Defendants to the verdict form at trial so that the jury can

assess their percentage of fault. Plaintiff filed a motion for

summary judgment to prevent this from happening.

II. STANDARD OF REVIEW

Summary judgment is appropriate if “there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). The movant

“bears the initial responsibility of informing the district court

of the basis for its motion, and identifying those portions of

‘the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,’ which

it believes demonstrate the absence of a genuine issue of material

fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

Summary judgment is proper “[w]here the record taken as a whole

could not lead a rational trier of fact to find for the non-moving

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF’S MOTION FOR

PARTIAL SUMMARY JUDGMENT [ECF NO. 111]

party, there [being] no ‘genuine issue for trial.’” Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)

(citation omitted).

III. RELEVANT FACTS

Clark, Hendershot, and Carey were, at all relevant times, law

enforcement officers with the Sheriff’s Department. Am. Compl.,

ECF No. 3, at ¶¶ 3–5. On November 12, 2018, Smith was on parole.

Id. ¶ 15. He had failed to check in with his parole officer, and

authorities had issued a warrant for his arrest. Id. On or about

that day, Clark, Hendershot, and Carey sought to arrest Smith, and

a chase ensued. Id. ¶ 16–17. Smith was apprehended, and the

parties disagree about the details surrounding his arrest. Smith

was injured during the encounter. After Smith was placed in

handcuffs, Hendershot called for Emergency Medical Services. Id.

¶ 19. Eventually, Smith was taken to the hospital, placed on life

support, and provided other treatment, but he died on November 17,

2018. Id. ¶ 27.

Based on these facts, with respect to the remaining

Defendants, Plaintiff asserts the following causes of action:

 (Count 1) Negligence (Clark, Hendershot,

Carey);

 (Count 2) Negligence (County Commission);

 (Count 3) Negligence (County Commission);

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF’S MOTION FOR

PARTIAL SUMMARY JUDGMENT [ECF NO. 111]

 (Count 4) Outrage (All Defendants);

 (Count 5) Negligent Infliction of Emotional

Distress (All Defendants);

 (Count 6) Assault (Clark, Hendershot, Carey,

County Commission);

 (Count 7) Battery (Clark, Hendershot, Carey,

County Commission);

 (Count 8) Excessive Force, Fourth Amendment,

42 U.S.C. § 1983 (Clark, Hendershot, Carey,

County Commission);

 (Count 9) Excessive Force, Fourteenth

Amendment, 42 U.S.C. § 1983 (Clark,

Hendershot, Carey, County Commission); and

 (Count 10) Constitutional Violations (County

Commission).

IV. THE PARTIES’ ARGUMENTS

Plaintiff argues that the Law Enforcement Defendants may only

add the EMS Defendants to the verdict form if they have presented

sufficient evidence to create a question of fact for the jury on

the comparative fault of the EMS Defendants. Because the EMS

Defendants are medical providers,1 Plaintiff argues that the burden

is on the Law Enforcement Defendants to establish the EMS

Defendants’ medical negligence. Plaintiff argues that the Law

Enforcement Defendants have no expert to opine that the EMS

1 See Short v. Appalachian OH-9, Inc., 507 S.E.2d 124, 129 (W. Va. 1998) (holding

that EMS providers are subject to the Medical Professional Liability Act).

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF’S MOTION FOR

PARTIAL SUMMARY JUDGMENT [ECF NO. 111]

Defendants’ conduct fell below the standard of care, so they are

unable to establish the EMS Defendants’ negligence, and summary

judgment is proper.2

Plaintiff also argues that the Law Enforcement Defendants

cannot call Plaintiff’s experts as witnesses, cannot rely on

Plaintiff’s experts’ reports, and cannot cross examine Plaintiff’s

experts regarding the EMS Defendants’ negligence. Plaintiff

argues that the Law Enforcement Defendants would be confusing the

jury and that Ryder and Shackleford are actually employees of the

County Commission, so even if the jury is permitted to find fault

on the part of the EMS Defendants, the County Commission would be

responsible for that under respondeat superior.

In response, the Law Enforcement Defendants initially argue

that this issue would be more properly presented as a motion in

limine. They then argue that West Virginia’s comparative fault

statute requires that the EMS Defendants be placed on the verdict

form.3 The Law Enforcement Defendants argue that they do not need

to meet medical negligence standards with respect to the EMS

Defendants because they do not seek to establish the EMS

2 “It is the general rule that in medical malpractice cases negligence or want

of professional skill can be proved only by expert witnesses.” Syl. Pt. 2,

Roberts v. Gale, 139 S.E.2d 272 (W. Va. 1964).

3 “Fault of a nonparty shall be considered if the plaintiff entered into a

settlement agreement with the nonparty . . . .” W. Va. Code § 55-7-13d(a)(2)

(emphasis added).

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF’S MOTION FOR

PARTIAL SUMMARY JUDGMENT [ECF NO. 111]

Defendants’ liability; they seek only to apportion fault to them.

They also argue that they do not necessary require expert testimony

to prove the comparative fault of the EMS Defendants, but if they

do require it, they can call or cross-examine Plaintiff’s expert

witnesses and/or introduce their reports.

Plaintiff believes that the Law Enforcement Defendants are

arguing that anyone can be placed on the verdict form without

meeting any burden. She argues that this would be an absurd

result. In addition, she argues that the Law Enforcement

Defendants’ interpretation would have a chilling effect on

settlements because a plaintiff will be far less likely to settle

with one defendant if she knows that remaining defendant can point

fingers at the settled defendant with no evidence.

To the Law Enforcement Defendants’ argument that they need

only show that the EMS Defendants breached a duty of some kind,

Plaintiff points out that the only legal duty the EMS Defendants

owed to Smith was their duty as medical providers. She notes that

the Law Enforcement Defendants did not identify another duty in

their brief.

V. DISCUSSION

The West Virginia Code provides, “Fault of a nonparty shall

be considered if the plaintiff entered into a settlement agreement

with the nonparty . . . .” W. Va. Code § 55-7-13d(a)(2). “Where

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PARTIAL SUMMARY JUDGMENT [ECF NO. 111]

a plaintiff has settled with a party or nonparty before verdict,

that plaintiff’s recovery will be reduced in proportion to the

percentage of fault assigned to the settling party or nonparty,

rather than by the amount of the nonparty’s or party’s

settlement[.]” Id. § 55-7-13d(a)(3). “The burden of alleging and

proving comparative fault shall be upon the person who seeks to

establish such fault.” Id. § 55-7-13d(d).

In State of West Virginia ex rel. March-Westin Company, Inc.,

v. Hon. Phillip D. Gaujot, 879 S.E.2d 770 (W. Va. 2022), the

Supreme Court of Appeals of West Virginia discussed section 55-7-

13d. In the underlying suit, a county commission employee was

injured while working on a courthouse renovation project. Id. at

772. The plaintiff brought suit against the general contractor,

and the general contractor sought to place the county commission,

an immune nonparty to the suit due to West Virginia’s “deliberate

intent” statute, on the verdict form so that the jury could assess

its fault pursuant to section 55-7-13d. Id. The Circuit Court of

Monongalia County held that the county commission’s fault could

not be assessed by the jury. Id. The general contractor filed a

petition for a writ of prohibition, asking the Supreme Court to

prevent the Circuit Court from enforcing its order. Id. The

Supreme Court then directed the Circuit Court of Monongalia County

to include the county commission (the plaintiff’s employer) on the

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF’S MOTION FOR

PARTIAL SUMMARY JUDGMENT [ECF NO. 111]

verdict form, despite its status as an immune nonparty. Id. at

778.

The Supreme Court found that the elements of “deliberate

intent” need not be shown in order to assess the fault of a nonparty

employer in a personal injury context4:

When a defendant seeks to have fault assessed

to a nonparty employer pursuant to West

Virginia Code § 55-7-13d (eff. 2016), the

defendant need not show that the nonparty

employer’s fault would satisfy the “deliberate

intention” standard contained in West Virginia

Code § 23-4-2 (eff. 2015). It is sufficient,

rather, for the defendant to show that the

nonparty employer’s act or omission was a

proximate cause of the employee’s injury or

death and was a breach of a legal duty of some

kind. W. Va. Code § 55-7-13b (eff. 2015).

Id. at Syl. Pt. 3.5 “Such a showing allows the defendant to present

4 In reaching this conclusion, the Supreme Court agreed with two decisions from

the Northern District of West Virginia. See Taylor v. Wallace Auto Parts &

Servs., Inc., No. 2:19-cv-27, 2020 WL 1316730 (N.D.W. Va. Mar. 19, 2020) (Kleeh,

J.) (finding that the elements of deliberate intent did not need to be proved

in order to assess the fault of a nonparty employer); see also Metheney v.

Deepwell Energy Servs., LLC, No. 5:20-cv-54, 2021 WL 2668821 (N.D.W. Va. June

29, 2021) (Bailey, J.) (same).

5 The Supreme Court considered the meaning of “fault” and the circuit court’s

conclusion regarding the same:

West Virginia Code § 55-7-13b provides that “fault” is

“an act or omission of a person, which is a proximate

cause of injury or death to another person” and that

such fault “includ[es], but [is] not limited to,” such

things as “negligence, malpractice, strict product

liability, absolute liability, liability under section

two, article four, chapter twenty-three of this code

[W. Va. Code § 23-4-2, i.e., “deliberate intention”] or

assumption of the risk.’”

State ex rel. March-Westin, 879 S.E.2d at 776. The court rejected the Circuit

Court’s conclusion that this definition requires March-Westin to prove

deliberate intention.

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF’S MOTION FOR

PARTIAL SUMMARY JUDGMENT [ECF NO. 111]

evidence as to the nonparty’s degree of fault in order to offset

the defendant’s degree of fault.” Id. at 776.

The plaintiff had argued that it would be absurd to find that

the general contractor was not required to prove the county

commission’s fault to the same degree as the plaintiff would have

needed to prove it if the county commission could have been named

as a defendant in the first instance. Id. The Court considered

this argument and disagreed, finding that the concept of deliberate

intent is a means of overcoming statutory immunity and had no

relevance to the degree of fault. Id. Under the deliberate intent

statute, the Supreme Court wrote, “an employee exchanges the common

law right to sue his or her employer for the statutory right to

receive compensation via the workers’ compensation system, even if

the employee of a co-worker is at fault for the injury.” Id. “The

employer, in turn, exchanges common law defenses for conditional

statutory immunity.” Id. at 777. Given the structure of the

deliberate intent scheme in West Virginia, the Court found that it

would be wrong to require a defendant to prove deliberate intent

when assessing the fault of the nonparty employer:

Thus, requiring a defendant to prove

“deliberate intention” on the part of a

nonparty employer would shift all of the

nonparty employer’s fault to the defendant in

all but the most egregious cases of misconduct

by the nonparty employer with no corresponding

benefit to the defendant. To do so would

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF’S MOTION FOR

PARTIAL SUMMARY JUDGMENT [ECF NO. 111]

defeat the express purpose of Section 13d

which is to determine the defendant’s degree

of fault by allocating the respective degrees

of fault of any named defendants and other

nonparties whose wrongful acts proximately

caused the injury. Such result would amount

to an “absurd and unjust” misuse of the

workers’ compensation deliberate intent

statute — a statute primarily designed not to

determine respective degrees of fault, but

instead to provide an employee an exception to

his or her employer’s immunity from liability.

Id.

Here, at bottom, the Court agrees with Defendants that the

fault of the EMS Defendants, as settling nonparties, must be

considered by the jury. See W. Va. Code § 55-7-13d(a)(2) (“Fault

of a nonparty shall be considered if the plaintiff entered into a

settlement agreement with the nonparty . . . .”). The Court finds

that it would be premature at this stage to pigeon-hole the Law

Enforcement Defendants into proving that the EMS Defendants

violated one particular legal duty. While there are important

differences between this case and a case in which “deliberate

intent” is at play, the Supreme Court has clearly stated that to

apportion fault to a nonparty, it is sufficient to show that the

nonparty breached “a legal duty of some kind.” When the Court

crafts its jury instructions and verdict form in this case, the

parties can discuss and the Court can decide whether the Law

Enforcement Defendants have introduced sufficient evidence to

SMITH V. CLARK 2:20-CV-47

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF’S MOTION FOR

PARTIAL SUMMARY JUDGMENT [ECF NO. 111]

support whichever theory of negligence they choose to assert

against the EMS Defendants.

VI. CONCLUSION

For the reasons discussed herein, the Court DENIES

Plaintiff’s motion for summary judgment [ECF No. 111].

It is so ORDERED.

The Clerk is DIRECTED to transmit copies of this Memorandum

Opinion and Order to counsel of record.

DATED: February 27, 2023

Tom 8 Bla

THOMAS S. KLEEH, CHIEF JUDGE

NORTHERN DISTRICT OF WEST VIRGINIA

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