The opinion
No. 19-0361 – Otto & Otto v. Catrow Law PLLC FILED
November 2, 2020
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
Workman, Justice, dissenting: SUPREME COURT OF APPEALS
OF WEST VIRGINIA
In its order granting respondent’s motion for summary judgment, the circuit
court refused to credit the testimony of petitioners’ expert witness, an attorney based in
College Park, Maryland, with more than forty-five years of relevant experience, on the
ground that,
[a]lthough the [petitioners] designated T. Summer Gwynn as a
legal expert in this matter, he only provided a general synopsis
of how he personally conducts real estate transactions in the
[S]tate of Maryland. Gwynn is not and has never been licensed
to practice law in West Virginia and has never been involved
in a real estate transaction in West Virginia. Gwynn did not
offer any opinions as to what is typically followed and adhered
to be members of the bar in the Eastern Panhandle of West
Virginia with respect to the transmission of wiring instructions
for real estate closings.
Additionally, the court cited Mr. Gwynn’s representation that he was not purporting to
provide expert opinion as to West Virginia law – a fact of absolutely no consequence,
because even the respondent’s expert agreed that the duty of care owed by a settlement
attorney is “a very general legal standard,” one not based on any specific West Virginia
law or case or rule of professional responsibility.
Thus, with the stroke of a pen, the circuit court denied petitioners the right to
put their case before a jury, finding that because petitioners’ expert practiced law ninety
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miles away from Martinsburg, West Virginia, his forty-five years of experience meant
nothing and his opinions would all be discounted. In short, the court applied an antiquated
doctrine known as the “locality rule” to bar testimony that was clearly and unequivocally
admissible under Rule 702 of the West Virginia Rules of Evidence. 1
More than thirty years ago, this Court dealt a death blow to an ill-conceived
doctrine that had for decades made it difficult – indeed, virtually impossible -- for victims
of medical malpractice to seek redress for their injuries. In the single syllabus point in
Paintiff v. City of Parkersburg, 176 W. Va. 469, 345 S.E.2d 564 (1986), we held that “[t]he
‘locality rule’ in medical malpractice cases is abolished,” adding in the text of the decision
that “we shall not miss it.” Id. at 472, 345 S.E.2d at 567. In today’s decision, the majority
has breathed new life into Frankenstein’s monster, tacitly approving the application of a
locality rule in legal malpractice cases. 2 In my view, it is an insult to every member of the
West Virginia Bar that in the absence of specific evidence to the contrary, it will be
1
Rule 702(a) provides that “[i]f scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience, training, or education may
testify thereto in the form of an opinion or otherwise.”
2
The majority relegates this critical issue to a single footnote, in which it states that
“[w]e are aware that we have abrogated the locality rule[,]” but concludes that nonetheless,
under the facts and circumstances of this case, “the circuit court did not abuse its
considerable discretion.” In my view, the circuit court had no discretion whatsoever to
apply a rule that this Court abolished decades ago; to the contrary, the court’s application
of the locality rule was clear error.
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assumed that the professional standard of care for West Virginia attorneys is lower than
the standard for attorneys in other states, and that West Virginia attorneys may not follow
best practices.
The locality rule, a fixture in our medical malpractice jurisprudence for close
to a hundred years, held in relevant part that a physician was “only required to exercise
such reasonable and ordinary skill and diligence as are ordinarily possessed and exercised
by the average of the members of the profession in good standing, in similar localities[.]”
Dye v. Corbin, 59 W. Va. 266, 270, 53 S.E. 147, 149 (1906). The result in Dye was a
victory for the defendant physician, since the Court opined that a Ritchie County physician
could not possibly be held to the same standard of care as a physician practicing in
Cincinnati, Ohio.
The doctrine’s erosion 3 first became evident in the case of Hundley v.
Martinez, 151 W. Va. 977, 158 S.E.2d 159 (1967), where this Court found that a New York
City physician could testify as an expert witness against a Charleston, West Virginia,
physician, so long as he opined that the standard of care was a national standard of care.
3
In Thornton v. CAMC, 172 W. Va. 360, 368-69, 305 S.E.2d 316, 325 (1983), the
Court noted in dicta that the locality rule had been “virtually abandoned” in Hundley. This
may have been an overstatement, as the Hundley Court was careful to maintain some
vestige of the rule even as it refused its “strict application.”
3
Id. at 993-94, 158 S.E.2d at 168-69. The Hundley Court explained the history of the
locality rule as being “premised upon the thought that it was unfair to hold the country
doctor to the same stringent standard as the supposedly more learned doctors practicing in
large urban centers.” 151 W. Va. at 990, 158 S.E.2d at 166-67. The Court opined,
however, that,
[t[his situation has changed materially . . . it being apparent that
the doctor in the rural area now has available to him most of the
same facilities as does the practitioner in the city. Due to highly
improved modes of transportation, most physicians have at their
disposal adequate to excellent hospital facilities. In addition, the
now ready means of communication has permitted the doctor,
regardless of his location, to keep abreast of recent medical
developments and practices. Through the media of medical
journals and associations many physicians studiously pursue
postgraduate education.
Id. at 990, 158 S.E.2d at 167. Accordingly, the Court concluded that “the reasons for the
strict application of the ‘locality’ rule have largely disappeared.” Id. at 990-91, 158 S.E.2d
at 167.
Thereafter, in Paintiff, this Court gave full voice to the injustice underlying
application, strict or otherwise, of the locality rule: “The well known reluctance of doctors
to testify against one another, which has been mentioned now and then in the decisions,
may make this [expert medical testimony] difficult or impossible to obtain.” 176 W. Va.
at 471-72, 345 S.E.2d at 567 (internal citation omitted). Finding that the abolition of the
locality rule had been presaged in Thornton, see note 3 supra, and further that “we had
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entirely abolished the locality rule for nursing malpractice” in Duling v. Bluefield
Sanitarium, Inc., 149 W. Va. 567, 142 S.E.2d 754 (1965), 4 the Court concluded that
[m]uch has been written about the obsolescence of the locality
rule. We have nothing to add to the oceans of ink and forests
of paper that have been pressed into service to hasten the rule’s
demise. We will only add that the locality rule is abolished in
West Virginia, and we shall not miss it.
Paintiff, 176 W. Va. at 472, 345 S.E.2d at 567.
We have held that in a legal malpractice action, “the plaintiff must prove three
things in order to recover: (1) the attorney’s employment; (2) his/her neglect of a
reasonable duty; and (3) that such negligence resulted in and was the proximate cause of
loss to the plaintiff.” Syl. Pt. 1, in part, Calvert v. Scharf, 217 W. Va. 684, 685, 619 S.E.2d
197, 198 (2005); see also Kay v. Mcguirewoods, LLP, 240 W. Va. 54, 62, 807 S.E.2d 302,
319 (2017); Burnworth v. George, 231 W. Va. 711, 717, 749 S.E.2d 604, 610 (2013) (per
curiam); Sells v. Thomas, 220 W. Va. 136, 140, 640 S.E.2d 199, 203 (2006). With respect
to the question of what constitutes a “reasonable duty” in a legal malpractice action, this
Court has never before applied any sort of locality rule. To the contrary, the standard
4
The Court’s holding in Duling is slightly different from its characterization in
Paintiff. In Duling, we found that the locality rule applied only to medical malpractice
claims, and that only physician negligence constituted medical malpractice. This crabbed
view of who was or wasn’t a “health care provider” was relegated to the dust bin when the
Legislature enacted the Medical Professional Liability Act, West Virginia Code § 55-7B-
1 to -12 (2016).
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applied in such cases is well established: “An attorney who undertakes to perform
professional services for a client is required to exercise the knowledge, skill, and ability
ordinarily possessed and exercised by members of the legal profession in similar
circumstances.” Syl. Pt. 1, Keister v. Talbott, 182 W. Va. 745, 391 S.E.2d 895 (1990). To
this formulation, the court below implicitly substituted a few critical words, “the
knowledge, skill and ability ordinarily possessed by members of the legal profession in
West Virginia, and particularly in Berkeley County, West Virginia,” and the majority
opinion gives a seal of approval to this tacit adoption of a locality rule in legal malpractice
cases.
First, let me state in the clearest terms: I defy anyone to argue that West
Virginia attorneys do not have the “knowledge, skill, and ability” of lawyers anywhere else
in this country. This State boasts a first-class law school; admission to the Bar requires
passage of a rigorous bar examination; thereafter, all lawyers are required to complete
twenty-four hours of continuing legal education every two years; and in this day and age,
legal research requires the touch of a computer key, as opposed to the days when it might
well have required a trip to Morgantown or Charleston to search a Dicentennial Digest. In
short, attorneys in West Virginia stand on equal footing with attorneys in every other state
in knowledge, skill, and ability. Second, the standard of care in this case has nothing to do
with any West Virginia statute, case or rule; both Mr. Gwynn and the respondent’s expert
agreed on this. Therefore, the fact that Mr. Gwynn isn’t versed in West Virginia law is
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completely irrelevant. Third, whatever may be the “practice” of settlement lawyers in
Berkeley County, West Virginia, is also irrelevant; the question is whether that practice
comports with the standard of care for attorneys practicing in the same area of law.
The majority also upholds the circuit court’s finding that petitioners failed to
prove a breach of duty on respondent’s part, because petitioner did not put forward specific
evidence showing that the respondent had ever received any of Old Republic’s various
bulletins warning of phishing schemes targeting closing funds. I cannot agree with this
myopic view of the evidence presented by petitioners. As acknowledged by the majority,
petitioners demonstrated that respondent was a title agent for Old Republic; that it received
updates from Old Republic regarding “important information and events in the real estate
industry”; and that Old Republic had sent out bulletins warning of the exact phishing
scheme used in this case. 5 I believe that this evidence was sufficient to take petitioners’
case to the jury; let the respondent establish, if it could, that it did not receive the Old
Republic bulletins.
5
The majority takes this one step further, stating that petitioners did not demonstrate
“that [the Old Republic bulletins] had even been sent to lawyers in West Virginia.” One is
hard-pressed to imagine why Old Republic would exclude its West Virginia agents from
receiving information sent to agents in other states; as noted supra, there is no state law,
case, or regulation that makes West Virginia real estate settlement practices different in
any way from the practices in other states.
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In summary, I believe that the petitioners’ evidence was sufficient to
withstand summary judgment, that their expert should have been permitted to testify, and
that a jury should have been entrusted with the responsibility to determine liability and
damages in this unfortunate case. Accordingly, I dissent. I am authorized to state that
Justice Hutchison joins in this dissenting opinion.
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