Robert D. Toler v. Cornerstone Hospital of Hungintgon, LLC

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2023 Term FILED

_______________ June 15, 2023

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

No. 21-0830 SUPREME COURT OF APPEALS

_______________ OF WEST VIRGINIA

ROBERT D. TOLER,

Plaintiff Below, Petitioner,

V.

CORNERSTONE HOSPITAL OF HUNTINGTON, LLC,

Defendant Below, Respondent.

_____________________________________________

Appeal from the Circuit Court of Cabell County

The Honorable Gregory L. Howard, Judge

Civil Action No. 19-C-196

AFFIRMED

_____________________________________________

Submitted: March 21, 2023

Filed: June 15, 2023

Steven S. Wolfe, Esq. Richard D. Jones, Esq.

Wolfe, White & Associates Amy Humphreys, Esq.

Logan, West Virginia Jason A. Proctor, Esq.

Attorney for Petitioner Flaherty Sensabaugh Bonasso PLLC

Charleston, West Virginia

Attorneys for Respondent

JUSTICE BUNN delivered the Opinion of the Court.

CHIEF JUSTICE WALKER AND JUSTICE WOOTON dissent and reserve the right to

file dissenting opinions.

SYLLABUS BY THE COURT

1. “The party seeking the protections of the peer review privilege bears

the burden of establishing its applicability by more than a mere assertion of privilege.”

Syllabus point 3, State ex rel. Wheeling Hospital, Inc. v. Wilson, 236 W. Va. 560, 782

S.E.2d 622 (2016).

2. “To determine whether a particular document is protected by the peer

review privilege codified at W. Va. Code § 30-3C-3 (1980) (Repl. Vol. 2015), a reviewing

court must ascertain both the exact origin and the specific use of the document in question.

Documents that have been created exclusively by or for a review organization, or that

originate therein, and that are used solely by that entity in the peer review process are

privileged. However, documents that either (1) are not created exclusively by or for a

review organization, (2) originate outside the peer review process, or (3) are used outside

the peer review process are not privileged.” Syllabus point 1, State ex rel. Wheeling

Hospital, Inc. v. Wilson, 236 W. Va. 560, 782 S.E.2d 622 (2016).

3. “The curative admissibility rule allows a party to present otherwise

inadmissible evidence on an evidentiary point where an opponent has ‘opened the door’ by

introducing similarly inadmissible evidence on the same point. Under this rule, in order to

be entitled as a matter of right to present rebutting evidence on an evidentiary fact: (a) The

original evidence must be inadmissible and prejudicial, (b) the rebuttal evidence must be

i

similarly inadmissible, and (c) the rebuttal evidence must be limited to the same

evidentiary fact as the original inadmissible evidence.” Syllabus point 10, State v. Guthrie,

194 W. Va. 657, 461 S.E.2d 163 (1995).

ii

BUNN, Justice:

Petitioner Robert D. Toler appeals from orders entered September 15, 2021,

and March 20, 2020, by the Circuit Court of Cabell County. In the 2021 order, the circuit

court entered judgment on a jury verdict in favor of the Respondent, Cornerstone Hospital

of Huntington, LLC (“Cornerstone”). The verdict was rendered in Mr. Toler’s lawsuit

seeking damages for injuries he sustained while visiting a patient at Cornerstone. The

circuit court’s 2020 order protected from discovery an incident report in which a

Cornerstone employee allegedly described the condition of the patient’s room immediately

following Mr. Toler’s injury. In that order, the circuit court applied the protections afforded

by the peer review privilege to the incident report. This ruling also precluded the parties

from disclosing the incident report during the trial of this case.

On appeal to this Court, Mr. Toler argues that the circuit court erred by

finding that Cornerstone’s incident report is protected by the peer review privilege set forth

in West Virginia Code §§ 30-3C-1 to -5. Cornerstone contends that its incident report is

protected by the peer review privilege because its employee prepared the report exclusively

for its own use in its internal quality assurance and facility maintenance review process.

We conclude that the circuit court did not err in ruling that the peer review

privilege protects Cornerstone’s incident report from discovery. Further, the circuit court

did not err by entering judgment on the jury’s verdict in favor of Cornerstone because Mr.

1

Toler failed to rebut Cornerstone’s assertion of the peer review privilege. Therefore, we

affirm the circuit court’s March 20, 2020 and September 15, 2021 orders.

I.

FACTUAL AND PROCEDURAL HISTORY

On January 7, 2019, Mr. Toler was visiting his girlfriend, who was a patient

at Cornerstone. Mr. Toler spent the night in a recliner chair in her room to help take care

of her. While getting up from the chair in her room, Mr. Toler fell and broke his femur.1

When various medical personnel, both at Cornerstone and the emergency room at St.

Mary’s Medical Center where Mr. Toler was transported for treatment, asked him what

had caused the fall, Mr. Toler claimed that his leg gave way and that he thought it was a

charley horse. Two Cornerstone nurses heard Mr. Toler fall and, after checking on him,

one of the nurses reported the incident to the house supervisor, Nurse Jeff Hall.

Nurse Hall went to the patient’s room to check on Mr. Toler and then

prepared an incident report documenting his fall. Mr. Toler seems to believe that the

incident report supports his later description of the circumstances of his fall as being caused

by a roll of tape left on the floor of the patient’s room and that Nurse Hall may have reported

1

Although Mr. Toler appears to have broken his femur, which is a leg bone,

the record also indicates that Mr. Toler broke his hip, which, it appears, could refer to a

break of the top of his femur. See Femur, Mosby’s Medical Dictionary (9th ed. 2013)

(defining “femur” as “the thigh bone, which extends from the pelvis to the knee”).

2

finding a roll of tape on the floor while investigating Mr. Toler’s fall.2 While Mr. Toler

subsequently testified at trial that he stepped on a roll of tape and that the roll of tape had

caused him to fall and break his femur, none of the medical professionals who treated Mr.

Toler immediately following his fall reported in their notes of Mr. Toler’s examinations

anything about a roll of tape. Rather, the contemporaneous medical records all indicate that

Mr. Toler reported that his leg had given out and caused him to fall. The Cornerstone nurses

who responded to the patient’s room immediately after Mr. Toler’s fall also stated that Mr.

Toler claimed that his leg had given out, that he thought he had a charley horse, and that

he did not mention a roll of tape in describing the circumstances of his fall.

Mr. Toler then sued Cornerstone3 and sought discovery of the incident report,

which Cornerstone claimed is protected by the peer review privilege. See generally W. Va.

Code §§ 30-3C-1 to -5. Mr. Toler filed a motion to compel disclosure of the incident report,

and the circuit court held a hearing on the motion. By order entered March 20, 2020, the

circuit court agreed with Cornerstone’s claim of peer review privilege and precluded

disclosure of the document to Mr. Toler.

2

The record is unclear as to how Mr. Toler deduced the alleged contents of

Cornerstone’s incident report because Cornerstone claims that this document is privileged,

was prepared exclusively for its own internal use, and has not been disclosed to anyone

outside of its peer review process. While Cornerstone provided a copy of its incident report

under seal for our consideration on appeal, and the circuit court reviewed this document in

camera, it does not appear that Mr. Toler has been permitted to view the incident report.

3

Mr. Toler’s complaint is not part of the Appendix Record in this case.

3

During the trial of Mr. Toler’s case against Cornerstone, the court permitted

Nurse Hall, who had prepared the incident report, to testify about his personal knowledge

of the circumstances surrounding Mr. Toler’s fall, as the original source of the contents of

the incident report. Nurse Hall’s trial testimony did not reference a roll of tape on the floor.

Mr. Toler testified that he fell when his leg went out from under him, and he stepped “on

a piece of tape.” However, no other testimony or evidence adduced at trial mentioned the

roll of tape that Mr. Toler alleges caused him to fall and break his femur in the course of

treatment for his injuries. The jury, on its verdict form, answered the first question as

follows:

1. Do you find by a preponderance of the evidence

that Robert Toler stepped on a roll of tape causing him to fall

on the morning of January 7, 2019?

Yes _____ No __X__

The circuit court entered a final order of judgment on the jury’s verdict in favor of

Cornerstone on September 15, 2021. Mr. Toler then appealed to this Court.

II.

STANDARD OF REVIEW

The issue before the Court is whether the circuit court properly excluded

Cornerstone’s incident report based on its rulings that the report is protected by the peer

review privilege and that the report was not subject to disclosure at trial. In assessing the

circuit court’s rulings, we must consider both of the circuit court’s orders from which Mr.

4

Toler has appealed. We first review the circuit court’s March 20, 2020 order that denied

Mr. Toler’s motion to compel discovery responses by Cornerstone and found that the peer

review privilege applies to Cornerstone’s incident report. Our prior cases recognize that a

circuit court’s rulings regarding the application of the peer review privilege involve

multiple standards of review. We review the circuit court’s interpretation and application

of the peer review privilege statutes de novo as that determination requires the resolution

of a question of law:

[A]t issue in the case sub judice is the correctness of the circuit

court’s interpretation and application of the applicable

statutory law concerning privileges relating to health care peer

review proceedings. As this contention involves a question of

law, we apply a plenary review to the circuit court’s decision

in this regard. “Interpreting a statute or an administrative rule

or regulation presents a purely legal question subject to de novo

review.” Syl. pt. 1, Appalachian Power Co. v. State Tax Dep’t

of West Virginia, 195 W. Va. 573, 466 S.E.2d 424 (1995).

State ex rel. Charles Town Gen. Hosp. v. Sanders, 210 W. Va. 118, 123, 556 S.E.2d 85, 90

(2001). We then consider whether the circuit court abused its discretion when determining

if the privilege applies to a particular document because that ruling involves a question of

fact: “The determination of which materials are privileged under W. Va. Code, 30-3C-1 . . .

et seq. is essentially a factual question and the party asserting the privilege has the burden

of demonstrating that the privilege applies.” Syl. pt. 2, in part, State ex rel. Shroades v.

Henry, 187 W. Va. 723, 421 S.E.2d 264 (1992).

Next, we review the circuit court’s September 15, 2021 order that entered

judgment on the jury’s verdict in favor of Cornerstone, which includes the court’s pre-trial

5

rulings on Cornerstone’s motions in limine to exclude reference to and testimony about its

incident report at trial as well as the court’s rulings on the admissibility of evidence during

trial. As to a circuit court’s evidentiary rulings, we have held that

[t]he West Virginia Rules of Evidence and the West

Virginia Rules of Civil Procedure allocate significant

discretion to the trial court in making evidentiary and

procedural rulings. Thus, rulings on the admissibility of

evidence . . . are committed to the discretion of the trial court.

Absent a few exceptions, this Court will review evidentiary

and procedural rulings of the circuit court under an abuse of

discretion standard.

Syl. pt. 1, in part, McDougal v. McCammon, 193 W. Va. 229, 455 S.E.2d 788 (1995).

Accord State v. Marple, 197 W. Va. 47, 51, 475 S.E.2d 47, 51 (1996) (“The evidentiary

rulings of a circuit court . . . are reviewed under an abuse of discretion standard.”). We will

consider Mr. Toler’s assignments of error in accordance with these standards.

III.

DISCUSSION

On appeal, Mr. Toler asserts two assignments of error: the circuit court erred

(1) by ruling that Cornerstone’s incident report is protected by the peer review privilege

and (2) by continuing to exclude the report when, according to Mr. Toler, Cornerstone

opened the door to the document’s disclosure during the trial of this case. We consider both

assigned errors in turn.

6

A. Peer Review Privilege

To determine whether the peer review privilege applies, it is necessary to

consider the scope of the privilege. We previously have recognized that, “[t]hrough the

enactment of West Virginia Code § 30-3C-3 in 1980,[4] the Legislature imposed

confidentiality on all information, documents, and records subjected to review by a medical

peer review organization.” Young v. Saldanha, 189 W. Va. 330, 332, 431 S.E.2d 669, 671

(1993). The Legislature’s enactment of this statutory privilege also “clearly evinces a

public policy encouraging health care professionals to monitor the competency and

professional conduct of their peers in order to safeguard and improve the quality of patient

care.” Syl. pt. 2, in part, id.

In establishing the parameters of the privilege, the Legislature has defined

the terms “peer review” and “review organization.”

“Peer review” means the procedure for evaluation by

health care professionals of the quality and efficiency of

services ordered or performed by other health care

professionals, including practice analysis, inpatient hospital

and extended care facility utilization review, medical audit,

4

We note that, during the course of the events giving rise to this appeal, the

Legislature amended the peer review privilege statutes, which revised some previously

enacted provisions and adopted other new provisions. See generally W. Va. Code § 30-3C-

1 (eff. Apr. 29, 2019) (revising existing section); W. Va. Code § 30-3C-3 (eff. Apr. 29,

2019) (revising existing section); W. Va. Code § 30-3C-5 (eff. Apr. 29, 2019) (adopting

new provision establishing criteria for waiver of peer review privilege). Our consideration

of this case is guided by the version of the peer review privilege that was in effect at the

time of Mr. Toler’s fall in January 2019, and we will refer to those statutory provisions that

were effective at that time throughout this opinion.

7

ambulatory care review, claims review and patient safety

review.

W. Va. Code § 30-3C-1 (eff. 2004). “Review organization” is defined, in pertinent part, as

any committee or organization engaging in peer review,

including a hospital utilization review committee, . . . a

medical audit committee, . . . a physicians’ advisory

committee, . . . any entity established pursuant to state or

federal law for peer review purposes, and any committee

established by one or more state or local professional societies

or institutes, to gather and review information relating to the

care and treatment of patients for the purposes of:

(i) Evaluating and improving the quality of health care

rendered; (ii) reducing morbidity or mortality; or

(iii) establishing and enforcing guidelines designed to keep

within reasonable bounds the cost of health care. It shall also

mean any hospital board committee or organization reviewing

the professional qualifications or activities of its medical staff

. . ., and any professional standards review organizations

established or required under state or federal statutes or

regulations.

Id.

The peer review privilege itself is set forth in West Virginia Code § 30-3C-

3 (eff. 1980):

W. Va. Code, 30-3C-3 [1980] provides that “[t]he

proceedings and records of a review organization shall be

confidential . . . Provided, That information, documents or

records otherwise available from original sources are not to be

construed as immune from discovery or use in any civil action

merely because they were presented during proceedings of

such [a review] organization. . . .” The language of the statute

grants a privilege to all the records and proceedings of a review

organization, but no privilege attaches to information,

documents or records considered by a review organization if

the material is “otherwise available from original sources.”

8

Syl. pt. 3, Shroades, 187 W. Va. 723, 421 S.E.2d 264. See generally W. Va. Code § 30-

3C-3 (eff. 1980). Furthermore,

[p]ursuant to the plain language of W. Va. Code § 30-

3C-3 (1980) (Repl. Vol. 1998), information, documents, and

records ordinarily protected by the peer review privilege lose

their specter of confidentiality and may be accessed by third

parties when (1) said materials are “otherwise available from

original sources” or (2) “an individual [has] execute[d] a valid

waiver authorizing the release of the contents of his file

pertaining to his own acts or omissions.”

Syl. pt. 4, State ex rel. Brooks v. Zakaib, 214 W. Va. 253, 588 S.E.2d 418 (2003).5

To protect a document from disclosure based upon the protections afforded

by the peer review privilege, the party seeking the privilege’s protections must request

recognition of the privilege and demonstrate its applicability to the document for which

protection is sought. “The party seeking the protections of the peer review privilege bears

the burden of establishing its applicability by more than a mere assertion of privilege.” Syl.

pt. 3, State ex rel. Wheeling Hosp., Inc. v. Wilson, 236 W. Va. 560, 782 S.E.2d 622 (2016).

A party wishing to establish the applicability of the peer

review privilege, set forth at W. Va. Code § 30-3C-3 (1980)

5

Accord Syl. pt. 2, State ex rel. Wheeling Hosp., Inc. v. Wilson, 236 W. Va.

560, 782 S.E.2d 622 (2016) (“Where documents sought to be discovered are used in the

peer review process but either the document, itself, or the information contained therein, is

available from an original source extraneous to the peer review process, such material is

discoverable from the original source, itself, but not from the review organization that has

used it in its deliberations.” (emphasis added)); Syl. pt. 3, Young v. Saldanha, 189 W. Va.

330, 431 S.E.2d 669 (1993) (“To effect a waiver of the privilege of confidentiality which

attends information and records properly the subject of health care peer review under West

Virginia Code §§ 30-3C-1 to -3 (1993), the Legislature has required that an individual must

formally indicate his intent to waive this confidentiality by executing a valid waiver.”

(emphasis added)).

9

(Repl. Vol. 2015), should submit a privilege log which

identifies each document for which the privilege is claimed by

name, date, and custodian. The privilege log also should

contain specific information regarding (1) the origin of each

document, and whether it was created solely for or by a review

committee, and (2) the use of each document, with disclosures

as to whether or not the document was used exclusively by

such committee. Finally, the privilege log should provide a

description of each document and a recitation of the law

supporting the claim of privilege.

Syl. pt. 4, Wheeling Hosp., 236 W. Va. 560, 782 S.E.2d 622.

Once the party seeking the protections of the peer review privilege has

requested its application and submitted the requisite privilege log, the circuit court is then

tasked with determining whether the privilege should be applied to preclude disclosure of

the document at issue.

To determine whether a particular document is

protected by the peer review privilege codified at W. Va. Code

§ 30-3C-3 (1980) (Repl. Vol. 2015), a reviewing court must

ascertain both the exact origin and the specific use of the

document in question. Documents that have been created

exclusively by or for a review organization, or that originate

therein, and that are used solely by that entity in the peer review

process are privileged. However, documents that either (1) are

not created exclusively by or for a review organization,

(2) originate outside the peer review process, or (3) are used

outside the peer review process are not privileged.

Syl. pt. 1, Wheeling Hosp., 236 W. Va. 560, 782 S.E.2d 622.

Mr. Toler contends on appeal that the circuit court erred by ruling that the

peer review privilege applies to shield Cornerstone’s incident report from disclosure. He

10

does not contend that Cornerstone failed to properly request the peer review privilege

protection or that Cornerstone’s privilege log listing the incident report and describing why

it should be protected was inadequate. Neither does Mr. Toler claim, under his first

assignment of error, that Cornerstone waived the privilege. Rather, Mr. Toler contends that

the circuit court erred in applying the peer review privilege to the facts of this case, which

he contends is in the nature of a premises liability case to which the privilege should not

apply.

We disagree with Mr. Toler’s assertion that the peer review privilege should

not apply to this case because of the nature of his claims against Cornerstone, i.e., premises

liability claims by a non-patient.6 The statutes setting forth the peer review privilege do not

limit its application to any particular type of case. Neither do the statutes limit the

application of the privilege based upon the identity of the person seeking a purportedly

protected document’s discovery. Rather, the limits of the peer review privilege pertain to

the document sought to be protected by its provisions, the manner in which that document

has been prepared, and the way in which that document has been used. “Documents that

have been created exclusively by or for a review organization, or that originate therein, and

that are used solely by that entity in the peer review process are privileged.” Syl. pt. 1, in

part, Wheeling Hosp., 236 W. Va. 560, 782 S.E.2d 622.

6

Again, Mr. Toler’s complaint is not included in the appellate record. See

supra note 3. However, the nature of Mr. Toler’s claims do not appear to be in dispute.

11

Upon Cornerstone’s invocation of the peer review privilege and submission

of a privilege log detailing why the privilege should apply to its incident report, the circuit

court was charged with considering the applicability of the peer review privilege statutes

and vested with the discretion to determine whether the privilege should apply to the

incident report at issue in this case. See Charles Town Gen. Hosp., 210 W. Va. at 123, 556

S.E.2d at 90; Syl. pt. 2, in part, Shroades, 187 W. Va. 723, 421 S.E.2d 264. In its order

denying Mr. Toler’s motion to compel disclosure of Cornerstone’s incident report, the

circuit court reached the following conclusions of law in support of its ruling:

In the instant case, the [c]ourt agrees with the

Defendant’s [Cornerstone’s] assertion that the

Occurrence/Incident Report which was prepared by a nurse

and reviewed by the Director of Quality Management falls

squarely within the statutory requirements [of the peer review

privilege statutes] enumerated above.

The [c]ourt finds that the Occurrence/Incident Report at

issue was prepared to report a non-routine event that had some

potential for injury to a patient or visitor and was intended to

help ensure that quality health care is rendered at the hospital

by identifying and correcting any problems related to non-

routine occurrences.

The [c]ourt also finds that the Plaintiff’s [Mr. Toler’s]

status of a non-patient is irrelevant with regard to the

applicability of the peer review privilege in this instance.

Therefore, based upon the evidence presented in this matter,

and applying the above [peer review privilege] statutes, the

[c]ourt finds that the Occurrence/Incident Report in question is

not subject to subpoena or discovery proceedings and is

precluded from admissibility in evidence pursuant to the Peer

Review [Privilege] Statute.

12

All of these findings are consistent with the Legislature’s recognition of a

peer review privilege in West Virginia Code § 30-3C-3 and this Court’s further

clarification of the scope of that privilege. See, e.g., Syl. pt. 1, Wheeling Hosp., 236 W. Va.

560, 782 S.E.2d 622; Syl. pt. 3, Shroades, 187 W. Va. 723, 421 S.E.2d 264. We do not find

that the circuit court erred or abused its discretion in finding that the peer review privilege

applies to protect Cornerstone’s incident report from disclosure. The circuit court properly

ruled that the peer review privilege does not except certain types of cases from its

application. The court further found that the incident report had been prepared exclusively

for Cornerstone’s internal review process and that the report had been used solely in that

review process and not disclosed or disseminated outside of Cornerstone’s internal review.

Therefore, we affirm the circuit court’s March 20, 2020 order ruling that the peer review

privilege precludes the disclosure of Cornerstone’s incident report.7

7

This result is also consistent with the amendments to West Virginia Code

§ 30-3C-3 that were enacted shortly after the incident at issue in this case. In West Virginia

Code § 30-3C-3(a)(1) (eff. 2019), the Legislature adopted a narrow exception to allow the

disclosure of “[n]ursing home . . . incident or event reports . . . pertaining to the plaintiff of

that civil action, or reports of same or similar incidents within a reasonable time frame of

the events at issue in the civil action[.]” Nursing home incident reports, in general, remain

subject to the peer review privilege except as directed by § 30-3C-3(a)(1), and there is no

other exception to permit the disclosure of other types of incident reports that otherwise

would be protected by the peer review privilege. If we were to adopt Mr. Toler’s position

regarding the peer review privilege’s inapplicability to Cornerstone’s incident report in this

case because he is a non-patient asserting a premises liability claim, we would effectively

be allowing the disclosure of an incident report that otherwise would be protected by the

peer review privilege without a statutory exception that permits its disclosure. This result

would essentially require that we read into the peer review privilege legislation additional

terms that the Legislature did not include. We cannot rewrite legislation to include

provisions that the Legislature chose not to adopt. See Syl. pt. 11, Brooke B. v. Ray C., 230

W. Va. 355, 738 S.E.2d 21 (2013) (“It is not for this Court arbitrarily to read into a statute

13

B. Effect of Cornerstone Witness Testimony on

Continued Assertion of Peer Review Privilege

In his second assignment of error, Mr. Toler argues that the circuit court erred

by allowing two Cornerstone employees to testify at trial and that, by virtue of their

testimony, the incident report should have been disclosed to Mr. Toler for his use during

the trial. Cornerstone denies that the witnesses it called defeated its assertion of the peer

review privilege protection for the incident report.

After the circuit court entered its order in 2020 ruling that Cornerstone’s

incident report is protected by the peer review privilege, the court considered Cornerstone’s

motions in limine prior to the jury trial. By order entered August 24, 2021, the circuit court

ruled that privileged material, which would include Cornerstone’s incident report, could

not be referenced during the trial, and Mr. Toler did not object to this ruling:

MOTION IN LIMINE TO EXCLUDE TESTIMONY

AND REFERENCES TO PRIVILEGED MATERIAL

As to Defendant’s [Cornerstone’s] “Motion In Limine to

Exclude Testimony And References To Privileged Material,”

Plaintiff [Mr. Toler] did not object to this Motion. This [c]ourt

FINDS the motion well taken, and, for the reasons set forth in

the Motion, it is hereby GRANTED.

that which it does not say. Just as courts are not to eliminate through judicial interpretation

words that were purposely included, we are obliged not to add to statutes something the

Legislature purposely omitted.”).

14

By virtue of Mr. Toler’s failure to object to the exclusion of testimony about and references

to privileged material, including Cornerstone’s incident report, from the trial, Mr. Toler

has waived his objection to the circuit court’s exclusion of testimony about and references

to the incident report at trial. See Syl. pt. 2, State ex rel. Cooper v. Caperton, 196 W. Va.

208, 470 S.E.2d 162 (1996) (“To preserve an issue for appellate review, a party must

articulate it with such sufficient distinctiveness to alert a circuit court to the nature of the

claimed defect.”).

Mr. Toler further contends that, because Nurse Hall was permitted to testify

at trial, the contents of Cornerstone’s incident report should have been disclosed at trial as

Nurse Hall’s contemporaneous notes of his conversation with Mr. Toler. However, the peer

review privilege permits the disclosure of original source information without defeating

the assertion of the privilege. See generally W. Va. Code § 30-3C-3; Syl. pt. 2, Wheeling

Hosp., 236 W. Va. 560, 782 S.E.2d 622; Syl. pt. 4, Brooks, 214 W. Va. 253, 588 S.E.2d

418; Syl. pt. 3, Shroades, 187 W. Va. 723, 421 S.E.2d 264. Here, Nurse Hall testified

regarding the original source of the incident report he prepared: his conversation with Mr.

Toler about the circumstances of the fall and his observations about the patient’s room in

which Mr. Toler’s fall occurred. During his testimony, Nurse Hall did not reference the

incident report he prepared for Cornerstone. Nurse Hall’s testimony was consistent with

the original source exception to the peer review privilege and the circuit court’s rulings

finding that the incident report is protected by the peer review privilege and excluding any

15

references to or testimony about privileged materials at trial. Therefore, Mr. Toler is not

entitled to relief on this basis.

Mr. Toler additionally contends that the testimony of Cornerstone’s

corporate representative, Nurse Brandon Gagnon, chief nursing officer, “opened the door”

to the incident report’s admissibility at trial. Nurse Gagnon testified as a witness called by

Mr. Toler. During Nurse Gagnon’s direct testimony, counsel for Mr. Toler proposed a

hypothetical situation of water causing a fall and asked the following question, which

Nurse Gagnon answered:

Q. [by Mr. Toler’s counsel]: . . . Where would you

document that the fall had occurred due to water or some other

obstruction on the floor?

A. [by Nurse Gagnon]: It would be documented through

an incident reporting process.

(Emphasis omitted). When Mr. Toler’s counsel then asked, “And was that done in this

case?,” Cornerstone’s counsel immediately objected based on the court’s earlier rulings

excluding references to or testimony about materials the court had ruled were privileged

and, thus, not subject to disclosure. The court sustained Cornerstone’s objection, and Nurse

Gagnon continued his testimony without referencing Cornerstone’s incident report that

Nurse Hall prepared after Mr. Toler’s fall. On appeal, Mr. Toler contends that the circuit

court’s continued exclusion of the incident report after Nurse Gagnon had alluded to

Cornerstone’s incident reporting process constituted error because, Mr. Toler avers, Nurse

Gagnon’s testimony “opened the door” to the incident report’s disclosure. This argument

16

misconstrues the concept of “opening the door” to the admission of otherwise inadmissible

evidence.

In support of his argument, Mr. Toler cites State v. Baker, 230 W. Va. 407,

738 S.E.2d 909 (2013), which discusses the “opening the door” doctrine in the context of

criminal cases. See id., 230 W. Va. at 412, 738 S.E.2d at 914 (“The opening the door

‘doctrine operates to prevent a defendant from successfully excluding from the

prosecution’s case-in-chief inadmissible evidence and then selectively introducing pieces

of this evidence for the defendant’s own advantage, without allowing the prosecution to

place the evidence in its proper context.’ State v. James, 144 N.J. 538[, 554], 677 A.2d 734,

742 (1996).”). We have also discussed this principle in the civil law context, and explained

its operation as follows:

First, we note that the phrase “‘[o]pening the door’ is also

referred to as the doctrine of ‘curative admissibility.’” United

States v. Rucker, 188 Fed. Appx. 772, 778 (10th Cir. 2006). See

also 1 Louis J. Palmer, Jr., Robin Jean Davis, and Franklin D.

Cleckley, Handbook on Evidence for West Virginia Lawyers

§ 106.04 at 158 (6th ed. 2015) (“The phrase ‘opening the door’

is used by most courts to refer to the curative admissibility

rule.”).

Miller v. Allman, 240 W. Va. 438, 450, 813 S.E.2d 91, 103 (2018). We further have

explained how a party may invoke the curative admissibility rule:

The curative admissibility rule allows a party to present

otherwise inadmissible evidence on an evidentiary point where

an opponent has “opened the door” by introducing similarly

inadmissible evidence on the same point. Under this rule, in

order to be entitled as a matter of right to present rebutting

evidence on an evidentiary fact: (a) The original evidence must

17

be inadmissible and prejudicial, (b) the rebuttal evidence must

be similarly inadmissible, and (c) the rebuttal evidence must be

limited to the same evidentiary fact as the original inadmissible

evidence.

Syl. pt. 10, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995). In other words, “[t]he

doctrine of opening the door allows a party to elicit otherwise inadmissible evidence when

the opposing party has made unfair prejudicial use of related evidence.” James, 677 A.2d

at 742.

This explanation of “opening the door” makes clear that when a party’s

opponent introduces inadmissible, prejudicial evidence, the party aggrieved by the

admission of that evidence is permitted to introduce otherwise inadmissible evidence to

rebut the opponent’s improper evidence. Here, Mr. Toler’s opponent, Cornerstone, did not

elicit the reference to Cornerstone’s incident reporting process from Nurse Gagnon. Mr.

Toler elicited that information during his counsel’s direct examination of Nurse Gagnon.

As the party who prompted Nurse Gagnon’s disclosure of the incident reporting process,

Mr. Toler is not entitled to benefit from the purportedly improper reference to the incident

18

report he occasioned.8 Therefore, we find that Mr. Toler is not entitled to relief on this

basis.9

8

Rather, this scenario is more reminiscent of the “invited error” doctrine than

the “opening the door” doctrine upon which Mr. Toler relies. See State v. Crabtree, 198

W. Va. 620, 627, 482 S.E.2d 605, 612 (1996) (“‘Invited error’ is a cardinal rule of appellate

review applied to a wide range of conduct. It is a branch of the doctrine of waiver which

prevents a party from inducing an inappropriate or erroneous response and then later

seeking to profit from that error. The idea of invited error is not to make the evidence

admissible but to protect principles underlying notions of judicial economy and integrity

by allocating appropriate responsibility for the inducement of error. Having induced an

error, a party in a normal case may not at a later stage of the trial use the error to set aside

its immediate and adverse consequences.”). See also Syl. pt. 2, State v. Bowman, 155

W. Va. 562, 184 S.E.2d 314 (1971) (“An appellant or plaintiff in error will not be permitted

to complain of error in the admission of evidence which he offered or elicited, and this is

true even of a defendant in a criminal case.”).

9

Though not assigned as error by Mr. Toler, we would be remiss if we did

not acknowledge that Nurse Hall, during his direct testimony by Cornerstone’s counsel,

also briefly referenced the incident reporting process.

Q. [by Cornerstone’s counsel]: Had Mr. Toler told you

on the morning of January 7th that when he stood up that he

stepped on a roll of tape and it caused him to fall, what would

you have done?

A. [by Nurse Hall]: For one thing, I would have looked

for a roll of tape. Right? I would obtain that object or whatever

the tape – in this instance, I would have got that and I would

have used it for a foundation to do a report and find out what

ways we could better this process and prevent this from going

on any further and happening to the next patient.

(Emphasis omitted). This inquiry posed a hypothetical question to Nurse Hall, much like

the hypothetical water question Mr. Toler’s counsel asked Nurse Gagnon, because Nurse

Hall had earlier testified that Mr. Toler had not mentioned a roll of tape as causing or

contributing to his fall when Nurse Hall spoke with Mr. Toler shortly after he fell.

Immediately after the quoted exchange, Cornerstone’s counsel concluded her direct

examination of Nurse Hall. Mr. Toler’s counsel replied, “No cross, your Honor”; then

asked Nurse Hall four questions, none of which pertained to the reporting process Nurse

Hall had mentioned in his testimony; and allowed Nurse Hall to be excused as a witness.

19

Finally, Mr. Toler suggests that the jury’s questions to the court during its

deliberations necessitated the disclosure of Cornerstone’s incident report. During the jury’s

deliberations, it sent the following questions to the circuit court: “Is there an initial incident

report? Was it filed? Who filed it? Can we have a copy of said incident report?” After

meeting with counsel in chambers, determining that the peer review privilege continued to

protect the incident report from disclosure, and that the granted motion in limine precluded

reference to the incident report, the circuit court gave this answer to the jury:

I can simply tell you that everything that was admissible

evidence in this case has been discussed prior to the jury ever

being here. We’ve had legal arguments on things, and there are

things that are allowed to be in front of the jury and things that

are not. Everything that you-all have to deliberate on and

consider has been entered into evidence, and so you’re not to

speculate as to what other pieces of evidence might be out there

or might not be out there. You’re only to consider things that

have been put in front of you . . . . And we’ve made sure that

you have all of the evidence that you’re supposed to have

legally to make this decision and reach your verdict; so don’t

speculate on any other things that may be missing at this point.

You just work with what you have and reach your verdict based

on that information.

We find that these questions from the jury clearly indicate that it was not aware that an

incident report had been prepared in this case given that the first question was whether the

For the same reason we find that Mr. Toler has waived any objection to the exclusion of

testimony about or reference to Cornerstone’s incident report because he failed to object to

the circuit court’s decision to grant Cornerstone’s motion in limine, we similarly find that

Mr. Toler has waived any objection he may have had to Nurse Hall’s hypothetical reference

to the incident reporting process because he failed to object to Nurse Hall’s reference to

Cornerstone’s reporting process or elicit further testimony regarding this procedure on

cross-examination of this witness. See Syl. pt. 2, State ex rel. Cooper v. Caperton, 196

W. Va. 208, 470 S.E.2d 162 (1996).

20

incident report existed. The circuit court’s answers to the jury’s questions were consistent

with its prior rulings finding that the peer review privilege shielded Cornerstone’s incident

report from disclosure and that the parties were not permitted to reference or elicit

testimony about the incident report at trial, which we have found were proper. We likewise

find that the circuit court did not abuse its discretion in answering the jury’s questions in

this manner and continuing to apply the peer review privilege to protect Cornerstone’s

incident report. Accordingly, we affirm the circuit court’s September 15, 2021 order

entering judgment in favor of Cornerstone on the jury’s verdict.

IV.

CONCLUSION

We conclude that the circuit court did not err by ruling that the peer review

privilege applies to preclude the disclosure of Cornerstone’s incident report. Therefore, we

affirm the circuit court’s March 20, 2020 order that ruled that the incident report is

protected by the peer review privilege and the court’s September 15, 2021 order entering

judgment on the jury’s verdict in favor of Cornerstone.

Affirmed.

21