Thomas A. Cummings, Individually and as of the Estate of Cynthia M. Cummings v. Ward J. Paine, M.D., and Benjamin Klennert, P.A.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

2024 Spring Term FILED

_____________________________ March 14, 2024

released at 3:00 p.m.

No. 22-ICA-220 C. CASEY FORBES, CLERK

_____________________________ INTERMEDIATE COURT OF APPEALS

OF WEST VIRGINIA

THOMAS A. CUMMINGS, INDIVIDUALLY AND AS EXECUTOR OF THE

ESTATE OF CYNTHIA M. CUMMINGS,

Plaintiff Below, Petitioner,

v.

WARD J. PAINE, M.D., and BENJAMIN KLENNERT, P.A.,

Defendants Below, Respondents.

________________________________________________________________________

Appeal from the Circuit Court of Monongalia County

Honorable Susan B. Tucker, Judge

Civil Action No. 20-C-86

AFFIRMED

________________________________________________________________________

Submitted: January 9, 2024

Filed: March 14, 2024

Frank E. Simmerman, Jr., Esq. Patrick S. Casey, Esq.

Chad L. Taylor, Esq. Ryan P. Orth, Esq.

Frank E. Simmerman, III, Esq. Casey & Chapman, PLLC

Simmerman Law Office, PLLC Wheeling, West Virginia

Clarksburg, West Virginia Counsel for Respondents

William Richard McCune, Jr., Esq.

William Richard McCune, Jr., PLLC

Martinsburg, West Virginia

Counsel for Petitioner

JUDGE GREEAR delivered the Opinion of the Court.

GREEAR, Judge:

Petitioner Thomas A. Cummings appeals the October 15, 2022, order of the

Circuit Court of Monongalia County denying his Motion to Preclude Defendants from

Receiving a Pro Tanto Verdict Reduction in Amount of Plaintiff’s Settlement with Nursing

Home Defendants and the circuit court’s corresponding October 15, 2022, Judgment

Order.1 Mr. Cummings contends that the circuit court erred in its application of West

Virginia Code § 55-7B-9 (2016) of the Medical Professional Liability Act (“MPLA”) when

it adjusted the jury’s verdict by the amount of Mr. Cummings’ pre-verdict settlements with

161 Bakers Ridge Road Operations, LLC, d/b/a Madison Center and Genesis Healthcare

LLC (hereinafter “Nursing Home Defendants”).2 On appeal, Mr. Cummings argues that

West Virginia Code § 55-7B-9 is inapplicable to the instant case as this statutory provision

is ambiguous, internally inconsistent, and inconsistent with the language found in West

Virginia Code § 55-7-13d (2016). As discussed more fully below, we find that West

Virginia Code § 55-7B-9 is not ambiguous, not internally inconsistent, and controls over

any arguably contrary language found within West Virginia Code § 55-7-13d. Accordingly,

we affirm the circuit court’s October 15, 2022, orders and remand this case for further

proceedings consistent with this opinion.

This adjusted amount includes an offset for Mr. Cummings’ pre-verdict settlements

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and a further reduction in the verdict by the percentage of fault the jury assessed to Mr.

Cummings.

2

161 Bakers Ridge Road Operations, LLC, d/b/a Madison Center, and Genesis

Healthcare, LLC are not parties to this appeal.

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I. FACTUAL AND PROCEDURAL BACKGROUND

Mr. Cummings is the surviving spouse of Cindy Cummings and executor of

Ms. Cummings’ estate. In early March of 2019, Ms. Cummings underwent a total right hip

replacement surgery at Ruby Memorial Hospital. Several days following her surgery, she

was discharged to a short-term rehabilitation facility operated by the Nursing Home

Defendants, where she was a resident until April of 2019. Following her hip replacement

surgery, Ms. Cummings developed an infection and died on December 31, 2019.

On March 18, 2020, Mr. Cummings, individually and in his capacity as

executor of Ms. Cummings’ estate, filed the underlying medical malpractice action against

Dr. Ward J. Paine, Benjamin Klennert (a Physician’s Assistant (“P.A.”)), and the Nursing

Home Defendants. On August 12, 2021, a confidential settlement was reached between

Mr. Cummings and the Nursing Home Defendants, which was approved by the circuit court

following a February 17, 2022, hearing.

Mr. Cummings’ remaining claims against Dr. Paine and P.A. Klennert were

tried before a jury in late February and early March of 2022. On March 2, 2022, the jury

returned a verdict finding that Dr. Paine and P.A. Klennert breached the accepted standard

of care in their medical treatment of Ms. Cummings and that such breach proximately

caused and/or contributed to the pre-death injuries and damages of Ms. Cummings. The

jury further determined that Dr. Paine and P.A. Klennert were each 45% at fault, while Mr.

Cummings was 10% at fault. Ultimately, the jury awarded $250,000 in total damages for

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Cynthia Cummings’ pre-death pain, suffering, loss of capacity to enjoy life, loss of dignity,

and/or mental anguish/emotional distress. No other damages were awarded by the jury.3

On March 9, 2022, the parties each submitted proposed judgment orders for

the circuit court’s consideration. Dr. Paine and P.A. Klennert’s proposed judgment order

reduced the jury’s verdict for the 10% fault of Mr. Cummings and further applied the pro

tanto adjustment of the verdict required by West Virginia Code § 55-7B-9(d). However,

Mr. Cummings’ proposed Judgment Order reduced the jury’s verdict only for his 10%

fault. Thereafter, Mr. Cummings filed a Motion to Preclude Defendants from Receiving a

Pro Tanto Verdict Reduction in Amount of Plaintiff’s Settlement with Nursing Home

Defendants and other post-trial motions which are not pertinent to this appeal. An initial

hearing on these motions was held on August 22, 2022, and continued on September 7,

2022.

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At trial, in addition to the pre-death pain, suffering, loss of capacity to enjoy life,

loss of dignity, and/or mental anguish/emotional damages that he was awarded, Mr.

Cummings also sought, but was not awarded, the following additional damages: (1)

medical expenses incurred for Ms. Cummings’ care, treatment, hospitalizations, and

nursing home charges; (2) Mr. Cummings’ expenses to make home handicapped accessible

for Ms. Cummings; (3) loss of household services as a result of Ms. Cummings’ death; (4)

loss of social security retirement benefits as a result of Ms. Cummings’ death; (5) loss of

retirement benefits as a result of Ms. Cummings’ death; (6) loss of spousal consortium

experienced by Mr. Cummings as a result of Ms. Cummings’ death; (7) sorrow, mental

anguish, and solace including loss of society, companionship, comfort, guidance, kindly

services and advice of Ms. Cummings experienced by Ms. Cummings’ beneficiaries as a

result of her death, including her husband, children, and siblings; and (8) Ms. Cummings’

reasonable funeral expenses.

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By order dated October 15, 2022, the circuit court denied Mr. Cummings’

motions. Specifically, the court found that West Virginia Code § 55-7B-9 was clear and

unambiguous. The court interpreted the statute as written to provide a pro tanto reduction

of the jury’s verdict as requested by Dr. Paine and P.A. Klennert. By separate order, also

dated October 15, 2022, the circuit court entered post-trial judgment in favor of Mr.

Cummings in the adjusted amount of $11,250, reducing the jury’s verdict not only by the

10% fault which the jury assessed to Mr. Cummings, but also by Mr. Cummings’ pre-

verdict settlement with the Nursing Home Defendants as required by West Virginia Code

§ 55-7B-9(d). It is from the October 15, 2022, orders that Mr. Cummings now appeals.

II. STANDARD OF REVIEW

Our review of this matter is guided by the Supreme Court of Appeals of West

Virginia’s (“SCAWV”) recognition, in syllabus point one of Chrystal R.M. v. Charlie A.L.,

194 W. Va. 138, 459 S.E.2d 415 (1995), that “[w]here the issue on an appeal from the

circuit court is clearly a question of law or involving an interpretation of a statute, we apply

a de novo standard of review.” Likewise, in syllabus point one of Appalachian Power Co.

v. State Tax Department of W. Va., 195 W. Va. 573, 466 S.E.2d 424 (1995), the SCAWV

held “[i]nterpreting a statute or an administrative rule or regulation presents a purely legal

question subject to de novo review.” With this standard in mind, we now consider the issues

raised on appeal.

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III. DISCUSSION

On appeal, Mr. Cummings advances a single assignment of error with three

subparts, each related to the circuit court’s interpretation of West Virginia Code § 55-7B-

9(d). We begin our analysis with a discussion of the MPLA, West Virginia Code §§ 55-

7B-1 to -12.4 Generally, with regard to the MPLA, the SCAWV has explained that

examination of any portion of the MPLA is guided, at all times,

by the recognition that the Act alters the ‘common law and

statutory rights of our citizens to compensation for injury and

death[.]’ W. Va. Code § 55-7B-1. In other words, by its own

terms, the entire MPLA is an act designed to be in derogation

of the common law.

Phillips v. Larry’s Drive-in Pharmacy, Inc., 220 W. Va. 484, 491, 647 S.E.2d 920, 927

(2007). Such reasoning supports the SCAWV’s “long-standing maxim that ‘[s]tatutes in

derogation of the common law are strictly construed.’” Kellar v. James, 63 W. Va. 139, 59

S.E. 939 (1907). In Phillips, the SCAWV concluded that

because W. Va. Code § 55-7B-1 specifies that the MPLA was

enacted to alter the ‘common law . . . rights of our citizens to

compensation for injury and death,’ the MPLA is in derogation

of the common law and its provisions must generally be given

a narrow construction.

Id. at 492, 647 S.E.2d at 928.

In the first subpart of his assignment of error, Mr. Cummings argues that

West Virginia Code § 55-7B-9 is ambiguous and internally inconsistent. Specifically, he

contends that subsections (b) and (d) of West Virginia Code § 55-7B-9 are inconsistent

There is no dispute that Mr. Cummings’ instant claims were filed under the MPLA.

4

See Appendix Record pages 12-26.

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and, when considered together, ambiguous. We disagree and find no ambiguity and no

inconsistency.

Generally, as to statutory construction, the SCAWV has held that

“significance and effect must, if possible, be given to every section, clause, word or part of

the statute.” Syl. Pt. 1, Meadows v. Wal-Mart Stores, Inc., 207 W. Va. 203, 530 S.E.2d 676

(1999). “It is a well known rule of statutory construction that the Legislature is presumed

to intend that every word used in a statute has a specific purpose and meaning.” State ex

rel. Johnson v. Robinson, 162 W. Va. 579, 582, 251 S.E.2d 505, 508 (1979).

The SCAWV has long reasoned that “[w]here the language of a statute is free

from ambiguity, its plain meaning is to be accepted and applied without resort to

interpretation.” Syl. Pt. 2, Crockett v. Andrews, 153 W. Va. 714, 172 S.E.2d 384 (1970).

The Crockett Court provided guidance on the meaning of ambiguity:

[a]mbiguity is a term connoting doubtfulness, doubleness of

meaning of indistinctness or uncertainty of an expression used

in a written instrument. It has been declared that courts may

not find ambiguity in statutory language which laymen are

readily able to comprehend; nor is it permissible to create an

obscurity or uncertainty in a statute by reading in an additional

word or words. As stated in the early case of McClain Adm’r

v. Davis, 37 W. Va. 330, 16 S.E. 629, 18 L.R.A. 634, ‘Where

the language is unambiguous, no ambiguity can be authorized

by interpretation.’ Plain language should be afforded its plain

meaning. Rules of interpretation are resorted to for the purpose

of resolving an ambiguity, not for the purpose of creating it.

Id. at 718-19, 172 S.E.2d at 387. Having generally discussed the parameters of statutory

construction, we now turn to the statute at issue in the case at bar, West Virginia Code §

55-7B-9. West Virginia Code § 55-7B-9 provides, in part:

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(a) In the trial of a medical professional liability action under this

article involving multiple defendants, the trier of fact shall

report its findings on a form provided by the court which

contains each of the possible verdicts as determined by the

court. . . .

(b) The trier of fact shall, in assessing percentages of fault,

consider the fault of all alleged parties, including the fault of

any person who has settled a claim with the plaintiff arising out

of the same medical injury.

(c) If the trier of fact renders a verdict for the plaintiff, the court

shall enter judgment of several, but not joint, liability against

each defendant in accordance with the percentage of fault

attributed to the defendant by the trier of fact.

(d) To determine the amount of judgment to be entered against

each defendant, the court shall first, after adjusting the verdict

as provided in section nine-a [§ 55-7B-9a] of this article,

reduce the adjusted verdict by the amount of any pre-verdict

settlement arising out of the same medical injury. The court

shall then, with regard to each defendant, multiply the total

amount of damages remaining, with prejudgment interest

recoverable by the plaintiff, by the percentage of fault

attributed to each defendant by the trier of fact. The resulting

amount of damages, together with any post-judgment interest

accrued, shall be the maximum recoverable against the

defendant . . . (Emphasis added)

In denying Mr. Cummings’ Motion to Preclude Defendants from Receiving

a Pro Tanto Verdict Reduction in Amount of Plaintiff’s Settlement with Nursing Home

Defendants, the circuit court reasoned, and we concur, that the text of West Virginia Code

§ 55-7B-9 is “clear and unambiguous.” In West Virginia Code § 55-7B-9(b), the

Legislature expressly requires that the trier of fact, in assessing percentages of fault, shall

consider the fault of all alleged parties, including the fault of anyone who has settled a

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claim with the plaintiff arising out of the same medical injury. 5 In subsection (d), the

Legislature again expressly dictates that the court shall reduce the adjusted verdict

(adjusted for percentages of fault assigned by trier of fact) by the amount of any pre-verdict

settlement arising out of the same medical injury. The actions required in subsection (b)

are also referenced in subsection (d); thus, we find no ambiguity or inconsistency.

In West Virginia Code § 55-7B-1, the Legislature specifically noted its duty

and responsibility “to balance the rights of our individual citizens to adequate and

reasonable compensation with the broad public interest in the provision of services by

qualified health care providers and health care facilities who can themselves obtain the

protection of reasonably priced and extensive liability coverage.” Accordingly, we find no

error with the circuit court’s determination that the “pro tanto reduction requirement of the

MPLA (West Virginia Code § 55-7B-9(d))” is clear and should be applied as written.6

Neither party raises any argument to suggest that Mr. Cummings’ claims against

5

the Nursing Home Defendants did not arise from the same medical injury as Mr.

Cummings’ claims against Dr. Paine and PA Klennert.

6

As noted by Justice Wooton in his concurring opinion in Progressive Max Ins. Co.

v. Brehm, 246 W. Va. 328, 335-36, 873 S.E.2d 859, 866-67 (2022), despite the harshness

of this result, we are compelled to apply it:

This Court does not sit as a superlegislature, commissioned to

pass upon the political, social, economic or scientific merits of

statutes pertaining to proper subjects of legislation. It is the

duty of the Legislature to consider facts, establish policy, and

embody that policy in legislation. It is the duty of this Court to

enforce legislation unless it runs afoul of the State or Federal

Constitutions.

8

In the second subpart of his assignment of error, Mr. Cummings contends

that the circuit court erred in failing to find that West Virginia Code § 55-7B-9 is

inconsistent with the provisions of West Virginia Code § 55-7-13d, which provides no

reductions in verdicts for pre-verdict settlements arising out of the same injury. As the

parties acknowledge, in 2015, the West Virginia Legislature “made major changes to this

State’s general liability statute, [West Virginia Code §]§ 55-7-1 to -31. The changes

abolished joint and several liability and instituted a new modified comparative fault

system.” State ex rel. Chalifoux v. Cramer, No. 20-0929, 2021 WL 2420196 at *4 (W. Va.

June 14, 2021) (memorandum decision). As part of those changes, West Virginia Code §

55-7-13d(a)(3) (2015), was written to state, in pertinent part, that

[i]n all instances where a nonparty is assessed a percentage of

fault, any recovery by a plaintiff shall be reduced in proportion

to the percentage of fault chargeable to such nonparty. Where

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.

Syl. Pt. 2, Huffman v. Goals Coal Co., 223 W. Va. 724, 679

S.E.2d 323 (2009); accord Lewis v. Canaan Valley Resorts,

Inc., 185 W.Va. 684, 692, 408 S.E.2d 634, 642 (1991) (“[T]he

judiciary may not sit as a superlegislature to judge the wisdom

or desirability of legislative policy determinations made in

areas that neither affect fundamental rights nor proceed along

suspect lines.”); Syl. Pt. 1, in part, State ex rel. Appalachian

Power Co. v. Gainer, 149 W. Va. 740, 143 S.E.2d 351 (1965)

(“Courts are not concerned with questions relating to

legislative policy. The general powers of the legislature, within

constitutional limits, are almost plenary.”) As such, the remedy

for this perceived inequity lies not with this Court, but with the

West Virginia Legislature.

9

Subsequently, in 2016, West Virginia Code § 55-7B-9, as cited above, was

amended at subsections (b) and (d) to include language that parties who settled a claim

with the plaintiff arising out of the same medical injury shall be considered in assigning

fault (subsection b) and that any verdict awarded to plaintiff should be reduced by the

amount of any pre-verdict settlements arising out of the same medical injury (subsection

d) – irrespective of whether or not the trier of fact assigned fault to the settling defendants.

Mr. Cummings argues that these two statutory provisions are in conflict and in interpreting

these provisions, the court erred in failing to read the statutes in pari materia. We disagree.

First, we note that the

in pari materia rule of statutory construction applies . . . only

when the particular statute is ambiguous: “‘The rule that

statutes which relate to the same subject should be read and

construed together is a rule of statutory construction and does

not apply to a statutory provision which is clear and

unambiguous.’” Syl. Pt. 4, Manchin v. Dunfee, 174 W. Va.

532, 327 S.E.2d 710 (1984), quoting Syl. Pt. 1, State v.

Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951).

Kimes v. Bechtold, 176 W. Va. 182, 185, 342 S.E.2d 147, 150 (1986). Here, as noted above,

we have determined that West Virginia Code § 55-7B-9 is not ambiguous and thus not

subject to the in pari materia rule of statutory construction. Moreover, even if we were to

find any conflict with the provisions of West Virginia Code § 55-7B-9 and West Virginia

Code § 55-7-13d, as a general rule of statutory construction, a specific statute must be given

precedence over a general statute relating to the same subject matter where the two cannot

be reconciled. See Syl. Pt. 1, UMWA ex rel. Trumka v. Kingdon, 174 W. Va. 330, 325

S.E.2d 120 (1984). Thus, because the MPLA specifically controls the underlying claim, a

10

medical malpractice action, the fault assessment rules within West Virginia Code § 55-7B-

9 must be given preference over the general provisions of West Virginia Code § 55-7-13d.

Accordingly, we find no error in the circuit court’s decision.

In the third subpart of his assignment of error, Mr. Cummings suggests that

the application of West Virginia Code § 55-7B-9 creates an absurd and unjust result in a

“double reduction” of Mr. Cummings’ award. In this same vein, Mr. Cummings avers that

West Virginia § 55-7B-9 violates the certain remedy right provided by the West Virginia

Constitution in “[a]llowing defendants the benefit of a double reduction of medical

malpractice verdicts would deny plaintiffs a full, complete, and adequate remedy when

they settle with some, but not all, defendants prior to trial.” Again, we disagree.

Here, Mr. Cummings argues of the “absurdity” and fundamental inequity of

West Virginia Code § 55-7B-9, in that the reduction of the jury’s verdict by the amount of

settlement monies received by a plaintiff against the settling defendants, coupled with a

reduction of any fault attributed to the settling defendants would produce an unjust result

by doubly reducing his recovery. However, that is not the situation in the case at bar. Here,

the jury did not find any fault on the part of the Nursing Home Defendants, who settled

Mr. Cummings’ claims against them pre-verdict, and, thus, Mr. Cummings’ award was not

subject to any “double reduction.” Hence, his arguments relating to the potential of double

reduction is nothing but a hypothetical concern.7 Accordingly, we decline to address Mr.

7

This Court, like the SCAWV, is not authorized to resolve such hypothetical case

scenarios:

11

Cummings’ arguments regarding the constitutionality of a potential double reduction of a

jury’s damage award, as no such situation exists in the case at bar. Thus, we find no error

in the circuit court’s concurrent determination.

IV. CONCLUSION

Wherefore, for the foregoing reasons, the October 15, 2022, orders of the

Circuit Court of Monongalia County are hereby affirmed.

Affirmed.

It is a deeply rooted and fundamental law that ‘this Court is not

authorized to issue advisory opinions[.]’ State ex rel. City of

Charleston v. Coghill, 156 W. Va. 877, 891, 207 S.E.2d 113,

122 (1973) (Haden J., dissenting) . . . This Court further

addressed the issue of advisory opinions in Mainella v. Board

of Trustees of Policemen’s Pension or Relief Fund of City of

Fairmont, 126 W. Va. 183, 185-86, 27 S.E.2d 486, 487-88

(1943), as follows: Courts are not constituted for the purpose

of making advisory decrees or resolving academic disputes.

The pleadings and evidence must present a claim of legal right

asserted by one party and denied by the other before

jurisdiction of a suit may be taken.

State ex rel. Morrisey v. W. Va. Off. of Disciplinary Couns., 234 W. Va. 238, 246, 764 S.E.2d

769, 777 (2014).

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