IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA FILED Spring 2024 Term June 13, 2024 _____________________ released at 3:00 p.m. ASHLEY N. DEEM, DEPUTY CLERK INTERMEDIATE COURT OF APPEALS No. 23-ICA-58 OF WEST VIRGINIA _____________________ JOHN R. ORPHANOS, M.D., Defendant Below, Petitioner, v. MICHAEL RODGERS, Plaintiff Below, Respondent. ___________________________________________________________ Appeal from the Circuit Court of Kanawha County Honorable Tera Salango, Judge No. 19-C-561 AFFIRMED IN PART AND REVERSED AND REMANDED IN PART _________________________________________________________ Submitted: January 9, 2024 Filed: June 13, 2024 Thomas J. Hurney, Esq. John W. Barrett, Esq. Blair E. Wessels, Esq. P. Gregory Haddad, Esq. Jackson Kelly PLLC Kerrie W. Boyle, Esq. Charleston, West Virginia Sharon F. Iskra, Esq. Bailey Glasser, LLP Richard D. Jones, Esq. Charleston, West Virginia J. Dustin Dillard, Esq. Counsel for Respondent Flaherty Sensabaugh Bonasso, PLLC Charleston, West Virginia Counsel for Petitioner Stephen M. Fowler, Esq. Geoffrey Cullop, Esq. Pullin, Fowler, Flanagan, Brown & Poe PLLC Charleston, West Virginia Counsel for Board of Risk and Insurance Management of the State of West Virginia, Amicus Curae Chelsea V. Brown, Esq. Bowles Rice LLP Morgantown, West Virginia Counsel for Amici Curiae, West Virginia University Board of Governors, West Virginia Health Care Association, American Medical Association, and West Virginia State Medical Association Ancil G. Ramey, Esq. Steptoe & Johnson PLLC Huntington, West Virginia Christine S. Vaglienti, Esq. West Virginia University Health System Legal Services Morgantown, West Virginia Counsel for Amici Curiae, West Virginia Health System, Inc. d/b/a West Virginia University Health System CHIEF JUDGE SCARR delivered the Opinion of the Court. SCARR, CHIEF JUDGE: Petitioner, John R. Orphanos, M.D., appeals the Circuit Court of Kanawha County’s September 12, 2022, judgment order following a jury trial, and January 20, 2023, order denying his renewed motion for judgment as a matter of law on the issue of recklessness and a separate motion for new trial. This case involves a medical malpractice lawsuit filed by Michael Rodgers against Dr. Orphanos in relation to spinal surgery performed after Mr. Rodgers was injured in a motorcycle accident in 2017. This appeal arises out of a medical malpractice jury trial, in which the jury returned a verdict for Mr. Rodgers with a final, reduced award of $9,862,384.58.1 Upon extensive review of the briefs, the appendix record, arguments presented by counsel, and the applicable legal authority, this Court affirms the January 20, 2023, order denying Dr. Orphanos’ renewed judgment as a matter of law. However, we reverse and remand in part the January 19, 2023, denial of Dr. Orphanos’ motion for a new trial, and reverse in part the September 12, 2022, judgment order, for a new trial solely on damages consistent with this opinion.2 1 This Court acknowledges and appreciates the amicus briefs filed by the respective organizations listed above in support of Dr. Orphanos’ position on recklessness in this case. 2 The circuit court below only needs to hold a new trial on damages. For the reasons mentioned below, this court concludes that the circuit court abused its discretion in denying …
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