Bailey & Wyant PLLC's attorneys from all 3 offices have been selected by their peers for inclusion in the 30th edition of The Best Lawyers in America®.

Managing Member, David L. Wyant and Equity Member Thomas E. Buck of the Wheeling office were selected for their expertise in Commercial Litigation ; Banking and Finance, and Labor and Employment, Medical Malpractice Law, and Product Liability Litigation.

Managing Member, Charles. R. Bailey, Equity Members, Marc J. Slotnick, Justin C. Taylor, Member, David E. Schumacher, and Of Counsel, Josef A. Horter of the Charleston office were recognized for their expertise in Employment Law, Insurance Law, Litigation-Insurance, Real Estate Law, Product Liability Litigation, Construction Law, Commercial Litigation, and Personal Injury Litigation-Defendants.

Managing Member Charles R. Bailey and Member Jordan K. Herrick attended the West Virginia Bar Association's 136th Annual Meeting, held in White Sulphur Springs, West Virginia at the Greenbrier Resort. This three day event included the Judicial Appreciation Reception, in which The Executive Council of The West Virginia Bar Association announced the recipients of the inaugural Frederick P. Stamp, Jr. Award for Judicial Excellence and the 2023 Award of Merit. The 2023 Award Recipients were The Honorable Frederick P. Stamp, Jr., The Honorable Ronald E. Wilson, and Charles M. Love III.

Later this month Bailey & Wyant, PLLC's Of Counsel, Albert, "Abbie" C. Dunn, Jr. will attend the Gavel's Summer Summit held in Boston, Massachusetts. Abbie, along with other distinguished members of the Gavel will participate in presentations conducted by the Product Liability, Construction, and Professional Liability practice groups.

The Centennial Celebration was held at Shepherd Field in Martinsburg, West Virginia. The event welcomed over 35K spectators

Bailey & Wyant, PLLC is proud to welcome Of Counsel, William E. Murray to it's Charleston office. Upon graduation from West Virginia College of Law in 1981, Mr. Murray became employed with a small practice doing general litigation work. He has continued in civil and criminal litigation up to the present. He has conducted trials throughout the state of West Virginia and in the Southern District of West Virginia. From 2001 until 2005 he served as the Court Administrator for the Circuit Court of Kanawha County in Charleston, West Virginia. His practice now focuses primarily on civil rights defense litigation, healthcare defense litigation, and criminal defense litigation.

This month, we discuss a decision from the Intermediate Court of Appeals. The court’s recent decision in Stoudt v. Eads affirmed the lower court’s grant of summary judgment because the plaintiff in this matter failed to produce sufficient evidence of causation of her abdominal pain. In the case, it was discovered in a 2018 surgery that the plaintiff had an “endo catch” bag inside of her from a previous surgery. The plaintiff sued the three doctors who performed surgery on her in 2016.

In reaching their conclusion that the lower court did not err in finding that the plaintiff failed to sufficiently establish a causal link between her abdominal pain and the endo catch bag left in inside her, the Court looked to her expert’s testimony that could not definitively link the endo catch bag to her abdominal pain beyond more than a mere possibility of the cause of the pain. During discovery, it was established that plaintiff had pre-existing abdominal pain prior to the surgery in 2016 and had numerous health conditions that cause abdominal pain. Although there was no disagreement amongst the parties that leaving an endo catch bag in a patient is a breach of the standard of care, the court found that because “[t]he record reflects that during the time the foreign object was in Ms. Stoudt’s abdomen, she had multiple conditions present simultaneously which could cause abdominal pain,” and in fact had “had abdominal pain before her 2016 surgery and after the foreign object was removed from her abdomen in 2018,” the court found “this case is not one where “the cause of injury is reasonably direct or obvious, thereby removing the need for medical testimony linking the negligence with the injury,” and “quite the opposite” required expert testimony, which did not establish the causal link. Reviewing the record, the court found her expert “was merely speculating regarding possible causes of abdominal pain.

Importantly, the Court upheld prior precedent regarding causation. Looking to decisions like Dellinger, Tolley, Serbin, Spencer, and Sexton, the Court found that expert testimony must, essentially, eliminate the possibility of other possible causes and sufficiently link the alleged negligence of the defendant as the cause of the injury. Being a potential cause of harm is insufficient to establish causation under West Virginia law as “the law is clear that the mere possibility of causation is not sufficient to allow a reasonable jury to find causation.” Tolley v. ACF Industries, 212 W. Va. 548, 558, 575 S.E.2d 158, 168 (2002).

Simple actions at home and in your neighborhood can make a big difference. To access more information about preparedness please visit www.ready.gov/September.

To discuss your case, e-mail us (baileywyant@gmail.com) or give us a call.