Background
In August 2020, Ernest Dale Collins, Jr. underwent a colonoscopy that revealed a polyp his gastroenterologist could not remove. He was referred to Dr. J. Kevin Koch, a general surgeon, who recommended a right colectomy. Collins consented, the surgery was performed on September 30, 2020, and the polyp proved nonmalignant. Collins subsequently suffered severe complications — chronic abdominal pain, vomiting, nausea, diarrhea, and a 59-pound weight loss — requiring additional surgery and ongoing treatment. He filed a single-count medical malpractice complaint alleging that Dr. Koch failed to obtain informed consent by not disclosing the risks of colectomy or less invasive alternatives.
The case proceeded through discovery and a July 2024 jury trial in Wood County Circuit Court. On the third day of trial, the court sua sponte declared a mistrial after Collins’s attorney attempted to reference, during cross-examination of the defense’s retained expert, a causation opinion from treating physician Scott Naum, D.O., that had not been admitted into evidence. This followed a series of incidents during trial: counsel’s pen-clicking during witness testimony, repeated interruptions of witnesses, attempting to elicit an undisclosed alternative-treatment opinion from Collins’s own expert, and having Dr. Koch read from an unadmitted medical record during direct examination.
Following the mistrial, Dr. Koch moved for sanctions including dismissal with prejudice and an award of attorney fees for the entire litigation. On June 13, 2025, the circuit court granted the motion in part — dismissing the case with prejudice and awarding attorney fees for preparing and arguing the sanctions motion — finding that Collins’s trial counsel, David Sims, had engaged in a pattern of calculated misconduct. Collins appealed.
The Court’s Holding
The Intermediate Court of Appeals vacated the dismissal with prejudice and remanded, holding that the circuit court abused its discretion under the framework of Bartles v. Hinkle, 196 W. Va. 381, 472 S.E.2d 827 (1996). The court found multiple independent grounds for reversal. First, the misconduct was entirely that of Collins’s attorney, not Collins himself, yet the most severe sanction — permanent loss of the right to have the case tried on its merits — fell exclusively on the innocent client. West Virginia precedent requires a circuit court to explain why a sanction cannot be directed at the culpable attorney rather than the party before visiting that punishment on the client.
Second, the circuit court never warned counsel during trial that continued misconduct could result in dismissal, and the defense never requested a mistrial or dismissal at any point. The court also failed to attempt a curative instruction before granting a mistrial, even though juries are presumed capable of following such instructions and counsel had not completed the offending sentence before being cut off. Mistrials, and a fortiori dismissals with prejudice, are reserved for egregious error that cannot be cured by instruction.
Third, examining the individual incidents under the Bartles factors — seriousness, impact, mitigating circumstances, and whether the conduct was isolated or a pattern — the court found that pen-clicking and witness interruptions, while unprofessional, fell well short of justifying dismissal. The more serious evidentiary violations were significantly mitigated by the circuit court’s own unclear, unwritten, and shifting pretrial rulings on the admissibility of Dr. Naum’s opinions, which made it not unreasonable for counsel to believe certain uses of that evidence were permissible. The court noted that on remand, monetary sanctions against trial counsel can address the cost of retrying a case that is already discovery-complete and trial-ready.
Key Takeaways
- Dismissal with prejudice as a sanction for attorney misconduct is the harshest remedy available and requires, at minimum, prior warning to counsel that such a sanction is in prospect and genuine consideration of lesser alternatives before imposition.
- When misconduct is attributable solely to an attorney rather than the client, West Virginia courts must explain why sanctions cannot be directed at the attorney — and should not visit permanent loss of the client’s day in court on an innocent party.
- A sua sponte mistrial without a prior attempt at a curative instruction is error where there is no overwhelming probability the jury could not follow such an instruction; the presumption of juror compliance with curative instructions must be overcome before the court leaps to the most drastic remedy.
- Ambiguous, oral-only evidentiary rulings that shift during litigation constitute significant mitigating circumstances when evaluating whether counsel’s violation of those rulings warrants severe sanctions.
Why It Matters
This decision reinforces that West Virginia courts must exhaust incremental responses — admonishment, contempt, curative instructions, targeted monetary sanctions against counsel — before terminating a plaintiff’s case with prejudice for trial counsel’s misconduct. The ruling puts trial judges on notice that skipping straight to dismissal, particularly without an on-the-record warning, will rarely survive appellate review when an innocent client bears the consequence of the attorney’s behavior.
For practitioners, the case also highlights the risks of ambiguous in limine rulings left in oral form. The ICA’s observation that the circuit court’s pretrial rulings on Dr. Naum’s opinions were unclear, inconsistent, and never reduced to writing was central to finding mitigating circumstances that undercut the “calculated misconduct” narrative. Defense counsel seeking the most severe sanctions, and plaintiffs’ attorneys seeking to avoid them, alike have reason to push for clear, written evidentiary orders before trial begins.