Background
In September 2020, Dr. J. Kevin Koch performed a right colectomy on Ernest Dale Collins, Jr., after a gastroenterologist discovered a polyp during a colonoscopy that could not be removed endoscopically. The polyp proved nonmalignant. Following surgery, Collins suffered severe complications—chronic abdominal pain, nausea, vomiting, and dramatic weight loss of fifty-nine pounds—and eventually required additional surgery. He filed a single-count medical malpractice complaint alleging that Dr. Koch failed to obtain informed consent by not disclosing the risks of the colectomy or less invasive alternatives such as endoscopic mucosal resection or watchful waiting.
The case proceeded through full discovery, with each side disclosing expert witnesses. At trial in July 2024, Collins’s trial counsel, David Sims, engaged in a series of conduct that drew repeated admonishment from the circuit court: audibly clicking a pen during witness testimony, repeatedly interrupting witnesses mid-answer, attempting to elicit from retained expert Dr. Silverman an opinion about an alternative treatment (endoscopic submucosal dissection) that had not been disclosed during discovery, and attempting to introduce or reference an unadmitted medical record from treating physician Dr. Scott Naum. On the third day of trial, after Mr. Sims began to reference Dr. Naum’s causation opinion during cross-examination of defense expert Dr. Thacker—who had read and relied on Dr. Naum’s deposition—the circuit court sua sponte declared a mistrial. In June 2025, the circuit court dismissed the case with prejudice and awarded attorney fees and costs as sanctions.
Collins appealed, arguing both that the dismissal with prejudice was an impermissible sanction under the circumstances and that several of the findings of misconduct were not supported by the record. The ICA addressed only the first issue, finding it dispositive.
The Court’s Holding
The ICA vacated the dismissal with prejudice and remanded, holding that the circuit court abused its discretion by imposing the ultimate litigation sanction without following the graduated framework required by West Virginia law. Under Bartles v. Hinkle, 196 W. Va. 381, 472 S.E.2d 827 (1996), sanctions must be fashioned to address the identified harm caused by the specific misconduct, and courts must consider seriousness of conduct, impact on the case and administration of justice, mitigating circumstances, and whether the conduct was isolated or a pattern. Critically, West Virginia precedent holds that when misconduct is attributable solely to counsel rather than to the client, sanctions should ordinarily target the culpable attorney—and if a court chooses to punish the innocent litigant instead, it must explain why attorney-directed sanctions would be insufficient. The circuit court made no such finding.
The ICA also found two independent procedural failures that independently compelled reversal. First, the circuit court never warned counsel that continuing his course of conduct could result in dismissal of the case—a step West Virginia courts have identified as a near-categorical prerequisite before the harshest sanction can be imposed. Second, the circuit court declared a mistrial sua sponte without first attempting a curative instruction. Mistrials are reserved for errors so prejudicial they cannot be corrected by instruction, and juries are presumed to follow curative instructions absent an overwhelming probability that they cannot do so. Here, counsel had not even completed the offending sentence before he was cut off, and defense counsel itself requested only a curative instruction, not a mistrial.
The court further identified meaningful mitigating circumstances: the circuit court’s pretrial rulings on the admissibility of Dr. Naum’s causation testimony were ambiguous, oral, and never reduced to writing—and were themselves potentially contradictory with other rulings—giving Collins’s counsel a reasonable basis, if ultimately mistaken, for believing he could present Dr. Naum’s opinions at trial. On remand, the ICA directed that the circuit court may impose monetary sanctions directly on Collins’s trial counsel to address the cost of retrial.
Key Takeaways
- Dismissal with prejudice is the harshest available sanction and must be a last resort; a circuit court’s failure to warn of impending dismissal or to consider less onerous sanctions is, in almost any circumstances, reversible error under West Virginia law.
- When attorney misconduct—not client misconduct—causes a mistrial, equity requires that sanctions target the culpable attorney rather than the innocent litigant; punishing the client instead requires an express judicial explanation for why attorney-directed sanctions are insufficient.
- A sua sponte mistrial is appropriate only when the prejudicial error is so severe that it cannot be cured by instruction; courts must attempt curative instructions first, as juries are presumed to follow them absent overwhelming evidence to the contrary.
- Ambiguous or unwritten pretrial evidentiary rulings can constitute significant mitigating circumstances that bear on the severity of permissible sanctions, particularly when counsel’s interpretation of those rulings was not objectively unreasonable.
- Defense counsel’s failure to request a mistrial or dismissal at the time of the alleged misconduct is a relevant factor weighing against the most severe sanctions.
Why It Matters
This decision reinforces that West Virginia trial courts must employ a graduated response to attorney misconduct: admonish, warn of consequences, attempt curative measures, and impose targeted monetary sanctions before resorting to case-terminating sanctions that punish an innocent client for the sins of counsel. The ruling serves as a clear reminder that dismissal with prejudice is not a tool for expressing judicial frustration with an attorney’s behavior, however warranted that frustration may be.
For practitioners, the decision also underscores the practical importance of clear, written evidentiary rulings during complex litigation. The ambiguity in the circuit court’s oral rulings about Dr. Naum’s testimony was not merely a procedural footnote—it was central to both the misconduct that occurred and the ICA’s conclusion that dismissal was excessive. Attorneys and judges alike should ensure that significant evidentiary rulings are memorialized in writing before trial, particularly when those rulings concern the scope of expert testimony that goes to the heart of a party’s case.