SER Roland F. Chalifoux, Jr., D.O. v. The Honorable Jeffrey Cramer and Joseph Moellendick, 20-0929

In April 2017 plaintiff Joseph Moellendick underwent a spinal cord stimulator trial and soon thereafter was diagnosed at Akron City Hospital with a thoracic spinal hematoma and underwent surgery; he sued only Dr. Roland F. Chalifoux Jr. and his PLLC under the Medical Professional Liability Act (MPLA).
During discovery Chalifoux identified Akron providers as potentially negligent and filed a Combined Notice and Motion (Feb. 6, 2020) seeking to place alleged non-parties on the verdict form under W. Va. Code § 55-7B-9 and by analogy to W. Va. Code § 55-7-13d.
The Marshall County Circuit Court denied the motion (Sept. 25, 2020), reasoning the MPLA’s language “all alleged parties” did not encompass unnamed non-parties, that pre-existing caselaw limits attribution to non-parties, and that allowing non-party allocation would prejudice the plaintiff who chose not to sue Akron.
Chalifoux sought a writ of prohibition from the West Virginia Supreme Court to bar enforcement of the circuit court’s order; the Supreme Court (majority) denied the writ, finding Chalifoux failed to meet the Hoover factors, especially to show clear legal error.
Justice Armstead dissented, arguing the statutes’ history and related comparative-fault law (including § 55-7-13d) show defendants in MPLA cases may identify and have juries apportion fault to non-parties; he would have granted the writ.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether non-parties (unnamed Akron providers) may be placed on the verdict form under W. Va. Code § 55-7B-9	“All alleged parties” does not include unnamed non-parties; §55-7B-9 applies to parties/settling parties only	The phrase “all alleged parties” includes non-parties and permits apportionment to unnamed tortfeasors	Majority: Circuit court did not clearly err; denial of motion stands. Dissent: statute and history allow non-party allocation.
Whether W. Va. Code § 55-7-13d (general non-party fault procedure) applies to MPLA actions	§55-7-13d is inapplicable to MPLA (or at least was not shown to control)	§55-7-13d applies to all causes of action and therefore should be available in MPLA cases to permit non-party fault consideration	Majority: Chalifoux failed to show clear error; court did not grant writ. Dissent: §55-7-13d applies to MPLA and supports non-party fault.
Whether a writ of prohibition was appropriate to prevent enforcement of the circuit court’s order	Writ is necessary because denial causes irreparable prejudice and there is no adequate appellate remedy; juries need to consider non-party fault	Writ not warranted because trial can proceed and issues may be cured on direct appeal; Chalifoux failed to meet Hoover factors	Majority: Writ denied. Dissent: Writ should be granted.

State ex rel. Peacher v. Sencindiver, 160 W. Va. 314, 233 S.E.2d 425 (1977) (writ of prohibition issues only where court lacks jurisdiction or exceeds legitimate powers)
State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1997) (five-factor test for discretionary writ of prohibition)
State ex rel. Gessler v. Mazzone, 212 W. Va. 368, 572 S.E.2d 891 (2002) (de novo review for purely legal statutory-interpretation questions)
Appalachian Power Co. v. State Tax Dep’t of W. Va., 195 W. Va. 573, 466 S.E.2d 424 (1995) (statutory interpretation is a question of law reviewed de novo)
Rowe v. Sisters of Pallottine Missionary Society, 211 W. Va. 16, 560 S.E.2d 491 (2001) (under earlier MPLA text, court held §55-7B-9 applied only to parties to the litigation)
Modular Bldg. Consultants of W. Va., Inc. v. Poerio, Inc., 235 W. Va. 474, 774 S.E.2d 555 (2015) (2015 comparative-fault statutes intended to occupy the field of comparative fault)
Community Antenna Servs., Inc. v. Charter Communications VI, LLC, 227 W. Va. 595, 712 S.E.2d 504 (2011) (statutes relating to same subject should be read in pari materia)
State v. Snyder, 64 W. Va. 659, 63 S.E. 385 (1908) (statute construction should harmonize with the general system of law)
Loughrin v. United States, 573 U.S. 351 (2014) (congressional omission of language in one provision but not another can indicate different legislative intent)