Goldizen v. Grant County Nursing Home 225 W.Va. 371, 693 S.E.2d 346)

Goldizen v. Grant County Nursing HomeArticles: West Virginia

Goldizen v. Grant County Nursing Home 225 W.Va. 371, 693 S.E.2d 346)

Goldizen v. Grant County Nursing Home 225 W.Va. 371, 693 S.E.2d 346)
Plaintiff (Appellee) – Jerry Goldizen, Co- Administrator of the Estate of Elva Goldizen (Deceased)
Defendant (Appellant) – Grant County Nursing Home
Supreme Court of Appeals of West Virginia (2010)

Jerry Goldizen, as Co- Administrator for the Estate of Elva Goldizen, brought a wrongful death action against Grant County Nursing Home. Grant County Nursing Home filed a motion for summary judgment. The trial court granted the motion. Goldizen appealed.


On October 31, 2003, Elva Goldizen, a resident at Grant County Nursing Home (the named defendant), choked while being fed lunch by staff of the nursing home. She was transported by ambulance to the hospital where her condition deteriorated.

Goldizen was known by the staff to have trouble eating solid foods, and was to be on a prescribed diet of ground meats and other non- solid foods. She was being fed fish at the time of her choking.

The defendants presented the expert  testimony of Dr. Dewey Bensenhave, the Medical Director of the nursing home. He listed the cause of death on Goldizen’s death certificate as “Acute Aspiration.” He later amended his contention that her death was caused by pre- existing conditions.

The plaintiffs listed Dr. Gaudet, the doctor that treated Goldizen in the emergency room. They asserted during the pre- trial proceedings that they were having trouble locating Dr. Gaudet.  The trial court held that the plaintiffs had not made “good efforts to find Dr. Gaudet,” and barred his testimony.

Absent Dr. Gaudet’s testimony, the trial court concluded that the plaintiffs could not prove causation and granted the defendant’s motion for summary judgment.


The trial court granted the Defendant’s motion for summary judgment.


1)     Did the trial court err in granting summary judgment, finding that there was no genuine issue of material fact as to causation?

2)     Did the trial court err in precluding expert witness from being deposed or from testifying at trial as discovery sanction?


1)     Yes

2)     Yes

“A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.”

The court found that the Plaintiffs had prima facie evidence that Ms. Goldizen died as a result of “acute aspiration.”

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