Attorneys on both sides of a nearly four-year-old lawsuit involving two men who were switched at birth in 1942 at an Upshur County argued their respective cases Thursday morning, during a pre-trial motion hearing before Monongalia County Circuit Court Judge Paul Gwaltney.
John William Carr III and Jackie Lee Spencer, now both 81 years old, were born on Aug. 29, 1942, at St. Joseph’s Hospital in Buckhannon, approximately two hours apart.
Over 75 years later, they discovered they had been sent home with the wrong families. The men place the blame on the obstetrical or nursing staff at the hospital owned by the defendant, Catholic Diocese of Wheeling-Charleston, at the time. The suit claims the parties were negligent.
The error was first revealed in 2019 when DNA testing showed Carr and Spencer were genetic matches of each other’s families but did not match the families they had spent their entire lives with.
The case has become even more complicated, as the large amount of time that has passed means anyone of adult age who may have been able to provide insight on what happened, is likely deceased.
Because laws and legislation have changed several times since 1942, determining what set of laws should and should not apply has been one of the bigger issues leading up to the trial.
In late 2020, attorneys for the diocese requested the suit be dismissed, arguing Carr and Spencer did not file the lawsuit in time based on the requirements of the West Virginia Medical Professional Liability Act (WVMPLA) of 1986.
Court records show at that time Judge Phillip Gaujot, who has since retired, found the case did fall within the statute of limitations, citing a 2016 legislative change in the law’s wording that meant the clock on filing the case began when the men made the discovery in 2019, not in 1942. He also noted the plaintiffs’ injuries — being switched at birth — occurred in 1942, before the WVMPLA took effect in 1986.
Questions have also arisen regarding who actually owned and operated the hospital in 1942.
Attorney Charles Crooks, who is representing Carr and Spencer, stated he questioned if the diocese ownership of the hospital was lawful at the time.
The land where the hospital was built was originally bought by a bishop who held the property for the diocese. An agreement with the Pallottine Missionary Sisters, who were a pontifical group of nuns who were also registered as nurses, left them in operation of the hospital. The money made there could be used to buy the hospital from the bishop/diocese.
The plaintiffs’ side says that they believe the 13 nuns were overworked, running both the hospital and working the surrounding farmland, which could have led to the negligent switch they believe happened in the nursery.
However, it seems neither side can be sure how or where the two babies were switched. Crooks stated they consulted a nursing historian who believes the switch likely happened in the nursery. They can also prove the switch happened because of the men’s DNA tests.
Defense attorneys Brett Copenhaven and Timothy Linkous argued that statements from the nurse historian should be considered speculation because there is little hard evidence showing how the switch happened or who contributed.
“We don’t know squat about who, what, when …” Copenhaven told Gwaltney. “We might as well be playing Clue.”
Copenhaven said there is not even a layout available of what the hospital looked like in 1942 to be able to say whether the two mothers might have placed been near each other or in the same room.
“We are in the land of make-believe,” he said. “There are no specifics here,” adding that negligence can’t be claimed without facts.
Judge Gwaltney acknowledged how complicated this case is and the amount of work attorneys on both sides have put into their research and said he will do everything he can to fairly consider all of the information presented by both sides when considering the motions.
“This case involves every issue of law that I could imagine,” Gwaltney told the councilors.
A nine-day trial is currently scheduled for April 22.
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