Coleman v. Sopher

Wesley Coleman, COLEMAN, Mary J. Coleman, Plaintiffs Michelle Appellees,

Below, SOPHER, Defendant

Irvin

Below, Appellant.

No. 23943. Appeals

Supreme Court Virginia.

West Sept. 1997.

Submitted 20, 1997.

Decided Nov.

Dissenting Opinion of Justice

Maynard Nov. 1997.

Concurring Opinion of Justice

McHugh Dec.

592

ing rulings original earlier made Therefore, judge. We find no error. affirm the final order of the circuit court. I.

FACTUAL AND PROCEDURAL HISTORY Coleman, thirty-nine year Elmer old miner, suddenly coal died from a heart at- September tack on order to occupational pneumoconi- determine whether death, wife, osis contributed to Elmer’s Coleman, Mary executed “CONSENT TO AUTOPSY,” authorizing “hospital or its agents representatives, proce- to do all necessary proper, including dures the re- organs parts body moval of of said for microscopic analy- or other examination and autopsy performed sis.” Sep- The 27, 1987, by Sopher, tember Dr. Irvin Chief Medical Examiner for the State of West Sopher], Sopher’s [hereinafter sub- sequent report, titled “POST-MORTEM FINDINGS,” EXAMINATION in- failed to pneumoconiosis dicate whether had contrib- Johns, Amy Smith, Steptoe Charles F. M. However, uted to Elmer’s death. relevant Johnson, Clarksburg, & Appellant. for the hand, report to the issues at included “[t]he statement heart is not removed Cometti, Joseph Charleston, C. Ap- for the body....” Following autopsy, pellees. body

Elmer’s was released to Combs-Pen- DAVIS, nington Funeral Justice: Home where it was em- by Pennington, balmed Paul the owner of Sopher, Dr. Irvin Chief Medical Examiner funeral, the funeral home. After a Elmer’s Virginia, appeals the State of West body was laid to in a rest mausoleum. judgment against entered him the Circuit Fayette County later, Court of in a Mary tort action Sometime Coleman filed initiated the relatives of a Compensation decedent Workers’ occupa- claim for Sopher performed whom autopsy. pneumoconiosis The tional [hereinafter sur- OP] alleged suit Sopher intentionally vivor’s benefits. Her claim was denied without authorization removed the Sopher’s autopsy report heart of because did not Sopher argues the decedent. that the circuit indicate that Elmer Coleman suffered court in finding erred that he was not enti- Consequently, Mary permitted from OP. qualified immunity tled to respect with body to the Elmer’s to be exhumed and executed him, against claims in admitting certain evi- a second “CONSENT TO AUTOPSY” au- prejudi- dence that now thorizing claims was Hansbarger per- Echols cial, instructing and in autopsy it could form an to determine whether El- punitive damages. Sopher award pneumoconiosis and, also claims mer suffered from if judge so, that a presiding por- successor over a whether it contributed to his death. proceedings tion of the Hansbarger’s erred in subsequent report reeonsider- Dr. noted Mary Coleman desired Compensation this information to de- tied to Workers’ survivor benefits. termine whether she and her children were end- Court, having granted heart [was] that “the identified or a remittitur Mary herein, jury’s found.” When Coleman discovered verdict stated then had inquire plaintiffs they that her husband’s heart been re- did whether body, moved from his she deceased be- elected to have a new trial on the issue of children, emotionally upset. damages came Her accept J. the remittitur. In re- Michelle, Wesley similarly sponse, became plaintiffs dis- counsel for the informed upon learning tressed information. plaintiffs the court that the would not ac- Thereafter, Mary, Wesley and cept opted J. Michelle the remittitur and instead for a collectively [hereinafter Coleman referred new trial. Colemans],

to as the filed suit in the Cir- 21, 1994, appealed April The Colemans Fayette County against cuit Court of So- initially granted order to this Court. We pher Pennington. and Paul al- suit However, petition appeal. following oral leged intentional infliction of emotional argument, opinion delivered Justice distress, outrageous conversion and con- Cleekley, improvi- the case was dismissed as duct. dently granted. Sopher, Coleman v. See By 7, 1991, order entered November circuit court related that it earlier had an- Thereafter, the matter was set for a new grant nounced that it summary “intended to damages trial on in the circuit court. Be-

judgment, sponte, grounds sua on the Judge cause Abbot had retired and subse- legally Plaintiff cannot maintain ac- [an] died, quently assigned the case was against alleging tion two Defendants that one Judge Honorable John W. Hatcher. After Defendant, both, or the other but not record, reviewing Hatcher, Judge the case liable to the Plaintiff.” The Colemans then sponte, parties sua argue asked the complaint moved to amend their to elect one Judge whether he should reconsider Abbot’s against they of the two defendants whom rulings Sopher’s post-trial Fol- motions. proceed. granted wished to circuit court Hatcher, lowing arguments, Judge by order 13,1992, April the motion. On the Colemans 2, 1996, May Sopher’s entered all denied of complaint, alleged filed their amended post-trial order, motions. In the text of the original the same causes of action as their Judge Hatcher discussed the trial court’s complaint, Sopher but listed as the sole de- delay approximately of one and one-half fendant. In his answer to the Colemans’ years ruling post on the defendant’s trial complaint, Sopher removing amended denied motions, complete a absence of record of Elmer Coleman’s heart and named Paul Pen- motions, hearing the court’s on those and the nington Pennington] [hereinafter as third- findings lack of of fact and conclusions of law party defendant. Judge in the court’s order. Hatcher com- mented: Judge

The Honorable W. Robert Abbot presided subsequent jury Court, over the trial. At consideration of Rule 63 of evidence, Judge Virginia the conclusion of the Abbot the West Rules of Civil Proce- dure, granted a directed verdict favor of Pen- West case law and the 7, 1992, nington. duty power On October re- Court’s and inherent to insure against Sopher awarding expeditious turned a verdict and effective administra- $75,000 compensatory Court, damages Mary of tion of the business of the is of the $30,000 Wesley opinion Coleman and each to J. and because Court failed to Michelle, $50,000. punitive damages any findings and of make of fact and conclusions judgment regard rulings then filed motions for not- of law to its as to the withstanding motions, post-trial the verdict and for a new trial aforementioned 21, 1994, reconsider, April Judge or remittitur. On Ab- Court should now on its own motion, granting rulings regard bot entered an order remittitur. the Court’s motions, compensatory damage post-trial findings He reduced award said and make $50,000 $10,000 Mary regard for Coleman and for of fact and conclusions of law in can, punitive damage by reading each child. The award was thereto. The Court now case, changed. transcripts just The order also stated: the trial of this as summary easily competently denying and rule erred in his motion for and consider motions, post-trial judgment as grounds qualified on the Defendant’s on the of immu- nearly original trial court one nity.2 presents question could the This error of law years 1, after the conclusion of de novo. Syl. and one-half See pt. which we will review A.L., present the trial. The Court’s action is not Chrystal R.M. v. Charlie 194 W.Va. (“Where (1995) of 138, to be taken as criticism whatsoever 459 S.E.2d 415 the issue original judge. trial appeal clearly on an from the circuit court is question involving interpreta- of law or ap- now It is from this order statute, a de novo standard apply tion of a we peals. review.”). 1, See also Painter v. Syl. pt. of II. 189, Peavy, 192 W.Va. (“A entry summary judg- circuit court’s of DISCUSSION novo.”).3 Moreover, ment is reviewed de Qualified Immunity A note that: Sopher’s We first address conten “ summary ‘A judgment motion for rejecting tion that the circuit court erred in granted only should be when it is clear immunity. Sopher his defense of raised the genuine that there is no issue of fact to be summary immunity in his motion for issue inquiry concerning tried and the facts is judgment, again when he moved for a clarify application not desirable to of Unfortunately, framing directed verdict. 3, Casualty Point Aetna Syllabus the law.’ Court, appeal this issue for to this Surety & Co. v. Federal Insurance Co. of identify particular stage has failed to York, 160, New 133 S.E.2d 770 allegedly trial at which the court erred. To (1963).” Syllabus Point Andrick v. unnecessarily lengthy avoid an discussion ad Buckhannon, Town dressing possible points at which this (1992). S.E.2d 247 occurred, might purposes error Coil, Inc., discussion, Sopher’s argu Syl. pt. Williams Precision our we will treat (1995). complaining ment as one court 459 S.E.2d 329 rejected Sopher's Casualty Surety 2. While the circuit court claim Aetna Co. v. Federal York, immunity purposes summary judgment Company Insurance New verdict, question directed fact, immunity presented, question Syl. pt. Virginia Dep't Gooch v. West Public of jury. Sopher argue does not before this 357, (1995). Safety, 195 W.Va. 465 S.E.2d 628 jury Court that the instructions related to immu- However, holding preclude appeal does not nity were erroneous or that the evidence was summary judgment aof denial of after the con- support insufficient to verdict on liabili- entry clusion of a trial and the of a final order. ty. Consequently, we limit our discussion to the previously We have commented: raised, is, perceive Sopher issue we to have that trial, If unsuccessful at the movant still whether, law, Sopher a matter of as was entitled 12(c) [W. raise the denial of his Va. R. Civ. P. qualified immunity alleged by for the conduct appeal or motion as error on an 56] subse 1, Syl. pt. City the Colemans. See v. Hutchison See, quent entry of a final order. Aetna 139, Huntington, 198 W.Va. 479 S.E.2d 649 Casualty Surety Company & v. Federal Insur (1996) ("The ultimate determination of whether York, 160, Company [148 ance New W.Va. qualified statutory immunity or bars civil ac- (1963)]; Refining 133 S.E.2d 770 Sinclair tion is one of law for court to determine. Stevens, (8th Company v. 123 F.2d 186 Cir. Therefore, dispute unless there is a bona fide as 1941), den., cert. 315 U.S. S.Ct. 62 86 to the foundational or historical facts under- (1942). L.Ed. 1203 determination, immunity lie the the ultimate 754, 759, Wilfong Wilfong, questions statutory qualified immunity or (1973). See also Adkins v. Chev- ripe summary disposition.”). for USA, ron, Inc., 518, 522, 485 S.E.2d (1997) curiam) ("We (per review de Regarding appeal of the denial of a motion for summary novo both the denial of the for motion summary judgment, we have held: judgment and the denial of the directed ver- dict.”); Wells, City Nat'l Bank Charleston v. denying summary "An order a motion for 763, 768, (1989) judgment merely interlocutory, leaves the trial, (addressing stating pending appeal, appealable case for without standard and is not review, except special appellant’s instances in which an inter- claim that trial court erred locutory appealable.” Syllabus denying summary judgment). order is Point motion for Moreover, § taking. they assert that 61-12- Having appropriate forth the standard set issue, application to Elmer reviewing 10 has no Coleman’s we turn now to the autopsy by it was authorized his wife. Sopher merits of claimed error. Finally, argue purpose the Colemans that the that, argues appointee as an of the director autopsy performed on Elmer Coleman Department salary of Health whose to a determination of the cause of was limited funds, by public paid public he is a official and, thus, language Elmer’s death immunity pursuant qualified entitled to 16^£B-1, § permitting autopsy per- an to be Dunn, holding in this Court’s Clark v. science,” formed “in the interest of medical Sopher 465 S.E.2d 374 W.Va. similarly limited in this instance to should be by immunity asserts that he is shielded as he inquiry into the cause of death. scope authority, acting within the of his 61-12-10,4 § under W. Va.Code to retain tis- We find that the circuit court cor consideration, and, study sue for further rectly Sopher was not enti determined further, because he did not violate clear- law, qualified immunity, tled to as a matter of ly right of established the Colemans’. against respect with to the claims asserted addition, Sopher submits that he is entitled recently him in this action.6 We restated the § immunity under W. Va.Code 16-4B-1.5 immunity determining qualified standard for Dunn, syllabus point 3 of Clark v. respond by asserting Colemans (1995), ease qualified immunity is not entitled to relies: scope because his actions of his exceeded Moreover, authority. note Colemans public acting “A executive official who is public qualified that a official is entitled to scope authority and is not within immunity negligence, they Va.Code, whereas by provisions covered of W. alleged 29-12A-1, the commission of intentional torts. seq. et West Gov- [the Additionally, argue the Colemans that So- ernmental Tort Claims and Insurance Re- Act],7 pher immunity claim qualified cannot under W. Va. form is entitled to immu- § taking nity personal liability 61-12-10 unless he admits acts Code for official purpose the heart and identifies the for the the involved conduct did not violate if 1997) (Repl.Vol. any person § 4. W. Va.Code 61-12-10 In case of the death of part: Virginia, attending physician, states in relevant West State of none, any physician, if he deems opinion or if there be If in the of the chief medical exam- science, iner, county it advisable in the interest of medical or of the medical examiner of the occurred, question may perform performed in which the death in it or cause to be public body person autopsy advisable and in the interest that an deceased on the such made, therefor, autopsy autopsy requested liability provided or if an be without consent by prosecuting attorney judge or the either the autopsy such is first obtained.... of the circuit court or other court of record having jurisdiction county, criminal in such immunity giv- 6. Whether was entitled autopsy by shall be made the chief medi- question particular en the facts of this case was examiner, staff, cal a member of his properly jury. that was determined competent pathologist the medi- such as chief designate employ pur- cal examiner shall and Virginia 7. West Governmental Tort Claims provisions A suant to the of this article.... political applies and Insurance Reform Act report findings full record and of the devel- The office of medical examina- subdivisions. oped by autopsy be filed with the the shall tions, operated supervision under the control and by person office of medical examinations Health, Department of is a of the director of the making autopsy. the agency political state and not a subdivision. Thus, Examiner, employ- as an the Chief Medical Any person performing autopsy pursu- ... state, employee of a ee of the rather than an authority of this section shall be ant to the empowered subdivision, political public official is a executive retain, keep and for and on Tort Claims and In- to whom the Governmental examiner, any the chief medical tis- behalf of apply. not See W. surance Reform Act does body autopsy sue from the which the 1992) 29-12A-3(c) (1986) (Repl.Vol. § Va.Code performed necessary for further be subdivision”); (defining "political W. Va.Code study or consideration. "State"); 29-12A-3(e) (defining § W. Va. and (1977) 1997) (establish- 1995) (1972) (Repl.Vol. (Repl.Vol. § Code 61-12-3 5. W. 16-4B-1 Va.Code examinations). ing part: office of medical states in relevant 596 “[tjhere clearly immunity laws which established a reason- is no for an executive malicious,

able have fraudulent, would known. There is official whose acts are official immunity no for an executive officialwhose or oppressive.” otherwise Id. We find that fraudulent, malicious, acts are or otherwise Sopher’s immunity fails under the threshold oppressive. the extent that To State ex portion of this test. rel. Bank Boone National Madison v. Sopher argues first that he was act Manns, 126 W.Va. S.E.2d ing authority within his under W. Va.Code (1944), contrary, Sylla- it is is overruled.” § disagree. 61-12-10.9 We W. Va.Code bus, Securities, Inc., State v. Chase (1988) § (Repl.Vol.1997) (1992). provides 61-12-10 autopsy may performed that an be “[i]f added) (footnote added).8 (Emphasis opinion examiner, of the chief medical or of portion presents first of this test the thresh- county of the medical examiner in which question public old of whether official was occurred, question the death in it is advisable acting scope within the of his or her authori- text, public and interest.” From this ty. inquiry affirmatively, If answered this is it is not clear chief how the medical examiner and the official covered is not the West particular would of a come to know death

Virginia Tort Governmental Claims and In- order to form Act, opinion as to whether an inquiry surance proceeds Reform autopsy public would be “advisable and in determination of whether officialviolat- However, “clearly ed interest.” this established laws of which a section must rea- be pari sonable official have read in with § would known.” Id. Fi- W. Va.Code 61- materia (1963) nally, by recognizing (Repl.Vol.1997).10 this standard concludes 12-8 Viewing these Dunn, 8.Syllabus law, point Clark departs previous 3 of v. sion substantive (1995), principle greater limiting S.E.2d 374 restated a retroactivity. the need for Fi- syllabus first set Court in forth the sole nally, precedent also Court will look to the Securities, Inc., point of State v. Chase of other courts which have determined the (1992). 424 S.E.2d 591 State v. Chase was question retroactive/prospective in the same shortly decided after the of this case. The overruling area of the law in their decisions. applicability Colemans do not contest We have instance, and, fact, Chase standard in this Bradley considered the criteria and find that our applied it in an effort to show that is not holding may properly applied in Chase However, immunity entitled to he claims. judice. engage case sub Vie decline to in a holding because the Chase did not exist at the protracted retroactivity of this discussion issue as acts, Sopher's time necessary we deem it However, parties. it was not raised applicability consider its to this case. The test conclusion, reaching following our we found the determining retroactivity whether extend (1) particularly compelling: factors the fact that syllabus point Bradley stated in Appala 5 of regarding public there scant West law chian Power Co.: (2) immunity; substantially official Chase did law, change existing simplified the law in determining whether to extend full retro- respects; qualified some immunity activity, following factors are to be consid- First, addressed in Chase creature of common law. ered: the nature substantive issue overruled must be determined. If the issue supra 9. See law, note 4 the text traditionally of W. Va.Code involves a settled area of § 61-12-10. property distinguished such as contracts or torts, clearly from foreshadowed, new rule was not retroactivity justi- then is less portions § The relevant of W. Va.Code 61-12- Second, fied. where overruled decision (1963) (Repl.Vol.1997) state: procedural deals with law rather than substan- any person When shall die in this State from tive, ordinarily retroactivity will be more readi- violence, suicide, by apparent suddenly Third, ly decisions, accorded. common law health, apparent good when in or when unat- overruled, may when overruling result in the by physician, tended or when an inmate of a effect, being given decision retroactive since public hospitalized institution not therein for usually the substantive issue has a narrower disease, organic or from some impact disease which likely parties. and to involve fewer health, might Fourth, where, hand, public constitute a threat or in on the other substantial involved, any manner, suspicious, public or arising unusual unnatural issues are from statuto- ty interpretations county or the medical repre- constitutional examiner in which departure prior precedent, immediately sent a such death shall be clear from occurs noti- attendance, prospective application by ordinarily physician by any will fied be fa- Fifth, radically vored. having knowledge more new deci- law-enforcement officer of together, apparent body microscopic it two sections becomes or other examination suspicious reported must be analysis. deaths and the medical examiner for a determination of I, (we), requests in consideration of such investigation necessary to whether further performance post-mortem and of such ex- activity might whether criminal be ascertain amination, hereby do forever release and implicated respect particular with to a death. discharge Montgomery Hospi- General provide These sections also for the medical tal, staff, agents repre- and the medical or preserve might examiner to evidence that be it, them, any sentatives of or either of needed in a future criminal trial. El While liability any all and of nature whatsoever may very mer Coleman’s sudden death well joint performed for their or several acts triggered application of these sec pursuance request or consent. of tions, presented there was no evidence dur added). (Emphasis ing the trial of this case to indicate that the To determine whether act provisions therein contained were followed. authority agreement, ed within his under this evidence, the absence of such immunity provid which would entitle him to rely provide on those sections to authori ed that the other elements of Chase test ty for his actions. met, we must discern the nature and implicating provisions Evidence scope authority of his from the terms of the (1972) (Repl.Vol. § W. Va.Code 16-4B-1 agreement, possible. carrying if out this 1995),11Sopher’s second claimed source of analysis, give we must strive to effect to the authority, similarly absent from trial. parties agreement. intent of the With testimony establishing There was no that an respect application to the construction or of a attending physician or other it considered contract, held, generally: we have “advisable in the interest of medical science” express- “A valid written instrument which autopsy performed that an on Elmer parties plain es the intent of the and body. Coleman’s unambiguous language subject is not judicial interpretation construction or but only the record es applied according will be and enforced tablishing Sopher’s authority perform Cotiga Development such intent.” v.Co. autopsy body on Elmer Coleman’s was the Co., United Fuel Gas “CONSENT TO AUTOPSY” executed (1962),Syllabus S.E.2d 626 Point Mary Coleman. The consent read as follows: I, (we), Dove, Syl. pt. standing relationship El- Bennett v. (1981). Coleman, being Elaborating

mer and 277 S.E.2d 617 on this [sic] the next of kin, hereby general principle, explained: request do and we have authorize the “ 'performance post-mortem examina- right province ‘It is not the or of a Coleman, body tion Elmer now alter, destroy pervert court to or the clear deceased; per- said examination to be meaning parties and intent of the as ex- by, any formed or under the direction of pressed unambiguous language in their member of the Staff or other authorized written contract or to make a new or dif- agent Montgomery Hospital. General Cotiga Develop- ferent contract for them.’ Co., I, (we), hospital do further said ment Co. v. Fuel Gas authorize United (1962), agents representatives, Syllabus or its to do all W.Va. Dove, Syllabus procedures necessary proper, including or Point 3.” Point Bennett v. organs parts the removal said death, director, records, the funeral office and that of the chief medical such any person present.... Upon receipt copy other examiner and should deliver another notice, prosecuting attorney the medical examiner shall take of such thereof to charge body, inquiries county, attorney any of the dead re- make and to of record in death, garding proceedings the cause and manner of reduce criminal or civil action wherein findings writing, promptly make a the cause of death is an issue. report full thereof to the chief medical examin- prescribed purpose, supra W. Va.Code er for such re- 11. See note 5 for the text of on forms taining copy report § one of such for his own 16-4B-1. Police, 1,

Syl. Lodge language mortem examination. This is addi- pt. Fraternal Order of Fairmont, 97, that, tionally ambiguous in without an identi- City 69 v. 196 W.Va. No. (1996). However, examination, scope post-mortem when a fied for the 468 S.E.2d subject “necessary proper” meaning- ambiguous, phrase it is to con- or contract is explained: particular may “necessary A act or struction. We have less. be proper” purpose, yet unnecessary for one “ambiguity” The term is defined as lan- improper Finally, or for another. the third “reasonably guage susceptible of two dif- paragraph Montgomery states that General meanings” language “of ferent or Hospital agents and its are released from meaning that doubtful reasonable minds liability “performed pursuance in for acts might disagree be uncertain or as to its request impossible or consent.” It is 1, Syl. part, meaning[.]” pt. in Shamblin verify particular pur- “in whether a act was Co., v. Nationwide Mut. Ins. 175 W.Va. consent,” “request suance” of a or when the (1985). 337, requested thing or consented to is unknown. Weston, 507, 502, Payne v. 195 W.Va. Because the contract does not indicate the 161, 166 See also Williams v. S.E.2d specific purpose scope post-mortem of the Coil, Inc., 52, 23, Precision 65 n. examination, the extent of the release from (1995) (“A 342 n. 23 contract liability “performed pursuance for acts in reasonably ambiguous suscepti- when it is request clearly [the] or consent” is not artic- meaning light in ble to more than one ulated. surrounding apply- circumstances and after construction.”). ing the established rules Having found TO “CONSENT .the ambiguous, AUTOPSY” is we must endeavor for the stat- With due consideration above it construe to enforce the intent of the principles, ed we find the “CONSENT TO parties give meaning and to to the entire agreement Mary AUTOPSY” between Cole- Syl. pt. contract. See Columbia Gas Montgomery Hospital man and General Corp. Transmission v. E.I. du Pont de ambiguous. paragraph requests The first Co., Nemours& S.E.2d 919 post-mortem and authorizes “a examination” (“In (1975) construing ambiguous an con identifying agreed upon purpose without tract, well-recognized three rules of construc Thus, for the examination. we not do know (1) require: tion the intentions of the if the examination was intended: re- parties agreement must control the science; purposes search to further medical (2) thereunder; obligations searching death; general to determine the cause of contracting parties, for the intentions of particular determine whether condition ex- court must examine the instrument its isted; particular to determine whether a con- entirety; and are words to be consid dition, existed, any way if it contributed in emp they ered the context subject examination; death of loyed.”).12 parties’ determine To inten purpose or for other we have not herein contract, construing ambiguous tion when words, contemplated. scope other may parol resort to extrinsic or evidence: the authorization is not indicated. The sec- “ n “Extrinsic paragraph “hospital ond then authorizes the be used to agents ... procedures or its to do all neces- aid the construction of a contract if the sary proper,” apparently, though spe- controversy clearly matter in is not ex- stated, cifically contract, post- pressed furtherance of the and in such case Police, Lodge ambiguous posed 12. See also Fraternal Order No. on the words to reveal Fairmont, intent.”); City parties’ Syllabus, 69 v. 101 n. discerned Henderson (1996) ("If Co., inquiring 716 n. 7 Dev. Co. United Fuel Gas (1939) ("The ambiguity primary court concludes that an in a S.E.2d 217 consideration exists contract, typically the ultimate resolution of it in the construction of a contract is the intention parties' Exploring parties. gathered will turn on the intent. This intention must be often, instrument, contracting parties intent of the but not from an examination of the whole construed, always, marshaling possible, involves facts extrinsic to the which should be so if as to word, language give meaning every phrase of the contract document. When this and clause arises, together provisions need these facts with reasonable and also render all its consistent and harmonious.”). superim- inferences extractable therefrom are parties always of the im intention Common sense dictates that a medical ex- may portant parol and the court consider performing post-mortem aminer examina- evidence in connection therewith with re required tion for the benefit another is gard objects and keep conditions relative to gen- records the examination and to involved_” Syl. the matter Pt. type report erate some findings Berkeley Pub. Corp., (1988) Co. Ser. Dist. v. Vitro § the exam. W. Va.Code 61-12-10 Cf. (1968) [252], Vol.1997) 152 W.Va. [162 ].[’] S.E.2d 189 (Repl (providing that the office of Syllabus Point International Nickel Co. “full, medical keep complete, examinations Corp., v. Commonwealth Gas properly and indexed records of all deaths (1968).” Syllabus investigated,” “[c]opies and that of such rec- Bittorf, Point “furnished, upon request, any ords” be Bittorf v. 390 S.E.2d 793 party to whom the cause of death is a materi- issue”). Martin, Syl. pt. al respon- Martin v. Commensurate with this curiam). sibility duty (per produce is the accurate and reliable reports. Sopher’s records and thoroughly After reviewing the record “POST-MORTEM EXAMINATION FIND- case, only we found the source of evi- INGS,” indicated that “the heart [was] not indicating parties’ dence intent with re- During testimony, Sopher removed.” at- spect to the “CONSENT TO AUTOPSY” reliability accuracy tested to the of this Mary was testimony.13 Mary’s Coleman’s report. report The comment in the that the that, testimony shortly indicated after she reasonably heart was not can removed death, was hospital per- informed of Elmer’s interpreted to mean that removal of the her, elaboration, sonnel asked without if she “necessary heart was not proper,” in fur- autopsy performed wanted on her hus- examination, and, thus, therance of the consulting band. After with her father-in- not authorized law, “CONSENT TO AU- Mary request autopsy decided to 16 Consequently, Sopher, TOPSY.” as an order determine whether Elmer suffered agent Montgomery Hospital, General years working OP as a result of his liability removing released from for in coal upon mines.14 Based this uncontro- heart evidence, agreement under the terms of the since verted we conclude that the intend- removal of heart purpose “per- was not an act post-mortem ed for the examination in pursuance request formed of [the] was to or con- determine whether Elmer Coleman sent,” by Sopher’s report. as evidenced own purposes suffered from OP.15For of immuni- ty, question authority Since did not then to re- becomes whether the heart, Sopher’s removal of move Elmer Coleman’s he is Elmer’s heart was within not enti- authority pursuant qualified immunity alleg- to a tled to from a “CONSENT TO suit AU- ing agreement damages TOPSY” pur- entered into for the incurred from such removal. pose Therefore, determining correctly whether Elmer Coleman the circuit court denied suffered from Sopher’s summary judgment OP. We find that removal of motion for as- authority. the heart serting qualified immunity. exceeded this specif- 13. parties Because failed to articulate the 15. Determination of the to a intent occurred, stage ic of trial at which this error typically question contract creates a of fact to be liberty Court is at to consider evidence con- However, jury. determined because the upon tained in the record. The evidence uncontroverted, rely which we decision, we base our which was adduced question there is no of fact. through Mary testimony, Coleman’s trial could have been inferred the trial court from the Sopher’s report 16. If had indicated that removal record as it existed at the time the court ruled on procedure "necessary heart was that was summary judgement. motion for We proper” post-mortem in furtherance of the Mary testimony choose to utilize Coleman’s trial examination conducted to determine whether El- clearly because it more articulates the evidence OP, mer Coleman suffered from he would have simplifies our discussion. acting authority been within his under occupational pneumo- If Elmer suffered from "organs “CONSENT TO AUTOPSY” to remove death, Mary coniosis and it contributed to his parts body microscopic of said or other eligible and her children have been analysis.” examination and Compensation Workers' survivor’s benefits. objection, testimony Sopher previously that he had Having is not enti- determined immunity during autop- for the removal of Elmer tled to donated brain tissue obtained heart, the removal was Coleman’s because University sies to Marshall Medical School authority, scope we need outside the of his providing without notice to the decedents’ remaining proceed analysis of the to an family Sopher that this members. contends elements of the Chase test for determining have been excluded under evidence should However, qualified immunity. Sopher has 404(b), West Rule of Evidence question of whether there is a raised Spe- implicates Rules 402 and 403. also clearly recognized property interest cifically, Sopher complains that thé evidence body. organs internal of a deceased This “only prove Sopher’s character tended to issue relates to the element of the Chase test conformity propensity and his to act in there- that, eligible immunity, requiring to be for addition, challenges In with.” he the trial public “clearly official must not violate a es- perform balancing court’s failure to test law[ tablished of which reasonable official ] McGinnis, required by State v. Sopher’s response have known.” In would (1994), and Rule 403 to S.E.2d inquiry, briefly we will address this issue. probative of the determine whether value Highland Memory Gar Whitehair substantially outweighed by evidence was dens, Inc., 458, 460-61, danger prejudice. of unfair Before address- (1985), 440-41 we observed that “[i]n contentions, ing Sopher’s the merits of country, where we have no ecclesiastical must determine whether these issues are courts, long recognized ‘quasi- the law has properly before us. property1 right in the survivors to control the disposition aof loved one’s remains.”17 We conference, pre-trial At a counsel for So- further observed: pher moved in limine for the exclusion of quasi-property rights of the survivors regarding the donation of brain tis- right custody body;

include the of the However, sue. the record contains no writ- receive it the condition which it was ten motion for the exclusion of this evidence. mutilation; left, body without to have the addition, transcript pre-trial respect, treated with decent out- without hearing Sopher’s wherein oral motion was thereto; rage indignity bury and to specific complaint discussed fails to reveal his dispose body otherwise in- without regarding this evidence.18 After a brief dis- terference. evidence, regarding cussion the nature of the (citations Id. at 327 S.E.2d at 441 omit- the trial court ruled it would be admit- ted). ted. The record indicates that the court testimony rep- admitted this based We note that the facts a case such as resentations of counsel for the presently Colemans. implicate the one before us represented challenged Counsel that the evi- quasi-prop- least two of the above-described erty allegations rights in a loved dence was connected to the in this one’s remains. Never- theless, because we have determined that case in that both occurred at about the same Sopher’s scope time, bodily actions exceeded the of his and both involved the removal of authority, legitimate Thereafter, trial, we decline to address during tissue. the Cole- property further a relative’s interest ques- mans called as a witness and organs internal decedent. regarding past his/her him tioned donations of testimony, brain tissue. In the course of this Prejudicial

B. Testimony objections per- counsel made two taining argues particular question to the form of the next that the circuit court by admitting, being objection abused its discretion over his asked and one additional history Apparently, 17. For a detailed discussion of the motion was made at a time interest, development quasi-property of this see proceedings being when the were not recorded. Palmer, Jr., Capital J. Louis Punishment: A Utili- Proposal Recycling Transplantable tarian Or- Sentence, gans Capital as Part Felon's Death 29 U. West L.A.L.Rev. 201 raise, vintage, ancient and it is for this rule is of relevancy. failed to Because premised calling on the notion record, specific errors he now on the error to the trial court’s attention affords asserts, errors were we deem problem be- opportunity to correct waived. irreparable There fore harm occurs. objections Timely specific salutary justification equally also an 103(a)19 required under Rule of the West prevents party the raise or waive rule: It Evidence, Virginia and Rule 46 of Rules of making from a tactical decision to refrain Virginia Procedure.20 the West Rules of Civil and, objecting subsequently, should addition, repeatedly held that In we have (or sour, assigning error the case turn objections shown to have were not “[w]here worse, planting an nurtur- even error and court, in trial and the matters been made ing guarantee against as a a bad the seed jurisdictional in charac concerned were not result). end, contemporaneous In the ter, objections will not be considered on objection important requirement serves an 1, appeal.” Syl. pt. Road v. State Comm’n purpose promoting the balanced and 742, 137 206 Ferguson, 148 W.Va. S.E.2d orderly functioning sys- of our adversarial (1964). 2, Syl. pt. Maples also v. West See justice. tem of Commerce, 318, Virginia Dep’t 197 W.Va. 613, 294, 316, 635 196 W.Va. 470 S.E.2d (1996) 1, (quoting Syl. pt. 475 410 S.E.2d Elaborating principal, Ferguson). on this Sopher indicates that While the record objection explained have that an to evi we presented a in limine for the exclu motion timely specific and in order to dence must be of, complained sion of the evidence herein opportunity give the trial court an to address specific that the chal record fails to establish action the issue at a time when corrective lenges presented to or ad now raised were LaRock, may taken. v. we ex be State Thus, dressed the court below. pounded: alleged preserve to these errors. See failed consistently have demonstrated Our cases Found., v. Marion Health Care Tennant that, general, the law ministers to the 374, Inc., 97, 114, 391 194 W.Va. 459 S.E.2d vigilant, sleep not to those who on their (1995) (“[T]he complaining appeal on party Recently, rights. we stated State ex rel. respon sole the admission of evidence bears 208, 216, Cooper Caperton, v. preserving the record sibility adequately for (1996): 162, rule in review.”). “The S.E.2d meaningful appellate See also for speak parties must Freeman, West 3, Syl. pt. Hudgins v. Crowder & that, court, (1972) pain if clearly Inc., in the circuit 191 S.E.2d lines, (“Courts they likely they forget speak only by will be their their of record can (Cita- records, appear peace.” what does not so does bound forever to hold their law.”). omitted). Because these issues are him- not exist litigant deems tion When record, to .in the we decline not reflected by what or she aggrieved self or herself he appeal. them on consider important occurrence considers to be ruling an erroneous the course of a trial or Damages Punitive C. court, ordinarily must a trial he or she object right argues that the circuit court then and there or forfeit also jury, his ob- improperly instructed the over pedigree time. The complain at a later 103(a) rulings exceptions or orders Formal 19. W. Va. R. Evid. states: unnecessary; purposes but for all court are (a) predicated upon not be ... Error exception has heretofore been neces- which an ruling un- which admits or excludes evidence party, sary that a at the time the it is sufficient affected, right party less a substantial sought, ruling made or or order of the court is the action which he makes known to the court ruling admitting ... In case the is one objection take or his desires the court to evidence, timely objection or motion to strike therefor; grounds action of the court and, record, specific ground appears stating the object party opportunity to to a if a has no objection, specific ground was not if the made, ruling it is or order at the time apparent context[.] from the objection thereafter of an does not absence prejudice him. W. R. Civ. P. 46 states: Va. (1996). However, punitive damages W.Va. could award jection, that it “ ‘ contends, recognized instruction “[a]n as he did we have in this action. trial, damage no evi punitive given instruction when there is should not given theory upon as it tending prove been dence should not Before Syl. pt. the evidence. unsupported the instruction based.” merits, argument on the addressing Sopher’s Lodge Moose Berkeley Springs v. Hovermale we will consider appropriate standard No. ^[165] W. Va. [689], grant reviewing Smith, a trial court’s decision (1980).’ point Syllabus Jenrett jury instruction based particular (1983).” refuse a Syl. present- sufficiency the evidence pt. Maples. standard, addressing this at trial. ed To determine whether a degree evi- necessarily discuss will giving court has abused its discretion support giving of a required dence refusing give instruction that has been to However, we note at particular instruction. sufficiency challenged on of the evidence is limited to outset that our discussion the degree the of grounds, we must consider required degree of evidence addressing the necessary support giving of a evidence to giving particular a instruc- support to jury previ particular instruction. We have Sopher jury. has not raised tion to the ously explained that: pre- separate issue of whether the “1 support to at trial was sufficient sented tending some “If there be evidence in ultimately resulted from

jury verdict which theory appreciable degree support to the instruction. instructions, it is not error to proposed give jury, though such instructions to the are afforded broad Trial courts slight, insufficient the evidence be or even formulating jury in instructions. discretion entirely support to a verdict based on such Guthrie, 4, Syl. pt. State v. 194 W.Va. See 2, Syllabus v. theory.” Point Snedeker 657, (holding, part, in 163 461 S.E.2d (1911).’ 223, Rulong, 180 69 W.Va. 71 S.E. in ... has broad discretion trial court “[a] 4, MacQueen, Syllabus Point v. 180 Catlett charge jury, long formulating its to the so as (1988).” 6, Syllabus W.Va. 375 S.E.2d 184 law”). accurately charge reflects the Buracker, 39, 6, point Wilt v. 191 W.Va. justify to “Whether facts are sufficient denied, (1993), 196 cert. 511 443 S.E.2d particular delivery a instruction is re 1129, 2137, 114 867 U.S. S.Ct. 128 L.Ed.2d by viewed this Court under abuse (1994). 12, Syl. pt. part, in discretion standard.” Derr, 165, v. 192 W.Va. 451 S.E.2d 731 State 3, Syl. pt. Craighead v. & Western Norfolk (1994). Guthrie, v. See also State 194 W.Va. Co., 271, Ry. 475 197 W.Va. S.E.2d 363 12, n. 12. at 671 n. 461 S.E.2d 177 More (1996).21 “ over, presumed upon review will be ‘[i]t hand, Turning to the issue at correctly giving or that a trial court acted pre there was sufficient evidence whether give jury, refusing instructions to the punitive support an instruction on sented appears from the record in the ease unless it damages, we note that this court has held: given prejudicially that the instructions were exemplary damages “Punitive or erroneous or that the instructions refused as, case, jury may proper in a a allow given.’ were correct and should have been 1, Turner, against by way punish- Syllabus the defendant point v. 137 W.Va. State (1952).” wilfulness, wantonness, malice, 122, 5, Syl. ment for or pt. Ma 70 S.E.2d Commerce, aggravation wrong Virginia Dep’t v. other like of his ples West that, urges punitive Clecldey presented Sopher observed that “the evidence context of damages, convincing plaintiffs was clear cut. The in these two cases there must be clear cut and convincingly prove misrep- support jury sup- definite evidence to instruction. were able to contention, Sopher respective port v. defendants.” Jus- of this cites Michael resentations Sabado, 585, 419, Cleckley's about two tice observations those dicta, (1994). portion cases are and do not establish a new stan- of Sabado referred to requiring convincing Sopher clear and evidence to contains the Court’s discussion of two dard damages. appellant support jury punitive case. Justice instructions on cases cited that plaintiff, compensation thought gave over above full he and stated that it he injuries directly indirectly for all or result- Combs-Pennington to be returned to the ing wrong.” Syllabus body. from such Point This evidence creates a reasonable Snodgrass, O’Brien v. inference that removed the heart and (1941). S.E.2d 621 attempted taking. then conceal Addi- above, tionally, explained as we did Syl. Bank, pt. v. Harless First Nat’l authority not have the remove heart in (1982). We have instance, necessary it was not “[pjunitive damage also stated that instruc particular autopsy. furtherance of this We only legitimate tions are there where is evi foregoing believe the evidence was sufficient wanton, that a dence defendant acted with support punitive willful, instruction on or reckless conduct or criminal indif Therefore, damages.22 the cir- obligations find that affecting ference to civil court rights appear cuit did not abuse its legis of others to discretion or where the Syl. giving punitive damage lature pt. so authorizes.” Michael instruction. Sabado, S.E.2d 419 D. Judge Hatcher’s Reconsideration argues the Colemans Judge Abbot’s Award willfully submitted no evidence that he Damages New Trial on

wantonly injured caused Colemans to be willful, he acted with reckless indif Finally, Sopher Judge contends disregard ference and of the Colemans’ Judge Hatcher in reconsidering erred Ab- rights. continues, Consequently, Sopher the rulings Sopher’s post-trial bot’s on motions giving punitive damages court erred in a a argues for new trial remittitur. Sopher or disagree. instruction. We given Judge that deference should be to Ab- because, rulings judge, bot’s as the trial he The evidence in this case re position a weigh better to the evidence Sopher’s report vealed that autopsy credibility and assess performed the of the witnesses.23 specifically on Elmer Coleman Moreover, argues Sopher he stated that heart that was enti- [was] “the not removed.” However, damages tled to a new trial on strongly suggested the evidence because the was in verdict that the heart fact was excessive. The Colemans removed. that, respond Hansbarger identify Judge was unable to or find because Abbot’s order during subsequent autopsy. granting the heart In damages a new trial on the issue of addition, Mary any provide findings Coleman that failed to testified of fact or con- heart, law, admitted to her that he removed the clusions of it was not entitled to defer- "punitive damages Sopher's 22. We also note that serve We find that our reliance on decision purposes. Among primary several the ones are: misplaced. in Coleman 1 is That decision ad- (1) defendant; (2) punish to deter to others jurisdiction dresses this Court's to review a lower and, course; (3) pursuing pro- a similar to Syllabus point court’s award of a new trial. In compensation egregious vide additional for the of Coleman we held: plaintiff subject- conduct to which been has agrees party requests When a to or a new Fairmont, ed.” Harless v. First Nat. Bank in trial, granted trial is and a new because of the 673, 691, W.Va. 289 S.E.2d agreement request, appellate a denial of " Furthermore, damages] encourage ‘[Punitive a justified ground party review is on the plaintiff bring might to he action where be accept has elected to new trial should discouraged by the cost of the action bound, party be as if had entered a settle- proceeding.... a inconvenience of criminal agreement forego appeal ment the order [They provide personal also] substitute for re- granting a trial. " new wronged venge by party.’ at 169 n. Id. added). (Emphasis Cleckley Justice commented (citations omitted). 289 S.E.2d at n. 17 regard: "Allowing plaintiffs appeal in this purpose. this narrow issue would serve no useful Judge 23. also contends that Hatcher successful, victory plaintiffs Even if the are Judge should not have reconsidered Abbot's rul- merely get they already would that to which are ing on remittitur because the Colemans’ election parties new which have entitled—a trial—to both accept damages trial on should new be contention, already agreed.” Id. at binding. support of In holding address now previous appeal Coleman 1 did not the issue before relies on our us, may judge Sopher, this case. v. which is whether a successor re- See Coleman ruling predecessor. [hereinafter S.E.2d 367 Coleman 1 visit an earlier of his or ]. her rulings. apply their we addition, Judge standard of review they assert In ence. authority Judge Ab- to rescind v. Marion Syllabus point had 1 of Tennant Hatcher Judge find no error We Foundation, Inc., bot’s decision. held: Health Care Hatcher’s actions. judge properly as- Once a successor Virginia Rules 63 of the West Rule the West pursuant to Rule 63 of signed the duties Procedure addresses of Civil Procedure and Rule of Civil Rules by a successor may performed Virginia Trial Court the West XVII of judge unable original trial judge when Record, his or Rules for Trial Courts partic through of a preside the conclusion reviewed judgment is to be her decision or case, and states: ular standard appeal under same sickness, death, or other If reason of decision applied to the would have been an action disability, judge before whom judge. To do otherwise original perform unable to tried is has been justice. disrupt the administration would by the court under performed to be duties prior that our cases To the extent returned ... a verdict is these rules after decision, they are inconsistent with sitting in the any judge ... successor then expressly overruled. the action was tried court which those duties. perform added).24 fact that we (emphasis Id. added). language of this rule (Emphasis of review to deci- apply the same standard authority judge grants to a successor broad judge by a as we would sions made successor duty that could been perform suggests predecessor her to those of his or judge. predecessor performed au- judge has the same that the successor Foundation, Health Care Tennant Marion predeces- or her thority to act as would his Inc., Cleckley, quoting from Moore’s Justice that, Thus, generally we hold when sor. Practice, observed that: Federal assigned pursu- judge properly successor may perform any judge action “the new Virginia Rules of Rule 63 of the West ant to judge have taken had the first could which Procedure, judge steps disabled_ such successor Civil the tran- [I]f he not become and, predecessor or her into the shoes of his sufficient, proceedings is he script of the any transcript proceedings is may upon post-trial motions when the also rule by parties, including a motion for sufficient, any made take action that such a for a new judgment n.o.v. or motion taken, predecessor may properly have either Moore, Moore’s Feder- trial.” James Wm. sponte,25 Accord upon proper motion or sua ¶ (1995). at 63-10 al Practice 63 Bros., Gypsum v. States Co. Schiavo United 374, 97, 105, 459 382 194 S.E.2d (3d Cir.1981) W.Va. 172, Inc., 176 668 F.2d (“[W]here by judge a is asked successor authority afforded The broad timely proper motion to reconsider and judges is also evidenced successor by jury. Consequently, ously we Cleckley qualified holding determined this in foot- 24. Justice Care, v. Health which this limitation to a successor note 3 of Tennant Marion states, need not address part: authority. in judge’s motions, deciding recognize post-trial we exception general that a successor not without limitation. to the rule 25. This rule is one prede- judge steps completely her supra into his or note 24. See purely one cessor's shoes. When the issue judge while a successor has We also note that previously of fact that was determined prede- authority perform any act that the to judge’s powers jury, to alter or the successor performed, judge whether or cessor could have Therefore, limited. [sic] limit the verdict is judge exercise that au- the successor should judge a a successor alters or amends when thority discretion. With is within his or her determination under these circum- factual commented, Cleckley respect Rule Justice to stances, give required def- this Court is not to "Once cho- v. Marion Health Care: in Tennant sen, judge’s the successor determination. erence to judge given a broad discretion successor (D.C.Cir. Sawyer, Thompson 678 F.2d 257 properly determining can whether he or she in 1982). remaining perform duties in a trial in n. 3 W.Va. at 105 n. 459 S.E.2d at 382 194 Here, preside.” 194 W.Va. at added). he or she did not (emphasis addressed issue previ- S.E.2d at 381. Judge 459 Hatcher was not an issue that was legal predeces- Judge authority, light conclusions of an unavailable Hatcher had the sor, empowered he or to case, she is reconsider complete record available those issues to the extent that his or same ruling. reconsider the earlier have.”); predecessor City, her could Golf Goods, Co., Inc., Inc. v. Sporting Wilson Having Judge determined that (5th Cir.1977) (noting n. 20 F.2d authority Hatcher had the to reconsider judge may findings new successor make Judge rulings, Abbot’s earlier we must now existing fact and on conclusions of law rec- whether determine he erred his conclu ord). previously sions reconsideration. As judice, Judge In the sub case stated, Judge Hatcher’s actions reviewed granted damages. Abbot on new trial That apply under the same we would standard alive, thus, ruling and, kept the action would rulings Here, original judge. trial permitted Judge Abbot to reconsider Sopher complains Judge rulings Hatcher’s ruling on motion for a new trial on his motion for a trial or new remittitur. had he seen fit to do so. See Coleman v. typically Remittitur arises connection with 94-95, Sopher, W.Va. trial,27 a motion for a it new did (1995) (observing that 371-72 “the order Consequently, case. will we consider these granting the motion for a new defendant’s together apply issues the standard for trial, ease, ending far from requires both reviewing ruling a trial court’s on a motion go parties damage forth issue for new trial to our consideration. again”). action, ongoing In an judge trial general proposition, As a authority we review a cir- has the to reconsider his or her rulings, including rulings cuit previous an court’s on a motion for a granting order new a new trial. “An granting order a new trial under an abuse of discretion standard. interlocutory destroys finality Building re State Public Asbestos Liti- judgment. ple court [a trial] Since has gation, 193 W.Va. S.E.2d 413 reconsider, nary power revise, alter, (1994).... Thus, reviewing challenges order, interlocutory amend the court has findings rulings made a circuit power respect to take action with court, apply two-pronged deferential granting order a new trial.” 12 James rulings standard of review the review. We al., Practice, Moore et Wm. Moore’s Federal concerning of the circuit court a new trial (3d (footnotes ed.1997) omitted). § 59.43[1] and its conclusion as to the existence of Caldwell, 61, 63, Caldwell v. See reversible error abuse of under an discre- 688, (1986) (discussing gener 350 S.E.2d 690 standard, tion review the and we circuit interlocutory rule that al orders are left to underlying findings court’s factual under a court). plenary power the trial of the See clearly Questions erroneous standard. Co., also Gallimore v. R.R. Missouri Pacific subject law are to a de novo review. Cir.1981) (5th F.2d (quoting 635 1171 Care, Tennant v. Marion Health Practice, holding Moore’s Federal and 459 at due reconsider, S.E.2d 381. With consid- “upon trial court could motion or appropriate eration for the standard of re- sponte,” granting sua “earlier order a new trial”).26 view, Judge proceed to Hatch- Judge Because Abbot could consider have likewise, ruling, ruling. reconsidered his earlier er’s judice, Appeals,

26. Similar to the in case sub Gallimore v. which clarified the resolution of the Co., (5th Missouri R.R. 635 F.2d underlying 1165 issue involved. Pacific Cir.1981), the the decision to reconsider earlier grant by of a new made trial was successor generally Jurisprudence 27. See 13B Michie’s Gallimore, judge. United the States Court of ("The typical § New Trials situation in that, Appeals explained prior for the Fifth Circuit where, employed is [remittitur] is court, to the second trial the district the before trial, by motion the defendant for new the case had been to a transferred different district plaintiff verdict is considered and the is excessive judge. explain The court did the reason for given portion an election to remit a judge this transfer. The in successor Gallimore amount of the to a new trial.” verdict or submit by predecessor reconsidered an earlier his order (footnote omitted)). intervening due to an the decision Court of that the Defendant’s previously forth the Court concludes [T]he have set We jury to the verdict should motion set aside in deter judge consider criteria a trial Quite the Court simply, be denied.... grant a trial: mining new whether jury the believed that the concludes that verdict judge the If the trial finds intentionally something with Defendant did evidence, weight the against clear Plaintiffs, heart, that the the decedent’s result á evidence or will based on false suffered, children, and widow and two judge may justice, the trial miscarriage of compensated in to be were entitled verdict, supported by even if set aside $135,000.00, fur- with the total amount of evidence, grant a new trial. substantial $50,000.00 ther that an additional belief award a new judge’s A trial decision to damages punitive should awarded un- subject appellate review trial is not con- punish for his order Defendant her judge his or dis- less abuses Additionally, the finds that duct. Court cretion. statutorily is not immune Defendant Bldg. re Public Syl. pt. part, State from suit in this case. 454 S.E.2d Litig., Asbestos request for a re- As to the Defendant’s (1994).28 Court, Sopher ar- Before this mittitur, nothing in the the Court finds or a new gues that he is entitled remittitur the Court to conclude that case cause jury verdict damages trial on because the was, blush, jury’s at first exces- verdict regard, In that we have held: was excessive. sive, enormous, monstrous, outrageous, un- jury not set verdicts “Courts must aside beyond Fur- or all measure. reasonable monstrous, they unless as excessive ther, nothing in the case finds Court enormous, beyond all at first blush mea- jury’s manifestly indicate that the verdict unreasonable, sure, outrageous, and mani- displays jury partiality, corruption passion, passion, preju- festly partiality, show prejudice.... Pt., corruption.” Syl. Addair v. dice or ... believes the determi- The Court Co., Inc., Majestic Petroleum damages clearly within nation of (1977). finder, jury, the province of the fact Syl. pt. Hosp., Stevens Clinic Roberts jury’s should not be disturbed verdict Inc., it the Court unless can be shown that agree Judge We with Hatcher’s conclusion of, jury’s verdict the result and, thus, was not that the verdict excessive part, prejudice, partiality, cor- whole entitled to remittitur or a was not ruption misunderstanding or mis- or some damages. new trial on taken the merits of the case. The view of Court, upon thorough consideration denying Judge Hatcher’s final order case, concludes no thorough re motions recounted showing was made the Defendant. It action. also view the record record, findings thoroughly contained of fact and con We reviewed detailed arguments parties, Judge clusions law which he based his order, deny damages we a new on and Hatcher’s and cannot conclude that decision to trial order, by jury de- Judge In his abused his discretion to reinstate the verdict. Hatcher nying Sopher’s trial or for Judge explained: motion a new Hatcher Syl. pt. judge not the portion of re A is afforded same 28. The first In State successor authority credibility the to consider of witnesses Building Litigation, 193 W.Va. Public Asbestos judge presided the who at trial. This issue as (1994), states: judge ruling a arises where a successor enters by governed A a new motion for trial is jury that verdict. Under that circum- vacates a different than motion for a directed standard stance, upon be called to consider we jury judge a trial vacates a verdict. When judge vacated the verdict whether the successor pursuant law, verdict and awards new trial ruling re- as a or whether such matter of Rule the West Rules Civil credibility 59 of quired wit- of consideration Procedure, authority judge the judge the has Hatcher reinstated the nesses. Because trial, weigh credibility finding and the the evidence consider no error at we verdict issue. need not concern ourselves with this witnesses. Upon First, family remittitur. consideration of bi- sought autopsy the case, jury’s zarre nature of family and the their loved one. The claims the au- Sopher’s liability, topsy request, determination of we do not done at was their absent $135,000.00 the in compensato- autopsy find award of which per- the would not have been damages29 suffering ry purpose they emotional formed. For what the did seek to monstrous, separate body three individuals to be have the of their loved one dissected? enormous, measure, beyond at first blush all Not for medical science or to solve a crime. addition, outrageous. They unreasonable or wanted their loved one dissected in failed, get find below order a black lung and before this check. Their sensi- Court, jury’s to demonstrate that the bilities not by verdict were offended in the least manifestly jury passion, partiality, having body showed open, the of their loved one cut prejudice corruption. apart organs Each bones of the Cole- sawed removed and fact, discovery exactly mans testified about the effect that examined. they what they of the unauthorized get removal Elmer’s heart wanted done so lung could black They had had on them. cheek. physical described illness, crying, nightmares uncontrollable autopsy, After first the remains of the family familial tension which culminated in a plaintiffs deceased were interred. The then moving family member out of We home. disinterred, body had the coffin exhumed think this support evidence was sufficient to and dissected a second time in a second jury verdict in Consequently, this case.30 autopsy, dogged all their effort to win the Judge

we find that Hatcher did not abuse lung body autopsied black claim. The was in denying discretion for a motion Hansbarger. the second time Dr. E. It trial or new remittitur. lit, poorly dingy was done in a back room at Hansbarger the mausoleum. Dr. wanted to

III. body take the outside and do dissection building daylight. behind broad Cem- CONCLUSION etery officials refused to him allow to do so. reasons, For the foregoing we affirm the family. None of these facts disturbed the 2, 1996, May order of the Circuit Court Hansbarger Dr. lungs then took the Fayette County. body, central put organs chest Affirmed. plastic bags, bags took them in the to his analyzed disposed lab and them. he Then MAYNARD, Justice, dissenting: lungs them. The and central chest were (Filed 1997) Nov. body never returned to the and were not with, begin simply Oddly, To there no tort here. did reinterred. these facts not offend just example This ease is family. They another of some are in the upset not least going judi- the craziness Hansbarger disposed on American that Dr. of the de- system today. chest, lungs cial This case is they not about ceased’s and central but righting wrong, all it is about the relentless emotional wrecks the heart because not pursuit money. body. is a Hansbarger It fake claim based on with further tes- imagined evidence. possible tified at trial it was he missed compensatory damage We predicated limit our discussion to “the entire award damages challenge jury’s does plaintiff's distress.” Id. at mental $50,000.00 punitive damages, award of However, S.E.2d at 397. our decision in Bennett was left the trial undisturbed court. plaintiff's was also influenced the fact that improperly counsel "mentioned amounts Sopher argues compensatory also that the opening sued both for in his statement and clos- damages award in this case is excessive it in that ing argument.” Id. We the found that influence entirely plaintiffs' based on the mental distress. jury by this disclosure had on the was evidenced He cites this Court’s decision in Bennett 3 Cv. closely the the fact that award mirrored the Co., (1989), Coal by plaintiff's amounts revealed counsel. Id. So- support concluding to In that contention. pher pointed has to no such error in this case. verdict in Bennett was excessive and warrant- damages, recognized aed new trial on that evidence, including tes- autopsy. concerning proposed during his heart presence of the Sopher’s office “had shaved timony he did not remove that Dr. Sopher also testified

Dr. autopsy during and his in their the first from cadavers parts the heart off of brains that as well. Based University” reflect records custody written sent to Marshall and evidence, appallingly weak this kind of on Af- experimentation. purpose general simply awful verdict. upheld has this Court discussion, determined the court ter much admis- would be probably “that this evidence I believe the because I further dissent least, ought I to I don’t think sible. At discretion admit- abused its circuit court ” (emphasis Sopher had the motion in limine testimony trial that Dr. sustain ting at added). attorney responded Sopher’s to the Marshall Univer- Dr. donated brain tissue dece- without notice to sity Medical School additional requesting permission to submit past. family stated, members part, dents’ in “I did cases on issue something that not think that this would the West majority declines to address The thought I the law a difficult issue. would be 404(b) be- issue Virginia Rule of Evidence straight you that can’t fairly raise, on Sopher Dr. failed it finds cause forward acts to show that that’s the use other similar record, specific errors he now asserts ...” acted on this occasion majority way someone appeal in to this Court. his added). proceeded He then (emphasis Sopher’s Dr. counsel made two that 609 preserve grounded merely an trial sufficient error court to cite or mention the 404(b). 404(b). litany possible Rule of uses listed in Rule specific precise purpose for which filing resulting Since a motion in limine clearly the evidence is offered must be hearing covering pages transcript twelve of shown purpose from the record and that preserve not error is sufficient an on alone jury must be told to the in the trial raising objection appeal, and an at based court’s instruction. insufficient, relevancy I am on is likewise at a 2. Where an offer of evidence is made lawyer Virginia loss know what West 404(b) Virginia under of Rule the West preserve purposes has to do error for Evidence, court, pursu- Rules of the trial appeal. 104(a) Virginia ant to Rule of the West believe, also, I that if the Court had consid- Evidence, Rules of is to determine its ad- 404(b) assignment Rule ered missibility. evidence, admitting Before the error, testimony it would found the the trial court should conduct in cam- Syllabus issue to be inadmissible. In Point 8 Dolin, hearing era as stated State v. Resources, of TXO v. Production Alliance W.Va. 347 S.E.2d 208 After (1992)1 187 W.Va. 419 S.E.2d 870 hearing arguments the evidence and Court formulated standard of admissibili- counsel, the trial court must satisfied be 404(b): ty under Rule preponderance of the evidence that the against prejudice Protection unfair acts or conduct occurred and that the de- 404(b) evidence under admitted Rule fendant committed the If acts. the trial Virginia West Rules Evidence [1985] is court preponderance does not find (1) provided by: requirement of Rulé that the evidence acts or conduct was 404(b) that the evidence offered for a be committed or that the defendant was the (2) proper purpose; relevancy require- actor, the evidence should be excluded un- ment of through Rule 402 —as enforced 404(b). der If showing Rule a sufficient (3) 104(b); Rule the assessment the trial made, has been the trial court must then court make under must Rule 403 to deter- relevancy determine the of the evidence probative mine whether value under Virgi- Rules 401 and 402 of the West substantially similar acts evidence is out- nia Evidence Rules of and conduct the potential weighed by preju- its for unfair balancing required under Rule 403 of the dice; (4) and, provides Rule Virginia West Rules of If Evidence. shall, court upon request, the trial trial court then is satisfied that Rule jury instruct the that the similar acts evi- 404(b) admissible, is in- evidence it should only dence is to be considered for the jury struct on purpose the limited proper purpose for which it was admitted. which such has A been admitted. limiting given instruction should be at the Syllabus In Points and 2 of State v. offered, time the evidence is and we rec- McGinnis, repeated ommend that it be in the trial (1994) expanded upon this Court this stan- general charge jury court’s at the by stating: dard conclusion the evidence. offering 1. When evidence under Rule 404(b) Rules of Rocky West Evi- the recent case of Stafford dence, prosecution required Company, iden- Hollow Coal tify (1996), specific purpose for which the evi- this Court utilized very being Stafford, dence offered in- plaintiff and the must standard. against limit instructed to its consideration of a civil action former em- stituted only purpose. ployer among things, It alleging, wrong- evidence to other prosecution discharge employment not sufficient for the or the ful breach of an Also, 104(b). holding TXO than was modified State v. Alkire v. First Nat. Bank of McGinnis, (1994) Parsons, 455 S.E.2d admissibility held that McGinnis that the holding grounds in TXO modified 404(b) Rule evidence must be determined as a relevant here. 104(a) preliminary matter under Rule rather 610 testimony hearing in pre-trial A returned in favor of the when the verdict was

contract. evidence, issue, challenged employer at as well as other appealed the plaintiff, the and discussed, alia, appel- court the was the warned claiming, the trial inter that this Court concerning prior lees’ counsel the admission of bad acts of court admitted evidence 404(b). evidence, “if challenged Rule that evidence is employer Af- the in violation admissible, I prejudicial I think it’s so that assessing light in facts the above- ter the (sic) curity standard, can’t cure it with a instruction.” determined that stated this Court exactly right on that requisite trial court was conduct the the trial court did not point. highly prejudicial evidence prior This was analysis prior to the admission of the and, against that Dr. consequently, nevertheless was admitted acts re- bad Sopher. remanded matter versed the verdict and the proceedings.

for further Also, finding Sopher that “inten- after Dr. heart tionally removed the of Elmer Coleman case, properly present In the conducted and have known the intentional should that testimony light at in issue assessment the removal of Elmer Coleman’s heart would above would likewise of the standard stated distress,” plaintiffs cause the the emotional in that the court result a determination jury Mary $75,000 in com- awarded Coleman admitting in abused its discretion the testi- children, pensatory damage, and the two mony. testimony I that Dr. believe that $30,000 Wesley Coleman, Michelle each tissue to donated brain the Marshall damages. in compensatory These amounts in University past Medical School with- $50,000 were for reduced court to notifying only prove out relatives tended $10,000 Mary to the two Coleman each and his propensity Dr. character jury punitive dam- children. awarded conformity Although act therewith. ages against Dr. in the amount of testimony appellees for the stated elicited the $50,000. upheld punitive This Court intent, they purpose showing motive or damages award. explain proved failed to how such evidence have a would motive Syllabus In of Dzinglski Point 8 v. Weirton removing intentionally or that he removed Corp., Steel Further, this stated Coleman’s heart. Court this Court stated: Derr, Syllabus v. Point 9 of State 192 recovery permitting In for emotional dis- (1994): 165, 451 731 W.Va. S.E.2d proof of physical tress without trauma Although 401 and 402 of the West when the distress arises extreme Rules out of the "

Virginia strongly intentionally outrageous en- conduct Rules of Evidence courage damages the admission of as much evidence caused award- defendant^ possible, ed outrageous Rule 403 of West for the tort of conduct are Therefore, pol- essentially punitive Rules of damages. Evidence restricts liberal icy by balancing many requiring damages interests to cases emotional distress logically policy determine whether relevant is le- serve the that also deterrence gally Specifically, punitive damages. relevant evidence. Rule underlies relevant, provides although evi- though Dzinglski Even was decided after may dence nevertheless excluded when case, Dzingl- trial in Court noted danger confusion, prejudice, unfair ski that delay disproportionate or undue In Mace v. Area Medical Charleston value of the evidence. Foundation, Inc., 57, 422 Center (1992), necessary “The balancing expressed under Rule 403 our S.E.2d we affirmatively appear must damages the record.” concern that in cases where McGinnis, at are sought, S.E.2d emotional distress “a claim for Here, failed perform any physical the trial court emotional distress without addition, balancing the Rule 403 permit test. trauma have a rather give limiting open-hand damages.” trial court failed to instruction assessment testimony Smith, given either when or in Wells (1982), general jury Interestingly, recognized instructions. recovery permitting for it par- emotional distress standard be relaxed as to one relates proof physical of testimony without trauma where ticular issue: admission that Dr. arises out- Sopher previously distress out the extreme 'and donated brain tissue from intentionally rageous conduct caused notifying deceased individuals without defendant, damages awarded for relatives of the decedents. Counsel for Dr. outrageous essentially Sopher tort of conduct are comply not did with the traditional punitive damages. attorneys standards all must 404(b) preserve adhere in order to a Rule Therefore, case, in plain- I this believe the objection appellate majority for review. The recovery by tiffs were allowed a al- double correctly opinion refused to deviate from the lowing damages punitive “to stack necessary preserve standards which are upon punitive damages, thereby effectively evidentiary assignment of error. See imposing punitive damage two verdicts 698, Boyd, State W.Va. 276 S.E.2d against Sopher] [Dr. for the same acts.” (1981) (“It law, clear under our Dzinglski, at at errors, attorney evidentiary that as to preserve must on them the record or be plain majority fact dropped The is the raising foreclosed from appeal”.). them on one, on this particularly ball on the Rule (Citations omitted). 404(b) It issue. declines to address mer- appeal, Sopher In this Dr. that contends its holding Sopher of the issue Dr. to a the trial court should excluded testimo- ridiculously high preservation standard for ny relating to his removal of brain tissue objection assignment his for of error to this Sopher from other deceased individuals. Dr. so, By doing upholds Court. it the admission argued such evidence was inadmissible against Sopher Dr. that was 404(b). brief, under Rule In his Dr. Also, clearly prejudicial. manages Court this argued that he a in made motion limine ago to be inconsistent. Eleven months asking testimony the trial court to exclude verdict was in reversed this Court where prior 404(b), his conduct under Rule prior wrongly act evidence was admitted. the motion was denied. Dr. also Stafford, supra. bar, In the case this argues during again the trial he raised upheld prejudicial Court has a verdict where 404(b) argument the Rule and the trial court prior act evidence was admitted. itsWith objection. overruled his motion li- The 404(b) properly refusal to address the Rule objection sepa- mine and the trial should be issue, hairs, majority legal is splitting rately addressed. lawyers Here, practice experts. at which however, such behavior results inconsis- The Motion Limine results, principles, tent inconsistent and the based, affirming part, of a im- support verdict To his contention that he made Therefore, 404(b) proper raising evidence. I dissent. motion in limine the Rule is-

sue, pages Dr. Sopher’s brief references 4r-l2 McHUGH, Justice, pretrial hearing. The Concurring: record discloses Moreover, no written motion. a careful (Filed 1997) Dec. reading pages of the referenced fails to dis- dissenting opin- It is unfortunate that the mention Dr. close counsel majority’s holding legal ion distorts requesting trial court exclude the evi- analysis. fully support legal analysis I 404(b). Syl. Rule dence under See Pt. opinion majority and conclusion of the in this Brewer, Estep v. concurring opinion case. I em- write this (“Where objections not were phasize necessity properly preserving for court, shown to have been made the trial evidentiary objections appeal. for jurisdic- and the matters concerned were not appeal character, objections not this counsel for Dr. has tional will modify requirements However, appeal”.). asked Court to considered on objections. preserving evidentiary piecing together particular Dr. words scattered Sopher proposes, by arguments, throughout pages, that the the above-referenced one 9(f) requirement Rule stipulation objection made to that an

can discern applicable to all meaningful a standard that is testimony. establishes the brain tissue con- attorneys who seek to have this Court articulated on the legal language which was rec- objection appearing not on the “routine” sider an words and “habit”. record were the objection Sopher, ord. final pursuant to Counsel Those words define an 404(b). analysis, would have Court deviate Rule Rule permit long its established standard Sopher’s may very well be Dr. It accepted in his brief to be averments 404(b) Rule with the in counsel fact discussed “Lack- accurately depicting what occurred. argued in his As- trial court as was brief. documentation, [allega- ing this counsel’s occurred, suming the critical mistake this nothing to more than an amounted tions] having the Sopher’s Dr. counsel was made evidentiary sup- attorney’s argument lacking 404(b) argument off the Rule discussion Powderidge Ass’n v. port”. Unit Oumers Dr. Sopher The ref- pages record. to Ltd., 692, Highland Properties, parties the reveal that the went off erenced (1996). 707, 872, “[S]elf-serv- 887 474 S.E.2d argument, if it making when such was record in ing support without factual assertions made.1 not v. Preci- [suffice]”. record will Williams 14, Coil, Inc., n. sion 194 61 459 W.Va. Sopher’s Argument: Dr. the Record Off majority n. 14 The S.E.2d 338 properly presented Dr. could correctly has held counsel for Dr. to 404(b) alleged argument Rule the unrecorded 9(f) Rule with the well-reasoned standard of argument if was this Court such before attorneys comply. must which all argument was made and the omitted 9(f) transcript. this Pursuant to Rule Ruling in Limine: Motion No Definitive Procedure, “[a]ny Appellate Rules of Court’s Hearing During the Pretrial omission, misstatement, error, or cleri- either otherwise, ruling by may next issue cal or the record be cor- The concerns Sopher’s any by stipulation trial on Dr. motion limine. rected time filed with court pretrial clearly Supreme provision proceeding Under record of the Court”. this rules, appellate Dr. re- the trial not make of our was reveals that court did ruling during with on quired to obtain and file this Court definitive the motion pretrial hearing. transcript clearly stipulation, agreed opposing party illus- to (and passed away), trial judge trial he not trates that once counsel and the court had record, judge again the trial which outlined the substance omitted were on 404(b) against prepared Rule See v. Fru- he was to rule Dupre discussion. indicated (8th Inc., Sopher’s Engineering 112 motion. Dr. counsel Con F.3d 329 Cir.1997) specifically a defini- (noting appellate that under federal asked court to defer ruling tive he to required rules counsel to file a motion to until was allowed submit modify support to case that would motion. The content of record disclose what law alleged actually transpired agreed ruling trial counsel off the court defer a definitive court). trial, morning on until the record in See also Federal the motion district 10(e). Procedure, day.2 next A careful review of Appellate Rules of Rule which was the following exchange point transcript parties 1. At the 2. The occurred between the when the record, transcript possi- came on describes a Sopher: trial and counsel for Dr. court discussion, ble Rule 406 based the use probably COURT: ... I believe that THE 406 the words "routine” "habit". Rule least, would be At I don't admissible. states: ought to sustain motion in limine. think I Habit; practice. Rule 406. routine Can I cases on MR. JOHNS: submit further person of a or of the Evidence of the habit morning, Your Honor? practice organization, routine of an whether Oh, you gosh. Why didn’t do THE COURT: it regardless pres- not and corroborated or already? thought you ready I were for me to eyewitnesses, prove ence of is relevant to rule. organization person or on a the conduct of the conformity particular occasion with practice. habit or routine

613 Parsons, 56, 63, morning’s transcript the next discloses no W.Va. 181 380 S.E.2d (where (1989) discussion renewal of the in limine motion. court not on 230 trial has ruled Waldron, 311, 317, limine, object party See Waldron motion must to intro- (“If (1913) party who has S.E. pre- duction of evidence at in order to objection permits forgotten, to be evidence); made it right appeal serve admission chargeable party”.); a waiver Co., Inc., should be Pandit v. American Honda Motor Syl. (10th Maples Dept. Cir.1996) Pt. v. West (utilizing F.3d 376 a three- Commerce, part party test determine whether must (“A litigant silently acquiesce preserve renew motion limine at trial .to alleged error, actively to an contribute reviewing for appeal; issue court must error, and then raise that error as a adequately present- satisfied that matter was appeal”.); reason for reversal Interest court, type ed district issue was of S.C., 366, 374, trial, finally prior that can be decided (1981). Ultimately, then, the trial court definitive). ruling that court’s was ruling never entered definitive on the mo- legal consequence failing of to address tion in limine. v. See Tennant Marion morning the issue the next meant that the Inc., Foundation, 97, Health 194 Care W.Va. prior trial court’s tentative motion in limine (1995) (“It 114, 374, 459 391 not S.E.2d is the insufficient, ruling alone, standing was to judge present the role of trial to evi- preserve appeal. the matter for Dr. ap- party complaining [T]he dence. ... on 404(b) alleged had to renew his Rule motion peal of the admission evidence bears sole trial in preserved at order to have the issue responsibility preserving adequately for appeal. The rule not apply. for Wimer does review”.); meaningful appellate record on Green Const. v. & See Co. Kansas Power Voelker Properties v. Frederick Business (10th Cir.1993) Co., Light (party 1 F.3d 1005 Co., 256, 246, 246, 195 256 W.Va. 465 S.E.2d objection in waived to denial of motion limine (1995) (“[Sjimply raising the issue before party to exclude evidence where failed to Attorneys trial judge is insufficient. have an trial, objection during renew after district obligation protect to in to record relation ruling had court indicated that would be sub- issues”.). rulings by judges trial specific on trial); ject at to reconsideration Dow v. Unit- syllabus point in This held 1 of Court Broth, Carpenters ed and Joiners Hinkle, Wimer v. (1st Cir.1993) America, (holding 1 F.3d 56 383 that: ruling request that when court defers on objection ruling An on a to adverse proponent thereafter fails to resurrect issue in motion limine to bar evidence at trial fashion, timely proponent in is to deemed preserve point, will though even no point and cannot later abandoned com- objection was made at time evi- Thomas, plain appeal); v. 83 Gill F.3d 537 offered, dence was unless there has been a Cir.1996) (when (1st in ex- limine motion to significant in change the basis for admit- is clude evidence denied counsel must renew ting the evidence. objection right preserve to appeal at Accord, Co., Syl. evidence); Pt. 3 Bennett v. C Coal admission of the contested Dillon Co., Ltd., (8th 180 Wim- F.2d W.Va. v. Nissan Motor 986 263 Cir.1993) matter, attorney general (alleged preserved er holds as a error was objection appellate plaintiffs does not have to raise at trial an review for where failed properly preserved through objections was a mo- renew made connection with However, limine); City tion in limine. the Wimer rule is their McEwen v. motion (10th (ob- Norman, Cir.1991) inapplicable ruling when the motion limine 926 F.2d 1539 jection hearing ex- properly preserved. was not See State v. at on motion to raised Honor, re-argue going MR. MR. JOHNS: Your I didn’t mean to COMETTI: If Mr. Johns is you your ruling. just morning, argue thing with after I was I'd like do it before jury asking you gets if I could submit cases. at 9:30. other here this, just you My THE COURT: If want me to reconsider THE COURT: 9:00 cancelled. So them, morning.... thing I? I'll do it first will be here at 9:30. I told didn't We can in here at 9:00.... come 614 testimony object under preserve to certain extensive testimony insufficient to

elude 404(b) objection objec- contemporaneous at Rule constituted waiver issue absent (5th Ideco, trial); 1146 Burton, 761 F.2d Petty tion); v. 326 486 State v. S.C. Cir.1985) in limine whose motion (party (failure proper (App.1997) to raise 762 S.E.2d trial); objection at renew overruled must objection consti- when evidence offered Merrill, Neb. N.W.2d 566 State object); right Asberry v. tutes waiver of (1997) (when motion in court overrules State, (Tex.App. S.W.2d —Dallas object particular limine, when must movant 404(b) 1991) (in appropriate Rule absence evidence, sought excluded previously to be objection nothing preserved in trial court offered). motion, is review). objection An appellate for 404(b) Sopher failed to make a Rule automatically trigger cannot relevance Therefore, if objection even trial. at 404(b) country objection. No court in the majority opinion had modified the standard comply To has such relaxed standard. objection, in limine preserving a motion standard, trial counsel with traditional had in that Dr. a determination objection make with reasonable must 404(b) argument fact raised a Rule pre- specificity. This Court addressed preserved pretrial hearing, the issue was not S., Tiffany re cise issue Marie appeal purposes absent a renewal (1996): 234, 470 Sea-3, objection See Clausen v. at trial. of Evidence West Rules (1st (denial Cir.1994) Inc., 21 F.3d object parties must to declare that preserve did not issue for motion limine wrongful particular of evidence at a timely objection offer at trial review absent to evidence). time and reasonable specificity. with admission of such object to at the and in the failure time Objection: The Trial No Reasonable 103(a) designated manner Rule Specificity West Rules of is treated Evidence default, procedural the result that as a with Dr. contends his brief he evidence, erroneous, sought prior to con- be- exclude even if 404(b). pursuant Rule The brief duct comes the of the case. facts point Dr. this Court to the referred Tiffany In re Marie S. articulated a stan- 404(b) alleged objec- of trial when the Rule making specificity” dard “reasonable reviewing tion was raised. tran- objection. Common sense dictates brief, script pages to in I referred find objection mere is not rea- “irrelevant” Sopher initially objected Dr. counsel for sonably specific to alert trial court or by simply stating the matter was irrelevant. 404(b) being objection that Rule Court objections were Two other made. Both ob- made. jections questions related to the form of the question. and not the substance dissenting Essentially, opinion seeks asks Court to allow “Sopher exception” simply the writ- because objection relevancy as a be considered A the result case. er does like in this 404(b) objection. majority opinion Rule legal argument more solid have result- would adopt refused rule. See United in a more ed solid dissent. (7th Cir.1994) Wilson, v.

States 31 F.3d 510 (in 404(b) objection absence of Rule defen- objection drug

dant waived dealer’s

testimony that he had seen defendant

possession cocaine on at ten occa- least

sions); States, Hollenback v. United 987 F.2d Cir.1993) (7th (by failing to raise Rule

404(b) possible drug testimony, bar use objection);

defendant waived States United Dunn, (1st Cir.1985) (failure 758 F.2d 30 notes question par- argue the form of the in did objections pertaining to being Dr. on question properly pattern ticular asked forth a or habit of be- set objection and one based on fact, prelimi- cross-examination at the havior. the discussion majority further that relevancy. The states Sopher’s Dr. nary hearing precipitated “[wjhile Sopher pre- indicates that the record testimony concerning in limine motion exclusion a motion in limine for the sented evidence, issue, quite in- as other well of, complained the evidence herein pages transcript. depth and covers twelve specific chal- that the record fails establish me, should be obvious It is obvious to and it lenges presented to or ad- now raised were attorney majority, Sopher’s that Dr. Thus, Sopher by the court below. dressed sufficiently presented the circuit court with a I alleged errors.” preserve failed to these argument adequate- specific legal order majority’s assessment of disagree with the appeal ly preserve assigned the error concerning Dr. the record reveals So- what to this Court. pher’s preservation of the errors now raised addition, transcript the trial reveals in this Court. the testi- appellees’ when the counsel elicited pre-trial pro- Although portion of the mony from Dr. on cross- at issue anything ceedings relevant to this issue is examination, “I Sopher’s Dr. counsel stated clarity, I Dr. but a model believe object questioning to his line of on basis enough give the trial court counsel said objected Clearly, counsel of irrelevance.” at a time opportunity to address issue objected grounds of relevance. and he tak- corrective action could have been when majority proper can claim that How the 404(b) Virginia Evidence en. West Rule of objection, timely on relevan- made and based crimes, provides, part, of other “Evidence cy, adequately preserve the error failed to prove the wrongs, acts is not admissible to mystery to me. appeal raised on is a now person in to show action character of a order purpose Rule 404 is to determine conformity Based on this therewith.” Article IV of the relevance. The title of asserts, rule, part, Dr. now Evidence, in- Rules of West testimony “only prove at issue tended through is “RELE- cludes Rules 401 propensity character and his to act [his] Each and AND ITS LIMITS.” VANCY reading conformity A careful therewith.” every through 411 deals with rule from 401 proceedings of portions pre-trial Octo- relevancy. relevancy only with Obvious- dialogue ber 1992 reveals a between then, objection the admission court, Cometti, ly at trial to attorney appel- for the Mr. relevancy Johns, should be lees, attorney Sopher, of evidence based on Mr.

Case Details

Case Name: Coleman v. Sopher

Court Name: West Virginia Supreme Court

Date Published: Dec 18, 1997

Citation: 499 S.E.2d 592

Docket Number: 23943

Court Abbreviation: W. Va.