*1 State, I must injured working people of this
dissent.
Kenneth ROBERTS HOSPITAL, INC.
STEVENS CLINIC Magnus, M.D.
and Vernon J. 16598, 16599.
Nos. Appeals of
Supreme Court of Virginia.
April 12, 1986.
Dissenting Opinions June *2 Charleston, Chaney,
Casto & for Stevens Clinic. Shuman, Annand, Stephen L. D.
David Poe, Shuman, Annand T. Eard- & Edward *3 Johnson, ley, Charleston, Steptoe & Ru- dolph Murensky, Murensky, J. Laearia & Welch, Magnus, for Vernon J. M.D. NEELY, Justice: appeal we decide we whether County should sustain a McDowell Circuit $10,000,000jury Court in favor of award parents siblings two of Michael and Roberts, Joseph 2V2-year-old child who malpractice. died as the result medical conduct We find no reversible error trial, appropriate we find $7,000,000. enter a remittitur of Joyce young Kenneth and Roberts are a couple Joyce married in who were Ritchie, children, Pepper had two be- And fore she and Kenneth were married. though adopted Rit- Pepper even Ken marriage, Joyce chie after the Ken and wanted to have a child their After own. years, gave Joyce three to Michael birth Joseph on 22 1979. Be- Roberts December hysterectomy cause of a after Michael’s birth, Joyce longer no have chil- able to dren.
The at trial that Mi- evidence indicated darling family. chael was the the whole intelligent happy He was little both boy particularly to his moth- who was close er. had evi- The before it substantial Joyce Michael’s has dence that since death grief been overwhelmed family happy house- Roberts’ longer Manges, psy- hold. Dr. Kenneth J. clinical chologist, testified that each member of the family psychological inju- Roberts’ suffered ry because of the death of Michael. Rit- withdrawn, longer chie now and no sleeps he in the and Michael for- bedroom however, merly impact, has shared. greatest Joyce. Manges Dr. testi- been Joyce sleeping, fied eat- difficulty had Brumfield, David Ballard & Brum- G. ing, cоncentrating, organizing herself Welch, field, appellee. thoughts, her and that she had become Morhous, overly her At Kersey, protective David other children. Lawrence E. M. Brewster, Joyce many Hudgins, Coulling, spent & the of trial had Morhous time Cameron, Bluefield, George Kay, nights crying writing poems to Mi- Sharp, that Michael’s stomach was swollen. She chael, that she con- and there was evidence Sandy Mag- asked nurse Alderman and Dr. diarrhea and tinues to suffer from chronic Furthermore, Manges nus who came into the room what was vomiting. Dr. testi- wrong Magnus child with Michael. Dr. said it in which the fied that the manner died, just gas. the was was entitled to parents’ with and the involvement point Magnus his infer Dr. had hospital immediately before that at that child at the guilt, and still that he had suffering, not informed the Roberts death increased their performed biopsy. an unauthorized anger. Magnus immediately death Dr. left after talk- leading to Michael’s
The events ing evening Joyce 1982 when with and Ken. Later began on the June *4 bleeding however, morning, Joyce rectal noticed Michael’s episode Michael had an nurse; Joyce quivering. was called for a following movement. throat She a bowel concerned, Mi- to reach the nurse checked Michael and determined but was unable Carr, breathing. B. M.D. that he had labored The nurse pediatrician, chael’s Allen M.D., Magnus, Joyce Magnus informed that Dr. had been Joyce called Vernon J. who called, hospital inserted church as Roberts. and later staff attended the same Michael, Magnus although Joyce and a rectal tube in Michael and was Dr. checked expelled his bowel move- asked to watch to see if Michael bleeding stopped after breathing ment, gas through Mi- Michael’s Magnus Dr. recommended that tube. swollen, labored, x-ray. his stomach x-ray for a barium was still was chael return normal, vomiting complaining of Magnus suggested began Dr. and he was but procedure pain in his stomach. sigmoidoscopy that he do a —a patient’s a doctor examines a pumped Mi- p.m. At 2:45 the nurses rectum and lower colon. visiting at stomach. After Michael chael’s p.m., Joyce Alderman told and Ken Magnus attempted Dr. Nurse On June that Michael was sigmoidoscopy in at the Stevens that she did not believe his office better, advised them to Hospital, getting any Michael and he Clinic but it hurt something Up done. until Magnus recommended a insist that be stopped. Dr. then time, Joyce Ken or asked general that whenever sigmoidoscopy under anesthesia. was, problem they were might polyp or what Michael’s He believed Michael gas going and was to be part of his told that he had a small hemorrhoid in the lower however, point, Ken went to bleeding. Dr. fine. At this rectum that had caused the greater that atten- if Michael the desk and demanded Magnus told the Roberts that hour given to Michael. About an polyp, snipped off in a tion had a it could be arrived, later, Magnus finally p.m., at 4 Dr. simple procedure might not even re- shortly thereafter Dr. John- followed quire a stitch. ston, hospital surgeon. staff Then another on a two- family The Roberts then went Carr, checked pediatrician, Michael’s Dr. two during week vacation which there were Dr. said that he feared that Michael. Carr bleeding recurred. occasions when mild perforated Michael Michael had a bowel. sig- July Magnus performed Dr. On return x-rayed, later and after his was moidoscopy on to the Michael. addition Mi- x-ray, Magnus Dr. returned to from however, Magnus per- sigmoidoscopy, Dr. Joyce perfo- he had chael’s room and told per- biopsy parents’ without the formed biop- he did the rated Michael’s colon when mission, Mi- doing perforated and in so morning. sy that into spewed colon. Fecal material chael’s surgery, Magnus Dr. returned Michael and, a re- cavity child’s abdominal anesthetic, general placed him under a sult, developed peritonitis, Michael a severe repair ruptured bowel. attempted to biopsy The sigmoidoscopy infection. from the anes- Michael never awakened a.m. performed approximately at 8:30 were thetic. was returned at and Michael to his room returned from the From the time Michael following pro- 9:50 a.m. approximately morning reentered biopsy in the until he At cedure. that time Mrs. Roberts noticed course, History, evening, re- has vindicated operating room that he plaintiff’s estimation of the value of the his infection. ceived no antibiotics to treat case, but the believed that had defendants biopsy, hospital After staff sympathetic jury would have a on the issue attempted some to administer antibiotics damages, if liability. Their trial I.V., thorugh an because the fluids strategy asserting objec- frivolous tissue I.V. infused into Michael's needle reasonable, although tions was defense vein, Alderman re- rather his Nurse than to object easy counsel’s failure makes it day, there were During moved the I.V. opinion us to write without its assum- either attempts to administer other ing the dimensions of Averroes’ Commen- finally re- fluids or Michael an antibiotic. Aristotle, say taries on we can from a through operat- ceived fluids an I.V. review of the record that the result in this he his ing p.m., and received room at 5:35 objections case not be otherwise had infection at first his severe antibiotic regularity pendu- been made with the repair p.m. operation the hole 5:43 appeal, Magnus lum. Dr. does not as- On begun at p.m., 5:50 Michael’s colon jury’s finding liability sert after the antibiotic was ad- seven minutes unsupported the evidence. Both ministered. *5 negligent and doctor’s treatment his failure On 3 November 1982 Kenneth L. Rob- possible the of the dan-' warn Roberts erts, estate, as Michael’s administrator of gers biopsy firmly were established. Hospital Clinic and Dr. sued Stevens Magnus wrongful for Michael's death. II alleged simple complaint negligence The plaintiff At trial the introduced into $4,281.55 in ex- and enumerated medical prepared, professionally twenty evidence a $2,591.00 penses and in funeral and burial minute, videotape that combined “home expenses. complaint The did ask for recordings of movie” video Michael taken $20,000,- punitive damages, but did ask still, colored, by neighbor with a series of compensatory damages. 000 in After two- fаmily. of photographs Michael and jury weeks trial and hours of delib- of two background pre The audio for this video erations, returned a verdict in fa- tape recordings consisted sentation of of $10,- plaintiff of in vor the amount of Joyces’ child’s voice well as voice 000,000 compensatory damages. Dr. Both talking singing and to the child. It is the Magnus Hospital and the Stevens Clinic defendant’s contention that film was a appealed to this Court. presentation artistically “theatrical” that
highlighted aspects certain life Michael’s relationship and Joyce’s Michael in an I way. inaccurate Most errors that the defendants tape entirety We have reviewed the its appeal assert on were waived at trial be- nothing inflammatory preju- we find or timely objection cause no was made. From Code, [1982], dicial it. W. about Va. 55-7-6 our review of the and the briefs four vol- statute, provides our death in sec- below, proceedings umes of we conclude (c)(1): tion that both sides this case believed that include, verdict of “The shall going to jury. were win before the to, be may limited Apparently the defendants believed that a (A) Sorrow, following: mental an- local, County McDowell re- guish, may and solace which include soci- large damages luctant to award for the comfort, ety, companionship, guidance, against community’s death of an infant decedent; kindly offices and advice of the hospital and one full service physicians. practicing Consequently, local obviously purpose videotape
it wаs The defendants’ strat- was to dem- egy to minimize the a healthy, number technical onstrate that Michael was intelli- enthusiastic, objections. gent, and well loved child. So matter, videotape “Day-in-the-Life” videotape preliminary as a excluded when open testimony court could demonstrate In our relevant. 402.1 W.Va.R.Evid. evidence, similar and admission of video high- tape, find artistic review of the we tape distracting would create risk of lighting emphasizes scenes or that some defendant). unfairly prejudicing A vid others, we find photographs more than eotape’s editing, tone and as well as the that no merit in the defendant’s assertion availability through of similar in- evidence the mother’s went on several voice testimony, court are all factors a trial court black, seconds turned after the screen deciding should consider in whether to ad unduly atmosphere was evoked sentimental But, videotape. mit a we shall not reverse jury. prejudiced would have a trial court’s decision these matters previously This has not ad Court unless the record shows a clear abuse of admissibility videotape dressed the Gough Lopez, discretion. See v. (1983) (Evaluation
“Day-in-the-Life” films. same eviden S.E.2d remoteness of evidence left to trial court’s tiary govern admissibility rules that discretion). recordings photographs govern the ad missibility videotape evidence. W.Va. Ill 1001(2).2 general
R.Evid.
rule is that
A
pictures
photographs
that are relevant
issue
a case are
Fur
admissible.
The defendants assert that four of
thermore,
judge
the trial
plaintiff’s
afforded wide
instructions were erroneous
determining
failing
admissibility
give
discretion
court erred
Magnus
one instruction of Defendant
videotapes
pictures.
and motion
Szeliga
two instruction of Defendant Stevens Clin
Corp.,
General Motors
F.2d
*6
n
presume
ic. This Court will
that a trial
(1st Cir.1984); Ilosky v. Michelin Tire
correctly
giving
refusing
court acted
or
603,
Corp., 172 W.Va.
307 S.E.2d
618
instructions,
given
unless the instructions
(1983).
prejudicial
were
or the instructions refused
given.
were correct and should have been
poten
We are not unmindful of the
Turner,
Syl. Pt.
v.
137W.Va.
State
dangers
presentations.
tial
inherent in such
(1952). making
C
IV
Defendants assert
that
it was
jury’s
to allow
the
plaintiff
inquire
error
to
of a
verdict found
defen
hospital employee
previous
percent negligent
com dant doctor 82
about
by
hospital
negligent.
plaints
nursing
against
percent
staff
Dr.
defendant
Magnus. Again, however,
hospital
to The
asserts
the trial
objection
no
that
court
questioning
failing
line of
in
to
in
was made
defen
erred
direct a verdict
trial,
and, indeed,
Magnus
objec
dant
at
favor
there is substantial evi
when an
hospital,
tion was raised
dence
the record before us that the nurs
time;
ing
judge
objection
hospital
everything
sustained the
at the
staff
did
request
power
no
either for a mistrial
a
their
the defective
or for
overcome
dire,
jury’s
exploration
way
4. What
possible
discussion of a
on voir
in the same
that
$250
judgment
implies
determining literacy
subject
explora-
probably
million
acy,"
fit'
is "innumer-
phenomenon
regard
a
For
with
tion on voir dire.
an extensive discussion
to numbers
Hofstadter,
however,
Innumeracy,
"innumeracy”
illiteracy.
Douglas
See
akin to
R.
does
Numbness,
“prejudice” anymore
“Metamagical
not demonstrate “bias” or
Themas: Number
Whether, however,
illiteracy.
Innumeracy May
Dangerous
jurors
Why
than
Be Just as
have
American,
understanding
Illiteracy,”
pp.
(May,
some
of what
20-34
numbers like 10
Scientific
1982).
subject
or 250
million
million mean is a
fit
V
had received from
treatment
that Michael
Nonetheless,
expert
there is
Magnus.
Dr.
serious
We now come to the most
hospital
testimony in the record that the
case,
problem
namely
closing
in this
care
type
pediatric
argument
plaintiff’s
did not have
counsel.
a nut
shell,
required by
Virginia
compelled
State
the reason that we are
facilities
jury’s
$10,000,000
reduce the
award from
regulations and that
Department of Health
$3,000,000
plaintiff’s
that
counsel im
way appro-
Michael
not monitored
was
plied,
closing argument,
duty
in his
that the
in his condition.
priate for a child
place
was to
a value on Mi
hospital
that the
There was also evidence
lines,
objection along
chael’s life. No
those
Department
comply
did not
with State
however,
during
closing
was made
ar
concerning supervision
regulations
Health
gument, and for that reason we are undis
staffs,
nursing
and that
of its medical and
because,
posed to reverse the entire trial
hospital
provide
annual evalua-
did
technically, the error was waived.5 Yet we
doctor, Magnus.
Dr.
Dr.
tions of its staff
closing argument
find that counsel’s
was
himself,
hospi-
Magnus,
testified that the
entirely
consistent with either W.Va.
regularly
used
staff
tal’s nurses were
Code,
[1982],
55-7-6
our
death
surgery
consents for
doctors
obtain
statute, or the court’s instructions.
patients, although
joint
hospital
from
Plaintiff’s counsel made a number of
(of
hospitals
commission on accreditation
analogies during closing argument
that
member)
hospital
which defendant
is a
has
juror only to
that the
could lead a
believe
regulations
require hospitals
to have
juror’s job
to evaluate Michael’s life in
was
It is
appropriate
doctors obtain
consents.
argued
if
money.
terms of
Counsel
alleged
practice contributed to Dr.
that this
$10,000,000 racehorse had been killed
Magnus’ doing
procedure
he had abso-
through
negligence
veterinary
hos-
biopsy.
lutely
permission
to do—the
pital, the measure of
would be
$10,000,000.
point
exactly
At another
plaintiff
also introduced evi
argument
asked
counsel
what
hospital
negligent
dence that
happened
approached
if someone had
granting
Magnus
surgical privi
Dr.
full
parents
envelope
with an
contain-
Michael’s
leges
light
coming
fact that
before
ten, $1,000,000 winning lottery
ing
tickets
Hospital
pri
he had
to Stevens Clinic
been
parents
if
would trade
asked the
and.
marily family practitioner and had never
Finally,
for the tickets.
Michael’s life
granted
surgical privi
full
previously been
made reference to the American
counsel
may
A
directed
leges. motion for a
verdict
are
space program where billions of dollars
appears
properly
granted only
single
when it
spent to avoid the loss of a
life.
presented
Representative excerpts
that the
from counsel’s
from all the evidence
sought
closing argument are as follows:
against whom the verdict is
party
*8
any
entitled to a verdict under
up,
would
be
the kids
growing
I was
“When
Syl. Pt.
v.
‘Boy,
of the evidence.
Cox
that’s
That
say
view
used to
valuable.
Well, as
Motor
158 W.Va.
worth a million bucks.’
Galigher
Sales
must be
Martin,
know,
inflation,
(1975);
light
that same
you
Hinkle v.
valuable than upon verdict court will not set aside a what, in guide you tells mod- Another excessive, the claims that it is “unless the life, high placed day how the value ern enormous, monstrous and at first verdict is military. society on is in the Millions measure, beyond blush all unreasonable spent preventive оf dollars are billions manifestly outrageous, and such as protect Why? To the life measures. passion, partiality, prejudice, or shows military plane costing If a the soldiers. Pt., trouble, corruption.” Syl. Majestic Addair v. gets of dollars what’s millions Co., Inc., 160 W.Va. Petroleum pilot Get the out. Let the call? (1977). Obviously, applying S.E.2d 821 plane crash.... largely subjective that standard entails a program? space And what about our part appellate judges. on the exercise 225,000,000 proud country. I’m our people, but when we made the decision proceedings below took two space, made that go into a decision was trial, prodigious full amounts of weeks single life would be sacrificed as not one time, lawyer and witness and substantial guinea pig. The made decision was expense. Virgi litigant and state bring that we would our astronauts back. remedy of remittitur is unusual nia the spent And have been for all the billions damages in a case do not admit to when the safety devices to insure that come calculation, jurisdic an exact but other back.” ample authority proce tions we find for the Code, statute, McCullough invoke. Al wrongful death dure we now Our Pizzulo, (the Op. in effect at the 7 Ohio 55-7-6 statute Co. [1982]6 Transfer Code, penses ably expected loss of comfort, ing: ization of the decedent incident to the resulting assistance separately expenses. dent, may not be limited awarded The verdict of the (2) (A) In its verdict the 55-7-6 decedent; (B) compensation may for the Sorrow, in guidance, kindly provided by (ii) the amount of death; it for reasonаble include [1982] services, care, mental to, provides: society, companionship, treatment and (i) (D) protection, income anguish, offices reasonable funeral shall decedent; damages, funeral, shall set forth for the follow- include, of the dece- and solace for reason- care and hospital- hospital, if (C) advice injury any, ex- 7. Yet in recoveries we wish to person recovery parsimonious theory return when under the common law nomic losses loved result of the personal of the defendant such medical and said other imposing death, one. to the could not be a expenses *9 conceding to representative. family days some associated with the death of a shall be so or defendants which resulted that there are before Lord such amount recovered for survivors for the non-eco- ceiling that allows but nominal wrong, imply expenses act, neglect expended by the nor to no sentiment Campbell’s policy incurred as a death or default reasons death other of a Act, to
501
(1936)
highest
470,
796,
by asking
“What is the
N.E.2d
800
ourselves:
App.
5
Ohio
$5,000 jury
remittitur of
facts
this case that
(Appeal court entered
award under the
$10,000
part
enormous,
verdict of
after excessive
at
be monstrous
closing
counsel’s
ar-
by plaintiff’s
measure,
created
beyond
first blush
all
unreason-
inviting jurors
places”
to “trade
gument
outrageous,
able and
and such as manifest-
injured plaintiff); Yerrick v. East
with
ly
jury passion, partiality, prejudice,
shows
67,
Co.,
Op.2d
119
27 Ohio
Ohio
Ohio Gas
answer,
corruption?”
Our
after sub-
(Plain-
220,
(1964).
N.E.2d 472
App.
198
discussion,
$3,000,000
collegial
stantial
improper,
closing argument held
tiff’s
and that is the amount that we
allow to
will
argument
though
objection
was
even
stand. We believe that our conclusion
delivered,
argument
made at time the
was
regard
grounded
public
this
sound
made that
be told
request
and no
proceed
policy, which we now
to discuss.9
$115,-
argument, judgment of
disregard
$25,-
Remittitur of
000 was held excessive.
VII
ordered).
000
case,
deciding
recognize
we
has
the mi-
past,
In the
this Court
held
percent
94
of all civil actions which
over
there are no data
nority rule8 that when
pleadings have been filed are settled volun-
the excess is definite-
the amount of
which
tarily by
parties, and some
incalculable
ascertainable,
impermissi-
remittitur is
ly
potential
more
cases are voluntar-
number
part
that no
of an
ble. Our rule has been
lawyers
ily settled after
have been contact-
verdict can be saved
a remit-
erroneous
any formal court action has
ed but before
and that the whole verdict must be set
titur
Consequently,
taken.10
because less
been
Browder,
aside. Earl T.
Inc. v. Webster
percent
serious
are
than 6
of all
lawsuits
Court,
696, 116 S.E.2d
County
145 W.Va.
tried,
thing
important
the most
that courts
(1960).
present
case demonstrates
867
legal
rules within
do is to cast a shadow
the unreasonable nature of this rule. The
litigants can craft their own custom-
judgment
verdict of the
made settlements. The defendants
right
plainly
trial court are
on the issue of
complaining
here
about
case before us are
liability.
the verdict is
But the amount of
verdict;
jury’s
the excessiveness
though thе
dam-
excessive even
Roberts’
however, they do not discuss the enormous
ages
majority
are substantial. The
rule
plaintiff’s counsel in the de-
investment of
give
about remittitur allows us to
the Rob-
testimony,
velopment
expert
the cost of
dam-
erts their choice of a set amount of
exhibits,
legal
preparing
or the cost of
re-
or,
ages
if
our estimation of
believe
go
search
order to
trial.
niggardly,
new trial.
their case to be too
Co.,
Smithey
Refining
203
See
v. Sinclair
fight plaintiffs
When defendants wish
142,
(1961).
imate
present
appellate
damages.
likely
In the
more
to be avoided when
the first dollar
the defen-
case,
supervi-
has shown
plaintiff
courts restrain themselves
manner. To
liability in a clear-cut
dant’s
sion of
awards.
one,
square
be-
plaintiff back to
send the
Ideally, in a
such
one
case
as the
before
is excessive would be
the verdict
cause
negligence
of the defendants
us where
unfair;
a waste
it would also be
more than
just compensation Mi-
palpable, some
wrong
litigant resources and send
of
forthcoming
would have been
chael’s death
litigants.
signal
prospective
other
thirty days. Yet Michael died in
within
in-
regard
decision is
In this latter
our
April,
July,
and it is now
1986 without
design of
by the fact that both the
structed
having
any compen-
received
the Roberts’
corresponding corporate
firm and the
a law
for Michael’s loss.
sation whatsoever
counterpro-
may create
structure of a client
litigation. Specifical-
approaches to
ductive
the defendants moved
When
company
are fiduciar-
ly, insurance
officials
Court, the
appeal
to file an
in this
for leave
comfortable when
ies who feel most
parties
asked the
to describe
Court
Big
by the hour.
de-
pay
lawyers
their
negotiations
preceded
that
settlement
respond to their clients’
firms
fense law
genеrally inad
trial. Such information is
by adopting case
accounting requirements
incompetent
liability
missible and
show
management systems that allow them to
damages.
or set the measure of
Shaeffer
paper
trial to
a file” that creates
“build
Burton, 151 W.Va.
achieved with IX beautiful; ing not itself is a buttress is physical to nature’s beautiful concession emerges 800-year-old from Our law tradition, force. thus most of materials laws outward merely because it Is wise discoverable 13. common law rule codified in compromise negoti- presented which reads: R.Evid. 408 course of (1) require furnishing offering exclu- or or ations. This rule also does Evidence promising furnish, (2) accepting or or of- sion when evidence is offered another accept promising fering valuable con- prejudice or purpose, proving or bias such compromising attempting or witness, sideration compromise negativing a contention undue disputed as to a claim delay, proving or an effort to obstruct crimi- validity is not amount admissible to either or prosecution. investigation nal or invalidity prove liability the claim or Evidence of conduct or state- its amount. Supra, 14. Note 9. negotiations compromise ments made in not admissible. This rule does not likewise require Hamlet other- the exclusion of evidence *12 delay appropriate. Greatness architecture is not achieved for unreasonable is by creating good superb law, however, a structure from Tort designed is not to be a materials; by creating it a su- chance; is achieved Vegas game Las it serves no perb structure from' mediocre materials. purpose useful system to turn the tort into general judgment The same criterion of lottery a everyone pays high where insur- applies government. say To that our premiums ance so that enormous windfalls judicial engage system imperfect is is to in can be randomly. judge allocated As one plaintiff triumph a A of understatement. explained: long and just with a claim has both a hard Courts are reluctant to undertake the damages. march to Courts under- recover speculative setting figure task of be- juries operate largely stand that emo- yond which an award is excessive. It is principles that awards can tive responsibility which must be assumed substantially judges, in excess of what edu- Otherwise, at some time however. as science, cated law as a would award in get higher, awards proponents similar circumstances. justify each will its reasonableness on Yet close to unbridled discretion is re- precedent approval of the of the posed jurisdiction to award highest previous award. damagеs proper such as it feels exactly Chicago, Burlington Baird v. Quincy because of the in terrorem effect on de- Company, Ill.App.3d 1, Railroad potentially large jury fendants that awards (1975) (Green, J., N.E.2d 920 dissenting). counterweight have as a to the in terro- sky The is not the regard limit with plaintiffs outrageous rem effect on that awards,16 point premium pay- at some inconvenience, expense, incalculable and in- ers—who taxpayers— are somewhat like delay ordinate have. The similarities be- protected paying must be from excessive legal system then, tween the Salisbury, premiums. apparent: Judges become understand the Accordingly, for the reasons set imperfections in the materials with which judgment forth above the of the Circuit attempt must work and to achieve Court of McDowell County is reversed and some structural offsetting balance one the case is remanded to the circuit court imperfection against another. with directions to enter a remittitur of If, however, these are some of the con- $7,000,000 judgment and enter on the ver guide siderations that our decision to allow $3,000,000or, alternative, dict for at $3,000,000 $10,000,000 of the judgment to option plaintiff, to award a new stand, logical why is to ask we do not trial. sustain the entire verdict. The answer to Reversed and remanded with question directions. involves modern tort law’s spreading mechanism for throughout risk
society through universal insurance cover- McHUGH, Justice, dissenting: age. respectfully I but resolutely dissent. I object
The
provide
tort law is to
agree
do not
with majority’s
decision to
compensation
reasonable
entry
(or
losses
an direct the
of a remittitur
in lieu
expeditious
thereof,
fashion. Thus
penalty
some
plaintiff elects,
trial1).
if the
a new
Airlines, Inc.,
16. Caldarera v.
behalf.)
Eastern
705 F.2d
hospital,
witnesses on his
The
on the
(5th Cir.1983).
hand,
other
liability. My
does contest its
review
sup-
record indicates that the evidence
option
by majority
1. The new trial
extended
porting
hospital’s liability
was so weak that
apparently
I,
is
not restricted to the issue of dam-
jury,
as a member of the
would have contend-
ages. This conclusion is
percentage
curious because the
ed for a
per-
much less than the 18
majority concludes
there
was no
reversible
cent of the total fault found
to be the
error in the
hospital’s comparative
conduct of the trial and that the
negligence. Even coun-
finding
Indeed,
liability
"plainly right.”
plaintiff
during
sel for the
closing
conceded
majority;
Magnus
noted
argument
Dr.
does not
that there was no evidence that the
appeal
finding
liability.
correct,
contest on this
negligent.
majority
nurses were
(At
Magnus
trial Dr.
expert
though,
did
holding
not call
in its
that there was sufficient
Corp.,
sociated
Coal
Syllabus
majority opinion
point 6
prin
overrules,
stating,
long line
S.E.2d
While this
without so
believe,
ciple applies
which,
pain
and suf
I
cases
are well-reasoned.2
fering
personal
cases,
injury
espe
it is
majority opinion
repugnant
also
to a
*13
cially applicable
damages
to
in
Vir
for solatium
provision of the Constitution West
of
Const,
See Hawkins v.
wrongful
cases.
death
Ill,
art.
ginia, specifically, W.Va.
Co.,
Nuttallburg Coal & Coke
66 W.Va.
Salisbury,
in
13.3
Cathedral
The Great
§
415, 416,
520,
(1909).5
66 S.E.
520
Prior to
opinion,
England,
majority
in the
is
exalted
herein,
majority opinion
the
has
this Court
as the legal
“off dead
as far
center”
holdings
been definite and consistent in its
opinion on
majority
of the
architecture
limiting judicial
review of the size of
propriety
a remittitur
in
issue of the
of
a
in wrongful
verdicts
death
Hereto
cases.
damages.4
involving
case
indeterminate
fore,
jurisdiction
it
in
was well settled
this
light my opinion
In
that a remittitur
of
that where the
finds
defendant
involving
case
improper
a
indeterminate
action,
wrongful
liable in a
death
it has
any
damages,
opin-
I also wish to disclaim
virtually
discretion,
absolute
under the ex
syllabus
validity
point
of
7 of
ion on the
wrongful
statute,
press
of the
terms
death
opinion concerning the Court’s
majority
use
regard
proof
damages,
without
to
of actual
pretrial
negotiation
settlement
amounts
like,
pecuniary
any
and the
loss
to make
to determine
amount of
remittitur
just,” subject
award
deems “fair and
encourage
out-of-court
will
settle-
passion-and-prejudice
to the
rule dis
ments.
Trenton,
Kesner v.
cussed
158
infra.
997, 1002, 1007,
880, 884,
216
W.Va.
S.E.2d
I. OVERRULED PRECEDENTS
Jones,
(1975);
757,
Legg
v.
886
126 W.Va.
A.
DEATH
WRONGFUL
DAMAGES:
762,
76,
Keesee v.
(1944);
30 S.E.2d
79
QUESTION
A JURY
Corp., 120
Greyhound
Atlantic
W.Va.
201, 204, 197
522,
4,
kept
(1938); syl.
A
principle
pt.
fundamental
must be
523
S.E.
Co.,
v.
Laundry
Black
Peerless Elite
“[ajssessment
mind:
113
[where
828,
Hawkins v.
gives
specific
(1933);
the law
or fixed
W.Va.
415, 416-17,
(1909);
520,
jurors guided
66
520-21
tial
S.E.
all the facts and cir
”
216,
R.R.,
Kelley v.
58
particular
Ohio River
W.Va.
cumstances of
case.’
223,
520,
(1905); Sample
52
v.
S.E.
523
Chesapeake
Couch
Ry.,
&
45
O.
W.Va.
472,
W.Va.
Light Ry.,
51,
Consolidated
&
50
(1898) (citation
30 S.E.
473-74,
(1901);
40 S.E.
Couch v. omitted).
Trenton,
See also Kesner v.
51, 55-56,
Chesapeake
Ry.,
& O.
45 W.Va.
(1975).
W.Va.
147,149
(1898);
syl. pt.
S.E.
Turner v.
One of the
enlightening
ju-
factors
W.R.R.,
&
40 W.Va.
S.E.
Norfolk
case,
rors’ conscience in a
death
(1895);
Wheeling
Dimmey v.
&
case,
personal injury
as in a
is the deter-
E.G.R.R.,
56-57
In
*14
aspect
rent
of compensatory damages. “A
deed,
of the jury
the amount of the verdict
jury
pain
award for
suffering
and
for
[or
wrongful
ordinarily
death case will
inherently subjective
is an
under-
solatium]
long
be disturbed as
as there is a rational
taking,
degree
and the
of moral fault which
taking
basis for such verdict
into considera
jury imputes
to the tortfeasor is almost
tion all
evidence. Salerno v. Man
inevitably
liberality
par-
reflected in the
or
chin,
220, 227,
805,
213
158 W.Va.
S.E.2d
simony
pain
of the
suffering
and
solati-
[or
(1974).
809
majority opinion
While the
Booth,
award.” Freshwater v.
160
um]
not, intentionally,
herein does
overrule this
312,
W.Va.
233 S.E.2d
315-16
cases,
line of
I
majori
fear the effect of the
(1977) (also
therein).
see n. 2
ty opinion,
term,
long
at least
will be to
overrule this line
encourage
of cases and to
Despite
jury’s
almost absolute discre-
judicial
wrongful
interference with
death
determining
tion in
the amount of the dam-
(and personal injury)
being
verdicts as
“ex
ages
case,
wrongful
in a
despite
death
and
cessive.”
the lack of a statutory “cap” on the
amount of
recovery
wrongful
in a
In Bond
City
Huntington,
.
v.
166
case,
jury
death
wrongful
verdict in a
581,
W.Va.
539
S.E.2d
this
subject
judicial
and,
death case is
review
legislativе
Court traced the
history of the
case,
appropriate
in an
will
set
aside as
statute,
Code,
death
W.Va.
55-7-
clearly excessive
clearly inadequate,
5,
-7,
-6 and
Legislature
and noted that the
granted.
case,
a new trial will be
Such a
year
in the
statutory
1976 removed the
though,
exceptional.
“Courts must not
“ceiling”
recovery,
on
so that there are no
set aside
verdicts
tort
as
[in
cases]
limits,
statute,
maximum
under the
on the
monstrous,
excessive unless
are
enor-
recovery.
amount of
6. Citations herein are to the statute as amended
is not relevant
in this
year
1982. The 1985 amendment
case.
opinions
this
have substituted their
line
demarcation
case
specific
There is
rights,
the trial
realm where
that of the
court
nebulous
court and
responsibilities of a
duties and
question
the factual
of the amount of dam-
Brannon, 141 W.Va.
meet.
Bower
ages, on the basis of undefined “sound
None-
90 S.E.2d
public policy.”
theless,
person
“a
who
point is certain:
one
a verdict
with
appellate
comes to an
court
REMITTITUR: NOT PROPER FOR
B..
court,
inis
jury,
by the trial
approved
INDETERMINATE DAMAGES
to the law.”
strongest position
known
involving
In a case
indeterminate dam-
Id.,
at 346.
at
ages
jury’s
and where the amount of the
recog-
law
Equally
is that
certain
“[t]he
judgment
clearly
verdict
sum
aggregate
excessive
under the
nizes that
qualified
properly
duly
passion-and-prejudice
twelve
selected
test set forth in Ad-
yet
method
represents the best
de-
jurors
dair,
remedy
appropriate
supra,
just compen-
amount of
fixing
vised
(perhaps
award of a new trial
limited to the
plaintiffs in such
injured
cases
sation to the
damages),
entry of
issue of
not the
a remit-
*15
suffering, mental an-
[involving pain and
titur.
In such a
there would
case
be
damages].”
indeterminate
guish or other
ascertainable,
clearly
illegal excess
re-
Malcomb,
v.
150 W.Va.
Sargent
amount, leaving
move from the total
(1966).7
561,
Judge
566
Cal-
146 S.E.2d
jury.
properly
by the
While
amount
found
houn,
writing for a unanimous court
a
is
the amount aftér
remittitur mathemati-
Malcomb, expressed these vital-
Sargent v.
larger
сally part
by
sum found
the
important
ly
principles:
say
jury
jury,
is a fiction to
personal injury
A
in a
case
jury verdict
Instead, the
“found” the smaller amount.
by the
may not
set aside as excessive
be
substituting
opinion
court
be
its
would
a
trial
trial court
new
awarded]
[and
jury’s. This
has heretofore con-
Court
damages
merely
the award of
is
that a remit-
sistently adhered
this view
greater
judge
the trial
than
only
proper
titur is
where the excessive
charged
if
been
with
made
he had
distinguish-
portion
clearly
of the verdict is
determining
responsibility
proper
from the remainder
able as a matter
law
cannot
amount
the award. This Court
example, syllabus point
of the verdict. For
as
such a
set aside a verdict
excessive
28,
Bero,
210
20 of
v.
158 W.Va.
Jordan
merely
a
case
award
new
be-
trial]
[and
(1974),
holding in this
states the
S.E.2d 618
majority
a
or all members of the
cause
language:
have made an award of
Court would
illegal
damages
part
of the
“When
charged
if initially
lesser amount
with
by
jury
the verdict of
ascertained
determining
responsibility
rest,
distinguishable from the
clearly
of the
proper amount
award.
the court
may
ascertained
without
401, 146
at 566. Ac-
150 W.Va. at
S.E.2d
assuming
the functions of the
Browder,
cord,
5,
syl. pt.
Earl T.
Inc. v.
theirs,
substituting
judgment
its
696,
Court, 145
116 S.E.2d
County
W.Va.
may
plaintiff to enter a re-
court
allow
(1960).
case now
majority
in the
867
original]
for such
here
mittitur
[italics
Court did not follow these
before this
Sylla-
new trial.”
part, and then refuse a
(and
expressly
yet did not
over-
precedents
2,
Browder, Inc. v. The
point
bus
Earl T.
remittitur,
arriving
them), by
rule
at
145
County,
County Court Webster
states,
opinion
“after substan-
majority
(1960);
696,
sylla-
7. IV.Va. 56-6-11 [1985] jury in of six mem- a civil case shall consist
508
Power
observed that
Appalachian
Professor Carlin
this Court
See also Cochran
624,
O.R.R.,
96,
Hickman v. Baltimore &
30
86,
630
162 W.Va.
246 S.E.2d
654,
296,
(1887),
W.Va.
4 S.E.
when the constitution was See Schiedt, Dimick v. 293 U.S. II. WITH CONFLICT CONSTITUTION- *16 297, 296, 603, (1935); S.Ct. 79 L.Ed. 606 AL RIGHT TO JURY TRIAL 497, 514, Kersey, 139 Kwass v. 81 Napier, supra, As noted in Fortner v. 237, (1954). language S.E.2d 246 The in Browder, County and Earl T. Inc. v. W.Va.Const, III, prohibiting art. 13 § Court, supra, consistently this Court has jury’s findings reexamination of a of fact minority by refusing followed the to rule unchanged adoption has remained since the allow a remittitur where the amount of the 1872, of the state constitution in with the damages excess is Leo indeterminable. exception (in addition in 1974 con Carlin, then Professor of Law in the Col- junction Reorganization with the Judicial lege University, Virginia of Law at West Amendment) phrase, “according to ” subject authored an excellent article on the Preyiously, rule of factual find court[.] Carlin, ings jury of remittiturs subject and additurs. Remit- of a were to reexami Additurs, W.Va.L.Q. “according nation to titurs and 49 1 the rules of the com (1942). mon law.” Professor Carlin also noted that consistently this Court to this mi- adhered majority opinion purport does not to nority W.Va.L.Q. rule. He at 29. ar- be, constitute, certainly and does not gued, valid, forcefully, that such a rule court,” “rule of but is an alteration of the especially jurisdiction light this of our law, 1872, it year common existed in the relatively unique provi- state constitutional and to is fatal the essence of the constitu- (W.Va.Const, Ill, sion quoted art. is, thus, right by jury. tional to a § trial It 3)
supra at n. preserving only right prohibited by Ill, art. W.Va.Const. § jury to a trial but also preserving Any interpretation the fruits of the “rule of court” Const, Ill, thereof. language contained in W. art. Va. dissenting opinion Judge damages, sep- unliquidated titur, awarding 8. The Woods is and a remit- arately published reports verdict, in the regardless unofficial at 7 of the size of the S.E. 455. trial, awarding ground a new on the that the excessive, damаges are unless “there is no evi- Schneiderman, 9. See Van Lom v. 187 Or. support dence to the verdict." See also State ex (1949). P.2d 461 The court held that Or. Const. Crookham, Young rel. 290 Or. 618 P.2d VII, prohibits appel- § art. a trial court or an (1980). setting jury late court from aside a verdict for law, more At common with a few aberra- pro- condone than which would § tions,10 elasticity involving cedural would eviscerate the con- inde- a remittitur a case jury protection of verdict. damages stitutional unliquidated terminate or was not Ill, some W.Va.Const. art. allows § proper, to correct a and recourse respect proce- to matters of elasticity with clearly verdict for a sum such excessive appellate practice dural and form and trial by jury. grant case was to a new trial power of by referring, obviously, to the 477-85, Schiedt, Dimick v. 293 U.S. W.Va.Const., VIII, Court, under art. 297-300, S.Ct. 79 L.Ed. 606-10 relating ... to promulgate “to rules § (1935). practice procedure, ...” For ex- ... argu- rejected Court Dimick special 49 on ample, ver- see W.Va.R.Civ.P. right ment that the to a constitutional This rule modi- interrogatories. dicts and trial could be altered court decision special use of fies common law verdicts ground right premised that such accompanied general an- verdicts upon right the common to a law Lugar interrogatories. swers See M. power change and the courts retain the Silverstein, Virginia and L. Rules of changed the common law to meet condi- 365-66 The use of Civil Procedure not, however, procedural these devices tions: jury trial right
inimical to the
to а
It is said
is sus-
that the common law
still finds the facts
the factual
ceptible
growth
adaptation
to new
findings
“reexamined”
are not
the court
situations,
circumstances
and that
opinion.
of substitution of
Di-
sense
power
the courts
declare and
recting
remittitur
entry
of a
in a case
present
effectuate what is the
rule
not,
involving indeterminate
given
respect
subject
regard
without
however,
practice
of form and
a matter
rule;
the old
law is
... The common
but, instead,
very
involves the
substance
immutable,
flexible,
upon its
right
to a
trial. “If
constitutional
principles adapts
varying
itself to
own
conditions,
(in this
the result of the verdict
case the
here,
But
[citation omitted]
substance,
amount)
is not a matter
pro-
dealing
we are
with a constitutional
asked,
may
What
very well be
constitutes
*17
adopted the
vision which has in effect
jury trial?”
the substance of a
49 W.Va.
law,
respect
rules of the common
in
L.Q.
any party
at
interest
24. “What
can
jury,
in
trial
these rules existed
as
trial, except on the
jury
expecta-
have in a
year in
the Federal
which
Con-
[the
of his
jury
rights
tion
a
determination
or
adopted].
To effectuate
stitution
liabilities,
imagine.”
is difficult to
Id.
change
any
in
rules is not to deal
these
practice
proce-
One
rules of
of the
law,
law, qua
with the common
common
promulgated by
dure
this Court is W.Va.
alter
The dis-
but to
the Constitution.
38(a),
provides
“[tjhe
R.Civ.P.
which
fundamental,
tinction is
and has been
right
by jury
as
the
of trial
declared
clearly pointed
by Judge Cooley in 1
out
of the
Constitution or statutes
State shall
ed.,
Limitations,
124.
Const.
8th
preserved
parties
be
to the
inviolate.” The
487,
301,
at
The is a of the constitution should “The constitu- unconstitutionality of a remittitur a case tional scriveners repose did not in the involving damages: facts, bench responsibility finding indeterminate peers seeking justice.” of those law, particularly in the long as the [A]s Majestic Addair v. Petroleum sanctions, gives
form of constitutional 232 S.E.2d trial, party to a it would right carry with right seem that the should III. DAMAGES NOT EXCESSIVE determining expedien- privilege above, As discussed a remittitur is not cy. [emphasis original] The ob- proper in this A case. new trial is not ject right protecting with cоnstitu- either, proper, finding because the of liabil- give tional sanctions must have been to ity supported by evidence, and the litigant power arbitrary make an damages amount of found is not “mon- prevent legislatures choice and strous, Addair, supra. ...” set forth in determining any question courts from Otherwise, expediency. the whole mat- $10,000,000.00 verdict this case legislative ter would have been trusted to among would be divided four individuals.11 regulation. judicial emotional sustained were anything If there ever was ... which substantial, permanent12 and “extraordi- sophistry needed the aid of and artificial nary” (according undisputed to the testimo- logic, it seem to be a demonstra- ny plaintiff’s expert witness, a clini- court, tion that when it allows a psychologist). cal While no amount of ordinary remittitur or an additur under money “compensate” will for the inconsola- case, personal injury circumstances in a grief, ble death statute re- judgment does not substitute its for that quires to determine an amount of jury. If the substitution takes damages which is just” “fair and place, any how can it be asserted with jury’s opinion, and there is no maximum semblance of realism that the has limit recovery under the statute. To tried parties the case and the had determine whether jury’s verdict jury trial? Those who assert the con- should be set aside as “monstrous” and a trary do ‘legal not need to resort to the awarded, new usually it is very scrap heap’, prece- other source of profitable compare verdicts in other dents, to defend their stand. All that is cases because injuries “the character of the necessary is to face the situation with a sustained, and their resultant upon effect preference realism unadulterated with injured party, identical, ... are never and let sway. common sense have full and but seldom similar.” Paving Williams W.Va.L.Q. Kreidl, at 36-37. The common sense Co. v. 200 Va. *18 people 758, (1958).13 expressed in the state couple 764 A comparisons, of $2,500,000.00 equal 11. An involving allocation of for each wrong- 13.For collections of cases plaintiffs annot., purposes of the four is assumed for of ful death of a minor child see 49 (1973 opinion jury this Supp.1985), A.L.R.3d especially did not direct a 934 W.Va.Code, 55-7-6(b) years age; different 5 on infants § allocation as under seven of 2 S. Speiser, Recovery Wrongful (2d [1982] authorizes. I also note that For Death § 9:21 Code, (decedents comply 55-7-6(c)(2) Cum.Supp.) failed to ed. 1975 and with current W.Va. be- [1982], Stein, years requires age); low sepa- Damages seven J. to set forth Recovery: rately Injury pecuniary damages Personal the amount and Death for Actions funeral, (1972 medical, etc., Cum.Supp.1985). § 253 hospital, reasonable ex- (here penses $6,872.55). totalling Consequently cases, Comparing verdicts in other from our deemed, purposes entire verdict will for others, jurisdiction dangerous own game, is a opinion, nonpecuniary, this to be for emo- say persons the least. No two are alike. No damages. tional injuries juries two are alike. No two are alike. compensation, pain Unlike workers’ awards for expectancies 12. The life suffering these four individu- personal injury аctions or for als, father, were, siblings, mother and wrongful two solatium in death actions should not respectively, years, years, years 33.6 upon pre-determined 46.6 64 be based schedules. The years. 66.9 dignity worth and of the individual is a touch-
511
350,
however,
Corp.,
174
may
as illustrative of
Coal
who sup in fact ment when the are etc.) fees, “ex- ducting attorney’s sustained Denison, Pippen v. ported the record. traordinary,” merely “average,” dam- 664, 677, Mich.App. 239 N.W.2d ages. the amount of the 709-10 While substantial, in sense it a relative verdict It must also be remembered injuries no more substantial than damages. permanent verdict here was for Ki by the decedent’s survivors. sustained Damages in a death case for non- Danbury Hospital, 183 Conn. niry v. losses, anguish pecuniary such as mental (1981); Pisel v. losses), 439 A.2d (unlike damages pecuniary 180 Conn. Hospital, present value. not be reduced to should Stamford 430 A.2d (1980).15 Eastern Associated Syl. pt. Mooney v. Dial, already lengthy dissent- Ariz.App. I not extend this society. Wry 15. will of our stone 503, 514-15, essentially pub- ing opinion a discussion of with review 503 P.2d 990-91 raging *19 policy in the state issues which are lic legislatures denied Congress, specifically, wheth- and in as, reform," such need for "tort Mooney Corp., su- er there is a “сeilings" v. Eastern Associated Coal awards, text, pain-and-suffering fees, limits on effectively Brewer v. pra in the overruled etc., attorneys’ to "blame” Constructors, Inc., and who is on W.Va. Appalachian liability "crisis”— insurance for the so-called to the extent that judges, juries, lawyers, other health doctors or yield on a verdict calculated an annual Brewer companies, providers, etc. insurance care pain suffering) (including and an award for and "ceilings” pain-and-suffering Statutory an- and verdict to be excessive when the on found the nearly equalled run afoul of the verdict the awards would not nual interest on the solatium Const, Ill, earnings § W.Va. art. plaintiffs and would second sentence of lost annual future legis- ceilings would not constitute lump intact at the end because the leave the sum award also (amount of dam- expectancy. of facts plaintiffs lative "reexamination” life V. PROBLEMS CONCLUSION
IV. PRACTICAL forget I In all of not this discussion do case compliment I all trial counsel this tragic senseless death of Michael the of their very representation for their able by and the loss sustained Mr. unbearable however, believe, respective clients. I children, and Mrs. and their other Roberts prob- more majority opinion will create “Pepper” and Ritchie. than it has questions lems and raise more brought “Those who have child resolved. planned into the world and loved it and also direct may For court example, a trial it, suddenly have it snatched then trial) (with option new away hardly a remittitur from and killed can them pain unliqui- adequate or idea of the mental involving have in a case indeterminate anguish undergoes one from may judges If direct damages? dated tragedy. such a No other affliction so “flying they will solo” be- a remittitur be physical down the tortures wears engage to cause will be unable system.” and nervous collegial to arrive discussion” “substantial Charlson, Md.App. remittiturs. If a Barrett v. at sound amounts for (1973), quoting 305 A.2d Winner reviewing parties’ court to consider (Fla.1949). Sharp, So.2d 636-37 (the pretrial nego- settlement deliberations tiations) arriving “proper at a remit- My primary lies with the citizens concern titur,” why should the trial court or victims of our State who become time, system the tort turbulence. this reviewing court also have access to yellowed pages issue will fade on the them in jury’s deliberations to assist substi- history expedient but solu- the short-term tuting opinions dam- their on the amount of major tions reached decision makers essentially advisory ages jurors’ permanent will have inflicted our State May trial or opinions on the same? court injured damages parties. on innocent opinions court appellate substitute opinions jurors’ above, for the on amount upon I Based all of the dissent. damages addi- indeterminate and direct state I am authorized to that Justice turs? joins me in this dissent and files McGRAW opinion gives guidelines no majority a further dissent. concept. for its of the art” remittitur “state McGRAW, Justice, dissenting: difficult, therefore, predict It is the rami- dissent, McHugh his join I Justice amorphous It fications of this decision. following observations. add “junked” precedents into the has vаluable “legal heap,” virtually scrap and. all that majority’s willingness compromise “smoke” from the remains is thick key is the to under- our democratic ideals operations. predict, I do “bulldozer’s” standing proceeding. result though, majority that the will “torture” the Ill, Virginia Constitution art. § attempt deprived facts in future cases to to distin- provides, person “No shall be guish may life, liberty, pro- from cases due property, this case those without law, judgment and the of his also issues. cess involve remittitur personal injury ages) merely place a law actions violate the common found right guaranteed by advance on amount of limit in to the courts Ill, access Const, jury. 17; would be no substi- contrasting found There statutory § W.Va. art. damages. opinion on the amount of actions, tution of statutory liability on such as limits ceilings express opinion I here on whether compensa- actions or workers’ death pain-and-suffering law awards in common cases, distinguishing statutory abol- tion first sentence of tort cases would violate the actions, of affections ishment alienation Const, Ill, state art. 13 or other § disruption personal involved rela- the latter *20 Note, provision. generally See constitutional injury per- opposed to [a as to “an done tions Malpractice Constitutionality Limits (1976) Medical Of — son], person, reputation" property in his or set Liability, On (suggesting 78 W.Va.L.Rev. 386-90 Const, Ill, 17). art. § in W.Va. forth statutory liability in that limits als, more horrendous art. could commit even peers.” Virginia Constitution Ill, malpractice “In suits at common could result in provides, acts of § law, cоntroversy ex- in greater prospective pa- where the value even harm to their interest exclusive of twenty ceeds dollars companies coldly tients. as- The insurance jury, if costs, by right of trial simply serted that this ease was pre- shall be required by party, either $10,000,000 “worth” and maintained that no concedes majority served.” The figure reduction to a more “reasonable” in the trial occurred reversible error of law So, appropriate. was with incredible can- Yet, fair trial. of this matter. It was dor, majority admits that its members verdict is so mon- asserting jury’s that the put together up their heads and came with motivated that it was strous as to' indicate $3,000,000. words, figure other prejudice or cor- passion partiality or by majority anticipates defendants its view of ruption, majority substitutes malprac- could combine to commit acts of for that proper amount of resulting in tice over three times the community chosen twelve members single harm than amount of to a individual the case under the law to decide under the amount of harm to Michael Roberts court. instructions of the trial family. readily my I and his concede ina- coverage, noted insurance Available imagine bility to a set of circumstances $10,250,000. In rec- by majority, tragic over three times more than the cir- realistic, practical possibilities, ognition of presented cumstances in this case. n companies had the defendants’ insurance Notwithstanding majority’s obvious said, $10,250,000 pay up to “We will citizen, regular masquerad- disdain for the any you might negligently cause to harm pedantic archi- ed as a discourse on Gothic payment exchange individual in for the elenchi,” tecture, argument “ignoratio this premiums commensurate with integral part of our demo- juror is an coverage.” negligent The acts amount of ideal, the conscience of representing cratic in the death of of the defendants resulted great cathedrals of community. The degree Roberts. The 2V2-year-oldMichael Europe as monuments stand with the commis- malpractice associated ingenuity, symbolically but as monu- man’s nothing short of horri- sion of these acts greatness ments to man’s faith. immea- fying. Michael Roberts suffered not from the medieval cathedrals derives negligent of these acts. surably because construction, from father, mother, character of their his and his brother His ordinary and vision of the immeasurably after his the character continue to suffer their lives jury, unaware of the amount of and women who dedicated death. The men majority coverage, understand- an ideal. The available insurance to the service of mal- degree states, of medical is not ably shocked architecture “Greatness community practice superb demonstrated structure by creating a achieved professionals, returned verdict materials; health superb it is achieved from $10,000,000, to the maxi- remarkably close mediocre creating superb structure from insurance cover- mum amount of available general The same criterion materials. malprac- harmful acts of agе for the most government.... applies judgment compa- anticipated by the insurance tice juries operate on understand that Courts nies. principles and that largely emotive substantially in excess awards can be coverage contracting provide After science, as a educated in law judges, what verdict, how- of the amount excess circumstances.” similar would award effect, ever, companies, the insurance jurors are Thus, according majority, to the plea that less with a came to Court materials,” operate not on who “mediocre for and they had contracted than what principles,” reason, largely emotive but “on too much. premiums for was still received judges, comparison who particularly companies effectively ar- insurance science.” Never law as a in- are “educated anticipated that their gued that it was arrogant been ut- statement sureds, profession- has a more community health these *21 government, dissenting). of blatant Ours is a support by tered this Court Lincoln, Furthermore, erection just people, of “of the judicial fiat. immortal words sometimes people.” by people, medieval cathedrals was and for the Ours is of of through impoverishment majority achieved government, a as the protection of majority’s parishioners, Loss it, philosopher kings.” of “of companies is of insurance profitability here people, in the will ex- faith of legal of expense at the achieved of pressed as a verdict twelve members by medi- injured rights moral of those community, of faith means loss our understanding can malpractice. Better cal system government. Unlike democratic majority opin- analogizing the gained by be majority, people and our faith our govern- practice of case to the ion in this ideals democratic should waiver. Sir Sherrill, in R. Gothic Poli- ment described By Jury Patrick Devlin’s book Trial the New Deep South: Stars tics in the 1966), that, (3d “The ed. he mala- observed gained than can be Confederacy dy that sooner or affects most men of later to Gothic architecture. analogizing it profession is that tend to a construct system government mistique that cuts them off from common American The inge- fitting Agreement epitaph monument to man’s not as a man.” with this stands as a monument man’s nuity, majority opinion but rather in this case com- for the greatness The ideals. faith in democratic pels dissent. de- system government American
of the its construc- from the character of
rives not
tion, from character and rather ordinary men and women who
vision of dem- their to service
have dedicated lives dissenting from Recently, ideals.
ocratic usurpation province of
another
I noted that:
jury,
twelve done, if I thing
round. same right,
remember the Founder of Chesterton,
Christianity.” Gilbert K. Tremendous TwelveMen Trifles:
86-87
Delp v. Itmann Coal 176 W.Va. (1986) (McGraw, J.,