*1 State, I must injured working people of this

dissent.

345 S.E.2d 791 L.

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 Rit- withdrawn, longer chie now and no sleeps he in the and Michael for- bedroom however, merly impact, has shared.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, concentrating, 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- family. 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 was 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 70 S.E.2d 249 this deter explained: As one court has mination, the the Court will review instruc always tape Almost an edited necessar- tions as a whole. McAlister v. v. Weirton ily every sequence raises issues as to Co., Hosp. 173 W.Va. 312 S.E.2d 738 portrayed of is whether the event shown quoting, Syl. Pt. Lambert v. fairly representative fact, after the Comp any, Great Atlantic & Tea Pacific editing process, unduly it is whether (1971). 155 W.Va. S.E.2d prejudicial pre- because of the manner of plaintiff’s We have reviewed the in sentation. might they structions and find that have Bolstridge v. precisely, they Central Maine Power been worded more that F.Supp. (D.C.Me.1985)(Plaintiff’s accurately stated the law.3 The defen- (2) adopted Virginia Photographs. "Photographs 1. This Court Rules include still the West — films, February Accordingly, Evidence on 1 photographs, x-ray videotapes, 1985. and mo- proceed- rules were not effect at the time of the pictures.” tion ings point position below. But our on this the same under the law. rules or the common question are: 3.The instructions Plaintiffs cases, govern Because rules will all future 5, 6, 8, 17; Instruction Nos. Defendant holding phraseology we have stated our in the 4; and, Magnus’ Instruction No. Defendant Ste- the rules rather than the law. common vens Clinic's Instruction Nos. 12 and To 15. individually opinion discuss them 1001(2) W.Va.R.Evid. reads: purpose they clearly serve little because are purposes Rule 1001. Definitions. of this For prejudicial. following applicable: article definitions are instruction that were refused curative was made either jury dant’s instructions Furthermore, one that should defendant. because simply advised the grounds hospital’s liability evi- for the with the was decide the case accordance bias, possible negligence allowing Mag- Dr. the instructions dence and there, question- had no feelings sympathy practice nus to that line of or sentiment ing hospital legal weight. proper. These instructions Whether the al- proper, was incompetent simply repeti- and were lowed a known to continue to stated the obvious given by enjoy privileges major point hospital of other instructions was tive determining hospital’s to we stated: be decided court. As negligence. give refuse to “It is not error to though it jury, to states a instruction D law, principle of if applicable correct in the instruction re- principle stated assert defendants covered another adequately fused is to refuse was error for the trial court given.” instructions instruction or other recall the determine the otherwise rumored, Price, 158, validity of a initial vote Morgan Syl. Pt. $250,000,000 jury panel to award plaintiff. find no We error. internal B operations jury panel presumed are litigants to be Voir dire dis fair. allows The defendants next assert that it juror prejudice cover a trial. before We serving jurors for circuit was error allow post-trial, will not allow collateral attack impaneled “B” to case court upon integrity jury’s in the absence Altizer, grand Mildred Ellen showing corruption or bias. Because decedent, of the plaintiff’s mother $10,000,- the ultimate was for However, award serving panel. on the at the time $250,000,000, fact that and not of voir dire both sides knew Mrs. Altiz higher number was discussed or even voted panel er’s service on circuit court “B” upon entirely irrelevant.4 Defendant (or diligence with reasonable should have Magnus’ contention that the should be known) objection and no was made. Fur nothing a restatement thermore, recalled more than court circuit allowed exten *7 that jury’s of his contention the award is sive, individual voir dire and no member of We shall this excessive. discuss contention any friendship the mem indicated with straightforward in an extensive man plaintiff's family. the bers of ner below.

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. 213 S.E.2d 475 dollars might be worth ten million item 163 W.Va. Really, million dollars isn’t all today. a Thus, we conclude that the defen anymore that much ... hospital’s negligence vel non was dant $10,000,000, and that the court properly jury question a If the race horse worth entitled failing the Roberts would be to direct verdict that’s what did not err fair for us to come to. It wouldn’t be hospital. the defendant strategic whether objection make the decision point no counsel to that there was 5. We out argument, anyone seriously object, probably contend counsel that an can dawned on but timely objection a "curative” instruc- that a and objection serve and "curative” instruction would changed in this would have the outcome tion point. plaintiffs to reinforce counsel’s roughly In available to case? seven seconds death) specifically Michael’s sets $11,000,000 it wouldn’t time of and and ask for (c)(1) (2) the losses only forth in subsections say, ‘We right, for the defense damages can be recovered. Ob- $9,000,000’ that case for which pay want to damages were require viously, if the measure of easy. would would be Justice then, arguably, $10,000,000 of a human life value verdict of ... verdict could be excessive. were a race horse and Now if Michael member, particularly family death of a Hospital operated a Clinic the Stevens child, grief for which involves inconsolable race horse hospital and a veterinarian money compensate. can no amount as a result of the named Michael died suggestion that the Roberts Counsel’s doctor, negligence veterinary you life for would not have traded Michael’s returning a any wouldn’t have trouble $10,000,000 they entirely accurate —but of dollars verdict for millions life also not have traded Michael’s what race horses you know that that’s $100,000,000 $1,000,000,000.7 or even a me, you tell the are You tell worth. care family, horses entitled to better are VI And are children less than children? Virginia, appellate In horses? ... West

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 of 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 reasonable 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 the 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). 122 S.E.2d 872 Va. nail, complexity pre- tooth both glacial pace of the Thus, paring for trial and the dispose of the we have decided to error, process guarantee at least a four assignment judicial name- one meritorious verdict, filing legit- simply year delay ly the excessiveness of the between Discussed, Browder, Authority, Transportation eastern Pa. in: Earl T. Inc. v. Webster 507 Pa. 8. 204, Court, 696, 700, (1985); Motor County Hasson v. Ford 489 A.2d 1291 145 W.Va. 388, 654, Company, (1960); Cal.Rptr. Napier, Fortner v. 32 Cal.3d 650 153 W.Va. dismissed, cert. See also 459 U.S. S.E.2d P.2d (1983); Am.Jur.2d, Niles v. L.Ed.2d 422 Trial 103 S.Ct. § New n. 19. Rafael, City Cal.App.2d San 116 Cal. (1st Dist.1974). Rptr. 733 plaintiffs While the furnished us with a num- magni- ber of cases where verdicts of this Courts, The Role 10.See Council on approved, plaintiffs the Role of in those tude have been Society, Publishing Courts in American personal injuries severe cases had suffered Galanter, Reading pp. future care costs 28-34. necessitated enormous medical Disputes: Landscape We Know and earning capacity. These ele- and also loss of What. Know) See, (And e.g., Think We About Our Fire- Don’t Know case. ments are absent in this *10 Litigious Society, Redevelopment Corp., Allegedly v. Crown Contentious 31 stone Center 693 (1983). (Mo. 1985) (en banc); Reilly v. South- L.Rev. 4 UCLA S.W.2d lawyers, is of and this too chancey receipt of the advice their complaint and

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 generally 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. 155 S.E.2d 884 us, In the case before justify their bills. Dettore, (1967); McMillen v. offer of settlement the fact that (1978). But we believe S.E.2d 459 of the defendant’s side came on the eve settlement discussions have some trial, enor- plaintiff after the had sustained subjective crite bearing necessarily on the case, preparing expenses mous appellate courts use to determine a ria that accuracy evidence of the circumstantial remittitur, such a determi proper this observation. negotia nation affects future settlement years depositions, months or Without tions. motions, pretrial de- interrogatories, and history We used this case’s settlement justi- a file to fense law firms cannot build thereof, liability or lack not as an indicia fees, large necessary to fy fees are party’s conduct as a barometer of each large Insur- sustain the overhead of firms. Obviously, trying to settle the case. then, defendants, ance clients and other go that need to to a there are some cases engaged potentially can find themselves cases, trial,12 including the full but most disastrous, all-or-nothing litigation simply us, present ques- that do not one before litigation lawyers are in the because their require tions of broad societal interest cheap settlement busi- business and not simple questions public hearings are occasional award ness. Without the little more. Settlement “how much” and greater times than what that is at least ten large part of has become too our civil parties have settled for immedi- would entirely in liability system to remain ately tragedy,11 after the there would be no background. exception Our unillúminated part temper incentive on the of clients to hoary evidentiary rule to the venerable and building, proclivities file anti-settlement excluding all mention of settlement at lawyers urging quick payment their Sometimes, course, proceeding necessary if stage of in-court just claims. it is litigation against jurisprudence of settlement is to be cre- insist on the clients who Fiss, Settlement, Magnus Against See 93 Yale for defendant conceded in Owen 11. Counsel $300,000 (1984). argument example oral in this court that L.J. 1073 An of such would be appropriate jury Education, have been the outer limit of an v. Board 347 U.S. Brown appro- Certainly would have been an award. (1954); 98 L.Ed. 873 349 U.S. S.Ct. figure days priate if within 60 settlement offered L.Ed. 1083 S.Ct. tragic of Michael’s death. . *11 have to dictated litigants asked we work with are the Accordingly, ated.13 we the appellee to the includ- subject, happenstances history brief the of rather than outlining offers ed a in his brief section any design. intelligently calculated and counteroffers made. jury system given, as are both “the is a delay law’s the insolence of office.” [and] plaintiff’s About two months before which But the constraints under our defen- a written offer both counsel made $5,000,000, place little dants which was materials us we differ from to settle for total approximately architects, builders, engineers. half of the available other $10,250,000. coverage No re- insurance of If, engineer example, for architect or an sponse from defendants was received measuring with sensitive devices were to before the Mon- Friday until the afternoon stand in the Cathedral in nave Great At day that time de- morning trial date! Salisbury, England, he would discover that $100,000 Magnus offered and the fendant tip exactly spire of the cathedral’s 3.2 The next rejected. day offer the offer was feet off dead in the direction of center $125,000, was one increased to after prevailing southwestern winds. Someone trial, plaintiffs week most of the of when prevailing unfamiliar with the winds and in, evidence was and both defendants had flexibility built from of structures verdict, expect a de- reason to substantial might stone medieval mortar conclude Magnus increased the offer to fendant Salisbury’s sloppy builders were $220,000. craftsmen; yet it is the deviation from the- perfection, to reality, oretical a concession VIII permitted spire that has to survive in light statistically demonstrable pun- splendor years hundreds of of all litigation fact14 settlement rather than ishment the elements. cynosure judicial is the whole true Salisbury like do Medieval cathedrals not then, case, process, we ask in this draw us sustain our attention and back money much ourselves how Roberts again time and achieved time compensate family receive to them should supported or spectacular heights incredible for losses enumerated under design can Any stresses. modern architect Statute; we our- Wrongful Death also ask propor- and execute a cathedral with in a selves award case of this what of New World Trade Center type proper for tions York’s establish the climate will Certainly hundred supporting out-of-court settlements. these a load several times background in the Salisbury were weight parts considerations com- of all reasoning extremely our when court’s amazing in Gothic architec- bined. What is Addair, supra, criteria review- liberal for effect, upward is the in terms of ture ing were formulated. jury awards exhilarating proportions, thrust fly- materials. The primitive

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. damages 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. 169 S.E. 447 measure] Nuttalburg Mooney v. Eastern As- Coal & Coke jury’s job.” is the 66 W.Va. hospital’s negligence required by party, preserved; (relating if either evidence of the shall investigation jurisdic- and in in a court initial and annual evaluation of such suit of limited Magnus) persons. hospital’s Dr. tion a consist of No to withstand the motion shall six event, any by jury for a directed shall be reexam- verdict. In tried otherwise fact majority according consistency, opin- sake of internal ined case than to rule of added) option (emphasis ion should extend the a new court or law. damages. limited to the issue of majority opinion 4. with un- encumbered necessary body temptation majority opinion, In two of I will resist the dicta. 2. dicta, precedents majori contrary dissent to such as there are of this Court to the whether legal ty’s holding system and the cited but are not similarities between remittitur are Salisbury, expressly Napier, "a dissent overruled: Great Cathedral in Fortner v. 153 143, (1969); clap- T. to dicta like the sound of one hand W.Va. 168 S.E.2d Earl Brow 737 der, 696, Court, ping[.j” Pittsburgh Virginia County Elevator v. v. Co. West Inc. 145 W.Va. 116 743, 757-759, (1960). Regents, W.Va. This Board 172 310 S.E.2d 867 covert manner over J., 675, (1983) (Neely, concurring in ruling S.E.2d cases is not new the author 690 dissenting part). opinion. part majority See must be ”[L]aw Church Exten Board of Eads, 943, 6, W.Va. written with care. It is meant to be an exercise sion v. 159 n. 230 S.E.2d 956 911, mind, (1976) venting spleen." (expressly overruling not a Id. n. 6 918 footnote, precedent deep lengthy within a fact dissenting concurring overlooked opinion I use "solatium” the term therein). opinions categorize injuries those emotional listed 55-7-6(c)(l)(A) [1982], W.Va.Code, quoted infra Const, Ill, 13, part 3. W.Va. art. of this § State’s City in the text the discussion of Bond v. after Rights, provides: Bill of 581, Huntington, W.Va. S.E.2d 539 166 276 law, Court "sola- at common where the in which this used the term suits value in controversy twenty Black’s exceeds dollars tium” in the identical manner. See also exclusive costs, (5th 1979). right by jury, Dictionary of interest and of trial Law 1248 ed. 506

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 legislative 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 276 S.E.2d at 541. mous, measure, beyond at first blush all Code, 7—6(b)[1982]6provides W.Va. 55— unreasonable, outrageous, manifestly jury “may damages award such as to it jury passion, show partiality, prejudice or may W.Va.Code, just[.]” seem fair and corruption.” Syl., Majestic Addair v. Pe- 55-7-6-(c)(l)(A)[1982] contains a noninclu- 105, 160 W.Va. 232 S.E.2d sive list types injuries troleum of emotional (1977). 10, syl. pt. Ilosky See also for v. which the must determine —neces- 435, Corp., Michelin Tire sarily, W.Va. subjectively money amount of —an (1983); syl. pt. S.E.2d 603 “compensation”: Elsey Ford “The verdict of the Sales, Solomon, include, Inc. v. jury shall 167 W.Va. may not be limited to, (1981). S.E.2d 718 “This (A) Sorrow, objec- for the rule is following: no[t] anguish, mental tive. ... does not of may in- course remove the solace which [It] society, comfort, judgment clude final judges, [para.] from the companionship, guidance, kindly hereby admonishing offices But we are judges our advice Thus, for and ourselves ... not to these indeter- interfere in the decedent[.]” “ minate, nonpecuniary damages, jury’s except domain law with extreme reluc- ‘[t]he Addair, furnishes no measure of damages tance.” supra, other 160 W.Va. at enlightened than the conscience impar- 232 S.E.2d at 825. W.Va.Code, 55-7-6(d)

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 cally 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- 116 S.E.2d 867 W.Va. collegial action is tial Such discussion[.]” 4, point Chapman v. Beltz & bus province [J.W.] invasion of the an unconstitutional Co., 1, 35 S.E. 1013 48 W.Va. of the Sons jurors. After a review cold (1900). record, my colleagues pages of three of Code, provides now bers.

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. 7 S.E. 4558 (1978); 3, Napier, 153 syl. pt. Fortner v. point, overruled on another Richmond v. (1969); 143, Bragg v. W.Va. S.E.2d Henderson, 389, 37 S.E. 653 48 W.Va. 722, Co., 125 W.Va. C.I. Whitten Transfer held that the determination The rule S.E.2d only right recovery but also of the succinctly. “A has also been stated more recovery, amount of the where proper unless exces- remittitur is not part unliquidated, are is a sum certain part sive of the verdict Ill, guaranteed by art. 13. W.Va.Const. § Syl. pt. record.” determinable from the He observed that the state consti- further Court, Browder, County Earl T. Inc. v. namely, tutions of two .states, (1960) (col- Virginia Oregon,9 expressly safeguard cases decided lecting numerous guaranteeing verdict addition to Court). W.Va.L.Q. right to a trial. 49 21- at practice I that the of remittitur has note judicially abolished in all cases in the been prescribed The “law” which is in our Missouri, in favor of the State of exclusive limiting constitution as the methods of re new trials. use of Firestone v. Crown examination of facts found Redevelopment Corp., 693 S.W.2d Center understood be the common law which (Mo.1985)(en banc). prevailed jurisdiction at the time adopted.

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, damages 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 a 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 79 L.Ed. at 293 U.S. 55 S.Ct. at opinion in violation of this rule majority 611. Rights. and the Bill of Schiedt, uphold- Supreme the United States U.S. Court of Dimick S.Ct. authority ing, holding law without citation of common 79 L.Ed. 603 additur to point, in federal remittiturs in such cases improper federal courts as a violation of the in compelled, right The felt courts. Court in Dimick a trial under the Federal Constitu- to however, of, decisis, tion, al- attempts under stare to continue to a discussion also contains opinion recog- courts involv- distinguish, low remittiturs in cases in federal remittiturs. The excessive, clearly unliquidated-damage ing strongly questions nizes as but unreasoned opinion adop- majority in the English precedents, antedating award. Prior to the few older rule, Court, contrary in case now before this tion the seventh amendment permit involving unliqui- with law embedded in cases accord the common remittiturs in Const, Ill, opinion ques- decisis in damages. strongly also W.Va. art. was stare § dated tions, therefore, The jurisdiction. validity prior opinions good summary following prevail.

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 constitu- 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 actions 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 326 S.E.2d 427 be made (1984). case to relative size of the verdict is not to determine its “shocking” that it amount. show is not wrongful award for solatium in a death by determining lump case sum amount Sears, 615 Rawson v. Roebuck & which, invested, when will result in an an- (D.Colo.1985), de- F.Supp. 1546 the court just. amount which is nual at once fair and a remittitur nied the defendant’s motion for Whether an award for solatium is excessive $19,000,- or new after a verdict by calculating properly is not determined 000.00, $5,000,000.00 including pain, Denison, yield. Pippen its annual v. 66 humiliation, suffering and in favor of a 60- 677, 664, 704, Mich.App. 239 710 N.W.2d discharged year-old plaintiff had been who Dial, 503, 514, (1976); Wry Ariz.App. v. age in violation of a state discrimination 979, (1972), 503 P.2d review denied $5,000,- Compared statute. to an award (1973).14 injuries 000.00 for emotional sustained individual, in the case the verdict now large. No one that the verdict is doubts all, before this Court is excessive at doubts, either, parents No one that the Here, the award much less “monstrous.” Michael, decedent, siblings en among four individuals who is to be divided dured and will continue to endure the ulti longer expectancies life than have much highest privilege that mate loss. “The is Rawson, plaintiff supra, and the given one in this life is to ‘rear and conduct injuries more emotional are far severe. through of childhood and the vicissitudes A second indicator of the relative size of children; educate and maintain’ one’s that, in this case is the fact verdict greater happiness pertains to this source Research, Inc., according Jury Verdict Sample Light life.” v. & Consolidated average year 1985 in verdict 472, 473, 597, 598 Ry., 50 W.Va. 40 S.E. country malpractice medical cases in this (1901). Accord, Compania Dominicana $1,000,000.00. Church, Sorry, exceeds 18, 24 Knapp, 251 de Aviacion v. So.2d Canceled, Time, 24, Policy is Mar. Your denied, (Fla.Dist.Ct.App.1971), cert. 1986, 16, 20. The evidence this case (Fla.1971). damage award That So.2d of the four individuals indicates that each “precedent shattering” is of little mo (before damages de- would recover

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 “ceilings" 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 valuable “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, controversy 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 age 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, 345 S.E.2d 814 Chesterton, paradox,” “prince Gary Robert CRAIGO framing experience of two millennia v. The Twelve Tremendous Trifles: Men, said: HEY, Judge and Hon. Hon. John Circuit decided, “Our civilization has MacQueen, Judge. A. Andrew Chief decided, determining very justly that men guilt or innocence of [natural important too thing or artificial] James M. OXIER It trusted to men. wishes trained matter, light upon it that awful RANDOLPH COUNTY law than asks men who no more know CIRCUIT COURT. know, things I but who can feel I felt in When it box. Nos. 17086. library or the so- catalogued, wants Supreme Appeals Court discovered, system any trifle of lar Virginia. kind, specialists. up uses when it done anything But wishes June really serious, it collects standing the ordinary men

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.,