Coleman v. Sopher
| Decision Date | 15 June 1995 |
| Docket Number | No. 22592,22592 |
| Citation | 459 S.E.2d 367,194 W.Va. 90 |
| Court | West Virginia Supreme Court |
| Parties | Mary COLEMAN, et al., Plaintiffs Below, Appellants, v. Irvin SOPHER, Defendant Below, Appellee. |
1. Syl. pt. 1, James M.B. v. Carolyn M., 193 W.Va. 289, 456 S.E.2d 16 (1995).
2. Syl. pt. 2, James M.B. v. Carolyn M., 193 W.Va. 289, 456 S.E.2d 16 (1995).
3. Syllabus Point 3, James M.B. v. Carolyn M., 193 W.Va. 289, 456 S.E.2d 16 (1995).
4. When a party agrees to or requests a new trial, and a new trial is granted because of the agreement or request, a denial of appellate review is justified on the ground that the party has elected to accept the new trial and should be bound, as if the party had entered a settlement agreement to forego appeal of the order granting a new trial.
Barbara H. Allen, Joseph C. Cometti, Allen & Allen, Charleston, for appellants.
Charles F. Johns, Amy Smith, Steptoe & Johnson, Clarksburg, for appellee.
The plaintiffs below and appellants herein, Mary Coleman, J. Wesley Coleman, and Michelle Coleman, appeal from the circuit court's use of remittitur to reduce the amount of their jury award. The defendant below and appellee herein, Dr. Irvin Sopher, asserts that remittitur was proper and cross-assigns that the circuit court committed various other errors that prejudiced the defendant at trial. The circuit court at the request of the defendant and the acquiescence of the plaintiffs granted a new trial on the issue of damages. Before the commencement of the new trial, both parties filed a petition for appeal with this Court. As a result of the pending action in the circuit court, we find the petition for appeal was improvidently granted and this appeal must be dismissed for lack of appellate jurisdiction.
On September 26, 1987, Elmer Coleman collapsed at home from a heart attack. An ambulance rushed Mr. Coleman to Montgomery General Hospital, where an emergency room physician pronounced him dead on arrival. 1 Mrs. Coleman arrived at the hospital sometime later. Hospital staff asked Mrs. Coleman whether she wanted an autopsy performed on Mr. Coleman. Mrs. Coleman consented to the autopsy after Mr. Coleman's father told her she might have a claim for occupational pneumoconiosis benefits as a result of Mr. Coleman's years of working in the coal mines. Mrs. Coleman thought an autopsy Later that day, Mr. Coleman's body was transported to the Office of the Chief Medical Examiner of West Virginia. Dr. Irvin Sopher, the Chief Medical Examiner, performed an autopsy the next day. Mr. Coleman's body was then transported to Combs-Pennington Funeral Home where the owner, Paul Pennington, embalmed the body. The funeral occurred without incident.
[194 W.Va. 93] might indicate whether occupational pneumoconiosis contributed to her husband's death.
Sometime later, Mrs. Coleman applied for occupational pneumoconiosis survivor benefits. After her claim was refused, Mrs. Coleman's attorney, Heidi Kossuth, collected additional medical information on Mr. Coleman. The autopsy report prepared by Dr. Sopher contained no findings helpful to the occupational pneumoconiosis claim since it stated there was no indication that Dr. Sopher examined the lungs. The following phrase, however, was recorded on the report: " 'The heart is not removed from the body[.]' " Ms. Kossuth informed Mrs. Coleman that the present medical reports did not show occupational pneumoconiosis and a second autopsy might produce the necessary evidence to support a claim for benefits. Mrs. Coleman consented to the second autopsy.
On September 13, 1989, Dr. Echols Hansbarger performed a second autopsy. After inspecting the thoracic cavity, Dr. Hansbarger's report noted he found no evidence of pneumoconiosis. The report also stated "the heart is not identified or found." After Mrs. Coleman became distraught over the report's revelation as to the missing heart, Ms. Kossuth called Dr. Sopher. According to Mrs. Coleman, Dr. Sopher later called her and told her that he was not sure, but he thought he had given the heart to Mr. Pennington to put back into the body during the embalming.
Mrs. Coleman subsequently filed suit naming Dr. Sopher and Mr. Pennington as defendants. The complaint alleged either Dr. Sopher or Mr. Pennington concealed the fact that the heart was removed from the body. Three causes of action were alleged: (1) intentional infliction of emotional distress, (2) outrageous conduct, and (3) conversion. The complaint cited as damages the fact that Mrs. Coleman and the Coleman children suffered "emotional pain and suffering, anxiety and depression[.]" The Colemans sought both compensatory and punitive damages.
At a status conference, the circuit court announced that it intended to grant summary judgment to the defendants on the ground that the plaintiffs could not "legally maintain this action against two Defendants alleging that one or the other Defendant, but not both, are liable to the Plaintiff[s]." The circuit court permitted the plaintiffs leave to amend the complaint naming one of the two defendants. The circuit court entered a summary judgment for Paul Pennington after the Colemans decided to pursue the suit against Dr. Sopher. Dr. Sopher brought Mr. Pennington back into the suit by filing a third-party complaint.
At trial, the three plaintiffs gave detailed testimony about their emotional distress. Mr. Pennington made a motion for a directed verdict at the conclusion of the plaintiffs' case. The circuit court ultimately granted this motion. Subsequently, Dr. Sopher took the stand and denied removing the heart. However, during cross-examination, Dr. Sopher admitted he had published several articles about a condition called myocarditis, which is an inflammation of the heart muscle. He also admitted to occasionally securing for research heart tissue samples from autopsies. Further testimony revealed that patients suffering from myocarditis experience symptoms like a chest cold and sore throat. One of the exhibits introduced by Dr. Sopher indicated that Mr. Coleman suffered from chest pain and indigestion before collapsing.
The jury returned a verdict in favor of the plaintiffs. The Colemans were awarded a total of $185,000 in compensatory and punitive damages. After trial, Dr. Sopher filed motions for a new trial, judgment notwithstanding the verdict, and remittitur. In support of the motions, Dr. Sopher asserted, among other things, that the verdict was "incited by jury passion and prejudice." The circuit court denied all the post-trial motions, except for remittitur. The circuit court gave the plaintiffs the option of accepting a reduction On appeal, the plaintiffs assert the circuit court lacked the authority to apply remittitur to this case. The defendant argues remittitur was appropriate and cross-assigns that the circuit court erred by (1) rejecting his claim of governmental immunity from prosecution, (2) violating Rule 404(b) of the West Virginia Rules of Evidence by admitting testimony about his tissue donations to Marshall University Medical School in the past, and (3) permitting the plaintiffs' claim for punitive damages.
[194 W.Va. 94] in their damage award or a new trial on damages. The circuit court proposed reducing Mrs. Coleman's compensatory damages from $75,000 to $50,000 and each of the children's compensatory damages from $30,000 to $10,000. There was to be no reduction in the $50,000 punitive damage award. The circuit court granted a new trial on damages when the plaintiffs rejected the proposal.
The plaintiffs argue the circuit court improperly applied remittitur to their compensatory damage awards. The circuit court presumably determined the size of the compensatory portion of the verdict was excessive. The circuit court gave the plaintiffs the option of having a new trial on the issue of damages or accepting a remittitur which would lower the amount of compensatory damages by $65,000. The plaintiffs opted for a new trial. Nevertheless, the plaintiffs appeal the remittitur, which they now suggest was done in anticipation of an appeal by the defendant. The defendant cross-assigns various errors.
On our own initiative, we question our jurisdiction to hear any of the issues on appeal. We find that in absence of a final order, this case is not ripe for appeal and is thereby dismissed for lack of jurisdiction.
Our analysis must necessarily begin with our seminal case of James M.B. v. Carolyn M., 193 W.Va. 289, 456 S.E.2d 16 (1995), where we declared this Court has a duty to examine its own jurisdictional authority even if it is not raised by the parties. In Syllabus Points 1 and 2 of James M.B., we stated:
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