Coleman v. Sopher

Citation499 S.E.2d 592,201 W.Va. 588
Decision Date20 November 1997
Docket NumberNo. 23943.,23943.
CourtSupreme Court of West Virginia
PartiesMary COLEMAN, J. Wesley Coleman, and Michelle Coleman, Plaintiffs Below, Appellees, v. Irvin SOPHER, Defendant Below, Appellant.
Dissenting Opinion of Justice Maynard November 21, 1997.

Concurring Opinion of Justice McHugh December 18, 1997.

Charles F. Johns, Amy M. Smith, Steptoe & Johnson, Clarksburg, for the Appellant.

Joseph C. Cometti, Charleston, for the Appellees.

DAVIS, Justice:

Dr. Irvin Sopher, Chief Medical Examiner for the State of West Virginia, appeals a judgment entered against him by the Circuit Court of Fayette County in a tort action initiated by the relatives of a decedent upon whom Sopher performed an autopsy. The suit alleged that Sopher intentionally and without authorization removed the heart of the decedent. Sopher argues that the circuit court erred in finding that he was not entitled to qualified immunity with respect to the claims against him, in admitting certain evidence that Sopher now claims was prejudicial, and in instructing the jury that it could award punitive damages. Sopher also claims that a successor judge presiding over a portion of the proceedings erred in reconsidering earlier rulings made by the original trial judge. We find no error. Therefore, we affirm the final order of the circuit court.


Elmer Coleman, a thirty-nine year old coal miner, died suddenly from a heart attack on September 26, 1987. In order to determine whether occupational pneumoconiosis contributed to Elmer's death, his wife, Mary Coleman, executed a "CONSENT TO AUTOPSY," authorizing the "hospital or its agents and representatives, to do all procedures necessary or proper, including the removal of organs and parts of said body for microscopic or other examination and analysis."1 The autopsy was performed on September 27, 1987, by Dr. Irvin Sopher, Chief Medical Examiner for the State of West Virginia [hereinafter Sopher]. Sopher's subsequent report, titled "POST-MORTEM EXAMINATION FINDINGS," failed to indicate whether pneumoconiosis had contributed to Elmer's death. However, relevant to the issues at hand, the report included the statement "[t]he heart is not removed from the body...." Following the autopsy, Elmer's body was released to Combs-Pennington Funeral Home where it was embalmed by Paul Pennington, the owner of the funeral home. After a funeral, Elmer's body was laid to rest in a mausoleum.

Sometime later, Mary Coleman filed a Workers' Compensation claim for occupational pneumoconiosis [hereinafter OP] survivor's benefits. Her claim was denied because Sopher's autopsy report did not indicate that Elmer Coleman suffered from OP. Consequently, Mary permitted Elmer's body to be exhumed and executed a second "CONSENT TO AUTOPSY" authorizing Dr. Echols Hansbarger to perform an autopsy to determine whether Elmer suffered from pneumoconiosis and, if so, whether it contributed to his death. Dr. Hansbarger's subsequent report noted that "the heart [was] not identified or found." When Mary Coleman discovered that her husband's heart had been removed from his deceased body, she became emotionally upset. Her children, J. Wesley and Michelle, became similarly distressed upon learning this information. Thereafter, Mary, J. Wesley and Michelle Coleman [hereinafter collectively referred to as the Colemans], filed suit in the Circuit Court of Fayette County against Sopher and Paul Pennington. The suit alleged intentional infliction of emotional distress, conversion and outrageous conduct.

By order entered November 7, 1991, the circuit court related that it earlier had announced that it "intended to grant summary judgment, sua sponte, on the grounds that the Plaintiff cannot legally maintain [an] action against two Defendants alleging that one or the other Defendant, but not both, are liable to the Plaintiff." The Colemans then moved to amend their complaint to elect one of the two defendants against whom they wished to proceed. The circuit court granted the motion. On April 13, 1992, the Colemans filed their amended complaint, which alleged the same causes of action as their original complaint, but listed Sopher as the sole defendant. In his answer to the Colemans' amended complaint, Sopher denied removing Elmer Coleman's heart and named Paul Pennington [hereinafter Pennington] as a third-party defendant.

The Honorable Judge W. Robert Abbot presided over the subsequent jury trial. At the conclusion of the evidence, Judge Abbot granted a directed verdict in favor of Pennington. On October 7, 1992, the jury returned a verdict against Sopher awarding compensatory damages of $75,000 to Mary Coleman and $30,000 each to J. Wesley and Michelle, and punitive damages of $50,000. Sopher then filed motions for judgment notwithstanding the verdict and for a new trial or remittitur. On April 21, 1994, Judge Abbot entered an order granting remittitur. He reduced the compensatory damage award to $50,000 for Mary Coleman and $10,000 for each child. The punitive damage award was not changed. The order also stated:

The Court, having granted a remittitur of the jury's verdict as stated herein, then did inquire of the plaintiffs whether they elected to have a new trial on the issue of damages or accept the remittitur. In response, counsel for the plaintiffs informed the court that the plaintiffs would not accept the remittitur and opted instead for a new trial.

The Colemans appealed the April 21, 1994, order to this Court. We initially granted the petition for appeal. However, following oral argument, in an opinion delivered by Justice Cleckley, the case was dismissed as improvidently granted. See Coleman v. Sopher, 194 W.Va. 90, 459 S.E.2d 367 (1995)


Thereafter, the matter was set for a new trial on damages in the circuit court. Because Judge Abbot had retired and subsequently died, the case was assigned to the Honorable Judge John W. Hatcher. After reviewing the case record, Judge Hatcher, sua sponte, asked the parties to argue whether he should reconsider Judge Abbot's rulings on Sopher's post-trial motions. Following arguments, Judge Hatcher, by order entered May 2, 1996, denied all of Sopher's post-trial motions. In the text of the order, Judge Hatcher discussed the trial court's delay of approximately one and one-half years in ruling on the defendant's post trial motions, the absence of a complete record of the court's hearing on those motions, and the lack of findings of fact and conclusions of law in the court's order. Judge Hatcher commented:

The Court, in consideration of Rule 63 of the West Virginia Rules of Civil Procedure, West Virginia case law and the Court's duty and inherent power to insure the effective and expeditious administration of the business of the Court, is of the opinion that because the Court failed to make any findings of fact and conclusions of law in regard to its rulings as to the aforementioned post-trial motions, the Court should now reconsider, on its own motion, the Court's rulings in regard to said post-trial motions, and make findings of fact and conclusions of law in regard thereto. The Court now can, by reading the trial transcripts of this case, just as easily and competently consider and rule on the Defendant's post-trial motions, as could the original trial court nearly one and one-half years after the conclusion of the trial. The Court's present action is not to be taken as any criticism whatsoever of the original trial judge.

It is from this order that Sopher now appeals.

A. Qualified Immunity

We first address Sopher's contention that the circuit court erred in rejecting his defense of immunity. Sopher raised the immunity issue in his motion for summary judgment, and again when he moved for a directed verdict. Unfortunately, in framing this issue for appeal to this Court, Sopher has failed to identify the particular stage of trial at which the court allegedly erred. To avoid an unnecessarily lengthy discussion addressing the possible points at which this error might have occurred, for purposes of our discussion, we will treat Sopher's argument as one complaining that the trial court erred in denying his motion for summary judgment on the grounds of qualified immunity.2 This error presents a question of law which we will review de novo. See Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995) ("Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review."). See also Syl. pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994) ("A circuit court's entry of summary judgment is reviewed de novo.").3 Moreover, we note that:

"`A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.' Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963)." Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992).

Syl. pt. 1, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995). Having set forth the appropriate standard for reviewing this issue, we turn now to the merits of Sopher's claimed error. Sopher argues that, as an appointee of the director of the Department of Health whose salary is paid by public funds, he is a public official entitled to qualified immunity pursuant to this Court's holding in Clark v. Dunn, 195 W.Va. 272, 465 S.E.2d 374 (1995). Sopher asserts that he is shielded by immunity as he was acting within the scope of his authority, under W. Va.Code § 61-12-10,4 to retain tissue for further study or consideration, and, further, because he did not violate any clearly established...

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