Combs v. Hahn

• Decision Date: 11 June 1999
• Docket Number: No. 25824.,25824.
• Citation: 516 S.E.2d 506,205 W.Va. 102
• Court: West Virginia Supreme Court
• Parties: Lisa A. COMBS, Plaintiff Below, Appellant, v. John L. HAHN, M.D., Defendant Below, Appellee.

516 S.E.2d 506

205 W.Va. 102

Lisa A. COMBS, Plaintiff Below, Appellant, v. John L. HAHN, M.D., Defendant Below, Appellee.

No. 25824.

Supreme Court of Appeals of West Virginia.

Submitted May 11, 1999.

Decided June 11, 1999.

Laurie Garrigan McKowen, Kathleen T. Pettigrew, Masters & Taylor, Charleston, West Virginia, Peter C. Burnett, Burnett & Williams, Leesburg, Virginia, Attorneys for Appellant.

Susan S. Brewer, Jacqueline A. Jordon, Steptoe & Johnson, Morgantown, West Virginia, Attorneys for Appellee.

DAVIS, Justice:

Lisa A. Combs, the appellant herein and plaintiff below (hereinafter "Ms. Combs"), filed this appeal from a favorable jury verdict in a medical malpractice action against the appellee herein and defendant below, Dr. John L. Hahn (hereinafter "Dr. Hahn"). The jury awarded to Ms. Combs $16,125.00 for past medical expenses. However, the jury made no award for general damages (pain and suffering). After addressing the threshold question of whether Ms. Combs timely objected to a defect or irregularity in the verdict form, we resolve this appeal on the sole issue of whether the Circuit Court of Grant County committed error by denying Ms. Combs's motion for a new trial on the issue of damages.¹ Upon a review of the arguments, the record presented on appeal, and the pertinent authorities, we first find, due to extenuating circumstances present in this case, that Ms. Combs's failure to timely object to the form of the jury verdict does not constitute a waiver of her objection. We further conclude that, because the jury clearly erred by failing to award general damages to Ms. Combs, she is entitled to a new trial on the issue of damages.

I. FACTUAL AND PROCEDURAL HISTORY

On January 12, 1995, Ms. Combs gave birth to her second child at Grant Memorial Hospital. The treating physician was Dr. Hahn. During delivery, Ms. Combs suffered a laceration of the tissue between the vagina and the rectum. Dr. Hahn diagnosed the tear as only a second degree laceration.² Therefore, Dr. Hahn performed only the necessary repair for a second degree laceration. Ms. Combs was discharged from the hospital on January 13, 1995.

For several weeks after her discharge, Ms. Combs endured rectal bleeding and "foul" smelling blood clots. Ms. Combs was treated by Dr. Hahn on several occasions regarding her postpartum complaints. Unfortunately, Dr. Hahn failed to correctly diagnose the problem. In March of 1995, Ms. Combs contacted her regular treating physician, Dr. Elizabeth Hynes, and reported her problems. During the course of the next few months, tests and examinations were performed on Ms. Combs. As a result of her follow-up treatment, Ms. Combs was admitted to the University of Virginia Hospital on June 25, 1995, for surgical repair of a torn sphincter, bowel and rectovaginal fistula. This additional surgery was the result of Ms. Combs having sustained a fourth degree laceration during Dr. Hahn's delivery of her child.

On February 28, 1996, Ms. Combs filed this medical malpractice action against Dr. Hahn. Her complaint alleged Dr. Hahn was negligent in the failure to detect and repair the fourth degree laceration. A jury trial was held on February 17 through 20, 1998. The jury returned a verdict concluding that Dr. Hahn was negligent. However, the jury awarded to Ms. Combs only the stipulated past medical expenses of $16,125.00. Ms. Combs then moved the trial court for a new trial solely on the issue of damages.³ On July 7, 1998, the trial court entered an order denying the motion for a new trial on the issue of damages. It is from the circuit court's ruling that Ms. Combs now appeals.

II. STANDARD OF REVIEW

This Court has held that "[i]n an appeal from an allegedly inadequate damage award, the evidence concerning damages is to be viewed most strongly in favor of the defendant." Syl. pt. 1, Kaiser v. Hensley, 173 W.Va. 548, 318 S.E.2d 598 (1983). "We will not find a jury verdict to be inadequate unless it is a sum so low that under the facts of the case reasonable men cannot differ about its inadequacy." Syl. pt. 2, Fullmer v. Swift Energy Co., Inc., 185 W.Va. 45, 404 S.E.2d 534 (1991). In Syllabus point 3 of Biddle v. Haddix, 154 W.Va. 748, 179 S.E.2d 215 (1971), we ruled that:

In a civil action for recovery of damages for personal injuries in which the jury returns a verdict for the plaintiff which is manifestly inadequate in amount and which, in that respect, is not supported by the evidence, a new trial may be granted to the plaintiff on the issue of damages on the ground of the inadequacy of the amount of the verdict.

Within the confines of this standard of review, we begin our analysis.

III. DISCUSSION

A. The Effect Of Failing To Object To The Form Of A Verdict Before The Jury Is Discharged

Before reaching the merits of this appeal, this Court must determine whether Ms. Combs raised a timely objection to the defect or irregularity in the form of the verdict returned by the jury.⁴ The facts show that Ms. Combs objected to the form of the verdict after the jury was discharged. This Court has not expressly addressed the issue, in the context of a civil action,⁵ of the effect of failing to object to the form of a verdict returned by a jury before the jury is discharged.⁶ Courts addressing this precise issue have responded that, as a general matter, "[t]o assert on appeal that the verdict is defective, a party must object to the verdict when it is returned and prior to the jury's discharge ." McDougal v. Griffith, 156 Or. App. 83, 87, 964 P.2d 1135, 1136 (1998). See North Am. Catamaran Racing Ass'n, Inc. v. McCollister, 480 So.2d 669, 671

(Fla.Dist.Ct. App.5.1985) ("[A] party must object to defective verdict forms or inconsistent verdicts before the jury is discharged to preserve the claim" (citations omitted)).⁷ The rationale for the rule is, that it "is required in order to give the trial court the opportunity to correct any infirmity in the verdict while correction is still possible." State Farm Mut. Auto. Ins. Co. v. Weber, 767 S.W.2d 336, 338 (Mo. Ct.App.1989). Accord P.A.M. Trans., Inc. v. Arkansas Blue Cross & Blue Shield, 315 Ark. 234, 242, 868 S.W.2d 33, 37 (1993).

Courts hold broadly that "[w]here a party fails to object to the form of the verdict before the jury is discharged, the objection is waived." Rodebush v. Oklahoma Nursing Homes, Ltd., 867 P.2d 1241, 1245 n. 2 (Okla. 1993) (citation omitted).⁸ However, a few courts have qualified the waiver rule on certain grounds. Some courts have held that if the trial court affords no "opportunity [to object] prior to discharging the jury from further service, waiver of the issue d[oes] not occur." Nelson v. Sigman, 558 N.E.2d 1115, 1117 (Ind.Ct.App.1990). See also Mielitz v. Schmieg, 461 N.W.2d 763 (S.D.1990)

(jury discharged before opportunity to object). Other courts have held that "there is no waiver of this issue when the plaintiff has filed a motion for new trial which challenged a zero verdict after a jury found liability." Cowen v. Thornton, 621 So.2d 684, 687 (Fla. Dist.Ct.App.1993). Accord Barnes v. Oswalt, 579 So.2d 1319, 1321 (Ala.1991).

At least one jurisdiction has made a distinction, for waiver purposes, between a verdict that is defective in form and a verdict that is defective in substance. In Anderson's Executrix v. Hockensmith, 322 S.W.2d 489 (Ky.1959), the Supreme Court of Kentucky ruled as follows:

A responsibility rests upon a litigant who desires a verdict which is irregular in form to be clarified to request that it be done, and to specify the particulars before the members of the jury are discharged. If he fails to do so, he will be deemed to have waived his right where the error is a defect in the form of the verdict and does not affect the merits or the rights of the parties. The right after waiver cannot be reclaimed and revived by a motion for a new trial. However, where a verdict is so uncertain, ambiguous, contradictory, or illogical that it cannot be clearly ascertained who it is for or against or what facts were found and the court cannot reasonably construe the language so as to give effect to what the jury unmistakably found as a basis of a judgment thereon, the vice in the verdict is more than formal. Such a condition is of the substance and affects the merits of the case. Where a verdict is of that character, the party against whom the judgment goes does not waive the defect by failing to ask that the jury clarify the verdict. He may raise the question on a motion for a new trial and the court should grant it.

Anderson's Executrix, 322 S.W.2d at 490-491.

To assert on appeal or at the trial court level that a jury verdict is defective or irregular in any respect, a party must object to the verdict when it is returned and prior to the jury's discharge. Thus, in view of the authorities cited, we hold that absent extenuating circumstances, the failure to timely object to a defect or irregularity in the verdict form when the jury returns the verdict and prior to the jury's discharge, constitutes a waiver of the defect or irregularity in the verdict form.⁹

In the instant proceeding, Ms. Combs did not object to the form of the jury's verdict until after the jury was discharged. Ms. Combs contends, and we agree, that she did not have an opportunity to object before the jury was discharged. The primary reason is the manner in which the trial court read the jury verdict to the parties. During oral argument before this Court, counsel for Ms. Combs stated that counsel did not understand the trial court's reading of the verdict form to indicate that no award was set out for general damages. More importantly, the trial court immediately discharged the jury after reading the verdict. In fact, the parties were not afforded an opportunity to actually see the verdict form until after the jury was discharged. The events which transpired when the jury returned its verdict are outlined below:

THE COURT: Do you find from a...