Kessel v. Monongalia County General Hosp., No. 33096.

CourtSupreme Court of West Virginia
Writing for the CourtBenjamin
Citation648 S.E.2d 366
Decision Date06 June 2007
Docket NumberNo. 33096.
PartiesJames W. KESSEL, M.D., Richard M. Vaglienti, M.D., and Stanford J. Huber, M.D., Plaintiffs Below, Appellants v. MONONGALIA COUNTY GENERAL HOSPITAL COMPANY, d/b/a Monongalia General Hospital, a West Virginia Non-Profit Corporation, Mark Bennett, M.D., individually, Bennett Anesthesia Consultants, P.L.L.C. and Professional Anesthesia Services, Inc., Defendants Below, Appellees,
648 S.E.2d 366
James W. KESSEL, M.D., Richard M. Vaglienti, M.D., and Stanford J. Huber, M.D., Plaintiffs Below, Appellants
v.
MONONGALIA COUNTY GENERAL HOSPITAL COMPANY, d/b/a Monongalia General Hospital, a West Virginia Non-Profit Corporation, Mark Bennett, M.D., individually, Bennett Anesthesia Consultants, P.L.L.C. and Professional Anesthesia Services, Inc., Defendants Below, Appellees,
No. 33096.
Supreme Court of Appeals of West Virginia.
Submitted February 27, 2007.
Decided June 6, 2007.
Dissenting Opinion of Justice Starcher June 29, 2007.

[648 S.E.2d 369]

Syllabus by the Court

1. "Appellate review of a partial summary judgment order is the same as that of a summary judgment order, which is de novo." Syllabus Point 1, West Virginia Department of Transportation, Division of Highways v. Robertson, 217 W.Va. 497, 618 S.E.2d 506 (2005).

2. "Summary judgment is appropriate if, from the totality of the evidence presented, the record could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove." Syllabus Point 2, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995).

3. "The courts of this state are directed by the legislature in W. Va.Code, 47-18-16 [1978] to apply the federal decisional law interpreting the Sherman Act, 15 U.S.C. § 1, to our own parallel antitrust statute, W. Va. Code, 47-18-3(a) [1978]." Syllabus Point 2, Gray v. Marshall County Board of Education, 179 W.Va. 282, 367 S.E.2d 751 (1988).

4. "A statute should be so read and applied as to make it accord with the spirit, purposes and objects of the general system of law of which it was intended to form a part; it being presumed that the legislators who drafted and passed it were familiar with all existing law, applicable to the subject matter, whether constitutional, statutory or common, and intended the statute to harmonize completely with the same and aid in the effectuation of the general purpose and design thereof, if its terms are consistent therewith." Syllabus Point 5, State v. Snyder, 64 W.Va. 659, 63 S.E. 385 (1908).

5. "`When the Legislature enacts laws, it is presumed to be aware of all pertinent judgments rendered by the judicial branch. By borrowing terms of art in which are accumulated the legal tradition and meaning of centuries of practice, the Legislature presumably knows and adopts the cluster of ideas attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed.' Syl. pt. 2, in part, Stephen L.H. v. Sherry L.H., 195 W.Va. 384, 465 S.E.2d 841 (1995)." Syllabus Point 3, CB&T Operations Company, Inc. v. Tax Commissioner of the State of West Virginia, 211 W.Va. 198, 564 S.E.2d 408 (2002).

6. Consistent with those activities deemed by federal judicial interpretation to be per se violations of Section 1 of the Sherman Act, West Virginia Code § 47-18-3(b) (1978) codifies comparable activities as per se violations of West Virginia antitrust law. To the extent W. Va.Code § 47-18-3 (1978) utilizes terms which are deemed "terms of art" under federal antitrust law, the meanings attributed to such "terms of art" under federal antitrust law are incorporated into W. Va.Code § 47-18-3 (1978) absent contrary statutory definitions set forth in the West Virginia Antitrust Act.

7. Factors relevant to a determination that West Virginia courts should comply with or depart from a specific statutory direction from the Legislature to construe a particular statutory scheme in harmony with federal statutes and judicial interpretations thereof include: (1) similarity of language between the federal and West Virginia enactments; (2) similarities or distinctions between federal and state precedent interpreting and/or applying the particular enactment; (3) whether the legislative history of the West Virginia enactment evidenced an intent to follow federal law and precedent; (4) the use of terms of art or unique phrases which have gained accepted or uniform judicial interpretations or meanings; (5) the competing or similar interests the federal and state enactments were designed to protect; (6) whether harmonization of federal and state law will facilitate significant policy interests; and (7) such other factors as may serve as compelling considerations under the circumstances presented.

8. "Once a disputed regulation in legislatively approved, it has the force of a statute itself. Being an act of the West Virginia Legislature, it is entitled to more than mere

[648 S.E.2d 370]

deference; it is entitled to controlling weight. As authorized by legislation, a legislative rule should be ignored only if the agency has exceeded its constitutional or statutory authority or is arbitrary or capricious." Syllabus Point 2, West Virginia Health Care Review Authority v. Boone Memorial Hospital, 196 W.Va. 326, 472 S.E.2d 411 (1996).

9. "Judicial review of an agency's legislative rule and the construction of a statute that it administers involves two separate but interrelated questions, only the second of which furnishes an occasion for deference. In deciding whether an administrative agency's position should be sustained, a reviewing court applies the standards set out by the United States Supreme Court in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The court first must ask whether the Legislature has directly spoken to the precise question at issue. If the intention of the Legislature is clear, that is the end of the matter, and the agency's position only can be upheld if it conforms to the Legislature's intent. No deference is due the agency's interpretation at this stage. Syllabus Point 3, Appalachian Power Co. v. State Tax Department of West Virginia, 195 W.Va. 573, 466 S.E.2d 424 (1995)." Syllabus Point 4, West Virginia Health Care Review Authority v. Boone Memorial Hospital, 196 W.Va. 326, 472 S.E.2d 411 (1996).

Anthony J. Majestro, Powell & Majestro, P.L.L.C., C. Michael Bee, Susan B. Tucker, Hill Peterson Carper Bee & Deitzler, P.L.L.C., Charleston, for Appellants Richard D. Vaglienti, M.D. and Stanford J. Huber, M.D.

Frank E. Simmerman, Jr., Simmerman Law Office, P.L.L.C., Clarksburg, for Appellant James W. Kessel, M.D.

Gordon H. Copland, Amy M. Smith, Steptoe & Johnson, P.L.L.C., Clarksburg, John M. Fitzpatrick, LeClair Ryan, Richmond, VA, for Appellee Monongalia County General Hospital d/b/a Monongalia General Hospital.

Charles T. Berry, Bowles Rice McDavid Graff & Love, L.L.P., Morgantown, for Appellees Bennett Anesthesia Consultants, P.L.L.C. and Mark Bennett, M.D.

Charles C. Wise, III, Bowles Rice McDavid Graff & Love, L.L.P., Morgantown, for Appellee Professional Anesthesia Services, Inc.

Brenda Nichols Harper, Charleston, for Amicus Curiae West Virginia Chamber of Commerce.

Kent J. George, Robinson & McElwee, P.L.L.C., Charleston, for Amicus Curiae, West Virginia Business and Industry Council.

BENJAMIN, Justice:


On December 29, 2005, the Circuit Court of Monongalia County entered an order granting partial summary judgment with respect to all claims arising under state antitrust law asserted by James W. Kessel, M.D., Richard D. Vaglienti, M.D. and Stanford J. Huber, M.D. (hereinafter collectively "Appellants") against Monongalia County General Hospital d/b/a Monongalia General Hospital (hereinafter "Monongalia General"), Mark Bennett, M.D., and Bennett Anesthesia Consultants, P.L.L.C. (hereinafter collectively "BAC"), and Professional Anesthesia Services, Inc. (hereinafter "PAS").1 In Count III of their complaints, which were consolidated for resolution before the circuit court, Appellants asserted that two "exclusive" contracts, one between Monongalia General and BAC and one between Monongalia General and PAS, for the provision of operative anesthesiology services at Monongalia General constituted a "restraint of trade" in violation of the West Virginia Antitrust Act, W. Va. § 47-18-1, et seq., (hereinafter the "WVATA"). According to the Appellants, the circuit court erred by (1) following federal precedent developed under the Sherman Act, 15 U.S.C. § 1, et seq., in interpreting the WVATA; (2) determining that the provisions of W. Va.Code § 47-18-3(b) (1978), were "comparable"

648 S.E.2d 371

to the Sherman Act; and (3) finding that the contracts at issue do not violate the per se restrictions contained in W. Va.Code § 47-18-3(b) and W. Va.C.S.R. § 142-15-3 (1991). Upon due consideration of the arguments presented by the parties and the pertinent legal authorities, we affirm the circuit court's partial summary judgment order.2

I.
FACTUAL AND PROCEDURAL HISTORY

On March 24, 1975, Monongalia Anesthesia Associates (hereinafter "MAA") entered into a contract with Monongalia General for the exclusive provision of anesthesia services at the hospital.3 Each of the appellants were shareholders and employees of MAA. In the early 1990's the MAA and Monongalia General began a renegotiation of the contract. Although the result of these negotiations is not clear from the record before this Court, it appears that MAA continued to exclusively provide the anesthesiological services, except for cardio-thoracic surgeries, at Monongalia General until December 30, 1998, when Monongalia General entered the contract with BAC, at issue herein, for the exclusive provision of orthopedic surgical anesthesia. Thereafter, Monongalia General and MAA were unable to reach an agreement regarding MAA's exclusive provision of all non-cardio-thoracic and non-orthopedic surgical anesthesia services at the hospital. Monongalia General then solicited a request for proposal from a number of providers of surgical anesthesia services, including MAA, for the exclusive provision of these remaining surgical anesthesia...

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15 practice notes
  • In re Chocolate Confectionary Antitrust Litigation, MDL Docket No. 1935.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • 4 March 2009
    ...provisions of the WVAA must be interpreted consistently with federal law,55 Kessel v. Monongalia County Gen. Hosp., 220 W.Va. 602, 648 S.E.2d 366, 381 (2007) (applying per se antitrust rules and instructing courts to "harmonize" the WVAA with federal antitrust statutes), and federal courts ......
  • In re Digital Music Antitrust Litigation, No. 06 MDL No. 1780 (LAP).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 9 October 2008
    ...by reference to federal court Sherman Act decisions). West Virginia: See Kessel v. Monongalia County Gen. Hosp. Co., 220 W.Va. 602, 610, 648 S.E.2d 366, 374 (2007) ("[T]he Legislature has directed that the [West Virginia antitrust law] `shall be construed liberally and in harmony with rulin......
  • Thomas v. William Ray Mcdermitt & State Farm Mut. Auto. Ins. Co., No. 12–0688.
    • United States
    • Supreme Court of West Virginia
    • 26 November 2013
    ...Communications VI, LLC, 227 W.Va. 595, 712 S.E.2d 504 (2011); see also Syl. Pt. 5, Kessel v. Monongalia Cnty. Gen. Hosp., 220 W.Va. 602, 648 S.E.2d 366 (2007) ( “ ‘ “When the Legislature enacts laws, it is presumed to be aware of all pertinent judgments rendered by the judicial branch. By b......
  • Plan v. Glaxosmithkline, Civil Action No. 04-5898
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • 7 September 2010
    ...valid, I will dismiss plaintiffs' Donnelly Act claim. 8 In support of its argument, GSK cites Kessel v. Monongalia County Gen. Hosp. Co., 648 S.E.2d 366, 375, 220 W.Va. 602 (W.Va.2007), where the Supreme Court of West Virginia observed that, "[t]he primary distinction between W. Va.Code § 4......
  • Request a trial to view additional results
15 cases
  • In re Chocolate Confectionary Antitrust Litigation, MDL Docket No. 1935.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • 4 March 2009
    ...provisions of the WVAA must be interpreted consistently with federal law,55 Kessel v. Monongalia County Gen. Hosp., 220 W.Va. 602, 648 S.E.2d 366, 381 (2007) (applying per se antitrust rules and instructing courts to "harmonize" the WVAA with federal antitrust statutes), and federal courts ......
  • In re Digital Music Antitrust Litigation, No. 06 MDL No. 1780 (LAP).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 9 October 2008
    ...by reference to federal court Sherman Act decisions). West Virginia: See Kessel v. Monongalia County Gen. Hosp. Co., 220 W.Va. 602, 610, 648 S.E.2d 366, 374 (2007) ("[T]he Legislature has directed that the [West Virginia antitrust law] `shall be construed liberally and in harmony with rulin......
  • Thomas v. William Ray Mcdermitt & State Farm Mut. Auto. Ins. Co., No. 12–0688.
    • United States
    • Supreme Court of West Virginia
    • 26 November 2013
    ...Communications VI, LLC, 227 W.Va. 595, 712 S.E.2d 504 (2011); see also Syl. Pt. 5, Kessel v. Monongalia Cnty. Gen. Hosp., 220 W.Va. 602, 648 S.E.2d 366 (2007) ( “ ‘ “When the Legislature enacts laws, it is presumed to be aware of all pertinent judgments rendered by the judicial branch. By b......
  • Plan v. Glaxosmithkline, Civil Action No. 04-5898
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • 7 September 2010
    ...valid, I will dismiss plaintiffs' Donnelly Act claim. 8 In support of its argument, GSK cites Kessel v. Monongalia County Gen. Hosp. Co., 648 S.E.2d 366, 375, 220 W.Va. 602 (W.Va.2007), where the Supreme Court of West Virginia observed that, "[t]he primary distinction between W. Va.Code § 4......
  • Request a trial to view additional results

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