Louk v. Cormier

• Decision Date: 01 July 2005
• Docket Number: No. 31773.,31773.
• Citation: 622 S.E.2d 788
• Parties: Rita Mae LOUK, Plaintiff Below, Appellant, v. Serge CORMIER, M.D., Defendant Below, Appellee.
• Court: West Virginia Supreme Court

Page 788

622 S.E.2d 788

Rita Mae LOUK, Plaintiff Below, Appellant, v. Serge CORMIER, M.D., Defendant Below, Appellee.

No. 31773.

Supreme Court of Appeals of West Virginia.

Submitted April 27, 2005.

Decided July 1, 2005.

Concurring Opinion of Chief Justice Albright July 6, 2005.

Dissenting Opinion of Justice Maynard July 11, 2005.

Cuncurring and Dissenting Opinion of Justice Benjamin August 8, 2005.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Syllabus by the Court

1. "In considering the constitutionality of a legislative enactment, courts must exercise due restraint, in recognition of the principle of the separation of powers in government among the judicial, legislative and executive branches. Every reasonable construction must be resorted to by the courts in order to sustain constitutionality, and any reasonable doubt must be resolved in favor of the constitutionality of the legislative enactment in question. Courts are not concerned with questions relating to legislative policy. The general powers of the legislature, within constitutional limits, are almost plenary. In considering the constitutionality of an act of the legislature, the negation of legislative power must appear beyond reasonable doubt." Syl. pt. 1, State ex rel. Appalachian Power Company v. Gainer, 149 W. Va. 740, 143 S.E.2d 351 (1965).

2. A constitutional issue that was not properly preserved at the trial court level may, in the discretion of this Court, be addressed on appeal when the constitutional issue is the controlling issue in the resolution of the case.

3. The provisions contained in W. Va. Code § 55-7B-6d (2001) (Supp.2004) were enacted in violation of the Separation of Powers Clause, Article V, § 1 of the West Virginia Constitution, insofar as the statute addresses procedural litigation matters that are regulated exclusively by this Court pursuant to the Rule-Making Clause, Article VIII, § 3 of the West Virginia Constitution. Consequently, W. Va.Code § 55-7B-6d, in its entirety, is unconstitutional and unenforceable.

4. A non-severability provision contained in a legislative enactment is construed as merely a presumption that the Legislature intended the entire enactment to be invalid if one of the statutes in the legislation is found unconstitutional. When a non-severability provision is appended to a legislative enactment and this Court invalidates a statute contained in the enactment, we will apply severability principles of statutory construction to determine whether the non-severability provision will be given full force and effect.

Paul J. Harris, Wheeling, West Virginia, Attorney for Appellant.

Brent P. Copenhaver, Colombo & Stuhr, Morgantown, West Virginia, Attorney for Appellee.

DAVIS, Justice:

Rita Mae Louk, appellant/plaintiff below (hereinafter referred to as "Ms. Louk"), appeals from an order of the Circuit Court of Randolph County denying her motion for a new trial. A jury returned a non-unanimous verdict against Ms. Louk in her medical malpractice action against Dr. Serge Cormier, appellee/defendant below (hereinafter referred to as "Dr. Cormier"). Here, Ms. Louk contends that the circuit court erred by ruling that the non-unanimous verdict provision of W. Va.Code § 55-7B-6d (2001) (Supp.2004) was constitutional.¹ After reviewing the briefs, listening to the arguments of the parties and considering the relevant authority, we reverse.

I. FACTUAL AND PROCEDURAL HISTORY

The sparse record in this case² indicates that on June 13, 2000, Dr. Cormier performed a hysterectomy and salpingo-oophorectomy³ on Ms. Louk. The surgery occurred at Davis Memorial Hospital. Several days after Ms. Louk was released from the hospital, she became gravely ill. Consequently, on June 22, 2000, Ms. Louk returned to the hospital complaining of a fever, abdominal stress, constipation, bloating and a tender abdomen. On the day that Ms. Louk returned to the hospital, exploratory surgery was performed. The exploratory surgery revealed that Ms. Louk had suffered a perforation of her cecum.⁴

On May 20, 2002, Ms. Louk filed a medical malpractice action against Dr. Cormier. The central allegation in the complaint was that Dr. Cormier perforated Ms. Louk's cecum when he performed the hysterectomy and salpingo-oophorectomy. Dr. Cormier defended the action on a theory that the cecum spontaneously ruptured.

The case proceeded to trial on December 2, 2003, before a twelve person jury. After both parties presented their case-in-chief, the trial court gave its jury charge. Among the instructions given was an instruction that informed the jury that it was not necessary to reach a unanimous verdict. The jury returned a verdict in which ten jurors found in favor of Dr. Cormier. Two jurors found in favor of Ms. Louk.

Thereafter, Ms. Louk filed a post-trial motion seeking a new trial arguing that the non-unanimous verdict instruction authorized by W. Va.Code § 55-7B-6d was unconstitutional. On December 19, 2003, the circuit court entered an order denying the motion for a new trial. Ms. Louk filed this appeal from that ruling.

II. STANDARD OF REVIEW

Before this Court, Ms. Louk appeals from an order denying her motion for a new trial. We have held that "the ruling of a trial court in granting or denying a motion for a new trial is entitled to great respect and weight, [and] the trial court's ruling will be reversed on appeal [only] when it is clear that the trial court has acted under some misapprehension of the law or the evidence." Syl. pt. 4, in part, Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976). In this proceeding, we are asked to determine specifically whether the trial court correctly found that the non-unanimous verdict provision of W. Va.Code § 55-7B-6d is constitutionally sound. This Court indicated in Phillip Leon M. v. Greenbrier County Board of Education, 199 W.V. 400, 404, 484 S.E.2d 909, 913 (1996), that "[b]ecause interpretations of the West Virginia Constitution, along with interpretations of statutes and rules, are primarily questions of law, we apply a de novo review." In Syllabus point 1 of State ex rel. Appalachian Power Company v. Gainer, 149 W.Va. 740, 143 S.E.2d 351 (1965), we elaborated on the standard for reviewing the constitutionality of a statute as follows:

In considering the constitutionality of a legislative enactment, courts must exercise due restraint, in recognition of the principle of the separation of powers in government among the judicial, legislative and executive branches. Every reasonable construction must be resorted to by the courts in order to sustain constitutionality, and any reasonable doubt must be resolved in favor of the constitutionality of the legislative enactment in question. Courts are not concerned with questions relating to legislative policy. The general powers of the legislature, within constitutional limits, are almost plenary. In considering the constitutionality of an act of the legislature, the negation of legislative power must appear beyond reasonable doubt.

Accord Syl. pt. 4, State ex rel. Cities of Charleston, Huntington & its Counties of Ohio & Kanawha v. West Virginia Econ. Dev. Auth., 214 W.Va. 277, 588 S.E.2d 655 (2003); Syl. pt. 1, West Virginia Trust Fund, Inc. v. Bailey, 199 W.Va. 463, 485 S.E.2d 407 (1997); Syl. pt. 1, State ex rel. Blankenship v. Richardson, 196 W.Va. 726, 474 S.E.2d 906 (1996).

With these standards in mind, we turn to the issues presented by this appeal.

III. DISCUSSION

A. Propriety of Addressing the Constitutionality of W.Va Code § 55-7B-6d

The first issue we must address is Dr. Cormier's contention that Ms. Louk has waived the issue of the constitutionality of W. Va.Code § 55-7B-6d because she did not raise the issue until after the jury returned its verdict. This Court has held that, "`[a] party may only assign error to the giving of instructions if he objects thereto before arguments to the jury are begun stating distinctly the matter to which he objects and the grounds of his objection.'" Syl. pt. 9, Wolfe v. Welton, 210 W.Va. 563, 558 S.E.2d 363 (2001) (quoting Syl. pt. 1, Roberts v. Powell, 157 W.Va. 199, 207 S.E.2d 123 (1973)). Accord W. Va. R. Civ. P., 51. The record is clear. Ms. Louk did not raise an objection to the constitutionality of W. Va.Code § 55-7B-6d before the jury was instructed. However, our cases have explicitly stated that, under very narrow circumstances, an error not properly preserved at the trial court level may be considered on appeal.

In the concurring opinion of Justice Cleckley in State v. Greene, the following observations were made regarding this Court's authority to address an issue that was not properly preserved at the trial court level:

[A]lthough the rule requiring all appellate issues be [properly] raised first in the circuit court is important, it is not immutable: Our cases have made clear that the failure to [properly] raise issues below is not a jurisdictional prerequisite to an appeal but, rather, is a gatekeeper provision rooted in the concept of judicial economy, fairness, expediency, respect, and practical wisdom. Requiring issues to be [properly] raised at the trial level is a juridical tool, embodying appellate respect for the circuit court's advantage and capability to adjudicate the rights of our citizens.

This case, however, is not one in which, by neglecting to raise an issue in a timely manner, a litigant has deprived this Court of useful factfinding. The issue raised here, but omitted below, is purely legal in nature and lends itself to satisfactory resolution on the existing record without further development of the facts. . . . More importantly, the defendant's belated proffer raises an issue of constitutional magnitude, a factor that favors review notwithstanding a procedural default. . . . I believe this sensitivity is appropriately expressed by a frank recognition that, when public, as well as institutional, interests are at stake, the case for the...