Richmond v. Levin

• Decision Date: 08 June 2006
• Docket Number: No. 32877.,32877.
• Citation: 637 S.E.2d 610
• Court: West Virginia Supreme Court
• Parties: Donna M. RICHMOND, Plaintiff Below, Appellant, v. Barry A. LEVIN, M.D., Defendant Below, Appellee.

637 S.E.2d 610

Donna M. RICHMOND, Plaintiff Below, Appellant, v. Barry A. LEVIN, M.D., Defendant Below, Appellee.

No. 32877.

Supreme Court of Appeals of West Virginia.

Submitted April 11, 2006.

Decided June 8, 2006.

Dissenting Opinion of Justice Maynard June 28, 2006.

COPYRIGHT MATERIAL OMITTED

Syllabus by the Court

1. "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." Syllabus point 3, Louk v. Cormier, 218 W.Va. 81, 622 S.E.2d 788 (2005).

2. "In determining whether to extend full retroactivity, the following factors are to be considered: First, the nature of the substantive issue overruled must be determined. If the issue involves a traditionally settled area of law, such as contracts or property as distinguished from torts, and the new rule was not clearly foreshadowed, then retroactivity is less justified. Second, where the overruled decision deals with procedural law rather than substantive, retroactivity ordinarily will be more readily accorded. Third, common law decisions, when overruled, may result in the overruling decision being given retroactive effect, since the substantive issue usually has a narrower impact and is likely to involve fewer parties. Fourth, where, on the other hand, substantial public issues are involved, arising from statutory or constitutional interpretations that represent a clear departure from prior precedent, prospective application will ordinarily be favored. Fifth, the more radically the new decision departs from previous substantive law, the greater the need for limiting retroactivity. Finally, this Court will also look to the precedent of other courts which have determined the retroactive/prospective question in the same area of the law in their overruling decisions." Syllabus point 5, Bradley v. Appalachian Power Co., 163 W.Va. 332, 256 S.E.2d 879 (1979).

Charles R. Hughes, Shawn R. Romano, Daniels Law Firm, Charleston, for Appellant.

Ancil G. Ramey, Michael D. Mullins, Steptoe & Johnson, Charleston, for Appellee.

PER CURIAM:

Donna M. Richmond, appellant, plaintiff below (hereinafter referred to as "Ms. Richmond"), appeals from an order entered by the Circuit Court of Raleigh County in her medical malpractice action against Dr. Barry A. Levin, appellee, defendant below (hereinafter referred to as "Dr. Levin"). By that order, the circuit court upheld a non-unanimous jury verdict in favor of Dr. Levin, based upon the non-unanimous verdict provision of the Medical Professional Liability Act (hereinafter referred to as the "MPLA") found at W. Va.Code § 55-7B-6d (2001) (Supp. 2004). In this appeal, Ms. Richmond contends that she is entitled to a new trial pursuant to this Court's holding in Louk v. Cormier, 218 W.Va. 81, 622 S.E.2d 788 (2005), which found the MPLA's non-unanimous jury verdict provision to be unconstitutional. After a careful review of the briefs and the record on appeal, and with consideration of the arguments of the parties, we reverse the order of the circuit court and remand this case for further proceedings.

I. FACTUAL AND PROCEDURAL HISTORY

The record in the case indicates that on October 4, 2001, Ms. Richmond fell on ice outside of Raleigh General Hospital and sought treatment on that day from Dr. Levin for a fracture of her left distal radius.¹ Later that day, Dr. Levin performed an open reduction and internal fixation of Ms. Richmond's fractured left radius and continued treatment of Ms. Richmond's arm through January 2002. Subsequently, Ms. Richmond suffered from nonunion of the fracture of her radius and was required to undergo multiple surgeries in an attempt to achieve union, or proper healing, of her radius.

On October 3, 2003, Ms. Richmond filed a medical malpractice action against Dr. Levin seeking damages resulting from Dr. Levin's alleged negligence in the treatment of Ms. Richmond's left distal radius fracture.² Ms. Richmond argued that Dr. Levin's treatment was inadequate, representing a breach of the standard of care, which resulted in the improper healing of Ms. Richmond's radius fracture.

The case proceeded to trial on January 19, 2005, before a twelve-person jury. After both parties presented their case in chief, the trial court gave its jury charge, including an instruction, pursuant to W. Va.Code § 55-7B-6d of the MPLA, that it was not necessary for the jury to come to a unanimous verdict. The jury returned a verdict in which nine jurors found in favor of Dr. Levin and three jurors found in favor of Ms. Richmond.

Thereafter, Ms. Richmond filed post-trial motions for Judgment as a Matter of Law and in the Alternative for a New Trial. The circuit court denied both motions by order entered on March 23, 2005. On July 1, 2005 this Court rendered the decision in Louk holding W. Va.Code § 55-7B-6d unconstitutional. Thereafter, on July 19, 2005, Ms. Richmond filed a petition for appeal in which she raised for the first time the issue of the constitutionality of W. Va.Code § 55-7B-6d. This Court accepted the petition for appeal to determine whether the decision in Louk may be applied retroactively to cases pending when that decision was rendered.

II. STANDARD OF REVIEW

The only issue presented in this proceeding is whether the decision in Louk, finding W. Va.Code § 55-7B-6d unconstitutional, may be applied retroactively to a case that was pending in circuit court when the decision was rendered.³ This issue presents a question of law; therefore, we apply a de novo standard of review. See Phillip Leon M. v. Greenbrier County Bd. of Educ., 199 W.Va. 400, 404, 484 S.E.2d 909, 913 (1996) ("Because interpretations of the West Virginia Constitution, along with interpretations of statutes and rules, are primarily questions of law, we apply a de novo review."); 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.").

III. DISCUSSION

Ms. Richmond seeks a new trial in this case on the ground that the jury non-unanimity requirement of W. Va.Code § 55-7B-6d is unconstitutional. This Court recently addressed the constitutionality of the statute in Louk and held:

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.

Syl. pt. 3, Louk.⁴ Ms. Richmond takes the position that Louk should be applied retroactively to her case.⁵ On the other hand, Dr. Levin contends that Louk should not be applied retroactively. In support of his argument, Dr. Levin contends that Ex Post Facto Clause due process principles and the factors in Bradley v. Appalachian Power Co., 163 W.Va. 332, 256 S.E.2d 879 (1979) prohibit retroactive application of Louk. After briefly discussing Dr. Levin's Ex Post Facto Clause argument, we will analyze Louk under the specific factors that have been established to determine retroactivity.

A. Ex Post Facto Clause

To begin, Dr. Levin cites to language in a prior opinion of this Court wherein it was noted that, "due process places a limitation on retroactive judicial application of statutory enactments which precludes courts from effecting a result which the legislature is barred from achieving by the Ex Post Facto Clause." State v. R.H., 166 W.Va. 280, 287, 273 S.E.2d 578, 583 (1980), overruled on other grounds by State ex rel. Cook v. Helms, 170 W.Va. 200, 292 S.E.2d 610 (1981). The Ex Post Facto Clause due process concerns expressed by the above language have no application to the issue of retroactivity in this case.⁶

The due process concerns of the Ex Post Facto Clause have application only to retroactivity of "punitive" laws or rules. That is, "[a] fundamental principle of ex post facto law is that it only applies to criminal proceedings, not civil." State v. Smith, 198 W.Va. 702, 713, 482 S.E.2d 687, 698 (1996). See Haislop v. Edgell, 215 W.Va. 88, 94, 593 S.E.2d 839, 845 (2003) (observing that legislation which is civil "would not implicate the ex post facto clause," whereas legislation which is punitive "would violate the clause."); State v. Whalen, 214 W.Va. 299, 301 n. 2, 588 S.E.2d 677, 679 n. 2 (2003) ("[T]he retroactive aspects of the Sex Offender Registration Act do not violate the constitutional prohibition against ex post facto laws, because the Act is a civil regulatory statute and not a criminal penalty statute.").⁷ Consequently, we reject the Ex Post Facto Clause argument raised by Dr. Levin.

B. Retroactivity

In Bradley v. Appalachian Power Co., 163 W.Va. 332, 256 S.E.2d 879 (1979), this Court recognized the benefits of retroactivity in providing equality of application of the law, but also recognized that, before applying a decision retroactively, several counterbalancing factors need to be taken into consideration. Under Bradley, the general guidelines for determining retroactivity of a decision by this Court have been stated as follows:

In determining whether to extend full retroactivity, the following factors are to be considered: First, the nature of the substantive issue overruled must be determined. If the issue involves a traditionally settled area of law, such as contracts or property as...