No. 23858 - Gina K. Andrews, Administratrix of the Estate
of Justin Kyle Andrews, Gina K. Andrews, individually, and Jeffrey Andrews, individually
v. Reynolds Memorial Hospital, Inc., a corporation; and R. W. Spore, M.
Maynard, Justice, dissenting:
In the present case, this Court has
awarded 1.75 million dollars for wages a baby would have earned had he lived. The baby was
born at approximately six months to twenty-eight weeks gestation and lived one day. The
total verdict was almost 2.8 million dollars. I dissent in this case because I would
affirm the circuit court's final order granting the appellees a new trial.
I believe the circuit court correctly
concluded "there was no medical evaluation as to life expectancy or potential
physical or mental capacity to produce an economic benefit to [the deceased baby's]
dependents." Absent such evidence, the range of possible lost future earnings was not
proven with reasonable certainty as is required by Syllabus Point 9 of Jordan v. Bero, 158
W.Va. 28, 210 S.E.2d 618 (1974). Also, the plaintiffs failed to produce "the probable
quantum of . . . potential loss" as mandated by Panagopoulous v. Martin, 295
F.Supp. 220, 227 (S.D.W.Va. 1969).
The exercise of determining lost future
earnings for a deceased baby in a wrongful death action is fraught with perils. It
necessarily involves a significant element of speculation. This is aggravated by the fact
that deceased babies inflame juries with passion, causing them to run amok in an orgy of
throwing large sums of money at the grieving parents. For this reason, circuit courts
should be vigilant in scrutinizing large verdicts in such cases to ensure that the amount
awarded is supported by the evidence. Here the circuit court did this and correctly, I
believe, granted a new trial. By reversing the circuit court, the majority sets a bad
precedent. Now, plaintiffs in cases like the instant one can guarantee a large verdict
merely by calling someone from the Psychic Friends Network to testify concerning lost
future earnings. Further, every deceased baby in a wrongful death action will now be worth
at least $1,750,000.
I recognize, however, that by
reinstating a jury verdict totaling $2,762,017, this Court is merely being true to form.
This is just another in a long line of cases in which this Court has either refused to
hear a case where a verdict of at least a million dollars was awarded below, or has issued
an opinion upholding such a verdict.
For example, in the recent case of Bridgeport
Home Builders v. Teri A. Bartnicki, a 1.2 million dollar verdict was awarded against
an insurance company for inconvenience and aggravation. Despite the absurd verdict,
this Court refused to hear the insurance company's petition for appeal. Because 1.2
million dollars' worth of inconvenience and aggravation is hard to imagine, I believe it
is obvious this was a punitive damages award in clear violation of Hayseeds, Inc. v.
State Farm Fire & Cas., 177 W.Va. 323, 352 S.E.2d 73 (1986). By refusing to
consider the appeal, this Court allowed an unwarranted verdict to stand.
Another recent case is Vandevender
v. Sheetz, Inc., 200 W.Va. 591, 490 S.E.2d 678 (1997) in which this Court, in a
published opinion, upheld a $2,232,740 punitive damages award. I noted in my dissent there
that the plaintiff was essentially out of nothing more than four weeks of work, and she
suffered minor mistreatment by her employer. In light of this, I argued that such an award
was plainly unfair and excessive.
Perhaps a few of the huge verdicts upheld by this Court were warranted. It is my belief, however, that in many cases, including the instant one, Bridgeport, and Vandevender, such verdicts are excessive in light of the facts of these cases. Accordingly, I dissent.