3. 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. Syl. Pt. 2, Combs v. Hahn, 205 W.Va. 102, 516 S.E.2d 506 (1999).
4. The general rule of waiver established by this Court in Combs v. Hahn, 205 W.Va. 102, 516 S.E.2d 506 (1999), which requires that any objections to the verdict form based on defect or irregularity be made prior to the jury's dismissal, is not applicable to post- trial motions seeking relief based on the inadequacy of the damages awarded.
Petitioner Valley Radiology, Inc. seeks a writ of prohibition from this Court to prevent the enforcement of an order entered by the Circuit Court of Ohio County on May 24, 2006, granting Respondents, the wife and children of the deceased Joseph Bates, a new trial solely on the issue of damages in connection with a wrongful death action. Upon our review of this matter, we determine that the trial court did not abuse its discretion in awarding a new trial solely on the issue of damages. Accordingly, we refuse to issue the requested writ of prohibition.
The three respondent sons of Mrs. Bates related through counsel that they overheard derogatory comments from several of the potential jurors while counsel and the trial court were engaged in voir dire. They identified three specific jurors as having commented that the Respondent/Plaintiff and her sons better be churchgoers and that money damages aren't warranted in a death case like this, it's not going to bring anybody back and it's just going to increase our insurance rates. After being apprised of this information, the trial court decided to bring in the three jurors who had purportedly made these comments to inquire as to the veracity of the claims. Although the trial court determined in advance that these three jurors would be dismissed for cause regardless of their responses, the trial judge chose to question the potential jurors about these specific allegations as well as the implication that there was an inappropriately jovial atmosphere among the members of the jury panel.
Following its questioning of the specific jurors identified by Respondents, the trial court proceeded to probe the remainder of the jury panel to determine whether their ability to fairly assess the case had been tainted or otherwise affected by the alleged comments of the three dismissed jurors. Several of the jurors testified that they had overhead statements by other individuals with regard to the effect medical liability cases had on health insurance rates. One potential juror stated that she overheard someone opining that plaintiff attorneys are driving medical costs up and also that a lot of awards are just ridiculous. This same juror, when asked whether his ability to judge this case was affected by such statements, responded with: I have to admit that the talk among the jurors is biased against the plaintiff. It's just the talk that I heard it's just _ it's all fairly biased. Upon further questioning as to whether the alleged bias was limited to a few jurors or widespread, this same juror indicated: It's my sense that most of them were talking . . . I think there's a fair amount of bias. That's just my unlearned opinion, but I think there's a fair amount of bias.
When the trial court completed its questioning of the jurors, plaintiffs' counsel chose to proceed with this particular jury panel despite having expressed grave concern on behalf of his clients initially as to whether the panel could fairly judge the case in view of the bias allegations. The record clearly reflects this decision to proceed as defense counsel initially inquired and was advised that plaintiffs' counsel had no objection to the panel and then the trial court followed up by specifically asking plaintiffs' counsel whether he wished to proceed with this particular panel:
The Court: Okay. Although since we haven't empaneled the
jury yet this would not be an appropriate time to
move for a mistrial. But I would just caution all
the parties that I think that we're in a situation
very similar to the one where you make an
objection of some type and then you don't follow
it up by requesting a relief such as a mistrial, so
that, you know, we're not going to be looking at
this situation again. So at this point, as far as I
can tell, there is no objection to the selecting the
jury from the first ten names that were pulled and qualified; is this correct?
Plaintiffs: That's correct.
Following the exercise of peremptory strikes, the jury was empaneled around 8:30 p.m. on that same date.
On February 10, 2006, the case was submitted to the jury. After deliberating for approximately three hours, the jury submitted a question to the trial court. The jury asked, and the trial court responded in the affirmative, whether it was required to award the stipulated amounts of medical and funeral expenses. Shortly after obtaining that answer, the jury returned its verdict. The jury found that the Petitioner/Defendant had deviated from the standard of care in its treatment of Mr. Bates and that such deviation proximately resulted in his death. The jury awarded $158, 271.79 in damages, which was the total amount of the stipulated medical and funeral expenses. In making its award of damages, the jury did not include any amount for sorrow and mental anguish or for lost income despite the separate designation on the verdict form of these types of permissible damages.
Following the delivery of the verdict, the trial court returned the jury to its deliberations room and then informed counsel that it believed there was a problem with the adequacy of the jury's damage award. The trial court inquired of plaintiffs' counsel whether he wished to have the verdict form returned to the jury with instructions to deliberate further and to return an award that included damages for sorrow and mental anguish and reasonably expected loss of income. When plaintiffs' counsel rejected this offer for additional deliberations, the jury was dismissed.
On February 21, 2006, Respondents/Plaintiffs filed a motion for a new trial on the grounds that the verdict was clearly mistaken and manifestly inadequate in view of the jury's failure to award damages for lost income where the evidence on this issue was uncontroverted as well as the jury's failure to award any damages for pain and suffering. A hearing was held on this motion on April 18, 2006, and the trial court indicated the following:
The Court is also of the opinion that the fact that the jury
asked if they were required to award the amount of damages for
medical bills and funeral expenses, which were typed on the
form, demonstrated some prejudice on the part of the jury
against the doctor (sic). The jury was clearly misled as to the
duty to award damages. There was no misunderstanding of the
duty to award damages, they just did not in fact want to give
this family any money that they were not required by the Court
to do so.
As a result of the trial court's conclusion that the jury was prejudiced in some fashion perhaps not against the family, but in favor of the doctor or doctors in general, the trial judge granted the motion of Respondents/Plaintiffs for a new trial limited solely to the issue of damages.
Through this request for extraordinary relief, Petitioner seeks to deny the grant
of the new trial solely on the issue of damages or, alternatively, to require that a new trial be
granted on all issues.
In determining whether to entertain and issue the writ of
prohibition for cases not involving an absence of jurisdiction
but only where it is claimed that the lower tribunal exceeded its
legitimate powers, this Court will examine five factors: (1)
whether the party seeking the writ has no other adequate means,
such as direct appeal, to obtain the desired relief; (2) whether
the petitioner will be damaged or prejudiced in a way that is not
correctable on appeal; (3) whether the lower tribunal's order is
clearly erroneous as a matter of law; (4) whether the lower
tribunal's order is an oft repeated error or manifests persistent
disregard for either procedural or substantive law; and (5)
whether the lower tribunal's order raises new and important
problems or issues of law of first impression. These factors are
general guidelines that serve as a useful starting point for
determining whether a discretionary writ of prohibition should
issue. Although all five factors need not be satisfied, it is clear
that the third factor, the existence of clear error as a matter of
law, should be given substantial weight.
Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996). With regard to the granting of a new trial, our review is more limited: A trial judge's decision to award a new trial is not subject to appellate review unless the trial judge abuses his or her discretion. Syl. Pt. 3, in part, In re State Public Bldg. Asbestos Litigation, 193 W.Va. 119, 454 S.E.2d 413 (1994).
With these standards in mind, we proceed to determine whether any error was committed by the circuit court below.
The defect in Combs was the jury's failure to place any dollar
amount on the verdict form for general damages. In the present
case, a zero was placed on the appropriate lines for the jury's
determination of damages, and the Appellants are not raising
any issues of verdict defect or irregularity on appeal.
Ohio Power also asserts that the Appellants have waived their inadequacy claim on appeal by failing to raise an inconsistency objection when the verdict was returned. However, as the Appellants emphasize, their precise challenge on appeal is neither to the verdict form nor any inconsistency of the jury verdict. Rather, their challenge is to the inadequacy of the damages awarded by the jury, which requires no trial objection to preserve the issue for appellate review. In its allegations of waiver, Ohio Power blurs the lines between three distinct issues: defective verdict forms, inconsistency of the verdict, and inadequacy of the damages. We find no merit to Ohio Power's claim of waiver in this case.
Marsch, 207 W.Va. at 179-80, n.6, 530 S.E.2d at 178-79, n.6 (emphasis supplied).
Rather than Combs, the instant case more closely mirrors that of Marsch where the basis for objecting to the jury's verdict was the adequacy of the damage award and not a defect in the verdict form itself. Critically, the objective that underlies the general rule of requiring that an objection to the verdict form must be made prior to the jury's discharge is to provide the trial court with an opportunity to cure any alleged defect or irregularity in the form prepared by the jury. No similar opportunity to cure is required for an inadequate award of damages. (See footnote 3) This is because a request for a new trial based on the inadequacy of damages is not a procedural objection to the verdict form, but a substantive objection to the amount of damages awarded in view of the evidence presented and the findings of the jury as to fault. Consequently, there is no basis for invoking the waiver rule established by this Court in Combs when the post-trial objection is solely to the adequacy of the damages.
To clarify our previous ruling in this area, we hold that the general rule of waiver established by this Court in Combs, which requires that any objections to the verdict form based on defect or irregularity be made prior to the jury's dismissal, is not applicable to post-trial motions seeking relief based on the inadequacy of the damages awarded. Because the basis for Respondents' new trial motion was the inadequacy of the jury award rather than a procedural objection to the form of the jury verdict, we do not find any basis for applying the general rule of waiver announced by this Court in Combs. See 205 W.Va. at 103, 516 S.E.2d at 507, syl. pt. 2.
Based on the foregoing, we do not find that the trial court abused its discretion
in awarding a new trial to Respondents solely on the issue of damages. (See footnote 4) Accordingly, we
refuse to grant the writ of prohibition requested by Petitioner. (See footnote 5)