No. 34747 - Andrea Karpacs-Brown, Individually and as Administratrix of the Estate of
her Mother, Elizabeth Karpacs, and the Estate of her Father, Andrew Karpacs v. Anandhi
Workman, Justice, dissenting:
Within the provisions of the Medical Professional Liability Act, West Virginia Code § 55-7B-1 to -12 (2008), 'noneconomic loss' is defined as losses, including, but not limited to, pain, suffering, mental anguish and grief. W. Va. Code § 55-7B-2 (k). Thus, by definition, if the damages sought do not fall into the statutory definition of noneconomic loss, those damages necessarily are more accurately characterized as economic damages. Consequently, the damages sought by the Appellee for the loss of services and any actual expenses incurred from such loss are economic damages. As the Circuit Court noted in its order on July 26, 2008, Mrs. Karpacs' children testified about the loss of her services, support and guidance which include the loss of her love and advice, the comfort of her presence and her services to her children and grandchildren, including child care and meal preparation. The family testified about the loss of company of Elizabeth Karpacs, as well as the services she would have provided to her children and her husband while he lived and her support and guidance. I would affirm the circuit court decision that the verdict form's language of loss of services, protection, care and assistance encompassed economic damages under our law.
Moreover, the Appellee testified that her mother's death required her to build a home addition to house her father. It seems that construction costs for a home addition would unquestionably be economic rather emotional damages under the law.
II. The Litigant Bears the Burden of Distinguishing Between Different Types of Damages on a Jury Verdict Form
Even more important, this Court has consistently held that it is the defendant's job to request a jury verdict form which specifies the elements of damages. In Gerver v. Benavides, 207 W.Va. 228, 530 S.E. 2d 701 (1999), this Court addressed the situation where a litigant has failed to distinguish between economic and non-economic damages. Specifically, the Court states that it has held on several occasions that when a litigant seeks to make procedural distinctions between 'special' damages and 'general' damages, that litigant bears the burden of insuring that the circuit court distinguishes between types of damages in the jury's verdict form. Id. at 235, 530 S.E. 2d at 708. Much like this case, Gerver dealt with a medical malpractice suit where the damage form failed to distinguish economic and non-economic damages. The defendant argued that the damage award amount exceeded the statutory cap on non-economic damages. We noted:
Both the jury instructions and the jury's verdict form merged special, economic-type damages, such as lost future wages and employment benefits and future medical expenses, with general, non-economic-type damages, such as past and future pain and suffering and loss of capacity to enjoy life. The defendant did not object to the circuit court's instructions or verdict form, and did not submit special interrogatories that would allow the jury to segregate economic from non-economic losses. As there is no means to determine whether the non-economic damages assessed by the jury exceeded the $1,000,000 statutory limit, this Court will not presume that error occurred.
207 W. Va. at 235, 530 S.E.2d at 708.
In the present case, the Appellee did not object to the verdict form and it is impossible for this Court now to determine what part of the award is economic in nature and what part is non-economic.
III. Remittitur of the Jury Award
The Majority attempts to distinguish Gerver by arguing that no evidence of
economic damages was presented at this trial. I disagree with the Majority's decision that
the Appellant did not show economic damages. It does appear, however, the award for
economic damages may be excessive. Consequently, I would have favored a remittitur (See footnote 2) of
the award to better comport with the economic damages presented at trial and the statutory
cap on noneconomic damages. This Court held in syllabus point six of Roberts v. Stevens
Clinic Hosp., Inc., 176 W. Va. 492, 494, 345 S.E.2d 791, 793 (1986), that [e]ven when there
are no data by which the amount of excess in a jury's verdict is definitely ascertainable, entry
of remittitur is permissible. Unlike what transpired in Roberts with this Court determining
the amount of the remittitur, I would remand this case to the circuit court which, having
heard the live testimony, is in a better position to determine if the jury award is appropriate.
As a result, I must dissent from the portion of the Majority's decision finding no economic damages and directing the circuit court to limit the award to the $1 million non- economic damages cap.