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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2001 Term
BOWLES RICE McDAVID GRAFF & LOVE, PLLC, et al.,
ANDREWS & WAGNER,
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF WEST VIRGINIA
Hon. W. Craig Broadwater, Judge
Case No. 3-98-CV-23
CERTIFIED QUESTIONS ANSWERED
Submitted: February 6, 2001
Filed: April 27, 2001
Susan R. Snowden, Esq.
J. Farrell, Esq.
Martin & Seibert
Farrell & Farrell
Martinsburg, West Virginia
Stephen D. Brown, Esq.
George M. Gowen, Esq.
Dechert, Price & Rhoads
Attorneys for Plaintiff
Tammy A. Bittorf, Esq.
Layva, Bittorf & Santa Barbara
Martinsburg, West Virginia
David L. Haber, Esq.
Weinheimer, Schadel & Haber
Attorneys for Third-Party Defendant
JUSTICE STARCHER delivered the Opinion of the Court.
SYLLABUS BY THE COURT
for malicious prosecution suits, it is generally held that reliance on advice
of counsel is not an absolute defense to charges that a person is acting unlawfully
or negligently. Syllabus Point 3, Powers v. Goodwin, 174 W.Va. 287,
324 S.E.2d 701 (1984).
an employment law civil action, the fact that an employer acted in reliance upon
the advice of counsel is not an absolute defense to a claim that the employer
acted unlawfully or negligently. Relevant evidence regarding the advice of counsel
may be admissible in the trial of an employment law civil action as part of the
calculus of evidence that the fact finder considers in reaching its verdict --
including on the issue of punitive damages, where that issue is presented.
right of contribution may be brought by a joint tortfeasor on any theory of liability
that could have been asserted by the injured plaintiff. Syllabus Point 4
(in part), Board of Educ. v. Zando, Martin, et al., 182 W.Va. 597, 390
S.E.2d 796 (1990).
Virginia jurisprudence favors the consideration, in a unitary trial, of all claims
regarding liability and damages arising out of the same transaction, occurrence
or nucleus of operative facts , and the joinder in such trial of all parties who
may be responsible for the relief that is sought in the litigation .
questions of negligence, contributory negligence, proximate cause, intervening
cause and concurrent negligence are questions of fact for the jury where the evidence is conflicting or when the facts, though undisputed, are such that
reasonable [persons] may draw different conclusions from them. Syllabus
Point 2, Evans v. Farmer, 148 W.Va. 142, 133 S.E.2d 710 (1963).
testimony is admissible in legal malpractice actions.
attorney-defendant in a legal malpractice case is not barred from impleading
another attorney who has provided legal services to the client-plaintiff, as
a third- party defendant on a contribution claim, merely because a jury trial
that resulted in damages for which the plaintiff claims the original attorney-defendant
is liable occurred after the allegedly contributing conduct of the third-party
trigger application of the 'plain error' doctrine, there must be (1) an error;
(2) that is plain; (3) that affects substantial rights; and (4) that seriously
affects the fairness, integrity, or public reputation of the judicial proceedings.
Syllabus Point 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995)
there is a certain openendedness in the limits of recovery for emotional distress
in a retaliatory discharge claim, we decline to automatically allow a claim
for punitive damages to be added to the damage picture. We do recognize that
where the employer's conduct is wanton, willful or malicious, punitive damages
may be appropriate. Syllabus Point 5, Harless v. First Nat'l Bank,
169 W.Va. 673, 289 S.E.2d 692 (1982).
who by extreme and outrageous conduct intentionally or recklessly causes severe
emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.
Syllabus Point 6, Harless v. First Nat. Bank in Fairmont, 169 W.Va. 673,
289 S.E.2d 692 (1982).
The specific principles and procedures established in Syllabus Points 14 and
15 of Tudor v. Charleston Area Medical Center, 203 W.Va. 111, 506 S.E.2d
554 (1997) are limited to the tort of the intentional or reckless infliction
of emotional distress.
In this case we answer four
certified questions from a federal court. We hold that advice of counsel is
not an absolute defense in an employment law case; that a defendant in a legal
malpractice lawsuit is not barred from asserting a claim against another attorney
who provided services to the plaintiff; that experts may testify in legal malpractice
cases; and that the plaintiff in a state employment law case did not receive
an illegal double recovery.
Facts & Background
The instant case is before this
Court upon four certified questions from the United States District Court for
the Northern District of West Virginia. These questions relate to issues arising
in a federal civil case (under diversity jurisdiction) alleging legal malpractice.
The federal legal malpractice case arises from the proceedings in a state court
employment law civil case in which this Court issued an opinion in 1997.
Vandevender v. Sheetz, Inc., 200 W.Va. 591, 490 S.E.2d 678 (1997) (per
curiam) (the Vandevender case).
In the Vandevender case,
Ms. Cheryl Vandevender sued Sheetz, Inc., a Pennsylvania corporation (Sheetz),
alleging that she had been terminated and subsequently retaliated against in
violation of West Virginia's workers' compensation and human rights laws. A
jury awarded Ms. Vandevender $130,066.00 in compensatory damages, $170,000.00 for noneconomic or emotional distress damages, and $2,699,000.00 in punitive
damages.See footnote 1 1
In the federal legal malpractice
case (the instant case), the plaintiff is Sheetz. Sheetz claims
in the instant case that the jury in Vandevender awarded punitive damages
(and that this Court did not on appeal strike the punitive damages award entirely)
because, according to Sheetz, Sheetz's trial lawyer in Vandevender,
and his law firm, Bowles, Rice, McDavid, Graff & Love PLLC (collectively,
Bowles), committed legal malpractice in connection with the Vandevender
Bowles, then, is the defendant
in the instant federal legal malpractice case. Bowles has denied committing
any malpractice and asserts that Sheetz's conduct toward Ms. Vandevender was
the proximate cause of Ms. Vandevender's receiving the punitive damages award
in the Vandevender case.
Bowles has also impleaded Sheetz's
Pennsylvania law firm, Andrews & Wagner (Andrews), as a third-party
defendant in the federal legal malpractice case. Bowles claims that if there
has been any legal malpractice that caused or contributed to the punitive damages
award in Vandevender, it was legal malpractice by Andrews in connection
with the formulation, review, and approval of Sheetz's employment policies.
After substantial pre-trial
proceedings in the federal case, the federal district court entered an order
certifying four questions of law to this Court. The questions are as follows:
the advice of counsel defense an absolute bar to any claim for punitive damages
in a wrongful termination of employment claim in West Virginia?
the doctrines of joint tortfeasor and right of contribution apply in the legal
malpractice context of a client's predecessor law firm and successor law firm,
each of whose respective conduct is separated by an intervening trial caused
by the predecessor law firm's alleged legal malpractice?
West Virginia law allow the use of lawyers as experts in legal malpractice cases?
a plaintiff's own testimony of both an aggravation of a prior physical injury
and emotional distress a sufficient quantifiable measure to sustain
a verdict for both emotional distress and punitive damages or, must a plaintiff
produce substantial and concrete evidence of serious physical injury
to avoid application of the double-recovery preclusion?
The federal district court accompanied
these questions with a statement of the case that we reproduce in a footnote.See
footnote 2 2
The federal district court also
included in the certified question order a brief discussion of each question and
the court's proposed answer to the question. We include these discussions and
answers in footnotes at the beginning of our discussion of each question.
Standard of Review
We have before us the record
and briefs in the federal case, and the trial transcript and appellate briefs
from the Vandevender case. The federal court's certified questions are
matters of law that we address de novo. We recognize that the factual
statements in the district court's certification order are not formal findings
Advice of Counsel
The district court's first
certified question is:
Is the advice of counsel
defense an absolute bar to any claim for punitive damages in a wrongful termination
of employment claim in West Virginia?See
footnote 3 3
We begin our discussion by recognizing
the principle of law that this Court enunciated in Syllabus Point 3 of Powers
v. Goodwin, 174 W.Va. 287, 324 S.E.2d 701 (1984):
Except for malicious prosecution
suits, it is generally held that reliance on advice of counsel is not an absolute
defense to charges that a person is acting unlawfully or negligently.
We further said in Powers:
It seems clear, though, that the
party asserting this defense has the burden of showing that he: (1) made a complete
disclosure of the facts to his attorney; (2) requested the attorney's advice as
to the legality of the contemplated action; (3) received advice that it was legal;
and (4) relied upon the advice in good faith.
However, acting under advice
of counsel is not an absolute defense in other situations. In the contempt field,
we have stated that it is not a defense, but may go to the mitigation issue. .
. . This issue has been raised in suits involving violations of civil rights under
42 U.S.C.A. § 1983, which are treated as federal tort actions. Typical of
most courts' approach in this area is this statement from Crowe v. Lucas,
595 F.2d 985, 992 (5th Cir.1979): Reliance on advice of counsel does not
serve as an absolute defense to a civil rights action. Rather, it is among the
calculus of facts that a jury is to consider on the issue of good faith.
174 W.Va. at 291-292, 324 S.E.2d at 705-706. (Citations and footnotes omitted.)
The principles that we discussed
in Powers can be found in many cases. For example, in Crowe v. Lucas,
595 F.2d 985 (5th Cir. 1979), a civil rights action, the court held that a jury
could conclude that any reliance that the defendants might have placed on advice
of counsel did not necessarily remove the taint of malice that colored their acts
toward the plaintiff. 595 F.2d at 992. In Crowe, the court also held that
the advice of counsel was not a separate defense, but was rather among the calculus
of facts that a jury could take into account in deciding whether to award
punitive damages. Id.
In a wrongful eviction case, Town
Ctr. Management Corp. v. Chavez, 373 A.2d 238, 245 (D.C.Ct.App. 1977), the
court similarly rejected a defendant's proposed use of the advice of counsel as an absolute defense to punitive damages. The court stated:
Appellant's contention amounts
then to the assertion that one acting with legal advice, even if for an improper
purpose, should be insulated from liability from punitive damages. We disagree.
Acting after consulting an attorney does not necessarily preclude an
award of punitive damages. . . . the [defendant's] consultation with its attorney
was no more than one factor . . . to consider . . .. [Emphasis in original,
citations omitted.]See footnote 4 4
Whether reliance upon the advice
of counsel is successfully proven as a defense to the cause of action of malicious
prosecution (or to a similar cause of action that is based on the wrongful use
of the court system, like wrongful attachment)See
footnote 5 5 -- or, in the case of other causes of action , what weight and significance should be given to
relevant evidence relating to the advice of counsel, is ordinarily a question
for the finder of fact .See footnote 6
Seaboard Oil v. Cunningham, 51 F.2d 321, 325 (5th Cir. 1931). See
also Tomasits v. Cochise Memory Gardens, Inc., 150 Ariz. 39, ___,
721 P.2d 1166, 1168 (Ct.App. 1986) (in a wrongful disinterment case, circumstances
relating to the defendant's reliance on the advice of counsel could go to show
the defendant's negligence; the jury could consider these circumstances in considering
punitive damages); Phillips v. Morrow, 97 So. 130, 132 (Ala. 1923) (whether
punitive damages are to be awarded if advice of counsel is claimed as a defense
is a question for the jury); Bradford v. Lawrence, 94 So. 103, 104 (Ala.
1922) (whether advice of counsel is a defense to an award of punitive damages
in a malicious attachment case is ordinarily a jury question); Karow v. Student
Inns, Inc., 43 Ill.App.3d 878, ___, 2 Ill. Dec. 515, ___, 357 N.E.2d 682,
687-89 (1976) (it was a jury issue in a malicious prosecution case whether the
defendant had disclosed all facts clearly to counsel so as to establish the
advice of counsel defense to false arrest); Trammell v. Ramage, 11 So.
916, 918 (Ala. 1892) (the fact that the plaintiff acted with the advice of counsel
did not foreclose the jury from considering punitive damages in an action for
wrongful attachment). See also Holland v. Thacher, 199 Cal.App.3d 924,
926, 929, 245 Cal.Rptr. 247, 250, 252 (1988), a legal malpractice case where
the alleged negligence of the plaintiff's other attorney was imputable to the
plaintiff under principles of agency in the determination of comparative negligence;
in accord, Kroll & Tract v. Paris & Paris, 86 Cal.Rptr.2d
78, 72 Cal.App. 4th 1537 (1999).
Based on the foregoing discussion,
we hold that in an employment law civil action, the fact that an employer acted in reliance upon the advice of counsel
is not an absolute defense to a claim that the employer acted unlawfully or
negligently. Relevant evidence regarding the advice of counsel may be admissible
in the trial of an employment law civil action as part of the calculus of evidence
that the fact finder considers in reaching its verdict -- including on the issue
of punitive damages, where that issue is presented . See
footnote 7 7
Based on the foregoing reasoning,
our answer to the district court's first certified question is no.
Contribution & Impleader
The district court's second
certified question is:
Do the doctrines of joint tortfeasor
and right of contribution apply in the legal malpractice context of a client's
predecessor law firm and successor law firm, each of whose respective conduct
is separated by an intervening trial caused by the predecessor law firm's alleged
legal malpractice?See footnote 8 8
In addressing this question, we
first briefly review West Virginia case law relating to contribution among tortfeasors
and the impleader of third-party defendants.
In Board of Education of McDowell
County v. Zando, Martin, and Milstead, Inc., 182 W.Va. 597,
390 S.E.2d 796 (1990), a Board of Education sued an architectural and engineering
firm (ZMM), claiming that ZMM was negligent and breached its contract
with the Board to design and supervise the construction of a new school, after
cracks and other damage to the building developed in the years immediately following
ZMM filed a third-party complaint
against two other companies that the Board had hired -- one company did soil testing
at the construction site, and one company did most of the building construction.
We held in Zando that ZMM could maintain an action for contribution against
the third-party defendants, based on an inchoate right of contribution.
We held in Syllabus Point 4 of
Zando that an action for contribution may be brought by a joint tortfeasor on any theory of liability that could have been
asserted by the injured plaintiff. See also Sydenstricker v. Unipunch
Prods, Inc., 169 W.Va. 440, 452, 288 S.E.2d 511, 518 (1982).
We further stated in Zando
. . . right of inchoate contribution
is not confined only to cases of joint negligence. Instead, it arises under
any theory of liability which results in a common obligation to the plaintiff.
. . . The touchstone of the right of inchoate contribution is this inquiry:
Did the party against whom contribution is sought breach a duty to the plaintiff
which caused or contributed to the plaintiff's damages?
The fundamental purpose of
inchoate contribution is to enable all parties who have contributed to the plaintiff's
injuries to be brought into one suit.
182 W.Va. at 603, 390 S.E.2d at 802.
In another contribution case,
Magnet Bank v. Barnette, 187 W.Va. 435, 437, 419 S.E.2d 696, 698 (1992)
(per curiam), we held that a third-party contribution claim by a defendant
against the defendant's law firm claiming legal malpractice was derivative of
the same transaction, occurrence or nucleus of operative fact as the underlying
claim by the plaintiff; and the third-party claim was allowed.
Magnet Bank and Zando
illustrate the principle that West Virginia jurisprudence favors the consideration,
in a unitary trial, of all claims regarding liability and damages arising out
of the same transaction, occurrence or nucleus of operative facts , and the
joinder in such trial of all parties who may be responsible for the relief that
is sought in the litigation . See footnote 9 9
Turning to the more specific
issue of third-party impleader of other attorneys in legal malpractice actions
on contribution claims, we continue our discussion by examining the recent case
of Parler & Wobber v. Miles & Stockbridge, 359 Md. 671, 756 A.2d
526 (2000), in which the Maryland Court of Appeals addressed a certified question
from a federal district court that is quite similar to the contribution/impleader
question that we are considering in the instant case.
In Parler, an attorney-defendant
in a legal malpractice case, Lawyer I, sought to implead as a third-party
defendant the plaintiff's current attorney, Lawyer II. Lawyer I claimed
that Lawyer II's negligence had contributed to the damages that the plaintiff
argued had resulted from Lawyer I's alleged malpractice.
The Parler opinion contains
an instructive discussion of the evolution of Maryland's law of allocation of
damages among multiple tortfeasors, an evolution that is similar to what has occurred
in West Virginia. Regarding this evolution, Parler states:
unfairness of allowing a plaintiff the power to pick and choose whom to sue for
damages was alleviated by providing the defendant with the right to implead a
responsible third party to share in the liability. 359 Md. at ____, 756
A.2d at 534. Parler further states: Contribution
rests on common liability, not on joint negligence or joint tort. Common liability
exists when two or more actors are liable to an injured party for the same damages,
even though their liability may rest on different grounds.
Id. (Citations omitted.)
In Parler, the Maryland
court weighed the public policy in favor of assuring that all potentially responsible,
accountable, and liable persons are brought before the court for a determination
of what liability they may or may not have -- and found that this policy interest
could outweigh the disruption of the attorney-client relationship that would
arise as a result of allowing the impleading of the plaintiff's current counsel,
Lawyer II, as a defendant. The Parler court concluded that under the
facts of the case before the court, the impleader of Lawyer II was permissible.
The Parler court stated:
Prohibiting a joint tortfeasor
action in this case would [. . . circumvent the purpose of Maryland's Uniform
Contribution Against Tortfeasors Act (UCATA) which requires] that a party should
be held accountable for damages caused by his or her negligence. Successor counsel
could escape from this accountability by forcing former counsel to shoulder
the burden of loss to the client in situations where both attorneys may have
brought about the client's injury. The unfair and unjust outcome for former
counsel would be reminiscent of the pre- UCATA era. We think the better public
policy approach is for the parties to lay their cards on the table for the fact-finder
to determine the facts and allocate the loss to the proper parties, rather than
granting successor counsel a shield of immunity for its alleged wrongful acts.
We respect the public policy
concerns voiced by our sister states that prohibit former counsel from suing
successor counsel. Many of their concerns, however, cut both ways. Prohibiting
an impleader action in such cases also may undermine the attorney- client relationship.
For example, the Holland [v. Thacher, 199 Cal.App.3d 924, 245
Cal.Rptr. 247 (1988)] court voiced concern that allowing former counsel to sue
successor counsel would forge an irresponsible weapon of intimidation. See
245 Cal.Rptr. at 250. By the same token, we can envision, given successor counsel's
position of trust with and influence over the client, that a bar to an impleader
action could create a situation ripe for successor attorney mischief and manipulation.
It would hardly be in the client's best interest to be represented by counsel
that was negligent in causing an injury to the client, but who failed to disclose
the negligence to the client or take responsibility for the action. This dominant
position leaves us uneasy accepting the notion that successor counsel should
be left to its potential self-dealing. Furthermore, Appellants' argument that
their ethical duty of confidentiality is infringed by the tortfeasor action
is misplaced. As discussed supra, the confidentiality duty, unless exempted by law, must succumb to discovery and
the search for truth.
Moreover, we do not lack faith
in the disciplinary tools in the Maryland Rules, and particularly the Rules
of Professional Conduct (RPC), that deter the filing of frivolous and harassing
claims. They represent potential consequences to discourage an improper impleader
action. They address, for example, the Holland court's concerns, such
as the availability for monetary sanctions, at the state and federal levels,
against attorneys that fall prey to the temptation of harassing an opponent.
359 Md. at ___, 756 A.2d at 544-545 [emphasis added, footnotes omitted].
The Parler opinion recognizes,
in the foregoing quoted language, that some courts have prohibited other-attorney
impleader in legal malpractice cases when impleader would interfere with
the attorney-client relationship. See, e.g., Holland v. Thacher, 199
Cal.App.3d 924, 245 Cal.Rptr. 247 (1988). However, even when such interference
is possible, many courts have taken the position that is adopted in Parler,
and recognized that a defendant attorney in a legal malpractice case may make
a third-party contribution claim against a plaintiff's subsequent, current,
or former attorney. See, e.g., LaPorte v. Mott, 227 A.D.2d 824, ___,
642 N.Y.S.2d 418, 419 (1996) (a defendant attorney in a legal malpractice case
could implead the plaintiff's successor attorney, the court stating: [I]t
is not necessary that [the defendant's third-party] claim against [the successor
attorney] arise out of the rendition of legal services in the very same [legal]
proceeding or transaction . . . it suffices that [the successor attorney's]
breach of duty merely had a part in causing or augmenting the injury for which contribution is sought.)See
footnote 10 10
We need not in the instant case
establish a broad rule for our courts in this somewhat arcane and complex area
of the law -- and prudence dictates that we should not. However, because the
issue of other-attorney impleader in legal malpractice cases is a matter of
state law that necessarily underlies and is fairly raised by the district court's
second certified question, we state that we find the reasoning of Parler
(and the cases cited herein that agree with Parler) to be consistent
with this state's contribution jurisprudence. Under the specific facts of the
instant case, we determine that the impleader of Andrews as a third- party defendant
by Bowles is not barred under West Virginia law regarding the seeking of contribution from third parties, merely because of an attorney-client relationship
between Andrews and Sheetz.See footnote
This determination, however,
does not fully answer the second certified question from the district court
-- because the district court also concluded that the jury trial in the Vandevender
case was an intervening cause that, as a matter of law, bars Bowles
from asserting a third-party contribution claim against Andrews.
On the issue of intervening
cause, we have held that if a first act of negligence sets off a chain
of events or creates a situation ultimately resulting in injury, then such negligence
may very well constitute the proximate cause of said injury, even if intervening
negligence occurs. Evans v. Farmer, 148 W.Va. 142, 154-156, 133 S.E.2d
710, 717-718 (1963). Additionally, where two or more persons are guilty of separate
acts of negligence which in point of place and time concur, and together proximately
cause or contribute to the injuries of another, such persons are guilty of concurrent
negligence for which they may be held jointly and severally liable. Syllabus
Point 1, Reilly v. Bayard, 146 W.Va. 292, 119 S.E.2d 650 (1961). In
accord, Syllabus Point 5, Kodym v. Frazier, 186 W.Va. 221, 412 S.E.2d
An intervening cause, in order
to relieve a person charged with negligence in connection with an injury, must
be a negligent act which constitutes a new effective cause and operates independently
of any other act, making it and it only, the proximate cause of the injury. Syllabus
Point 3, Wehner v. Weinstein, 191 W.Va. 149, 444 S.E.2d 27 (1994).
Syllabus Point 2 of Evans
v. Farmer says:
The questions of negligence,
contributory negligence, proximate cause, intervening cause and concurrent
negligence are questions of fact for the jury where the evidence is conflicting
or when the facts, though undisputed, are such that reasonable [persons] may draw
different conclusions from them.
(Emphasis added). In accord, Harbaugh v. Coffindaffer, ___ W.Va.
___, 543 S.E.2d 338 (2000) (per curiam).
From the pre-trial record that
is before us in the instant case, a finder of fact could reasonably conclude (1)
that Andrews had substantial responsibilities with respect to developing and approving
Sheetz's policies and practices governing the treatment of Sheetz's employees
who were receiving worker's compensation and/or who had disabilities; and
(2) that those policies and practices directly exposed Sheetz to legal liability
in circumstances like Ms. Vandevender's, and quite possibly on a wholesale basis
in West Virginia.
In other words, a finder of fact
could reasonably conclude that because of serious legal design defects
in Sheetz's employment policies and practices -- defects for which Andrews had
substantial responsibility -- the Vandevender termination and the resulting
Vandevender litigation were an accident waiting to happen; and
that Andrews' conduct therefore played a direct role in causing the accident. It also appears
to be a reasonable possible conclusion that the use by Sheetz of an overall
illegal employment policy for Sheetz's West Virginia employees -- especially
by a large corporation that had easy access to legal counsel -- was a significant
contributing factor in the size of the Vandevender punitive damages award,
further implicating Andrew's responsibility with respect to the punitive damages
The foregoing examples of reasonable
conclusions from the evidence that permit viewing Andrews' conduct as playing
a proximate role in causing or contributing to the punitive damages award in
the Vandevender case are not exhaustive. However, these examples suffice
to show that one can view the evidence in the instant case as permitting an
affirmative answer to the contribution test that we set forth in Zando,
supra: d id the third- party defendant (Andrews) breach a duty to the plaintiff
(Sheetz) that caused or contributed to the damages that the plaintiff is seeking
from the defendant (Bowles)?
Applying the intervening
cause principles of Evans v. Farmer, supra to these permissible
views of the evidence, a fact finder could reasonably conclude that the Vandevender
jury trial did not clearly interrupt or supplant the natural flow of proximate
causation and consequence from Andrews' conduct in connection with Sheetz's
employment policies -- and that therefore the Vandevender jury trial
was not an entirely new and independent cause of the punitive damage award in
Vandevender. A fact finder could conclude that whatever Bowles' liability
(if any) was in connection with the punitive damages award in Vandevender, Andrews was also liable in connection
with that award, due to Andrews' contributing conduct.See
footnote 12 12 Simply put, a fact finder could reasonably conclude
that the jury trial in Vandevender was not an intervening cause. (We
note that neither Andrews nor Sheetz has cited us to any case that has held
that a jury trial in similar or analogous circumstances was as a matter of law
an intervening cause.)
Of course, we recognize that
Andrews vigorously disputes the correctness of all of the foregoing possible
conclusions. At this juncture, however, the issue is not whether such conclusions
are incontrovertibly established certainties, but rather whether they are reasonable
conclusions that a fact finder could make -- and we believe that they clearly
are. Based on the foregoing
discussion, we hold that an attorney-defendant in a legal malpractice case is
not barred from impleading another attorney who has provided legal services
to the client-plaintiff, as a third-party defendant on a contribution claim,
merely because a jury trial that resulted in damages for which the plaintiff
claims the original attorney-defendant is liable occurred after the allegedly
contributing conduct of the third- party defendant.
Our answer to the district court's
second certified question is yes.
The district court's third certified question is:
Does West Virginia law allow
the use of lawyers as experts in legal malpractice cases?See
footnote 13 13
The general rule in West Virginia
is that expert testimony is admissible on matters where the opinion of an expert
would help the jury. See West Virginia Rule of Evidence, Rule 702. As the
federal district court's discussion in the instant case noted, there is a consensus
of authority in other jurisdictions that this general rule applies in legal malpractice
cases. We decline the parties' suggestion that we should delineate in the instant
case specific parameters beyond the sound discretion of the court regarding the
proper scope of expert testimony in area of legal malpractice. We hold that expert
testimony is admissible in legal malpractice actions. Our answer to the district court's third certified
question is yes.
The district court's fourth
certified question, relating to the plaintiff in the Vandevender case,
Is a plaintiff's own testimony
of both an aggravation of a prior physical injury and emotional distress a sufficient
quantifiable measure to sustain a verdict for both emotional distress
and punitive damages or, must a plaintiff produce substantial and concrete
evidence of serious physical injury to avoid application of the double-recovery
preclusion?See footnote 14 14
To answer this question, we must
back up a little and look at the reason that the district court is asking this
In the Vandevender opinion,
this Court declined to substantively address several alleged trial court errors
that were asserted by Sheetz on appeal. Specifically, we noted in Vandevender
that these alleged errors by the trial court had not been properly preserved for
appeal at trial. 200 W.Va. at 607, 490 S.E.2d at 694. Part of Sheetz's claim against
Bowles is that Bowles committed malpractice by not raising certain objections
at trial and thus not properly preserving these alleged errors.See
footnote 15 15
One of these unpreserved alleged
errors that was asserted on appeal by Sheetz was the claim that the jury,
because it was improperly instructed, had given Ms. Vandevender an impermissible
double recovery by awarding her both emotional distress damages and
That is, Sheetz argued
on appeal in Vandevender that the jury had impermissibly awarded
Ms. Vandevender money for the same damages twice -- first as emotional distress
damages, and second as punitive damages. Sheetz argued on appeal that the jury's
punitive damages award against Sheetz should be entirely stricken because of this
allegedly erroneous double recovery.
On this point, Sheetz has stated
to the federal district court in the instant case:
If [Bowles] had properly preserved
an objection to this duplicative damages jury instruction, the [West Virginia]
Supreme Court of Appeals would have stricken the entire punitive damages award.
. . . The [West Virginia Supreme] Court made clear [in Vandevender] that, due
to a lack of supporting evidence, it would have overturned the duplicative award
were it not for the procedural defect caused by [Bowles'] errors. . . . The
only reason the [West Virginia Supreme Court of Appeals] did not strike the punitive
damages award was because [Bowles] failed to preserve an appropriate objection
Sheetz thus says that in Vandevender
this Court clearly recognized that a jury had awarded and a trial judge had
approved an entirely illegal multimillion-dollar punitive damages award -- and that we nevertheless sustained that wrongful award, solely
on the grounds of a procedural defect in preserving the issue for appeal.
This characterization by Sheetz
of this Court's consideration of the alleged errors that Sheetz asserted in
its appeal of the jury's verdict in Vandevender misapprehends how this
Court reviews asserted but unpreserved alleged trial errors.
The fact that this Court in
an opinion states that it is not addressing the merits of an asserted but unpreserved
alleged trial court error does not imply that the assertion is meritorious --
or that this Court would have found reversible error if the alleged error had
been properly preserved.
In fact, this Court's plain
error doctrine is specifically designed for the purpose of addressing
and correcting errors that go to matters of fundamental fairness, but that were
not properly preserved at trial. Syllabus Point 7 of State v. Miller,
194 W.Va. 3, 459 S.E.2d 114 (1995) states:
To trigger application of the
plain error doctrine, there must be (1) an error; (2) that is plain;
(3) that affects substantial rights; and (4) seriously affects the fairness,
integrity, or public reputation of the judicial proceedings.
See also Cordial v. Ernst & Young,
199 W.Va. 119, 483 S.E.2d 248 ( 1996) (citing Miller); Mollohan v.
Black Rock Contracting, Inc., 160 W.Va. 446, 449, 235 S.E.2d 813, 815 (1977);
Earp v. Vanderpool, 160 W.Va. 113, 232 S.E.2d 513 (1976). If
the alleged double recovery error that Sheetz asserted on appeal
in Vandevender had been plain, had affected substantial rights, and had
seriously affected the fairness, integrity, or public reputation of the judicial
proceedings, this Court had both the authority and the duty to use the plain
error doctrine to correct it. To the extent that our decision in Vandevender,
not to invoke the plain error doctrine to address asserted but unpreserved
alleged trial court errors, permits any inference, the correct inference would
be that the asserted errors did not meet the substantive tests that the plain
error doctrine embraces.
With respect to Sheetz's underlying
substantive contention that the punitive damages award that we approved in
Vandevender violated principles of West Virginia law that prohibit double
recovery -- a contention that we declined to discuss in our Vandevender
opinion, noting that it had not been preserved at trial -- the district court's
fourth certified question references certain double recovery principles
that were discussed in Tudor v. Charleston Area Medical Center, 203 W.Va.
111, 506 S.E.2d 554 (1997), a case that was decided 5 months after the Vandevender
opinion was issued. We reproduce in a footnote Syllabus Points 12, 13, 14, and
15 of Tudor.See footnote 16 16
In Syllabus Point 12 of Tudor,
this Court recognized that both punitive damages and damages for emotional distress
could be separate items of recovery in a retaliatory discharge case, if a jury
found an employer's actions to be wanton, willful or malicious. See also Stump
v. Ashland, Inc., 201 W.Va. 541, 553, 499 S.E.2d 41, 53 (1997) (rejecting
a double recovery challenge to plaintiff's request for separate punitive
damages and emotional distress damages in a case where claims for both wrongful
death and negligent infliction of emotional distress were made.)
We recognized in Tudor
that in the tort of the intentional or reckless infliction of emotional distress,
emotional distress is a more integral part of the cause of action itself than
is the case with other causes of action, where emotional distress is but one type
of injury or damages that can result from actionable conduct. Similarly, the intent
or recklessness that generally forms the basis of a punitive damages award in
connection with most causes of action is a more integral part of the tort of the
intentional or reckless infliction of emotional distress .See
footnote 17 17
For these reasons, we have recognized
that there is a greater possibility with intentional or reckless infliction of
emotional distress claims of a blurring of punitive and emotional distress
damages, and therefore of an impermissible double recovery. Consequently, to guide
circuit courts in reviewing punitive damage awards in connection with intentional
or reckless infliction of emotional distress claims, Syllabus Points 14
and 15 of Tudor were crafted. See the emphasized text of Syllabus
Points 14 and 15 of Tudor, note 16 supra.
Syllabus Points 14 and 15 of
Tudor recognize that in the case of an intentional or reckless infliction
of emotional distress claim, if there is not substantial and concrete evidence
of a plaintiff's physical, emotional or psychiatric injury, some or all of an
emotional distress damages award may actually be punitive damages. If it appears
to a trial court that is reviewing punitive damages awarded for the intentional
or reckless infliction of emotional distress that there has been such a duplicative or misplaced award, the court
should modify the punitive damages award accordingly. Id. See
footnote 18 18
The Vandevender emotional
distress and punitive damages awards, of course, were not based on the tort
of intentional or reckless infliction of emotional distress, but rather on claims
of termination and retaliation in violation of our human rights and workers'
compensation statutes.See footnote 19
19 The specific double recovery concerns that arise
in the case of the tort of the intentional or reckless infliction of emotional
distress that we addressed in Syllabus Points 14 and 15 of Tudor are
not applicable to the Vandevender case.
As set forth in Syllabus Point
12 of Tudor, note 16 supra, the recovery of both emotional
distress damages (where such distress, of course, is proven) and punitive damages
(where the employer's misconduct is sufficiently egregious to meet the standards
established in our punitive damages jurisprudence) has been held to be authorized
in employment law cases generally. See, e.g., McClung v. Marion County Com'n,
178 W.Va. 444, 360 S.E.2d 221 (1987) (award of punitive damages in retaliatory discharge case is appropriate
where wrongful conduct is wanton, wilful or malicious); Haynes v. Rhone-Poulenc,
Inc., 206 W.Va. 18, 521 S.E.2d 331 (1999) (punitive damages are available
in Human Rights Act cases). See footnote
Sheetz's contention, that this
Court knowingly sustained a clearly illegal punitive damages award in
Vandevender, is simply wrong. See
footnote 21 21
Based on the foregoing
discussion, our answer to the district court's fourth certified question is
yes -- however, the specific principles and procedures that are
set forth in Syllabus Points 14 and 15 of Tudor v. Charleston Area Medical
Center , 203 W.Va. 111, 506 S.E.2d 554 (1997) are limited to the tort of
the intentional or reckless infliction of emotional distress.
Having answered the district
court's certified questions, this case is dismissed.
Footnote: 1 1On
appeal, this Court reduced the punitive damages award by $466,260.00. See Vandevender,
200 W.Va. at 606, 490 S.E.2d at 693.
Footnote: 2 2
A. The Grounds for the Alleged Legal Malpractice.
The alleged legal malpractice
arises out of an employment law case in the Circuit Court of Berkeley County,
West Virginia styled Cheryl Vandevender v. Sheetz, Inc., et al., C. A. No. 94-
C-653, and as reported on appeal in 490 S.E.2d 678 (W. Va. 1997) (per curiam).
The law firm of Bowles, Rice, McDavid, Graff & Love (Bowles) by and through,
Norwood Bentley, III, Esq., (Bentley), represented Sheetz, Inc., in that action.
Andrews & Wagner (Andrews),
the Third-Party Defendant in this civil action, drafted an employee termination
policy for Sheetz. Based upon the termination policy, Sheetz terminated Cheryl
Vandevender (Vandevender) while she was off-work and receiving Workers' Compensation
In response, Vandevender sued
Sheetz alleging that Sheetz wrongfully terminated her and failed to rehire her
in violation of West Virginia law. Additionally, in her amended complaint, Vandevender
included a cause of action for unlawful reprisal.
Bowles claims that it advised
Sheetz that the termination policy violated West Virginia law and that it recommended
to Sheetz that Sheetz settle the matter. Bowles also asserts that it urged Sheetz
to re-hire Vandevender to diminish Sheetz' liability for Vandevender's front pay
damages. Bowles then requested Vandevender to make a settlement demand for backpay,
benefits and legal fees.
Vandevender offered to settle
the matter for $30,000. Contrary to Bowles' recommendation that Sheetz settle
the matter, Sheetz rejected Vandevender's $30,000 settlement offer. Sheetz, however,
made a counter-offer, authorizing Bowles to offer Vandevender a maximum of $10,000
with the condition that Vandevender not return to work. Bowles advised Sheetz
that, although Sheetz should settle this matter, this counter-offer was insufficient.
Sheetz did not follow Bowles' advice and did not change the terms of its counter-offer.
Sheetz, however, in following
Bowles' advice to diminish Vandevender's front pay damages, rehired Vandevender.
On the first day Vandevender returned to work, Sheetz personnel instructed her,
without regard to her known physical work limitations as prescribed by her doctor,
to stock the soda cooler. Vandevender claimed that this activity caused her to
aggravate her back injury. Consequently, Vandevender amended her complaint to
allege the claim of unlawful reprisal.
The Circuit Court concluded that
Sheetz' termination of Vandevender violated W.Va. Code, § 23-5A-3(a) (1994)
and that the termination policy was illegal. The Jury awarded Vandevender approximately
$3 million, including over $2.5 million in punitive damages. In his post-trial
order, Judge Thomas W. Steptoe, Jr. concluded that there was adequate evidence
of Sheetz' wilful misconduct and, therefore, upheld the Jury's punitive damages
On appeal, the West Virginia
Supreme Court of Appeals concluded that there was adequate evidence to support
an award of punitive damages. (Vandevender v. Sheetz, Inc., 490 S.E.2d 678, 688-89
(W. Va. 1997) ([W]e conclude that sufficient evidence was presented of
willful, wanton, and/or reckless conduct that warranted a consideration of punitive
damages by the jury.) The Court, however, reduced the amount of Vandevender's
punitive damages. Id. at 693 ([W]e determine that the punitive damages
award should be reduced).)
Legal Malpractice Actions.
After the Jury's verdict, Sheetz
first asserted a legal malpractice claim against Andrews. Stan Sheetz, an officer/owner
of Sheetz, Inc., told David Andrews, a senior partner with the law firm, that
he was considering filing a malpractice claim against Andrews because Andrews
prepared Sheetz' unlawful termination policy. Stan Sheetz thought Sheetz, Inc.,
could recover approximately $30,000 from Andrews, representing Vandevender's
Sheetz settled this matter
with Andrews. Under the terms of this settlement, Andrews agreed to provide
Sheetz legal services. Additionally, Andrews' legal services were to be reduced
by a rate of fifteen percent (15%) until a total discount figure of $30,000
was reached. Thereafter, Andrews' normal billing rates would apply.
Sheetz then brought the instant
complaint against Bowles raising numerous allegations of legal malpractice.
Sheetz alleged that Bowles failed to adequately advise Sheetz of its potential
liability to punitive damages. (Sheetz also alleged that Bowles committed
legal malpractice when Bentley failed to preserve for appeal, the issue of the
availability of punitive damages for violations of West Virginia Workers' Compensation
Act and West Virginia Human Rights Act. The West Virginia Supreme Court of Appeals,
however, previously rejected this allegation. In Haynes v. Rhone-Poulenc, Inc.,
521 S.E.2d 331 (W.Va. 1999), the Court stated that punitive damages were available
in cases such as the Vandevender case. Id. at 346 (stating that the court did
not decide whether punitive damages were available under the West Virginia Human
Rights Act in, inter alia, Vandevender); see also id. at 348 (We hold
that punitive damages are an available form of remedial relief that a court may award under the [West Virginia Human Rights Act]).
) Additionally, Sheetz claimed that Bowles failed to adequately defend the
issue of punitive damages at trial by (a) failing to raise the advice
of counsel defense, (b) failing to bifurcate the issue of liability and
damages, (c) failing to object to a jury instruction allowing both emotional
distress and punitive damages, and (d) permitting Vandevender to introduce,
at trial, evidence of Sheetz' financial information of gross revenues.
In response, Bowles brought
a claim of contribution based upon a joint tortfeasor theory against Andrews.
Specifically, Bowles claims that the negligent advice Andrews provided Sheetz,
in drafting the unlawful termination policy, was the primary cause of Sheetz'
alleged damages. Furthermore, Bowles requested that the Court set aside Sheetz'
settlement with Andrews because the parties did not execute this settlement
in good faith.
Footnote: 3 3The
district court's discussion and proposed answer to this question are as follows:
In West Virginia, the advice
of counsel defense is a bar to punitive damages in an action for malicious prosecution.
However, West Virginia has not specifically extended this advice of counsel defense
to cases involving unlawful termination and failure to hire.
In Vandevender v. Sheetz, Inc.,
the West Virginia Supreme Court of Appeals recognized that a bad or legally
incorrect corporate policy is not the equivalent of a mean-spirited, evil intent
to cause harm. Therefore, the advice of counsel defense, in this case being
Andrews' negligent advice in drafting the unlawful termination policy, may present
a mitigating factor in awarding punitive damages. This Court, however, concludes
that an advice of counsel defense is currently not an absolute bar to punitive
damages in cases involving unlawful termination and failure to hire.
Footnote: 4 4See
also VanDyke v. Mountain Coin Machine Dist., 758 P.2d 962, 966 (Utah 1988) (abuse
of process and breach of contract action; punitive damages were appropriate in
part because the defendant's deliberate misconduct was done under the advise
[sic] of an attorney); Pierce v. Penman, 515 A.2d 948, 955 (Pa. Super. 1986)
(advice of counsel could be considered as a factor by the finder of fact, but
did not overcome plaintiff's case establishing defendant's liability for punitive
damages); Craven v. City of Minot, N.D., 730 F.Supp. 1511, 1513 (D.N.D. 1989)
(reliance on the erroneous advice of defendant's attorney does not bar a finding
that a violation of the Fair Labor Standards Act was a willful violation); Stumpf
v. Pederson, 70 P.2d 101, 103 (Okla. 1937) (evidence of advice of counsel was
admissible in mitigation of punitive damages in wrongful attachment suit); Rova
Farms Resort, Inc. v. Investors Ins. Co. of Amer., 65 N.J. 474, 323 A.2d 495 (1974)
(insurer that refused to settle for policy limits was liable for entire judgment
despite advice of counsel that liability was weak); Decker v. Amalgamated Mut.
Cas. Ins. Co., 35 N.Y.2d 950, ___, 324 N.E.2d 552, 553 (Ct.App. 1974) (reliance
on advice of counsel does not as a matter of law negate bad faith in a case of
refusal to settle within insurance policy limits); Perkins v. Stephens, 308 P.2d
620, 622 (Mont. 1957) (evidence of advice of counsel is proper in a trespass case
on the issue of punitive damages); Stanton by Brooks v. Astra Pharm. Prod., Inc.,
718 F.2d 553, 580 (3d Cir. 1983) (jury could consider evidence of advice of counsel
in a negligence and products liability case in connection with the issue of punitive
Footnote: 5 5As
we noted in Powers, supra, the mere fact of reliance upon the advice of counsel
does not establish the defense in a malicious prosecution cases. Full disclosure
of the facts to an attorney, request for the attorney's advice as to the legality
of the contemplated action, advice that the action was legal, and reliance upon the advice in good faith
must be proven to establish the defense. Id. See also Wright v. Yurko, 446 So.2d
1162 (Fla. App. 1984); Dellums v. Powell, 566 F.2d 167, 185-86 (D.C.Cir. 1977)
(advice of counsel would not be a defense if the defendant had not disclosed
all material facts to counsel).
Footnote: 6 6Although
the proposition may not be immediately intuitive, upon reflection (and in examining
the case law) one can see that circumstances involving the advice of counsel
are a two-edged sword that may reduce or enhance liability or damages, depending
upon the circumstances and the issues in a given case, and upon how those circumstances
weigh with the fact finder. For example, a defendant could argue: But our
lawyers said it was OK!; while a plaintiff could argue: They had the
best lawyers available, but they still didn't get it right! Both arguments
could make a valid and relevant point, depending on the specific issues and circumstances
of a case.
Generally speaking, constitutional and public policy concerns
caution against expansively shielding conduct from accountability merely because
of the involvement of an attorney in connection with that conduct. For example,
it would unfairly tilt the playing field to shield one class of parties from accountability
simply because the advice of an attorney arguably affected their conduct, where
other similarly situated parties are held strictly accountable for their conduct,
regardless of whether an attorney counseled that conduct. Cf. Syllabus Point 8,
White v. Berryman, 187 W.Va. 323, ___, 418 S.E.2d 917, 926 (1992) ([A]n
attorney's negligence will not serve as the basis for setting aside a default
judgment on grounds of 'excusable neglect.') Cf. also State ex re. Walker
v. Giardina, 170 W.Va. 483, 486, 294 S.E.2d 900, 903 (1982) (. . . one is
not excused for his disobeyance of a valid court order because someone told him
not to obey it.); Holiday v. City of Chattanooga, 206 F.3d 637, 645 (6th
Cir. 2000) (Employers do not escape their legal obligations under the ADA
by contracting out . . . personnel functions to third parties.); Sprott
v. Avon Products, Inc., 596 F.Supp. 178, 182-83 (S.D.N.Y. 1984) (ADEA plaintiff
could not rely upon advice of counsel in support of his request for
equitable tolling of the statute of limitations). Cf. also Michael V. Ciresi,
Roberta B. Walburn, and Tara D. Sutton, Decades of Deceit: Document Discovery
in the Minnesota Tobacco Litigation, 25 William Mitchell Law Review 477
(1999) (tobacco companies unsuccessfully asserted attorney-client privilege as
grounds for shielding research on addiction and tobacco-related illness from litigation
Simply put, attorneys are not immunity machines.
Footnote: 7 7In
the instant case, Sheetz faults Bowles for allegedly failing to adopt the strategy
in the Vandevender trial of asserting that in terminating Ms. Vandevender -- a
person with a disability who was receiving workers' compensation benefits -- Sheetz
was merely implementing a corporate policy that Sheetz's counsel Andrews had approved.
However, upon the record before this Court, the circumstances regarding Sheetz's
reliance on the advice of counsel with respect to its West Virginia
employees are of uncertain import. For example, Andrews contradicts Sheetz's position
and denies having any responsibility for Sheetz's employment policies at Sheetz's
non-Pennsylvania operations. Additionally, at the Vandevender trial, Sheetz employees
testified that Sheetz had concluded, with the advice of counsel -- and after Ms.
Vandevender brought her claim of wrongful termination -- that the personnel policy
that was applied to Ms. Vandevender clearly violated West Virginia law. However,
Sheetz's witnesses also acknowledged at trial that Sheetz had done nothing to
identify or correct any adverse personnel actions against other Sheetz West Virginia
employees that were based on the illegal policy. Additionally, the advice of counsel
strategy in the Vandevender case could have made relevant what Sheetz had told
Andrews and vice versa -- and possibly even what Sheetz had told Bowles and vice
versa. See, e.g., Wender v. United Servo. Augo. Ass'n., 434 A.2d 1372, 1374 (D.C.
1981) (holding that an invocation of the advice of counsel defense waives the
attorney-client privilege). See also generally, Annotation, Legal Malpractice:
Negligence or Fault of Client as Defense,10 A.L.R.5th 828.
Footnote: 8 8The
district court's proposed answer to this question and discussion are as follows:
Contribution is an equitable
doctrine, arising in contract or tort, involving three different parties: two
obligors and one obligee. In this situation, the two obligors share an obligation
to the obligee. Then, the two obligors are sued on their shared obligation. Ultimately,
one obligor is forced to pay more of its fair share of the obligation that it
shares with the other obligor. Consequently, this obligor seeks recovery against
that other obligor. However, the obligor can only recover amounts in excess of
the obligor's fair share.
Under tort law principles, the
joint tortfeasors' negligence must be the proximate cause of the injuries. A proximate
cause is that act which directly produced or concurred in producing the
injury. An intervening cause constitutes a new effective cause and
operates independently of any other act, making it and it only, the proximate
cause of the injury. The practical effect of an intervening cause is to
relieve an otherwise negligent party from liability.
Sheetz has sued Bowles for the
entire $3 million verdict after Sheetz settled its malpractice claim against Andrews.
Bowles claims that Andrews and Bowles are joint tortfeasors and that Andrews'
negligence, in drafting the unlawful termination policy, is the proximate cause
of Sheetz' injuries, the $3 million verdict. Furthermore, Bowles claims that,
because Bowles and Andrews both provide Sheetz legal services, Bowles and Andrews
are two obligors sharing a common obligation to provide Sheetz adequate legal
advice. Additionally, Bowles argues that the Sheetz-Andrews settlement effectively
exposes Bowles to the potential of paying more than its fair share of this shared
obligation. For this reason, Bowles seeks to recover against Andrews. Bowles,
therefore, impleaded Andrews as a third-party defendant in this civil action.
Bowles also seeks to set aside
the Sheetz-Andrews settlement on grounds that Sheetz and Andrews did not execute this settlement in good
Neither party has been able
to submit any controlling West Virginia decisions as to the legal malpractice
claims in the context of joint tortfeasors and the right of contribution. The
key treatise concerning legal malpractice recognizes that, frequently, other
lawyer-defendants have attempted to join the plaintiff-client's predecessor
or present attorneys as additional defendants. Although many different jurisdictions
have considered this issue, there appears to be no clear majority position.
Therefore, unless the West Virginia Supreme Court of Appeals holds otherwise,
the Court concludes that the intervening jury trial acts as an intervening cause
and, therefore, terminates Bowles' claim for contribution against Andrews' alleged
prior legal malpractice in a joint tortfeasor context.
Footnote: 9 9See,
e.g., Syllabus Point 4, Bowman v. Barnes, 168 W.Va. 111, 282 S.E.2d 613 (1981);
State ex rel. Tinsman v. Hott, 188 W.Va. 349, 424 S.E.2d 584 (1992); State ex
rel. Crafton v. Burnside, 207 W.Va. 74, 528 S.E.2d 768 (2000); Barth v. Keffer,
195 W.Va. 51, 56, 464 S.E.2d 570, 576 (1995). We held in Howell v. Luckey, 205
W.Va. 445, 518 S.E.2d 873 (1999), that a defendant who does not invoke the third-party
procedures of Rule 14 to implead another defendant who allegedly contributed to
the plaintiff's injuries risks forfeiting the right to seek contribution. See
also Mackey v. Irisari, 191 W.Va. 355, 445 S.E.2d 742 (1994) (physician sued for
malpractice could implead second physician on claim that second physician's negligence
contributed to damages claimed by plaintiff); Pennington v. Bluefield Orthopedics,
P.C., 187 W.Va. 344, 419 S.E.2d 8 (1992) (successive tortfeasors were jointly
responsible for damages claimed by plaintiff); Rine by Rine v. Isisari, 187 W.Va.
550, 420 S.E.2d 541 (1992) (a physician is liable for aggravation of injuries
resulting from subsequent negligent treatment, if foreseeable, where subsequent
treatment is undertaken to mitigate the harm caused by the physician's own negligence).
The approach that West Virginia has taken to contribution
and impleader is consistent with other jurisdictions. For example, in Monarch
Life Ins. Co. v. Donahue, 702 F.Supp. 1195 (E.D.Pa. 1989), the court held that
the Federal Rules of Civil Procedure, Rule 14, should be liberally construed to
allow third-party impleader where the original defendant seeks to transfer to
the third-party defendant the liability asserted against the original defendant
by the plaintiff. See also O'Mara Enterprises, Inc. v. Mellon Bank, N.A., 101
F.R.D. 668 (W.D.Pa. 1983) (third-party joinder to assert a contribution claim
should be permitted if under some construction of the facts recovery on the claim
is a possibility); Taylor v. G.I. Export Corp., 78 F.R.D. 494 (E.D.N.Y. 1978)
(defendant export corporation could implead the accounting firm whose negligence
allegedly led to the plaintiff's damages as a third party on a contribution claim).
Footnote: 10 10See
also Crouse v. Brobeck, Phleger & Harrison, 80 Cal.Rptr.2d 94, 115-117, 64
Cal.App.4th 1509, 1544-1548 (1998) (successor attorney, a defendant in legal malpractice
suit, could assert a claim against a predecessor attorney as a third-party defendant
alleging that the damages claimed by the plaintiff are attributable, at
least in part to the plaintiff's predecessor attorney); Smith v. McDougall,
529 A.2d 20 (Sup.Ct.Pa. 1987) (defendant attorney in a legal malpractice case
joined plaintiff's previous counsel as third-party defendant); Schauer v. Joyce,
54 N.Y.2d 1, 444 N.Y.S.2d 564, 429 N.E.2d 83 (1981) (defendant lawyer in a malpractice
case was permitted to join the plaintiff's successor lawyer for negligent failure
to correct problems allegedly caused by the previous lawyer's negligence); Hood
v. McConemy, 53 F.R.D. 435 (D.Del. 1971) (whether allegedly negligent actions
of two attorney-defendants combined to produce plaintiff's damages was an issue
for the jury; contribution claim by one attorney against the other allowed); Brown-Seydel
v. Mehta, 281 Ill.App.3d 365, 217 Ill. Dec. 131, 666 N.E.2d 800 (1996) (defendant
attorney in a legal malpractice case could bring a third-party contribution claim
against the plaintiff's subsequent attorney); Goran v. Glieberman, 276 Ill.App.3d
590, ___, 213 Ill.Dec. 426, ___, 659 N.E.2d 56, 61 (1995) (Illinois law is clear
that an attorney may seek contribution from another attorney in a legal malpractice
claim). Cf. Commercial Standard Title Co. v. Superior Court, 92 Cal.App.3d 934,
953, 155 Cal.Rptr. 393, 405 (1979) (Cologne, J., concurring and dissenting) (The
importance of having all tortfeasors before the court to secure a defendant's
right of indemnity overrides the plaintiff's right to shield his attorney and,
incidentally, his own behavior, on the issues he has raised by the lawsuit.)
Footnote: 11 11The
situation in the instant case differs somewhat from the situation in the Parler
case. Bowles is not claiming that conduct by a successor attorney
caused or contributed to the punitive damages award in the Vandevender case. Rather,
Bowles seeks contribution from Sheetz's predecessor attorney, insofar
as Andrews allegedly had responsibilities regarding the employment policy that
was an issue in Vandevender. However, Andrews apparently continues to provide
legal services to Sheetz, so there apparently is an ongoing attorney-client relationship.
Footnote: 12 12Andrews'
conduct in connection with Sheetz's employment policies was apparently the basis
for a $30,000.00 legal fee discount agreement between Andrews and Sheetz. However,
Sheetz does not claim that Andrews' conduct caused or contributed to the punitive
damages award in the Vandevender case. Although the district court's discussion
characterizes this fee discount as a settlement, it does not appear
to be a settlement of any claim that Andrews has any liability for the Vandevender
punitive damages, the claim made in the instant case.
Footnote: 13 13The
district court's answer to this question and discussion is as follows:
Sheetz has moved in limine to
exclude the testimony of legal opinions from Bowles' expert witness, Franklin
D. Cleckley. In part, Sheetz asserts that Cleckley will offer his personal opinions
as to how the West Virginia courts would have ruled on certain legal issues if
Bowles had raised those legal issues during the Vandevender trial.
In support of its motion, Sheetz
relies upon Adelman v. Baker, Watts & Co. for the proposition that the Fourth
Circuit recognizes that the trial judge decides issues of law and that expert
testimony is inadvisable on strictly issues of law. While this Court does not
question the analysis in Adelman, the Court notes that the Fourth Circuit also
recognized that a trial judge has the discretion to permit expert legal testimony.
In the Environmental Defense Fund, Inc. v. Lamphier, the Fourth Circuit authorized
a trial judge to allow an expert to testify as to the application and interpretation
of state environmental statutes and regulations.
In opposition to Sheetz' motion
in limine, Bowles asserts that West Virginia recognizes that expert witness testimony,
at trial, generally determines professional malpractice cases. Furthermore, Bowles
argues that legal expert testimony is necessary because there exist differing
opinions on the interpretation of relevant case law. Bowles concludes that these
differing opinions will permit a jury to return a verdict in favor of Bowles.
Although this Court sits in diversity
and must, therefore, apply West Virginia state substantive law, this Court also
applies the Federal Rules of Evidence for procedural purposes. However, the Court
applies state law rules of evidence when state law makes the proffer of expert
testimony necessary to prove an element of the substantive-law claim. Typically, the element of the substantive
state law claim is the standard of care or causation such as in a medical malpractice
In West Virginia, the elements
of actionable legal malpractice are [t]he attorney's employment; (2) his
neglect of a reasonable duty; and (3) that such negligence resulted in and was
the proximate cause of the loss to the client. As well, in West Virginia,
expert testimony generally resolves questions of professional malpractice. Therefore,
the Court applies West Virginia law because, in this case, Cleckley's testimony
would resolve whether Bowles neglected a reasonable duty to Sheetz.
West Virginia has not addressed
whether expert testimony is admissible in legal malpractice cases. However,
other jurisdictions have recognized that legal opinions, from lawyers, may be
admissible in actions where the conduct of other lawyers is at issue. These
courts reason that, where the conduct of other lawyers is at issue, the legal
opinions from lawyers in legal malpractice actions are similar to medical opinions
from physicians in medical malpractice actions.
Therefore, this Court concludes
that it should deny this motion in limine and permit Cleckley to testify about
the substantive state law claim of standard of conduct (i.e., whether Bowles
neglected a reasonable duty to Sheetz), unless the West Virginia Supreme Court
of Appeals rules otherwise.
Footnote: 14 14The
district court's answer to this question and discussion is as follows:
During trial, Vandevender did
not introduce any evidence of psychiatric or psychological treatment nor any medical
testimony of related trauma in support of her claim for emotional damages. However,
she testified that, after her back surgery and on her first day she returned to
work, a Sheetz manager forced her to stock a cooler in contravention of her doctor's
light work orders and that, as a result, she aggravated her back injury. Consequently,
Vandevender sought medical treatment and could not return to work thereafter.
Based upon this evidence, the Jury awarded Vandevender punitive damages and damages
for her emotional distress.
Sheetz argues that Vandevender's
recovery, of both punitive damages and damages for her emotional distress, constitutes
impermissible double recovery.
The West Virginia Supreme Court
of Appeals, in Tudor v. Charleston Area Med. Ctr., addressed the prohibitions
on double recovery and the plaintiff's ability to recover punitive damages absent
evidence of physical injury. The Court recognized that, absent evidence of this
physical injury, an award of punitive damages constitutes an impermissible double
recovery. At the same time, the Court did not require expert testimony to corroborate a claim
of intentional infliction of emotional distress.
The Tudor decision, however,
appears to be internally conflicting on the amount of evidence, concerning physical
injury the plaintiff must present. On the one hand, the Court held that a plaintiff
must present substantial and concrete evidence of physical injury.
On the other hand, the Court held that a plaintiff need only provide some
quantifiable measure of physical injury.
The question facing this Court
is whether a plaintiff must show substantial and concrete evidence
of physical injury to preclude the application of the double recovery preclusion,
or some quantifiable measure of evidence of physical injury to warrant
giving an instruction of law on the issue in order to sustain a verdict for
punitive damages. This Court concludes that plaintiff need only show some
quantifiable measure of physical injury and that, under this standard,
Vandevender did submit a quantifiable measure of evidence of physical injury
to warrant an instruction of law and a finding of punitive damages.
Footnote: 15 15Cf.
Picadilly, Inc. v. Raikos, 555 N.E.2d 167 (Ind. App. 1990), vacated on other grounds,
582 N.E.2d 338 (Ind. App. 1991) (legal malpractice claim in connection with punitive damages award).
Footnote: 16 16
12. Because there is a certain openendedness in the limits of
recovery for emotional distress
in a retaliatory discharge claim,
we decline to automatically allow
a claim for punitive dam-
ages to be added to the damage
picture. We do recognize that
where the employer's conduct is
wanton, willful or malicious,
punitive damages may be appropriate.
Syl Pt. 5, Harless v.
First Nat'l Bank, 169 W.Va. 673,
289 S.E.2d 692 (1982).
13. In permitting recovery
for emotional distress without proof of physical trauma when the distress arises
out of the extreme and outrageous conduct intentionally caused by the defendant, damages
awarded for the tort of outrageous conduct are essentially punitive damages.
Therefore, in many cases emotional distress damages serve the policy of deterrence
that also underlies punitive damages. Syl Pt. 8, Dzinglski v. Weirton
Steel Corp., 191 W.Va. 278, 445 S.E.2d 219 (1994).
14. In cases where the jury
is presented with an intentional infliction of emotional distress claim, without
physical trauma or without concomitant medical or psychiatric proof of emotional
or mental trauma, i.e. the plaintiff fails to exhibit either a serious physical
or mental condition requiring medical treatment, psychiatric treatment, counseling
or the like, any damages awarded by the jury for intentional infliction of emotional
distress under these circumstances necessarily encompass punitive damages and,
therefore, an additional award for punitive damages would constitute an impermissible
double recovery. Where, however, the jury is presented with substantial and
concrete evidence of a plaintiff's serious physical, emotional or psychiatric
injury arising out of the intentional infliction of emotional distress, i.e.
treatment for physical problems, depression, anxiety, or other emotional or
mental problems, then any compensatory or special damages awarded would be in
the nature of compensation to the injured plaintiff(s) for actual injury, rather
than serving the function of punishing the defendant(s) and deterring such future
conduct, a punitive damage award in such cases would not constitute an impermissible
double recovery. To the extent that this holding conflicts with our decision
in Dzinglski v. Weirton Steel Corp., 191 W.Va. 278, 445 S.E.2d 219 (1994), it
is hereby modified.
15. Where a jury verdict encompasses
damages for intentional infliction of emotional distress, absent physical trauma,
as well as for punitive damages, it is incumbent upon the circuit court to review
such jury verdicts closely and to determine whether all or a portion of the
damages awarded by the jury for intentional infliction of emotional distress
are duplicative of punitive damages such that some or all of an additional award
for punitive damages would constitute an impermissible double recovery. If the
circuit court determines that an impermissible double recovery has been awarded, it shall be the court's responsibility to
correct the verdict.
Footnote: 17 17
2. One who by extreme and outrageous conduct intention-
ally or recklessly causes severe
emotional distress to another is subject to liability for such emotional distress,
and if bodily harm to the other results from it, for such bodily harm. Syllabus
Point 6, Harless v. First Nat. Bank in Fairmont, 169
W.Va. 673, 289 S.E.2d 692 (1982).
3. In order for a plaintiff
to prevail on a claim for intentional or reckless infliction of emotional distress,
four elements must be established. It must be shown: (1) that the defendant's
conduct was atrocious, intolerable, and so extreme and outrageous as to exceed
the bounds of decency; (2) that the defendant acted with the intent to inflict
emotional distress, or acted recklessly when it was certain or substantially
certain emotional distress would result from his conduct; (3) that the actions
of the defendant caused the plaintiff to suffer emotional distress; and, (4)
that the emotional distress suffered by the plaintiff was so severe that no
reasonable person could be expected to endure it.
Syllabus Points 2 and 3, Travis v. Alcon Laboratories, Inc., 202 W.Va. 369,
504 S.E.2d 419 (1998).
Footnote: 18 18In
the Tudor opinion we used the phrase some quantifiable measure of compensatory
damages sustained from the intentional infliction of emotional distress
to indicate that the substantial and concrete standard must be applied
with reasonable latitude and flexibility. 203 W.Va. at 132, 506 S.E.2d at 575.
This language does not indicate any internal inconsistency in the Tudor opinion,
as the district court suggested might be the case.
Footnote: 19 19Justice
Maynard dissented to the Court's opinion in Vandevender because he does not believe
that punitive damages are available in actions brought under the human rights
and workers' compensation statutes as a matter of law, 200 W.Va. at 607-608, 490
S.E.2d at 694- 695; and even if such damages were available, he believes that
the facts in Vandevender did not support such a large punitive damages award.
He adheres to these positions. His dissenting opinion in Vandevender did not discuss
Sheetz's double recovery argument. Id.
Footnote: 20 20The
record in Vandevender contained sufficient evidence so that the trial court did
not disturb the jury award to Ms. Vandevender for her actual emotional distress.
Footnote: 21 21Sheetz's
characterization of the Vandevender opinion also misapprehends this Court's role
in reviewing punitive damages awards. Our jurisprudence establishes the complementary
roles of the judge and the jury in the area of punitive damages. A short-hand
formula for this relationship is: juries decide, judges review. See generally,
Garnes v. Fleming Landfill, 186 W.Va. 656, 413 S.E.2d 897 (1992). This Court takes
seriously its responsibility to substantively review jury verdicts awarding punitive
damages to assure that they are in accord with applicable law. Our extensive discussion
in Vandevender of the basis for the jury's punitive damages award (and our $466,260.00
downward modification of the award, 200 W. Va. at 606, 490 S.E.2d at 693), shows
that this Court looked at the award carefully. We described Sheetz's conduct in
the Vandevender opinion as punitive, deceptive, willful,
mean-spirited acts, 200 W.Va. at 604-606, 490 S.E.2d at 691-693. The learned
trial judge in Vandevender, who with the jury heard and saw the testimony of the
Sheetz personnel who explained their version of what Sheetz had done, set forth
a detailed statement of why the judge concluded that the jury's award of punitive
damages was appropriate. The punitive damages awarded in Vandevender were what
the jury knew to be about 2 days' gross sales receipts for Sheetz; and within
the parameters that we established in Garnes, supra, they were solely within the
province of the jury to decide.