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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2009 Term
CATHERINE I. SMITH AND JOHN SMITH,
Plaintiffs Below, Appellees
DEREK ANDREINI, M.D. AND
ORTHOPAEDIC SURGERY, INC., A CORPORATION,
Defendants Below, Appellants
Appeal from the Circuit Court of Ohio County
The Honorable Martin J. Gaughan, Judge
Civil Action No. 01-C-451
Submitted: April 7, 2009
Filed: June 5, 2009
Brent P. Copenhaver
Scott S. Blass
Colombo & Stuhr, PLLC Geoffrey C. Brown
Morgantown, West Virginia
Bordas & Bordas, PLLC
Counsel for the Appellants Wheeling, West Virginia
Counsel for the Appellees
JUSTICE McHUGH delivered the Opinion of the Court.
JUSTICES WORKMAN and KETCHUM concur, in part, and dissent, in part, and reserve
the right to file separate opinions.
SYLLABUS BY THE COURT
1. Prior to the entry of the verdict by a jury, a mistrial is procedurally
possible; however, declaring a mistrial after the jury verdict is rendered is improper.
Syllabus, Vilar v. Fenton
, 181 W.Va. 299, 382 S.E.2d 352 (1989).
2. A court of limited appellate jurisdiction is obliged to examine its own
power to hear a particular case. This Court's jurisdictional authority is either endowed by
the West Virginia Constitution or conferred by the West Virginia Legislature. Therefore,
this Court has a responsibility sua sponte
to examine the basis of its own jurisdiction. Syl.
Pt. 1, James M.B. v. Carolyn M.
, 193 W.Va. 289, 456 S.E.2d 16 (1995).
3. Where neither party to an appeal raises, briefs, or argues a jurisdictional
question presented, this Court has the inherent power and duty to determine unilaterally its
authority to hear a particular case. Parties cannot confer jurisdiction on this Court directly
or indirectly where it is otherwise lacking. Syl. Pt. 2, James M.B. v. Carolyn M.
, 193 W.Va.
289, 456 S.E.2d 16 (1995).
4. One may appeal to this Court a circuit court's order granting a new trial
and one may appeal such an order without waiting for the new trial to be had. Syl. Pt. 6, in
part, Foster v. Sakhai, 210 W.Va. 716, 559 S.E.2d 53 (2001).
5. An order declaring a mistrial is not an appealable order; however, an order
granting a motion for new trial is an appealable order. When a court improperly grants an
order declaring a mistrial after the conclusion of a trial and after a verdict has been rendered,
this Court may consider such an order to be an order granting a new trial, which is
appealable to this Court.
6. 'Although the ruling of a trial court in granting or denying a motion for
a new trial is entitled to great respect and weight, the trial court's ruling will be reversed on
appeal when it is clear that the trial court has acted under some misapprehension of the law
or the evidence.' Syl. pt. 4, Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d
218 (1976). Syl. Pt. 1, Foster v. Sakhai, 210 W.Va. 716, 559 S.E.2d 53 (2001).
7. 'The discretion of the trial court in ruling on the propriety of argument by
counsel before the jury will not be interfered with by the appellate court, unless it appears
that the rights of the complaining party have been prejudiced, or that manifest injustice
resulted therefrom.' Syl. pt. 3, State v. Boggs, 103 W.Va. 641, 138 S.E. 321 (1927). Syl.
Pt. 9, Foster v. Sakhai, 210 W.Va. 716, 559 S.E.2d 53 (2001).
Appellants Derek Andreini, M.D., and Orthopaedic Surgery Inc., defendants
below, (See footnote 1) appeal an order entered July 25, 2005, in the Circuit Court of Ohio County, West
Virginia, which declared a mistrial upon a motion made by Appellees Catherine I. Smith and
John Smith, her husband, plaintiffs below. (See footnote 2) The ground for Mrs. Smith's oral motion for
mistrial, made just after the jury retired for deliberations, was based upon remarks made by
defense counsel during closing argument. At Mrs. Smith's request, the trial judge reserved
its ruling on the motion until after the jury returned its verdict. The jury returned a verdict
in favor of Dr. Andreini. Thereafter, the trial court scheduled a post-trial hearing on the
motion for mistrial and, approximately twenty months after the verdict was rendered,
declared a mistrial.
Upon careful review of the briefs, record, arguments of counsel, and
applicable precedent, this Court holds that the July 25, 2005, order, is reversed.
I. Factual and Procedural Background
On February 25, 2000, Dr. Andreini, an orthopedic surgeon, performed rotator
cuff repair surgery on Mrs. Smith's right shoulder. (See footnote 3)
On March 30, 2000, Dr. Andreini
performed a second procedure known as manipulation under anesthesia (hereinafter
manipulation procedure) the purpose of which was to break up adhesions that had
developed on Mrs. Smith's shoulder following the first surgery.
Within hours after Mrs. Smith was released from the hospital following the
manipulation procedure, Mrs. Smith's friend (See footnote 4)
telephoned Dr. Andreini to advise him that
Mrs. Smith was experiencing numbness in her shoulder and was unable to move it. It is
undisputed that Dr. Andreini advised Mrs. Smith to proceed immediately to the emergency
department and that he would meet her there. What transpired once Mrs. Smith arrived at
the emergency department was much disputed at trial.
Dr. Andreini contends that he met Mrs. Smith at the emergency department
on March 30, 2000, and that he, along with Dr. Jeffrey Ruben, an emergency medicine
specialist, and Dr. Srini Govindin, a neurologist, examined her there. According to hospital
emergency department records he completed following his examination of Mrs. Smith, Dr.
Andreini noted, inter alia
, that Mrs. Smith has a discomfort within the shoulder. It is
mildly swollen, not red or hot. Placing the shoulder through a gentle range of motion
showed a normal glenohumeral articulation and relationships. Dr. Andreini's notes further
indicated that Mrs. Smith had a wrist drop and was unable to extend her fingers, but that
she was able to flex and extend her elbow, and initiate abduction and adduction of the
humerus. Dr. Andreini also indicated that Mrs. Smith complained of numbness in the
entire humerus, forearm, and hand over the palmar and dorsal surfaces and that Dr.
Andreini reevaluated her after she underwent lab studies. Dr. Andreini concluded the report
with the following notation: I placed her in a cock-up wrist splint in order to hold the wrist
in extension. The patient was also placed in a sling. She is to be seen by Dr. Govindan, a
neurologist, tomorrow as well as reevaluation by myself.
It is Mrs. Smith's contention, however, that although Dr. Andreini advised her
by telephone that he would meet her at the emergency department, he never arrived. Mrs.
Smith testified that, consequently, Dr. Andreini must have falsified the above-described
hospital records in which he personally recounted his examination and treatment of Mrs.
Smith during her emergency department visit. Additionally, when confronted at trial with
Dr. Andreini's contention that it was he who placed Mrs. Smith's wrist in a splint during her
visit to the emergency department, Mrs. Smith stated that although she did not recall who
placed the splint on her wrist, it was not Dr. Andreini. (See footnote 5)
The contrasting testimony regarding whether Dr. Andreini examined Mrs.
Smith at the emergency department hours after the manipulation procedure was critical to
Mrs. Smith's medical malpractice claim against Dr. Andreini. Dr. Andreini diagnosed Mrs.
Smith with a dislocated shoulder on April 3, 2000, during her second post-procedure office
visit (four days after the manipulation procedure). It is Mrs. Smith's contention that Dr.
the shoulder dislocation during
the manipulation procedure and then failed
to timely diagnose it. Mrs. Smith argued that the dislocation of her shoulder caused traction,
or stretching, on the brachial plexus nerve, which continued for the four days following the
manipulation procedure until it was finally diagnosed and treated by Dr. Andreini in his
office on April 3, 2000. Indeed, it is undisputed that Mrs. Smith suffered a severe loss of
shoulder function following the manipulation procedure as a result of brachial plexus
neuropathy. However, at trial, Dr. Andreini contended that when he and Drs. Ruben and
Govindan examined Mrs. Smith in the emergency department on March 30, 2000, the
shoulder was not
dislocated. Rather, according to Dr. Andreini, the dislocation causing the
brachial plexus neuropathy occurred not during the manipulation procedure, but following
it _ that is, between Mrs. Smith's first post-procedure office visit with Dr. Andreini on
March 31, 2000 (the day after the manipulation procedure), and April 3, 2000, Mrs. Smith's
second post-procedure office visit with Dr. Andreini (when the dislocation was diagnosed). (See footnote 6)
The parties agree that following the presentation of the evidence, it became
apparent that the credibility of the witnesses would play a significant role in the jury's
determination of liability. Among other things, the parties presented very different versions
of Mrs. Smith's emergency department visit on March 30, 2000, and argued different
theories as to when Mrs. Smith's shoulder became dislocated and, consequently, when a
timely diagnosis should have occurred. During closing arguments, Dr. Andreini's counsel
attempted to emphasize these differences and, in so doing, elicited an objection by Mrs.
Smith. According to Dr. Andreini's brief, Mrs. Smith's counsel implied during the initial
portion of his closing argument that Dr. Andreini's defense expert, orthopedic surgeon Dr.
Mark Rodosky, had not been truthful at trial because he had been impeached with the
transcript of his pretrial deposition. In response, Dr. Andreini argues that his counsel made
the following remark during his own closing argument, to which Mrs. Smith's counsel
Dr. Andreini's counsel: So I think, Ladies and Gentlemen, all
of these things speak to the qualifications of the experts that the
parties on both sides brought before you, to tell you about
shoulder surgery and shoulder manipulations and how you do
On the other hand, if you had a shoulder injury, and you
were concerned about your ability to make a living, couldn't
work, couldn't sleep at night, and it goes on and on and on for
several months, would you be pleased to have the benefit of Dr.
Rodosky's training and expertise, or is he the big fat liar that
Mr. Blass [Mrs. Smith's counsel] says he is?
Mr. Blass: Your Honor, I object to that statement, I don't
believe I used the words Big, fat liar.
Dr. Andreini's counsel: Folks, I'm from Lake Charles Louisiana
Mr. Blass: I don't care where he's from, I don't think that it is
appropriate, and I object.
Dr. Andreini's Counsel: I'm from Lake Charles, Louisiana, and
you know, that doesn't matter, but where I come from, we call
things the way we see them. And I'm here to tell you that not
only has Mr. Blass repeatedly impugned my client's integrity
and truthfulness, you pick a word, any word you want, and you
pick a good word you can say about a human being, and he has
done the opposite. And he has also done that to Dr. Rodosky. (See footnote 7)
(Footnote added.) After the jury retired to the jury room for deliberations, counsel for Mrs. Smith
orally requested a mistrial based upon the above-described remarks by Dr. Andreini's
counsel. At the request of Mrs. Smith's counsel, however, the trial court deferred its ruling
on the motion for mistrial until after the jury returned a verdict. The jury returned a verdict
in favor of Dr. Andreini.
A hearing on the motion for mistrial was scheduled for February 6, 2004. (See footnote 8)
Prior thereto, on or about December 11, 2003, Mrs. Smith filed Plaintiffs' Memorandum in
Support of Motion for Mistrial, arguing that the motion for mistrial should be granted not
based upon the objected-to remarks by Dr. Andreini's counsel, as described above, but
instead, on the ground that Dr. Andreini violated an in limine
order entered just prior to trial.
In that order, entered November 12, 2003, the trial court, inter alia
, had granted
Defendants' motion in limine
to prohibit plaintiff's counsel from commenting or making
personal attacks on the character or truthfulness of defense counsel in the presence of the
jury. (See footnote 9)
In her Memorandum, Mrs. Smith acknowledged she raised genuine credibility
issues concerning whether Dr. Andreini examined her in the emergency department.
However, Mrs. Smith asserted that certain remarks made by Dr. Andreini's counsel during
closing argument (including but not limited to the remarks to which Mrs. Smith objected at
trial and upon which the original motion for mistrial was made) mischaracterized Mrs.
Smith's arguments and made false accusations against Mrs. Smith's counsel, all in violation
of the in limine
order. For example, Mrs. Smith argued that during closing argument, Dr.
Andreini's counsel improperly stated:
It's not enough for the plaintiffs to come into this courtroom
and have a legitimate difference of opinion with Dr. Andreini
in regard to whether he was responsible for this nice lady's
injuries. That's not enough.
No, they have to tell you that he is a lying, cheating,
loathsome, despicable human being.
Let's face it, be honest, that is precisely what you just
Mrs. Smith's Memorandum also argued the in limine
order was violated by
various other remarks made by Dr. Andreini's counsel, including the following: (See footnote 10)
Was Dr. Andreini in the emergency room? If the doctor
is the reprehensible human being that they say he is, you should
decide he wasn't there, he lied to you, he committed fraud and
he made up that note.
Dr. Ruben told you that Dr. Andreini put that splint on
and that sling. He told you three times he remembered seeing
him in the emergency room that very day.
When Dr. Andreini dictated that note the next morning
at 8:10, he didn't know Mrs. Smith had a dislocation, because
she didn't have one.
Why would Dr. Andreini the next morning dictate a
fraudulent note? What in the world would possess him to do it
at that time? What would be his motive?
Because, gee, he was thinking to himself, what, maybe
she will develop over the next year this permanent, serious,
devastating injury and maybe I need to protect myself and lie
about whether I was in the emergency room?
Now Mr. Blass tells you it doesn't matter whether he was
there or not.
Oh, yes, it does. He told you in his opening statement
that it was a big fat lie, that he wasn't there, and he is lying
about it, and he didn't examine her shoulder.
You know what? It does matter because he was there
and he did examine her shoulder, and he specifically looked for
evidence of a dislocation and it wasn't there.
So it is okay to get up in opening and accuse this man of
being a liar and a cheat and a fraud, and then when you get
caught, and you can't prove it, say, well, it doesn't really matter.
Mrs. Smith has remained under Dr. Andreini's care for
three years, despite the fact that, according to Mr. Blass, Dr.
Andreini caused her a permanent, devastating injury. Dr.
Andreini has left her unable to work, Dr. Andreini has ruined
her life. Remember, now, the testimony of the family _ and I
believe them, by the way, she's not the same person she was.
He has ruined her life. Caused her to have chronic depression.
No dispute about that, either. Believes he's totally incompetent.
Sued him. Believes he created a fraudulent medical record, and
yet she's remained under his care for three years.
What does your common sense tell you about Mr. Blass's
claims about my client, his character and his integrity, who he
is as a human being.
Is that what patients do who believe their doctor did all
of those things to them? Is that what you would do? Doctor,
you're such a despicable jerk, I'm going to continue coming
back to your office for three years, despite everything you have
done to me, all the lies and all the cheating and all the fraud,
you ruined my life, but I'm going to keep coming back and I'm
going to keep coming back.
It was also argued that the following comments by Dr. Andreini's counsel
attacked the credibility of Mrs. Smith's counsel while attempting to bolster his own:
I'm also, like Mr. Blass, an officer of this court. I have
a duty to His Honor, to you, and to the system of justice that I
represent along with Mr. Blass. I have a duty not to lie to you,
not to deceive you, or mislead you.
My job, I think, is to try to persuade you that my client
rendered appropriate medical care to Mrs. Smith. That's all.
And I don't get paid to get up here and try to hoodwink
you. I don't get paid to get up here and try to deceive you, pull
the wool over your eyes. Use any expression you like. And I
don't want to do that.
Finally, Mrs. Smith's counsel argued the following remarks by Dr. Andreini's
counsel, the last paragraph of which Mrs. Smith characterized as sarcastic, also violated
the in limine order:
I am not and I will not accuse anyone on their side of lying to
me. I will, however, suggest to you that our memories as
human beings are not infallible.
Ladies and Gentlemen, for Mr. Blass to get up here and
suggest to you that Dr. Andreini was the only one who had his
deposition displayed in front of you, he is the only one that
changed his testimony, you know better. Every single witness
that took the stand was confronted with deposition testimony.
Both sides of the fence. The reason we do that is because
human memory isn't infallible. Because people forget what
they maybe said previously. Under oath or not. You can't be
subjected to a three- or four-hour deposition and be expected
six months later or a year later or two years later, whether it is
their expert witness, Dr. Danaceau or not _ you will recall I put
up his testimony, too, to demonstrate what he told us at his
deposition was different than what he told you here. That is not
to say that he either lied then or he is lying now. What it does
say is his testimony was inconsistent, and it is for you to decide
what weight to give to that testimony.
That is all. Not that Dr. Danaceau came here to lie to
you. He didn't. He did not. Dr. Govindan didn't come here to
lie to you, Mrs. Smith didn't come here to lie to you.
Apparently every one of our witnesses did.
This guy Rodosky [Dr. Andreini's medical expert] had
nothing better to do in his life, his professional life, than to
come to Wheeling, West Virginia, to flat out lie to you.
Apparently had a day where he didn't have anything to do, and
so he thought he would come here and just fib to us.
Approximately twenty months after the motion for mistrial was originally
made and a defense verdict rendered, and more than seventeen months after the February 6,
2004, hearing on the motion, the trial court declared a mistrial. In its order entered July 25,
2005, the court found, inter alia, that
Defense counsel went beyond the scope of proper
argument by grossly mischaracterizing Plaintiff's closing
argument and by injecting harsh and vituperative remarks.
Specifically, he falsely accused Plaintiffs as describing Dr.
Andreini as a big fat liar, a cheat, a fraud, and a despicable
human being. Furthermore, defense counsel personally attacked
plaintiff's counsel and suggested that he was lying and being
deceitful. This Court feels the only proper remedy is to declare
Relying on syllabus point 5 of Honaker v. Mahon, 210 W.Va. 53, 552 S.E.2d
788 (2001), the trial court's order declaring a mistrial found that Dr. Andreini violated the in limine order:
[A] deliberate and intentional violation of a trial court's
ruling on a motion in limine, and thereby the intentional
production of prejudicial evidence into a trial, is a ground for
reversal of a jury verdict. There is no doubt the violation of
this order was deliberate. After all the motion was brought by
defendant in the first place. Certainly, Defendant was aware of
the order and the scope.
The trial court also relied on syllabus point 2 of State v. Kennedy, 162 W.Va.
244, 249 S.E.2d 188, 189 (1978), stating 'that great latitude is allowed counsel in the
argument of cases is an established rule. It is well settled, however, that counsel must keep
within the evidence and not make statements calculated to inflame the minds of jurors
intending to introduce verdicts warped by prejudice.' The trial court further determined
that 'vituperative remarks of counsel in argument before the jury are improper and may be
sufficient cause for setting aside a verdict favorable to the party represented by such
counsel.' (quoting Syl. Pt. 6, Slaven v. Baltimore & Ohio R.R. Co., 114 W.Va. 315, 316,
171 S.E. 818 (1933)).
It is from the July 25, 2005, order declaring a mistrial that Dr. Andreini now
II. Post-Trial Order Declaring Mistrial and Appellate Jurisdiction
The singular issue in this appeal is whether the trial court committed error in
declaring a mistrial. However, before we address the merits of the court's ruling, we must
consider first, the procedural propriety of the trial court's decision to defer ruling on Mrs.
Smith's motion for a mistrial until after the jury rendered its verdict in favor of Dr. Andreini
and second, this Court's appellate jurisdiction to review the trial court's July 25, 2005, order.
In Vilar v. Fenton
, 181 W.Va. 299, 382 S.E.2d 352 (1989), this Court
recognized that '[a] motion for a mistrial is a procedural tool whetted and honed for use
during the trial to cut it short for legal reasons which preclude a verdict and entering a
judgment that cannot possibly stand. It can therefore be utilized only as a pre-verdict motion
and not a post-verdict or post-trial motion.' 181 W.Va. at 300, 382 S.E.2d at 353 (quoting
Williams v. Deasel
, 311 N.E.2d 414, 415 (Ill. Ct. App. 1974). In Vilar
, plaintiffs filed suit
against defendant, challenging the validity of the will and power of attorney executed by the
decedent. Following a two-day trial, the jury found the will invalid. Defendant filed a
motion for new trial pursuant to Rule 59 of the West Virginia Rules of Civil Procedure. (See footnote 11)
During a post-trial hearing, plaintiffs' counsel advised the court that plaintiffs were related
to a person who, several years earlier, had filed an ethics complaint against the trial judge
while he was a practicing attorney. Thereafter, the trial judge, sua sponte
, declared a
mistrial, recused himself from the case, and transferred further proceedings in the case to
another judge. On appeal, this Court determined, inter alia
, that the trial court committed
error by declaring a mistrial after
the jury had reached a verdict and held that [p]rior to the
entry of the verdict by a jury, a mistrial is procedurally possible; however, declaring a
mistrial after the jury verdict is rendered is improper. Syllabus, Vilar
, 181 W.Va. at 299,
382 S.E.2d at 352. See Howell v. Davis
, 299 S.E.2d 336, 337 (S.C. 1983) ([a] mistrial is
granted in a case in which the jury is discharged without a verdict; a motion for new trial is
made after a judgment has been rendered. Granting a mistrial was inappropriate after the
jury returned its verdict.(citations omitted)) and Williams v. Deasel
, 311 N.E.2d 414, 415
(Ill. Ct. App. 1974) ([T]he commonly accepted concept of the mechanics of a mistrial is
that when a mistrial is declared and the jury is discharged, the trial is terminated and is begun
again over on another day. Its mechanical and its legal performance is impossible after
verdict, judgment, and discharge of the jury).
Though procedurally incorrect, the trial court declared a mistrial after the jury
verdict had been rendered in favor of Dr. Andreini, thereby setting aside the verdict and
ordering a new trial. As we explained in Vilar
, there is a traditional distinction between an
order declaring a mistrial and an order granting a motion for new trial:
A mistrial and a new trial are not the same thing in name
or effect. There is a marked difference between a court's
granting a motion for a new trial and declaring a mistrial; the
former contemplates that a case has been tried, a judgment
rendered, and on motion therefor said judgment set aside and a
new trial granted, while the latter results where, before a trial is
completed and judgment rendered, the trial court concludes that
there is some error or irregularity that prevents a proper
judgment being rendered, in which event a mistrial may be
declared. A mistrial is a matter of law, while a new trial results
from the exercise of discretion; a mistrial is a nugatory trial,
while a new trial recognizes a completed trial which for
sufficient reasons has been set aside so that the issues may be
tried or litigated de novo.
181 W.Va. at 300, 382 S.E.2d at 353 (quoting 66 C.J.S. New Trial 1(c) (1962)).
In addition to the foregoing, an even more important distinction between an
order declaring a mistrial and an order granting a new trial is this Court's jurisdiction to
review such orders on appeal. In syllabus point 1 of James M.B. v. Carolyn M., 193 W.Va.
289, 456 S.E.2d 16 (1995), we emphasized that
[a] court of limited appellate jurisdiction is obliged to
examine its own power to hear a particular case. This Court's
jurisdictional authority is either endowed by the West Virginia
Constitution or conferred by the West Virginia Legislature.
Therefore, this Court has a responsibility sua sponte to examine
the basis of its own jurisdiction.
Thus, although not raised by either party herein, this Court is obliged to
determine its jurisdictional authority over the case sub judice:
Where neither party to an appeal raises, briefs, or argues
a jurisdictional question presented, this Court has the inherent
power and duty to determine unilaterally its authority to hear a
particular case. Parties cannot confer jurisdiction on this Court
directly or indirectly where it is otherwise lacking.
, 193 W.Va. at 291, 456 S.E.2d at 18, syl. pt. 2.
In past cases, we have affirmed that [g]enerally, this Court in its appellate
capacity only has jurisdiction over final decisions of the circuit court[,] pursuant to W.Va.
Code § 58-5-1(1998) (Repl. Vol. 2005), (See footnote 12)
or if an order 'fall[s] within a specific class of
interlocutory orders which are made appealable by statute or by the West Virginia Rules of
Civil Procedure, or . . . fall[s] within a jurisprudential exception.' Gooch v. W.Va. Dept.
of Public Safety
, 195 W.Va. 357, 362, 363, 465 S.E.2d 628, 633, 634 (1995)(quoting James
M.B. v. Carolyn M.
, 193 W.Va. 289, 292-93, 456 S.E.2d 16, 19-20 (1995).). (See footnote 13)
declaring a mistrial is not a final order nor does it fall either within the class of interlocutory
orders made appealable by statute or the rules of civil procedure or within a jurisprudential
exception. See Bernat v. Handy Boat Service, Inc
., 239 A.2d 651, 652 (Me. 1968) ([T]he
granting of a mistrial automatically produce[s] a new trial and the case was not ripe for
appellate review at that stage); Carlson v. Locatelli
, 849 P.2d 313, 314 (Nev. 1993)
('[o]rders granting a mistrial . . . are not final' and . . .not appealable. (quoting
Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure
§ 3915.1 (1992)); Hairlox Co., Inc. v. McDonald,
557 A.2d 163, 164 (D.C. App. 1989) (An
order granting a civil mistrial is not an appealable final order); Yaeger v. Vance
, 513 P.2d
688, 689 (Ariz. App. 1973) ([A]n order granting a mistrial is not an appealable order
under Arizona statute); In re Taylor's Will
, 67 N.Y.S.2d 823, 825 (N.Y. App. Div. 1947)
(An appeal does not lie from an order granting a mistrial); Yon v. Yarus
, 700 A.2d 545,
546 (Pa. Super. 1997) (The grant of a mistrial is not an appealable order); and Matter of
, 935 S.W.2d 919, 923 (Tex. App. 1996) (Appellate court lacks jurisdiction to
review a trial court order granting a motion for mistrial). Thus, an order declaring a
mistrial is not an appealable order.
Although an order declaring a mistrial is not appealable to this Court, a post-
trial order granting a new trial (See footnote 14)
is. This Court has determined that its jurisdiction to
consider interlocutory appeals of orders granting a new trial is encompassed within the
authority granted under the state constitution for appellate review of both cases of law and
cases of equity. W.Va. Const. Art. VIII, § 3. Wolfe v. Welton
, 210 W.Va. 563, 573, 558
S.E.2d 363, 373 (2001). See Foster v. Sakhai
, 210 W.Va. 716, 724, 559 S.E.2d 53, 61
(2001) (the inherent power of the judiciary . . . gives [it] the authority to hear the appeal of
an order granting a new trial.) Thus, in syllabus point 6 of Foster,
we held, in pertinent part,
that [o]ne may appeal to this Court a circuit court's order
granting a new trial and one may
appeal such an order without waiting for the new trial to be had. (See footnote 15)
Thus, this Court has appellate jurisdiction over an order granting a new trial,
but is not vested with such authority over an order declaring a mistrial. In Carlson
, the trial
court declared a mistrial after
the jury awarded $160,000.00 in damages to the plaintiff, who
was injured while on defendant's premises, on the ground the jury completed the general
verdict form but failed to also complete the special verdict form pursuant to the court's
instructions. Upon distinguishing a mistrial from a new trial in a manner similar to this
Court's decision in Vilar
, the Supreme Court of Nevada also recognized that
'[g]ranting a mistrial is generally inappropriate after the jury returns a verdict, although
such an action might be considered by an appellate court to be equivalent to an order
setting aside the verdicts and ordering a new trial.
' 849 P.2d at 315 (quoting
New Trial § 10 (2d ed. 1989) (emphasis added)). (See footnote 16)
Indeed, the court in Carlson
that although the lower court's order was captioned an order declaring a mistrial, the
district court's order was clearly one granting a new trial. When the order was issued, both
verdicts had been returned and the trial had been concluded.
The order was also issued
subsequent to a motion and hearing following the conclusion of the trial. Since an order
granting . . . a new trial is appealable under [the Nevada Rules of Appellate Procedure], we
have jurisdiction over this appeal. 849 P.2d at 315.
In State ex rel. Sebers v. McNulty,
326 So.2d 17 (Fla. 1975), a criminal
defendant filed a motion for mistrial during the course of his trial. The trial judge reserved
ruling on the motion. Five days after a guilty verdict was rendered, the judge held a hearing
on the motion and set aside the jury verdict. The court in McNulty
[a]lthough the motion was denominated a motion for mistrial, correctly labeled at the time
it was made during the course of trial, it was in legal effect when ruled upon[,] a motion for
new trial. As such, the order [granting the new trial] was appealable. 326 So.2d at 18. See
Johnson v. Frazier
, 787 A.2d 433, 435 (Pa. Super. 2001) While the trial court granted
what it termed a mistrial, it could not do so because the trial was already over. The effect of
a declaration of a mistrial is to end the trial, and it is procedurally illogical to terminate a trial
that has already ended. The order was, in actuality, one for a new trial because it followed
the recording of the verdict, and we review it as such.
Accordingly, we hold that an order declaring a mistrial is not an appealable
order; however, an order granting a motion for new trial is an appealable order. When a
court improperly grants an order declaring a mistrial after the conclusion of a trial and after
a verdict has been rendered, this Court may consider such an order to be an order granting
a new trial, which is appealable to this Court.
In the instant case, Mrs. Smith's counsel timely filed a motion for mistrial
during the course of the trial. However, Mrs. Smith's counsel requested that the trial court
reserve its ruling until after the jury returned a verdict. The trial court obliged and did not
immediately rule on the motion. After the jury reached a verdict in favor of Dr. Andreini, the
parties eventually filed post-trial memoranda in support of their respective positions.
Approximately three months after the trial was concluded and a verdict rendered, the court
conducted a hearing on the mistrial motion. Ultimately, the court granted Mrs. Smith's
motion for mistrial and in its July 25, 2005, order, concluded that [t]his is a Final Order and
Defendant shall have the opportunity to test this Court's Order before the West Virginia
Supreme Court of Appeals before retrying the case. We find that although the trial court
characterized the July 25, 2005, order as an order granting mistrial, the court, in reality,
awarded Mrs. Smith a new trial. Accordingly, we shall consider the July 25, 2005, order to
be an order granting a new trial. (See footnote 17)
III. Standard of Review
In reviewing the trial court's order granting a new trial, we are guided by the
following standard of review:
Although the ruling of a trial court in granting or
denying a motion for a new trial is entitled to great respect and
weight, the trial court's ruling will be reversed on appeal when
it is clear that the trial court has acted under some
misapprehension of the law or the evidence. Syl. pt. 4, Sanders
v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218
Syl. Pt. 1, Foster v. Sakhai, 210 W.Va. 716, 559 S.E.2d 53 (2001).
In its July 25, 2005, order, the trial court concluded that the previously-
described remarks of Dr. Andreini's counsel during his closing argument were improper and
required that the jury verdict be set aside and a new trial ordered.
In theory, this Court affords trial courts considerable latitude in
determining the propriety of argument by trial counsel. As we held in syllabus point 9 of Foster, 210 W.Va. at 720, 559 S.E.2d at 57,
The discretion of the trial court in ruling on the propriety
of argument by counsel before the jury will not be interfered
with by the appellate court, unless it appears that the rights of the
complaining party have been prejudiced, or that manifest
injustice resulted therefrom. Syl. pt. 3, State v. Boggs, 103
W.Va. 641, 138 S.E.321 (1927).
In considering the propriety of the remarks made by Dr. Andreini's counsel
during his closing argument and challenged by Mrs. Smith in this case, common sense
dictates that such remarks be reviewed not in isolation but in the context in which they were
made. Only then can it be determined whether the rights of the complaining party have been
prejudiced, or that manifest injustice resulted therefrom. Syl. Pt. 9, Foster, 210 S.E.2d at
720, 559 S.E.2d at 57. See Engle v. Liggett Group, Inc., 945 So.2d 1246, 1272 (Fla. 2006)
(To determine whether the challenged statements and arguments were in fact prejudicial, the
statements cannot be evaluated in isolation but must be placed and evaluated in context).
This Court has carefully reviewed Dr. Andreini's counsel's closing argument
in its entirety. See
. We find that the vast majority thereof consisted of a
traditional summation of the evidence. We recognize, however, that, as described previously,
counsel's argument also included several sarcastic remarks and hyperbole. (See footnote 18)
To a reasonable
juror, it is apparent that counsel's comments were intended to emphasize the conflicting
evidence that had just been presented _ particularly with regard to whether Dr. Andreini
examined Mrs. Smith's shoulder in the emergency department and whether the shoulder was
dislocated at that time. According to Dr. Andreini's evidence, he met Mrs. Smith at the
emergency department, examined her shoulder (along with two other physicians), found no
evidence of dislocation, and personally placed her wrist in a splint. Dr. Andreini later
recounted his emergency department treatment of Mrs. Smith in hospital records that were
also presented to jurors. In contrast, Mrs. Smith testified that Dr. Andreini never arrived at
the emergency department and, consequently, never examined or treated her there. Mrs.
Smith testified she was certain that Dr. Andreini did not place her wrist in the splint (she
could not recall who did) and that Dr. Andreini falsified the hospital records he completed
following her treatment in the emergency department. Mrs. Smith also stated that although
she was upset with Dr. Andreini for failing to show up at the emergency department as
promised, she never mentioned his absence during her office visit with him the next day. In
fact, Mrs. Smith testified (and her medical records confirmed) that she continued to be treated
by Dr. Andreini for at least eighteen more months (including up until six months before trial).
The purpose of closing arguments is not only to summarize the evidence, but
to afford counsel the opportunity to persuade jurors, within acceptable boundaries, to view
the evidence in the light most favorable to their client. Thus, advocates are given great
latitude in arguing their cases but are also required to keep within the evidence and not make
statements calculated to inflame the minds of jurors intending to induce verdicts warped by
prejudice[.] State v. Kennedy, 162 W.Va. at 249, 249 S.E.2d at 191 (1978) (quoting State
v. Lohm, 97 W.Va. 652, 663, 125 S.E. 758, 762 (1924)). In reviewing the closing argument
of Dr. Andreini's counsel in toto, we find that his occasional use of sarcasm and exaggeration
during the course of an otherwise traditional recitation of the evidence was obvious and that
no reasonable juror would have taken his remarks for their literal meaning. We conclude,
therefore, that the trial court abused its discretion in setting aside the verdict and granting a
new trial, resulting in clear prejudice to Dr. Andreini's rights in this case. See Syl. Pt. 9,
Foster., 210 W.Va. at 720, 559 S.E.2d at 57.
Based upon the foregoing, the July 25, 2005, order of the circuit court is hereby
Hereinafter, Appellants will be collectively referred to as Dr. Andreini.
Hereinafter, Appellees will be collectively referred to as Mrs. Smith.
Several months earlier, Mrs. Smith had suffered a fall and sustained an injury
to her right shoulder.
Mrs. Smith's friend, Carol Anderson, had transported Mrs. Smith to and from
the hospital procedure earlier that day.
Mrs. Smith testified that she was upset by the fact that Dr. Andreini did not
meet her at the emergency department as promised. However, she further testified that she
never mentioned to him his absence in the emergency department at her office visit with him
the following day. Finally, Mrs. Smith testified (and medical records confirmed) that she
continued to be treated by Dr. Andreini for at least another eighteen months (and up until
approximately six months prior to trial in this case).
A second issue raised at trial was that of informed consent. The parties
agreed that brachial plexus neuropathy is a known complication that might occur in patients
who undergo manipulation of the shoulder even absent medical negligence. At trial, the
parties did not agree, however, as to whether Dr. Andreini properly informed Mrs. Smith of
this possible complication.
The trial judge did not rule on this objection, nor did Mrs. Smith's counsel
request a curative instruction.
Following the trial and prior to the February 6, 2004, hearing, Mrs. Smith
requested and was provided with a transcript of the closing argument of Dr. Andreini's
counsel. No additional transcripts were requested by either party at that time.
After the trial court entered the order declaring a mistrial, by letter dated
August 23, 2005, from Brent Copenhaver, Dr. Andreini's counsel, to The Honorable Martin
J. Gaughan, Chief Judge, Dr. Andreini's counsel requested transcripts of additional portions
of the trial for preparation of this appeal _ namely, the trial testimony of Mrs. Smith, and
[t]he entire closing argument of both counsel for the plaintiffs and counsel for the
defendants, including any discussion out of the presence of the jury during or after the
closing argument that in any way related to the plaintiffs' objection to the defendants'
closing argument or the plaintiff's motion for mistrial. Thereafter, Dr. Andreini's counsel
learned that the trial judge's court reporter had died sometime after the November 2003, trial
in this case. The trial judge's new court reporter was eventually able to transcribe Mrs.
Smith's trial testimony, as requested by Dr. Andreini's counsel. Unfortunately, however,
the new court reporter was unable to also transcribe the remaining portions requested by Dr.
Andreini's counsel due to technical difficulties involving the electronic formatting of the
original court reporter's trial notes. Finally, in a March 6, 2008, letter to Dr. Andreini's
counsel signed by both the trial judge and his secretary, they indicated that after a diligent,
exhaustive search of audio tapes and paper notes from the home of the judge's deceased
court reporter and at the courthouse, they cannot identify any audio tapes of [Mrs. Smith's
counsel's] closing argument. At this time I [sic] know of no other place that we could look
to find the tape of [his] closing argument.
On its face, the language of the in limine
order prohibited Mrs. Smith's
counsel from commenting or making personal attacks on the character or truthfulness of Dr. Andreini's
counsel in the presence of the jury, and not vice versa. However, in the
July 25, 2005, order now on appeal, the trial court interpreted the order to apply to both
parties, stating, inter alia
, that the Court granted a Motion in Limine filed in an omnibus
motion which the Court stated applied to both parties. Part 'K' of the Motion prohibited
counsel for both parties from commenting or making personal attacks on the character or
truthfulness of each other in the presence of the jury.
We are particularly mindful that the majority of the remarks about which
Mrs. Smith complained in her written memorandum in support of her motion for mistrial and
in her brief before this Court were not presented in their full context. We believe that
consideration of the issue presented in this appeal clearly requires that the complained-of
remarks be reviewed in the context in which they were made so that they can be more easily
understood and more fairly addressed. Accordingly, we have included herein those remarks
of Dr. Andreini's counsel in their proper context.
Rule 59(a) of the West Virginia Rules of Civil Procedure provides, in
A new trial may be granted to all or any of the parties
and on all or part of the issues (1) in an action in which there
has been a trial by jury, for any of the reasons for which new
trials have heretofore been granted in actions at law[.]
W.Va. Code § 58-5-1 (1998) provides, in pertinent part, that [a] party to a
civil action may appeal to the Supreme Court of Appeals from a final judgment of any
See e.g. James M.B.,
193 W.Va. at 292-93 nn.3 and 4, 456 S.E.2d at 19-20,
nn. 3and 4 (outlining the types of orders which have been made appealable by statute, the
rules of civil procedure and jurisprudential exception); Syl. Pt. 2, State ex rel. McGraw v.
., 213 W.Va. 438, 440, 582 S.E.2d 885, 887 (2003) (holding that Art.
VIII, § 3 of W.Va. Const. includes a grant of jurisdiction to hear appeals from interlocutory
orders by circuit courts relating to preliminary and temporary injunctive relief); and Syl. Pt.
6, Wolfe v. Welton
, 210 W.Va. 563, 566, 558 S.E.2d 363,366 (2001) (holding that this Court
has jurisdiction to hear an appeal from a circuit court judgment reversing the judgment of
the magistrate court in a matter heard there on the merits, notwithstanding the fact that the
circuit court order also undertakes to remand the case to the magistrate court for a new trial
or other proceedings).
W.Va.R.Civ.Pro. 59 (New trials; amendments of judgments)
and 60 (Relief from judgment or order).
The remaining portion of syllabus point 6 of Foster
states: To the extent that
our previous cases such as James M.B. v. Carolyn M
., 193 W.Va. 289, 456 S.E.2d 16
(1995), Coleman v. Sopher
, 201 W.Va. 588, 499 S.E.2d 592 (1997), and their progeny
suggest otherwise, they are hereby distinguished. James M.B.,
which we rely on in the case sub judice
discussed the finality rule and ultimately concluded that because the lower
court never ruled on a West Virginia Rule of Civil Procedure 59(e) motion to alter or amend
the judgment, the order was not a final, appealable judgment. To the extent we rely on James
(one of its progeny) in this opinion, there is no conflict with our discussion
and holding herein.
, this Court did not explore the procedural possibility of treating an
order declaring a mistrial as an order granting a new trial.
In this case, Mrs. Smith made a timely motion for mistrial, but requested that
the trial judge defer its ruling on the motion until a verdict was rendered. The trial judge
acquiesced and, some twenty months after the verdict was rendered in favor of Dr. Andreini,
granted Mrs. Smith's motion. We advise both lawyers and trial courts that a motion for
mistrial should be made with the expectation that it be ruled upon expeditiously _ that is, at
the very least, shortly after such a motion is made and, at the most, prior to the conclusion
of the trial and the rendering of a verdict. See Vilar,
181 W.Va. at 300, 382 S.E.2d at 353
(a mistrial 'results where, before
a trial is completed and judgment rendered, the trial court
concludes there is some error or irregularity that prevents a proper judgment being
[.]' (internal citation omitted) (emphasis added)). We appreciate the experience
and knowledge of both the trial judge and Mrs. Smith's counsel in this case; however, they
have placed this Court in the less than desirable position of having to consider an order
declaring a mistrial improperly entered after a verdict is reached as an order granting a
motion for new trial. As discussed above, an order declaring a mistrial is not an appealable
order. Thus, if this Court does not consider the trial court's improperly-entered order
declaring a mistrial as an order granting a new trial, it would not have jurisdiction over this
appeal and, as a result, Dr. Andreini would be unfairly prejudiced.
As previously noted, Mrs. Smith objected to only one of the previously-
described comments made by Dr. Andreini's counsel during his closing argument. The
grounds for the objection, in essence, was that Dr. Andreini's counsel misstated previous
remarks of Mrs. Smith's counsel and that such misstatement was not appropriate. The trial
court did not rule on the objection, nor did Mrs. Smith request a curative instruction.
Ordinarily, '[f]ailure to make timely and proper objection to remarks of counsel made in
the presence of the jury, during the trial of a case, constitutes a waiver of the right to raise
the question thereafter either in the trial court or in the appellate court.' Syllabus point 6, Yuncke v. Welker, 128 W.Va. 299, 36 S.E.2d 410 (1945). Syl. Pt. 2, State v. Adkins, 209
W.Va. 212, 544 S.E.2d 914 (2001). However, in this case, the trial court stated in its July
25, 2005, order that if Mrs. Smith had not filed a motion for mistrial, it would have, sua
sponte, granted a mistrial. Thus, we consider this appeal as if Mrs. Smith had made proper
and timely objections below.