On March 26, 2010, this Court issued an opinion in this case which affirmed
the lower court's judgment in part, conditionally affirmed in part, and reversed in part.
DuPont filed a petition for rehearing on April 23, 2010, seeking to have this Court reconsider
the disposition of the punitive damages allocation for medical monitoring. (See footnote 1) As pointed out
in the majority opinion, the verdict form in this case did not allocate punitive damages
between the Plaintiffs' property damage claims and their medical monitoring claims. The
majority opinion, after finding that punitive damages could not be awarded for medical
monitoring, allocated forty percent of the punitive damages for medical monitoring and
thereafter reduced the punitive damages by forty percent. (See footnote 2) In the petition for rehearing
DuPont contends that this Court should have allocated seventy percent of the punitive
damages for medical monitoring. In support of its argument Dupont presents essentially two
contentions: (1) this Court should not have considered statements made during oral argument
regarding the allocation of forty percent of the punitive damages for medical monitoring, and
(2) that evidence exists which shows that seventy percent of the punitive damages should
have been awarded for medical monitoring. We will address both contentions separately.
1. Representations Made During Oral Argument
During oral arguments, this Court specifically asked counsel for Plaintiffs
whether the trial court made an allocation of the punitive damages between the property
damage claims and the medical monitoring claims. This question was asked for two reasons.
First, the record submitted to this Court did not contain any reference to an allocation of
punitive damages between the property damage claims and the medical monitoring claims.
Second, and most importantly, the question was asked because one of DuPont's assignments
of error concerned whether or not punitive damages could be awarded for medical
Counsel for Plaintiffs informed this Court, in response to our direct question,
that the trial court allocated forty percent of the punitive damages for medical monitoring.
After counsel for Plaintiffs informed this Court of how the trial court ruled on the issue of
the allocation of punitive damages, counsel for DuPont closed out its argument without
challenging the representations made by Plaintiffs' counsel. That is, DuPont failed to inform
the Court that it disagreed with Plaintiffs' counsel's response to our question.
In its petition for rehearing, DuPont contends, for the first time, that [t]he
Circuit Court made no such allocation[.] Assuming that DuPont is correct in representing
to this Court that the circuit court did not make such an allocation, well settled principles of
appellate procedure indicate that a rehearing on an appeal can be granted only for purposes
of correcting errors that the court has made, and the party seeking a rehearing cannot assign
as error points or arguments that could have been raised before the appeal was resolved. In re Leslie H
., 861 N.E.2d 1010, 1015 (Ill. App. Ct. 2006). (See footnote 3) See also SouthTrust Bank v.
Copeland One, L.L.C.
, 886 So. 2d 38, 43 (Ala. 2003) (Matters not argued . . . on original
submission cannot be raised for the first time on application for rehearing.); Pacific Bell
Wireless, LLC v. Public Utils. Comm'n of California
, 140 Cal. App. 4th 718, 746, 44 Cal.
Rptr. 3d 733, 754 (Cal. Ct. App. 2006) (Arguments cannot be raised for the first time in a
petition for rehearing.); Massey v. Conseco Servs., L.L.C.
, 886 N.E.2d 581, 582
(Ind. Ct. App. 2008) ([On petition for rehearing] Massey waived this issue by failing to raise
it on appeal.); Kinzenbaw v. Director of Revenue
, 62 S.W.3d 49, 54 n.9 (Mo. 2001) (Issues
raised for the first time in a motion for rehearing will not be considered.). It has been
correctly noted that [t]he purpose of a petition for rehearing is not to present points which
lawyers for the losing parties have overlooked[.] Kennedy v. South Carolina Ret. Sys.
S.E.2d 322, 322 (S.C. 2001) (quotations and citation omitted).
There are sound reasons for requiring a party to present all known arguments
or claims to an appellate court before its decision is rendered. Northern Indiana Commuter
Transp. Dist. v. Chicago SouthShore & S. Bend R.R.
, 685 N.E.2d 680, 687 (Ind. 1997). One
of the reasons for the rule is to prevent a party from appealing in a piecemeal manner. The
rule also keeps a party from shifting its position. The basic purposes are to promote the
finality of appellate courts' decisions and to conserve judicial time. Kentner v. Gulf Ins.
, 689 P.2d 955, 957 (Or. 1984) (citations omitted). See also OAIC Commercial Assets,
L.L.C. v. Stonegate Vill., L.P.
, 234 S.W.3d 726, 747 (Tex. Ct. App. 2007) (A motion for
rehearing does not afford a party an opportunity to raise new issues after the case has been
briefed, argued, and decided on other grounds, unless the error is fundamental. Fundamental
error exists in those rare instances in which the record shows the court lacked jurisdiction or
that the public interest is directly and adversely affected as that interest is declared in the
statutes or the Constitution[.]) (internal quotations and citations omitted). As more fully
discussed in the next section, as a result of DuPont's silence during oral argument, it has
waived its right to contest the issue of an allocation of punitive damages by the circuit court. See Butch v. State Comp. Comm'r
, 112 W. Va. 493, 498, 165 S.E. 672, 674 (1932) (The
petition for rehearing now states the fact to be that the letter containing the protest was
actually filed with the commissioner on April 28th. We cannot now consider a different state
of facts from what was shown on the submission of the case.).
In addition to contending that the circuit court did not make an allocation for
punitive damages, DuPont argues that this Court could not consider the statements of
Plaintiffs' counsel during oral argument because statements by counsel during argument do
not constitute evidence. This contention by DuPont shows a lack of understanding of the
purpose of appellate oral argument and the discretionary weight that is given to argument of
Oral arguments before the appellate court are intended to aid the court in
understanding the points raised and discussed in the briefs filed by the parties. Security
Dev. & Inv. Co. v. Ben O'Callaghan Co.
, 188 S.E.2d 238, 244 (Ga. Ct. App. 1972)
(quotations and citation omitted). Indeed, courts routinely rely on counsel's statements
during oral argument and rely on these representations when deciding cases. Matthews v.
, 165 S.W.3d 104, 110 (Tex. Ct. App. 2005) (quotations and citation omitted).
Moreover, [o]ral concessions developed during oral argument before [an appellate] court
may properly be used even where the trial record is silent. Staples v. Palten
, 571 A.2d 97,
101 n.1 (Conn. 1990). See also Village Saloon, Inc. v. Division of Alcoholic Beverages &
Tobacco, Dep't. of Bus. Regulation
, 463 So. 2d 278, 281 (Fla. Dist. Ct. App. 1984) (Though
the record is silent on the matter, it was represented during oral argument that a preliminary
hearing was held as scheduled on November 16, without achieving any satisfactory
resolution of the charges.); Hoover v. Allied Van Lines, Inc
., 2005 WL 1277952, at *2
(Kan. Ct. App. 2005) (As the record on appeal was silent as to why the district court relied
upon § 14704(e) rather than § 14708(d), we asked the parties during oral argument for an
explanation. Neither party had an explanation.); State v. Hunter
, 1984 WL 3984, at *1
(Ohio Ct. App. 1984) (During oral argument on appeal counsel did indicate that an in
camera inspection of the tape was had, although the record is silent on this point.).
Although it is rare, this Court has disposed of cases based upon representations
made by the parties during oral argument, which are not contained in the record. A case on
point is State v. Board of Canvassers of Nicholas County
, 106 W. Va. 544, 146 S.E. 378
(1929). The decision in Smith
involved a petition for a writ of mandamus. The petition was
filed by Ray Lambert seeking to have this Court compel the board of canvassers to reconvene
and to properly count certain ballots, and to declare him the winner of a majority of all the
votes cast for the office of sheriff of Nicholas County. During oral argument in the case, the
parties stated that this Court should assume that Mr. Lambert received 3,733 votes and that
his opponent received 3,745 votes, exclusive of ballots to which there were objections.
Based upon the representations the parties made at oral argument, this Court issued the
requested writ. The opinion in Smith
concluded that, based upon the figures hereinbefore
agreed to [at oral argument], we find that [the opponent] has received a total of 3,795 votes
and [Mr.] Lambert 3,795 votes. Smith
, 106 W. Va. at 554, 146 S.E. at 383. After this Court
issued the opinion in Smith
, Mr. Lambert filed a petition for rehearing. The basis for the
rehearing was that Mr. Lambert discovered that his counsel were mistaken when they
stipulated with opposing counsel at the bar of this court that the court should assume that [the
opponent] had 3,745 votes and [Mr.] Lambert 3,733 votes . . .; that, as a matter of fact,
. . . [the opponent] had 3,744 votes and [Mr.] Lambert 3,733. Smith
, 106 W. Va. at 554, 146
S.E. at 383. In summarily rejecting the petition for rehearing, this Court stated that Mr.
Lambert has pointed out nothing in the decision to indicate that there should be a rehearing
of the case. Nor are we of opinion that the alleged mistake in the [opponent's]
total . . . affords basis for rehearing. Smith
, 106 W. Va. at 554, 146 S.E. at 383. See also
In re Skyelan H
., 219 W. Va. 661, 664, 639 S.E.2d 753, 756 (2006) (On the basis of the
parties' statements during oral argument, we . . . reverse the circuit court's decisions and
remand the case.).
Thus, it is clear that this Court may rely on representations made by counsel
during oral argument regarding an issue that is not addressed in the record on appeal.
2. Evidence Showing That Seventy Percent of the Punitive Damages
Should Be Awarded for Medical Monitoring
The petition for rehearing points out that, while this case was pending before
this Court, and prior to oral arguments, the parties conducted proceedings before a special
master to address the issue of the allocation of punitive damages. Specifically, Dupont
contends that on August 29, 2008, Plaintiffs' counsel authored a letter suggesting that
seventy percent of the punitive damages should be allocated for the medical monitoring
claims. According to DuPont, the special master adopted this recommendation in a report
rendered on November 25, 2008. For the reasons set out below, we find this nonbinding
evidence to be untimely. (See footnote 4)
DuPont readily admits that the special master's report was submitted to the
circuit court on November 25, 2008. From that date to the date of oral arguments in this
case, April 7, 2009, DuPont was aware of the special master's recommendation that seventy
percent of the punitive damages should be allocated for the medical monitoring claims. Even
though DuPont had knowledge of the report long before the date of oral arguments, DuPont
failed to file a motion with this Court to supplement the record with the report. Further,
DuPont had such knowledge at the time this Court specifically asked Plaintiffs' counsel
whether the trial court had made an allocation of the punitive damages award. After
Plaintiffs' counsel represented to this Court that forty percent of the punitive damages was
allocated to the medical monitoring claims, DuPont failed to challenge that assertion during
rebuttal by informing this Court that no such allocation was made, and that a special master
had adopted the suggestion of Plaintiffs' counsel that seventy percent of the punitive
damages be awarded for the medical monitoring claims.
It has been correctly observed that, when a party is familiar with an issue in a
case prior to
appellate argument yet asserts for the first time in a petition for rehearing that
the issue was not correctly represented on appeal, the failure of the party to
make . . . mention of the subject until after it had lost the case . . ., if deliberate, is a breach
of duty to the court and, if inadvertent, is still inexcusable. Carr v. F. T. C.
, 302 F.2d 688,
692 (1st Cir. 1962). See also Hurst v. Gulf Oil Corp
., 254 F.2d 287, 288 (5th Cir. 1958)
(The first ground urged in support of the petition for rehearing is that the Court 'erred in
deciding this case under the laws of Texas . . . .' Unless our recollection of the oral argument
is faulty, no question as to the stipulation [that Texas law applied] was then raised and there
was no insistence on the law of New Mexico. This ground of the petition for rehearing
comes too late.). A longstanding legal maxim adhered to by this Court is that [t]he law
aids those who are diligent, not those who sleep upon their rights. Dimon v. Mansy
W. Va. 40, 48, 479 S.E.2d 339, 347 (1996) (internal quotations and citation omitted). We
have explained this principle of law to mean that when attorneys are careless, and [do] not
attend to their interests in court . . . , they must suffer the consequences of their folly. Law
v. Monongahela Power Co.
, 210 W. Va. 549, 561, 558 S.E.2d 349, 361 (2001) (Davis, J.,
dissenting) (internal quotations and citation omitted). See also Hanlon v. Logan County Bd.
., 201 W. Va. 305, 315, 496 S.E.2d 447, 457 (1997) (Long standing case law and
procedural requirements in this State mandate that a party must alert a tribunal as to
perceived defects at the time such defects occur[.]); State ex rel. Cooper v. Caperton
W. Va. 208, 216, 470 S.E.2d 162, 170 (1996) (The rule in West Virginia is that parties must
speak clearly in . . . court, on pain that, if they forget their lines, they will likely be bound
forever to hold their peace.).
Further, counsel cannot remain silent [on an issue raised during oral
arguments] and then for the first time on [a petition for rehearing] spring out an objection
that[,] if made [during oral arguments,] would have given [this Court] an opportunity to
correct the alleged error. State v. Lease
, 196 W. Va. 318, 323, 472 S.E.2d 59, 64 (1996).
This Court has consistently held that silence may operate as a waiver of objections to error
and irregularities[.] State v. Grimmer
, 162 W. Va. 588, 595, 251 S.E.2d 780, 785 (1979), overruled on other grounds by State v. Petry
, 166 W. Va. 153, 273 S.E.2d 346 (1980). This
raise or waive rule is designed to prevent a party from obtaining an unfair advantage by
failing to give [a] court an opportunity to rule on the objection and thereby correct potential
error. Wimer v. Hinkle
, 180 W. Va. 660, 663, 379 S.E.2d 383, 386 (1989). There is another
salutary justification for the raise or waive rule. That is, [i]t prevents a party from making
a tactical decision to refrain from objecting and, subsequently, should the case turn sour,
assigning error (or even worse, planting an error and nurturing the seed as a guarantee against
a bad result). State v. LaRock
, 196 W. Va. 294, 316, 470 S.E.2d 613, 635 (1996). Although
the raise or waive rule is usually invoked for errors or irregularities at the trial court level,
the rule has equal force and application at the appellate level. As pointed out by the Ninth
Circuit Court of Appeals, [o]rdinarily, arguments not timely presented are deemed waived[,
and t]his general doctrine of waiver applies to arguments raised for the first time in a petition
for rehearing. Narang v. Gonzales
, 138 Fed. App'x 26, 27 (9th Cir. 2005) (internal
quotations and citation omitted). See also Noonan v. Staples, Inc
., 561 F.3d 4, 6 (1st Cir.
2009) (That Staples did not timely raise the issue is also made clear by the fact that it has
not, until now [(on a petition for rehearing en banc)], filed the notice required for a challenge
to the constitutionality of a state statute. The issue is waived, and the fact that the issue raises
constitutional concerns does not save the waiver.); Gorman v. Wolpoff & Abramson, LLP
584 F.3d 1147, 1173 n.35 (9th Cir. 2009) (On petition for rehearing en banc, MBNA raises
for the first time an argument that allowing private enforcement of California Civil Code
section 1785.25(a) is inconsistent with the purpose of the FCRA and thus is preempted under
both FCRA § 1681t(a) and ordinary conflict preemption provisions. MBNA did not advance
this contention before us initially, so the argument is waived.); United States v. Pipkins
F.3d 1251, 1253 (11th Cir. 2005) (We have a long-standing rule that we will not consider
issues that were argued for the first time in a petition for rehearing, and we adhere to that rule
today.); Keating v. F.E.R.C.
, 927 F.2d 616, 625-26 (D.C. Cir. 1991) (It was not until the
instant petition for rehearing that California raised for the first time a claim that the Corps
permit is not a permit 'with respect to the construction of a facility' within the meaning of
the statute. Because California failed to raise this argument until its petition for rehearing,
the argument is waived and we decline to reopen the matter now.).
We characterize the special master's report as nonbinding for two reasons.
First, DuPont has not alleged that the circuit court adopted the special master's
recommendation. Second, the report expressly stated that no action of the Parties or the
[Trial] Court is being requested by this Report until the date that all appeals are resolved or
this case is settled among the Parties.