Roberts v. Stevens Clinic Hospital, Inc.

McGRAW, Justice,

dissenting:

I join Justice McHugh in his dissent, and add the following observations.

The majority’s willingness to compromise our democratic ideals is the key to understanding the result in this proceeding. West Virginia Constitution art. Ill, § 10 provides, “No person shall be deprived of life, liberty, or property, without due process of law, and the judgment of his *513 peers.” West Virginia Constitution art. Ill, § 13 provides, “In suits at common law, where the value in controversy exceeds twenty dollars exclusive of interest and costs, the right of trial by jury, if required by either party, shall be preserved.” The majority concedes that no reversible error of law occurred in the trial of this matter. It was a fair trial. Yet, asserting that the jury’s verdict is so monstrous as to' indicate that it was motivated by passion or partiality or prejudice or corruption, the majority substitutes its view of the proper amount of damages for that of twelve members of the community chosen under law to decide the case under the instructions of the trial court.

Available insurance coverage, as noted by the majority, was $10,250,000. In recognition of realistic, practical possibilities, the defendants’ insurance ■ companies had said, “We will pay up to $10,250,000 for any harm you might negligently cause to any individual in exchange for the payment of premiums commensurate with this amount of coverage.” The negligent acts of the defendants resulted in the death of 2V2-year-old Michael Roberts. The degree of malpractice associated with the commission of these acts is nothing short of horrifying. Michael Roberts suffered immeasurably because of these negligent acts. His father, his mother, and his brother continue to suffer immeasurably after his death. The jury, unaware of the amount of available insurance coverage, understandably shocked by the degree of medical malpractice demonstrated by community health professionals, returned a verdict of $10,000,000, remarkably close to the maximum amount of available insurance coverage for the most harmful acts of malpractice anticipated by the insurance companies.

After contracting to provide coverage in excess of the amount of the verdict, however, the insurance companies, in effect, came to this Court with a plea that less than what they had contracted for and received premiums for was still too much. The insurance companies effectively argued that it was anticipated that their insureds, these community health professionals, could commit even more horrendous acts of malpractice which could result in even greater harm to their prospective patients. The insurance companies coldly asserted that this ease was simply not “worth” $10,000,000 and maintained that reduction to a more “reasonable” figure was appropriate. So, with incredible candor, the majority admits that its members put their heads together and came up with a figure of $3,000,000. In other words, the majority anticipates that the defendants could combine to commit acts of malpractice resulting in over three times the amount of harm to a single individual than the amount of harm to Michael Roberts and his family. I readily concede my inability to imagine a set of circumstances over three times more tragic than the circumstances presented in this case.

Notwithstanding the majority’s obvious disdain for the regular citizen, masqueraded as a pedantic discourse on Gothic architecture, an argument “ignoratio elenchi,” the juror is an integral part of our democratic ideal, representing the conscience of the community. The great cathedrals of Europe stand not only as monuments to man’s ingenuity, but symbolically as monuments to man’s faith. The greatness of medieval cathedrals derives not from the character of their construction, but from the character and vision of the ordinary men and women who dedicated their lives to the service of an ideal. The majority states, “Greatness in architecture is not achieved by creating a superb structure from superb materials; it is achieved by creating a superb structure from mediocre materials. The same general criterion of judgment applies to government.... Courts understand that juries operate on largely emotive principles and that jury awards can be substantially in excess of what judges, educated in law as a science, would award in similar circumstances.” Thus, according to the majority, jurors are “mediocre materials,” who operate not on reason, but “on largely emotive principles,” particularly in comparison to judges, who are “educated in law as a science.” Never has a more arrogant statement been ut *514 tered by this Court in support of blatant judicial fiat. Furthermore, just as erection of medieval cathedrals was sometimes achieved through the impoverishment of parishioners, the majority’s protection of the profitability of insurance companies is achieved only at the expense of the legal and moral rights of those injured by medical malpractice. Better understanding can be gained by analogizing the majority opinion in this case to the practice of government described in R. Sherrill, Gothic Politics in the Deep South: Stars of the New Confederacy (1968), than can be gained by analogizing it to Gothic architecture.

The American system of government stands not as a monument to man’s ingenuity, but rather as a monument to man’s faith in democratic ideals. The greatness of the American system of government derives not from the character of its construction, but rather from the character and vision of the ordinary men and women who have dedicated their lives to service of democratic ideals. Recently, in dissenting from another usurpation of the province of a jury, I noted that:

Chesterton, the “prince of paradox,” framing the experience of two millennia in Tremendous Trifles: The Twelve Men, said:

“Our civilization has decided, and very justly decided, that determining the guilt or innocence of men [natural or artificial] is a thing too important to be trusted to trained men. It wishes for light upon that awful matter, it asks men who know no more law than I know, but who can feel the things that I felt in the jury box. When it wants a library catalogued, or the solar system discovered, or any trifle of that kind, it uses up its specialists. But when it wishes anything done which is really serious, it collects twelve of the ordinary men standing round. The same thing was done, if I remember right, by the Founder of Christianity.” Gilbert K. Chesterton, Tremendous Trifles: The Twelve Men 86-87 (1922).

Delp v. Itmann Coal Co., 176 W.Va. 252 , 342 S.E.2d 219, 223 (1986) (McGraw, J., dissenting). Ours is a government, in the immortal words of Lincoln, “of the people, by the people, and for the people.” Ours is not a government, as the majority would have it, “of philosopher kings.” Loss of faith in the will of the people, here expressed as a verdict by twelve members of the community, means loss of faith in our democratic system of government. Unlike the majority, faith in our people and our democratic ideals should not waiver. In Sir Patrick Devlin’s book Trial By Jury 147 (3d ed. 1966), he observed that, “The malady that sooner or later affects most men of a profession is that they tend to construct a mistique that cuts them off from common man.” Agreement with this fitting epitaph for the majority opinion in this case compels dissent.