DocketNumber： 23943
Judges： Davis, Maynard, McHugh
Filed Date： 12/18/1997
Status： Precedential
Modified Date： 11/16/2024
Dr. Irvin Sopher, Chief Medical Examiner for the State of West Virginia, appeals a judgment entered against him by the Circuit Court of Fayette County in a tort action initiated by the relatives of a decedent upon whom Sopher performed an autopsy. The suit alleged that Sopher intentionally and without authorization removed the heart of the decedent. Sopher argues that the circuit court erred in finding that he was not entitled to qualified immunity with respect to the claims against him, in admitting certain evidence that Sopher now claims was prejudicial, and in instructing the jury that it could award punitive damages. Sopher also claims that a successor judge presiding over a portion of the proceedings erred in reeonsider-ing earlier rulings made by the original trial judge. We find no error. Therefore, we affirm the final order of the circuit court.
I.
FACTUAL AND PROCEDURAL HISTORY
Elmer Coleman, a thirty-nine year old coal miner, died suddenly from a heart attack on September 26, 1987. In order to determine whether occupational pneumoconi-osis contributed to Elmer’s death, his wife, Mary Coleman, executed a “CONSENT TO AUTOPSY,” authorizing the “hospital or its agents and representatives, to do all procedures necessary or proper, including the removal of organs and parts of said body for microscopic or other examination and analysis.”
Sometime later, Mary Coleman filed a Workers’ Compensation claim for occupational pneumoconiosis [hereinafter OP] survivor’s benefits. Her claim was denied because Sopher’s autopsy report did not indicate that Elmer Coleman suffered from OP. Consequently, Mary permitted Elmer’s body to be exhumed and executed a second “CONSENT TO AUTOPSY” authorizing Dr. Echols Hansbarger to perform an autopsy to determine whether Elmer suffered from pneumoconiosis and, if so, whether it contributed to his death. Dr. Hansbarger’s subsequent report noted
By order entered November 7, 1991, the circuit court related that it earlier had announced that it “intended to grant summary judgment, sua sponte, on the grounds that the Plaintiff cannot legally maintain [an] action against two Defendants alleging that one or the other Defendant, but not both, are liable to the Plaintiff.” The Colemans then moved to amend their complaint to elect one of the two defendants against whom they wished to proceed. The circuit court granted the motion. On April 13,1992, the Colemans filed their amended complaint, which alleged the same causes of action as their original complaint, but listed Sopher as the sole defendant. In his answer to the Colemans’ amended complaint, Sopher denied removing Elmer Coleman’s heart and named Paul Pennington [hereinafter Pennington] as a third-party defendant.
The Honorable Judge W. Robert Abbot presided over the subsequent jury trial. At the conclusion of the evidence, Judge Abbot granted a directed verdict in favor of Pennington. On October 7, 1992, the jury returned a verdict against Sopher awarding compensatory damages of $75,000 to Mary Coleman and $30,000 each to J. Wesley and Michelle, and punitive damages of $50,000. Sopher then filed motions for judgment notwithstanding the verdict and for a new trial or remittitur. On April 21, 1994, Judge Abbot entered an order granting remittitur. He reduced the compensatory damage award to $50,000 for Mary Coleman and $10,000 for each child. The punitive damage award was not changed. The order also stated:
The Court, having granted a remittitur of the jury’s verdict as stated herein, then did inquire of the plaintiffs whether they elected to have a new trial on the issue of damages or accept the remittitur. In response, counsel for the plaintiffs informed the court that the plaintiffs would not accept the remittitur and opted instead for a new trial.
The Colemans appealed the April 21, 1994, order to this Court. We initially granted the petition for appeal. However, following oral argument, in an opinion delivered by Justice Cleekley, the case was dismissed as improvidently granted. See Coleman v. Sopher, 194 W.Va. 90, 459 S.E.2d 367 (1995).
Thereafter, the matter was set for a new trial on damages in the circuit court. Because Judge Abbot had retired and subsequently died, the case was assigned to the Honorable Judge John W. Hatcher. After reviewing the case record, Judge Hatcher, sua sponte, asked the parties to argue whether he should reconsider Judge Abbot’s rulings on Sopher’s post-trial motions. Following arguments, Judge Hatcher, by order entered May 2, 1996, denied all of Sopher’s post-trial motions. In the text of the order, Judge Hatcher discussed the trial court’s delay of approximately one and one-half years in ruling on the defendant’s post trial motions, the absence of a complete record of the court’s hearing on those motions, and the lack of findings of fact and conclusions of law in the court’s order. Judge Hatcher commented:
The Court, in consideration of Rule 63 of the West Virginia Rules of Civil Procedure, West Virginia case law and the Court’s duty and inherent power to insure the effective and expeditious administration of the business of the Court, is of the opinion that because the Court failed to make any findings of fact and conclusions of law in regard to its rulings as to the aforementioned post-trial motions, the Court should now reconsider, on its own motion, the Court’s rulings in regard to said post-trial motions, and make findings of fact and conclusions of law in regard thereto. The Court now can, by reading the trial transcripts of this case, just as*594 easily and competently consider and rule on the Defendant’s post-trial motions, as could the original trial court nearly one and one-half years after the conclusion of the trial. The Court’s present action is not to be taken as any criticism whatsoever of the original trial judge.
It is from this order that Sopher now appeals.
II.
DISCUSSION
A Qualified Immunity
We first address Sopher’s contention that the circuit court erred in rejecting his defense of immunity. Sopher raised the immunity issue in his motion for summary judgment, and again when he moved for a directed verdict. Unfortunately, in framing this issue for appeal to this Court, Sopher has failed to identify the particular stage of trial at which the court allegedly erred. To avoid an unnecessarily lengthy discussion addressing the possible points at which this error might have occurred, for purposes of our discussion, we will treat Sopher’s argument as one complaining that the trial court erred in denying his motion for summary judgment on the grounds of qualified immunity.
“ ‘A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.’ Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).” Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992).
Syl. pt. 1, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995).
The Colemans respond by asserting that Sopher is not entitled to qualified immunity because his actions exceeded the scope of his authority. Moreover, the Colemans note that a public official is entitled to qualified immunity for negligence, whereas they have alleged the commission of intentional torts. Additionally, the Colemans argue that So-pher cannot claim immunity under W. Va. Code § 61-12-10 unless he admits to taking the heart and identifies the purpose for the taking. Moreover, they assert that § 61-12-10 has no application to Elmer Coleman’s autopsy as it was authorized by his wife. Finally, the Colemans argue that the purpose of the autopsy performed on Elmer Coleman was limited to a determination of the cause of Elmer’s death and, thus, the language of § 16^£B-1, permitting an autopsy to be performed “in the interest of medical science,” should be similarly limited in this instance to an inquiry into the cause of death.
We find that the circuit court correctly determined that Sopher was not entitled to qualified immunity, as a matter of law, with respect to the claims asserted against him in this action.
“A public executive official who is acting within the scope of his authority and is not covered by the provisions of W. Va.Code, 29-12A-1, et seq. [the West Virginia Governmental Tort Claims and Insurance Reform Act],7 is entitled to qualified immunity from personal liability for official acts if the involved conduct did not violate*596 clearly established laws of which a reasonable official would have known. There is no immunity for an executive official whose acts are fraudulent, malicious, or otherwise oppressive. To the extent that State ex rel. Boone National Bank of Madison v. Manns, 126 W.Va. 643, 29 S.E.2d 621 (1944), is contrary, it is overruled.” Syllabus, State v. Chase Securities, Inc., 188 W.Va. 356, 424 S.E.2d 591 (1992).
(Emphasis added) (footnote added).
Sopher argues first that he was acting within his authority under W. Va.Code § 61-12-10.
Evidence implicating the provisions of W. Va.Code § 16-4B-1 (1972) (Repl.Vol. 1995),
The only evidence in the record establishing Sopher’s authority to perform an autopsy on Elmer Coleman’s body was the “CONSENT TO AUTOPSY” executed by Mary Coleman. The consent read as follows:
I, (we), standing in the relationship of Elmer Coleman, [sic] and being the next of kin, do hereby request and authorize the 'performance of a post-mortem examination upon the body of Elmer Coleman, now deceased; said examination to be performed by, or under the direction of any member of the Staff or other authorized agent of Montgomery General Hospital. I, (we), do further authorize said hospital or its agents and representatives, to do all procedures necessary or proper, including the removal of organs and parts of said body for microscopic or other examination and analysis.
I, (we), in consideration of such requests and performance of such post-mortem examination, do hereby forever release and discharge the Montgomery General Hospital, and the medical staff, agents or representatives of it, or either of them, from any and all liability of any nature whatsoever for their joint or several acts performed in pursuance of this request or consent.
(Emphasis added).
To determine whether Sopher acted within his authority under this agreement, which would entitle him to immunity provided that the other elements of the Chase test are met, we must discern the nature and scope of his authority from the terms of the agreement, if possible. In carrying out this analysis, we must strive to give effect to the intent of the parties to the agreement. With respect to the construction or application of a contract, we have held, generally:
“A valid written instrument which expresses the intent of the parties in plain and unambiguous language is not subject to judicial construction or interpretation but will be applied and enforced according to such intent.” Cotiga Development Co. v. United Fuel Gas Co., 147 W.Va. 484, 128 S.E.2d 626 (1962), Syllabus Point 1.
Syl. pt. 1, Bennett v. Dove, 166 W.Va. 772, 277 S.E.2d 617 (1981). Elaborating on this general principle, we have explained:
“ ‘It is not the right or province of a court to alter, pervert or destroy the clear meaning and intent of the parties as expressed in unambiguous language in their written contract or to make a new or different contract for them.’ Cotiga Development Co. v. United Fuel Gas Co., 147 W.Va. 484, 128 S.E.2d 626 (1962), Syllabus Point 3.” Syllabus Point 2, Bennett v. Dove, 166 W.Va. 772, 277 S.E.2d 617 (1981).
The term “ambiguity” is defined as language “reasonably susceptible of two different meanings” or language “of such doubtful meaning that reasonable minds might be uncertain or disagree as to its meaning[.]” Syl. pt. 1, in part, Shamblin v. Nationwide Mut. Ins. Co., 175 W.Va. 337, 332 S.E.2d 639 (1985).
Payne v. Weston, 195 W.Va. 502, 507, 466 S.E.2d 161, 166 (1995). See also Williams v. Precision Coil, Inc., 194 W.Va. 52, 65 n. 23, 459 S.E.2d 329, 342 n. 23 (1995) (“A contract is ambiguous when it is reasonably susceptible to more than one meaning in light of the surrounding circumstances and after applying the established rules of construction.”).
With due consideration for the above stated principles, we find the “CONSENT TO AUTOPSY” agreement between Mary Coleman and Montgomery General Hospital is ambiguous. The first paragraph requests and authorizes “a post-mortem examination” without identifying the agreed upon purpose for the examination. Thus, we do not know if the examination was intended: for research purposes to further medical science; to determine the general cause of death; to determine whether a particular condition existed; to determine whether a particular condition, if it existed, contributed in any way to the death of the subject of the examination; or for any other purpose we have not herein contemplated. In other words, the scope of the authorization is not indicated. The second paragraph then authorizes the “hospital or its agents ... to do all procedures necessary or proper,” apparently, though not specifically stated, in furtherance of the postmortem examination. This language is additionally ambiguous in that, without an identified scope for the post-mortem examination, the phrase “necessary or proper” is meaningless. A particular act may be “necessary or proper” for one purpose, yet be unnecessary or improper for another. Finally, the third paragraph states that Montgomery General Hospital and its agents are released from liability for acts “performed in pursuance of this request or consent.” It is impossible to verify whether a particular act was “in pursuance” of a “request or consent,” when the thing requested or consented to is unknown. Because the contract does not indicate the specific purpose or scope of the post-mortem examination, the extent of the release from liability for acts “performed in pursuance of [the] request or consent” is not clearly articulated.
Having found .the “CONSENT TO AUTOPSY” is ambiguous, we must endeavor to construe it to enforce the intent of the parties and to give meaning to the entire contract. See Syl. pt. 2, Columbia Gas Transmission Corp. v. E.I. du Pont de Nemours & Co., 159 W.Va. 1, 217 S.E.2d 919 (1975) (“In construing an ambiguous contract, three well-recognized rules of construction require: (1) that the intentions of the parties to the agreement must control the obligations thereunder; (2) that in searching for the intentions of contracting parties, the court must examine the instrument in its entirety; and (3) that words are to be considered in the context in which they are employed.”).
“□“Extrinsic evidence may be used to aid in the construction of a contract if the matter in controversy is not clearly expressed in the contract, and in such case*599 the intention of the parties is always important and the court may consider parol evidence in connection therewith with regard to conditions and objects relative to the matter involved_” Syl. Pt. 2, Berkeley Co. Pub. Ser. Dist. v. Vitro Corp., 152 W.Va. [252], [162 S.E.2d 189 (1968) ].[’] Syllabus Point 2, International Nickel Co. v. Commonwealth Gas Corp., 152 W.Va. 296, 163 S.E.2d 677 (1968).” Syllabus Point 2, Bittorf v. Bittorf, 182 W.Va. 594, 390 S.E.2d 793 (1989).
Syl. pt. 2, Martin v. Martin, 187 W.Va. 372, 419 S.E.2d 440 (1991) (per curiam).
After thoroughly reviewing the record in this case, we found the only source of evidence indicating the parties’ intent with respect to the “CONSENT TO AUTOPSY” was Mary Coleman’s testimony.
Common sense dictates that a medical examiner performing a post-mortem examination for the benefit of another is required to keep records of the examination and to generate some type of report of the findings of the exam. Cf. W. Va.Code § 61-12-10 (1988) (Repl Vol.1997) (providing that the office of medical examinations keep “full, complete, and properly indexed records of all deaths investigated,” and that “[c]opies of such records” be “furnished, upon request, to any party to whom the cause of death is a material issue”). Commensurate with this responsibility is the duty to produce accurate and reliable records and reports. Sopher’s “POST-MORTEM EXAMINATION FINDINGS,” indicated that “the heart [was] not removed.” During his testimony, Sopher attested to the reliability and accuracy of this report. The comment in the report that the heart was not removed can be reasonably interpreted to mean that removal of the heart was not “necessary or proper,” in furtherance of the examination, and, thus, was not authorized by the “CONSENT TO AUTOPSY.”
In Whitehair v. Highland Memory Gardens, Inc., 174 W.Va. 458, 460-61, 327 S.E.2d 438, 440-41 (1985), we observed that “[i]n this country, where we have no ecclesiastical courts, the law has long recognized a ‘quasi-property1 right in the survivors to control the disposition of a loved one’s remains.”
The quasi-property rights of the survivors include the right to custody of the body; to receive it in the condition in which it was left, without mutilation; to have the body treated with decent respect, without outrage or indignity thereto; and to bury or otherwise dispose of the body without interference.
Id. at 461, 327 S.E.2d at 441 (citations omitted).
We note that the facts in a case such as the one presently before us implicate at least two of the above-described quasi-property rights in a loved one’s remains. Nevertheless, because we have determined that Sopher’s actions exceeded the scope of his legitimate authority, we decline to address further a relative’s property interest in the internal organs of his/her decedent.
B. Prejudicial Testimony
Sopher next argues that the circuit court abused its discretion by admitting, over his objection, testimony that he had previously donated brain tissue obtained during autopsies to Marshall University Medical School without providing notice to the decedents’ family members. Sopher contends that this evidence should have been excluded under West Virginia Rule of Evidence 404(b), which also implicates Rules 401, 402 and 403. Specifically, Sopher complains that thé evidence “only tended to prove Dr. Sopher’s character and his propensity to act in conformity therewith.” In addition, he challenges the trial court’s failure to perform the balancing test required by State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994), and Rule 403 to determine whether the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. Before addressing the merits of Sopher’s contentions, we must determine whether these issues are properly before us.
At a pre-trial conference, counsel for So-pher moved in limine for the exclusion of evidence regarding the donation of brain tissue. However, the record contains no written motion for the exclusion of this evidence. In addition, the transcript of the pre-trial hearing wherein Sopher’s oral motion was discussed fails to reveal his specific complaint regarding this evidence.
Timely and specific objections are required under Rule 103(a)
Our cases consistently have demonstrated that, in general, the law ministers to the vigilant, not to those who sleep on their rights. Recently, we stated in State ex rel. Cooper v. Caperton, 196 W.Va. 208, 216, 470 S.E.2d 162, 170 (1996): “The rule in West Virginia is that parties must speak clearly in the circuit court, on pain that, if they forget their lines, they will likely be bound forever to hold their peace.” (Citation omitted). When a litigant deems himself or herself aggrieved by what he or she considers to be an important occurrence in the course of a trial or an erroneous ruling by a trial court, he or she ordinarily must object then and there or forfeit any right to complain at a later time. The pedigree for this rule is of ancient vintage, and it is premised on the notion that calling an error to the trial court’s attention affords an opportunity to correct the problem before irreparable harm occurs. There is also an equally salutary justification for the raise or waive rule: It 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). In the end, the contemporaneous objection requirement serves an important purpose in promoting the balanced and orderly functioning of our adversarial system of justice.
196 W.Va. 294, 316, 470 S.E.2d 613, 635 (1996).
While the record indicates that Sopher presented a motion in limine for the exclusion of the evidence herein complained of, the record fails to establish that the specific challenges now raised were presented to or addressed by the court below. Thus, Sopher failed to preserve these alleged errors. See Tennant v. Marion Health Care Found., Inc., 194 W.Va. 97, 114, 459 S.E.2d 374, 391 (1995) (“[T]he party complaining on appeal of the admission of evidence bears sole responsibility for adequately preserving the record for meaningful appellate review.”). See also Syl. pt. 3, Hudgins v. Crowder & Freeman, Inc., 156 W.Va. 111, 191 S.E.2d 443 (1972) (“Courts of record can speak only by their records, and what does not so appear does not exist in law.”). Because these issues are not reflected .in the record, we decline to consider them on appeal.
C. Punitive Damages
Sopher also argues that the circuit court improperly instructed the jury, over his ob
Trial courts are afforded broad discretion in formulating jury instructions. See Syl. pt. 4, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995) (holding, in part, “[a] trial court ... has broad discretion in formulating its charge to the jury, so long as the charge accurately reflects the law”). “Whether facts are sufficient to justify the delivery of a particular instruction is reviewed by this Court under an abuse of discretion standard.” Syl. pt. 12, in part, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994). See also State v. Guthrie, 194 W.Va. at 671 n. 12, 461 S.E.2d at 177 n. 12. Moreover, upon review “ ‘[i]t will be presumed that a trial court acted correctly in giving or in refusing to give instructions to the jury, unless it appears from the record in the ease that the instructions given were prejudicially erroneous or that the instructions refused were correct and should have been given.’ Syllabus point 1, State v. Turner, 137 W.Va. 122, 70 S.E.2d 249 (1952).” Syl. pt. 5, Maples v. West Virginia Dep’t of Commerce, 197 W.Va. 318, 475 S.E.2d 410 (1996). However, we have recognized that “ ‘ “[a]n instruction should not be given when there is no evidence tending to prove the theory upon which the instruction is based.” Syl. pt. 4, Hovermale v. Berkeley Springs Moose Lodge No. 1483, [165] W. Va. [689], 271 S.E.2d 335 (1980).’ Syllabus point 3, Jenrett v. Smith, 173 W.Va. 325, 315 S.E.2d 583 (1983).” Syl. pt. 4, Maples.
To determine whether a trial court has abused its discretion in giving or refusing to give an instruction that has been challenged on sufficiency of the evidence grounds, we must consider the degree of evidence necessary to support the giving of a particular jury instruction. We have previously explained that:
“1 “If there be evidence tending in some appreciable degree to support the theory of proposed instructions, it is not error to give such instructions to the jury, though the evidence be slight, or even insufficient to support a verdict based entirely on such theory.” Syllabus Point 2, Snedeker v. Rulong, 69 W.Va. 223, 71 S.E. 180 (1911).’ Syllabus Point 4, Catlett v. MacQueen, 180 W.Va. 6, 375 S.E.2d 184 (1988).” Syllabus point 6, Wilt v. Buracker, 191 W.Va. 39, 443 S.E.2d 196 (1993), cert. denied, 511 U.S. 1129, 114 S.Ct. 2137, 128 L.Ed.2d 867 (1994).
Syl. pt. 3, Craighead v. Norfolk & Western Ry. Co., 197 W.Va. 271, 475 S.E.2d 363 (1996).
Turning to the issue at hand, whether there was sufficient evidence presented to support an instruction on punitive damages, we note that this court has held:
“Punitive or exemplary damages are such as, in a proper case, a jury may allow against the defendant by way of punishment for wilfulness, wantonness, malice, or other like aggravation of his wrong to the*603 plaintiff, over and above full compensation for all injuries directly or indirectly resulting from such wrong.” Syllabus Point 1, O’Brien v. Snodgrass, 123 W.Va. 483, 16 S.E.2d 621 (1941).
Syl. pt. 4, Harless v. First Nat’l Bank, 169 W.Va. 673, 289 S.E.2d 692 (1982). We have also stated that “[pjunitive damage instructions are legitimate only where there is evidence that a defendant acted with wanton, willful, or reckless conduct or criminal indifference to civil obligations affecting the rights of others to appear or where the legislature so authorizes.” Syl. pt. 7, Michael v. Sabado, 192 W.Va. 585, 453 S.E.2d 419 (1994). Sopher argues that the Colemans submitted no evidence that he willfully or wantonly caused the Colemans to be injured or that he acted with willful, reckless indifference and disregard of the Colemans’ rights. Consequently, Sopher continues, the court erred in giving a punitive damages instruction. We disagree.
The evidence in this case revealed that Sopher’s report of the autopsy performed on Elmer Coleman specifically stated that “the heart [was] not removed.” However, the evidence strongly suggested that the heart was in fact removed. Dr. Hansbarger was unable to identify or find the heart during his subsequent autopsy. In addition, Mary Coleman testified that Sopher admitted to her that he removed the heart, and stated that he thought he gave it to Combs-Pennington to be returned to the body. This evidence creates a reasonable inference that Sopher removed the heart and then attempted to conceal the taking. Additionally, as we explained above, Sopher did not have the authority to remove the heart in this instance, as it was not necessary in furtherance of this particular autopsy. We believe the foregoing evidence was sufficient to support a jury instruction on punitive damages.
D. Judge Hatcher’s Reconsideration of Judge Abbot’s Award of a New Trial on Damages
Finally, Sopher contends that Judge Hatcher erred in reconsidering Judge Abbot’s rulings on Sopher’s post-trial motions for a new trial or remittitur. Sopher argues that deference should be given to Judge Abbot’s rulings because, as the trial judge, he was in a better position to weigh the evidence and assess the credibility of the witnesses.
Rule 63 of the West Virginia Rules of Civil Procedure addresses the duties which may be performed by a successor judge when the original trial judge is unable to preside through the conclusion of a particular case, and states:
If by reason of death, sickness, or other disability, a judge before whom an action has been tried is unable to perform the duties to be performed by the court under these rules after a verdict is returned ... then any successor ... judge sitting in the court in which the action was tried may perform those duties.
(Emphasis added). The language of this rule grants broad authority to a successor judge to perform any duty that could have been performed by the predecessor judge. In Tennant v. Marion Health Care Foundation, Inc., Justice Cleckley, quoting from Moore’s Federal Practice, observed that:
“the new judge may perform any action which the first judge could have taken had he not become disabled_ [I]f the transcript of the proceedings is sufficient, he may also rule upon any post-trial motions made by the parties, including a motion for judgment n.o.v. or a motion for a new trial.” James Wm. Moore, Moore’s Federal Practice ¶ 63 at 63-10 (1995).
194 W.Va. 97, 105, 459 S.E.2d 374, 382 (1995).
The broad authority afforded successor judges is also evidenced in the standard of review we apply to their rulings. In Syllabus point 1 of Tennant v. Marion Health Care Foundation, Inc., we held:
Once a successor judge is properly assigned pursuant to Rule 63 of the West Virginia Rules of Civil Procedure and Rule XVII of the West Virginia Trial Court Rules for Trial Courts of Record, his or her decision or judgment is to be reviewed on appeal under the same standard that would have been applied to the decision of the original trial judge. To do otherwise would disrupt the administration of justice. To the extent that our prior cases are inconsistent with this decision, they are expressly overruled.
Id. (emphasis added).
In the case sub judice, Judge Abbot granted a new trial on damages. That ruling kept the action alive, and, thus, would have permitted Judge Abbot to reconsider his ruling on Sopher’s motion for a new trial had he seen fit to do so. See Coleman v. Sopher, 194 W.Va. 90, 94-95, 459 S.E.2d 367, 371-72 (1995) (observing that “the order granting the defendant’s motion for a new trial, far from ending the ease, requires both
parties to go forth on the damage issue again”). In an ongoing action, a trial judge has the authority to reconsider his or her previous rulings, including an order granting a new trial. “An order granting a new trial is interlocutory and destroys the finality of the judgment. Since [a trial] court has plenary power to reconsider, revise, alter, or amend an interlocutory order, the court has the power to take any action with respect to an order granting a new trial.” 12 James Wm. Moore et al., Moore’s Federal Practice,
§ 59.43[1] (3d ed.1997) (footnotes omitted). See Caldwell v. Caldwell, 177 W.Va. 61, 63, 350 S.E.2d 688, 690 (1986) (discussing general rule that interlocutory orders are left to the plenary power of the trial court). See also Gallimore v. Missouri Pacific R.R. Co., 635 F.2d 1165, 1171 (5th Cir.1981) (quoting Moore’s Federal Practice, and holding that trial court could reconsider, “upon motion or sua sponte,” an “earlier order granting a new trial”).
Having determined that Judge Hatcher had the authority to reconsider Judge Abbot’s earlier rulings, we must now determine whether he erred in his conclusions upon reconsideration. As previously stated, Judge Hatcher’s actions are reviewed under the same standard we would apply to rulings of the original trial judge. Here, Sopher complains of Judge Hatcher’s rulings on his motion for a new trial or remittitur. Remittitur typically arises in connection with a motion for a new trial,
As a general proposition, we review a circuit court’s rulings on a motion for a new trial under an abuse of discretion standard. In re State Public Building Asbestos Litigation, 193 W.Va. 119, 454 S.E.2d 413 (1994).... Thus, in reviewing challenges to findings and rulings made by a circuit court, we apply a two-pronged deferential standard of review. We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court’s underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.
Tennant v. Marion Health Care, 194 W.Va. at 104, 459 S.E.2d at 381. With due consideration for the appropriate standard of review, we proceed to consider Judge Hatch-er’s ruling.
If the trial judge finds the verdict is against the clear weight of the evidence, is based on false evidence or will result in á miscarriage of justice, the trial judge may set aside the verdict, even if supported by substantial evidence, and grant a new trial. A trial judge’s decision to award a new trial is not subject to appellate review unless the trial judge abuses his or her discretion.
Syl. pt. 3, in part, In re State Public Bldg. Asbestos Litig., 193 W.Va. 119, 454 S.E.2d 413 (1994).
“Courts must not set aside jury verdicts as excessive unless they are monstrous, enormous, at first blush beyond all measure, unreasonable, outrageous, and manifestly show jury passion, partiality, prejudice or corruption.” Syl. Pt., Addair v. Majestic Petroleum Co., Inc., 160 W.Va. 105, 232 S.E.2d 821 (1977).
Syl. pt. 5, Roberts v. Stevens Clinic Hosp., Inc., 176 W.Va. 492, 345 S.E.2d 791 (1986). We agree with Judge Hatcher’s conclusion that the verdict was not excessive and, thus, Sopher was not entitled to remittitur or a new trial on damages.
Judge Hatcher’s final order denying Sopher’s motions recounted his thorough review of the record of this action. It also contained detailed findings of fact and conclusions of law upon which he based his decision to deny a new trial on damages and to reinstate the jury verdict. In his order, Judge Hatcher explained:
[T]he Court concludes that the Defendant’s motion to set aside the jury verdict should be denied.... Quite simply, the Court concludes that the jury believed that the Defendant intentionally did something with the decedent’s heart, that the Plaintiffs, a widow and two children, suffered, and were entitled to be compensated in the total amount of $135,000.00, with the further belief that an additional $50,000.00 should be awarded as punitive damages in order to punish the Defendant for his conduct. Additionally, the Court finds that the Defendant is not statutorily immune from suit in this case.
As to the Defendant’s request for a re-mittitur, the Court finds nothing in the case to cause the Court to conclude that the jury’s verdict was, at first blush, excessive, enormous, monstrous, outrageous, unreasonable or beyond all measure. Further, the Court finds nothing in the case to indicate that the jury’s verdict manifestly displays jury passion, partiality, corruption or prejudice....
... The Court believes that the determination of damages is clearly within the province of the jury, the fact finder, and the jury’s verdict should not be disturbed by the Court unless it can be shown that the jury’s verdict was the result of, in whole or in part, prejudice, partiality, corruption or some misunderstanding or mistaken view of the merits of the case. The Court, upon thorough consideration of the evidence in this case, concludes that no such showing was made by the Defendant.
We have thoroughly reviewed the record, the arguments of the parties, and Judge Hatcher’s order, and we cannot conclude that Judge Hatcher abused his discretion by denying Sopher’s motion for a new trial or for
III.
CONCLUSION
For the foregoing reasons, we affirm the May 2, 1996, order of the Circuit Court of Fayette County.
Affirmed.
. While the circuit court rejected Sopher's claim of immunity for purposes of summary judgment and directed verdict, the question of Sopher’s immunity was presented, as a question of fact, to the jury. Sopher does not argue before this Court that the jury instructions related to immunity were erroneous or that the evidence was insufficient to support the jury verdict on liability. Consequently, we limit our discussion to the issue we perceive Sopher to have raised, that is, whether, as a matter of law, Sopher was entitled to qualified immunity for the conduct alleged by the Colemans. See Syl. pt. 1, Hutchison v. City of Huntington, 198 W.Va. 139, 479 S.E.2d 649 (1996) ("The ultimate determination of whether qualified or statutory immunity bars a civil action is one of law for the court to determine. Therefore, unless there is a bona fide dispute as to the foundational or historical facts that underlie the immunity determination, the ultimate questions of statutory or qualified immunity are ripe for summary disposition.”).
. Regarding appeal of the denial of a motion for summary judgment, we have held:
"An order denying a motion for summary judgment is merely interlocutory, leaves the case pending for trial, and is not appealable except in special instances in which an interlocutory order is appealable.” Syllabus Point 8, Aetna Casualty and Surety Co. v. Federal Insurance Company of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).
Syl. pt. 1, Gooch v. West Virginia Dep't of Public Safety, 195 W.Va. 357, 465 S.E.2d 628 (1995). However, this holding does not preclude appeal of a denial of summary judgment after the conclusion of a trial and the entry of a final order. We have previously commented:
If unsuccessful at trial, the movant may still raise the denial of his [W. Va. R. Civ. P. 12(c) or 56] motion as error on an appeal subsequent to the entry of a final order. See, Aetna Casualty & Surety Company v. Federal Insurance Company of New York, [148 W.Va. 160, 133 S.E.2d 770 (1963)]; Sinclair Refining Company v. Stevens, 123 F.2d 186 (8th Cir. 1941), cert. den., 315 U.S. 804, 62 S.Ct. 632, 86 L.Ed. 1203 (1942).
Wilfong v. Wilfong, 156 W.Va. 754, 759, 197 S.E.2d 96, 100 (1973). See also Adkins v. Chevron, USA, Inc., 199 W.Va. 518, 522, 485 S.E.2d 687, 691 (1997) (per curiam) ("We review de novo both the denial of the motion for summary judgment and the denial of the directed verdict.”); City Nat'l Bank of Charleston v. Wells, 181 W.Va. 763, 768, 384 S.E.2d 374, 379 (1989) (addressing on appeal, without stating standard of review, appellant’s claim that trial court erred in denying motion for summary judgment).
. W. Va.Code § 61-12-10 (1988) (Repl.Vol. 1997) states in relevant part:
If in the opinion of the chief medical examiner, or of the medical examiner of the county in which the death in question occurred, it is advisable and in the public interest that an autopsy be made, or if an autopsy be requested by either the prosecuting attorney or the judge of the circuit court or other court of record having criminal jurisdiction in such county, such autopsy shall be made by the chief medical examiner, by a member of his staff, or by such competent pathologist as the chief medical examiner shall designate and employ pursuant to the provisions of this article.... A full record and report of the findings developed by the autopsy shall be filed with the office of medical examinations by such person making the autopsy.
... Any person performing an autopsy pursuant to the authority of this section shall be empowered to keep and retain, for and on behalf of the chief medical examiner, any tissue from the body upon which the autopsy was performed which may be necessary for further study or consideration.
. W. Va.Code § 16-4B-1 (1972) (Repl.Vol. 1995) states in relevant part:
In case of the death of any person in the State of West Virginia, the attending physician, or if there be none, any physician, if he deems it advisable in the interest of medical science, may perform or cause to be performed an autopsy on the body of such deceased person without liability therefor, provided consent to such autopsy is first obtained....
. Whether Sopher was entitled to immunity given the particular facts of this case was a question that was properly determined by the jury.
. The West Virginia Governmental Tort Claims and Insurance Reform Act applies to political subdivisions. The office of medical examinations, operated under the control and supervision of the director of the Department of Health, is a state agency and not a political subdivision. Thus, the Chief Medical Examiner, as an employee of the state, rather than an employee of a political subdivision, is a public executive official to whom the Governmental Tort Claims and Insurance Reform Act does not apply. See W. Va.Code § 29-12A-3(c) (1986) (Repl.Vol. 1992) (defining "political subdivision”); W. Va.Code § 29-12A-3(e) (defining "State"); and W. Va. Code 61-12-3 (1977) (Repl.Vol. 1997) (establishing office of medical examinations).
.Syllabus point 3 of Clark v. Dunn, 195 W.Va. 272, 465 S.E.2d 374 (1995), restated a principle first set forth by this Court in the sole syllabus point of State v. Chase Securities, Inc., 188 W.Va. 356, 424 S.E.2d 591 (1992). State v. Chase was decided shortly after the trial of this case. The Colemans do not contest the applicability of the Chase standard in this instance, and, in fact, have applied it in an effort to show that Sopher is not entitled to the immunity he claims. However, because the Chase holding did not exist at the time of Sopher's acts, we deem it necessary to consider its applicability to this case. The test for determining whether to extend retroactivity is stated in syllabus point 5 of Bradley v. Appalachian Power Co.:
In determining whether to extend full retro-activity, the following factors are to be considered: First, the nature of the substantive issue overruled must be determined. If the issue involves a traditionally settled area of law, such as contracts or property as distinguished from torts, and the new rule was not clearly foreshadowed, then retroactivity is less justified. Second, where the overruled decision deals with procedural law rather than substantive, retroactivity ordinarily will be more readily accorded. Third, common law decisions, when overruled, may result in the overruling decision being given retroactive effect, since the substantive issue usually has a narrower impact and is likely to involve fewer parties. Fourth, where, on the other hand, substantial public issues are involved, arising from statutoty or constitutional interpretations that represent a clear departure from prior precedent, prospective application will ordinarily be favored. Fifth, the more radically the new decision departs from previous substantive law, the greater the need for limiting retroactivity. Finally, this Court will also look to the precedent of other courts which have determined the retroactive/prospective question in the same area of the law in their overruling decisions.
163 W.Va. 332, 256 S.E.2d 879 (1979). We have considered the Bradley criteria and find that our holding in Chase may properly be applied to the case sub judice. Vie decline to engage in a protracted discussion of this retroactivity issue as it was not raised by the parties. However, in reaching our conclusion, we found the following factors particularly compelling: (1) the fact that there is scant West Virginia law regarding public official immunity; (2) Chase did not substantially change existing law, and simplified the law in some respects; and (3) the qualified immunity addressed in Chase is a creature of common law.
. See supra note 4 for the text of W. Va.Code § 61-12-10.
. The relevant portions of W. Va.Code § 61-12-8 (1963) (Repl.Vol.1997) state:
When any person shall die in this State from violence, or by apparent suicide, or suddenly when in apparent good health, or when unattended by a physician, or when an inmate of a public institution not hospitalized therein for organic disease, or from some disease which might constitute a threat to public health, or in any suspicious, unusual or unnatural manner, the medical examiner of the county in which such death occurs shall be immediately notified by the physician in attendance, by any law-enforcement officer having knowledge of*597 such death, or by the funeral director, or by any other person present.... Upon receipt of such notice, the medical examiner shall take charge of the dead body, make inquiries regarding the cause and manner of death, reduce his findings to writing, and promptly make a full report thereof to the chief medical examiner on forms prescribed for such purpose, retaining one copy of such report for his own office records, and that of the chief medical examiner and should deliver another copy thereof to the prosecuting attorney of such county, and to any attorney of record in any criminal proceedings or civil action wherein the cause of death is an issue.
. See supra note 5 for the text of W. Va.Code § 16-4B-1.
. See also Fraternal Order of Police, Lodge No. 69 v. City of Fairmont, 196 W.Va. 97, 101 n. 7, 468 S.E.2d 712, 716 n. 7 (1996) ("If an inquiring court concludes that an ambiguity exists in a contract, the ultimate resolution of it typically will turn on the parties' intent. Exploring the intent of the contracting parties often, but not always, involves marshaling facts extrinsic to the language of the contract document. When this need arises, these facts together with reasonable inferences extractable therefrom are superimposed on the ambiguous words to reveal the parties’ discerned intent.”); Syllabus, Henderson Dev. Co. v. United Fuel Gas Co., 121 W.Va. 284, 3 S.E.2d 217 (1939) ("The primary consideration in the construction of a contract is the intention of the parties. This intention must be gathered from an examination of the whole instrument, which should be so construed, if possible, as to give meaning to every word, phrase and clause and also render all its provisions consistent and harmonious.”).
. Because Sopher failed to articulate the specific stage of trial at which this error occurred, this Court is at liberty to consider any evidence contained in the record. The evidence upon which we base our decision, which was adduced through Mary Coleman’s trial testimony, could have been inferred by the trial court from the record as it existed at the time the court ruled on Sopher’s motion for summary judgement. We choose to utilize Mary Coleman’s trial testimony because it more clearly articulates the evidence and simplifies our discussion.
. If Elmer suffered from occupational pneumo-coniosis and it contributed to his death, Mary and her children may have been eligible for Workers' Compensation survivor’s benefits.
. Determination of the intent of parties to a contract typically creates a question of fact to be determined by a jury. However, because the evidence upon which we rely is uncontroverted, there is no question of fact.
. If Sopher’s report had indicated that removal of the heart was a procedure that was "necessary or proper” in furtherance of the post-mortem examination conducted to determine whether Elmer Coleman suffered from OP, he would have been acting within his authority under the “CONSENT TO AUTOPSY” to remove "organs and parts of said body for microscopic or other examination and analysis.”
. For a detailed discussion of the history and development of this quasi-property interest, see Louis J. Palmer, Jr., Capital Punishment: A Utilitarian Proposal for Recycling Transplantable Organs as Part of a Capital Felon's Death Sentence, 29 U. West L.A. L.Rev. 201 (1998).
. Apparently, the motion was made at a time when the proceedings were not being recorded.
. W. Va. R. Evid. 103(a) states:
(a) ... Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
(1) ... In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context[.]
. W. Va. R. Civ. P. 46 states:
Formal exceptions to rulings or orders of the court are unnecessary; but for all purposes for which an exception has heretofore been necessary it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court and his grounds therefor; and, if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice him.
. Sopher urges that, in the context of punitive damages, there must be clear cut and convincing evidence to support a jury instruction. In support of this contention, Sopher cites Michael v. Sabado, 192 W.Va. 585, 601, 453 S.E.2d 419, 435 (1994). The portion of Sabado referred to by Sopher contains the Court’s discussion of two cases cited by the appellant in that case. Justice Clecldey observed that “the evidence presented was clear cut. The plaintiffs in these two cases were able to convincingly prove definite misrepresentations by the respective defendants.” Justice Cleckley's observations about those two cases are dicta, and do not establish a new standard requiring clear and convincing evidence to support jury instructions on punitive damages.
. We also note that "punitive damages serve several purposes. Among the primary ones are: (1) to punish the defendant; (2) to deter others from pursuing a similar course; and, (3) to provide additional compensation for the egregious conduct to which the plaintiff has been subjected.” Harless v. First Nat. Bank in Fairmont, 169 W.Va. 673, 691, 289 S.E.2d 692, 702 (1982). Furthermore, " ‘[Punitive damages] encourage a plaintiff to bring an action where he might be discouraged by the cost of the action or by the inconvenience of a criminal proceeding.... [They also] provide a substitute for personal revenge by the wronged party.’ " Id. at 169 n. 17, 289 S.E.2d at 703 n. 17 (citations omitted).
. Sopher also contends that Judge Hatcher should not have reconsidered Judge Abbot's ruling on remittitur because the Colemans’ election to accept a new trial on damages should be binding. In support of this contention, Sopher relies on our holding in the previous appeal of this case. See Coleman v. Sopher, 194 W.Va. 90, 459 S.E.2d 367 (1995) [hereinafter Coleman 1 ].
We find that Sopher's reliance on our decision in Coleman 1 is misplaced. That decision addresses this Court's jurisdiction to review a lower court’s award of a new trial. In Syllabus point 4 of Coleman 1, we held:
When a party agrees to or requests a new trial, and a new trial is granted because of the agreement or request, a denial of appellate review is justified on the ground that the party has elected to accept the new trial and should be bound, as if the party had entered a settlement agreement to forego appeal of the order granting a new trial.
(Emphasis added). Justice Cleckley commented in this regard: "Allowing the plaintiffs to appeal this narrow issue would serve no useful purpose. Even if the plaintiffs are successful, the victory would merely get that to which they are already entitled — a new trial — to which both parties have already agreed.” Id. at 95, 459 S.E.2d at 372. Coleman 1 did not address the issue now before us, which is whether a successor judge may revisit an earlier ruling of his or her predecessor.
. Justice Cleckley qualified this holding in footnote 3 of Tennant v. Marion Health Care, which states, in part:
In deciding post-trial motions, we recognize one exception to the rule that a successor judge steps completely into his or her predecessor's shoes. When the issue is purely one of fact that was previously determined by the jury, the successor judge’s powers to alter or limit the verdict is [sic] limited. Therefore, when a successor judge alters or amends a factual determination under these circumstances, this Court is not required to give deference to the successor judge’s determination. Thompson v. Sawyer, 678 F.2d 257 (D.C.Cir. 1982).
194 W.Va. at 105 n. 3, 459 S.E.2d at 382 n. 3 (emphasis added). Here, the issue addressed by Judge Hatcher was not an issue that was previously determined by the jury. Consequently, we need not address this limitation to a successor judge’s authority.
. This general rule is not without limitation. See supra note 24.
We also note that while a successor judge has the authority to perform any act that the predecessor judge could have performed, whether or not the successor judge should exercise that authority is within his or her discretion. With respect to Rule 63, Justice Cleckley commented, in Tennant v. Marion Health Care: "Once chosen, a successor judge is given broad discretion in determining whether he or she properly can perform the remaining duties in a trial in which he or she did not preside.” 194 W.Va. at 104, 459 S.E.2d at 381.
. Similar to the case sub judice, in Gallimore v. Missouri Pacific R.R. Co., 635 F.2d 1165 (5th Cir.1981), the decision to reconsider the earlier grant of a new trial was made by a successor judge. In Gallimore, the United States Court of Appeals for the Fifth Circuit explained that, prior to the second trial before the district court, the case had been transferred to a different district judge. The court did not explain the reason for this transfer. The successor judge in Gallimore reconsidered an earlier order by his predecessor due to an intervening decision by the Court of Appeals, which clarified the resolution of the underlying issue involved.
. See generally 13B Michie’s Jurisprudence New Trials § 55 (1988) ("The typical situation in which [remittitur] is employed is where, on a motion by the defendant for a new trial, the verdict is considered excessive and the plaintiff is given an election to remit a portion of the amount of the verdict or submit to a new trial.” (footnote omitted)).
. The first portion of Syl. pt. 3, In re State Public Building Asbestos Litigation, 193 W.Va. 119, 454 S.E.2d 413 (1994), states:
A motion for a new trial is governed by a different standard than a motion for a directed verdict. When a trial judge vacates a jury verdict and awards a new trial pursuant to Rule 59 of the West Virginia Rules of Civil Procedure, the trial judge has the authority to weigh the evidence and consider the credibility of the witnesses.
A successor judge is not afforded the same authority to consider the credibility of witnesses as the judge who presided at trial. This issue arises where a successor judge enters a ruling that vacates a jury verdict. Under that circumstance, we may be called upon to consider whether the successor judge vacated the verdict as a matter of law, or whether such ruling required consideration of the credibility of witnesses. Because judge Hatcher reinstated the jury verdict upon finding no error at trial, we need not concern ourselves with this issue.
. We limit our discussion to compensatory damages as Sopher does not challenge the jury’s award of $50,000.00 in punitive damages, which was left undisturbed by the trial court.
. Sopher also argues that the compensatory damages award in this case is excessive in that it is based entirely on the plaintiffs' mental distress. He cites this Court’s decision in Bennett v. 3 C Coal Co., 180 W.Va. 665, 379 S.E.2d 388 (1989), to support this contention. In concluding that the verdict in Bennett was excessive and warranted a new trial on damages, we recognized that “the entire damage award was predicated on the plaintiff's mental distress.” Id. at 674, 379 S.E.2d at 397. However, our decision in Bennett was also influenced by the fact that plaintiff's counsel improperly "mentioned the amounts sued for in both his opening statement and closing argument.” Id. We found that the influence this disclosure had on the jury was evidenced by the fact that the jury award closely mirrored the amounts revealed by plaintiff's counsel. Id. So-pher has pointed to no such error in this case.