Per Curiam:
Donna M. Richmond, appellant, plaintiff below (hereinafter referred to as “Ms.
Richmond”), appeals from an order entered by the Circuit Court of Raleigh County in her
medical malpractice action against Dr. Barry A. Levin, appellee, defendant below
(hereinafter referred to as “Dr. Levin”). By that order, the circuit court upheld a non-
unanimous jury verdict in favor of Dr. Levin, based upon the non-unanimous verdict
provision of the Medical Professional Liability Act (hereinafter referred to as the “MPLA”)
found at W. Va. Code § 55-7B-6d (2001) (Supp. 2004). In this appeal, Ms. Richmond
contends that she is entitled to a new trial pursuant to this Court's holding in Louk v.
Cormier, 218 W. Va. 81, 622 S.E.2d 788 (2005), which found the MPLA's non-unanimous
jury verdict provision to be unconstitutional. After a careful review of the briefs and the
record on appeal, and with consideration of the arguments of the parties, we reverse the order
of the circuit court and remand this case for further proceedings.
Syl. pt. 3, Louk. (See footnote 4) Ms. Richmond takes the position that Louk should be applied retroactively
to her case. (See footnote 5) On the other hand, Dr. Levin contends that Louk should not be applied
retroactively. In support of his argument, Dr. Levin contends that Ex Post Facto Clause due
process principles and the factors in Bradley v. Appalachian Power Co., 163 W. Va. 332, 256
S.E.2d 879 (1979) prohibit retroactive application of Louk. After briefly discussing Dr.
Levin's Ex Post Facto Clause argument, we will analyze Louk under the specific factors that
have been established to determine retroactivity.
In determining whether to extend full retroactivity, 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 statutory 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.
Syl. pt. 5, Bradley. Although “the analysis established by Bradley is not directly on point
since the question in the case before us does not involve overruling any prior authority,
portions of the analysis can be used to help us determine whether or not our holding [in Louk]
should apply [retroactively].” Kincaid v. Mangum, 189 W. Va. 404, 414, 432 S.E.2d 74, 84
(1993). We will now examine each of the factors outlined in Bradley.
1. Foreshadowing. Under the first Bradley factor this Court must assess the
nature of the substantive issue overruled. Under this factor, if the issue overruled involved
a traditionally settled area of law and was not clearly foreshadowed, then retroactivity may
not be justified.
It will be noted that Dr. Levin has failed to perform any meaningful analysis
involving any of the Bradley factors. Instead, Dr. Levin has simply addressed the first factor
in Bradley by stating that the decision in Louk was not “foreshadowed” and therefore should
not be applied retroactively. (See footnote 8) Foreshadowing under Bradley becomes a critical point of
analysis when this Court overrules a prior decision or imposes new requirements. The Louk decision did not overrule any prior case or impose new requirements. Rather, Louk found
unconstitutional a statute that attempted to impose new procedural jury requirements in
medical malpractice cases that were inconsistent with this Court's Rules of Civil Procedure.
Consequently, the foreshadowing element of Bradley, as articulated under the first factor,
must be examined in the context of foreshadowing the invalidation of a statute that was in
conflict with a rule promulgated under the rule-making authority of this Court.
We pointed out in Louk that “the prior decisions of this Court indicate that we
have historically invalidated statutes that conflicted with rules promulgated by this Court.” Louk, 218 W. Va. at ___, 622 S.E.2d at 795. See also Games-Neely ex rel. West Virginia
State Police v. Real Prop. , 211 W. Va. 236, 565 S.E.2d 358 (2002) (recognizing that Rule
60(b) of the Rules of Civil Procedure superseded statute that deprived a circuit court of
discretion to review a default judgment order); West Virginia Div. of Highways v. Butler, 205
W. Va. 146, 516 S.E.2d 769 (1999) (holding that the statutory requirement that an expert real
estate appraiser had to be licensed and certified was invalid because the Rules of Evidence
controlled the qualifications of such an expert); Teter v. Old Colony Co., 190 W. Va. 711,
441 S.E.2d 728 (1994) (same); Mayhorn v. Logan Med. Found. , 193 W. Va. 42, 454 S.E.2d
87 (1994) (invalidating statute addressing the competency of an expert because it conflicted
with the Rules of Evidence); Williams v. Cummings, 191 W. Va. 370, 445 S.E.2d 757 (1994)
(invalidating statute in conflict with Trial Court Rule XVII); State v. Davis, 178 W. Va. 87,
357 S.E.2d 769 (1987) (holding that Rules of Criminal Procedure superseded statute
requiring the indorsement of the grand jury foreman and attestation of the prosecutor on the
reverse side of the indictment), overruled on other grounds by State ex rel. R.L. v. Bedell,
192 W. Va. 435, 452 S.E.2d 893 (1994); Hechler v. Casey, 175 W. Va. 434, 333 S.E.2d 799
(1985) (noting that statute authorizing an award of costs in mandamus and prohibition cases
was superseded by the Rules of Appellate Procedure with regards to an award of costs to the
State in this Court); State ex rel. Quelch v. Daugherty, 172 W. Va. 422, 306 S.E.2d 233
(1983) (holding that the constitutional separation of powers prohibited the legislature from
regulating admission to practice and discipline of lawyers); Stern Bros., Inc. v. McClure, 160
W. Va. 567, 236 S.E.2d 222 (1977) (holding that the administrative rule promulgated by the
Court setting out a procedure for the temporary assignment of a circuit judge in the event of
a disqualification of a particular circuit judge superseded statutory provisions in conflict with
the rule); Laxton v. National Grange Mut. Ins. Co. , 150 W. Va. 598, 148 S.E.2d 725 (1966)
(holding that a statute requiring certain defenses be asserted affirmatively by a statement in
writing or under oath was invalid because it conflicted with Rules of Civil Procedure),
overruled on other grounds by
Smith v. Municipal Mut. Ins. Co. , 169 W. Va. 296, 289 S.E.2d
669 (1982); Montgomery v. Montgomery, 147 W. Va. 449, 128 S.E.2d 480 (1962) (holding
that the statutory bills of exception requirement for an appeal was abolished by the Rules of
Civil Procedure).
The prior decisions of this Court clearly establish that we have not permitted
the legislature to enact statutes that are inconsistent with and governed by rules promulgated
under our Rule-Making authority. Consequently, it should have been reasonably
foreshadowed that this Court would invalidate the jury requirements of W. Va. Code §
55-7B-6d, because those requirements conflicted with the Rules of Civil Procedure.
2. Procedural versus substantive ruling. Under the second factor of Bradley
we must assess whether Louk dealt with procedural law rather than substantive.
A decision
rendered by this Court which concerns procedural law rather than substantive law, ordinarily
will be accorded retroactivity. See State v. McCraine, 214 W. Va. 188, 205 n.21, 588 S.E.2d
177, 194 n.21 (2003) (“[O]ur decision regarding bifurcation is a procedural
requirement. . . . The application of our decision today, therefore, is limited to the retrial of
Appellant and to cases in litigation or on appeal during the pendency of this appeal[.]”); Dalton v. Doe, 208 W. Va. 319, 323, 540 S.E.2d 536, 540 (2001) (declining to apply new
decision retroactively because the “decision involved substantive rather than procedural
law.”). This Court recognized in Louk that “the provisions of W. Va. Code § 55-7B-6d are
procedural in nature[.]” Louk, 218 W. Va. at ___ n.13, 622 S.E.2d at 799 n.13.
Consequently, the decision in Louk finding W. Va. Code § 55-7B-6d unconstitutional
represented a ruling on procedural matters.
3. Impact of decision. Under the third Bradley factor we must assess whether Louk has a narrow impact and is likely to involve only a few parties. Dr. Levin has noted in
passing that applying Louk retroactively would revive all cases decided before the decision
was reached. We reject this contention. The issue of retroactivity in this case is narrowly
confined to cases pending in the circuit courts or on appeal to this Court when Louk was
decided. In fact, we are not aware of any prior “civil” decision of this Court that was made
retroactive to cases in which the appeal period had expired. It is only in the context of
criminal litigation that a new decision may be applied retroactive to cases in which the direct
appeal period has expired. This is so because criminal defendants can make collateral attacks
on final judgments through the writ of habeas corpus. See Syl. pt. 2, Jones v. Warden, West
Virginia Penitentiary, 161 W. Va. 168-69, 241 S.E.2d 914 (1978) (“The proscription against
unconstitutionally shifting the burden of proof in criminal trials from the state to the
defendant through the use of presumptions is fully retroactive and may be raised by collateral
attack against a final conviction.”).
Additionally, retroactive application of the Louk decision to cases pending at
the time of the Louk decision would effect only the limited class of litigants whose cases
were decided by a twelve person non-unanimous jury verdict under the MPLA. Retroactive
application of Louk in order to treat similarly situated parties the same is not outweighed by
the possibility of affecting a large number of parties because this issue applies only to a
limited class of litigants. This reasoning is consistent with our decision in Sitzes v. Anchor
Motor Freight, Inc., 169 W. Va. 698, 704, 289 S.E.2d 679, 683 (1982), where we said the
impact of applying Coffindaffer v. Coffindaffer, 161 W. Va. 557, 244 S.E.2d 338 (1978),
retroactively was not substantial as it would only effect a limited number of cases.
4. Departure from prior precedent. Under the fourth factor of Bradley, we
must determine whether Louk represented a clear departure from prior precedent and
involved substantial public issues. We have previously shown that the decision in Louk was
consistent with prior decisions of this Court invalidating statutes that were inconsistent with
our Rule-Making authority. Consequently, Louk was not a departure from prior decisions
by this Court.
Further, the decision in Louk did not involve substantial public issues. Louk addressed a narrow issue involving the number of jurors and jury unanimity in medical
malpractice cases. Application of Louk retroactively to pending cases would affect only a
limited class of litigants.
5. Departure from prior substantive law. Under the fifth Bradley factor we
must assess whether Louk departed from previous substantive law. As we previously noted,
the decision in Louk involved procedural law, not substantive law. Additionally, the decision
was not a radical departure from previous procedural law. Louk reaffirmed jury requirements
that were longstanding under our Rules of Civil Procedure. (See footnote 9)