## Facts

- Dr. Serge Cormier performed a hysterectomy and salpingo-oophorectomy on Rita Mae Louk on June 13, 2000.
- After discharge, Louk became seriously ill and returned to the hospital on June 22, 2000 with fever and abdominal symptoms.
- Exploratory surgery revealed a perforation of the cecum.
- Louk sued for medical malpractice, alleging the perforation was negligently caused during the June 13 surgery; Cormier asserted the cecum ruptured spontaneously.
- At trial, the court instructed the jury (under W. Va. Code § 55-7B-6d (2001)) that a unanimous verdict was not required in a medical professional liability action.
- The jury returned a 10–2 verdict for Cormier; the circuit court denied Louk’s motion for a new trial challenging the statute’s constitutionality.

## Issues

1. Whether W. Va. Code § 55-7B-6d (2001), authorizing non-unanimous jury verdicts in medical professional liability actions, violates the West Virginia Constitution’s separation-of-powers and judicial rule-making provisions.
2. If § 55-7B-6d is unconstitutional, whether the MPLA’s non-severability clause requires invalidation of other provisions of the Act.
3. Whether the court may address the constitutional challenge on appeal when it was not fully preserved below, where it controls case disposition.

## Decision

- The Supreme Court of Appeals of West Virginia reversed the denial of a new trial and remanded.
- The court exercised discretion to decide the constitutional issue because it was controlling in the case’s resolution.
- The court held W. Va. Code § 55-7B-6d unconstitutional and unenforceable in its entirety because it regulated procedure reserved to the judiciary under the state constitution.
- The court held the MPLA’s non-severability clause creates only a rebuttable presumption of legislative intent and did not require striking the remaining provisions of the MPLA.
- Because the verdict was rendered under an unconstitutional non-unanimity rule, the judgment could not stand; the case had to be retried under the unanimous-verdict requirement.

## Legal Principles

- The Supreme Court of Appeals has exclusive constitutional authority to promulgate rules governing practice and procedure in West Virginia courts; legislative enactments that intrude into that domain violate separation of powers.
- A statute specifying the number of jurors needed to agree on a civil verdict is a procedural litigation rule, not a regulation of substantive rights and duties.
- A constitutional issue not properly preserved in the trial court may be decided on appeal, in the court’s discretion, when it is the controlling issue for resolving the case.
- A statutory non-severability clause is construed as a presumption of legislative intent, not an automatic command to invalidate an entire statutory scheme upon the invalidation of one provision.

## Conclusion

The court invalidated the MPLA provision permitting non-unanimous verdicts in medical malpractice trials as an unconstitutional legislative intrusion into judicial procedure, declined to invalidate the remainder of the MPLA based solely on the Act’s non-severability language, and ordered a new trial requiring a unanimous civil jury verdict.


Louk v. Cormier, 218 W. Va. 81, 622 S.E.2d 788 (W. Va. 2005)