Logan Regional Medical Center and Regina Bias v. A.J., as mother of S.A., and L.A. and M.A., individually as parents of S.A. and M.W.
CourtWest Virginia Supreme Court
Date FiledNovember 9, 2026
Docket24-413
StatusPublished
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Full Opinion
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2026 Term FILED
November 9, 2026
released at 3:00 p.m.
No. 24-413 C. CASEY FORBES, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
LOGAN REGIONAL MEDICAL CENTER and REGINA BIAS,
Defendants Below, Petitioners,
v.
A.J., as mother of S.A., and L.A. and M.A., individually and as parents of S.A. and
M.W.,
Plaintiffs Below, Respondents.
Appeal from the Circuit Court of Mingo County
The Honorable James Young
Civil Action No. 22-C-33
DISMISSED
Submitted: September 9, 2026
Filed: November 9, 2026
Robby J. Aliff, Esq. Guy R. Bucci, Esq.
Candice M. Harlow, Esq. Ashley N. Lynch, Esq.
Elena R. Coole, Esq. The Law Offices of Guy R. Bucci and
Jackson Kelly PLLC Ashley N. Lynch
Charleston, West Virginia Charleston, West Virginia
Counsel for Petitioners A.J. Ryan, Esq.
Ryan & Ryan
Williamson, West Virginia
Counsel for Respondent A.J.
Susan J. Van Zant, Esq.
Van Zant Law Offices
Williamson, West Virginia
Counsel for Respondents L.A. and M.A.
CHIEF JUSTICE BUNN delivered the Opinion of the Court.
JUSTICE TRUMP dissents and reserves the right to file a separate opinion.
SYLLABUS BY THE COURT
1. “Ordinarily the denial of a motion for failure to state a claim upon
which relief can be granted made pursuant to West Virginia Rules of Civil Procedure
12(b)(6) is interlocutory and is, therefore, not immediately appealable.” Syllabus Point 2,
State ex rel. Arrow Concrete Co. v. Hill, 194 W. Va. 239, 460 S.E.2d 54 (1995).
2. “A court of limited appellate jurisdiction is obliged to examine its
own power to hear a particular case. This Court’s jurisdictional authority is either endowed
by the West Virginia Constitution or conferred by the West Virginia Legislature. Therefore,
this Court has a responsibility sua sponte to examine the basis of its own jurisdiction.”
Syllabus Point 1, James M.B. v. Carolyn M., 193 W. Va. 289, 456 S.E.2d 16 (1995).
3. The Legislature’s grant of statutory immunity from liability is
insufficient to trigger application of the collateral order doctrine in the absence of some
accompanying substantial public interest demanding immediate review or specific
statutory language that the immunity afforded by the statute is an immunity from suit or a
right not to be tried.
i
BUNN, Chief Justice:
Petitioners Regina Bias and Logan Regional Medical Center seek
interlocutory review of the Circuit Court of Mingo County’s order denying their motion to
dismiss based on the “good faith” immunity provided by West Virginia Code § 49-2-810.
However, our precedent permitting interlocutory review of governmental immunities under
the collateral order doctrine does not extend to the statutory immunity under that provision.
Independent review under the collateral order doctrine of the immunity at issue
demonstrates that there is no substantial public interest at stake that would be lost if
Petitioners, like all other litigants, are made to wait for a final order before exercising their
right to appeal a judgment. Further, the statute itself provides no immunity from suit, a
right not to be tried, or an entitlement from the Legislature to immediately appeal an
adverse ruling. Accordingly, we are without appellate jurisdiction for lack of a final order
as required by West Virginia Code § 58-5-1 and, therefore, dismiss Petitioners’ appeal as
interlocutory.
I.
FACTUAL AND PROCEDURAL HISTORY
Respondent A.J., the mother of S.A., and Respondents L.A. and M.A., S.A.’s
father and stepmother, filed separate complaints in the Circuit Court of Mingo County
against Regina Bias and her employer, Logan Regional Medical Center based on claims
1
arising out of a sexual abuse evaluation of S.A.1 According to the complaints, A.J. had first
taken S.A. for a sexual abuse evaluation at a different medical facility. Though that facility
indicated its findings were “negative for sexual abuse” it nevertheless suggested a follow
up examination. The Department of Human Services (“DHS”) became involved and
instituted a protection plan. Through the course of the DHS’s involvement, Ms. Bias, a
certified pediatric sexual assault nurse examiner, then evaluated S.A. for signs of sexual
abuse. As alleged, the thrust of Respondents’ claims is that Ms. Bias conducted an exam
that deviated from appropriate standards of care and that she falsely reported positive
indications of sexual abuse to the DHS, including a false report of a sexually transmitted
disease. The complaints assert that the “false” report resulted in extended removal of S.A.
and a half-sibling, M.W. from the homes of Respondents and perpetuated the underlying
abuse and neglect proceedings. Respondents alleged that Petitioners financially benefited
from repeat examinations. The complaints further aver that Ms. Bias later provided another
false report, but ultimately “recanted” when testifying under oath about her examination.
Finally, the complaints allege that the circuit court dismissed the abuse and neglect
proceedings upon a finding that S.A. was not sexually abused.
1
Respondents filed and refiled multiple amended complaints. The cases were
consolidated for the purposes of discovery over A.J.’s objection, and the circuit court ruled
on the underlying immunity determination as it pertains to A.J.’s second amended
complaint filed May 9, 2024, and L.A. and M.A.’s refiled amended complaint dated
February 22, 2024. The facts recited in this opinion are taken from these amended
complaints.
2
Petitioners filed the underlying motion to dismiss both complaints for failure
to state a claim,2 contending that under West Virginia Code § 49-2-810, discussed below,
they enjoy immunity for actions taken pursuant to the Child Welfare Act because they were
“participating in good faith.” And, while the complaints alleged a medical debate over
whether the findings were consistent with abuse or had a less nefarious explanation,
Petitioners argued that the Respondents had not sufficiently alleged that Ms. Bias had acted
knowingly or in bad faith. More specifically, Petitioners cited that the complaints’
conclusory allegations failed to meet pleading standards sufficient to overcome the
statutory immunity afforded to them under West Virginia Code § 49-2-810 and likewise
failed to satisfy the requirements of Rule 9(b) of the West Virginia Rules of Civil Procedure
that fraud be pled with particularity.3
The circuit court denied the motion to dismiss, finding that Respondents had
alleged Ms. Bias had made false reports, and that the issue of immunity under West Virginia
Code § 49-2-810 was premature because whether Ms. Bias had acted in “good faith” was
a factual issue requiring discovery. The circuit court then invited Petitioners to raise the
issue again following discovery. Petitioners filed this interlocutory appeal to challenge the
2
Petitioners also sought dismissal on other bases, including improper venue,
discussed below.
3
Rule 9(b) of the West Virginia Rules of Civil Procedure provides, “In alleging
fraud or mistake, a party must state with particularity the circumstances constituting fraud
or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be
alleged generally.”
3
circuit court’s refusal to dismiss the complaints based on their assertion of statutory
immunity.
II.
STANDARD OF REVIEW
Petitioners’ appeal is interlocutory in nature because it arises from the denial
of a motion to dismiss and not a final order. “Ordinarily the denial of a motion for failure
to state a claim upon which relief can be granted made pursuant to West Virginia Rules of
Civil Procedure 12(b)(6) is interlocutory and is, therefore, not immediately appealable.”
Syl. Pt. 2, State ex rel. Arrow Concrete Co. v. Hill, 194 W. Va. 239, 460 S.E.2d 54 (1995).
Reaffirming our precedent, we recently emphasized that interlocutory orders are generally
not subject to this Court’s appellate jurisdiction because they run afoul of the rule of finality
that bridles it. See Hopkins v. Sutphin, 253 W. Va. 372, --, 931 S.E.2d 772, 778-79, 2026
WL 1506336 (2026) (“[A]ppropriate exercise of appellate jurisdiction is contingent upon
a final order[.]”); State v. Hensley, 253 W. Va. 235, --, 931 S.E.2d 635, 640-41 (2026) (“The
final judgment rule is of early vintage, having been called ‘an historic characteristic of . . .
appellate procedure.’”) (citation omitted). But there are recognized exceptions to the rule
of finality where exercise of appellate jurisdiction is nevertheless appropriate even in the
absence of a final order. This Court has explained that “[w]ith rare exception, the ‘finality
rule’ is mandatory and jurisdictional. Thus, to be appealable, an order must be final, . . .
must fall within a specific class of interlocutory orders which are made appealable by
statute or by the West Virginia Rules of Civil Procedure, or must fall within a
4
jurisprudential exception.” James M.B. v. Carolyn M., 193 W. Va. 289, 292-93, 456 S.E.2d
16, 19-20 (1995) (footnotes omitted).
“A court of limited appellate jurisdiction is obliged to examine its own power
to hear a particular case. This Court’s jurisdictional authority is either endowed by the West
Virginia Constitution or conferred by the West Virginia Legislature. Therefore, this Court
has a responsibility sua sponte to examine the basis of its own jurisdiction.” Syl. Pt. 1, id.
Accordingly, before we may consider the merits of this appeal, we are obligated to first
examine this threshold issue. This Court reviews our own appellate jurisdiction and the
exceptions to the rule of finality de novo: “[a]s jurisdictional issues are questions of law,
our review is de novo.” State ex rel. Universal Underwriters Ins. Co. v. Wilson, 239 W. Va.
338, 343, 801 S.E.2d 216, 221 (2017) (citing Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194
W. Va. 138, 459 S.E.2d 415 (1995) (“Where the issue on an appeal from the circuit court
is clearly a question of law or involving an interpretation of a statute, we apply a de novo
standard of review.”)).
III.
DISCUSSION
Petitioners contend that the order on appeal falls within the jurisprudential
exception of orders immediately appealable under the collateral order doctrine and thus our
review is an appropriate exercise of this Court’s appellate jurisdiction. See Adkins v.
5
Capehart, 202 W. Va. 460, 463, 504 S.E.2d 923, 926 (1998) (recognizing collateral order
doctrine as an exception to the rule of finality). We disagree that the collateral order
doctrine applies to permit interlocutory review of orders of this nature because there is no
substantial public policy at stake and the Legislature, in the plain language of West Virginia
Code § 49-2-810, has only provided Petitioners with a right not to be held liable, not
immunity from suit.
The collateral order doctrine was first professed in Cohen v. Beneficial
Industrial Loan Corp., 337 U.S. 541 (1949), where the Supreme Court of the United States
engaged with the federal jurisdiction-limiting finality rule, 28 U.S.C. § 1291, which
provides for appellate jurisdiction from “all final decisions of the district courts.” (emphasis
added). Reasoning that it had always afforded the statute a practical construction, the
Cohen Court recognized that, even in the absence of a final order, there is a “small class
[of decisions] which finally determine claims of right separable from, and collateral to,
rights asserted in the action, too important to be denied review and too independent of the
cause itself to require that appellate consideration be deferred until the whole case is
adjudicated.” Cohen, 337 U.S. at 546.
The Supreme Court has since refined the qualifying conditions for deploying
the doctrine into three: (1) it conclusively determines the disputed question; (2) it resolves
an important issue completely separate from the merits of the action; and (3) is effectively
unreviewable on appeal from a final judgment. Puerto Rico Aqueduct and Sewer Authority
6
v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993) (citing Coopers & Lybrand v. Livesay,
437 U.S. 463, 468 (1978)). And, it has emphasized that the doctrine is “narrow and
selective in its membership.” Will v. Hallock, 546 U.S. 345, 350 (2006). “The conditions
are ‘stringent’ . . . . Unless they are kept so, the underlying doctrine will overpower the
substantial finality interests § 1291 is meant to further[.]” Id. at 349-50 (internal citation
omitted).
Like § 1291, West Virginia Code § 58-5-1 limits this Court’s appellate
jurisdiction to final orders. West Virginia Code § 58-5-1, entitled “When appeal lies”
provides in pertinent part, “A party to a civil action may appeal . . . from a final judgment”.
. . . “[t]he defendant in a criminal action may appeal . . . from a final judgment.” In view
of our jurisdiction-limiting finality rule, we have also adopted this theory of immediate
review of certain interlocutory orders under the collateral order doctrine, permitting such
review only when the class of orders may be said to meet the same three-factor Cohen test
employed in the federal courts. James M.B., 193 W Va. at 293 n.4, 456 S.E.2d at 20 n.4;
Durm v. Heck’s, Inc., 184 W. Va. 562, 566 n.2, 401 S.E.2d 908, 912 n.2 (1991); Robinson
v. Pack, 223 W. Va. 828, 679 S.E.2d 660 (2009). We have similarly noted that the collateral
order doctrine’s “principal characteristic is its narrow application.” State ex rel. W. Va. Univ.
Hosp., Inc. v. Gaujot, 248 W. Va. 11, 17, 886 S.E.2d 346, 352 (2023).
Immunity determinations in the governmental context have traditionally
fallen under the collateral order doctrine, and Petitioners submit that immediate review is
7
justified under this theory. See Nixon v. Fitzgerald, 457 U.S. 731 (1982) (denial of absolute
immunity immediately appealable under collateral order doctrine); Mitchell v. Forsyth, 472
U.S. 511 (1996) (denial of qualified immunity immediately appealable under collateral
order doctrine). Indeed, this Court has recognized that the collateral order doctrine permits
us to immediately review both denials of motions to dismiss and denials of summary
judgment based on the State’s immunity. See, e.g., Syl. Pt. 1, W. Va. Bd. of Educ. v. Marple,
236 W. Va. 654, 783 S.E.2d 75 (2015) (“A circuit court’s denial of a motion to dismiss that
is predicated on qualified immunity is an interlocutory ruling which is subject to immediate
appeal under the ‘collateral order’ doctrine.”); Syl. Pt. 2, Robinson v. Pack, 233 W. Va. 828,
679 S.E.2d 660 (2009) (“A circuit court’s denial of summary judgment that is predicated
on qualified immunity is an interlocutory ruling which is subject to immediate appeal under
the ‘collateral order’ doctrine.”). This Court has also recognized that denial of statutory
immunity under the Governmental Tort Claims and Insurance Reform Act (Tort Claims
Act) is immediately appealable after applying the Cohen factors. Syl. Pt. 5, State ex rel.
Grant Cnty. Comm’n v. Nelson, 244 W. Va. 649, 856 S.E.2d 608 (2021) (“Under Rule 12
of the West Virginia Rules of Civil Procedure, a circuit court’s denial of a motion to dismiss
a complaint that is predicated on the statutory immunity conferred by the Governmental
Tort Claims and Insurance Reform Act is an interlocutory ruling that is subject to
immediate appeal under the ‘collateral order’ doctrine.”).
Petitioners suggest—or rather, assume—that because there is a statutory
“immunity” involved, that these precedents apply to their own claim of immunity and seek
8
direct, immediate appeal of the circuit court’s ruling. But Petitioners are neither the State
nor other government actor. They do not enjoy sovereign immunity, nor do they have
qualified immunity to protect their discretionary decisions. They claim statutory immunity,
but they are not a political subdivision with immunity conferred under the Tort Claims Act.
As explained more fully below, our precedent with respect to governmental immunity does
not extend the right to immediate appeal pursuant to the collateral order doctrine to this
class of interlocutory appeals. To the extent that the Court has previously utilized
governmental immunity precedent to permit immediate review of interlocutory orders
outside of those bounds and has done so without assessing the characteristics of the class
of orders at issue for reviewability under Cohen, we decline to mechanically apply of this
precedent to permit review of every defense that might be termed an “immunity.”
A. “Immunities” must be categorized for appropriate treatment both substantively
and under Cohen.
This Court has taken recent and significant steps to acknowledge that our
immunities jurisprudence “has not been a model of clarity.” Kent v. Sullivan, 249 W. Va.
747, 752 n.10, 901 S.E.2d 500, 505 n.10 (2024). In Kent, we observed that clarification
was necessary in the context of the three types of governmental immunities because
“[w]here . . . the analyses are conflated and the affected entities and individuals are not
properly categorized, legal chaos ensues.” Id. at 752, 901 S.E.2d at 505. Again, in Mercer
County Board of Education v. Shrewsbury, the Court recognized that immunities
jurisprudence had become imprecise insofar as the actor, the source and character of the
9
immunity, and the associated rights were often analyzed in the aggregate and thus applied
Kent’s simplified framework to provide the measured categorization a substantive
immunities analysis requires. 251 W. Va. 28, 32, 909 S.E.2d 63, 67 (2024) (“As far back as
2009, we acknowledged that ‘there remain[ed] a great deal of confusion as to sovereign
immunity, [and] qualified immunity.[]’ . . . Because that confusion continued and there
were instances in which analyses of immunity law were conflated, this Court issued the
Kent opinion to provide a ‘framework . . . which focuses on a method for determining
which type of immunity is applicable in a particular case[.]’”) (internal citation omitted).
In other words, in the past, the Court has used loose and broad language that
failed to identify the specific character of the immunity at issue, instead using a broader,
generic “immunities” label. In the same way, we have dropped Cohen’s thread when
reviewing immunities under the collateral order doctrine. Once seeing that immunities are
involved in an otherwise interlocutory appeal, we have simply presumed satisfaction of
Cohen’s requirements without adequately examining the source and character of the
immunity, and, more pointedly, have erroneously presumed that any type of immunity is
of the sort demanding the same immediate attention as that immunity claimed by
governmental bodies. Cited by the dissent as one such case establishing review of all
statutory immunities under the collateral order doctrine, Eldercare of Jackson Cnty., LLC
v. Lambert perhaps best demonstrates the robotic application we seek to correct going
forward. 250 W. Va. 291, 902 S.E.2d 840 (2024). There, the Court was asked to review the
circuit court’s refusal to dismiss a complaint premised on statutory immunity conferred by
10
the COVID-19 Jobs Protection Act, an order the Court recognized as interlocutory. Id. at
299, 902 S.E.2d at 848. Without assessing the character of the immunity conferred by the
statute actually at issue, the Court explained that, “an order denying a motion to dismiss
that is predicated on statutory immunity is immediately appealable under the ‘collateral
order’ doctrine[]” citing, “See Syl. Pt. 5, State ex rel. Grant Cnty. Comm’n v. Nelson, 244
W. Va. 649, 856 S.E.2d 608 (2021).” Eldercare, 250 W. Va. at 299, 902 S.E.2d at 848. But
Syllabus Point 5 of Grant County Commission did not apply the collateral order doctrine
to statutory immunities, writ large; it specifically limited its holding to the statutory
immunity conferred by the Tort Claims Act:
Under Rule 12 of the West Virginia Rules of Civil
Procedure, a circuit court’s denial of a motion to dismiss a
complaint that is predicated on the statutory immunity
conferred by the Governmental Tort Claims and Insurance
Reform Act is an interlocutory ruling that is subject to
immediate appeal under the “collateral order” doctrine.
(emphasis added).
The approach taken in Eldercare was not novel; as elicited in the dissent and
as we recognize now, the Court has, on various occasions, summarily relied on
governmental immunity precedent as a predicate to review non-governmental immunity
determinations on an interlocutory basis. But entertaining immediate review of the denial
of any statutory immunity under the auspices of our governmental immunity precedent
simply because it has been done before does nothing but perpetuate the imprecision that
we have just committed to correct in Kent and Shrewsbury.
11
We do not here revisit Eldercare or any other case where the Court has
summarily applied the collateral order doctrine to a statutory immunity, especially given
that those orders may be otherwise reviewable under Cohen independent from the
application of governmental immunity precedent. Here, we merely observe that not all
statutory immunities satisfy the requirements for interlocutory review under the collateral
order doctrine and the Court should evaluate the statute at issue under Cohen to give effect
to the Legislature’s intent consistent with statutory construction principles (i.e., whether
the immunity provided by the language of the statute demonstrates that the Legislature
intended to create an exception to the finality rule). Rote application of the collateral order
doctrine to permit immediate review of all “immunities”—governmental or otherwise—is
certainly the easier course to chart, and yet it runs contrary to the very foundations of the
collateral order doctrine and countenances this narrow exception to swallow the finality
rule. Accordingly, we find it prudent to exercise more vigilant discernment in determining
what immunities we anoint as “effectively unreviewable on appeal” by picking up Cohen’s
thread once more and examining the nature of the immunity claimed and associated
interests at stake before determining that its vindication justifies departure from the rule of
finality.
B. Cohen applies to permit immediate appeal of the denial of governmental
immunities because their status and the interests at stake afford those entities
immunity from suit.
As stated above, Cohen, as applied by this Court permits immediate review
of otherwise interlocutory orders that fit three criteria: (1) it conclusively determines the
12
disputed question; (2) it resolves an important issue completely separate from the merits of
the action; and (3) is effectively unreviewable on appeal from a final judgment.
While not discounting the need to conduct an appropriate analysis of the first
two factors, we find the third most deserving of our attention in the immunity context and
in this case, specifically. The third factor of Cohen contemplates why immediate review is
necessary based on the interests at stake if forced to wait for a direct appeal. Digital Equip.
Corp. v. Desktop Direct, Inc., 511 U.S. 863, 878-79 (1994) (“[T]he third Cohen question,
whether a right is ‘adequately vindicable’ or ‘effectively reviewable,’ simply cannot be
answered without a judgment about the value of the interests that would be lost through
rigorous application of a final judgment requirement.”). Because the collateral order
doctrine is derived from the common law, we start with this Court’s initial analysis of the
Cohen factors as applied to immunity determinations.
This Court, when applying the collateral order doctrine to the State’s
qualified immunity, has cited the “need for early resolution of immunity rulings” and
“‘agree[d] with the United States Supreme Court to the extent it has encouraged, if not
mandated, that claims of immunities, where ripe for disposition, should be summarily
decided before trial.’” Robinson, 223 W. Va. at 831, 679 S.E.2d at 663 (quoting Hutchison
v. Cty. of Huntington, 198 W. Va. 139, 147, 479 S.E.2d 649, 657 (1995)). Robinson
premised the need for early resolution of immunity determinations on Mitchell—a
conclusion there reached in view of governmental immunity. See Mitchell, 472 U.S. 511
13
(1985) (extending collateral order doctrine to permit review of qualified immunity).
Hutchison’s context, from which Robinson draws, makes this clear:
We premise the remarks that follow with the concern that the
need for early resolution in cases ripe for summary disposition
is particularly acute when the defense is in the nature of an
immunity. The United States Supreme Court has held that
orders denying substantial claims of qualified immunity should
be decided before trial, and these pretrial decisions are
immediately appealable under the collateral order doctrine. See
Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815,
86 L.Ed.2d 411 (1985) (“the entitlement is an immunity from
suit rather than a mere defense to liability; and like absolute
immunity, it is effectively lost if the case is erroneously
permitted to go to trial.”). We agree with the United States
Supreme Court to the extent it has encouraged, if not
mandated, that claims of immunities, where ripe for
disposition, should be summarily decided before trial.
Hutchison, 198 W. Va. at 148, 479 S.E.2d at 658 (emphasis in original) (footnote omitted).4
Consistent with this view that governmental immunities should be decided as early as
practicable, we again drew from Mitchell to explain that the third factor of Cohen in the
governmental immunity context is readily satisfied. In Robinson, the Court cited Mitchell
for the proposition that “[p]ostponing review of a ruling denying immunity to the post-trial
stage is fruitless, as the United States Supreme Court reasoned in Mitchell, because the
underlying objective in any immunity determination (absolute or qualified) is immunity
4
Hutchison was a direct appeal from a final order, and, accordingly, the Court had
no need to apply the collateral order doctrine there, outlining Mitchell only in “observation”
of the general state of governmental immunities being subject to early summary disposition
as exposition to its substantive immunities analysis. See Hutchison, 198 W. Va. at 147 n.9,
479 S.E.2d 657 n.9. Robinson then borrowed from Hutchison’s use of Mitchell to apply the
collateral order doctrine to permit immediate appeal of the denial of qualified immunity.
14
from suit.” Robinson, 223 W. Va. at 833, 679 S.E.2d at 665. Again relying on federal
qualified immunities law, the Court specifically contrasted an immunity from suit with an
immunity from liability and cited that the right to be free from suit is “inherent” to a
qualified immunity defense. Id. (citing Gray–Hopkins v. Prince George’s County, Md., 309
F.3d 224, 229 (4th Cir. 2002) (“Because qualified immunity is an immunity from having
to litigate, as contrasted with an immunity from liability, it is effectively lost if a case is
erroneously permitted to go to trial.”) (omitting internal citation) and Jenkins v. Medford,
119 F.3d 1156, 1159 (4th Cir. 1997) (observing that denial of qualified immunity defense
“subjects the [government] official to the burdens of pretrial matters” and opining that
“some of the rights inherent in a qualified immunity defense are [consequently] lost”)).
In turn, Robinson concluded that the third factor of Cohen—whether the
order is effectively unreviewable if made to wait for appeal—is satisfied for the denial of
governmental immunity because the nature of that immunity is not a mere defense to
liability, but an immunity from suit.5 In West Virginia State Police, Department of Military
Affairs and Public Safety v. J.H., citing United States Supreme Court precedent on
governmental immunities, the Court further explained the distinction as encompassing not
5
As discussed more generally above, later courts citing Robinson did not repeat the
parenthetical “(absolute or qualified),” a direct signal that the Court’s holding in Robinson
was limited to governmental immunity. Given the repeated citation without the
governmental qualifier attached, immunities outside the governmental context erroneously
appear to meet the Cohen factors, but the interests-at-stake analysis is not the same for all
immunities. We seek here to rectify that generalized “immunity” label.
15
only the right not to be tried, but the right to be free from discovery and participation in the
litigation:
As the United States Supreme Court has directed,
“qualified immunity is an immunity from suit rather than a
mere defense to liability[.]” Pearson v. Callahan, 555 U.S.
223, 231, 129 S. Ct. 808, 815, 172 L. Ed. 2d 565 (2009)
(internal citation and quotations omitted). Furthermore, “[o]ne
of the most salient benefits of qualified immunity is protection
from pretrial discovery, which is costly, time-consuming, and
intrusive[.]” Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir.
2012). See also Yoak v. Marshall Univ. Bd. of Governors, 223
W. Va. 55, 59, 672 S.E.2d 191, 195 (2008) (per curiam)
(discussing qualified immunity and commenting that “[w]e are
persuaded that ‘sparing the defendant from having to go
forward with an inquiry into the merits of the case’ includes the
burden of discovery. See Holland ex rel. Overdorff v.
Harrington, 268 F.3d 1179, 1185 (10th Cir. 2001)”).
244 W. Va. 720, 729, 856 S.E.2d 679, 688 (2021). It is the protection of those rights that
permits the State to immediately appeal under the collateral order doctrine even where the
circuit court has merely deferred its ruling on the governmental immunity pending
discovery. Id. at 729-31, 856 S.E.2d at 688-690 (finding deferral of decision on qualified
immunity immediately appealable under collateral order doctrine because objective of
qualified immunity is to save governmental agencies from burdens of suit).
Collectively, these cases inform us that—whatever expanded utility it was
given later—the initial application of the collateral order doctrine to immunities meets the
third factor of Cohen because and only because of the governmental status of the State.
That is, it is its status as the government and the immunity flowing therefrom that affords
it the right to be free from suit, and the right not to participate in the litigation at all—even
16
for purposes of conducting discovery. An order denying the State its immunity is effectively
unreviewable on appeal because those rights will be lost if the State is forced to wait for a
final order, and it is for that reason that the State’s immunity may be immediately reviewed
as exception to the rule of finality. See Hallock, 546 U.S. at 346 (“[T]o accept the
generalization that any order denying a claim of right to prevail without trial satisfies the
third condition [of Cohen] would leave § 1291’s final order requirement in tatters.”).
In contrast to common law qualified immunity for the State, statutory
immunity does not necessarily meet Cohen’s test simply by virtue of raising an “immunity”
defense. However, the Court has extended, through application of Cohen, an avenue of
immediate appeal of the denial of immunity for political subdivisions and their employees
under the Tort Claims Act. See Nelson, 244 W. Va. at 658, 856 S.E.2d at 617 (“This Court
has previously determined that the denial of a motion to dismiss based on qualified
immunity is immediately appealable. . . . However, we have not made this determination
with respect to statutory immunity [under the Tort Claims Act].”) (citation omitted). Nelson
similarly invoked Mitchell to view immunity under the Tort Claims Act as an immunity
from suit, and thus immediately appealable, but did so, again, on the basis that it implicated
an important governmental interest which issues manifest both in the context of State and
local governments, and which is effectively lost if made to wait for appeal. Id. at 659, 856
S.E.2d at 659 (reciting qualified immunity analysis from Robinson and finding the Tort
Claims Act presents “similar immunity determinations.”). The governmental immunity
genre thus encompasses the State, its political subdivisions, and their respective officials,
17
employees, and agents despite their discrete character and sources of immunity. See Kent,
249 W. Va. at 752, 901 S.E.2d at 505 (“In this regard, there are three sources of immunity
in our jurisprudence: constitutional or ‘sovereign’ immunity, common law ‘qualified
immunity,’ and statutory immunity as set forth in the [Governmental] Tort Claims Act.”)
(footnotes omitted); Hutchison, 198 W. Va. at 148, 479 S.E.2d at 658 (“Immunities under
West Virginia law are more than a defense to a suit in that they grant governmental bodies
and public officials the right not to be subject to the burden of trial at all.”).
C. Not all “immunity” is immunity from suit and must be distinguished from an
immunity from liability.
Petitioners here are not governmental bodies. Yet they claim a statutory
immunity imbued by the Legislature that grants them access to immediate review in
circumvention of the rule of finality. As in Nelson, it does not suffice to say that statutory
immunity of whatever sort is immediately appealable—Cohen’s narrow exception cannot
be so broadly interpreted if it is to maintain its gatekeeping integrity, and various cases
decided by the Supreme Court of the United States demonstrate that indiscriminate
application of the collateral order doctrine—a court construct—thwarts the restraints on
appellate jurisdiction as prescribed by the Legislature and the West Virginia Constitution.
Because immediate appeal is both limited in application and tempting for
litigants, the Supreme Court has observed that the third Cohen factor (correctability on
appeal) “admittedly raise[s] the lawyer’s temptation to generalize[,]” specifically where
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the claimant seeks immediate review based on a perceived right not to stand trial. Hallock,
546 U.S. at 350-51. The Court cautioned that “every right that could be enforced
appropriately by pretrial dismissal might loosely be described as conferring a ‘right not to
stand trial,’” and “[a] fully litigated case can no more be untried than the law’s proverbial
bell can be unrung, and almost every pretrial or trial order might be called ‘effectively
unreviewable’ in the sense that relief from error can never extend to rewriting history.”
Digit. Equip., 511 U.S. at 872-73. Application of the collateral order doctrine to permit
appellate review of every defense that might be characterized as a right not to stand trial or
to participate in the litigation at all is unworkable and undermines the purpose of the final
judgment rule. See U.S. ex rel. Fiorce, LLC v. Colorado Tech. Univ., Inc., 130 F.4th 811
(10th Cir. 2025) (quoting Digit. Equip., 511 U.S. at 872) (“‘if immediate appellate review
were available every such time [a litigant had to wait for final judgment to vindicate
valuable rights], Congress’s final decision rule would end up a pretty puny one.’”). That an
erroneous ruling “may burden litigants in ways that are only imperfectly reparable by
appellate reversal . . . . has never sufficed” and “courts . . . view claims of a ‘right not to be
tried’ with skepticism, if not a jaundiced eye.” Digit. Equip., 511 U.S. at 872-73.
In Digital Equipment and again in Hallock, the Supreme Court thus rejected
such a generalized approach to satisfying the third Cohen factor, explaining “only some
orders denying an asserted right to avoid the burdens of trial qualify, then, as orders that
cannot be reviewed ‘effectively’ after a conventional final judgment[.]” Hallock, 546 U.S.
at 351. It went on, “the cases have to be combed for some further characteristic that merits
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appealability under Cohen; and as Digital Equipment explained, that something further
boils down to ‘a judgment about the value of the interests that would be lost through
rigorous application of a final judgment requirement.’” Id. at 351-52 (quoting Digital
Equip., 511 U.S.