DAVIS, Chief Justice:
This action against several corporate entities who operate Heartland Nursing Home in Charleston, West Virginia (hereinafter collectively referred to as "MC Companies"),
On September 4, 2009, Dorothy Douglas (hereinafter "Ms. Douglas") was admitted to Heartland Nursing Home in Charleston, West Virginia. Although Ms. Douglas was eighty-seven years old at the time of her admission to Heartland Nursing Home, and she suffered from Alzheimer's dementia, Parkinson's Disease, and other health issues, she was, nevertheless, able to walk with the use of a walker, able to recognize and communicate with her family, well-nourished, and well-hydrated. After spending nineteen days in Heartland Nursing Home, Ms. Douglas had become dehydrated, malnourished, bed ridden, and barely responsive. In addition, she had fallen numerous times, sustained head trauma and bruises, and suffered from sores in her mouth and throat that required the scraping away of dead tissue and debris. Following her nineteen-day stay at Heartland Nursing Home, Ms. Douglas was transferred to another nursing facility, then to Cabell Huntington Hospital,
Evidence presented at trial demonstrated that Heartland Nursing Home had been chronically understaffed. There had been numerous complaints from residents and their families, as well as by Heartland Nursing Home employees. At least one employee who complained of understaffing was reprimanded for her complaint, and the complaint was apparently removed from Heartland Nursing Home records. Additionally, and notwithstanding attempts to conceal the understaffing, surveys by the West Virginia Department of Health and Human Services documented Heartland Nursing Home's understaffing and improper records pertaining to staff that occurred prior to Ms. Douglas'
Ms. Douglas' son, Tom Douglas, individually and on behalf of the estate of his mother (hereinafter "Mr. Douglas"), filed suit against various corporate entities related to Heartland: Manor Care, Inc.; HCR Manor Care Services, Inc.; Health Care and Retirement Corporation of America, LLC; and Heartland Employment Services, LLC. Manor Care, Inc., is a holding company that owns the stock of the other named businesses.
Mr. Douglas asserted causes of action including negligence under the MPLA,
MC Companies allege numerous errors in support of their appeal from the trial court's denial of their post-verdict motion for judgment as a matter of law. Specific standards of review for some issues are set out in connection with the particular issues to which they pertain. Generally, however, we are guided by the following principles: "The appellate standard of review for an order granting or denying a renewed motion for a judgment as a matter of law after trial pursuant to Rule 50(b) of the West Virginia Rules of Civil Procedure [1998] is de novo." Syl. pt. 1, Fredeking v. Tyler, 224 W.Va. 1, 680 S.E.2d 16 (2009). Moreover,
Syl. pt. 2, id. With respect to the circuit court's ruling on a motion for a new trial, our general standard of review is stated thusly:
Syl. pt. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000).
With appropriate consideration for these standards, we will address the issues herein raised.
MC Companies have raised numerous issues involving the verdict form, the application of the MPLA to this action, the application of the NHA to this case, whether the claim for breach of fiduciary duty is recognized in West Virginia, and the propriety of the punitive damages awarded. We address each of these issues in turn.
We address two errors asserted by MC Companies related to the verdict form: (1) that it deprived them of individual determinations of punitive damages and (2) that it enabled the jury to award damages to non-parties.
Williams v. Charleston Area Med. Ctr., Inc., 215 W.Va. 15, 19, 592 S.E.2d 794, 798 (2003) (quoting Adkins v. Foster, 195 W.Va. 566, 572, 466 S.E.2d 417, 423 (1995) (per curiam)).
Mr. Douglas responds that, while MC Companies did object that they were improperly grouped together for determining whether they would be subject to punitive
The facts pertinent to resolving this issue are that Mr. Douglas and MC Companies each submitted their proposed jury verdict form to the circuit court. During the jury charge conference, MC Companies objected to Mr. Douglas' proposed verdict form and requested that the form contain a question for each defendant asking whether the defendant's conduct was egregious enough to warrant punitive damages. However, MC Companies did not want separate lines upon which the jury could indicate the amount of punitive damages assessed for each defendant. Instead, MC Companies wanted only one line upon which the jury could insert one number representing the aggregate amount of punitive damages assessed against all of the defendants collectively.
The circuit court ruled that if the question of whether a defendant's conduct warranted punitive damages was to be set out separately as to each defendant, then a corresponding line upon which the jury could state the amount of punitive damages to be assessed against that defendant also was required. Because MC Companies did not want the jury to potentially enter a separate amount for punitive damages as to each individual defendant, they withdrew their request to have the jury make a specific determination of whether punitive damages were warranted for each defendant individually.
Accordingly, the circuit court adopted Mr. Douglas' verdict form that contained only one question asking the jury whether the MC Companies' collective conduct warranted an award of punitive damages and, in the event that the question was answered affirmatively, a second question allowing the jury to insert one figure representing the total amount of punitive damages to be awarded by the jury. Because MC Companies' withdrew their request to have the jury make a separate determination for each defendant as to whether punitive damages were warranted, the circuit court ultimately found this issue was waived when addressing the same in ruling upon MC Companies' post-trial motion for a directed verdict. We find no abuse of discretion in the circuit court's ruling.
This Court has recognized that "[w]hen there has been a knowing and intentional relinquishment or abandonment of a known right, there is no error and the inquiry as to the effect of a deviation from the rule of law need not be determined." Syl. pt. 8, in part, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). Accord Syl. pt. 4, in part, State v. Lightner, 205 W.Va. 657, 520 S.E.2d 654 (1999). Similarly, we have stated that "[g]enerally the failure to object constitutes a waiver of the right to raise the matter on appeal." State v. Asbury, 187 W.Va. 87, 91, 415 S.E.2d 891, 895 (1992) (per curiam). See also AIG Domestic Claims, Inc. v. Hess Oil Co., Inc., 232 W.Va. 145, 155, 751 S.E.2d 31, 41 (2013) ("While this Court admittedly does not approve of the trial court's arbitrary selection of a finite number of jury instructions, we do not further address the imposition of the instructional limitation due to the absence of an objection being raised by the insurance companies on this particular issue." (footnote omitted)); State v. White, 231 W.Va. 270, 280, 744 S.E.2d 668, 678 (2013) (per curiam) (concluding that petitioner's failure to object to jury charge constituted waiver).
Although MC Companies did initially object to the verdict form on the grounds that it did not require the jury to decide, separately, whether each defendant's conduct warranted punitive damages, they withdrew their objection after learning that the circuit court would require a corresponding line for each separate defendant upon which the jury could insert the amount of any punitive damage award granted against that particular defendant. Because MC Companies withdrew their objection, the circuit court correctly determined that the issue had been waived. In fact, by withdrawing their objection, it would appear that MC Companies invited error, which further precludes appellate review of the merits of this issue.
State v. Crabtree, 198 W.Va. 620, 627, 482 S.E.2d 605, 612 (1996). See also Syl. pt. 1, Maples v. West Virginia Dep't of Commerce, 197 W.Va. 318, 475 S.E.2d 410 (1996) ("A litigant may not silently acquiesce to an alleged error, or actively contribute to such error, and then raise that error as a reason for reversal on appeal."); In re Tiffany Marie S., 196 W.Va. 223, 233, 470 S.E.2d 177, 187 (1996) ("[W]e regularly turn a deaf ear to error that was invited by the complaining party." (citation omitted)); Shamblin v. Nationwide Mut. Ins. Co., 183 W.Va. 585, 599, 396 S.E.2d 766, 780 (1990) (finding "the appellant cannot benefit from the consequences of error it invited").
To conclude, we find the circuit did not abuse its discretion in finding that MC Companies waived the issue of whether the verdict form should have required the jury to separately assess whether each defendant's conduct warranted an award of punitive damages.
Mr. Douglas disagrees with MC Companies' assertion that awarding wrongful death proceeds directly to the wrongful death beneficiaries was legally wrong. Mr. Douglas submits that, while the personal representative of the deceased in a wrongful death suit must bring the suit, the personal representative is merely a nominal party and any recovery passes to the beneficiaries designated in the wrongful death statute and not to the decedent's estate.
Before conducting our analysis of this issue, we briefly review the relevant facts. After asking the jury to determine whether there was negligence on the part of MC Companies that caused the death of Ms. Douglas and to portion that negligence between ordinary negligence and medical negligence,
In denying MC Companies' motion for judgment as a matter of law, the circuit court found
The circuit court based its decision upon the language of W. Va.Code § 55-7-6 (1992) (Repl.Vol.2008). We agree and therefore find no error.
W.Va.Code § 55-7-6(a) states, in relevant part, that
In addition, the relevant portion of W. Va. Code § 55-7-6(b) states that "[i]n every such action for wrongful death, the jury ... may award such damages as to it may seem fair and just, and, may direct in what proportions the damages shall be distributed to the surviving ... children...." (Emphasis added).
In light of the foregoing language, this Court has observed that, "`[i]t cannot be questioned that a wrongful death action ... must be brought by the personal representative of a decedent's estate.'" Richardson v. Kennedy, 197 W.Va. 326, 332, 475 S.E.2d 418, 424 (1996) (quoting Trail v. Hawley, 163 W.Va. 626, 628, 259 S.E.2d 423, 425 (1979)). Nevertheless, we also have recognized that,
Richardson v. Kennedy, 197 W.Va. at 332, 475 S.E.2d at 424. See also Ellis v. Swisher ex rel. Swisher, 230 W.Va. 646, 650, 741 S.E.2d 871, 875 (2013) (per curiam) ("[W]rongful death recoveries have been determined to exist solely for the benefit of a decedent's beneficiaries."); Bradshaw v. Soulsby, 210 W.Va. 682, 687, 558 S.E.2d 681, 686 (2001) ("The essential, beneficial purpose of the wrongful death act is `to compensate the beneficiaries for the loss they have suffered as a result of the decedent's death.'"); Syl. pt. 4, in part, Thompson & Lively v. Mann, 65 W.Va. 648, 64 S.E. 920 (1909) ("Money recovered in an action by an administrator... for causing the death of his decedent by wrongful act, neglect, or default, does not constitute general assets of the estate of such decedent in the hands of the administrator to be administered.... Such money belongs to the particular persons who by law are entitled thereto." (emphasis added)).
This case was properly brought "by and in the name of [Ms. Douglas'] personal representative" as required by W. Va.Code § 55-7-6(b).
MC Companies argue that the trial court erred in failing to hold that the MPLA provided the exclusive remedy for the plaintiffs' claims against the defendants. They contend that the MPLA was designed by the Legislature to apply broadly and specifically to limit malpractice claims concerning nursing homes, and that the Legislature has recognized that the MPLA can achieve this purpose only if the statute completely occupies the field of malpractice claims. MC Companies assert that all of Mr. Douglas' claims fall within the broad definition of "medical professional liability" because they are all based upon "health care services" that were "rendered, or which should have been rendered." W. Va.Code § 55-7B-2(I) (2006) (Repl.Vol. 2008). See also W. Va.Code § 55-7B-2(e) (defining "Health care" as "any act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to or on behalf of a patient during the patient's medical care, treatment or confinement").
Mr. Douglas responds that causes of action for both ordinary negligence and medical malpractice can be asserted by a plaintiff, and the MPLA applies to only the portion of the compensatory verdict determined by the jury to arise out of health care services provided by a health care provider. Mr. Douglas asserts that he pled medical malpractice and corporate negligence and presented evidence on both theories. The jury then determined what percentage of negligence was related to health care services and what percentage was not. As to the non-medical corporate defendants, Mr. Douglas asserts that he alleged direct liability for the decisions they made that had a direct impact on the harm suffered by Ms. Douglas. Mr. Douglas insists that he did not proceed against any of the corporate defendants on the basis of vicarious liability. He submits that there was ample evidence presented at trial, and specific findings made by the trial court, as to how non-healthcare decisions, such as budgetary constraints, lack of staff, and poor management of the facility, affected all of the residents, including Ms. Douglas.
We begin our analysis with the recognition that the MPLA governs "medical professional liability"
Syl. pt. 3, Boggs, 216 W.Va. 656, 609 S.E.2d 917. The facts in Boggs were that Ms. Boggs, the plaintiff's decedent, entered the hospital for ankle surgery. Following the administration of a spinal anesthetic in preparation for the surgery, she suffered a cardiac arrest and died several days later. The administrator of her estate filed suit alleging that the anesthesiologist failed to adhere to the standard of care. Claims were also asserted against the anesthesiology group and hospital on theories of negligent hiring and retention, and vicarious liability. Finally,
Boggs, 216 W.Va. at 659, 609 S.E.2d at 920. In reaching the holding announced in Syllabus point 3 of the opinion, the Court reasoned that
Boggs, 216 W.Va. at 662-63, 609 S.E.2d at 923-24. Thus, Boggs stands for the proposition that some claims that may be brought against a health care provider simply do not involve health care services and, therefore, are not subject to the MPLA. This Court has not deviated from this conclusion.
Following Boggs, this Court decided Gray v. Mena, 218 W.Va. 564, 625 S.E.2d 326 (2005). In Gray, the Court expressed concern that certain language in the Boggs opinion might be misconstrued to mean that no intentional acts would fall within the MPLA. To foreclose such a misinterpretation of Boggs, the Gray Court held that
Syl. pt. 4, Gray, 218 W.Va. 564, 625 S.E.2d 326.
Riggs v. West Virginia Univ. Hosps., Inc., 221 W.Va. 646, 665-66, 656 S.E.2d 91, 110-11 (2007) (per curiam) (Davis, C.J., concurring).
We have cautioned, however, that the manner in which a claim is pled does not govern whether the MPLA ultimately will be
Syl. pt. 4, Blankenship v. Ethicon, Inc., 221 W.Va. 700, 656 S.E.2d 451 (2007). But see Riggs v. West Virginia Univ. Hosps., Inc., 221 W.Va. at 647-48, 656 S.E.2d at 92-93 (concluding that judicial estoppel prevented plaintiff who "pled, prosecuted and tried their claims against [the defendant hospital] as claims subject to the provisions of the MPLA" from changing "the theory of their case after the return of jury's verdict so as to avoid application of the MPLA's non-economic damages cap"). Rather, this Court has twice recognized that the decision of whether the MPLA applies to certain claims presents a fact-driven query. See Blankenship, 221 W.Va. at 706, 656 S.E.2d at 457 ("[T]he determination of whether the Medical Professional Liability Act, W. Va.Code § 55-7B-1 et seq., applies to certain claims is a fact-driven question[.]" (footnote omitted)); Gray v. Mena, 218 W.Va. at 570, 625 S.E.2d at 332 ("[W]here the allegedly offensive action was committed within the context of the rendering of medical services, the [MPLA] applies. Where, however, the action in question was outside the realm of the provision of medical services, the [MPLA] does not apply."). We have clarified, however, and we now expressly hold that, "while the applicability of the [Medical Professional Liability Act, W. Va. Code § 55-7B-1 et seq.,] is based upon the facts of a given case, the determination of whether a particular cause of action is governed by the [Act] is a legal question to be decided by the trial court." Blankenship, 221 W.Va. at 706 n. 12, 656 S.E.2d at 457 n. 12.
In the instant case, the circuit court implicitly found that some of Mr. Douglas' claims were governed by the MPLA while some were not. This determination by the circuit court is demonstrated by the court's adoption of a verdict form that allowed the jury to allocate its negligence award between ordinary negligence and medical negligence. Thus, this Court's task is to determine whether the circuit court's decision in this regard was correct. We find that it was.
Mr. Douglas asserted claims that are not related to medical professional liability. In other words, they are not claims "based on health care services rendered, or which should have been rendered, by a health care provider or health care facility to a patient." Syl. pt. 3, in part, Boggs, 216 W.Va. 656, 609 S.E.2d 917. In this regard, the plaintiffs alleged corporate negligence based upon the failure to allocate a proper budget to Heartland Nursing Home to allow it to function properly, including maintaining adequate numbers of staff to care for its residents. To support these allegations, Mr. Douglas presented the testimony of certified nursing assistants (CNAs)
Claims related to business decisions, such as proper budgeting and staffing, by entities that do not qualify as Health Care Providers under the MPLA simply do not fall within that statutory scheme. Therefore, the MPLA did not provide the exclusive remedy for Mr. Douglas' negligence claims.
MC Companies also assert that the circuit court erred in concluding that the NHA is not limited by the MPLA, because the MPLA applies to all causes of action based on health care services. Therefore, asserts MC Companies, the MPLA cap should have been applied to this claim.
Mr. Douglas contends that the MPLA and the NHA can coexist because they provide for different actions. In this regard, Mr. Douglas argues that the language of the NHA indicates that its purpose is to protect nursing home residents that are injured as a result of any deprivation of a right or benefit, and, while some of these rights or benefits may fall under the MPLA, others do not. He further asserts that nothing in the MPLA states that it controls to the exclusion of all other statutes that include claims other than medical malpractice claims. Thus, he reasons that certainly some actions that occur within a nursing home do not constitute "healthcare" as defined by the MPLA.
We need not reach this issue as framed by MC Companies because there is a more fundamental problem with the award of damages for the NHA claim. With respect to the NHA, the verdict form asked the jury the following questions:
(Italicized emphasis added). The jury answered "yes" to question number one, and awarded $1,500,000.00 in damages in question number two.
The fundamental problem with question one above is its use of the word injury with no indication of what is meant by that word in the context of the case sub judice. The trial of this case was exceedingly complex and multiple claims were asserted. In addition to this NHA claim, claims were asserted for ordinary negligence, medical negligence, and a purported claim for breach of fiduciary
Because of our inability to identify the nature and purpose for the NHA award, we similarly are unable to address, with any clarity, the issues raised in connection with the award. In fact, the verdict form and instructions are so lacking in lucidity, we find our only recourse is to dismiss Mr. Douglas' NHA claim. Accordingly, the portion of the compensatory damages attributed to that claim, which was $1.5 million, is hereby vacated.
The jury in this case awarded $5 million for harm to Ms. Douglas that resulted from MC Companies' breach of a fiduciary duty. MC Companies' post-verdict motion for judgment as a matter of law sought to have the circuit court reject this cause of action. In denying their motion, the circuit court opined that
On appeal, MC Companies contend that the circuit court erred by denying their post-verdict motion for judgment as a matter of law as to the claim for breach of fiduciary duty. MC Companies argue that there is no legal or evidentiary support for a breach of fiduciary duty claim under the facts of this
Mr. Douglas responds that one must look at the relationship to determine whether a fiduciary duty exists. Additionally, Mr. Douglas urges that sufficient evidence was presented to support the existence of a fiduciary duty and the defendants' breach of the same.
It is well established that
Napier v. Compton, 210 W.Va. 594, 598, 558 S.E.2d 593, 597 (per curiam) (2001). See also McKinley v. Lynch, 58 W.Va. 44, 57, 51 S.E. 4, 9 (1905) (observing that a fiduciary relationship exists "whenever a trust, continuous or temporary, is specially reposed in the skill or integrity of another"). Furthermore, this Court has explained that,
Elmore v. State Farm Mut. Auto. Ins. Co., 202 W.Va. 430, 436, 504 S.E.2d 893, 899 (1998).
This Court has not previously recognized a cause of action for breach of fiduciary duty against a nursing home. In other words, we have not ruled that a nursing home owes a fiduciary duty to its residents or what the parameters of such a duty would be. Based upon the particular facts of the instant matter, and the small number of jurisdictions who have expressly recognized such a cause of action,
Because we dismiss Mr. Douglas' claim for breach of fiduciary duty, the portion of the compensatory damages attributed to that
The jury returned a punitive damages verdict of $80 million, which, as noted above, was entered against all defendants collectively. This punitive damages award represents an approximately 7:1 ratio
MC Companies argue that the punitive damages award must be vacated because the trial court improperly allowed the jury to consider evidence of Manor Care, Inc.'s, wealth despite the absence of evidence warranting punitive damages against Manor Care, Inc.
Additionally, MC Companies argue that this Court should remit the punitive damages award because it is unconstitutionally excessive. In this regard, they first contend that the circuit court improperly considered the existence of insurance and acknowledged that this improper consideration "weigh[ed] heavily" in its determination that the punitive damages award was appropriate.
Mr. Douglas responds that the punitive damages award was clearly justified in this case because the evidence demonstrated that MC Companies' conduct was intentional and demonstrated actual malice and proximately caused the death of Ms. Douglas. The actual malice of MC Companies was demonstrated by the fact that the Heartland Nursing Home was constantly short-staffed, and, therefore, the basic needs of its residents could not be met. In this regard, Ms. Douglas' treating physician testified that she died as a result of dehydration. Further evidence demonstrated that MC Companies attempted to deceive state surveyors regarding their practice of short-staffing the facility. More importantly, according to Mr. Douglas, is the fact that there was ample evidence that MC Companies were aware of these problems yet did nothing to correct them. This knowledge came in the form of complaints from employees and a citation that had been issued to the facility, prior to Ms. Douglas' admission to Heartland Nursing Home, for failing to have adequate staff. Nevertheless, MC Companies failed to increase its staffing budget.
Next, Mr. Douglas argues that the circuit court did not improperly allow the jury to consider evidence of Manor Care, Inc.'s, wealth. He states that, contrary to MC Companies' assertions, the company's wealth was not a "centerpiece of their punitive damages case." Rather, Manor Care, Inc.'s wealth and tax returns were not mentioned until closing arguments.
Finally, Mr. Douglas argues that the punitive damages award was not excessive and does not require remittitur. Mr. Douglas asserts that MC Companies submitted various financial evidence to establish the punitive damage award would effectively wipe out the profit of over 500 of its nursing homes. Therefore, in awarding punitive damages, the trial court properly considered the fact that MC Companies had purchased $125 million in punitive damages liability coverage. Mr. Douglas further clarifies that the punitive damages award represents only a 7:1 ratio when compared to the actual compensatory damages awarded in this case. Such a ratio is acceptable in a case such as this where the trial court found MC Companies' conduct to be intentional, reprehensible, self-serving, and financially motivated. Mr. Douglas also contends that, in arguing that the punitive damages should be reduced, MC Companies failed to conduct a complete analysis of the applicable civil or criminal penalties that could be imposed. For example, they fail to consider the death of Ms. Douglas as a result of their conduct.
Syl. pt. 16, Peters v. Rivers Edge Mining, Inc., 224 W.Va. 160, 680 S.E.2d 791 (2009). Furthermore, in reviewing the punitive damages award, all evidence will be viewed in the light most favorable to Mr. Douglas as the prevailing party below:
Syl. pt. 8, Smith v. Cross, 223 W.Va. 422, 675 S.E.2d 898 (2009).
Guided by these standards, we will address the appropriateness of the punitive damages awarded to Mr. Douglas. At the outset, we note that, in recent years, this Court has refined the specific analysis to be applied in conducting our de novo review of a punitive damages award. Thus, we have held that
Syl. pt. 6, Perrine, 225 W.Va. 482, 694 S.E.2d 815. Accordingly, we first "evaluate whether the conduct of the defendant toward the plaintiff entitled the plaintiff to a punitive damage award under Mayer v. Frobe, 40 W.Va. 246, 22 S.E. 58 (1895), and its progeny." Perrine, 225 W.Va. 482, 694 S.E.2d 815.
In Mayer v. Frobe, this Court established the types of conduct that could form the basis for an award of punitive damages: "In actions of tort, where gross fraud, malice, oppression, or wanton, willful, or reckless conduct or criminal indifference to civil obligations affecting the rights of others appear, or where legislative enactment authorizes it, the jury may assess exemplary, punitive, or vindictive damages; these terms being synonymous." Syl. pt. 4, Mayer, 40 W.Va. 246, 22 S.E. 58. See also Syl. pt. 4, Harless v. First Nat'l Bank in Fairmont, 169 W.Va. 673, 289 S.E.2d 692 (1982) ("`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 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).").
The circuit court concluded that the foregoing standard was met in this case and related the relevant evidence against the defendants collectively
(Footnote omitted).
We agree with the circuit court's conclusion. The evidence presented at trial was sufficient to establish that Heartland Nursing Home was chronically understaffed to the point that it was not able to provide even a life sustaining amount of water to Ms. Douglas during the nineteen days she resided in that facility. Moreover, by virtue of complaints from staff, residents, and their families, and surveys conducted by the State of West Virginia, MC Companies were made aware of the understaffing problem at Heartland Nursing Home in the months preceding Ms. Douglas' admittance to the facility.
Syl. pt. 7, Perrine, 225 W.Va. at 553, 694 S.E.2d at 886. Following this holding, we first review the aggravating evidence to ascertain whether the punitive damage award was justified.
In Garnes, this Court indicated that the reprehensibility consideration
Syl. pt. 3, in part, Garnes, 186 W.Va. 656, 413 S.E.2d 897. We agree with the circuit court that MC Companies' conduct was reprehensible.
The circuit court was persuaded by Devon Revels, a former human resource director at Heartland Nursing Home, who testified that she repeatedly requested authority to hire more agency employees, but her requests were refused. Ms. Revels opined that having agency nursing staff working at the nursing home for approximately one month when a group of new employees was going through orientation would prevent the new employees from becoming overwhelmed by the short-staffing at the facility and would enhance her ability to retain new employees. She indicated that new employees often resigned before completing their orientation due to the short staffing of the facility.
Relevant to the goal that a punitive damages award should remove the profit gained from wrongful conduct, the circuit court rejected MC Companies' argument that the award would "`effectively wipe[] out' the profit of over 500 HCR Manor Care nursing homes ... and ... may bankrupt ... and destroy the Defendants...." The circuit court reasoned that
(Emphasis added).
We find no error with the circuit court's conclusion that the large punitive damages award in this case is necessary to remove the profitability of MC Companies' wrongful conduct. MC Companies was able to achieve a higher profit by having fewer employees to pay. This profit was achieved at the expense of the residents who were not properly cared for. As a direct result of MC Companies' failure to provide adequate staff, the neglect suffered by Ms. Douglas was so severe she was unable to survive it. In addition, we reject MC Companies' argument that the existence of punitive damages insurance coverage was an improper consideration for the trial court in assessing the propriety of the punitive damages award. The existence of punitive damages insurance coverage is relevant to several of the factors used to evaluate a punitive damages award. Not only does it impact whether the punitive damages remove the profit achieved from the wrongful conduct, but it also bears a relation to the wealth of the defendant and the deterrent effect of the punitive damages award insofar as it reduces the financial burden on the defendant to pay the award.
We agree with the circuit court's conclusions and find no error in the reliance on Manor Care, Inc.'s, wealth in assessing the propriety of the punitive damages award. Because MC Companies sought to be grouped together with only one line upon which the jury could place the punitive damages award, it was appropriate for the jury to consider the wealth of all of the defendants. Insofar as MC Companies is a multi-billion dollar entity with $125 million in punitive damages insurance coverage, the approximately $32 million dollar punitive damages award is justified.
Perrine, 225 W.Va. at 556, 694 S.E.2d at 889. In its discussion of this factor, the circuit court stated:
We agree with the circuit court that the amount of the punitive damages awarded in this case is likely to encourage MC Companies and other similar large corporations to resolve similar disputes through settlement rather than litigation when, as in this case, a clear wrong has been committed.
The circuit court found that
We agree with the circuit court that the high cost of this litigation to Mr. Douglas supports the amount of punitive damages awarded in this case.
Because each of the aggravating factors supports the punitive damages award, we next engage in a ratio determination under TXO Production Corp. v. Alliance Resources Corp., 187 W.Va. 457, 419 S.E.2d 870 (1992).
In TXO, this Court explained that "[a]lthough there is no mechanical mathematical formula to use in all punitive damages cases, we think it appropriate here to offer some broad, general guidelines concerning whether punitive damages bear a reasonable relationship to actual damages." TXO, 187 W.Va. at 474, 419 S.E.2d at 887 (emphasis added).
Syl. pt. 15, TXO, 187 W.Va. 457, 419 S.E.2d 870 (emphasis added). Similarly, the United States Supreme Court has commented that
Campbell, 538 U.S. at 425, 123 S.Ct. at 1524, 155 L.Ed.2d 585 (internal quotations and citation omitted).
Notably, the 5:1 ratio mentioned in Syllabus pont 15 of TXO, as well as the ratio statements by the United States Supreme Court, do not represent strict standards. Instead, they merely provide a guide.
Seltzer v. Morton, 336 Mont. 225, 294-95, 154 P.3d 561, 610-11 (2007) (emphasis added) (footnotes omitted). Even the Campbell Court's observation that "[s]ingle-digit multipliers are more likely to comport with due process, while still achieving the State's deterrence and retribution goals," does not proclaim an iron clad rule. Campbell, 538 U.S. at 410, 123 S.Ct. at 1516, 155 L.Ed.2d 585. Indeed, although the Supreme Court suggested in Campbell that a ratio at or near 1:1 may be appropriate in that instance, on remand the Supreme Court of Utah ultimately granted an award with a ratio of approximately 9:1. See Campbell v. State Farm Mut. Auto. Ins. Co., 98 P.3d 409, 413 (Utah 2004) (awarding punitive damages of $9,018,780.75 and compensatory damages of $1 million), cert. denied, 543 U.S. 874, 125 S.Ct. 114, 160 L.Ed.2d 123 (2004).
While the foregoing cases are not factually comparable to the instant matter, they nevertheless serve as instructive examples of cases wherein courts have found high ratios to be justified and within constitutional limits — even ratios as high as 152:1 or 526:1! While a large compensatory award, such as the one in this case, may typically be expected to result in a ratio closer to the range of 1:1, this is not always the case. See, e.g., Aleo v. SLB Toys USA, Inc., 466 Mass. 398, 995 N.E.2d 740 (2013) (affirming punitive damages award with 6.8:1 ratio, $2.6 million in compensatory damages and $18 million in punitive damages, in action alleging negligence, breach of implied warranty, and wrongful death arising from woman's death from injuries sustained trying to use inflatable swimming pool slide); Horizon/CMS Healthcare Corp. v. Auld, 43 Tex.Sup.Ct.J. 1151, 34 S.W.3d 887 (2000) (affirming punitive damages award with 6.15:1 ratio, $1.54 million in compensatory damages and $9.48 million in punitive damages, in case involving claims of negligence and gross negligence, not resulting in death, against a nursing home).
What may be gleaned from the forgoing cases is that punitive to compensatory damages ratios must be examined on a case-by-case basis. See, e.g., Ewing v. California, 538 U.S. 11, 34, 123 S.Ct. 1179, 1192, 155 L.Ed.2d 108 (2003) (commenting that "the Due Process Clause directs judges to employ proportionality review in assessing the constitutionality of punitive damages awards on a case-by-case basis"); Campbell, 538 U.S. at 425, 123 S.Ct. at 1524, 155 L.Ed.2d 585 ("The precise award in any case, of course, must be based upon the facts and circumstances of the defendant's conduct and the harm to the plaintiff."); TXO, 509 U.S. at 458, 113 S.Ct. at 2720, 125 L.Ed.2d 366 ("`We need not, and indeed we cannot, draw a mathematical bright line between the constitutionally acceptable and the constitutionally unacceptable that would fit every case.'" (quoting Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 18, 111 S.Ct. 1032, 1043, 113 L.Ed.2d 1 (1991))); Peters v. Rivers Edge Mining, Inc., 224 W.Va. 160, 194, 680 S.E.2d 791, 825 ("`[T]he precise award in any case ... must be based upon the facts and circumstances of the defendant's conduct and the harm to the plaintiff.'" (quoting Campbell, 538 U.S. at 425, 123 S.Ct. at 1524, 155 L.Ed.2d 585)).
As the Ninth Circuit has aptly stated: "[W]e emphasize that where the constitutional limit lies with respect to punitive damages will vary from case to case. Determining that limit is an art, not a science; no mathematical formula controls; no single asymptote defines the limit for all cases." Southern Union Co. v. Irvin, 563 F.3d 788, 792 (9th Cir.2009). See also Payne v. Jones, 711 F.3d 85, 102 (2d Cir.2013) (observing that the United State Supreme Court in BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996), "repeatedly stressed the impossibility of making any bright-line test as the propriety of the ratio can vary enormously with the particular facts of the case").
A ratio that may be unconstitutionally large in one case may be reasonable in another. In this regard, we stated in TXO that
187 W.Va. at 476, 419 S.E.2d at 889.
Thus, in determining the propriety of the ratio in the instant case, we must consider the particular facts involved, and we will view those facts in the context of the purpose of punitive damages:
Coleman v. Sopher, 201 W.Va. 588, 603 n. 22, 499 S.E.2d 592, 607 n. 22 (1997) (quoting Harless v. First Nat'l Bank in Fairmont, 169 W.Va. 673, 691 n. 17, 289 S.E.2d 692 & accompanying text, 169 W.Va. 673, 289 S.E.2d 692, 702 n. 17 & accompanying text (1982)). See also Exxon Shipping Co. v. Baker, 554 U.S. 471, 492, 128 S.Ct. 2605, 2621, 171 L.Ed.2d 570 (2008) ("[T]he consensus today is that punitives are aimed not at compensation but principally at retribution and deterring harmful conduct."); BMW of No. Am., Inc. v. Gore, 517 U.S. 559, 568, 116 S.Ct. 1589, 1595, 134 L.Ed.2d 809 (1996) ("Punitive damages may properly be imposed to further a State's legitimate interests in punishing unlawful conduct and deterring its repetition.").
We find that, under the unique circumstances presented herein, the punitive damages award of approximately $32 million, which amounts to about a 7:1 ratio when compared to the amount of compensatory damages we have allowed in this opinion, is justified and does not violate due process. In the face of numerous complaints of understaffing made by residents of Heartland Nursing Home, their families, and employees of Heartland, as well as negative results of surveys performed by the State of West Virginia, MC Companies refused to authorize the use of additional employees to ensure a staff sufficient to meet even the basic life-sustaining needs of its residents, who are
Exxon Shipping Co. v. Baker, 554 U.S. at 493-94, 128 S.Ct. at 2621-22, 171 L.Ed.2d 570. Instead of properly addressing the chronic understaffing of Heartland Nursing Home, MC Companies attempted to conceal the same by creating the appearance of adequate staff during times when the facility was being inspected, and by allowing its posted staffing data to incorrectly reflect higher levels of staff than were actually working.
Perrine, 225 W.Va. at 558, 694 S.E.2d at 891. The circuit court found that none of these factors warranted reducing the punitive damages award in this case. We agree.
Addressing the first factor, the reasonableness of the relationship between punitive and compensatory damages, the circuit court found that the single digit punitive damages multiplier, which approximates 7:1, bears a reasonable relationship to the compensatory damages. Although the compensatory damages award in this case is high, we find the punitive damages are nevertheless reasonable in this instance. MC Companies' conduct caused Ms. Douglas to endure a lingering death from dehydration as a consequence
In addressing the second factor, whether punitive damages bear a reasonable relationship to the harm of the defendants' conduct, the circuit court found that
As to the third, fourth, and fifth factors, the circuit court made the following findings: MC Companies presented evidence to the circuit court that it spent approximately $1.1 million to defend this matter; no criminal sanctions have been imposed on MC Companies; and MC Companies failed to establish that they have been the defendant in any other civil actions arising from the same conduct. Likewise the circuit court found no relevant mitigating information that was not available to the jury and no additional relevant evidence.
We already have reduced the punitive damages award from $80 million to approximately $32 million. Based upon our review of the forgoing mitigating factors, we find no grounds to warrant any further reduction.
In Perrine, we explained that
225 W.Va. at 560, 694 S.E.2d at 893 (quoting Allsup's Convenience Stores, Inc. v. North River Ins. Co., 127 N.M. 1, 6, 976 P.2d 1, 6 (1998)). We also made clear that, "[w]hen a court grants a remittitur, the plaintiff must be given the option of either accepting the reduction in the verdict or electing a new trial." Syl. pt. 9, Perrine, 225 W.Va. 482, 694 S.E.2d 815. Accordingly, we reverse the punitive damages award and remand with instructions to the circuit court to give Mr. Douglas a period of thirty days from the date the mandate for this opinion is issued to advise the circuit court whether he will accept remittitur in the amount of $48,021,478.07, which would reduce the punitive damages award to $31,978,521.93, or submit to a new trial on punitive damages only. See Syl. pt. 3, in part, Gebhardt v. Smith, 187 W.Va. 515, 420 S.E.2d 275 (1992) (per curiam) ("`Rule 59(a), [West Virginia Rules of Civil Procedure], provides that a new trial may be granted to any of the parties on all or part of the issues, and in a case where the question of liability has been resolved in favor of the plaintiff leaving only the issue of damages, the verdict of the jury may be set aside and a new trial granted on the single issue of damages.' Syl. pt. 4, Richmond v. Campbell, 148 W.Va. 595, 136 S.E.2d 877 (1964).").
For the reasons explained in the body of this opinion, the April 10, 2013, order of the circuit court of Kanawha County denying the defendant's motion for judgment as a matter of law, a new trial, or remittitur is affirmed as to its rulings that MC Companies waived the issue of whether the verdict form disregarded the distinct corporate forms of the defendants, that the verdict form did not allow the jury to award damages to non-parties, and that the MPLA did not provide the exclusive remedy for the asserted negligence claims. The order is reversed based upon our finding that the NHA portion of the verdict form was fatally vague; the NHA claim is dismissed, and the accompanying $1.5 million award is vacated. In addition, the circuit court's order is reversed insofar as it recognized a breach of fiduciary duty claim against a nursing home. The breach of fiduciary duty claim is, therefore, dismissed, and the accompanying $5 million award also is vacated. Finally, we reverse the punitive damages award and remand with instructions to the circuit court to give Mr. Douglas a period of thirty days from the date the mandate for this opinion is issued to advise the circuit court whether he will accept remittitur in the amount of $48,021,478.07, which would reduce the punitive damages award to $31,978,521.93, or submit to a new trial on punitive damages only.
Affirmed, in part; Reversed, in part; and Remanded.
Justice KETCHUM deeming himself disqualified, did not participate in the decision of this case.
ALAN D. MOATS, Judge, sitting by temporary assignment.
Justice BENJAMIN concurs in part and dissents in part and reserves the right to file a separate opinion.
Justice WORKMAN concurs and reserves the right to file a concurring opinion.
Justice LOUGHRY dissents and reserves the right to file a dissenting opinion.
BENJAMIN, Justice, concurring, in part, and dissenting, in part:
I concur with the majority's decision to affirm the circuit court's rulings finding that the defendants below ("petitioners") waived the issue of whether the verdict form disregarded the distinct corporate forms of the petitioners, whether the verdict form improperly failed to permit the jury to award damages to non-parties, and whether the MPLA necessarily provides the exclusive remedy for all of the asserted negligence claims herein. I also concur with the majority's decision with respect to the dismissal of the plaintiffs breach of fiduciary duty claim and NHA
Our jurisprudence requires that [w]hen this Court, or a trial court, reviews an award of punitive damages, the court must first evaluate whether the conduct of the defendant toward the plaintiff entitled the plaintiff to a punitive damage award under Mayer v. Frobe, 40 W.Va. 246, 22 S.E. 58 (1895), and its progeny. If a punitive damage award was justified, the court must then examine the amount of the award pursuant to the aggravating and mitigating criteria set out in Garnes v. Fleming Landfill, Inc., 186 W.Va. 656, 413 S.E.2d 897 (1991), and the compensatory/punitive damage ratio established in TXO Production Corp. v. Alliance Resources Corp., 187 W.Va. 457, 419 S.E.2d 870 (1992).
Syl. pt. 6, Penine v. E.I. du Pont de Nemours and Co., 225 W.Va. 482, 694 S.E.2d 815 (2010). Pursuant to Syllabus point 4 of Mayer v. Frobe, [i]n actions of tort, where gross fraud, malice, oppression, or wanton, willful, or reckless conduct or criminal indifference to civil obligations affecting the rights of others appear, or where legislative enactment authorizes it, the jury may assess exemplary, punitive, or vindictive damages; these terms being synonymous. 40 W.Va. 246, 22 S.E. 58. (Emphasis added). Accord Syl. pt. 4, Alkire v. First Nat'l Bank of Parsons, 197 W.Va. 122, 475 S.E .2d 122 (1996). See also W. Va.Code § 16-5C-15(c) (the NHA authorizes punitive damages for conduct that is "willful or in reckless disregard of the lawful rights of the resident").
As referenced by my colleagues, despite the distressing evidence of wrongdoing herein, the confused verdict form is woefully inadequate to serve as a proper legal basis for
this Court to sustain the extraordinary damages awarded herein. Pertaining to the issue of liability for which the majority allows a recovery of damages, the verdict form specifically asked the jury to make a finding as to whether there was simple "negligence" on the part of the petitioners that substantially contributed to the death of Dorothy Douglas. Upon such finding, the verdict form requested that the jury distinguish what percentage of the petitioners' conduct was "medical negligence" as compared to ordinary, "non-medical negligence." The jury was then asked to ascertain the damages necessary to compensate for such "ordinary negligence." Nowhere in the verdict form is the jury asked to make a finding of whether the petitioners' conduct also constituted "gross fraud, malice, oppression, or wanton, willful, or reckless conduct or criminal indifference" to plaintiffs below. Mayer, supra. The verdict form simply proceeds to ask the jury whether, based upon "the circumstances of the case," it found by a preponderance of the evidence that punitive damages were warranted against the petitioners. As to a specific finding of conduct sufficient to justify the awarding of punitive damages, the verdict form is silent.
As a general rule, a trial court has considerable discretion in determining what verdict form to use. Franklin D. Cleckley, Robin J. Davis, Louis J. Palmer, Jr., Litigation Handbook on West Virginia Rules of Civil Procedure, § 49 (2002). As the majority points out, this Court has previously declined to find an abuse of discretion on the part of the trial court for failing to duplicate the language used in a jury instruction on an essential element of a claim on the verdict form, where, when viewed in the context of controlling law, the verdict form and the jury charge adequately informed the jury of the issues before it. See Perrine v. E.I. du Pont de Nemours and Co., 225 W.Va. 482, 694 S.E.2d 815. ("In this Court's view, the criterion for determining whether the discretion is abused is whether the verdict form, together
However, there are three noteworthy exceptions to this general rule. Franklin D. Cleckley, Robin J. Davis, Louis J. Palmer, Jr., Litigation Handbook on West Virginia Rules of Civil Procedure, § 49 (2002) (citing Barefoot v. Sundale Nursing Home, 193 W.Va. 475, 457 S.E.2d 152 (1995)). The first is where the verdict forms are compelled by statute. Id. (citation omitted). The second is in cases involving multiple causes of action. Id. The third exception involves punitive damage cases. Id. (Emphasis added) (citing Barefoot v. Sundale Nursing Home, 193 W.Va. 475, 457 S.E.2d 152 (1995)). The majority opinion erroneously neglects to give effect to this third exception.
In this case, absent any actual finding by the jury that the petitioners committed an act of "gross fraud, malice, oppression, or wanton, willful, or reckless conduct or criminal indifference," we are left with a vague verdict form wherein the only express findings made by the jury in this case were that the petitioners committed acts of simple "negligence." In dismissing the respondent's NHA claim, the majority aptly notes similar inadequacies contained in the verdict form in relation to the jury's inability to apportion the compensatory damages under the NHA between health-care related and non-healthcare related claims. However, after finding that this inadequate verdict form fails to support an award for compensatory damages
under the NHA, the majority then changes course and affirms the jury's award of punitive damages, ignoring the insufficient language used in the verdict form for assessing punitive damages, implying that these inadequacies are somehow "rescued" by virtue of the fact that, among the myriad of jury instructions it received, the jury was instructed on the Mayer elements. Where the jury was given instructions on both compensatory damages and punitive damages, it is a fatal inconsistency of logic in the majority opinion for this Court to negate some of the awards of compensatory damages based upon an inadequate verdict form, but not also to negate the award of punitive damages based upon the same inadequate verdict form. I cannot countenance an opinion which simply picks and chooses when to rescue an inadequate verdict form and when not to.
Accordingly, it is my opinion that it was improper for the circuit court to allow a verdict form containing a punitive damages multiplier on a verdict in which the jury only made findings of simple negligence on the part of the petitioners. For these reasons, I would reverse the circuit court's finding on this issue and accordingly vacate the jury's award for punitive damages.
WORKMAN, Justice, concurring:
I concur in the result reached by the majority and more specifically, I agree with its analysis of the assignments of error regarding the verdict form, the non-exclusivity of the Medical Professional Liability Act (hereinafter "MPLA") to the facts of this case, the non-viability of a breach of fiduciary duty claim herein, and its analysis of the punitive damages. I write separately, however, to express my staunch disagreement with the
An overview of the jury's verdict and the respective claims is necessary to a full understanding of how misguided the majority's analysis is. Respondent asserted the following claims which were submitted to the jury: medical negligence, non-medical negligence, violation of the Nursing Home Act, and breach of fiduciary duty. In his First Amended Complaint, respondent made allegations of inadequate medical care and non-medical allegations which fall into three categories of inadequate budgeting, staffing, and reporting. The allegations contained in the complaint and the evidence adduced at trial as to the non-medical portions of respondent's case, i.e. "ordinary" negligence, violation of the NHA, and breach of fiduciary duty, was for all intents and purposes identical and centered around the inadequate budgeting and staffing at the Heartland Nursing Home.
The jury returned a verdict in favor of respondent on the following claims and awarded separately designated general damages for each cause of action: 1) Nursing Home Act violation in the amount of $1.5 million; 2) breach of fiduciary duty in the amount of $5 million; and 3) negligence in the amount of $5 million, which it apportioned as constituting 80% non-medical or "ordinary" negligence and 20% medical negligence.
The majority concludes that respondent alleged both non-medical and medical negligence and, as a result, correctly rejects petitioners' argument that the entirety of respondent's case involves "health care services" which are governed exclusively by the MPLA. The majority correctly notes that "[c]laims related to business decisions, such as proper budgeting and staffing, by entities that do not qualify as Health Care Providers under the MPLA simply do not fall within that statutory scheme." Majority op. 763 S.E.2d at 91.
The majority then proceeds to the NHA claim. Citing "confusion" with the wording of the verdict form, the majority simply throws out $1.5 million in damages awarded by the jury without so much as a single citation to legal authority permitting it to do so. The majority notes the complexity of the case, the "vague[ness]" of the jury instructions and verdict form, and its "inability to identify the nature and purpose for the NHA award" before vacating the award. The majority undertakes no analysis of the NHA, the evidence presented in support of that claim, or the type of damages recoverable for violation of the NHA. Even the most cursory analysis of the claims alleged and evidence presented would have quickly revealed that the evidence presented in support of both the medical and non-medical negligence claims it upheld was the same as that which formed the basis of the NHA award. More to the point, it would have revealed that the measure
It is this inescapable fact — that the conduct underlying all of the various causes of action alleged in this particular case is the same and such conduct gave rise to a singular, personal injury culminating in the wrongful death of Dorothy Douglas
Syllabus Point 7 of Harless v. First Nat'l Bank in Fairmont, 169 W.Va. 673, 289 S.E.2d 692 (1982) states:
(emphasis added). See also Sewell v. Gregory, 179 W.Va. 585, 588 n. 4, 371 S.E.2d 82, 85 n. 4 (1988) ("The Appellants, of course, would not be entitled to recover twice for the same damages, but may assert available alternate theories of liability"); Wiggins v. Eastern Associated Coal Corp., 178 W.Va. 63, 66, 357 S.E.2d 745, 748 (1987) ("The appellant could not have been granted any additional relief under the parallel West Virginia statute because `[d]ouble recovery of damages is not permitted; the law does not permit a double satisfaction for a single injury.'" (citing Syl. Pt. 7, in part, Harless)); Flannery v. United States, 171 W.Va. 27, 297 S.E.2d 433 (1982); Board of Educ. of McDowell County v. Zando, Martin & Milstead, Inc., 182 W.Va. 597, 390 S.E.2d 796 (1990) (same). Accordingly, the common law is clear that duplicative damages are not permitted irrespective of the number of theories or claims advanced. Respondent, however, urges that the Legislature plainly intended to allow for such by stating that the penalties and remedies in West Virginia Code § 16-5C-15(d) "shall be cumulative and in addition to all other penalties and remedies provided by law."
With regard to the Legislature's efforts to alter the common law, we have stated:
Syl. Pt. 3, Seagraves v. Legg, 147 W.Va. 331, 127 S.E.2d 605 (1962). With regard to such alteration: "`The common law is not to be construed as altered or changed by statute, unless legislative intent to do so be plainly manifested.' Shifflette v. Lilly, 130 W.Va. 297, [43 S.E.2d 289 (1947)]." Syl. Pt. 4, Seagraves v. Legg, 147 W.Va. 331, 127 S.E.2d 605 (1962) (emphasis added). Further, "[i]f the Legislature intends to alter or supersede the common law, it must do so clearly and without equivocation." State ex rel. Van Nguyen v. Berger, 199 W.Va. 71, 75, 483 S.E.2d 71, 75 (1996) (emphasis added); see
With regard to our interpretation of statutes which purport to alter the common law, this Court has stated:
Phillips v. Larry's Drive-In Pharmacy, Inc., 220 W.Va. 484, 491-92, 647 S.E.2d 920, 927-28 (2007) (emphasis added).
Rather than permitting a blind acceptance of the "literal import" of these terms, as urged by respondent, the foregoing requires this Court to construe the "cumulative and... in addition to" language in a manner which does the least violence to the common law. There can be no question that West Virginia Code § 16-5C-15(d) is utterly silent as to whether this language intends to abrogate the common law prohibition on duplicative damages. To that extent, our caselaw would dictate that we simply cannot construe the language of West Virginia Code 16-5C-15(d) as permitting duplicative damages because the Legislature did not plainly manifest its intent to do so.
Fortunately, we need only examine the usage of this language elsewhere in our Code to understand its meaning, demonstrating that it does not purport to alter the common law at all. The Legislature has, in many other instances, indicated that a right or remedy is "cumulative and in addition to" other remedies provided at law — these statutes run the gamut from causes of action for abandoned wells to bondholder suits.
(emphasis added). Perhaps more plainly stated, West Virginia Code § 13-2A-15 (1937) provides, in part:
(emphasis added).
As demonstrated by its frequent usage in our own Code, this particular statutory language is not unique. In fact, other states having statutes utilizing this exact language have rejected respondent's argument that the "cumulative and ... in addition to" statutory language permits recovery of duplicative damages:
49 Prospect Street Tenants Ass'n v. Sheva Gardens, Inc., 227 N.J.Super. 449, 547 A.2d 1134, 1149 (N.J.Super.Ct.App.1988). The Massachusetts Supreme Court found similarly:
McGrath v. Mishara, 386 Mass. 74, 434 N.E.2d 1215, 1222 (1982); see also Calimlim
Abraham v. County of Hennepin, 639 N.W.2d 342, 346-47 (Minn.2002) (emphasis added); see also Pitman v. Lightfoot, 937 S.W.2d 496, 534 (Tex.Ct.App.1996) ("[J]ury findings on multiple theories of recovery [do not] automatically support duplicate awards of actual damages. As we have already noted, although a party may assert any and all causes of action it may have against another, it is limited to only one recovery of damages"); Hopkins v. Pennsylvania Power & Light Co., 112 F.Supp. 136, 137 (E.D.Pa.1953) ("The action under the Wrongful Death State of 1855 and the action under the Survival Act of 1937 are separate and distinct actions whose remedies are cumulative and not alternative, it being, however, `important that the two actions, the one under the death acts and the other under the survival statute, should not overlap or result in a duplication of damages and thereby compel the tort feasor to pay more than the maximum damage caused by his negligent act.'" (citing Pezzulli v. D'Ambrosia, 344 Pa. 643, 26 A.2d 659, 661 (1942))).
As such, despite the fact that I cannot subscribe to the majority's summary dismissal of the $1.5 million NHA award because of its "confusion" about the matter, I believe it is plain that such award must be vacated because it is duplicative of the other damages awarded in this case.
LOUGHRY, Justice, dissenting:
I am not surprised that the majority attempts to hide its shockingly result-oriented analysis in a seventy-two page tome. Unfortunately for the majority, the fractured vote of this Court casts a glaring spotlight on the startlingly misguided reasoning employed throughout. Justice Sandra Day O'Connor wrote that "[i]ndeed, the point of ... the law in general-is to allow citizens to order their behavior. A State can have no legitimate interest in deliberately making the law so arbitrary that citizens will be unable to avoid punishment based solely upon bias or whim." Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991) (O'Connor, J., dissenting). Without question, the biases and whims of the majority are on full display in its boldly tortured analysis. When the majority so plainly usurps the discretion afforded to West Virginia juries, substituting its own policy judgments for theirs, how can any citizen be confident that their fate rests in a jury of their peers rather than three members of this Court? Furthermore, when this Court disregards not only the United States Supreme Court's long-standing punitive damages jurisprudence, but its own precedent, how can any entity doing business in West Virginia be expected to "order [its] behavior"?
In this case, the majority recognizes that the trial court permitted improper claims to be presented to the jury but rather than remanding for a new trial, simply reduces the jury's verdict according to its own perceptions of what the verdict should have been without any legal basis for its conclusions. The majority goes so far as to vacate an entire $1.5 million in damages simply because it claims not to understand the "nature and purpose" of the award. Further, the majority upholds the 7:1 punitive to compensable damages ratio, concluding that it is constitutionally permissible, despite the substantial due process deprivation its excessiveness represents. Because the verdict form submitted to the jury contained non-viable causes of action, lacked any sense of clarity or order permitting review, and because the punitive damages award clearly fell outside of what has been recognized as acceptable by this Court, as well as the United States Supreme Court, I would have reversed the decision of the circuit court and remanded for a new trial. Accordingly, I dissent.
The underlying circumstances in this case are undeniably tragic. Given that this case was tried to a jury, which unquestionably found liability for Ms. Douglas's death rested with the defendants, I will not rehash the evidence and second-guess its conclusion. I have the utmost respect for the jury's deliberations
Although I agree with the majority's conclusion that the $5 million award for breach of fiduciary duty was erroneous inasmuch as such a cause of action does not lie in this case and that the $1.5 million award for violation of the Nursing Home Act ("NHA") was error,
And, yet, the problems with this verdict form do not end there. The verdict form obfuscated a critical element of damages and permitted the jury to make a direct award to wrongful death beneficiaries. Although the respondents claim that the damages awards for breach of fiduciary duty and violation of the NHA represented McDavid
In short, the verdict form in this matter was an inscrutable mess. The only way to correct this error is to remand for a new trial on damages. Contrary to the majority's disposition, this Court has previously remanded cases where the verdict was occasioned by a verdict form and instructions that were confusing and inconsistent. In a case cited by the majority — Lively v. Rufus, 207 W.Va. 436, 445, 533 S.E.2d 662, 671 (2000) — we reversed and remanded for similar reasons, stating that:
See also Hall v. Ashley, 607 F.2d 789, 791 (8th Cir.1979) (remanding for new trial based on fact that "[a]lthough it appears the jury found a constitutional wrong, the ... overall form of the verdict is inconsistent and confusing and makes it difficult to determine what the jury actually intended."); Potter v. American Bean & Grain Corp., 388 N.W.2d 22, 25 (Minn.Ct.App.1986) ("Based on all this potential for jury confusion, this court determines that a manifest injustice would be done if buyer were denied a new trial."); Conger v. Queen City Food & Vending, Inc., 591 S.W.2d 161, 165 (Mo.Ct.App.1979) (ordering new trial where verdict form was "confusing, misleading and erroneous").
For the majority to arbitrarily hew away chunks of the damages that were improperly tied to these erroneous legal theories in the first instance constitutes a gross mishandling of this verdict. At this point, given the number and quality of legal errors that permeate this verdict form, the majority is engaging in absolute guesswork as to a legally appropriate verdict, without having heard an ounce of evidence. It is not for this Court to sit as a super-jury and reductively carve damage awards in the process of attempting to whittle away legal error. Legal errors should have been addressed, resolved, and this case remanded for a new trial on damages under proper instruction of law as to legally supportable theories of recovery, thereby permitting a jury to make a proper award of damages free from uncertainty.
In stark contrast to the presumptuous substitution of its own judgment regarding the appropriate amount of compensatory damages,
Syl. Pt. 15, TXO Production Corp. v. Alliance Resources Corp., 187 W.Va. 457, 419 S.E.2d 870 (1992) (emphasis added). Further, in Vandevender v. Sheetz, Inc., 200 W.Va. 591, 599, 490 S.E.2d 678, 686 (1997), this Court clarified that exceeding the 5:1 ratio established in TXO was appropriate only when a defendant was shown to have "intentionally or malevolently committed acts they knew to be harmful." More specifically, the Vandevender Court stated that
Id. at 604, 490 S.E.2d at 691 (emphasis added) (citations omitted). The majority has failed to identify even an iota of evidence suggesting that the petitioners' corporate policy-makers possessed a "mean-spirited, evil intent" to cause Mrs. Douglas's death or acted with "malevolence." Id.
In the instant case, the majority has ignored its own admonition first established in TXO that a 5:1 ratio, at most, is appropriate only when the "compensatory damages are [not] ... very large[.]" This refusal to acknowledge the substantial nature of the compensatory damages award is particularly egregious in light of the United States Supreme Court's similar directives regarding the constitutionally permissive ratio of punitive damage awards. In State Farm Mutual Automobile Insurance Company v. Campbell, 538 U.S. 408, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003), the Supreme Court admonished: "While States possess discretion over the imposition of punitive damages, it is well established that there are procedural and substantive constitutional limitations on these awards. The Due Process Clause of the Fourteenth Amendment prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeasor." Id. at 416, 123 S.Ct. 1513. (citations omitted). In that regard, the State Farm Court stated that "[w]hen compensatory damages are substantial, then a lesser ratio, perhaps only equal to compensatory damages, can reach the outermost limit of the due process guarantee." Id. at 425, 123 S.Ct. 1513 (emphasis added). As such, it is clear that the United States Supreme Court has sanctioned, at most, a 1:1 ratio for cases where the compensatory damages are substantial. Quite tellingly, the Supreme Court characterized the $1 million compensatory award in State Farm — a mere one-fifth of the reduced compensatory damages in the case at bar — as "substantial compensatory damages."
The Supreme Court more recently reaffirmed the 1:1 ratio and engaged in a particularly instructive discussion of the national landscape on punitive damages in Exxon Shipping Co. v. Baker, 554 U.S. 471, 128 S.Ct. 2605, 171 L.Ed.2d 570 (2008).
It bears noting that State Farm was decided ten years after this Court proclaimed 5:1 the outer limit ratio for non-intentional or malicious conduct. Not only has this Court failed to recognize its duty to revisit this ratio in light of State Farm's reduced 1:1 benchmark, but in the instant case it has opted to blithely enlarge the ratio to 7:1. Unlike the majority, most other courts have heeded this admonition and appropriately reduced punitive damage awards to a 1:1 ratio where compensatory damages were deemed "substantial," although the cases frequently involved sums far less than the $5 million compensatory award at issue here. See Jones v. United Parcel Serv., Inc., 674 F.3d 1187, 1207 (10th Cir.2012), cert. denied, ___ U.S. ___, 133 S.Ct. 413, 184 L.Ed.2d 151 (2012) (reducing punitive damages from slightly over 3:1 punitive-to-actual damages ratio to 1:1 ratio in part because plaintiff's actual damages of $630,307 were substantial); Jurinko v. Medical Protective Co., 305 Fed. Appx. 13, 30 (3rd Cir.2008) (reducing 13.1:1 ratio to 1:1 in part because of "substantial compensatory award"); Bridgeport Music, Inc. v. Justin Combs Pub., 507 F.3d 470, 490 (6th Cir.2007) ("Given the large compensatory damages award of $366,939 ... a ratio of closer to 1:1 or 2:1 is all that due process can tolerate in this case."); Bach v. First Union Nat. Bank, 486 F.3d 150, 156-57 (6th Cir. 2007) (finding that where plaintiff had recovered $400,000 in compensatory damages, a 1:1 ratio of compensatory to punitive damages was "the outer boundary of what the Constitution will permit"); Boerner v. Brown & Williamson Tobacco Co., 394 F.3d 594, 603 (8th Cir.2005) (holding that "substantial compensatory damages award" of over $4 million entered against tobacco company required punitive damages to be reduced to ratio of approximately 1:1); Williams v. ConAgra
A watchful judicial eye over punitive verdicts is important. Judicial review of punitive awards is simply required by the concept of fundamental fairness — fairness which even the most reprehensible defendant is guaranteed by both the West Virginia and United States Constitutions. The Supreme Court has unequivocally held that the courts have a duty to normalize punitive awards because of "[t]he implication of unfairness that an eccentrically high punitive verdict carries in a system whose commonly held notion of law rests on a sense of fairness in dealing with one another." Exxon Shipping, 554 U.S. at 502, 128 S.Ct. 2605. The Exxon Shipping Court further explained the necessity of "promoting systemic consistency" with regard to punitive awards:
Id. at 502-03, 128 S.Ct. 2605 (citations omitted). "Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?" The Federalist No. 62 (James Madison).
Justice Brandeis stated that "[e]xperience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent.... The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding." Olmstead v. U.S., 277 U.S. 438, 479, 48 S.Ct. 564, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting). While the majority has reached its disposition under the guise of protecting our most vulnerable citizens, it nonetheless upholds a fatally flawed verdict that has been corrupted by substantial legal errors. By presumptuously reducing that corrupted verdict to reflect its own judgment, I submit that the majority has proceeded down a misguided path littered with the vestiges of our legal system. For these reasons, I respectfully dissent.
W. Va.Code § 55-7B-2(g).
Gray v. Mena, 218 W.Va. 564, 568, 625 S.E.2d 326, 330 (2005) (footnote omitted). Ultimately the Court concluded that, "under the particular circumstances of this case, dismissal appears to be a disproportionately harsh sanction," particularly in light of the newness of the MPLA at that time. Gray, 218 W.Va. at 570, 625 S.E.2d at 332. Accordingly, the Court remanded for reinstatement of the action and to allow the defendants to request compliance with the MPLA.
[t]he facts in the instant case demonstrate that at the time Ms. Riggs was having knee surgery, WVUH exposed all of its patients, and possibly anyone entering the hospital, to the potential of contracting a serratia bacterial infection. The potential for contracting a serratia bacterial infection was not the reason Ms. Riggs was admitted to the hospital. Ms. Riggs sought medical treatment for her right knee. The duty breached by WVUH was not that of failing to properly treat Ms. Riggs' knee. WVUH breached a general duty it owed to all patients and nonpatients to maintain a safe environment. See Padney v. MetroHealth Med. Ctr., 145 Ohio App.3d 759, 764 N.E.2d 492 (2001) (allowing estate of deceased hospital worker to bring common law tort actions against hospital on theory that hospital failed to employ adequate controls to prevent transmission of tuberculosis to its employees). Breach of the duty by a hospital to maintain a safe environment, which breach causes injury to a patient or nonpatient, simply does not fall under the MPLA.
Riggs v. West Virginia Univ. Hosps., Inc., 221 W.Va. 646, 666, 656 S.E.2d 91, 111 (2007) (per curiam) (Davis, C.J., concurring).
Under the wrongful death act, W. Va.Code, 55-7-6 [1992], a jury's verdict may include damages for the decedent's pain and suffering endured between the time of injuiy and the time of death, where the injury resulted in death but the decedent did not institute an action for personal injury prior to his or her death. To award damages for pain and suffering, there must be evidence of conscious pain and suffering of the decedent prior to death. Where death is instantaneous, or where there is no evidence that the decedent consciously perceived pain and suffering, no damages for pain and suffering are allowed.
Campbell v. State Farm Mut. Auto. Ins. Co., 98 P.3d 409, 413 (Utah 2004).
See also W. Va.Code § 22-12-13 (1994) (providing article provides "additional and cumulative remedies" which do not "abridge[] or alter[] rights of action or remedies now or hereafter existing"); W. Va.Code § 39-1A-7 (stating that article entitled, in part, "article cumulative" provides "an additional method of proving notarial acts.)"
Syl. Pt. 6, McDavid, 213 W.Va. 592, 584 S.E.2d 226.
That said, I am troubled by the verdict form's lack of clarity on the award of McDavid damages, to which the Estate was clearly entitled. The problem presented by this verdict form is that respondent need only have included a separate line item for such damages, as the jury was instructed to award, that was not improperly tied in isolation to a particular claim, such as the NHA claim. Just as the petitioners had to suffer the consequences of not providing a verdict form which would have allowed a separate calculation of each defendant's punitives, so it seems the respondent should suffer like consequences for their failure to provide a proposed verdict form which would have clearly provided a separate line for McDavid damages.
4 Bus. & Com. Litig. Fed. Cts. 45.54 (3d ed.2011).
